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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 14 An Act respecting a national day of commemoration of the exodus of Vietnamese refugees and their acceptance in Canada after the fall of Saigon and the end of the Vietnam War
ASSENTED TO 23rd APRIL, 2015 BILL S-219
SUMMARY This enactment designates the thirtieth day of April in each and every year as “Journey to Freedom Day”.
62-63-64 ELIZABETH II —————— CHAPTER 14 An Act respecting a national day of commemoration of the exodus of Vietnamese refugees and their acceptance in Canada after the fall of Saigon and the end of the Vietnam War [Assented to 23rd April, 2015] Preamble
Whereas the Canadian Forces were involved in the Vietnam War with supervisory operations to support the aim of establishing peace and ending the Vietnam War by assisting in the enforcement of the Paris Peace Accords of 1973; Whereas on April 30, 1975, despite the Paris Peace Accords, the military forces of the People’s Army of Vietnam and the National Liberation Front invaded South Vietnam, which led to the fall of Saigon, the end of the Vietnam War and the establishment of the Socialist Republic of Vietnam Government; Whereas the United Nations High Commissioner for Refugees has reported that these events and the conditions faced by individuals in Vietnam, including deteriorating living conditions and human rights abuses, contributed to the exodus of approximately 840,000 Vietnamese people, who were referred to at the time as “Vietnamese boat people”, to neighbouring countries in the ensuing years; Whereas the United Nations High Commissioner for Refugees has reported that at least 250,000 Vietnamese people lost their lives at sea during the exodus of the Vietnamese people for reasons that included drowning, illness, starvation and violence from kidnapping or piracy;
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Journey to F
Whereas the sponsorship refugee program in Canada, assisted by the efforts of Canadian families, Canadian charities, religious groups and non-governmental organizations, contributed to Canada accepting more than 60,000 Vietnamese refugees, among whom it has been estimated that 34,000 were privately sponsored and 26,000 were assisted by the Canadian government; Whereas the major and sustained contribution by the people of Canada to the cause of refugees was recognized by the United Nations High Commissioner for Refugees when it awarded the Nansen Refugee Award to the “People of Canada” in 1986; And whereas April 30 is referred to by many members of the community of displaced Vietnamese people and their families in Canada as “Black April Day”, or alternatively as “Journey to Freedom Day”, and is, therefore, an appropriate day to designate as a day to remember and commemorate the lives lost and the suffering experienced during the exodus of Vietnamese people, the acceptance of Vietnamese refugees in Canada, the gratitude of Vietnamese people to the Canadian people and the Government of Canada for accepting them, and the contributions of Vietnamese-Canadian people — whose population is now approximately 300,000 — to Canadian society;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Journey to Freedom Day Act. JOURNEY TO FREEDOM DAY
Journey to Freedom Day
2. Throughout Canada, in each and every year, the thirtieth day of April shall be known as “Journey to Freedom Day”.
2013-2014-2015 Not a legal holiday
Journée du Parcou
3. For greater certainty, Journey to Freedom Day is not a legal holiday or a non-juridical day.
Published under authority of the Senate of Canada
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 38 An Act to amend the Canada National Marine Conservation Areas Act
ASSENTED TO 23rd JUNE, 2015 BILL C-61
SUMMARY This enactment amends the Canada National Marine Conservation Areas Act to establish the Lake Superior National Marine Conservation Area of Canada and to provide that certain provisions of the laws of Ontario apply within any national marine conservation area in Ontario.
62-63-64 ELIZABETH II —————— CHAPTER 38 An Act to amend the Canada National Marine Conservation Areas Act [Assented to 23rd June, 2015] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Lake Superior National Marine Conservation Area Act.
2002, c. 18
CANADA NATIONAL MARINE CONSERVATION AREAS ACT 2. The Canada National Marine Conservation Areas Act is amended by adding the following after section 7: MARINE CONSERVATION AREAS IN ONTARIO
Definitions
“Ontario Water Resources Act” « Loi sur les ressources en eau de l’Ontario » “water taking” « prélèvement d’eau »
7.1 (1) The following definitions apply in this section. “Ontario Water Resources Act” means the Ontario Water Resources Act, R.S.O. 1990, c. O.40, as amended from time to time.
“water taking” means the taking of water within the meaning of the Ontario Water Resources Act or any regulations made under it, as those regulations are amended from time to time, however the reference to the taking of water is expressed grammatically in that Act or those regulations.
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“water transfer” « transfert d’eau »
“water transfer” means the transfer of water within the meaning of the Ontario Water Resources Act or any regulations made under it, as those regulations are amended from time to time, however the reference to the transfer of water is expressed grammatically in that Act or those regulations.
Marine conservation areas in Ontario
(2) The provisions concerning water taking and water transfer of the laws of Ontario, as those provisions are amended from time to time, apply within a marine conservation area in Ontario.
Laws of Ontario
(3) For greater certainty, the laws of Ontario whose provisions concerning water taking and water transfer apply within a marine conservation area in Ontario include the Ontario Water Resources Act, the Environmental Bill of Rights, 1993, S.O. 1993, c. 28, as amended from time to time, and any regulations made under either of them, as those regulations are amended from time to time.
Application
(4) The provisions of the laws of Ontario that relate to the following matters, as those provisions are amended from time to time, apply within a marine conservation area in Ontario with regard to water taking and water transfer:
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(a) the administration and enforcement of the laws referred to in subsections (2) and (3); (b) orders by provincial officers, as defined in the Ontario Water Resources Act, and the review of those orders; (c) orders by Directors, as defined in the Ontario Water Resources Act; and (d) hearings held by the Environmental Review Tribunal, within the meaning assigned by the definition “Tribunal” in the Ontario Water Resources Act, and appeals from its decisions. Sections 18 and 19
(5) Despite sections 18 and 19, the duties of marine conservation area wardens and enforcement officers do not include the administration or enforcement of the provisions of the laws of Ontario referred to in subsections (2) to (4).
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Administration and enforcement
(6) Persons who are authorized under the laws of Ontario to administer and enforce the provisions of the laws of Ontario referred to in subsections (2) to (4) outside a marine conservation area in Ontario are authorized to administer and enforce those provisions within a marine conservation area in Ontario.
Ontario Provincial Offences Act
(7) The Provincial Offences Act, R.S.O. 1990, c. P.33, as amended from time to time, applies to contraventions of the provisions of the laws of Ontario referred to in subsections (2) to (4).
Statutory Instruments Act
(8) The Statutory Instruments Act does not apply to any instrument that is made or issued under any of the provisions of the laws of Ontario referred to in subsections (2) to (4).
Permits and authorizations
(9) The superintendent of a marine conservation area in Ontario shall not issue a permit or other authorizing instrument relating to water taking or water transfer within the marine conservation area, or amend a permit or other authorizing instrument so as to allow water taking or water transfer within the area.
Section 12
(10) Section 12 does not apply in respect of any activity that is carried out in conformity with a permit or other authorizing instrument relating to water taking or water transfer within a marine conservation area in Ontario that is made or issued under any of the laws of Ontario referred to in subsections (2) to (4). 3. Subsection 15(1) of the Act is replaced by the following:
Permits and authorizations
15. (1) Subject to section 7.1, the superintendent of a marine conservation area may, to the extent authorized by the regulations, issue, amend, suspend and revoke permits and other authorizing instruments for activities that are consistent with the management plan or interim management plan in the marine conservation area. 4. Schedule 1 to the Act is amended by adding the following:
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LAKE SUPERIOR NATIONAL MARINE CONSERVATION AREA OF CANADA In the Province of Ontario, District of Thunder Bay, more particularly described as follows: FIRSTLY: Land and land under the water of part of Lake Superior, and land and land under water of part of the Nipigon River in the Geographic Township of Nipigon, being composed of Parcels 1, 17 to 20, 24, 27, 34, 36, 37, 43, 45, 59, 109, 110, 114, 116, 117 to 122 and 124 on a plan recorded in the Canada Lands Surveys Records at Ottawa as Plan 103778 CLSR, containing 1,080,596 hectares, more or less; SECONDLY: Land under the water of part of Lake Superior being composed of Parcels 46 and 123, as shown on said Plan 103778 CLSR, containing 222 hectares, more or less; THIRDLY: Part of Lot 4, Concession 1, Geographic Township of Lyon being composed of Parcel 38, as shown on said Plan 103778 CLSR, containing 68 hectares, more or less; FOURTHLY: Part of the unsubdivided Geographic Township of Strey being composed of Parcels 127 and 128, as shown on said Plan 103778 CLSR, containing 53 hectares, more or less; FIFTHLY: Part of the unsubdivided Geographic Township of Syine being composed of Parcel 129, as shown on said Plan 103778 CLSR, containing 48 hectares, more or less. COMING INTO FORCE Order in council
5. Section 4 comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 10 An Act respecting the Rouge National Urban Park
ASSENTED TO 23rd APRIL, 2015 BILL C-40
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act respecting the Rouge National Urban Park”.
SUMMARY This enactment establishes the Rouge National Urban Park, a new type of federal protected area, and provides for the protection and presentation of its natural and cultural resources and the encouragement of sustainable farming practices within the Park. The enactment confers a broad range of regulatory powers for the management and administration of the Park. It also makes consequential amendments to the Canada Lands Surveys Act, the Parks Canada Agency Act, the Species at Risk Act and the Environmental Violations Administrative Monetary Penalties Act.
TABLE OF PROVISIONS
AN ACT RESPECTING THE ROUGE NATIONAL URBAN PARK Preamble SHORT TITLE 1.
Rouge National Urban Park Act INTERPRETATION
2. Definitions HER MAJESTY
3. Binding on Her Majesty
4. Park established
PARK ESTABLISHED
MANAGEMENT OF THE PARK 5.
Management by Minister
6. Factors to be considered
7. National historic sites
8. Advisory committee
9. Management plan
10. Public consultation
11. Agreements
12. Clearing of land for installation or maintenance of infrastructure PARK LANDS
13. Public lands
14. Amendment to schedule
15. No disposition without authority
16. Authority to dispose POLLUTION CLEAN-UP
17. Mitigation of risks
18. Definitions
PROHIBITED ACTIVITIES
i AGRICULTURAL ACTIVITIES 19.
For greater certainty REGULATIONS
20. Regulations
21. Land claims agreements
22. Incorporation by reference ENFORCEMENT
23. Designation of park wardens
24. Designation of enforcement officers
25. Contraventions Act
26. Certificate of designation and oath
27. Right of passage
28. Immunity
29. Arrest without warrant
30. Search and seizure
31. Custody of things seized
32. Liability for costs OFFENCES AND PENALTIES
33. Offence
34. Offences involving more than one animal, plant or object
35. Due diligence defence
36. Determination of small revenue corporation status
37. Fundamental purpose of sentencing
38. Sentencing principles
39. Relief from minimum fine
40. Additional fine
41. Notice to shareholders
42. Liability of directors, officers, etc., of corporations
43. Forfeiture
44. Disposition by Minister
45. Application of fines
46. Orders of court
47. Compensation for loss of property
48. Compensation for cost of remedial or preventive action
49. Limitation period
50. Contraventions Act
ii 51.
Publication of information about contraventions
52. Review
NON-APPLICATION OF STATUTORY INSTRUMENTS ACT 53.
Statutory Instruments Act CLAIM IN RESPECT OF ABORIGINAL RIGHTS
54. Aboriginal resource harvesting
55. Canada Lands Surveys Act
CONSEQUENTIAL AMENDMENTS 56–59.
Parks Canada Agency Act
60. Species at Risk Act
61. Environmental Violations Administrative Monetary Penalties Act
62. Order in council
COMING INTO FORCE
SCHEDULE
62-63-64 ELIZABETH II —————— CHAPTER 10 An Act respecting the Rouge National Urban Park [Assented to 23rd April, 2015] Preamble
Whereas the Rouge Valley contains some of the last remnants of the Carolinian forest in Canada, significant geological features and a combination of diverse habitats linking Lake Ontario to the Oak Ridges Moraine; Whereas the foresight, dedication and engagement of community visionaries and various levels of government have laid the foundation for the creation of a park in the Rouge Valley, an area that is rich in natural and cultural resources and is readily accessible to the population of Canada’s largest metropolitan area; Whereas there is a unique opportunity to connect Canadians with the natural and cultural heritage of the Rouge Valley and with the history of its early Aboriginal inhabitants and others who shaped its landscapes; And whereas Parliament wishes to protect natural ecosystems and maintain native wildlife in the Rouge Valley, to provide meaningful opportunities for Canadians to experience and enjoy the diverse landscapes of the Rouge Valley, to engage local communities and businesses, Aboriginal organizations and youth, as well as other Canadians, to become stewards and ambassadors of the park, to provide a wide range of recreational, interpretive, volunteer and learning activities to attract a diverse urban population to the park,
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to enable youth and other visitors to connect with nature in an urban setting, to protect the cultural landscapes of the park and identify its heritage values to facilitate an understanding and appreciation of the history of the region, to encourage sustainable farming practices to support the preservation of agricultural lands in the park and celebrate the agricultural heritage of the region, and to promote the park as a place of discovery, enjoyment and learning, and as a gateway to all of Canada’s national protected heritage areas;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Rouge National Urban Park Act. INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“enforcement officer” « agent de l’autorité »
“enforcement officer” means any person designated under section 24 or belonging to a class of persons so designated.
“Minister” « ministre »
“Minister” means the Minister responsible for the Parks Canada Agency.
“national historic site” « lieu historique national »
“national historic site” means a site, building or other place of national historic interest or significance that is commemorated under section 3 of the Historic Sites and Monuments Act.
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“Park” « parc »
“Park” means the Rouge National Urban Park, established by section 4.
“park warden” « garde de parc »
“park warden” means a person designated under section 23.
“public lands” « terres domaniales »
“public lands” means lands, including submerged lands, belonging to Her Majesty in right of Canada or of which the Government of Canada has the power to dispose, regardless of whether that disposal is subject to any agreement between the Government of Canada and the Government of Ontario.
“superintendent” « directeur »
“superintendent” means a person appointed under subsection 13(1) of the Parks Canada Agency Act who holds the office of superintendent of the Park, and includes any other person appointed under that Act who is authorized by the superintendent to act on his or her behalf. HER MAJESTY
Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province. PARK ESTABLISHED
Park established
4. Rouge National Urban Park, which is described in the schedule, is established for the purposes of protecting and presenting, for current and future generations, the natural and cultural heritage of the Park and its diverse landscapes, promoting a vibrant farming community and encouraging Canadians to discover and connect with their national protected heritage areas. MANAGEMENT OF THE PARK
Management by Minister
5. The Minister is responsible for the administration, management and control of the Park, including the administration of public lands in the Park and, for that purpose, the Minister may use and occupy those lands.
Factors to be considered
6. The Minister must, in the management of the Park, take into consideration the protection of its natural ecosystems and cultural landscapes and the maintenance of its native wildlife and of the health of those ecosystems.
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National historic sites
7. The Minister must, in relation to any national historic site in the Park, ensure
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(a) that cultural resources are not impaired or under threat; (b) that cultural resources are maintained in a manner that will prevent or slow their deterioration and that any intervention carried out is in accordance with national conservation standards; and (c) that he or she does not take any action, including the making of a payment or the granting of any financial assistance or any authorization, that would have an adverse effect on cultural resources or on the communication to the public of the reasons for the commemoration of the national historic site. Advisory committee
8. The Minister may establish a committee to advise the Minister on the management of the Park. The advisory committee may include representatives from local governments, Aboriginal or regional organizations and other organizations that the Minister considers appropriate.
Management plan
9. (1) Within five years after the establishment of the Park, the Minister must prepare a management plan that sets out a long-term vision for the Park and provides for management objectives and performance evaluation. The Minister must cause the management plan to be tabled in each House of Parliament.
Area management approach
(2) The management plan must set out a management approach, by area, that includes the following: (a) the protection and presentation of natural and cultural heritage; (b) the presentation of agricultural heritage and the encouragement of sustainable farming practices; and (c) the installation and maintenance of infrastructure, buildings and other improvements.
Review of management plan
(3) The Minister must review the management plan at least every 10 years and must cause any amendments to the plan to be tabled in each House of Parliament.
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Public consultation
10. The Minister must provide opportunities for public participation, including by Aboriginal organizations, in the development of the management plan and in relation to any other matters that the Minister considers relevant.
Agreements
11. The Minister may, for the purposes of the management of the Park, enter into agreements with federal and provincial ministers and agencies, local governments, Aboriginal organizations and other persons and organizations.
Clearing of land for installation or maintenance of infrastructure
12. The superintendent may issue, amend, suspend and revoke any permit or other authorization for the clearing of public lands in the Park for the purpose of installing or maintaining public infrastructure, including public utilities or transportation corridors. PARK LANDS
Public lands
13. (1) The Minister may, in respect of public lands in the Park, enter into leases, grant easements and issue licences of occupation.
Use of lands
(2) Public lands in the Park in which a right or interest is held for any purpose under this Act remain part of the Park and that right or interest reverts to Her Majesty in right of Canada if those lands cease to be used for that purpose.
Termination, etc.
(3) The Minister may, in respect of public lands in the Park, terminate or accept the surrender of a lease and terminate or accept the relinquishment of an easement or a licence of occupation.
Expropriation
(4) The Expropriation Act applies in respect of the acquisition of an interest in public lands in the Park for the purposes of this Act if the holder of the interest does not consent and there is no cause for termination under subsection (3).
Meaning of terms
(5) For the purposes of subsection (4), the Minister is deemed to be a Minister referred to in paragraph (b) of the definition “Minister” in subsection 2(1) of the Expropriation Act and the
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Parks Canada Agency is deemed to be a department named in Schedule I to the Financial Administration Act. No other expropriation
(6) Despite the Expropriation Act, no interest in land may be acquired by expropriation by Her Majesty in right of Canada for the purpose of enlarging the Park.
Amendment to schedule
14. (1) For the purpose of enlarging the Park, the Governor in Council may, by order, amend the schedule by altering the description of the Park, if the Governor in Council is satisfied that Her Majesty in right of Canada has title to the lands that are to be included in the Park, regardless of whether there are any charges on title.
Judicial finding as to title
(2) If a court of competent jurisdiction finds that Her Majesty in right of Canada does not have title to lands in the Park, the Governor in Council may, by order, amend the schedule by altering the description of the Park to remove those lands from the Park.
No disposition without authority
15. It is prohibited to dispose of public lands or a right or interest in public lands in the Park, except as permitted under this Act.
Authority to dispose
16. (1) Public lands or a right or interest in public lands in the Park may be disposed of to a federal or provincial authority, including the Toronto and Region Conservation Authority, or to a municipal authority, if the disposal is required for the purposes of the installation or maintenance of public infrastructure, including public utilities or transportation corridors.
Restriction
(2) Subsection (1) ceases to apply in respect of the transfer of the fee simple in the public lands when the total amount of lands in which fee simple has been transferred under that subsection reaches an area of 200 hectares.
Amendment to schedule
(3) The Governor in Council may, by order, amend the schedule by altering the description of the Park to remove the lands that have been disposed of.
2013-2014-2015 Reversion
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(4) Lands disposed of under subsection (1) revert to Her Majesty in right of Canada if those lands cease to be used for the purposes for which they were disposed of. POLLUTION CLEAN-UP
Mitigation of risks
17. (1) If a substance that is capable of degrading the natural environment, injuring natural or cultural resources or endangering human health is discharged or deposited in the Park, any person who has charge, management or control of the substance and any person who caused or contributed to the discharge or deposit must take reasonable measures to prevent any degradation of the natural environment and any danger to natural or cultural resources or to human health that may result from the discharge or deposit.
Powers of superintendent and Minister
(2) If the superintendent is of the opinion that a person is not taking the required measures, the superintendent may order the person to take those measures and, if the person fails to do so, the Minister may take those measures on behalf of Her Majesty in right of Canada.
Expenses of clean-up
(3) A person who fails to comply with an order given by the superintendent is liable for the expenses reasonably incurred by Her Majesty in right of Canada in taking the measures, and those expenses may be recovered from that person, with costs, in proceedings brought in the name of Her Majesty in any court of competent jurisdiction. PROHIBITED ACTIVITIES
Definitions
“hunt” « chasser »
“possess” « possession »
18. (1) The following definitions apply in this section. “hunt” means to kill, injure, seize, capture or trap a wild animal, or to attempt to do so, and includes to pursue, stalk, track, search for, lie in wait for or shoot at a wild animal for any of those purposes. “possess” includes, in relation to any person, knowingly having any thing in any place, whether or not that place belongs to or is occupied by the person, for his or her own use or benefit or for that of another person.
8 “traffic” « trafic »
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“traffic” means to sell, offer for sale, buy, offer to buy, exchange, give, send, transport or deliver.
“wild animal” « animal sauvage »
“wild animal” means any individual of the animal kingdom that is not — or is no longer — domesticated, whether living or dead, at any developmental stage — including any egg or embryo — and any part or any derivative of such an individual.
Prohibited activities
(2) Except as permitted under this Act, it is prohibited to (a) traffic in a wild animal, a plant, a part of a plant, any other naturally occurring object or product of natural phenomena or a cultural, historical or archaeological resource, whether it is in the Park or has been removed from it; (b) hunt a wild animal in the Park; (c) remove a wild animal, a plant, a part of a plant or any other naturally occurring object or product of natural phenomena from the Park; (d) possess a wild animal, a plant, a part of a plant or any other naturally occurring object or product of natural phenomena that is in the Park or that has been removed from it; (e) disturb, harm or destroy a wild animal or disturb, damage or destroy a plant, a part of a plant or any other naturally occurring object or product of natural phenomena that is in the Park or that has been removed from it; (f) harvest timber in the Park; (g) explore for minerals, oil or gas, or conduct an extractive activity, including mining, in the Park; (h) dump or dispose of any substance in the Park; (i) disturb a cultural, historical or archaeological resource in the Park, remove one from it or, whether it is in the Park or has been removed from it, damage, alter, destroy or possess one; or
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(j) remove a park facility or other park property from the Park or, whether it is in the Park or has been removed from it, damage, alter or destroy a park facility or other park property.
Exception — superintendent
(3) Subsection (2) does not apply to the superintendent when he or she is performing his or her functions related to the management of the Park or to any other person authorized by the superintendent when they are performing those functions on the superintendent’s behalf.
Exception — rescue and rehabilitation of animals
(4) Subsection (2) does not apply to activities carried out by an organization whose purpose is the rescue and rehabilitation of wild animals if that organization has been authorized by the Minister to carry out those activities.
Exception — recreational fishing
(5) Recreational fishing is permitted in the Park, subject to any regulations that may be made under paragraph 20(1)(f). AGRICULTURAL ACTIVITIES
For greater certainty
19. For greater certainty, subsections 17(1) and 18(2) do not prevent the carrying out of agricultural activities by a lessee of public lands in the Park in accordance with their lease. REGULATIONS
Regulations
20. (1) The Governor in Council may make regulations respecting (a) the preservation, control and management of the Park; (b) the protection of flora, fauna, soil, waters, fossils, natural features and air quality; (c) the protection, management, acquisition, disposition, disturbance, altering, removal or destruction of cultural, historical or archaeological resources;
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(d) the taking of specimens of flora or fauna for scientific or propagation purposes, and the destruction or removal of dangerous or superabundant flora or fauna; (e) the authorization of the use of lands in the Park, and the use or removal of flora and other natural objects, by Aboriginal people for traditional spiritual or ceremonial purposes; (f) the management and regulation of fishing; (g) the prevention and remedying of any pollution of land or water or any obstruction of waterways; (h) the prevention and extinguishment of fires in the Park or threatening the Park; (i) the issuance, amendment and termination of leases, licences of occupation and easements or servitudes, and the acceptance of the surrender of leases and the relinquishment of licences of occupation and easements or servitudes, of or over public lands in the Park; (j) the restriction or prohibition of activities in the Park and the control of the use of resources and facilities in the Park; (k) the establishment, operation, maintenance and administration and use of works and services of a public character, such as water, sewage, electricity, telephone, gas, fire protection and garbage removal and disposal; (l) the establishment, maintenance, administration and use of roads, streets, highways, parking areas, sidewalks, streetworks, trails, wharves, docks, bridges and other improvements, and the circumstances under which they must be open or may be closed to public traffic or use; (m) the control of traffic on roads, streets and highways and elsewhere in the Park, including the regulation of the speed, operation and parking of vehicles; (n) the control of the location, standards, design, materials, construction, maintenance, removal and demolition of buildings, structures, facilities, signs and other improvements and the establishment of zones governing uses of land and buildings;
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(o) the control of agriculture, businesses, trades, occupations, amusements, sports and other activities or undertakings, and the places where those activities or undertakings may be carried on; (p) the preservation of public health and the prevention of disease; (q) the inspection of buildings, structures, facilities and other improvements for the purpose of the enforcement of regulations made under paragraphs (n) to (p); (r) the abatement and prevention of nuisances; (s) the use, transportation and storage of pesticides and other toxic substances; (t) public safety, including the control of firearms; (u) the control of domestic animals, including the impounding or destruction of such animals found at large; (v) the control of access to the Park by aircraft; (w) the summary removal from the Park, by park wardens or enforcement officers, of persons found contravening specified provisions of this Act, the regulations or the Criminal Code, and the exclusion from the Park for prescribed periods of those persons or persons convicted of offences under those provisions; (x) the acquisition or the sale of souvenirs, consumer articles and publications; and (y) the removal of private property and the disposal of abandoned property.
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Superintendent’s powers
(2) Regulations made under this section may authorize the superintendent, in the circumstances and subject to the limits that may be specified in the regulations,
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(a) to vary any requirement of the regulations for purposes of public safety or the protection of natural, cultural, historical or archaeological resources in the Park; (b) to issue, amend, suspend and revoke permits, licences and other authorizations in relation to any matter that is the subject of the regulations and to set their terms and conditions; and (c) to order the taking of any action to counter any threat to public health or to remedy the consequences of any breach of the regulations. Land claims agreements
21. (1) The Governor in Council may make regulations respecting the carrying on of traditional renewable resource harvesting activities in any area of the Park in the case where an agreement for the settlement of an Aboriginal land claim entered into by the Government of Canada makes provision for those activities in that area or where Aboriginal people have existing Aboriginal or treaty rights to those activities in that area.
Variation by superintendent
(2) Regulations made under this section may authorize the superintendent, in the circumstances and subject to the limits that may be specified in the regulations, to vary any requirement of the regulations for purposes of public safety or the protection of natural, cultural, historical or archaeological resources in the Park.
Incorporation by reference
22. (1) Regulations made under this Act may incorporate by reference any documents produced by a person or body other than the Minister or the superintendent.
Reproduced or translated material
(2) Regulations made under this Act may incorporate by reference documents that the Minister or the superintendent reproduces or translates from documents produced by a body or person other than the Minister or the superintendent
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(a) with any adaptations of form and reference that will facilitate their incorporation into the regulations; or (b) in a form that sets out only the parts of them that apply for the purposes of the regulations. Jointly produced documents
(3) Regulations made under this Act may incorporate by reference documents that the Minister or the superintendent produces jointly with another government for the purpose of harmonizing the regulations with other laws.
Internally produced standards
(4) Regulations made under this Act may incorporate by reference technical or explanatory documents that the Minister or the superintendent produces, including (a) specifications, classifications, illustrations, graphs or other information of a technical nature; and (b) test methods, procedures, operational standards, safety standards or performance standards of a technical nature.
Incorporation as amended from time to time
(5) Documents may be incorporated by reference as amended from time to time.
For greater certainty
(6) Subsections (1) to (5) are for greater certainty and do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Accessibility
(7) The Minister must ensure that any document that is incorporated by reference in the regulations is accessible.
Defence
(8) A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in the regulations is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (7) or it was otherwise accessible to the person.
No registration or publication
(9) For greater certainty, a document that is incorporated by reference in the regulations is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
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Designation of park wardens
23. The Minister may designate persons appointed under the Parks Canada Agency Act whose duties include law enforcement to be park wardens for the enforcement of the provisions of this Act and the regulations and for the preservation and maintenance of the public peace in the Park, and for those purposes park wardens are peace officers within the meaning of the Criminal Code.
Designation of enforcement officers
24. The Minister may designate persons or classes of persons who are employed in the federal public administration or by a provincial, municipal or local authority or an Aboriginal government and whose duties include law enforcement to be enforcement officers for the purposes of the enforcement of specified provisions of this Act or the regulations, and for those purposes enforcement officers have the powers of, and are entitled to the protection provided by law to, peace officers within the meaning of the Criminal Code.
Contraventions Act
25. (1) The Minister may designate persons or classes of persons employed in the federal public administration or by a provincial, municipal or local authority or an Aboriginal government for the purpose of the enforcement of the provisions of this Act and the regulations that relate to offences that have been designated as contraventions under the Contraventions Act.
Limitations regarding designations
(2) The Minister may specify that a designation is in respect of all or specified offences under this Act that have been designated as contraventions under the Contraventions Act.
Certificate of designation and oath
26. (1) Every park warden and enforcement officer and every person designated under section 25 must be provided with a certificate of designation in a form approved by the Minister and must take and subscribe an oath prescribed by the Minister.
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Limitations must be specified
(2) The certificate must specify the limitations, if any, to which the designation is subject.
Right of passage
27. In the discharge of their duties, park wardens and enforcement officers and any persons accompanying them may enter on and pass through or over private property without being liable for doing so and without any person having the right to object to that use of the property.
Immunity
28. Park wardens and enforcement officers are not personally liable for any thing done or omitted to be done in good faith in the exercise or performance of their powers, duties or functions under this Act.
Arrest without warrant
29. A park warden or enforcement officer may, in accordance with the Criminal Code, arrest without warrant any person (a) whom the warden or officer finds committing an offence under this Act; or (b) who the warden or officer believes, on reasonable grounds, has committed or is about to commit an offence under this Act.
Search and seizure
30. (1) A park warden or enforcement officer may (a) enter and search any place and open and examine any package or receptacle in accordance with a warrant issued under subsection (2) at any time during the day or, if so specified in the warrant, during the night; and (b) seize any thing that the warden or officer believes on reasonable grounds is a thing described in subsection (2).
Authority to issue warrant
(2) A justice of the peace may, on ex parte application, issue a warrant authorizing a park warden or enforcement officer named in the warrant to, subject to any conditions specified in it, enter and search any place, including any building or any vehicle, vessel or other conveyance, or open and examine any package or receptacle, if the justice of the peace is satisfied by information on oath that there are reasonable grounds to believe that there is in the place, package or receptacle
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(a) any thing in relation to which there are reasonable grounds to believe an offence under this Act has been committed; or (b) any thing that there are reasonable grounds to believe will afford evidence with respect to the commission of such an offence. Warrant not necessary
(3) A park warden or enforcement officer may exercise any powers under subsection (1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would not be practical to obtain one.
Custody of things seized
31. (1) Subject to subsections (2) and (3) and sections 43 and 44, if a park warden or enforcement officer seizes a thing under this Act or under a warrant issued under the Criminal Code, (a) sections 489.1 and 490 of the Criminal Code apply; and (b) the warden or officer, or any person that the warden or officer designates, must retain custody of the thing, subject to any order made under section 490 of the Criminal Code.
Forfeiture if ownership not ascertainable
(2) If the lawful ownership of or entitlement to a seized thing cannot be ascertained within 30 days after its seizure, the thing or any proceeds of its disposition are forfeited to Her Majesty in right of Canada, if the thing was seized by a park warden or by an enforcement officer employed in the federal public administration, or to Her Majesty in right of a province, if the thing was seized by an enforcement officer employed by a provincial, municipal or local authority or an Aboriginal government.
Perishable things
(3) If a seized thing is perishable, the park warden or enforcement officer may dispose of it or destroy it, and any proceeds of its disposition must be paid to the lawful owner or person lawfully entitled to possession of the thing, unless proceedings under this Act are commenced within 90 days after its seizure, in which case they must be retained by the warden or officer pending the outcome of those proceedings.
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32. If a thing is seized under this Act, the person who owned the thing at the time that it was seized, the person who had charge or control of the thing immediately before it was seized and the person who possessed it immediately before it was seized are jointly and severally, or solidarily, liable for all the costs of seizure, detention, maintenance and forfeiture, including any destruction or disposal costs, incurred by Her Majesty in right of Canada in relation to the thing in excess of any proceeds of its disposition. OFFENCES AND PENALTIES
Offence
33. (1) Every person who contravenes subsection 17(1) is guilty of an offence and liable (a) on conviction on indictment, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, (ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation, (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or (b) on summary conviction, (i) in the case of an individual,
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(ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation, (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000.
Offence
(2) Every person who contravenes paragraph 18(2)(a) is guilty of an offence and liable (a) on conviction on indictment, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $7,500 and not more than $500,000, and (B) for a second or subsequent offence, to a fine of not less than $15,000 and not more than $1,000,000, (ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $400,000 and not more than $5,000,000, and
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Parc urbain natio (B) for a second or subsequent offence, to a fine of not less than $800,000 and not more than $10,000,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation, (A) for a first offence, to a fine of not less than $25,000 and not more than $3,000,000, and (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $6,000,000; or
(b) on summary conviction, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $4,000 and not more than $225,000, and (B) for a second or subsequent offence, to a fine of not less than $8,000 and not more than $450,000, (ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $50,000 and not more than $3,000,000, and (B) for a second or subsequent offence, to a fine of not less than $100,000 and not more than $6,000,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation, (A) for a first offence, to a fine of not less than $15,000 and not more than $1,250,000, and (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,500,000.
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Offence
(3) Every person who contravenes any of paragraphs 18(2)(b) to (j), any provision of the regulations or any condition of a permit, licence or other authorization issued under the regulations or under section 12 is guilty of an offence and liable
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(a) on conviction on indictment, (i) in the case of an individual, (A) for a first offence, to a fine of not more than $100,000, and (B) for a second or subsequent offence, to a fine of not more than $200,000, (ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not more than $500,000, and (B) for a second or subsequent offence, to a fine of not more than $1,000,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation, (A) for a first offence, to a fine of not more than $250,000, and (B) for a second or subsequent offence, to a fine of not more than $500,000; or (b) on summary conviction, (i) in the case of an individual, (A) for a first offence, to a fine of not more than $25,000, and (B) for a second or subsequent offence, to a fine of not more than $50,000, (ii) in the case of a corporation, other than one referred to in subparagraph (iii), (A) for a first offence, to a fine of not more than $250,000, and (B) for a second or subsequent offence, to a fine of not more than $500,000, and (iii) in the case of a corporation that the court has determined under section 36 to be a small revenue corporation,
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Parc urbain natio (A) for a first offence, to a fine of not more than $50,000, and (B) for a second or subsequent offence, to a fine of not more than $100,000.
Offences involving more than one animal, plant or object
34. (1) If an offence involves more than one wild animal, plant or object, the fine to be imposed in respect of that offence may, despite section 33, be the total of the fines that would have been imposed if each of the wild animals, plants or objects had been the subject of a separate information.
Continuing offences
(2) If an offence is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Deeming — second and subsequent offence
(3) For the purposes of section 33, a conviction for a particular offence under this Act is deemed to be a conviction for a second or subsequent offence if the court is satisfied that the offender has been previously convicted of a substantially similar offence under federal or provincial legislation that relates to environmental or wildlife protection or conservation or to the protection of natural, cultural, historical or archaeological resources.
Limitation
(4) For the purposes of subsection (3), only previous convictions on indictment or on summary conviction, or under any similar procedure under any Act of the legislature of a province, are to be considered as previous convictions.
Due diligence defence
35. A person is not to be found guilty of an offence under this Act if they establish that they exercised due diligence to prevent its commission.
Determination of small revenue corporation status
36. For the purpose of section 33, a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for
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the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000. Fundamental purpose of sentencing
37. The fundamental purpose of sentencing for offences under this Act is to contribute to respect for the law establishing and protecting the Park through the imposition of just sanctions that have as their objectives (a) to deter the offender and any other person from committing offences under this Act; (b) to denounce unlawful conduct that damages or creates a risk of damage to the Park; and (c) to restore resources in the Park.
Sentencing principles
38. (1) In addition to the principles and factors that the court is otherwise required to consider, including those set out in sections 718.1 to 718.21 of the Criminal Code, the court must consider the following principles when sentencing a person who is convicted of an offence under this Act: (a) the amount of the fine should be increased to account for every aggravating factor associated with the offence, including the aggravating factors set out in subsection (2); and (b) the amount of the fine should reflect the gravity of each aggravating factor associated with the offence.
Aggravating factors
(2) The aggravating factors are the following: (a) the offence caused damage or risk of damage to resources in the Park; (b) the offence caused damage or risk of damage to any unique, rare, particularly important or vulnerable resources in the Park; (c) the damage caused by the offence is extensive, persistent or irreparable; (d) the offender committed the offence intentionally or recklessly;
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(e) by committing the offence or failing to take action to prevent its commission, the offender increased their revenue or decreased their costs or intended to increase their revenue or decrease their costs; (f) the offender committed the offence despite having been warned by the superintendent, a park warden or an enforcement officer of the circumstances that subsequently became the subject of the offence; (g) the offender has a history of noncompliance with federal or provincial legislation that relates to environmental or wildlife protection or conservation or to the protection of natural, cultural, historical or archaeological resources; and (h) after the commission of the offence, the offender (i) attempted to conceal its commission, (ii) failed to take prompt action to prevent, mitigate or remediate its effects, or (iii) failed to take prompt action to reduce the risk of committing similar offences in the future.
Absence of aggravating factor
(3) The absence of an aggravating factor set out in subsection (2) is not a mitigating factor.
Meaning of “damage”
(4) For the purposes of paragraphs (2)(a) to (c), “damage” includes loss of use value and non-use value.
Reasons
(5) If the court is satisfied of the existence of one or more of the aggravating factors set out in subsection (2) but decides not to increase the amount of the fine because of that factor, it must give reasons for that decision.
Relief from minimum fine
39. The court may impose a fine that is less than the minimum amount provided for in section 33 if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court must provide reasons if it imposes a fine that is less than the minimum amount provided for in that section.
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Additional fine
40. If a person is convicted of an offence under this Act and the court is satisfied that, as a result of the commission of the offence, the person acquired any property, benefit or advantage, the court must order the person to pay an additional fine in an amount of money equal to the court’s estimation of the value of that property, benefit or advantage. The additional fine may exceed the maximum amount of any fine that may otherwise be imposed under this Act.
Notice to shareholders
41. If a corporation that has shareholders is convicted of an offence under this Act, the court must make an order directing the corporation to notify its shareholders, in the manner and within the time directed by the court, of the facts relating to the commission of the offence and of the details of the punishment imposed.
Liability of directors, officers, etc., of corporations
42. (1) If a corporation commits an offence under this Act, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the penalty provided for by this Act for an individual in respect of the offence committed by the corporation, whether or not the corporation has been prosecuted or convicted.
Duties of directors and officers of corporations
(2) Every director and officer of a corporation must take all reasonable care to ensure that the corporation complies with
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(a) this Act; and (b) orders made by a court or the superintendent under this Act. Forfeiture
43. (1) If a person is convicted of an offence, the court may, in addition to any punishment imposed, order that any seized thing, or any proceeds of its disposition, be forfeited to Her Majesty in right of Canada.
Return if no forfeiture ordered
(2) If the court does not order the forfeiture, the seized thing or the proceeds of its disposition must be returned or paid to its owner or the person lawfully entitled to it.
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Retention or sale
(3) If a fine is imposed on a person convicted of an offence, any seized thing, or any proceeds of its disposition, may be retained until the fine is paid or the thing may be sold in satisfaction of the fine and the proceeds applied, in whole or in part, in payment of the fine.
Disposition by Minister
44. Any seized thing that has been forfeited under this Act to Her Majesty in right of Canada or abandoned by its owner may be dealt with and disposed of as the Minister may direct.
Application of fines
45. (1) All fines received by the Receiver General in respect of the commission of an offence under this Act, other than fines collected under the Contraventions Act, are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to protecting, conserving or restoring the Park or for administering that Fund.
Recommendations of court
(2) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or organization specified by the court for a purpose referred to in subsection (1).
Orders of court
46. (1) If a person is convicted of an offence under this Act, the court may, in addition to any punishment imposed and having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects: (a) prohibiting the person from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence; (b) directing the person to take any action that the court considers appropriate to remedy or avoid any damage to any resources in the Park that resulted or may result from the commission of the offence; (c) directing the person to compensate any person, monetarily or otherwise, in whole or in part, for the cost of any remedial or preventive action that is taken, that is caused
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to be taken or that is to be taken as a result of the act or omission that constituted the offence, including the costs of assessing the appropriate remedial or preventive action; (d) directing the person to post a bond or pay into court an amount of money that the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement mentioned in this section; (e) directing the person to prepare and implement a pollution prevention plan or an environmental emergency plan; (f) directing the person to carry out, in the manner established by the Minister, monitoring of the environmental effects of any activity or works on resources in the Park or directing the person to pay, in the manner specified by the court, an amount of money for that purpose; (g) directing the person to implement an environmental management system approved by the Minister; (h) directing the person to have an environmental audit conducted by a person of a class specified by the Minister at the times specified by the Minister and to remedy any deficiencies revealed during the audit; (i) directing the person to pay to Her Majesty in right of Canada an amount of money that the court considers appropriate for the purpose of promoting the protection, conservation or restoration of the Park; (j) directing the person to publish, in the manner specified by the court, the facts relating to the commission of the offence and the details of the punishment imposed, including any orders made under this subsection; (k) directing the person to notify, at the person’s own cost and in the manner specified by the court, any person aggrieved or affected by the person’s conduct of the facts relating to the commission of the offence and of the details of the punishment imposed, including any orders made under this subsection;
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(l) directing the person to submit to the Minister, if requested to do so by the Minister at any time within three years after the date of conviction, any information with respect to the person’s activities that the court considers appropriate in the circumstances; (m) directing the person to perform community service, subject to any reasonable conditions that are imposed in the order; (n) directing the person to pay, in the manner specified by the court, an amount of money to enable research to be conducted into the protection, conservation or restoration of the Park; (o) requiring the person to surrender to the Minister any permit, licence or other authorization issued to the person under this Act; (p) prohibiting the person from applying for any new permit, licence or other authorization under this Act during any period that the court considers appropriate; (q) directing the person to pay, in the manner specified by the court, an amount of money to environmental or other groups, to assist in their work related to the Park; (r) directing the person to pay, in the manner specified by the court, an amount of money to an educational institution, including for scholarships for students enrolled in studies related to the environment; and (s) requiring the person to comply with any other conditions that the court considers appropriate. Suspended sentence
(2) If a person is convicted of an offence under this Act and the court suspends the passing of sentence under paragraph 731(1)(a) of the Criminal Code, the court may, in addition to any probation order made under that paragraph, make an order referred to in subsection (1).
Imposition of sentence
(3) If a person does not comply with an order made under subsection (2) or is convicted of another offence, the court may, within three years after the order was made, on the
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application of the prosecution, impose any sentence that could have been imposed if the passing of sentence had not been suspended. Publication
(4) If a person fails to comply with an order made under paragraph (1)(j), the Minister may, in the manner that the court directed the person to do so, publish the facts relating to the commission of the offence and the details of the punishment imposed and recover the costs of publication from the person.
Debt due to Her Majesty
(5) If the court makes an order under paragraph (1)(c) or (i) directing a person to pay an amount of money to Her Majesty in right of Canada, or if the Minister incurs publication costs under subsection (4), the amount or the costs, as the case may be, constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Enforcement
(6) If the court makes an order under paragraph (1)(c) directing a person to pay an amount of money to any person other than Her Majesty in right of Canada and the amount is not paid without delay, that other person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the person who was directed to pay the amount in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Cancellation or suspension of permits, etc.
(7) If the court makes an order under paragraph (1)(o), any permit, licence or other authorization to which the order relates is cancelled unless the court makes an order suspending it for any period that the court considers appropriate.
Coming into force and duration of order
(8) An order made under subsection (1) comes into force on the day on which it is made or on any other day that the court may determine and must not continue in force for more than three years after that day unless the court provides otherwise in the order.
Compensation for loss of property
47. (1) If a person has been convicted of an offence under this Act, the court may, at the time sentence is imposed and on the application of the person aggrieved, order the offender to
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pay to the aggrieved person an amount of money by way of satisfaction or compensation for loss of or damage to property suffered by that person as a result of the commission of the offence. Enforcement
(2) If the amount ordered to be paid under subsection (1) is not paid without delay, the aggrieved person may, by filing the order, enter as a judgment, in the superior court of the province in which the trial was held, the amount ordered to be paid, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Compensation for cost of remedial or preventive action
48. (1) A court must not, under paragraph 46(1)(c), order a person convicted of an offence to compensate another person for the cost of any remedial or preventive action referred to in that paragraph if the other person is entitled to make a claim for compensation for that cost under the Marine Liability Act.
Compensation for loss or damage — property
(2) A court must not, under subsection 47(1), order a person convicted of an offence to pay to another person an amount of money by way of satisfaction or compensation for loss of or damage to property if the other person is entitled to make a claim for compensation for that loss or damage under the Marine Liability Act.
Limitation period
49. No proceedings by way of summary conviction in respect of an offence under this Act may be instituted more than five years after the day on which the subject matter of the proceedings arose, unless the prosecutor and the defendant agree that they may be instituted after the five years.
Contraventions Act
50. If an offence under this Act is designated as a contravention under the Contraventions Act, subsection 8(5) of that Act does not apply in respect of the fine that may be established for that contravention.
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Publication of information about contraventions
51. (1) For the purpose of encouraging compliance with this Act, the Minister must publish, in a registry accessible to the public, information about all convictions of corporations for offences under this Act.
Retention
(2) Information in the registry is to be maintained for a minimum of five years.
Review
52. (1) The Minister must, 10 years after the day on which this section comes into force and every 10 years after that, undertake a review of sections 33 to 51.
Report to Parliament
(2) The Minister must, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.
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NON-APPLICATION OF STATUTORY INSTRUMENTS ACT Statutory Instruments Act
53. The Statutory Instruments Act does not apply to a permit, licence or other authorization issued under this Act. CLAIM IN RESPECT OF ABORIGINAL RIGHTS
Aboriginal resource harvesting
54. If an area of the Park is subject to a claim in respect of Aboriginal rights that has been accepted for negotiation by the Government of Canada, nothing in this Act precludes the carrying on of traditional renewable resource harvesting activities in that area by the Aboriginal people who have made that claim. CONSEQUENTIAL AMENDMENTS
R.S., c. L-6
2002, c. 7, s. 101
CANADA LANDS SURVEYS ACT 55. (1) The portion of paragraph 24(1)(a) of the Canada Lands Surveys Act before subparagraph (i) is replaced by the following: (a) any lands belonging to Her Majesty in right of Canada or of which the Government of Canada has power to dispose that are situated in Yukon, the Northwest Territories or Nunavut and any lands that are
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(2) Subsection 24(1) of the Act is amended by adding the following after paragraph (a): (a.1) any lands belonging to Her Majesty in right of Canada or of which the Government of Canada has power to dispose that are situated in any National Park of Canada or in the Rouge National Urban Park established by the Rouge National Urban Park Act; and
1998, c. 31
PARKS CANADA AGENCY ACT 56. The definition “other protected heritage areas” in subsection 2(1) of the Parks Canada Agency Act is amended by deleting “and” at the end of paragraph (b.1) and by adding the following after that paragraph: (b.2) the Rouge National Urban Park; and
2005, c. 2, s. 4
57. Paragraph 4(1)(a) of the Act is replaced by the following: (a) areas of natural or historical significance to the nation, including national parks, national marine conservation areas, national historic sites, historic canals, historic museums established under the Historic Sites and Monuments Act, Saguenay-St. Lawrence Marine Park and Rouge National Urban Park;
2002, c. 18, s. 40
58. Subsection 32(1) of the Act is replaced by the following:
Management plans
32. (1) In addition to the duties in relation to management plans under the Canada National Parks Act and the Canada National Marine Conservation Areas Act, the Chief Executive Officer shall, within five years after the establishment of a national historic site or other protected heritage area, other than the Rouge National Urban Park, or within five years after the coming into force of this section, whichever is later, provide the Minister with a management plan for that national historic site or other protected heritage area in respect of any matter that the Minister deems appropriate, including, but not limited to, commemorative and
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ecological integrity, resource protection or visitor use, and that plan shall be tabled in each House of Parliament. 59. Part 1 of the schedule to the Act is amended by adding the following in alphabetical order: Rouge National Urban Park Act Loi sur le parc urbain national de la Rouge 2002, c. 29
SPECIES AT RISK ACT 60. Subsection 58(2) of the Species at Risk Act is replaced by the following:
Protected areas
(2) If the critical habitat or a portion of the critical habitat is in a national park of Canada named and described in Schedule 1 to the Canada National Parks Act, the Rouge National Urban Park established by the Rouge National Urban Park Act, a marine protected area under the Oceans Act, a migratory bird sanctuary under the Migratory Birds Convention Act, 1994 or a national wildlife area under the Canada Wildlife Act, the competent Minister must, within 90 days after the recovery strategy or action plan that identified the critical habitat is included in the public registry, publish in the Canada Gazette a description of the critical habitat or portion that is in that park, area or sanctuary.
2009, c. 14, s. 126
ENVIRONMENTAL VIOLATIONS ADMINISTRATIVE MONETARY PENALTIES ACT
2012, c. 19, s. 53(1)
61. (1) The definition “Environmental Act” in section 2 of the Environmental Violations Administrative Monetary Penalties Act is replaced by the following:
“Environmental Act” « loi environnementale »
“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the
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Migratory Birds Convention Act, 1994, the Rouge National Urban Park Act, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
(2) Paragraph (b) of the definition “Minister” in section 2 of the Act is replaced by the following: (b) with respect to violations that relate to the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Rouge National Urban Park Act or the Saguenay-St. Lawrence Marine Park Act, the Minister responsible for the Parks Canada Agency. COMING INTO FORCE Order in council
62. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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SCHEDULE (Sections 4 and 14 and subsection 16(3)) ROUGE NATIONAL URBAN PARK In the Province of Ontario, in the Geographic Township of Markham, all of those lands, including all mines and minerals, more particularly described as follows: Firstly; Parcel 1 on Plan 102393 CLSR recorded in the Canada Lands Surveys Records at Ottawa, being part of the West half of Lot 31, Concession 9, containing 17.07 hectares, more or less; Secondly; Parcel 1 on Plan 102394 CLSR recorded in the Canada Lands Surveys Records at Ottawa, being part of Lots 26, 27, 28 and 29, Concession 8, containing 25.56 hectares, more or less; Thirdly; Parcel 1 on Plan 102395 CLSR recorded in the Canada Lands Surveys Records at Ottawa, being part of Lots 18, 19 and 20, Concession 9, containing 163.30 hectares, more or less.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 11 An Act to amend the Corrections and Conditional Release Act (fairness for victims)
ASSENTED TO 23rd APRIL, 2015 BILL C-479
SUMMARY The purpose of this enactment is to amend Part II of the Corrections and Conditional Release Act in respect of the following matters: (a) the parole review of offenders who are serving a sentence of at least two years for an offence involving violence; (b) the attendance of victims and members of their family at parole review hearings; (c) the consideration of victims’ statements by the National Parole Board when making a determination regarding the release of an offender; (d) the manner of presentation of victims’ statements at a parole review hearing; (e) the providing of information under consideration by the Board to a victim; (f) the cancellation of a parole review hearing if an offender has repeatedly refused to attend, or waived his or her right to attend, previous hearings; (g) the providing of transcripts of a parole review hearing to the victim and members of their family and the offender; and (h) the notification of victims if an offender is to be released on temporary absence, parole or statutory release.
62-63-64 ELIZABETH II —————— CHAPTER 11 An Act to amend the Corrections and Conditional Release Act (fairness for victims)
[Assented to 23rd April, 2015] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as An Act to Bring Fairness for the Victims of Violent Offenders.
1992, c. 20
CORRECTIONS AND CONDITIONAL RELEASE ACT 2. (1) Section 123 of the Corrections and Conditional Release Act is amended by adding the following after subsection (5):
Violent offender
(5.01) Despite subsection (5), if the Board decides not to grant parole to an offender who has been convicted of an offence involving violence for which the offender is serving a sentence of at least two years — or a sentence that includes a sentence of at least two years for an offence involving violence — following a review under subsection (1) or section 122, or if a review is not made by virtue of subsection (2), the Board shall conduct another review within five years after the later of the day on which the review took place or was scheduled to take place and thereafter within five years after that day until (a) the offender is released on full parole or on statutory release;
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(b) the offender’s sentence expires; or (c) less than four months remain to be served before the offender’s statutory release date.
Written reasons
(5.02) If the Board decides not to grant parole to an offender referred to in subsection (5.01), it shall provide the offender with written reasons for its decision. (2) Section 123 of Act is amended by adding the following after subsection (5.1):
Violent offender
(5.2) Despite subsection (5.1), if the Board cancels or terminates parole for an offender who has been convicted of an offence involving violence for which the offender is serving a sentence of at least two years — or a sentence that includes a sentence of at least two years for an offence involving violence — the Board shall conduct another review within four years after the date of cancellation or termination and, after that date, within five years after the day on which each preceding review takes place until (a) the offender is released on full parole or on statutory release; (b) the offender’s sentence expires; or (c) less than four months remain to be served before the offender’s statutory release date.
(3) Section 123 of Act is amended by adding the following after subsection (7): Definition of “offence involving violence”
(8) In this section, “offence involving violence” means murder or any offence set out in Schedule I. 3. Section 131 of the Act is amended by adding the following after subsection (1):
Schedule I offence
(1.1) Despite subsection (1), if the order made under subsection 130(3) relates to an offender who is serving a sentence imposed for an offence set out in Schedule I whose commission caused the death of or serious harm to another person, the Board shall review the
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order within two years after the date the order was made, and thereafter within two years after the date of each preceding review while the offender remains subject to the order. 4. (1) Paragraphs 140(1)(b) and (c) of the Act are replaced by the following: (b) the first review for full parole under subsection 123(1) and subsequent reviews under subsection 123(5), (5.01) or (5.1); (c) a review conducted under section 129 or subsection 130(1) or 131(1) or (1.1); (1.1) The portion of subsection 140(4) of the Act before paragraph (a) is replaced by the following: Attendance by observers
(4) Subject to subsections (5) and (5.1), the Board or a person designated, by name or by position, by the Chairperson of the Board shall, subject to such conditions as the Board or person considers appropriate and after taking into account the offender’s views, permit a person who applies in writing therefor to attend as an observer at a hearing relating to an offender, unless the Board or person is satisfied that (2) Section 140 of the Act is amended by adding the following after subsection (5):
Attendance by victim or member of their family
(5.1) In determining whether to permit a victim or a member of the victim’s family to attend as an observer at a hearing, the Board or its designate shall make every effort to fully understand the need of the victim and of the members of his or her family to attend the hearing and witness its proceedings. The Board or its designate shall permit a victim or a member of his or her family to attend as an observer unless satisfied that the presence of the victim or family member would result in a situation described in paragraph (4)(a), (b), (c) or (d).
Attendance not permitted
(5.2) If the Board or its designate decides under subsection (5.1) to not permit a victim or a member of his or her family to attend a hearing, the Board shall provide for the victim or family member to observe the hearing by any means that the Board considers appropriate.
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(3) Section 140 of the Act is amended by adding the following after subsection (10): Consideration of statement
(10.1) The Board shall, in deciding whether an offender should be released and what conditions might be applicable to the release, take into consideration any statement that has been presented in accordance with paragraph (10)(a) or (b). (4) Subsection 140(11) of the Act is replaced by the following:
Forms of statement
(11) If a victim or a person referred to in subsection 142(3) is not attending a hearing, their statement may be presented at the hearing in the form of a written statement, which may be accompanied by an audio or video recording, or in any other form prescribed by the regulations. 5. The Act is amended by adding the following after section 140:
Cancellation of review hearing
140.1 Despite any other provision of this Act, if an offender has, on more than one occasion, refused to attend a review hearing or waived his or her right to a review hearing less than 15 days before the date scheduled for the hearing without providing a reasonable explanation for doing so, the Board may cancel the next review hearing to which the offender would otherwise be entitled to under this Act.
Transcript
140.2 (1) If a transcript of the hearing has been made, the Board shall, on written request and free of charge, provide a copy to the offender and a copy to the victim or a member of the victim’s family. However, the copy provided to the victim or member of the victim’s family shall not include any portion of the transcript of a part of the hearing that, under subsection 140(5), was or would have been continued in the absence of observers or of a particular observer.
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Personal information
(2) The Board may delete from a copy of the transcript any personal information about a person other than the offender, the victim or a member of the victim’s family.
Access to information
(3) Information discussed or referred to in the transcript of the hearing are not publicly available for the purposes of the Access to Information Act or the Privacy Act.
6. (1) Subparagraph 142(1)(b)(iii) of the Act is repealed. (2) Subparagraphs 142(1)(b)(v) and (vi) of the Act are repealed. (3) Paragraph 142(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (viii) and by adding the following after that subparagraph: (viii.1) information pertaining to the offender’s correctional plan, including information regarding the offender’s progress towards meeting the objectives of the plan, and (4) Subsection 142(1) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b): (c) shall disclose to the victim any of the following information about the offender, if, in the Chairperson’s opinion, the disclosure would not have a negative impact on the safety of the public: (i) the date, if any, on which the offender is to be released on unescorted temporary absence, escorted temporary absence if the Board has approved the absence as required by subsection 746.1(2) of the Criminal Code, parole or statutory release, (ii) any conditions attached to the offender’s unescorted temporary absence, parole or statutory release and the reasons for any unescorted temporary absence, and
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(iii) the destination of the offender when released on unescorted temporary absence, parole or statutory release and whether the offender will be in the vicinity of the victim while travelling to that destination. (5) Section 142 of the Act is amended by adding the following after subsection (1): Timing of disclosure
(1.1) The Chairperson shall disclose the information referred to in paragraph (1)(c) at least 14 days, where practicable, before the offender in question is to be released.
Continuing duty to disclose
(1.2) If a victim makes a request to the Chairperson under subsection (1) in respect of the information relating to an offender and, subsequent to that initial request, there are changes to that information, the Chairperson shall, in accordance with that subsection, disclose any such changes to the victim, unless the victim notifies the Chairperson that he or she does not wish to be so informed. TRANSITIONAL PROVISIONS
Additional sentence
7. (1) Subsections 123(5.01) and (5.2) of the Corrections and Conditional Release Act, as enacted by section 2 — and subsection 131(1.1) of the Act, as enacted by section 3 — apply in respect of an offender who receives an additional sentence for an offence under an Act of Parliament on or after the day on which this section comes into force.
Additional sentence — on parole or statutory release
(2) Subsections 123(5.01) and (5.2) of the Corrections and Conditional Release Act, as enacted by section 2 — and subsection 131(1.1) of the Act, as enacted by section 3 — apply in respect of an offender who is on parole or statutory release and who receives an additional sentence for an offence under an Act of Parliament on or after the day on which this section comes into force.
First review — section 122, 123 or 131
(3) Subsections 123(5.01) and (5.2) of the Corrections and Conditional Release Act, as enacted by section 2 — and subsection 131(1.1) of the Act, as enacted by section 3 — apply in respect of an offender even if they were sentenced, committed or trans2013-2014-2015
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ferred to a penitentiary before the day on which this section comes into force. However, they do not apply to the first review on or after that day, under section 122, 123 or 131, as the case may be.
COMING INTO FORCE Order in council
8. Section 6 of the Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 39 An Act to amend the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
ASSENTED TO 23rd JUNE, 2015 BILL C-64
SUMMARY This enactment amends the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act to provide that a statutory moratorium on the exploration and drilling for, and the production, conservation and processing of, petroleum in the Canadian portion of Georges Bank in the offshore area, and the transportation of petroleum produced in that portion of the offshore area, be re-established and may also be extended by joint notice of the Minister of Natural Resources and his or her provincial counterpart.
62-63-64 ELIZABETH II —————— CHAPTER 39 An Act to amend the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act [Assented to 23rd June, 2015] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Georges Bank Protection Act.
1988, c. 28
CANADA-NOVA SCOTIA OFFSHORE PETROLEUM RESOURCES ACCORD IMPLEMENTATION ACT 2. Section 104 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Interest owner exempt from payment
104. The interest owner of an interest in relation to lands situated in that portion of the offshore area that is described in Schedule IV is, in respect of those lands, exempt from the payment under section 81 of the Canada Petroleum Resources Act of any amount in respect of any period specified in a notice issued under subsection 141(1) or (2).
2014, c. 13, par. 91(1)(d)(E)
3. Section 141 of the Act is replaced by the following:
Jointly issued notice — prohibition
141. (1) The Federal Minister and the Provincial Minister may jointly issue a written notice prohibiting, for a period beginning on the day specified in the notice and ending on December 31, 2022, the exploration and drilling
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for and the production, conservation and processing of petroleum in that portion of the offshore area described in Schedule IV, and the transportation of petroleum produced in that portion of the offshore area. Further period
(2) The Federal Minister and the Provincial Minister may jointly issue one or successive written notices, after a review of the environmental and socio-economic impact of exploration and drilling activities in that portion of the offshore area described in Schedule IV and any other relevant factor, each extending the prohibition established in subsection (1) in all or any part of that portion of the offshore area for a specified period of no more than 10 years.
Prohibition
(3) No person shall, for the duration of the period specified in a written notice issued under subsection (1) or (2), engage in the activities listed in subsection (1) in that portion of the offshore area described in Schedule IV or in any part of it that is specified in the notice. COMING INTO FORCE
Order in council
4. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 13 An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts
ASSENTED TO 23rd APRIL, 2015 BILL C-32
SUMMARY This enactment enacts the Canadian Victims Bill of Rights, which specifies that victims of crime have the following rights: (a) the right to information about the criminal justice system, the programs and services that are available to victims of crime and the complaint procedures that are available to them when their rights have been infringed or denied; (b) the right to information about the status of the investigation and the criminal proceedings, as well as information about reviews while the offender is subject to the corrections process, or about hearings after the accused is found not criminally responsible on account of mental disorder or unfit to stand trial, and information about the decisions made at those reviews and hearings; (c) the right to have their security and privacy considered by the appropriate authorities in the criminal justice system; (d) the right to protection from intimidation and retaliation; (e) the right to request testimonial aids; (f) the right to convey their views about decisions to be made by authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered; (g) the right to present a victim impact statement and to have it considered; (h) the right to have the courts consider making, in all cases, a restitution order against the offender; and (i) the right to have a restitution order entered as a civil court judgment that is enforceable against the offender if the amount owing under the restitution order is not paid. The Canadian Victims Bill of Rights also specifies (a) the periods during which the rights apply; (b) the individuals who may exercise the rights; (c) the complaint mechanism for victims and the requirements for federal departments to create complaint mechanisms; and (d) how the Canadian Victims Bill of Rights is to be interpreted. This enactment amends the Criminal Code to (a) align the definition of “victim” with the definition of “victim” in the Canadian Victims Bill of Rights; (b) protect the privacy and security interests of complainants and witnesses in proceedings involving certain sexual offences and ensure that they are informed of their right to be represented by legal counsel; (c) broaden the conduct to which the offence of intimidation of justice system participants applies; (d) expand the list of factors that a court may take into consideration when determining whether an exclusion order is in the interest of the proper administration of justice;
(e) make testimonial aids more accessible to vulnerable witnesses; (f) enable witnesses to testify using a pseudonym in appropriate cases; (g) make publication bans for victims under the age of 18 mandatory on application; (h) provide that an order for judicial interim release must indicate that the safety and security of every victim was taken into consideration; (i) require the court to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor in certain circumstances; (j) add victim impact statement forms to assist victims to convey their views at sentencing proceedings and at hearings held by Review Boards; (k) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective; (l) clarify the provisions relating to victim impact statements; (m) allow for community impact statements to be considered for all offences; (n) provide that victims may request a copy of a judicial interim release order, probation order or a conditional sentence order; (o) specify that the victim surcharge must be paid within the reasonable time established by the lieutenant governor of the province in which it is imposed; (p) provide a form for requesting a restitution order; and (q) provide that courts must consider the making of a restitution order in all cases, and that, in multiple victim cases, a restitution order may specify the amounts owed to each victim and designate the priority of payment among the victims. The enactment amends the Canada Evidence Act to provide that no person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused. It also amends that Act to add a new subsection to govern the questioning of witnesses over the age of 14 years in certain circumstances. This enactment amends the Corrections and Conditional Release Act to (a) align the definition of “victim” with the definition of “victim” in the Canadian Victims Bill of Rights; (b) permit victims to have access to information about the offender’s progress in relation to the offender’s correctional plan; (c) permit victims to be shown a current photograph of the offender at the time of the offender’s conditional release or the expiration of the offender’s sentence; (d) permit the disclosure of information to victims concerning an offender’s deportation before the expiration of the offender’s sentence; (e) permit the disclosure to victims of an offender’s release date, destination and conditions of release, unless the disclosure would have a negative impact on public safety; (f) allow victims to designate a representative to receive information under the Act and to waive their right to information under the Act; (g) require that the Correctional Service of Canada inform victims about its victim-offender mediation services; (h) permit victims who do not attend a parole hearing to listen to an audio recording of the hearing; (i) provide for the provision to victims of decisions of the Parole Board of Canada regarding the offender; and
(j) require, when victims have provided a statement describing the harm, property damage or loss suffered by them as the result of the commission of an offence, that the Parole Board of Canada impose victim non-contact or geographic restrictions as conditions of release, where reasonable and necessary, to protect the victims in relation to an offender who is the subject of a long-term supervision order.
TABLE OF PROVISIONS
AN ACT TO ENACT THE CANADIAN VICTIMS BILL OF RIGHTS AND TO AMEND CERTAIN ACTS SHORT TITLE 1.
Victims Bill of Rights Act CANADIAN VICTIMS BILL OF RIGHTS
2. Enactment of Act AN ACT FOR THE RECOGNITION OF VICTIMS RIGHTS SHORT TITLE
1. Canadian Victims Bill of Rights INTERPRETATION
2. Definitions
3. Acting on victim’s behalf
4. Exception
5. Criminal justice system RIGHTS INFORMATION
6. General information
7. Investigation and proceedings
8. Information about offender or accused PROTECTION
9. Security
10. Protection from intimidation and retaliation
11. Privacy
12. Identity protection
13. Testimonial aids PARTICIPATION
14. Views to be considered
15. Victim impact statement
i RESTITUTION 16.
Restitution order
17. Enforcement GENERAL PROVISIONS
18. Application
19. Exercise of rights
20. Interpretation of this Act
21. Interpretation of other Acts, regulations, etc.
22. Primacy in the event of inconsistency
23. No adverse inference
24. Entering or remaining in Canada REMEDIES
25. Complaint — federal entity
26. Complaint — provincial or territorial entity
27. Status
28. No cause of action
29. No appeal PARLIAMENTARY REVIEW
2.1
Review of Canadian Victims Bill of Rights AMENDMENTS TO ACTS
3–36.
Amendments to the Criminal Code
37–44.
Transitional Provisions
45–51.
Amendments to the Corrections and Conditional Release Act
52–53.
Amendments to the Canada Evidence Act
54. Amendment to the Employment Insurance Act COORDINATING AMENDMENTS
55–59. COMING INTO FORCE 60.
Ninety days after Royal Assent
62-63-64 ELIZABETH II —————— CHAPTER 13 An Act to enact the Canadian Victims Bill of Rights and to amend certain Acts [Assented to 23rd April, 2015] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Victims Bill of Rights Act. CANADIAN VICTIMS BILL OF RIGHTS
Enactment of Act
2. The Canadian Victims Bill of Rights is enacted as follows: An Act for the Recognition of Victims Rights
Preamble
Whereas crime has a harmful impact on victims and on society; Whereas victims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity; Whereas it is important that victims’ rights be considered throughout the criminal justice system; Whereas victims of crime have rights that are guaranteed by the Canadian Charter of Rights and Freedoms; Whereas consideration of the rights of victims of crime is in the interest of the proper administration of justice;
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Whereas the federal, provincial and territorial governments share responsibility for criminal justice; Whereas, in 1988, the federal, provincial and territorial governments endorsed the Canadian Statement of Basic Principles of Justice for Victims of Crime and, in 2003, the Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Canadian Victims Bill of Rights. INTERPRETATION
Definitions
“offence” « infraction »
“victim” « victime »
Acting on victim’s behalf
2. The following definitions apply in this Act. “offence” means an offence under the Criminal Code, the Youth Criminal Justice Act or the Crimes Against Humanity and War Crimes Act, a designated substance offence as defined in subsection 2(1) of the Controlled Drugs and Substances Act or an offence under section 91 or Part 3 of the Immigration and Refugee Protection Act. “victim” means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of an offence. 3. Any of the following individuals may exercise a victim’s rights under this Act if the victim is dead or incapable of acting on their own behalf: (a) the victim’s spouse or the individual who was at the time of the victim’s death their spouse; (b) the individual who is or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year;
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(c) a relative or dependant of the victim; (d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; (e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim. Exception
4. An individual is not a victim in relation to an offence, or entitled to exercise a victim’s rights under this Act, if the individual is charged with the offence, found guilty of the offence or found not criminally responsible on account of mental disorder or unfit to stand trial in respect of the offence.
Criminal justice system
5. For the purpose of this Act, the criminal justice system consists of (a) the investigation and prosecution of offences in Canada; (b) the corrections process and the conditional release process in Canada; and (c) the proceedings of courts and Review Boards, as those terms are defined in subsection 672.1(1) of the Criminal Code, in respect of accused who are found not criminally responsible on account of mental disorder or unfit to stand trial. RIGHTS INFORMATION
General information
6. Every victim has the right, on request, to information about (a) the criminal justice system and the role of victims in it; (b) the services and programs available to them as a victim, including restorative justice programs; and (c) their right to file a complaint for an infringement or denial of any of their rights under this Act.
Investigation and proceedings
7. Every victim has the right, on request, to information about
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(a) the status and outcome of the investigation into the offence; and (b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome. Information about offender or accused
8. Every victim has the right, on request, to information about (a) reviews under the Corrections and Conditional Release Act relating to the offender’s conditional release and the timing and conditions of that release; and (b) hearings held for the purpose of making dispositions, as defined in subsection 672.1(1) of the Criminal Code, in relation to the accused, if the accused is found not criminally responsible on account of mental disorder or unfit to stand trial, and the dispositions made at those hearings.
PROTECTION Security
9. Every victim has the right to have their security considered by the appropriate authorities in the criminal justice system.
Protection from intimidation and retaliation
10. Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the criminal justice system to protect the victim from intimidation and retaliation.
Privacy
11. Every victim has the right to have their privacy considered by the appropriate authorities in the criminal justice system.
Identity protection
12. Every victim has the right to request that their identity be protected if they are a complainant to the offence or a witness in proceedings relating to the offence.
Testimonial aids
13. Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.
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14. Every victim has the right to convey their views about decisions to be made by appropriate authorities in the criminal justice system that affect the victim’s rights under this Act and to have those views considered.
Victim impact statement
15. Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered. RESTITUTION
Restitution order
16. Every victim has the right to have the court consider making a restitution order against the offender.
Enforcement
17. Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender. GENERAL PROVISIONS
Application
18. (1) This Act applies in respect of a victim of an offence in their interactions with the criminal justice system (a) while the offence is investigated or prosecuted; (b) while the offender is subject to the corrections process or the conditional release process in relation to the offence; and (c) while the accused is, in relation to the offence, under the jurisdiction of a court or a Review Board, as those terms are defined in subsection 672.1(1) of the Criminal Code, if they are found not criminally responsible on account of mental disorder or unfit to stand trial.
Reporting of offence
(2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the criminal justice system, the investigation of the offence is deemed to begin at the time of the reporting.
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(3) This Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.
Exercise of rights
19. (1) The rights of victims under this Act are to be exercised through the mechanisms provided by law.
Connection to Canada
(2) A victim is entitled to exercise their rights under this Act only if they are present in Canada or they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Interpretation of this Act
20. This Act is to be construed and applied in a manner that is reasonable in the circumstances, and in a manner that is not likely to
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(a) interfere with the proper administration of justice, including (i) by causing interference with police discretion or causing excessive delay in, or compromising or hindering, the investigation of any offence, and (ii) by causing interference with prosecutorial discretion or causing excessive delay in, or compromising or hindering, the prosecution of any offence; (b) interfere with ministerial discretion; (c) interfere with the discretion that may be exercised by any person or body authorized to release an offender into the community; (d) endanger the life or safety of any individual; or (e) cause injury to international relations or national defence or national security.
Interpretation of other Acts, regulations, etc.
21. To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an
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Act — before, on or after the day on which this Act comes into force must be construed and applied in a manner that is compatible with the rights under this Act.
Primacy in event of inconsistency
22. (1) If, after the application of sections 20 and 21, there is any inconsistency between any provision of this Act and any provision of any Act, order, rule or regulation referred to in section 21, the provision of this Act prevails to the extent of the inconsistency.
Exception — Acts and regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act and the Privacy Act and orders, rules and regulations made under any of those Acts.
No adverse inference
23. No adverse inference is to be drawn against a person who is charged with an offence from the fact that an individual has been identified as a victim in relation to the offence.
Entering or remaining in Canada
24. Nothing in this Act is to be construed so as to permit any individual to (a) enter Canada or to remain in Canada beyond the end of the period for which they are authorized to so remain; (b) delay any removal proceedings or prevent the enforcement of any removal order; or (c) delay any extradition proceedings or prevent the extradition of any person to or from Canada. REMEDIES
Complaint — federal entity
25. (1) Every victim who is of the opinion that any of their rights under this Act have been infringed or denied by a federal department, agency or body has the right to file a complaint in accordance with its complaints mechanism.
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Complaint to authority
(2) Every victim who has exhausted their recourse under the complaints mechanism and who is not satisfied with the response of the federal department, agency or body may file a complaint with any authority that has jurisdiction to review complaints in relation to that department, agency or body.
Complaints mechanism
(3) Every federal department, agency or body that is involved in the criminal justice system must have a complaints mechanism that provides for
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(a) a review of complaints involving alleged infringements or denials of rights under this Act; (b) the power to make recommendations to remedy such infringements and denials; and (c) the obligation to notify victims of the result of those reviews and of the recommendations, if any were made. Complaint — provincial or territorial entity
26. Every victim who is of the opinion that their rights under this Act have been infringed or denied by a provincial or territorial department, agency or body may file a complaint in accordance with the laws of the province or territory.
Status
27. Nothing in this Act is to be construed as granting to, or removing from, any victim or any individual acting on behalf of a victim the status of party, intervenor or observer in any proceedings.
No cause of action
28. No cause of action or right to damages arises from an infringement or denial of a right under this Act.
No appeal
29. No appeal lies from any decision or order solely on the grounds that a right under this Act has been infringed or denied. PARLIAMENTARY REVIEW
Review of Canadian Victims Bill of Rights
2.1 Five years after section 2 comes into force, a committee of Parliament is to be designated or established for the purpose of reviewing the Canadian Victims Bill of Rights enacted by that section.
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2013-2014-2015 R.S., c. C-46
CRIMINAL CODE AMENDMENTS TO THE ACT
1999, c. 25, s. 1
“victim” « victime »
3. The definition “victim” in section 2 of the Criminal Code is replaced by the following: “victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person. 4. The Act is amended by adding the following after section 2.1:
Acting on victim’s behalf
2.2 (1) For the purposes of sections 606, 672.5, 722, 737.1 and 745.63, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf: (a) the victim’s spouse, or if the victim is dead, their spouse at the time of death; (b) the victim’s common-law partner, or if the victim is dead, their common-law partner at the time of death; (c) a relative or dependant of the victim; (d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and (e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
Exception
(2) An individual is not entitled to act on a victim’s behalf if the individual is an accused in relation to the offence or alleged offence that resulted in the victim suffering harm or loss or is an individual who is found guilty of that offence or who is found not criminally responsible on account of mental disorder or unfit to stand trial in respect of that offence.
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1997, c. 30, s. 1
5. (1) The portion of subsection 278.2(1) of the English version of the Act before paragraph (a) is replaced by the following:
Production of record to accused
278.2 (1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences or in any proceedings in respect of two or more offences at least one of which is any of the following offences:
1997, c. 30, s. 1
(2) Subsection 278.2(1) of the Act is amended by adding “or” at the end of paragraph (a) and by replacing the portion after paragraph (a) with the following:
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(b) any offence under this Act, as it read at any time before the day on which this paragraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in paragraph (a) if it occurred on or after that day. 1997, c. 30, s. 1
6. Subsection 278.3(5) of the Act is replaced by the following:
Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has possession or control of the record, on the complainant or witness, as the case may be, and on any other person to whom, to the knowledge of the accused, the record relates, at least 14 days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge may allow in the interests of justice. The accused shall also serve a subpoena issued under Part XXII in Form 16.1 on the person who has possession or control of the record at the same time as the application is served. 7. Section 278.4 of the Act is amended by adding the following after subsection (2):
Right to counsel
(2.1) The judge shall, as soon as feasible, inform any person referred to in subsection (2) who participates in the hearing of their right to be represented by counsel.
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1997, c. 30, s. 1
8. The portion of subsection 278.5(2) of the Act before paragraph (a) is replaced by the following:
Factors to be considered
(2) In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates. In particular, the judge shall take the following factors into account:
1997, c. 30, s. 1
9. Subsection 278.6(3) of the Act is replaced by the following:
Provisions re hearing
(3) Subsections 278.4(2) to (3) apply in the case of a hearing under subsection (2).
1997, c. 30, s. 1
10. (1) Subsection 278.7(2) of the Act is replaced by the following:
Factors to be considered
(2) In determining whether to order the production of the record or part of the record to the accused, the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy, personal security and equality of the complainant or witness, as the case may be, and of any other person to whom the record relates and, in particular, shall take the factors specified in paragraphs 278.5(2)(a) to (h) into account.
1997, c. 30, s. 1
(2) The portion of subsection 278.7(3) of the Act before paragraph (a) is replaced by the following:
Conditions on production
(3) If the judge orders the production of the record or part of the record to the accused, the judge may impose conditions on the production to protect the interests of justice and, to the greatest extent possible, the privacy, personal security and equality interests of the complainant or witness, as the case may be, and of any other person to whom the record relates, including, for example, the following conditions:
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2011, c. 6, s. 4
11. Sections 380.3 and 380.4 of the Act are repealed.
2001, c. 32, s. 11
12. (1) The portion of subsection 423.1(1) of the Act before paragraph (a) is replaced by the following:
Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in any conduct with the intent to provoke a state of fear in
2001, c. 32, s. 11
(2) Subsection 423.1(2) of the Act is repealed.
2005, c. 32, s. 15
13. Subsection 486(2) of the Act is replaced by the following:
Factors to be considered
(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider
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(a) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings; (c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made; (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (e) the protection of justice system participants who are involved in the proceedings; (f) whether effective alternatives to the making of the proposed order are available in the circumstances; (g) the salutary and deleterious effects of the proposed order; and (h) any other factor that the judge or justice considers relevant.
2005, c. 32, s. 15
14. Subsections 486.1(1) to (3) of the Act are replaced by the following:
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Support person — witnesses under 18 or who have a disability
486.1 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who has a mental or physical disability, or on application of such a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness’ choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider (a) the age of the witness; (b) the witness’ mental or physical disabilities, if any; (c) the nature of the offence; (d) the nature of any relationship between the witness and the accused; (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation;
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(f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (g) any other factor that the judge or justice considers relevant. 2005, c. 32, s. 15; 2014, c. 17, s. 12
15. Section 486.2 of the Act is replaced by the following:
Testimony outside court room — witnesses under 18 or who have a disability
486.2 (1) Despite section 650, in any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years or who is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, or on application of such a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused, unless the judge or justice is of the opinion that the order would interfere with the proper administration of justice.
Other witnesses
(2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice.
Application
(2.1) An application referred to in subsection (1) or (2) may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.
Factors to be considered
(3) In determining whether to make an order under subsection (2), the judge or justice shall consider
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(a) the age of the witness; (b) the witness’ mental or physical disabilities, if any; (c) the nature of the offence; (d) the nature of any relationship between the witness and the accused; (e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (g) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (h) any other factor that the judge or justice considers relevant. Same procedure for determination
(4) If the judge or justice is of the opinion that it is necessary for a witness to testify in order to determine whether an order under subsection (2) should be made in respect of that witness, the judge or justice shall order that the witness testify in accordance with that subsection.
Conditions of exclusion
(5) A witness shall not testify outside the court room in accordance with an order made under subsection (1) or (2) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
No adverse inference
(6) No adverse inference may be drawn from the fact that an order is, or is not, made under subsection (1) or (2).
2005, c. 32, s. 15
16. Subsections 486.3(1) to (4.1) of the Act are replaced by the following:
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Accused not to cross-examine witnesses under 18
486.3 (1) In any proceedings against an accused, the judge or justice shall, on application of the prosecutor in respect of a witness who is under the age of 18 years, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the crossexamination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Accused not to cross-examine complainant — certain offences
(2) In any proceedings against an accused in respect of an offence under any of sections 264, 271, 272 and 273, the judge or justice shall, on application of the prosecutor in respect of a witness who is a victim, or on application of such a witness, order that the accused not personally cross-examine the witness, unless the judge or justice is of the opinion that the proper administration of justice requires the accused to personally conduct the cross-examination. If such an order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Other witnesses
(3) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness who is not entitled to make an application under subsection (1) or (2), or on application of such a witness, order that the accused not personally crossexamine the witness if the judge or justice is of the opinion that the order would allow the giving of a full and candid account from the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. If the order is made, the judge or justice shall appoint counsel to conduct the cross-examination.
Factors to be considered
(4) In determining whether to make an order under subsection (3), the judge or justice shall consider
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(a) the age of the witness; (b) the witness’ mental or physical disabilities, if any; (c) the nature of the offence;
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(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (e) the nature of any relationship between the witness and the accused; (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and (g) any other factor that the judge or justice considers relevant. Application
(4.1) An application referred to in any of subsections (1) to (3) may be made during the proceedings to the presiding judge or justice or, before the proceedings begin, to the judge or justice who will preside at the proceedings or, if that judge or justice has not been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place. 17. The Act is amended by adding the following after section 486.3:
Non-disclosure of witness’ identity
486.31 (1) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed in the course of the proceedings if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Hearing may be held
(2) The judge or justice may hold a hearing to determine whether the order should be made, and the hearing may be in private.
Factors to be considered
(3) In determining whether to make the order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) the nature of the offence; (c) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (d) whether the order is needed to protect the security of anyone known to the witness;
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(e) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercover capacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f) society’s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (g) the importance of the witness’ testimony to the case; (h) whether effective alternatives to the making of the proposed order are available in the circumstances; (i) the salutary and deleterious effects of the proposed order; and (j) any other factor that the judge or justice considers relevant. No adverse inference
(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.
2005, c. 32, s. 15
18. (1) The portion of subsection 486.4(1) of the Act before paragraph (a) is replaced by the following:
Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
2005, c. 32, s. 15
(2) Paragraph 486.4(1)(a) of the Act is amended by adding “or” at the end of subparagraph (i) and by replacing subparagraphs (ii) and (iii) of the Act with the following: (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
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(3) Paragraph 486.4(1)(b) of the Act is replaced by the following: (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
2005, c. 32, s. 15
(4) Subsection 486.4(2) of the Act is replaced by the following:
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
Victim under 18 — other offences
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
Mandatory order on application
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.
2005, c. 32, s. 15
19. (1) Subsections 486.5(1) and (2) of the Act are replaced by the following:
Order restricting publication — victims and witnesses
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the
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judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
2005, c. 32, s. 15
(2) Paragraph 486.5(7)(b) of the Act is replaced by the following: (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; 20. Section 515 of the Act is amended by adding the following after subsection (12):
Consideration of victim’s safety and security
(13) A justice who makes an order under this section shall include in the record of the proceedings a statement that he or she considered the safety and security of every victim of the offence when making the order.
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(14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim. 21. Section 606 of the Act is amended by adding the following after subsection (4):
Inquiry of court — murder and serious personal injury offences
(4.1) If the accused is charged with a serious personal injury offence, as that expression is defined in section 752, or with the offence of murder, and the accused and the prosecutor have entered into an agreement under which the accused will enter a plea of guilty of the offence charged — or a plea of not guilty of the offence charged but guilty of any other offence arising out of the same transaction, whether or not it is an included offence — the court shall, after accepting the plea of guilty, inquire of the prosecutor if reasonable steps were taken to inform the victims of the agreement.
Inquiry of court — certain indictable offences
(4.2) If the accused is charged with an offence, as defined in section 2 of the Canadian Victims Bill of Rights, that is an indictable offence for which the maximum punishment is imprisonment for five years or more, and that is not an offence referred to in subsection (4.1), and the accused and the prosecutor have entered into an agreement referred to in subsection (4.1), the court shall, after accepting the plea of guilty, inquire of the prosecutor whether any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement.
Duty to inform
(4.3) If subsection (4.1) or (4.2) applies, and any victim was not informed of the agreement before the plea of guilty was accepted, the prosecutor shall, as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea.
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Validity of plea
(4.4) Neither the failure of the court to inquire of the prosecutor, nor the failure of the prosecutor to take reasonable steps to inform the victims of the agreement, affects the validity of the plea.
1999, c. 25, s. 11
22. (1) Subsection 672.5(14) of the Act is replaced by the following:
Victim impact statement
(14) A victim of the offence may prepare and file with the court or Review Board a written statement describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. Form 48.2 in Part XXVIII, or a form approved by the lieutenant governor in council of the province in which the court or Review Board is exercising its jurisdiction, must be used for this purpose.
2005, c. 22, s. 16(3)
(2) Subsection 672.5(16) of the Act is repealed.
1995, c. 22, s. 6
23. (1) The portion of subsection 718 of the Act before paragraph (b) is replaced by the following:
Purpose
718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
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(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; 1995, c. 22, s. 6
(2) Paragraph 718(f) of the Act is replaced by the following: (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
1995, c. 22, s. 6
24. Paragraph 718.2(e) of the Act is replaced by the following:
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(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. 1995, c. 22, s. 6; 1999, c. 25, s. 17; 2000, c. 12, par. 95(d)
25. Section 722 of the Act is replaced by the following:
Victim impact statement
722. (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1).
Adjournment
(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) The statement must be prepared in writing, using Form 34.2 in Part XXVIII, in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction.
Presentation of statement
(5) The court shall, on the request of a victim, permit the victim to present the statement by (a) reading it;
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(b) reading it in the presence and close proximity of any support person of the victim’s choice; (c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or (d) presenting it in any other manner that the court considers appropriate. Photograph
(6) During the presentation (a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or (b) if the statement is presented by someone acting on the victim’s behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.
Conditions of exclusion
(7) The victim shall not present the statement outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closedcircuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Consideration of statement
(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.
Evidence concerning victim admissible
(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.
1999, c. 25, s. 18
26. Subsection 722.2 of the Act is replaced by the following:
Community impact statement
722.2 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged
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under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community. Form
(2) The statement must be prepared in writing, using Form 34.3 in Part XXVIII, in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction.
Presentation of statement
(3) The court shall, on the request of the individual making the statement, permit the individual to present the statement by (a) reading it; (b) reading it in the presence and close proximity of any support person of the individual’s choice; (c) reading it outside the court room or behind a screen or other device that would allow the individual not to see the offender; or (d) presenting it in any other manner that the court considers appropriate.
Conditions of exclusion
(4) The individual making the statement shall not present it outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.
Copy of statement
(5) The clerk of the court shall, as soon as feasible after a finding of guilt, provide a copy of the statement to the offender or counsel for the offender, and to the prosecutor.
2008, c. 18, s. 37
27. Paragraph 732.1(5)(a) of the Act is replaced by the following: (a) cause a copy of the order to be given to the offender and, on request, to the victim;
1999, c. 25, s. 20
28. Subsection 737(4) of the Act is replaced by the following:
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Time for payment
(4) The victim surcharge imposed in respect of an offence is payable within the time established by the lieutenant governor in council of the province in which the surcharge is imposed. If no time has been so established, the surcharge is payable within a reasonable time after its imposition.
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29. The Act is amended by adding the following before section 738: Court to consider restitution order
737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.
Inquiry by court
(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.
Adjournment
(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.
Form
(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.
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(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so. 30. The Act is amended by adding the following after section 739:
Ability to pay
739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.
Payment under order
739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.
More than one person
739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.
Public authority
739.4 (1) On the request of a person in whose favour an order under section 738 or 739 would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.
Orders
(2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1).
2004, c. 12, s. 13
31. Subsection 741(1) of the Act is replaced by the following:
Enforcing restitution order
741. (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order,
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enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings. 1995, c. 22, s. 6
32. Section 741.1 of the Act is replaced by the following:
Notice of orders of restitution
741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.
2008, c. 18, s. 40
33. Paragraph 742.3(3)(a) of the Act is replaced by the following: (a) cause a copy of the order to be given to the offender and, on request, to the victim;
1996, c. 34, s. 2(2)
34. Subsection 745.63(2) of the Act is repealed.
2011, c. 6, s. 5
35. Form 34.1 in Part XXVIII of the Act is replaced by the following: FORM 34.1 (Subsection 737.1(4)) STATEMENT ON RESTITUTION Canada, Province of .........., (territorial division). To the court that is sentencing (name the offender) who was convicted, or was discharged under section 730 of the Criminal Code, of an offence under that Act. I, (name of declarant), declare that (check the appropriate box):
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(i) I am not seeking restitution for the losses and damages I suffered as the result of the commission of the offence.
[]
(ii) I am seeking restitution in the amount of $.......... for the following losses and damages I suffered as the result of the commission of the offence.
I declare that I have suffered the following losses and damages as the result of the commission of the offence: (Complete the following table if seeking restitution.) Description (describe each loss and damage)
Amount of loss and damage (state the amount of each loss and damage)
1. ..........
..........
2. ..........
..........
3. ..........
..........
4. ..........
..........
I understand that the amount of my losses and damages must be readily ascertainable by the court. For that purpose, I am responsible for providing the court with all necessary documents, including bills, receipts and estimates, in support of my claim for restitution. Dated this .......... day of .......... 20.........., at .......... . Signature of declarant
FORM 34.2 (Subsection 722(4)) VICTIM IMPACT STATEMENT This form may be used to provide a description of the physical or emotional harm, property damage or economic loss suffered by you as the result of the commission of an offence, as well
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as a description of the impact of the offence on you. You may attach additional pages if you need more space. Your statement must not include • any statement about the offence or the offender that is not relevant to the harm or loss you suffered; • any unproven allegations; • any comments about any offence for which the offender was not convicted; • any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or • except with the court’s approval, an opinion or recommendation about the sentence.
You may present a detailed account of the impact the offence has had on your life. The following sections are examples of information you may wish to include in your statement. You are not required to include all of this information. Emotional impact Describe how the offence has affected you emotionally. For example, think of • your lifestyle and activities; • your relationships with others such as your spouse, family and friends; • your ability to work, attend school or study; and • your feelings, emotions and reactions as they relate to the offence.
_____________________________________ _____________________________________ _____________________________________ _____________________________________
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Physical impact Describe how the offence has affected you physically. For example, think of • ongoing physical pain, discomfort, illness, scarring, disfigurement or physical limitation; • hospitalization or surgery you have had because of the offence; • treatment, physiotherapy or medication you have been prescribed; • the need for any further treatment or the expectation that you will receive further treatment; and • any permanent or long-term disability.
_____________________________________ _____________________________________ _____________________________________ _____________________________________ Economic impact Describe how the offence has affected you financially. For example, think of • the value of any property that was lost or damaged and the cost of repairs or replacement; • any financial loss due to missed time from work; • the cost of any medical expenses, therapy or counselling; • any costs or losses that are not covered by insurance. Please note that this is not an application for compensation or restitution. _____________________________________ _____________________________________ _____________________________________ _____________________________________
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Fears for security Describe any fears you have for your security or that of your family and friends. For example, think of • concerns with respect to contact with the offender; and • concerns with respect to contact between the offender and members of your family or close friends. _____________________________________ _____________________________________ _____________________________________ _____________________________________ Drawing, poem or letter You may use this space to draw a picture or write a poem or letter if it will help you express the impact that the offence has had on you.
I would like to present my statement in court. To the best of my knowledge, the information contained in this statement is true. Dated this .......... day of .......... 20.........., at .......... . Signature of declarant If you completed this statement on behalf of the victim, please indicate the reasons why you did so and the nature of your relationship with the victim. _____________________________________ _____________________________________ Dated this .......... day of .......... 20.........., at .......... . Signature of declarant
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2013-2014-2015 FORM 34.3 (Subsection 722.2(2))
COMMUNITY IMPACT STATEMENT This form may be used to provide a description of the harm or loss suffered by a community as the result of the commission of an offence, as well as a description of the impact of the offence on the community. You may attach additional pages if you need more space. Your statement must not include • any statement about the offence or the offender that is not relevant to the harm or loss suffered by the community; • any unproven allegations; • any comments about any offence for which the offender was not convicted; • any complaint about any individual, other than the offender, who was involved in the investigation or prosecution of the offence; or • except with the court’s approval, an opinion or recommendation about the sentence.
Name of community on whose behalf the statement is made: .......... Explain how the statement reflects this community’s views: _____________________________________ _____________________________________ _____________________________________ _____________________________________ You may present a detailed account of the impact the offence has had on the community. The following sections are examples of information you may wish to include in your statement. You are not required to include all of this information.
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Emotional impact Describe how the offence has affected community members emotionally. For example, think of • community members’ lifestyles and activities; • community members’ relationships with others in the community and outside it; • community members’ ability to work, attend school or study; • community members’ feelings, emotions and reactions as they relate to the offence; and • the community’s sense of belonging to the region. _____________________________________ _____________________________________ _____________________________________ _____________________________________ Physical impact Describe how the offence has affected community members physically. For example, think of • the ability of community members to access services; and • changes in transportation and routes taken to and from school, work, shopping, etc.
_____________________________________ _____________________________________ _____________________________________ _____________________________________ Economic impact Describe how the offence has affected the community financially. For example, think of • any reduction in the number of visitors or tourists to the region;
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• the value of any property that was lost or damaged and the cost of repairs or replacement; and • any costs or losses that are not covered by insurance. Please note that this is not an application for compensation or restitution. _____________________________________ _____________________________________ _____________________________________ _____________________________________ Fears for security Describe any fears that community members have for their security or that of their family and friends. For example, think of concerns with respect to contact with the offender.
Drawing, poem or letter You may use this space to draw a picture or write a poem or letter if it will help you express the impact that the offence has had on the community.
I would like to present this statement in court. To the best of my knowledge, the information contained in this statement is true. Dated this .......... day of .......... 20.........., at .......... . Signature of declarant
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36. Part XXVIII of the Act is amended by adding the following after Form 48.1: FORM 48.2 (Subsection 672.5(14)) VICTIM IMPACT STATEMENT — NOT CRIMINALLY RESPONSIBLE This form may be used to provide a description of the physical or emotional harm, property damage or economic loss suffered by you arising from the conduct for which the accused person was found not criminally responsible on account of mental disorder, as well as a description of the impact that the conduct has had on you. You may attach additional pages if you need more space. Your statement must not include • any statement about the conduct of the accused that is not relevant to the harm or loss suffered by you; • any unproven allegations; • any comments about any conduct for which the accused was not found not criminally responsible; • any complaint about any individual, other than the accused, who was involved in the investigation or prosecution of the offence; or • except with the court’s or Review Board’s approval, an opinion or recommendation about the disposition. The following sections are examples of information you may wish to include in your statement. You are not required to include all of this information. Emotional impact Describe how the accused’s conduct has affected you emotionally. For example, think of • your lifestyle and activities; • your relationships with others such as your spouse, family and friends; • your ability to work, attend school or study; and
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• your feelings, emotions and reactions as these relate to the conduct.
_____________________________________ _____________________________________ _____________________________________ _____________________________________ Physical impact Describe how the accused’s conduct has affected you physically. For example, think of • ongoing physical pain, discomfort, illness, scarring, disfigurement or physical limitation; • hospitalization or surgery you have had because of the conduct of the accused; • treatment, physiotherapy or medication you have been prescribed; • the need for any further treatment or the expectation that you will receive further treatment; and • any permanent or long-term disability.
_____________________________________ _____________________________________ _____________________________________ _____________________________________ Economic impact Describe how the accused’s conduct has affected you financially. For example, think of • the value of any property that was lost or damaged and the cost of repairs or replacement; • any financial loss due to missed time from work; • the cost of any medical expenses, therapy or counselling; and • any costs or losses that are not covered by insurance.
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Please note that this is not an application for compensation or restitution. _____________________________________ _____________________________________ _____________________________________ _____________________________________ Fears for security Describe any fears you have for your security or that of your family and friends. For example, think of • concerns with respect to contact with the accused; and • concerns with respect to contact between the accused and members of your family or close friends. _____________________________________ _____________________________________ _____________________________________ _____________________________________ Drawing, poem or letter You may use this space to draw a picture or write a poem or letter if it will help you express the impact that the accused’s conduct has had on you.
I would like to read or present my statement (in court or before the Review Board). To the best of my knowledge, the information contained in this statement is true. Dated this .......... day of .......... 20.........., at .......... . Signature of declarant
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Hearing — subsection 278.3(5)
37. Subsection 278.3(5) of the Act, as that subsection read immediately before the day on which section 6 of this Act comes into force, continues to apply in respect of any hearing referred to in that subsection that takes place on that day or within 14 days after that day.
Restitution requests — section 380.3
38. Section 380.3 of the Act, as that section read immediately before the day on which section 11 of this Act comes into force, continues to apply in respect of requests for restitution made to the court under that section 380.3 before that day.
Community impact statements — section 380.4
39. Section 380.4 of the Act, as that section read immediately before the day on which section 11 of this Act comes into force, continues to apply in respect of statements filed with the court under that section 380.4 before that day.
Section 423.1
40. Section 423.1 of the Act, as amended by section 12 of this Act, applies only in respect of conduct engaged in on or after the day on which that section 12 comes into force.
Victim impact statements — section 672.5
41. Section 672.5 of the Act, as that section read immediately before the day on which section 22 of this Act comes into force, continues to apply in respect of any statement that was filed with the court or Review Board under that section 672.5 before that day.
Section 718
42. The amendments to section 718 of the Act made by section 23 of this Act apply only in respect of sentences imposed in respect of conduct engaged in on or after the day on which that section 23 comes into force.
Paragraph 718.2(e)
42.1 The amendment to paragraph 718.2(e) of the Act made by section 24 of this Act applies only in respect of sentences imposed in respect of conduct engaged in on or after the day on which that section 24 comes into force.
Victim impact statements — section 722
43. Section 722 of the Act, as that section read immediately before the day on which section 25 of this Act comes into force,
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continues to apply in respect of any statement that was filed with the court under that section 722 before that day. Sections 737.1 and 739.1 to 739.4
44. Section 737.1 of the Act, as enacted by section 29 of this Act, and sections 739.1 to 739.4 of the Act, as enacted by section 30 of this Act, apply only in respect of conduct engaged in on or after the day on which those sections 29 and 30 come into force.
1992, c. 20
AMENDMENTS TO THE CORRECTIONS AND CONDITIONAL RELEASE ACT
2012, c. 1, s. 52(1)
45. (1) The definition “victim” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following:
“victim” « victime »
“victim”, in respect of an offence, means an individual who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of the offence. (2) Section 2 of the Act is amended by adding the following after subsection (2):
Acting on victim’s behalf
(3) For the purposes of this Act, any of the following individuals may act on the victim’s behalf if the victim is dead or incapable of acting on their own behalf: (a) the victim’s spouse, or if the victim is dead, their spouse at the time of death; (b) the individual who is or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year; (c) a relative or a dependant of the victim; (d) an individual who has in law or fact custody, or is responsible for the care or support, of the victim; and (e) an individual who has in law or fact custody, or is responsible for the care or support, of a dependant of the victim.
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(4) For the purposes of this Act, an individual is not a victim, or entitled to act on a victim’s behalf, in relation to an offence, if the individual is the offender. 46. (1) Subparagraph 26(1)(b)(iii) of the Act is replaced by the following: (iii) information pertaining to the offender’s correctional plan, including information regarding the offender’s progress towards meeting the objectives of the plan,
2012, c. 1, s. 57(2)
(2) Subparagraphs 26(1)(b)(v) and (vi) of the Act are replaced by the following: (v) that the offender has been removed from Canada under the Immigration and Refugee Protection Act before the expiration of the sentence, and (3) Subsection 26(1) of the Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (b): (c) shall disclose to the victim any of the following information about the offender, if, in the Commissioner’s opinion, the disclosure would not have a negative impact on the safety of the public: (i) the date, if any, on which the offender is to be released on temporary absence, work release, parole or statutory release, (ii) the conditions attached to the offender’s temporary absence, work release, parole or statutory release, (iii) the destination of the offender on any temporary absence, work release, parole or statutory release, whether the offender will be in the vicinity of the victim while travelling to that destination and the reasons for any temporary absence; and (d) shall provide the victim with access to a photograph of the offender taken on the occurrence of the earliest of any of the following — and any subsequent photograph of the offender taken by the Service — if, in the Commissioner’s opinion, to do so would not have a negative impact on the safety of the public:
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(i) the release of the offender on unescorted temporary absence, (ii) the offender’s work release, (iii) the offender’s release on parole, and (iv) the offender’s release by virtue of statutory release or the expiration of the sentence. (4) Section 26 of the Act is amended by adding the following after subsection (1): Timing of disclosure
(1.1) The Commissioner shall disclose the information referred to in paragraph (1)(c) before the day on which the offender is released and, unless it is not practicable to do so, the Commissioner shall disclose it at least 14 days before that day.
Continuing duty to disclose
(1.2) The Commissioner shall disclose to the victim any changes to the information referred to in paragraphs (1)(a) to (c). (5) Paragraph 26(3)(a) of the Act is replaced by the following: (a) that the person suffered physical or emotional harm, property damage or economic loss, as the result of an act of an offender, whether or not the offender was prosecuted or convicted for that act; and (6) Paragraph 26(4)(a) of the Act is replaced by the following: (a) that the person suffered physical or emotional harm, property damage or economic loss, as the result of an act of a person referred to in subsection (2), whether or not the person referred to in subsection (2) was prosecuted or convicted for that act; and (7) Section 26 of the Act is amended by adding the following after subsection (4):
Representative
(5) A victim may designate a representative to whom the information referred to in subsections (1) and (2) is to be disclosed on the victim’s behalf, or to whom access to a photograph referred to in paragraph (1)(d) is to be provided. In that case, the victim shall provide the Commissioner with the representative’s contact information.
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Withdrawal of request
(6) A victim who has made a request referred to in subsection (1) or (2) may inform the Commissioner in writing that they no longer want the information to be disclosed to them or access to the photograph. In that case, the Commissioner shall not contact them, or their representative, if any, unless the victim subsequently makes the request again.
Deemed withdrawal of request
(7) The Commissioner may consider a victim to have withdrawn a request referred to in subsection (1) or (2) if the Commissioner has made reasonable efforts to contact the victim and has failed to do so.
Other persons
(8) Subsections (5) to (7) also apply, with any necessary modifications, to a person who has satisfied the Commissioner of the matters referred to in paragraphs (3)(a) and (b) or (4)(a) and (b). 47. The Act is amended by adding the following after section 26:
Victim-offender mediation services
26.1 (1) The Service shall provide every victim, and every person referred to in subsection 26(3), who has registered themselves with the Service for the purposes of this section with information about its restorative justice programs and its victim-offender mediation services, and, on the victim’s or other person’s request, may take measures to provide those services.
Consent required
(2) The Service’s victim-offender mediation services are to be provided in accordance with the Commissioner’s Directives and they may be provided only with the informed consent of the participants that is voluntarily given.
1997, c. 17, s. 30
48. (1) Subsection 134.1(3) of the Act is replaced by the following:
Conditions to protect victim
(2.1) If a victim, or a person referred to in subsection 142(3), has provided the Board with a statement describing the harm, property damage or loss suffered by them, as the result of the commission of an offence and its continuing impact on them — including any safety concerns — the Board shall impose any conditions on the long-term supervision of the offender that it considers reasonable and necessary to protect the victim or the person, including a condition that the offender abstain
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from having any contact, including communication by any means, with the victim or the person or from going to any specified place. Written reasons
(2.2) If a statement referred to in subsection (2.1) has been provided to the Board and it decides not to impose any conditions under that subsection, it shall provide written reasons for its decision.
For greater certainty
(2.3) For greater certainty, if no statement has been provided to the Board, nothing in subsection (2.1) precludes the Board from imposing any condition under subsection (2).
Duration of conditions
(3) A condition imposed under subsection (2) or (2.1) is valid for the period that the Board specifies.
1997, c. 17, s. 30
(2) Paragraph 134.1(4)(b) of the Act is replaced by the following: (b) in respect of conditions imposed under subsection (2) or (2.1), remove or vary any such condition.
(3) Section 134.1 of the Act is amended by adding the following after subsection (4): Obligation — removal or variance of condition
(5) Before removing or varying any condition imposed under subsection (2.1) on an offender, the Board shall take reasonable steps to inform every victim or person who provided it with a statement referred to in that subsection in relation to that offender of its intention to remove or vary the condition and it shall consider their concerns, if any. 49. (1) Subsection 140(6) of the Act is repealed.
2012, c. 1, s. 96(2)
(2) Subsection 140(10) of the Act is replaced by the following:
Presentation of statements
(10) If they are attending a hearing as an observer, (a) a victim may present a statement describing the harm, property damage or loss suffered by them as the result of the
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commission of the offence and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender; and (b) a person referred to in subsection 142(3) may present a statement describing the harm, property damage or loss suffered by them as the result of any act of the offender in respect of which a complaint was made to the police or Crown attorney or an information laid under the Criminal Code, and its continuing impact on them — including any safety concerns — and commenting on the possible release of the offender.
(3) Section 140 of the Act is amended by adding the following after subsection (12): Audio recording
(13) Subject to any conditions specified by the Board, a victim, or a person referred to in subsection 142(3), who does not attend a hearing in respect of a review referred to in paragraph (1)(a) or (b) as an observer is entitled, after the hearing, on request, to listen to an audio recording of the hearing, other than portions of the hearing that the Board considers could reasonably be expected to jeopardize the safety of any person or to reveal a source of information obtained in confidence.
Access to information
(14) If an observer has been present during a hearing or a victim or a person has exercised their right under subsection (13), any information or documents discussed or referred to during the hearing shall not for that reason alone be considered to be publicly available for purposes of the Access to Information Act or the Privacy Act. 50. (1) Paragraph 142(3)(a) of the Act is replaced by the following:
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(a) that person suffered physical or emotional harm, property damage or economic loss, as the result of an act of an offender, whether or not the offender was prosecuted or convicted for that act; and (2) Section 142 of the Act is amended by adding the following after subsection (3): Representative
(3.1) A victim may designate a representative to whom the information referred to in subsections (1) and (2) is to be disclosed on the victim’s behalf. In that case, the victim shall provide the Chairperson with the representative’s contact information.
Withdrawal of request
(3.2) A victim who has made a request referred to in subsection (1) or (2) may inform the Chairperson in writing that they no longer want the information to be disclosed to them. In that case, the Chairperson shall not contact them or their representative, if any, unless the victim subsequently makes the request again.
Deemed withdrawal of request
(3.3) The Chairperson may consider a victim to have withdrawn a request referred to in subsection (1) or (2) if the Chairperson has made reasonable efforts to contact the victim and has failed to do so.
Other persons
(3.4) Subsections (3.1) to (3.3) also apply, with any necessary modifications, to a person who has satisfied the Chairperson of the matters referred to in paragraphs (3)(a) and (b). 51. The Act is amended by adding the following after section 144:
Copy of decision
144.1 At the request of a victim, or a person referred to in subsection 142(3), the Board shall, despite section 144, provide the victim or person with a copy of any decision rendered by it under this Part or under paragraph 746.1(2)(c) or (3)(c) of the Criminal Code in relation to the offender and its reasons for that decision, unless doing so could reasonably be expected (a) to jeopardize the safety of any person; (b) to reveal a source of information obtained in confidence; or (c) to prevent the successful reintegration of the offender into society.
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AMENDMENTS TO THE CANADA EVIDENCE ACT
2002, c. 1, s. 166
52. (1) Subsection 4(2) of the Canada Evidence Act is replaced by the following:
Spouse of accused
(2) No person is incompetent, or uncompellable, to testify for the prosecution by reason only that they are married to the accused. (2) Subsections 4(4) and (5) of the Act are repealed. 53. Section 16 of the Act is amended by adding the following after subsection (3):
No questions regarding understanding of promise
1996, c. 23
(3.1) A person referred to in subsection (3) shall not be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court. AMENDMENT TO THE EMPLOYMENT INSURANCE ACT 54. Section 133 of the Employment Insurance Act is repealed. COORDINATING AMENDMENTS
Bill C-13
55. (1) Subsections (2) and (3) apply if Bill C-13 introduced in the 2nd session of the 41st Parliament and entitled the Protecting Canadians from Online Crime Act (in this section referred to as the “other Act”), receives royal assent. (2) If subsection 52(1) of this Act comes into force before section 27 of the other Act, then that section 27 is repealed. (3) If subsection 52(1) of this Act comes into force on the same day as section 27 of the other Act, then that section 27 is deemed to have come into force before that subsection 52(1).
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56. (1) Subsections (2) to (5) apply if Bill C-14 introduced in the 2nd session of the 41st Parliament and entitled the Not Criminally Responsible Reform Act (in this section referred to as the “other Act”), receives royal assent.
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(2) If subsection 22(1) of this Act comes into force before subsection 7(4) of the other Act, then that subsection 7(4) is repealed. (3) If subsection 22(1) of this Act comes into force on the same day as subsection 7(4) of the other Act, then that subsection 7(4) is deemed to have come into force before that subsection 22(1). (4) If subsection 22(2) of this Act comes into force before subsection 7(5) of the other Act, then on the day on which that subsection 7(5) comes into force, subsection 672.5(16) of the Criminal Code is repealed. (5) If subsection 22(2) of this Act comes into force on the same day as subsection 7(5) of the other Act, then that subsection 7(5) is deemed to have come into force before that subsection 22(2). Bill C-26
57. (1) Subsections (2) and (3) apply if Bill C-26 introduced in the 2nd session of the 41st Parliament and entitled the Tougher Penalties for Child Predators Act (in this section referred to as the “other Act”), receives royal assent. (2) If subsection 52(1) of this Act comes into force before section 20 of the other Act, then that section 20 is repealed. (3) If subsection 52(1) of this Act comes into force on the same day as section 20 of the other Act, then that section 20 is deemed to have come into force before that subsection 52(1).
Bill C-479
58. If Bill C-479, introduced in the 1st session of the 41st Parliament and entitled An Act to bring Fairness for the Victims of Violent Offenders, receives royal assent, then, on the first day on which both subsection 6(3) of that Act and subsection 46(4) of this Act are in force, subsection 142(1.1) of the Corrections and Conditional Release Act is replaced by the following:
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Timing of disclosure
(1.1) The Chairperson shall disclose the information referred to in paragraph (1)(c) before the day on which the offender is released and, unless it is not practicable to do so, the Chairperson shall disclose it at least 14 days before that day.
Bill C-489
59. If Bill C-489, introduced in the 1st session of the 41st Parliament and entitled the An Act to amend the Criminal Code and the Corrections and Conditional Release Act (restrictions on offenders), receives royal assent, then, on the first day on which both section 5 of that Act and subsection 48(3) of this Act are in force, (a) subsection 133(3.1) of the English version of the Corrections and Conditional Release Act is replaced by the following:
Conditions to protect victim
(3.1) If a victim or a person referred to in subsection 26(3) or 142(3) has provided the releasing authority with a statement describing the harm, property damage or loss suffered by them as a result of the commission of an offence or its continuing impact on them — including any safety concerns — or commenting on the possible release of the offender, the releasing authority shall impose any conditions on the parole, statutory release or unescorted temporary absence of the offender that it considers reasonable and necessary in order to protect the victim or the person, including a condition that the offender abstain from having any contact, including communication by any means, with the victim or the person or from going to any specified place. (b) section 133 of the Corrections and Conditional Release Act is amended by adding the following after subsection (6):
Obligation — removal or variance of condition
(7) Before removing or varying any condition imposed under subsection (3.1) on an offender, the releasing authority shall take reasonable steps to inform every victim or
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person that provided it with a statement referred to in that subsection in relation to that offender of its intention to remove or vary the condition and it shall consider their concerns, if any.
COMING INTO FORCE Ninety days after Royal Assent
60. (1) Sections 1 to 44 and 52 to 54 come into force 90 days after the day on which this Act receives royal assent.
Order in council
(2) Sections 45 to 51 come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 12 An Act to control the administrative burden that regulations impose on businesses
ASSENTED TO 23rd APRIL, 2015 BILL C-21
SUMMARY This enactment enacts the Red Tape Reduction Act, which establishes controls on the amount of administrative burden that regulations impose on businesses.
TABLE OF PROVISIONS
AN ACT TO CONTROL THE ADMINISTRATIVE BURDEN THAT REGULATIONS IMPOSE ON BUSINESSES Preamble SHORT TITLE 1.
Red Tape Reduction Act INTERPRETATION
2. Definitions APPLICATION
3. Application
4. Purpose
PURPOSE
RULE 5.
Control of administrative burden
6. Policies and directives
7. Regulations
8. Immunity
GENERAL
ANNUAL REPORT 9.
Report — application of section 5
10. Regulations REVIEW OF ACT
11. Five-year review
62-63-64 ELIZABETH II —————— CHAPTER 12 An Act to control the administrative burden that regulations impose on businesses [Assented to 23rd April, 2015] Preamble
Whereas Canadians and small businesses have expressed concerns about how the increased administrative burden imposed by regulations has affected the cost of doing business; Whereas on April 1, 2012 the Government of Canada established a rule that each increase in the administrative burden on businesses must be offset with a corresponding decrease, one-forone, and considers that it is desirable to establish that rule in legislation; Whereas the one-for-one rule must not compromise public health, public safety or the Canadian economy; And whereas the Government of Canada recognizes the importance of being transparent with regard to the implementation of the onefor-one rule; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE
Short title
1. This Act may be cited as the Red Tape Reduction Act. INTERPRETATION
Definitions
2. The following definitions apply in this Act.
2 “administrative burden” « fardeau administratif »
“business” « entreprise »
“regulation” « règlement »
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“administrative burden” means anything that is necessary to demonstrate compliance with a regulation, including the collecting, processing, reporting and retaining of information and the completing of forms. “business” means a person or entity that engages in commercial activities in Canada, other than for a public purpose. “regulation” means an instrument that is registered as a regulation under section 6 of the Statutory Instruments Act. APPLICATION
Application
3. This Act applies to regulations made by or with the approval of the Governor in Council, the Treasury Board or a minister of the Crown. PURPOSE
Purpose
4. The purpose of this Act is to control the administrative burden that regulations impose on businesses. RULE
Control of administrative burden
5. (1) If a regulation is made that imposes a new administrative burden on a business, one or more regulations must be amended or repealed to offset the cost of that new burden against the cost of an existing administrative burden on a business.
Repeal of regulation
(2) If a regulation is made — other than one that only amends a regulation — that imposes a new administrative burden on a business, a regulation must be repealed, unless one has already been repealed in accordance with subsection (1).
Policies and directives
6. The President of the Treasury Board may establish policies or issue directives respecting the manner in which section 5 is to be applied.
Regulations
7. The Governor in Council may, for the purpose of section 5, make regulations respecting (a) the manner of calculating the cost of an administrative burden;
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(b) the period within which measures must be taken to comply with that section; (c) the taking into account of regulations that are amended or repealed before a new administrative burden is imposed; (d) the application of that section to any regulation made, amended or repealed on or after April 1, 2012; and (e) the regulations that the Treasury Board may exempt from the application of that section and the categories for which, and the circumstances in which, such an exemption may be granted. GENERAL Immunity
8. (1) No action or other proceeding may be brought against Her Majesty in right of Canada for anything done or omitted to be done, or for anything purported to be done or omitted to be done, under this Act.
Validity of regulations
(2) No regulation is invalid by reason only of a failure to comply with this Act. ANNUAL REPORT
Report — application of section 5
9. The President of the Treasury Board must prepare and make public each year a report on the application of section 5 during the 12-month period ending on March 31 of the year in which the report is to be made public.
Regulations
10. The Governor in Council may make regulations respecting the information to be included in the report and respecting the report’s form. REVIEW OF ACT
Five-year review
11. Five years after the day on which this Act comes into force, the President of the Treasury Board must cause a review of this Act to be conducted.
Published under authority of the Speaker of the House of Commons
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Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015
STATUTES OF CANADA 2015
CHAPTER 9 An Act to amend the Canadian Security Intelligence Service Act and other Acts
ASSENTED TO 23rd APRIL, 2015 BILL C-44
SUMMARY This enactment amends the Canadian Security Intelligence Service Act to give greater protection to the Canadian Security Intelligence Service’s human sources. Also, so as to enable the Service to more effectively investigate threats to the security of Canada, the enactment clarifies the scope of the Service’s mandate and confirms the jurisdiction of the Federal Court to issue warrants that have effect outside Canada. In addition, it makes a consequential amendment to the Access to Information Act. The enactment also amends the Strengthening Canadian Citizenship Act to allow for the coming into force of provisions relating to the revocation of Canadian citizenship on a different day than the day on which certain other provisions of that Act come into force.
62-63-64 ELIZABETH II —————— CHAPTER 9 An Act to amend the Canadian Security Intelligence Service Act and other Acts [Assented to 23rd April, 2015] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Protection of Canada from Terrorists Act.
R.S., c. C-23
CANADIAN SECURITY INTELLIGENCE SERVICE ACT 2. Section 2 of the Canadian Security Intelligence Service Act is amended by adding the following in alphabetical order:
“human source” « source humaine »
“human source” means an individual who, after having received a promise of confidentiality, has provided, provides or is likely to provide information to the Service; 3. Section 12 of the Act is renumbered as subsection 12(1) and is amended by adding the following:
No territorial limit
(2) For greater certainty, the Service may perform its duties and functions under subsection (1) within or outside Canada. 4. Section 15 of the Act is renumbered as subsection 15(1) and is amended by adding the following:
No territorial limit
(2) For greater certainty, the Service may conduct the investigations referred to in subsection (1) within or outside Canada.
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2001, c. 27, s. 224
5. (1) Paragraph 16(1)(b) of the French version of the Act is replaced by the following:
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b) d’une personne qui n’appartient à aucune des catégories suivantes : (i) les citoyens canadiens, (ii) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés, (iii) les personnes morales constituées sous le régime d’une loi fédérale ou provinciale. (2) Paragraph 16(3)(b) of the French version of the Act is replaced by the following: b) au consentement personnel écrit du ministre. 6. Subsection 18(1) of the Act is replaced by the following: Offence to disclose identity
18. (1) Subject to subsection (2), no person shall knowingly disclose any information that they obtained or to which they had access in the course of the performance of their duties and functions under this Act or their participation in the administration or enforcement of this Act and from which could be inferred the identity of an employee who was, is or is likely to become engaged in covert operational activities of the Service or the identity of a person who was an employee engaged in such activities. 7. The Act is amended by adding the following after section 18:
Purpose of section — human sources
18.1 (1) The purpose of this section is to ensure that the identity of human sources is kept confidential in order to protect their life and security and to encourage individuals to provide information to the Service.
Prohibition on disclosure
(2) Subject to subsections (3) and (8), no person shall, in a proceeding before a court, person or body with jurisdiction to compel the production of information, disclose the identity of a human source or any information from which the identity of a human source could be inferred.
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Exception — consent
(3) The identity of a human source or information from which the identity of a human source could be inferred may be disclosed in a proceeding referred to in subsection (2) if the human source and the Director consent to the disclosure of that information.
Application to judge
(4) A party to a proceeding referred to in subsection (2), an amicus curiae who is appointed in respect of the proceeding or a person who is appointed to act as a special advocate if the proceeding is under the Immigration and Refugee Protection Act may apply to a judge for one of the following orders if it is relevant to the proceeding: (a) an order declaring that an individual is not a human source or that information is not information from which the identity of a human source could be inferred; or (b) if the proceeding is a prosecution of an offence, an order declaring that the disclosure of the identity of a human source or information from which the identity of a human source could be inferred is essential to establish the accused’s innocence and that it may be disclosed in the proceeding.
Contents and service of application
(5) The application and the applicant’s affidavit deposing to the facts relied on in support of the application shall be filed in the Registry of the Federal Court. The applicant shall, without delay after the application and affidavit are filed, serve a copy of them on the Attorney General of Canada.
Attorney General of Canada
(6) Once served, the Attorney General of Canada is deemed to be a party to the application.
Hearing
(7) The hearing of the application shall be held in private and in the absence of the applicant and their counsel, unless the judge orders otherwise.
Order — disclosure to establish innocence
(8) If the judge grants an application made under paragraph (4)(b), the judge may order the disclosure that the judge considers appropriate subject to any conditions that the judge specifies.
Effective date of order
(9) If the judge grants an application made under subsection (4), any order made by the judge does not take effect until the time
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provided to appeal the order has expired or, if the order is appealed and is confirmed, until either the time provided to appeal the judgement confirming the order has expired or all rights of appeal have been exhausted. Confidentiality
(10) The judge shall ensure the confidentiality of the following: (a) the identity of any human source and any information from which the identity of a human source could be inferred; and (b) information and other evidence provided in respect of the application if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person.
Confidentiality on appeal
(11) In the case of an appeal, subsection (10) applies, with any necessary modifications, to the court to which the appeal is taken. 8. (1) Subsection 21(1) of the Act is replaced by the following:
Application for warrant
21. (1) If the Director or any employee designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate, within or outside Canada, a threat to the security of Canada or to perform its duties and functions under section 16, the Director or employee may, after having obtained the Minister’s approval, make an application in accordance with subsection (2) to a judge for a warrant under this section. (2) Section 21 of the Act is amended by adding the following after subsection (3):
Activities outside Canada
(3.1) Without regard to any other law, including that of any foreign state, a judge may, in a warrant issued under subsection (3), authorize activities outside Canada to enable the Service to investigate a threat to the security of Canada. 9. The portion of subsection 39(2) of the Act before paragraph (a) is replaced by the following:
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Access to information
(2) Despite subsection 18.1(2), any other Act of Parliament or any privilege under the law of evidence, but subject to subsection (3), the Review Committee is entitled
2014, c. 22
STRENGTHENING CANADIAN CITIZENSHIP ACT 10. Subsection 24(5) of the Strengthening Canadian Citizenship Act is replaced by the following:
2008, c. 14, s. 12(5)
(5) Paragraphs 27(i) to (j.1) of the Act are replaced by the following: (i) providing for the number of copies of any declaration, certificate, or other document made, issued or provided under this Act or prior legislation that any person is entitled to have; (i.1) respecting the provision under paragraph 12(1)(b) or (2)(b) of a means of establishing citizenship other than a certificate of citizenship; (j) providing for the surrender and retention of certificates of citizenship, certificates of naturalization and certificates of renunciation issued or granted under this Act or prior legislation and of documents provided under paragraph 12(1)(b) or (2)(b) if there is reason to believe that their holder may not be entitled to them or has contravened any of the provisions of this Act; (j.1) providing for the renunciation of citizenship by persons (i) who are citizens under paragraph 3(1)(f) or (g), (ii) who are citizens under any of paragraphs 3(1)(k) to (r) and who did not, before the coming into force of this subparagraph, become citizens by way of grant as defined in subsection 3(9), or (iii) who are citizens under paragraph 3(1)(b) for the sole reason that one or both parents are persons referred to in any of paragraphs 3(1)(k) to (n) and who did not, before the coming into force of this subparagraph, become citizens by way of grant as defined in subsection 3(9);
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(5.1) Section 27 of the Act is amended by adding the following after paragraph (j.1): (j.2) prescribing the factors that the Minister shall consider in forming an opinion as to whether a hearing is required under subsection 10(4); (5.2) Paragraph 27(k) of the Act is replaced by the following: (k) providing for the surrender and cancellation of certificates and documents referred to in paragraph (j) if their holder is not entitled to them; (k.1) providing for the collection, retention, use, disclosure and disposal of information for the purposes of this Act; (k.2) providing for the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 of the Department of Citizenship and Immigration Act; (k.3) providing for the disclosure of information to verify the citizenship status or identity of any person for the purposes of administering any federal or provincial law or law of another country; (k.4) providing for the disclosure of information for the purposes of cooperation within the Government of Canada and between the Government of Canada and the government of a province; (k.5) respecting the disclosure of information relating to the professional or ethical conduct of a person referred to in any of paragraphs 21.1(2)(a) to (c) in connection with a proceeding — other than a proceeding before a superior court — or application under this Act to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct, for the purposes of ensuring that persons referred to in those paragraphs offer and provide professional and ethical
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representation and advice to persons in connection with such proceedings and applications; and 11. (1) Section 31 of the Act is amended by adding the following after subsection (2): Order in council
(2.1) On the day on which section 8 comes into force, the reference to section 11 in subsection (1) is replaced by a reference to that section 8. (2) Paragraph 31(3)(a) of the Act is replaced by the following: (a) the reference to section 8 in subsection (1) is replaced by a reference to that subsection 2(2); and 12. Subsection 46(2) of the Act is replaced by the following:
Order in council
(2) Subsections 2(2), (3), (5), (6), (8), (11), (15) and (17) to (19), 3(1), (2), (4) to (6) and (8) and 4(2), (3), (5), (6), (8), (10) and (11), section 6, subsections 9(2) and (4), section 10, subsection 12(2), section 15, subsections 16(1) and (3), sections 17 and 18, subsections 19(1) and (3), section 23, subsections 24(2) to (5), (5.2) and (6) and sections 25 and 28 to 30 come into force on a day to be fixed by order of the Governor in Council that is made not earlier than one day after the day on which an order is made under subsection (1).
Order in council
(2.1) Subsections 7(1) and (2), section 8, subsection 9(1), section 14, subsection 19(2), section 21, subsection 24(5.1) and sections 42 and 43 come into force on a day to be fixed by order of the Governor in Council.
R.S., c. A-1
CONSEQUENTIAL AMENDMENT TO THE ACCESS TO INFORMATION ACT 13. Schedule II to the Access to Information Act is amended by replacing the reference to “section 18” opposite the reference to “Canadian Security Intelligence Service Act” with a reference to “sections 18 and 18.1”.
Published under authority of the Speaker of the House of Commons
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 1 An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts
ASSENTED TO 13th MARCH, 2012 BILL C-10
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts”.
SUMMARY Part 1 of this enactment creates, in order to deter terrorism, a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. It also amends the State Immunity Act to prevent a listed foreign state from claiming immunity from the jurisdiction of Canadian courts in respect of actions that relate to its support of terrorism. Part 2 amends the Criminal Code to (a) increase or impose mandatory minimum penalties, and increase maximum penalties, for certain sexual offences with respect to children; (b) create offences of making sexually explicit material available to a child and of agreeing or arranging to commit a sexual offence against a child; (c) expand the list of specified conditions that may be added to prohibition and recognizance orders to include prohibitions concerning contact with a person under the age of 16 and use of the Internet or any other digital network; (d) expand the list of enumerated offences that may give rise to such orders and prohibitions; and (e) eliminate the reference, in section 742.1, to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years.
It also amends the Controlled Drugs and Substances Act to provide for minimum penalties for serious drug offences, to increase the maximum penalty for cannabis (marijuana) production and to reschedule certain substances from Schedule III to that Act to Schedule I.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
Part 3 amends the Corrections and Conditional Release Act to (a) clarify that the protection of society is the paramount consideration for the Correctional Service of Canada in the corrections process and for the National Parole Board and the provincial parole boards in the determination of all cases; (b) establish the right of a victim to make a statement at parole hearings and permit the disclosure to a victim of certain information about the offender; (c) provide for the automatic suspension of the parole or statutory release of offenders who receive a new custodial sentence and require the National Parole Board to review their case within a prescribed period; and (d) rename the National Parole Board as the Parole Board of Canada.
It also amends the Criminal Records Act to substitute the term “record suspension” for the term “pardon”. It extends the ineligibility periods for applications for a record suspension and makes certain offences ineligible for a record suspension. It also requires the National Parole Board to submit an annual report that includes the number of applications for record suspensions and the number of record suspensions ordered. Lastly, it amends the International Transfer of Offenders Act to provide that one of the purposes of that Act is to enhance public safety and to modify the list of factors that the Minister of Public Safety and Emergency Preparedness may consider in deciding whether to consent to the transfer of a Canadian offender. Part 4 amends the sentencing and general principles of the Youth Criminal Justice Act, as well as its provisions relating to judicial interim release, adult and youth sentences, publication bans, and placement in youth custody facilities. It defines the terms “violent offence” and “serious offence”, amends the definition “serious violent offence” and repeals the definition “presumptive offence”. It also requires police forces to keep records of extrajudicial measures used to deal with young persons.
Part 5 amends the Immigration and Refugee Protection Act to allow officers to refuse to authorize foreign nationals to work in Canada in cases where to give authorization would be contrary to public policy considerations that are specified in instructions given by the Minister of Citizenship and Immigration. The enactment also makes related and consequential amendments to other Acts.
TABLE OF PROVISIONS
AN ACT TO ENACT THE JUSTICE FOR VICTIMS OF TERRORISM ACT AND TO AMEND THE STATE IMMUNITY ACT, THE CRIMINAL CODE, THE CONTROLLED DRUGS AND SUBSTANCES ACT, THE CORRECTIONS AND CONDITIONAL RELEASE ACT, THE YOUTH CRIMINAL JUSTICE ACT, THE IMMIGRATION AND REFUGEE PROTECTION ACT AND OTHER ACTS
SHORT TITLE 1.
Safe Streets and Communities Act PART 1 JUSTICE FOR VICTIMS OF TERRORISM ACT ENACTMENT OF ACT
2. Enactment
AN ACT TO DETER ACTS OF TERRORISM AGAINST CANADA AND CANADIANS Preamble SHORT TITLE 1.
Justice for Victims of Terrorism Act
2. Definitions
INTERPRETATION
PURPOSE 3.
Purpose CAUSE OF ACTION
4. Action AMENDMENTS TO THE STATE IMMUNITY ACT
3-9.
Amendments
i PART 2 SENTENCING CRIMINAL CODE 10-38.
Amendments CONTROLLED DRUGS AND SUBSTANCES ACT
39-46.
Amendments RELATED AMENDMENTS
47. An Act to amend the Criminal Code (firearms) and the Firearms Act
48. National Defence Act CONSEQUENTIAL AMENDMENTS
49. Criminal Records Act
50. National Defence Act COMING INTO FORCE
51. Order in council PART 3 POST-SENTENCING CORRECTIONS AND CONDITIONAL RELEASE ACT Amendments to the Act
52-104.
Amendments Transitional Provisions
105. Recalculation of statutory release date
106. Detention
107. Automatic suspension, cancellation or revocation CRIMINAL RECORDS ACT
108-134.
Amendments
INTERNATIONAL TRANSFER OF OFFENDERS ACT 135-136.
Amendments CONSEQUENTIAL AMENDMENTS
137-139. 140.
Canadian Human Rights Act
Contraventions Act
ii 141-147. 148.
DNA Identification Act
149-150. 151.
Criminal Code Immigration and Refugee Protection Act
Limiting Pardons for Serious Crimes Act
152-155.
National Defence Act
156-159.
Youth Criminal Justice Act TERMINOLOGY CHANGES
160. Amendments TRANSITIONAL PROVISIONS
161. New applications for pardons
162. Pending applications — Criminal Records Act
163. Pending applications — references in other legislation
164. Pardons in effect — Criminal Records Act
165. Pardons in effect — references in other legislation
166. Order in council
COMING INTO FORCE
PART 4 YOUTH CRIMINAL JUSTICE YOUTH CRIMINAL JUSTICE ACT Amendments to the Act 167-194.
Amendments Transitional Provision
195. Offences committed before this section in force
RELATED AMENDMENTS 196-197.
Corrections and Conditional Release Act
198-199.
Prisons and Reformatories Act CONSEQUENTIAL AMENDMENTS
200-201.
Criminal Code
202-203.
DNA Identification Act COMING INTO FORCE
204. Order in council
iv PART 5 IMMIGRATION AND REFUGEE PROTECTION ACT AMENDMENTS TO THE ACT 205-207.
Amendments COMING INTO FORCE
208. Order in council
SCHEDULE
60-61 ELIZABETH II —————— CHAPTER 1 An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts
[Assented to 13th March, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Safe Streets and Communities Act. PART 1 JUSTICE FOR VICTIMS OF TERRORISM ACT ENACTMENT OF ACT
Enactment of Act
2. The Justice for Victims of Terrorism Act is enacted as follows: An Act to deter acts of terrorism against Canada and Canadians
Preamble
Whereas Canadians and people everywhere are entitled to live their lives in peace, freedom and security;
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Whereas Parliament recognizes that terrorism is a matter of national concern that affects the security of the nation and considers it a priority to deter and prevent acts of terrorism against Canada and Canadians; Whereas acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation; Whereas the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress and incapacitate acts of terrorism; Whereas United Nations Security Council Resolution 1373 (2001) reaffirms that acts of international terrorism constitute a threat to international peace and security, and reaffirms the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by acts of terrorism; Whereas Canada ratified the 1999 International Convention for the Suppression of the Financing of Terrorism on February 15, 2002; Whereas hundreds of Canadians have been murdered or injured in terrorist attacks; Whereas terrorism is dependent on financial and material support; Whereas certain states that support terrorism should not benefit from state immunity in this regard; And whereas Parliament considers that it is in the public interest to enable plaintiffs to bring lawsuits against terrorists and their supporters, which will have the effect of impairing the functioning of terrorist groups in order to deter and prevent acts of terrorism against Canada and Canadians;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
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SHORT TITLE Short title
1. This Act may be cited as the Justice for Victims of Terrorism Act. INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“foreign state” « État étranger »
“foreign state” has the same meaning as in section 2 of the State Immunity Act.
“listed entity” « entité inscrite »
“listed entity” has the same meaning as in subsection 83.01(1) of the Criminal Code.
“person” « personne »
“person” includes an organization as defined in section 2 of the Criminal Code. PURPOSE
Purpose
3. The purpose of this Act is to deter terrorism by establishing a cause of action that allows victims of terrorism to sue perpetrators of terrorism and their supporters. CAUSE OF ACTION
Action
4. (1) Any person that has suffered loss or damage in or outside Canada on or after January 1, 1985 as a result of an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code, may, in any court of competent jurisdiction, bring an action to recover an amount equal to the loss or damage proved to have been suffered by the person and obtain any additional amount that the court may allow, from any of the following: (a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that committed the act or omission that resulted in the loss or damage; or (b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other person that — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed an act or omission that is, or had it been committed in Canada would be,
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punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Conditions — hearing and determination of action by court
(2) A court may hear and determine the action referred to in subsection (1) only if the action has a real and substantial connection to Canada or the plaintiff is a Canadian citizen or a permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act.
Presumption
(2.1) In an action under subsection (1), the defendant is presumed to have committed the act or omission that resulted in the loss or damage to the plaintiff if the court finds that (a) a listed entity caused or contributed to the loss or damage by committing an act or omission that is, or had it been committed in Canada would be, punishable under Part II.1 of the Criminal Code; and (b) the defendant — for the benefit of or otherwise in relation to the listed entity referred to in paragraph (a) — committed an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code.
Suspension of limitation or prescription period
(3) A limitation or prescription period in respect of an action brought under subsection (1) does not begin before the day on which this section comes into force and is suspended during any period in which the person that suffered the loss or damage (a) is incapable of beginning the action because of any physical, mental or psychological condition; or (b) is unable to ascertain the identity of the listed entity, person or foreign state referred to in paragraph (1)(a) or (b).
Refusal to hear claim
(4) The court may refuse to hear a claim against a foreign state under subsection (1) if the loss or damage to the plaintiff occurred in the foreign state and the plaintiff has not given the foreign state a reasonable opportunity to submit the dispute to arbitration in accordance with accepted international rules of arbitration.
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Judgments of foreign courts
(5) A court of competent jurisdiction must recognize a judgment of a foreign court that, in addition to meeting the criteria under Canadian law for being recognized in Canada, is in favour of a person that has suffered loss or damage referred to in subsection (1). However, if the judgment is against a foreign state, that state must be set out on the list referred to in subsection 6.1(2) of the State Immunity Act for the judgment to be recognized.
R.S., c. S-18
AMENDMENTS TO THE STATE IMMUNITY ACT 3. The heading before section 2 of the French version of the State Immunity Act is replaced by the following: DÉFINITIONS ET INTERPRÉTATION 3.1 Section 2 of the Act is amended by adding the following in alphabetical order:
“terrorist activity” « activité terroriste »
“terrorist activity” in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985. 4. The Act is amended by adding the following after section 2:
Meaning of supports terrorism
2.1 For the purposes of this Act, a foreign state supports terrorism if it commits, for the benefit of or otherwise in relation to a listed entity as defined in subsection 83.01(1) of the Criminal Code, an act or omission that is, or had it been committed in Canada would be, punishable under any of sections 83.02 to 83.04 and 83.18 to 83.23 of the Criminal Code. 5. The Act is amended by adding the following after section 6:
Support of terrorism
6.1 (1) A foreign state that is set out on the list referred to in subsection (2) is not immune from the jurisdiction of a court in proceedings against it for its support of terrorism on or after January 1, 1985.
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List of foreign states
(2) The Governor in Council may, by order, establish a list on which the Governor in Council may, at any time, set out the name of a foreign state if, on the recommendation of the Minister of Foreign Affairs made after consulting with the Minister of Public Safety and Emergency Preparedness, the Governor in Council is satisfied that there are reasonable grounds to believe that the foreign state supported or supports terrorism.
Establishment of list
(3) The list must be established no later than six months after the day on which this section comes into force.
Application to be removed from list
(4) On application in writing by a foreign state, the Minister of Foreign Affairs must, after consulting with the Minister of Public Safety and Emergency Preparedness, decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be set out on the list.
Notice of decision to applicant
(5) The Minister of Foreign Affairs must without delay give notice to the applicant of that Minister’s decision respecting the application.
New application
(6) A foreign state set out on the list may not make another application under subsection (4), unless there has been a material change in its circumstances since the foreign state made its last application or the Minister of Foreign Affairs has completed the review under subsection (7).
Review of list
(7) Two years after the establishment of the list, and every two years after that, the Minister of Foreign Affairs must
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(a) review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are still reasonable grounds, as set out in subsection (2), for a foreign state to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should remain set out on the list; and
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Sécurité des rues et (b) review the list in consultation with the Minister of Public Safety and Emergency Preparedness to determine whether there are reasonable grounds, as set out in subsection (2), for a foreign state that is not set out on the list to be set out on the list and make a recommendation to the Governor in Council as to whether the foreign state should be set out on the list.
Effect of review
(8) The review does not affect the validity of the list.
Completion of review
(9) The Minister of Foreign Affairs must complete the review as soon as feasible, but in any case within 120 days, after its commencement. After completing the review, that Minister must without delay cause a notice to be published in the Canada Gazette that it has been completed.
Effect of removal from list on proceedings
(10) If proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state’s immunity from the jurisdiction of a court in respect of those proceedings or any related appeal or enforcement proceedings.
Terrorist activity
(11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state. 6. Subsection 11(3) of the Act is replaced by the following:
Exception
(3) This section does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism or its terrorist activity. 7. (1) Paragraph 12(1)(b) of the Act is replaced by the following: (b) the property is used or is intended to be used for a commercial activity or, if the foreign state is set out on the list referred to in
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subsection 6.1(2), is used or is intended to be used by it to support terrorism or engage in terrorist activity; (2) Subsection 12(1) of the Act is amended by adding “or” at the end of paragraph (c) and by adding the following after that paragraph: (d) the foreign state is set out on the list referred to in subsection 6.1(2) and the attachment or execution relates to a judgment rendered in an action brought against it for its support of terrorism or its terrorist activity and to property other than property that has cultural or historical value. 8. The Act is amended by adding the following after section 12: Assistance for judgment creditors
12.1 (1) At the request of any party in whose favour a judgment is rendered against a foreign state in proceedings referred to in section 6.1, the Minister of Finance or the Minister of Foreign Affairs may, within the confines of his or her mandate, assist, to the extent that is reasonably practical, any judgment creditor in identifying and locating the following property, unless the Minister of Foreign Affairs believes that to do so would be injurious to Canada’s international relations or either Minister believes that to do so would be injurious to Canada’s other interests: (a) in the case of the Minister of Finance, the financial assets of the foreign state that are held within Canadian jurisdiction; and (b) in the case of the Minister of Foreign Affairs, the property of the foreign state that is situated in Canada.
Disclosure of information
(2) In exercising the power referred to in subsection (1), the Minister of Finance or the Minister of Foreign Affairs, as the case may be, may not disclose (a) information that was produced in or for a government institution, without the authorization of the government institution; and
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(b) information produced in circumstances other than those referred to in paragraph (a), without the authorization of the government institution that first received the information. Definition of “government institution”
(3) In subsection (2), “government institution” means any department, branch, office, board, agency, commission, corporation or other body for the administration or affairs of which a minister is accountable to Parliament. 9. Subsection 13(2) of the Act is replaced by the following:
Exception
(2) Subsection (1) does not apply either to an agency of a foreign state or to a foreign state that is set out on the list referred to in subsection 6.1(2) in respect of an action brought against that foreign state for its support of terrorism or its terrorist activity. PART 2 SENTENCING
R.S., c. C-46
CRIMINAL CODE 10. Subsection 7(4.1) of the Criminal Code is amended by replacing “171” with “171, 171.1, 172.1, 172.2”.
2005, c. 32, s. 3
11. Paragraphs 151(a) and (b) of the Act are replaced by the following: (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
2005, c. 32, s. 3
12. Paragraphs 152(a) and (b) of the Act are replaced by the following: (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
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(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. 2005, c. 32, s. 4(2)
13. Paragraphs 153(1.1)(a) and (b) of the Act are replaced by the following: (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. 14. Subsection 155(2) of the Act is replaced by the following:
Punishment
(2) Everyone who commits incest is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.
R.S., c. 19 (3rd Supp.), s. 3; 2008, c. 6, par. 54(d)
15. Subsection 160(3) of the Act is replaced by the following:
Bestiality in presence of or by child
(3) Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality, (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
2002, c. 13, s. 4(2); 2008, c. 6, par. 54(e)
16. (1) Subsection 161(1) of the Act is amended by striking out “or” at the end of paragraph (b) and by replacing paragraph (c) with the following:
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Sécurité des rues et (c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. (2) Paragraph 161(1.1)(a) of the Act is amended by replacing (a) “171 or 172.1” with “171, 171.1, 172.1 or 172.2”; (b) “173(2)” with “173(2) or 212(1), (2), (2.1) or (4)”; and (c) “273 or 281” with “273, 280 or 281”.
2005, c. 32, s. 7(2)
17. (1) Paragraph 163.1(2)(b) of the Act is replaced by the following: (b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.
2005, c. 32, s. 7(3)
(2) Paragraph 163.1(3)(b) of the Act is replaced by the following: (b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding two years less a day and to a minimum punishment of imprisonment for a term of six months.
2005, c. 32, s. 7(4)
(3) Paragraphs 163.1(4)(a) and (b) of the Act are replaced by the following: (a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
2005, c. 32, s. 7(5)
(4) Paragraphs 163.1(4.1)(a) and (b) of the Act are replaced by the following:
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(a) an indictable offence and is liable to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. 2008, c. 18, s. 4
18. The portion of subsection 164.2(1) of the Act before paragraph (a) is replaced by the following:
Forfeiture after conviction
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing
2005, c. 32, s. 9.1; 2008, c. 6, par. 54(f)
19. Paragraphs 170(a) and (b) of the Act are replaced by the following: (a) to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year if the person procured is under the age of 16 years; or (b) to imprisonment for a term of not more than five years and to a minimum punishment of imprisonment for a term of six months if the person procured is 16 years of age or more but under the age of 18 years.
2005, c. 32, s. 9.1; 2008, c. 6, par. 54(g)
20. Paragraph 171(b) of the Act is replaced by the following: (b) to imprisonment for a term not exceeding two years and to a minimum punishment of imprisonment for a term of 90 days if the person is 16 years of age or more but under the age of 18 years. 21. The Act is amended by adding the following after section 171:
2011-2012 Making sexually explicit material available to child
Sécurité des rues et 171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person; (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
Punishment
(2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.
Presumption
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
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Definition of “sexually explicit material”
(5) In subsection (1), “sexually explicit material” means material that is not child pornography, as defined in subsection 163.1(1), and that is
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(a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows a person who is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a person’s genital organs or anal region or, if the person is female, her breasts; (b) written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person; or (c) an audio recording whose dominant characteristic is the description, presentation or representation, for a sexual purpose, of explicit sexual activity with a person. 2002, c. 13, s. 8; 2008, c. 6, s. 14
22. (1) The portion of subsection 172.1(1) of the Act before paragraph (c) is replaced by the following:
Luring a child
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person; (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
2002, c. 13, s. 8; 2007, c. 20, s. 1
(2) Subsection 172.1(2) of the Act is replaced by the following:
Punishment
(2) Every person who commits an offence under subsection (1)
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Sécurité des rues et (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
2002, c. 13, s. 8
(3) Subsection 172.1(3) of the French version of the Act is replaced by the following:
Présomption
(3) La preuve que la personne visée aux alinéas (1)a), b) ou c) a été présentée à l’accusé comme ayant moins de dix-huit, seize ou quatorze ans, selon le cas, constitue, sauf preuve contraire, la preuve que l’accusé la croyait telle.
R.S., c. 19 (3rd Supp.), s. 7(1); 2010, c. 17, s. 2
23. Section 173 of the Act is replaced by the following:
Agreement or arrangement — sexual offence against child
172.2 (1) Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence (a) under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to another person who is, or who the accused believes is, under the age of 18 years; (b) under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to another person who is, or who the accused believes is, under the age of 16 years; or (c) under section 281 with respect to another person who is, or who the accused believes is, under the age of 14 years.
Punishment
(2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
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(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days. Presumption
(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
No defence
(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
No defence
(5) It is not a defence to a charge under paragraph (1)(a), (b) or (c) (a) that the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer; or (b) that, if the person with whom the accused agreed or made an arrangement was a peace officer or a person acting under the direction of a peace officer, the person referred to in paragraph (1)(a), (b) or (c) did not exist.
Indecent acts
173. (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person, (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months.
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Sécurité des rues et (2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days. 24. Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (xxix): (xxix.1) section 170 (parent or guardian procuring sexual activity), (xxix.2) section 171 (householder permitting sexual activity), (xxix.3) section 171.1 (making sexually explicit material available to child), (xxix.4) section 172.1 (luring a child), (xxix.5) section 172.2 (agreement or arrangement — sexual offence against child),
R.S., c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19
25. Section 271 of the Act is replaced by the following:
Sexual assault
271. Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
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26. Subsection 272(2) of the Act is amended by striking out “and” at the end of paragraph (a.1) and by adding the following after that paragraph: (a.2) if the complainant is under the age of 16 years, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of five years; and 27. Subsection 273(2) of the Act is amended by striking out “and” at the end of paragraph (a.1) and by adding the following after that paragraph: (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years; and 28. Subsection 486(3) of the Act is amended by replacing “171, 172, 172.1” with “170, 171, 171.1, 172, 172.1, 172.2”. 29. Subparagraph 486.4(1)(a)(i) of the Act is amended by replacing (a) “171, 172, 172.1” with “171, 171.1, 172, 172.1, 172.2”; and (b) “279.03” with “279.03, 280, 281”. 2010, c. 17, s. 3(1)
30. Subparagraph (a)(i.91) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following: (i.901) section 171.1 (making sexually explicit material available to child), (i.91) section 172.1 (luring a child), (i.911) section 172.2 (agreement or arrangement — sexual offence against child),
2004, c. 10, s. 20
31. Subparagraph (a)(x) of the definition “designated offence” in subsection 490.011(1) of the Act is replaced by the following: (ix.1) section 171.1 (making sexually explicit material available to child), (x) section 172.1 (luring a child), (x.1) section 172.2 (agreement or arrangement — sexual offence against child),
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2001, c. 41, s. 133(15)
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32. (1) Paragraph 515(4.1)(c) of the Act is replaced by the following: (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act,
1999, c. 5, s. 21
(2) Paragraph 515(6)(d) of the Act is replaced by the following: (d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.
1996, c. 19, s. 72
33. Subparagraph 553(c)(xi) of the Act is replaced by the following: (xi) paragraph 5(3)(a.1) of the Controlled Drugs and Substances Act.
2007, c. 12, s. 1
34. Section 742.1 of the Act is replaced by the following:
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Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
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(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (b) the offence is not an offence punishable by a minimum term of imprisonment; (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (i) section 144 (prison breach), (ii) section 264 (criminal harassment), (iii) section 271 (sexual assault), (iv) section 279 (kidnapping), (v) section 279.02 (trafficking in persons — material benefit), (vi) section 281 (abduction of person under fourteen), (vii) section 333.1 (motor vehicle theft),
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Sécurité des rues et (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwellinghouse), (x) section 349 (being unlawfully in a dwelling-house), and (xi) section 435 (arson for fraudulent purpose).
2008, c. 6, s. 40
35. Subparagraph (b)(x) of the definition “designated offence” in section 752 of the Act is replaced by the following: (ix.1) section 172.2 (agreement or arrangement — sexual offence against child), (x) subsection 212(1) (procuring), (x.1) subsection 212(2) (living on avails of prostitution of person under eighteen),
2002, c. 13, s. 76
36. Paragraph 753.1(2)(a) of the Act is replaced by the following: (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 163.1(2) (making child pornography), 163.1(3) (distribution, etc., of child pornography), 163.1(4) (possession of child pornography) or 163.1(4.1) (accessing child pornography), section 170 (parent or guardian procuring sexual activity), 171 (householder permitting sexual activity), 171.1 (making sexually explicit material available to child), 172.1 (luring a child) or 172.2 (agreement or arrangement — sexual offence against child), subsection 173(2) (exposure), 212(2) (living on the avails of prostitution of person under eighteen), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years) or 212(4) (offence — prostitution of person under eighteen) or section 271 (sexual assault), 272 (sexual assault with a weapon)
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or 273 (aggravated sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and 37. (1) Subsection 810.1(1) of the Act is amended by replacing (a) “151, 152, 155” with “151 or 152, subsection 153(1), section 155”; (b) “171 or 172.1” with “171, 171.1, 172.1 or 172.2”; (c) “173(2)” with “173(2) or 212(1), (2), (2.1) or (4)”; and (d) “272 or 273” with “272, 273, 280 or 281”. 2008, c. 6, par. 62(2)(b)
(2) Paragraph 810.1(3.02)(a) of the Act is replaced by the following: (a) prohibit the defendant from having any contact — including communicating by any means — with a person under the age of 16 years, unless the defendant does so under the supervision of a person whom the judge considers appropriate; (a.1) prohibit the defendant from using the Internet or other digital network, unless the defendant does so in accordance with conditions set by the judge;
2007, c. 22, s. 23
38. Subparagraph (b)(iii) of Form 5.04 in Part XXVIII of the Act is replaced by the following: []
1996, c. 19
(iii) an offence under any of sections 145 to 148, subsection 160(3), sections 170, 171.1, 173, 252, 264, 264.1, 266 and 270, paragraph 348(1)(e) and sections 349 and 423 of the Criminal Code,
CONTROLLED DRUGS AND SUBSTANCES ACT 39. (1) Paragraph 5(3)(a) of the Controlled Drugs and Substances Act is replaced by the following:
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Sécurité des rues et (a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and (i) to a minimum punishment of imprisonment for a term of one year if (A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code, (B) the person used or threatened to use violence in committing the offence, (C) the person carried, used or threatened to use a weapon in committing the offence, or (D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or (ii) to a minimum punishment of imprisonment for a term of two years if (A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, (B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or (C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence; (a.1) if the subject matter of the offence is a substance included in Schedule II in an amount that is not more than the amount set out for that substance in Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day;
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(2) Subsections 5(4) to (6) of the Act are replaced by the following: Interpretation
(5) For the purposes of applying subsection (3) in respect of an offence under subsection (1), a reference to a substance included in Schedule I, II, III or IV includes a reference to any substance represented or held out to be a substance included in that Schedule.
Interpretation
(6) For the purposes of paragraph (3)(a.1) and Schedule VII, the amount of the substance means the entire amount of any mixture or substance, or the whole of any plant, that contains a detectable amount of the substance. 40. Paragraph 6(3)(a) of the Act is replaced by the following: (a) if the subject matter of the offence is a substance included in Schedule I in an amount that is not more than one kilogram, or in Schedule II, is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment for a term of one year if (i) the offence is committed for the purposes of trafficking, (ii) the person, while committing the offence, abused a position of trust or authority, or
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Sécurité des rues et (iii) the person had access to an area that is restricted to authorized persons and used that access to commit the offence; (a.1) if the subject matter of the offence is a substance included in Schedule I in an amount that is more than one kilogram, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years; 41. (1) Paragraphs 7(2)(a) and (b) of the Act are replaced by the following: (a) if the subject matter of the offence is a substance included in Schedule I, is guilty of an indictable offence and liable to imprisonment for life and to a minimum punishment of imprisonment for a term of three years if any of the factors set out in subsection (3) apply and for a term of two years in any other case; (a.1) if the subject matter of the offence is a substance included in Schedule II, other than cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for life, and to a minimum punishment of imprisonment (i) for a term of one year if the production is for the purpose of trafficking, or (ii) for a term of 18 months if the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply; (b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of (i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking, (ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the
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(2) Section 7 of the Act is amended by adding the following after subsection (2): Factors
(3) The following factors must be taken into account in applying paragraphs (2)(a) to (b): (a) the person used real property that belongs to a third party in committing the offence; (b) the production constituted a potential security, health or safety hazard to persons under the age of 18 years who were in the location where the offence was committed or in the immediate area; (c) the production constituted a potential public safety hazard in a residential area; or (d) the person set or placed a trap, device or other thing that is likely to cause death or bodily harm to another person in the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area. 42. The Act is amended by adding the following after section 7:
Sécurité des rues et
2011-2012 NOTICE Notice
8. The court is not required to impose a minimum punishment unless it is satisfied that the offender, before entering a plea, was notified of the possible imposition of a minimum punishment for the offence in question and of the Attorney General’s intention to prove any factors in relation to the offence that would lead to the imposition of a minimum punishment.
REPORT TO PARLIAMENT Review
9. (1) Within five years after this section comes into force, a comprehensive review of the provisions and operation of this Act, including a cost-benefit analysis of mandatory minimum sentences, shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose.
Report
(2) The committee referred to in subsection (1) shall, within one year after a review is undertaken under that subsection, submit a report to Parliament including a statement of any changes that the committee recommends.
1999, c. 5, s. 49(1)
43. (1) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following:
Factors to take into consideration
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(2) Section 10 of the Act is amended by adding the following after subsection (3): Drug treatment court program
(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender (a) to participate in a drug treatment court program approved by the Attorney General; or
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(b) to attend a treatment program under subsection 720(2) of the Criminal Code.
Minimum punishment
(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted. 44. Schedule I to the Act is amended by adding the following after item 18: 19.
Amphetamines, their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues including: (1)
amphetamine (α-methylbenzeneethanamine)
(2)
N-ethylamphetamine (N-ethyl-αmethylbenzeneethanamine)
(3)
4-methyl-2,5-dimethoxyamphetamine (STP) (2,5-dimethoxy-4,αdimethylbenzeneethanamine)
(4)
3,4-methylenedioxyamphetamine (MDA) (α-methyl-1,3-benzodioxole-5-ethanamine)
(5)
2,5-dimethoxyamphetamine (2,5dimethoxy-α-methylbenzene-ethanamine)
(6)
4-methoxyamphetamine (4-methoxy-α-methylbenzeneethanamine)
(7)
2,4,5-trimethoxyamphetamine (2,4,5-trimethoxy-αmethylbenzeneethanamine)
(8)
N-methyl-3,4-methylenedioxyamphetamine (N,α-dimethyl-1,3benzodioxole-5-ethanamine)
(9)
4-ethoxy-2,5-dimethoxyamphetamine (4-ethoxy-2,5-dimethoxy-αmethylbenzeneethanamine)
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5-methoxy-3,4-methylenedioxyamphetamine (7-methoxy-αmethyl-1,3-benzodioxole-5-ethanamine)
(11)
N,N-dimethyl-3,4-methylenedioxyamphetamine (N,N, α-trimethyl1,3-benzodioxole-5-ethanamine)
(12)
N-ethyl-3,4-methylenedioxyamphetamine (N-ethyl-α-methyl-1,3benzodioxole-5-ethanamine)
(13)
4-ethyl-2,5-dimethoxyamphetamine (DOET) (4-ethyl-2,5-dimethoxy-α-methylbenzeneethanamine)
(14)
4-bromo-2,5-dimethoxyamphetamine (4-bromo-2,5-dimethoxy-αmethylbenzeneethanamine)
(15)
4-chloro-2,5-dimethoxyamphetamine (4-chloro-2,5-dimethoxy-αmethyl-benzeneethanamine)
(16)
4-ethoxyamphetamine (4-ethoxyα-methylbenzeneethanamine)
(17)
Benzphetamine (N-benzyl-N,αdimethylbenzeneethanamine)
(18)
N-Propyl-3,4-methylenedioxyamphetamine (α-methyl-N-propyl-1,3-benzodioxole-5-ethanamine)
(19)
N-(2-Hydroxyethyl)-α-methylbenzeneethanamine
(20)
N-hydroxy-3,4-methylenedioxyamphetamine (N-[α-methyl-3,4(methylenedioxy)phenethyl] hydroxylamine)
(21)
3,4,5-trimethoxyamphetamine (3,4,5-trimethoxy-αmethylbenzeneethanamine)
20. Flunitrazepam (5-(o-fluorophenyl)-1,3-dihydro-1-methyl-7-nitro-2H-1,4-benzodiazepin-2-one) and any of its salts or derivatives
21. 4-hydroxybutanoic acid (GHB) and any of its salts
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SOR/97-230, s. 7; SOR/200332, s. 2; SOR/ 2005-235, s. 2
45. Item 1 of Schedule III to the Act is repealed.
SOR/98-173, s. 1; SOR/2000220, s. 1
46. Items 25 and 26 of Schedule III to the Act are repealed.
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RELATED AMENDMENTS 2003, c. 8
An Act to amend the Criminal Code (firearms) and the Firearms Act 47. Section 8 of An Act to amend the Criminal Code (firearms) and the Firearms Act is repealed.
R.S., c. N-5 1998, c. 35, s. 40
National Defence Act 48. Subparagraph (a)(ii) of the definition “designated offence” in section 153 of the English version of the National Defence Act is replaced by the following: (ii) an offence punishable by imprisonment for life under subsection 5(3), 6(3) or 7(2) of the Controlled Drugs and Substances Act, or CONSEQUENTIAL AMENDMENTS
R.S., c. C-47
Criminal Records Act 49. (1) Paragraph 1(a) of Schedule 1 to the Criminal Records Act is amended by adding the following after subparagraph (vii): (vii.1) paragraph 171.1(1)(a) (making sexually explicit material available to child under 18 for purposes of listed offences), (vii.2) paragraph 171.1(1)(b) (making sexually explicit material available to child under 16 for purposes of listed offences), (vii.3) paragraph 171.1(1)(c) (making sexually explicit material available to child under 14 for purposes of listed offences),
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(2) Paragraph 1(a) of Schedule 1 to the Act is amended by adding the following after subparagraph (ix): (ix.1) paragraph 172.2(1)(a) (agreement or arrangement — listed sexual offence against child under 18), (ix.2) paragraph 172.2(1)(b) (agreement or arrangement — listed sexual offence against child under 16), (ix.3) paragraph 172.2(1)(c) (agreement or arrangement — listed sexual offence against child under 14),
R.S., c. N-5
National Defence Act
1996, c. 19, s. 83.1
50. Paragraph 147.1(1)(c) of the National Defence Act is replaced by the following: (c) relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, or COMING INTO FORCE
Order in council
51. The provisions of this Part, other than subsection 32(2) and section 48, come into force on a day or days to be fixed by order of the Governor in Council. PART 3 POST-SENTENCING
1992, c. 20
CORRECTIONS AND CONDITIONAL RELEASE ACT Amendments to the Act
2000, c. 12, s. 88
52. (1) The definition “victim” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following:
32 “victim” « victime »
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“victim” means a person to whom harm was done or who suffered physical or emotional damage as a result of the commission of an offence and, if the person is dead, ill or otherwise incapacitated, (a) the person’s spouse or an individual who is — or was at the time of the person’s death — cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year, (b) a relative or dependant of the person, (c) anyone who has in law or fact custody, or is responsible for the care or support, of the person, or (d) anyone who has in law or fact custody, or is responsible for the care or support, of a dependant of the person; (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“provincial parole board” « commission provinciale »
“unescorted temporary absence” « permission de sortir sans escorte » “working day” « jour ouvrable »
“provincial parole board” has the same meaning as in Part II; “unescorted temporary absence” has the same meaning as in Part II;
“working day” means a day on which offices of the federal public administration are generally open in the province in question. 53. The heading before section 3 of the Act is replaced by the following: PURPOSE AND PRINCIPLES
1995, c. 42, s. 2(F)
54. Section 4 of the Act and the heading before it are replaced by the following:
Paramount consideration
3.1 The protection of society is the paramount consideration for the Service in the corrections process.
Principles that guide Service
4. The principles that guide the Service in achieving the purpose referred to in section 3 are as follows:
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Sécurité des rues et (a) the sentence is carried out having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or sentencing process, the release policies of and comments from the National Parole Board and information obtained from victims, offenders and other components of the criminal justice system; (b) the Service enhances its effectiveness and openness through the timely exchange of relevant information with victims, offenders and other components of the criminal justice system and through communication about its correctional policies and programs to victims, offenders and the public; (c) the Service uses measures that are consistent with the protection of society, staff members and offenders and that are limited to only what is necessary and proportionate to attain the purposes of this Act; (d) offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted; (e) the Service facilitates the involvement of members of the public in matters relating to the operations of the Service; (f) correctional decisions are made in a forthright and fair manner, with access by the offender to an effective grievance procedure; (g) correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, aboriginal peoples, persons requiring mental health care and other groups; (h) offenders are expected to obey penitentiary rules and conditions governing temporary absences, work release, parole, statutory release and long-term supervision and to actively participate in meeting the objectives of their correctional plans, including by
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participating in programs designed to promote their rehabilitation and reintegration; and (i) staff members are properly selected and trained and are given (i) appropriate career development opportunities, (ii) good working conditions, including a workplace environment that is free of practices that undermine a person’s sense of personal dignity, and (iii) opportunities to participate in the development of correctional policies and programs. 55. The Act is amended by adding the following after section 15: CORRECTIONAL PLANS Objectives for offender’s behaviour
15.1 (1) The institutional head shall cause a correctional plan to be developed in consultation with the offender as soon as practicable after their reception in a penitentiary. The plan is to contain, among others, the following: (a) the level of intervention in respect of the offender’s needs; and (b) objectives for (i) the offender’s behaviour, including (A) to conduct themselves in a manner that demonstrates respect for other persons and property, (B) to obey penitentiary rules and respect the conditions governing their conditional release, if any, (ii) their participation in programs, and (iii) the meeting of their court-ordered obligations, including restitution to victims or child support.
Maintenance of plan
(2) The plan is to be maintained in consultation with the offender in order to ensure that they receive the most effective programs at the appropriate time in their sentence to rehabilitate them and prepare them for reintegration into the community, on release, as a law-abiding citizen.
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Progress towards meeting objectives
(3) In making decisions on program selection for — or the transfer or conditional release of — an inmate, the Service shall take into account the offender’s progress towards meeting the objectives of their correctional plan.
Incentive measures
15.2 The Commissioner may provide offenders with incentives to encourage them to make progress towards meeting the objectives of their correctional plans.
1995, c. 22, s. 13 (Sch. II, item 1), c. 42, s. 6
56. Subsection 16(2) of the Act is replaced by the following:
Effect of confinement
(2) Subject to subsection (3), a person who is confined in a penitentiary pursuant to an agreement entered into under paragraph (1)(b) is, despite section 743.1 of the Criminal Code, subject to all the statutes, regulations and rules applicable in the penitentiary in which the person is confined. 57. (1) Subparagraph 26(1)(b)(ii) of the Act is replaced by the following: (ii) the name and location of the penitentiary in which the sentence is being served, (ii.1) if the offender is transferred, a summary of the reasons for the transfer and the name and location of the penitentiary in which the sentence is being served, (ii.2) if the offender is to be transferred to a minimum security institution as designated by Commissioner’s Directive and it is possible to notify the victim before the transfer, a summary of the reasons for the transfer and the name and location of the institution in which the sentence is to be served, (ii.3) the programs that were designed to address the needs of the offender and contribute to their successful reintegration into the community in which the offender is participating or has participated, (ii.4) the serious disciplinary offences that the offender has committed, (2) Subparagraph 26(1)(b)(vi) of the Act is replaced by the following:
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58. The portion of section 28 of the Act before paragraph (a) is replaced by the following: Criteria for selection of penitentiary
28. If a person is or is to be confined in a penitentiary, the Service shall take all reasonable steps to ensure that the penitentiary in which they are confined is one that provides them with an environment that contains only the necessary restrictions, taking into account 59. Section 30 of the Act is amended by adding the following after subsection (2):
Subclassification
(3) Within the maximum and medium security classifications, the Commissioner may assign an inmate to a subclassification in accordance with the regulations made under paragraph 96(z.6).
Commissioner to give reasons
(4) The Commissioner or the staff member designated by the Commissioner shall give each inmate reasons, in writing, for assigning them to a subclassification or for changing that subclassification. 60. Section 31 of the Act is replaced by the following:
Purpose
31. (1) The purpose of administrative segregation is to maintain the security of the penitentiary or the safety of any person by not allowing an inmate to associate with other inmates.
Duration
(2) The inmate is to be released from administrative segregation at the earliest appropriate time.
Grounds for confining inmate in administrative segregation
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head is satisfied that there is no reasonable alternative to administrative segregation and he or she believes on reasonable grounds that
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(a) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person and allowing the inmate to associate with other inmates would jeopardize the security of the penitentiary or the safety of any person; (b) allowing the inmate to associate with other inmates would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence; or (c) allowing the inmate to associate with other inmates would jeopardize the inmate’s safety. 61. Section 37 of the Act is replaced by the following: Inmate rights
37. An inmate in administrative segregation has the same rights and conditions of confinement as other inmates, except for those that (a) can only be enjoyed in association with other inmates; or (b) cannot be enjoyed due to (i) limitations specific to the administrative segregation area, or (ii) security requirements. 62. (1) Paragraphs 40(f) and (g) of the Act are replaced by the following: (f) is disrespectful toward a person in a manner that is likely to provoke them to be violent or toward a staff member in a manner that could undermine their authority or the authority of staff members in general; (g) is abusive toward a person or intimidates them by threats that violence or other injury will be done to, or punishment inflicted on, them; (2) Section 40 of the Act is amended by striking out “or” at the end of paragraph (r) and by adding the following after that paragraph: (r.1) knowingly makes a false claim for compensation from the Crown;
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(r.2) throws a bodily substance towards another person; or 63. (1) Paragraph 44(1)(c) of the Act is replaced by the following: (c) an order to make restitution, including in respect of any property that is damaged or destroyed as a result of the offence; (2) Paragraph 44(1)(f) of the Act is replaced by the following: (f) in the case of a serious disciplinary offence, segregation from other inmates — with or without restrictions on visits with family, friends and other persons from outside the penitentiary — for a maximum of 30 days. 64. The Act is amended by adding the following after section 57: Monitoring device
57.1 (1) The Service may demand that an offender wear a monitoring device in order to monitor their compliance with a condition of a temporary absence, work release, parole, statutory release or long-term supervision that restricts their access to a person or a geographical area or requires them to be in a geographical area.
Representations
(2) An offender who is required to wear a monitoring device is to be given reasonable opportunities to make representations to the prescribed official in relation to the duration of the requirement. 65. Section 61 of the Act is amended by adding the following after subsection (3):
Exceptional power to search
(4) An institutional head may, in writing, authorize a staff member to search the vehicles at a penitentiary if the institutional head has reasonable grounds to believe that (a) there is a clear and substantial danger to the security of the penitentiary or the life or safety of persons because evidence exists that there is contraband at the penitentiary or that a criminal offence is being planned or has been committed at the penitentiary; and
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Sécurité des rues et (b) it is necessary to search the vehicles in order to locate and seize the contraband or other evidence and to avert the danger. 66. Section 84 of the Act is replaced by the following:
Release to aboriginal community
84. If an inmate expresses an interest in being released into an aboriginal community, the Service shall, with the inmate’s consent, give the aboriginal community (a) adequate notice of the inmate’s parole review or their statutory release date, as the case may be; and (b) an opportunity to propose a plan for the inmate’s release and integration into that community. 67. Subsection 93(2) of the French version of the Act is replaced by the following:
Libération anticipée
(2) Le directeur peut libérer un détenu dans les cinq jours qui précèdent celui normalement prévu pour sa libération s’il est convaincu que cette mesure facilitera sa réinsertion sociale.
1995, c. 42, s. 24(1)
68. Subsection 94(1) of the Act is replaced by the following:
Temporary stay in penitentiary
94. (1) At the request of a person who has been or is entitled to be released from a penitentiary on parole or statutory release, the institutional head may allow them to stay temporarily in the penitentiary in order to assist their rehabilitation, but the temporary stay may not extend beyond the expiration of their sentence. 69. (1) Subparagraph 96(c)(i) of the French version of the Act is replaced by the following: (i) les circonstances où une indemnité peut être versée, (2) Section 96 of the Act is amended by adding the following after paragraph (m): (m.1) authorizing the Commissioner to, by Commissioner’s Directive, make rules regarding the consequences of tampering with or refusing to wear a monitoring device referred to in section 57.1;
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(3) Paragraph 96(p) of the Act is replaced by the following: (p) authorizing the institutional head — or a staff member designated by him or her — to, in the prescribed circumstances, restrict or prohibit the entry into and removal from a penitentiary and the use by inmates of publications, video and audio materials, films and computer programs; (4) Paragraph 96(s) of the Act is replaced by the following: (s) respecting penitentiary industry, including regulations authorizing the Minister to establish advisory boards and appoint members to them and regulations providing for the remuneration of those members at rates determined by the Treasury Board and for the reimbursement of any travel and living expenses that are consistent with directives of the Treasury Board and are incurred by those members in performing their duties while away from their ordinary place of residence; (5) Paragraph 96(y) of the Act is replaced by the following: (y) respecting the procedure to be followed on the death of an inmate, including the circumstances in which the Service may pay transportation, funeral, cremation or burial expenses for a deceased inmate; 1995, c. 42, subpar. 72(a)(ii)(F)
(6) Paragraphs 96(z.6) to (z.8) of the Act are replaced by the following: (z.6) respecting the assignment to inmates of security classifications and subclassifications under section 30 and setting out the factors to be considered in determining the security classification and subclassification; (z.7) authorizing the institutional head — or a staff member designated by him or her — to, in the prescribed circumstances, monitor, intercept or prevent communications between an inmate and another person; (z.8) respecting escorted temporary absences — including the circumstances in which the releasing authority may authorize an absence under section 17 — and work releases;
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1995, c. 42, par. 70(a)(E); 1997, c. 17, s. 17(1)(F); 2003, c. 22, s. 155
70. (1) The definitions “day parole” and “working day” in subsection 99(1) of the Act are replaced by the following:
“day parole” « semi-liberté »
“day parole” means the authority granted to an offender by the Board or a provincial parole board to be at large during the offender’s sentence in order to prepare the offender for full parole or statutory release, the conditions of which require the offender to return to a penitentiary, community-based residential facility, provincial correctional facility or other location each night or at another specified interval;
“working day” « jour ouvrable »
“working day” has the same meaning as in Part I. (2) Subsection 99(1) of the Act is amended by adding the following in alphabetical order:
“parole supervisor” « surveillant de liberté conditionnelle »
“parole supervisor” has the meaning assigned by the definition “staff member” in subsection 2(1) or means a person entrusted by the Service with the guidance and supervision of an offender; 71. Section 101 of the Act is replaced by the following:
Paramount consideration
100.1 The protection of society is the paramount consideration for the Board and the provincial parole boards in the determination of all cases.
Principles guiding parole boards
101. The principles that guide the Board and the provincial parole boards in achieving the purpose of conditional release are as follows: (a) parole boards take into consideration all relevant available information, including the stated reasons and recommendations of the sentencing judge, the nature and gravity of the offence, the degree of responsibility of the offender, information from the trial or
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sentencing process and information obtained from victims, offenders and other components of the criminal justice system, including assessments provided by correctional authorities; (b) parole boards enhance their effectiveness and openness through the timely exchange of relevant information with victims, offenders and other components of the criminal justice system and through communication about their policies and programs to victims, offenders and the general public; (c) parole boards make decisions that are consistent with the protection of society and that are limited to only what is necessary and proportionate to the purpose of conditional release; (d) parole boards adopt and are guided by appropriate policies and their members are provided with the training necessary to implement those policies; and (e) offenders are provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.
72. The heading before section 103 of the French version of the Act is replaced by the following: COMMISSION DES LIBÉRATIONS CONDITIONNELLES DU CANADA 1993, c. 34, s. 57(F)
73. Section 103 of the Act is replaced by the following:
Board continued
103. The National Parole Board is continued as the Parole Board of Canada and consists of not more than 60 full-time members and a number of part-time members all of whom are appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for periods not exceeding 10 years and three years, respectively.
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74. Paragraph 115(1)(c) of the Act is replaced by the following: (c) in any other case, the longer of (i) six months, and (ii) one half of the period required to be served by the offender to reach their full parole eligibility date. 75. The Act is amended by adding the following after section 119: Definition of “sentence”
119.1 For the purposes of sections 119.2 to 120.3, and unless the context requires otherwise, “sentence” means a sentence that is not constituted under subsection 139(1).
Youth sentence
119.2 For the purposes of sections 120 to 120.3, the eligibility for parole of a young person in respect of whom a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act and who is transferred to a provincial correctional facility for adults or a penitentiary under section 89, 92 or 93 of that Act shall be determined on the basis of the total of the custody and supervision periods of the youth sentence.
1995, c. 42, s. 34; 1997, c. 17, s. 22(F); 1998, c. 35, s. 113(1); 2000, c. 24, ss. 39 and 40
76. Sections 120.1 to 120.3 of the Act are replaced by the following:
Multiple sentences on same day
120.1 (1) A person who is not serving a sentence and who receives more than one sentence on the same day is not eligible for full parole until the day on which they have served a period equal to the total of (a) the period of ineligibility in respect of any portion of the sentence constituted under subsection 139(1) that is subject to an order under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act, and (b) the period of ineligibility in respect of any other portion of that sentence.
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One or more additional consecutive sentences
(2) If an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served consecutively to the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences to be served consecutively and the additional sentences are to be served consecutively to the sentence they are serving when the additional sentences are imposed — the offender is not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods:
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(a) any remaining period of ineligibility in respect of the sentence they are serving when the additional sentence is or sentences are imposed, and (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, a period equal to the total of the periods of ineligibility in respect of all of the additional sentences. Additional sentence to be served consecutively to portion of sentence
(3) Despite subsection (2), if an offender who is serving a sentence or a sentence that was constituted under subsection 139(1) receives an additional sentence or two or more sentences that are to be served consecutively to a portion of the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences including a sentence to be served concurrently with the sentence being served and one or more sentences to be served consecutively to the additional concurrent sentence — they are not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, any remaining period of ineligibility to which they are subject and the longer of the following periods: (a) one third of the period that equals the difference between the length of the sentence that was constituted under subsection 139(1), including the additional sentence or sen2011-2012
Sécurité des rues et tences, and the length of the sentence that they are serving when the additional sentence is or sentences are imposed; or (b) the period of ineligibility of the additional sentence that is or sentences that are ordered to be served consecutively.
Additional concurrent sentence
120.2 (1) Subject to subsection (2), if an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served concurrently with the sentence they are serving when the additional sentence is imposed, they are not eligible for full parole until the day that is the later of (a) the day on which they have served the period of ineligibility in respect of the sentence they are serving when the additional sentence is imposed, and (b) the day on which they have served (i) the period of ineligibility in respect of any portion, of the sentence that includes the additional sentence as provided by subsection 139(1), that is subject to an order under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act, and (ii) the period of ineligibility in respect of any other portion of that sentence.
One or more sentences in addition to life sentence
(2) If an offender who is serving a life sentence or a sentence for an indeterminate period receives a sentence for a determinate period — or receives, on the same day, two or more sentences for a determinate period — they are not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods: (a) any remaining period of ineligibility to which they are subject, and (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, the period of ineligibility — determined in accordance
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with subsection (1) or section 120.1, as the case may be — in respect of the additional sentences.
Reduction of period of ineligibility for parole
(3) If there has been a reduction — under section 745.6 of the Criminal Code, subsection 140.3(2) of the National Defence Act or subsection 15(2) of the Crimes Against Humanity and War Crimes Act — in the number of years of imprisonment without eligibility for parole of an offender referred to in subsection (2), the offender is not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods: (a) any remaining period of ineligibility to which they would have been subject after taking into account the reduction, and (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, the period of ineligibility — determined in accordance with subsection (1) or section 120.1, as the case may be — in respect of the additional sentences.
Maximum period
120.3 Subject to section 745 of the Criminal Code, subsection 140.3(1) of the National Defence Act and subsection 15(1) of the Crimes Against Humanity and War Crimes Act, the day on which an offender is eligible for full parole shall not be later than (a) in the case of a person who is not serving a sentence and receives more than one sentence on the same day, the day on which they have served 15 years from the day on which the sentences are imposed; (b) in the case of an offender who is serving a sentence — or is serving a sentence that was constituted under subsection 139(1) — and who receives an additional sentence that changes the day on which they are eligible for parole, the day on which they have served 15 years from the day on which the additional sentence is imposed; and
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1998, c. 35, s. 115
77. (1) The portion of subsection 121(1) of the Act before paragraph (a) is replaced by the following:
Exceptional cases
121. (1) Subject to section 102 — and despite sections 119 to 120.3 of this Act, sections 746.1 and 761 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act and any order made under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act — parole may be granted at any time to an offender
(2) The portion of subsection 121(2) of the Act before paragraph (a) is replaced by the following: Exceptions
(2) Paragraphs (1)(b) to (d) do not apply to an offender who is 78. (1) Subsection 122(4) of the Act is replaced by the following:
No application for one year
(4) No application for day parole may be made until one year after the date of the Board’s decision — or until any earlier time that the regulations prescribe or the Board determines — if, following a review, the Board does not grant day parole or cancels or terminates parole.
(2) Subsection 122(6) of the Act is replaced by the following: Withdrawal of application
(6) An offender may not withdraw an application for day parole within 14 days before the commencement of the review unless the
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withdrawal is necessary and it was not possible to withdraw it earlier due to circumstances beyond their control. 1995, c. 42, par. 69(g)(E)
79. (1) Subsections 123(1) and (2) of the Act are replaced by the following:
Full parole review
123. (1) The Board shall, within the period prescribed by the regulations and for the purpose of deciding whether to grant full parole, review the case of every offender who is serving a sentence of two years or more and who is not within the jurisdiction of a provincial parole board.
Waiver of review
(2) The Board is not required under subsection (1), (5) or (5.1) to review the case of an offender who has advised the Board in writing that they do not wish to be considered for full parole and who has not in writing revoked that advice.
1995, c. 42, s. 37(2)
(2) Subsections 123(5) to (7) of the Act are replaced by the following:
Further review — Board does not grant parole
(5) If the Board decides not to grant parole following a review under subsection (1) or section 122 or if a review is not made by virtue of subsection (2), the Board shall conduct another review within two years after the later of the day on which the review took place or was scheduled to take place and thereafter within two years after that day until (a) the offender is released on full parole or on statutory release; (b) the offender’s sentence expires; or (c) less than four months remain to be served before the offender’s statutory release date.
Further review — Board terminates or cancels parole
(5.1) If the Board cancels or terminates parole, it shall conduct another review within two years after the cancellation or termination and, after that date, within two years after the day on which each preceding review takes place until (a) the offender is released on full parole or statutory release; (b) the offender’s sentence expires; or
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Sécurité des rues et (c) less than four months remain to be served before the offender’s statutory release date.
No application for one year
(6) No application for full parole may be made until one year after the date of the Board’s decision — or until any earlier time that the regulations prescribe or the Board determines — if, following a review, the Board does not grant full parole or cancels or terminates parole.
Withdrawal of application
(7) An offender may not withdraw an application for full parole within 14 days before the commencement of the review unless the withdrawal is necessary and it was not possible to withdraw it earlier due to circumstances beyond their control.
2011, c. 11, s. 4(1)
80. Subsection 124(1) of the Act is replaced by the following:
Offenders unlawfully at large
124. (1) The Board is not required to review the case of an offender who is unlawfully at large during the period prescribed by the regulations for a review under section 122 or 123 but it shall review the case as soon as possible after being informed of the offender’s return to custody.
1995, c. 42, s. 41
81. Subsection 127(5) of the Act is replaced by the following:
If parole or statutory release revoked
(5) Subject to subsections 130(4) and (6), the statutory release date of an offender whose parole or statutory release is revoked is (a) the day on which they have served two thirds of the unexpired portion of the sentence after being recommitted to custody as a result of a suspension or revocation under section 135; or (b) if an additional sentence is imposed after the offender is recommitted to custody as a result of a suspension or revocation under section 135, the day on which they have served two thirds of the portion of the sentence — including the additional sentence
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— that begins on the day on which they are recommitted and ends on the day on which the sentence expires. If additional sentence
(5.1) If an offender receives an additional sentence for an offence under an Act of Parliament and their parole or statutory release is not revoked, their statutory release date is the day on which they have served, from the earlier of the day on which they are recommitted to custody as a result of the suspension of their parole or statutory release and the day on which they are recommitted to custody as a result of the additional sentence, (a) any time remaining before the statutory release date in respect of the sentence they are serving when the additional sentence is imposed; and (b) two thirds of the period that equals the difference between the length of the sentence that includes the additional sentence and the length of the sentence that they are serving when the additional sentence is imposed.
82. The Act is amended by adding the following after section 127: Youth Criminal Justice Act
127.1 Subject to this Act, a young person in respect of whom a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act and who is transferred to a penitentiary under subsection 89(2), 92(2) or 93(2) of that Act is entitled to be released from the penitentiary by virtue of statutory release on the day on which the custodial portion of their youth sentence would have expired.
2001, c. 27, s. 242
83. Subsections 128(3) and (4) of the Act are replaced by the following:
Sentence deemed to be completed
(3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 64 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or
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Sécurité des rues et revoked, the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.
Removal order
(4) Despite this Act, the Prisons and Reformatories Act and the Criminal Code, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is not eligible for day parole or an unescorted temporary absence until they are eligible for full parole.
1995, c. 42, ss. 44(2) to (4)
84. (1) Subsections 129(2) and (3) of the Act are replaced by the following:
Referral of cases to Board
(2) The Service shall, more than six months before the day on which an offender is entitled to be released on statutory release, refer the case to the Board — and provide the Board with any information that, in the Service’s opinion, is relevant to the case — if the Service is of the opinion that (a) in the case of an offender who is serving a sentence that includes a sentence for an offence set out in Schedule I, including an offence set out in Schedule I that is punishable under section 130 of the National Defence Act, (i) the commission of the offence caused the death of or serious harm to another person and there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender’s sentence according to law, or (ii) the offence was a sexual offence involving a child and there are reasonable grounds to believe that the offender is likely to commit a sexual offence involving a child or an offence causing death or serious harm to another person before the expiration of the offender’s sentence according to law; or (b) in the case of an offender who is serving a sentence that includes a sentence for an offence set out in Schedule II, including an
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offence set out in Schedule II that is punishable under section 130 of the National Defence Act, there are reasonable grounds to believe that the offender is likely to commit a serious drug offence before the expiration of the offender’s sentence according to law. Referral of cases to Chairperson of Board
(3) If the Commissioner believes on reasonable grounds that an offender is likely, before the expiration of the sentence according to law, to commit an offence causing death or serious harm to another person, a sexual offence involving a child or a serious drug offence, the Commissioner shall refer the case to the Chairperson of the Board together with all the information in the possession of the Service that, in the Commissioner’s opinion, is relevant to the case, as soon as practicable after forming that belief. The referral must be made more than six months before the offender’s statutory release date unless (a) the Commissioner formed that belief on the basis of the offender’s behaviour or information obtained during those six months; or (b) as a result of a change in the statutory release date due to a recalculation, the statutory release date has passed or the offender is entitled to be released on statutory release during those six months. (2) Paragraph (a) of the definition “sexual offence involving a child” in subsection 129(9) of the Act is amended by adding the following after subparagraph (iv): (iv.1) section 163.1 (child pornography), (3) Paragraph (a) of the definition “sexual offence involving a child” in subsection 129(9) of the Act is amended by adding the following after subparagraph (vii): (vii.1) section 172.1 (luring a child),
1995, c. 42, s. 45(3)
85. Subsection 130(5) of the Act is replaced by the following:
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Temporary absence with escort
(5) An offender who is in custody pursuant to an order made under subsection (3) or amended under paragraph (3.3)(b) is not eligible to be released from imprisonment, except on a temporary absence with escort under Part I for medical or administrative reasons.
1995, c. 42, s. 48(1)
86. Subsection 133(4.1) of the Act is replaced by the following:
Residence requirement
(4.1) In order to facilitate the successful reintegration into society of an offender, the releasing authority may, as a condition of statutory release, require that the offender reside in a community-based residential facility or a psychiatric facility if the releasing authority is satisfied that, in the absence of such a condition, the offender will present an undue risk to society by committing, before the expiration of their sentence according to law, an offence set out in Schedule I or an offence under section 467.11, 467.12 or 467.13 of the Criminal Code.
1995, c. 42, subpar. 71(a)(xviii)(F)
87. Subsection 134(2) of the Act is repealed.
1997, c. 17, s. 30
88. Subsection 134.2(2) of the Act is repealed.
1995, c. 42, s. 50(2)
89. (1) Subsection 135(2) of the Act is replaced by the following:
Automatic suspension of parole or statutory release
(1.1) If an offender who is on parole or statutory release receives an additional sentence, other than a conditional sentence under section 742.1 of the Criminal Code that is being served in the community or an intermittent sentence under section 732 of that Act, for an offence under an Act of Parliament, their parole or statutory release, as the case may be, is suspended on the day on which the additional sentence is imposed.
Apprehension and recommitment
(1.2) If an offender’s parole or statutory release is suspended under subsection (1.1), a member of the Board or a person designated, by name or position, by the Chairperson of the Board or the Commissioner may, by warrant, authorize the offender’s apprehension and recommitment to custody until
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(a) the suspension is cancelled; (b) the parole or statutory release is terminated or revoked; or (c) the sentence expires according to law. Transfer of offender
(2) A person designated under subsection (1) may, by warrant, order the transfer to a penitentiary of an offender who is recommitted to custody under subsection (1) or (1.2) or as a result of an additional sentence referred to in subsection (1.1) in a place other than a penitentiary.
1995, c. 42, s. 50(3)
(2) The portion of subsection 135(3) of the Act before paragraph (a) is replaced by the following:
Cancellation of suspension or referral
(3) Subject to subsection (3.1), the person who signs a warrant under subsection (1) or any other person designated under that subsection shall, immediately after the recommitment of the offender, review the offender’s case and (3) Section 135 of the Act is amended by adding the following after subsection (3):
Referral to Board — additional sentence
(3.1) If an offender’s parole or statutory release is suspended under subsection (1.1), or if an offender whose parole or statutory release is suspended under subsection (1) receives an additional sentence referred to in subsection (1.1), the suspension may not be cancelled and the case is to be referred to the Board by a person designated by name or position by the Commissioner, together with an assessment of the case, within the applicable number of days set out in subsection (3).
1995, c. 42, ss. 50(4) and (5)
(4) Subsection 135(5) of the Act is replaced by the following:
Review by Board — sentence of two years or more
(5) The Board shall, on the referral to it of the case of an offender who is serving a sentence of two years or more, review the case and — within the period prescribed by the regulations unless the Board, at the offender’s request, adjourns the hearing or a member of the
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Sécurité des rues et Board or a person designated, by name or position, by the Chairperson postpones the review — (a) if the Board is satisfied that the offender will, by reoffending before the expiration of their sentence according to law, present an undue risk to society, (i) terminate the parole or statutory release if the undue risk is due to circumstances beyond the offender’s control, and (ii) revoke it in any other case; (b) if the Board is not satisfied as in paragraph (a), cancel the suspension; and (c) if the offender is no longer eligible for parole or entitled to be released on statutory release, cancel the suspension or terminate or revoke the parole or statutory release. (5) Section 135 of the Act is amended by adding the following after subsection (6.1):
If parole eligibility date in future
(6.2) If the Board cancels a suspension of parole under subsection (5) and the day on which the offender is eligible for parole, determined in accordance with any of sections 119 to 120.3, is later than the day on which the parole suspension is cancelled, the day or full parole is, subject to subsection (6.3), resumed on the day parole eligibility date or the full parole eligibility date, as the case may be.
Cancellation of parole — parole eligibility date in future
(6.3) If an offender’s parole is to resume under subsection (6.2), the Board may — before the parole resumes and after a review of the case based on information with which it could not reasonably have been provided at the time the parole suspension was cancelled — cancel the parole or, if the offender has been released, terminate the parole.
Review
(6.4) If the Board exercises its power under subsection (6.3) in the absence of a hearing, it shall, within the period prescribed by the regulations, review — and either confirm or cancel — its decision.
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1995, c. 22, s. 18 (Sch. IV, item 19), c. 42, s. 50(7); 1997, c. 17, s. 32.1
(6) Subsections 135(9.1) to (9.5) of the Act are replaced by the following:
Non-application of subsection (1.1)
(9.1) Unless the lieutenant governor in council of a province in which there is a provincial parole board makes a declaration under subsection 113(1) that subsection (1.1) applies in respect of offenders under the jurisdiction of that provincial parole board, subsection (1.1) does not apply in respect of such offenders, other than an offender who
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(a) is serving a sentence in a provincial correctional facility pursuant to an agreement entered into under paragraph 16(1)(a); or (b) as a result of receiving an additional sentence referred to in subsection (1.1), is required, under section 743.1 of the Criminal Code, to serve the sentence in a penitentiary. Parole inoperative
(9.2) If an offender to whom subsection (1.1) does not apply, and who is on parole that has not been revoked or terminated, receives an additional sentence that is to be served consecutively with the sentence the offender was serving when the additional sentence was imposed, the parole becomes inoperative and the offender shall be reincarcerated until the day on which the offender has served, from the day on which the additional sentence was imposed, the period of ineligibility in relation to the additional sentence. On that day, the parole is resumed, subject to the provisions of this Act, unless, before that day, the parole has been revoked or terminated.
1997, c. 17, s. 33
90. The portion of subsection 135.1(6) of the Act before paragraph (c) is replaced by the following:
Review by Board
(6) The Board shall, on the referral to it of the case of an offender, review the case and, before the end of the period referred to in subsection (2), (a) cancel the suspension, if the Board is satisfied that, in view of the offender’s behaviour while being supervised, the resumption of long-term supervision would not constitute a substantial risk to society by
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1997, c. 17, s. 33
91. Section 136 of the Act is replaced by the following:
Warrant for apprehension and recommitment
136. A member of the Board or a person designated, by name or position, by the Chairperson of the Board or the Commissioner may, by warrant, authorize an offender’s apprehension and recommitment to custody if (a) their parole is terminated or revoked or becomes inoperative under subsection 135(9.2); or (b) their statutory release is terminated or revoked or they are no longer entitled to be released on statutory release as a result of a change to their statutory release date under subsection 127(5.1). 92. The Act is amended by adding the following after section 137:
Arrest without warrant — breach of conditions
137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer (a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to (i) establish the identity of the person, or (ii) prevent the continuation or repetition of the breach; and (b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.
1995, c. 42, s. 53
93. Subsection 138(6) of the Act is replaced by the following:
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Effect of revocation on statutory release
(6) Subject to subsections 130(4) and (6), an offender whose parole or statutory release has been revoked is entitled to be released on statutory release in accordance with subsection 127(5).
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94. The heading before section 139 of the Act is replaced by the following: MERGED SENTENCES 1995, c. 42, s. 54
95. Subsection 139(1) of the Act is replaced by the following:
Multiple sentences
139. (1) For the purposes of the Criminal Code, the Prisons and Reformatories Act, the International Transfer of Offenders Act and this Act, a person who is subject to two or more sentences is deemed to have been sentenced to one sentence beginning on the first day of the first of those sentences to be served and ending on the last day of the last of them to be served.
2011, c. 11, s. 6
96. (1) Paragraph 140(1)(b) of the Act is replaced by the following: (b) the first review for full parole under subsection 123(1) and subsequent reviews under subsection 123(5) or (5.1); (2) Section 140 of the Act is amended by adding the following after subsection (9):
Presentation of statements
(10) If they are attending a hearing as an observer, (a) a victim may present a statement describing the harm done to them or loss suffered by them as a result of the commission of the offence and the continuing impact of the commission of the offence — including any safety concerns — and commenting on the possible release of the offender; and (b) a person referred to in subsection 142(3) may present a statement describing the harm done to them or loss suffered by them as a result, and the continuing impact, of any act of the offender in respect of which a complaint was made to the police or Crown attorney or an information laid under the
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Presentation of statements in absence of person
(11) If a victim or a person referred to in subsection 142(3) is not attending a hearing, their statement may be presented at the hearing in a format that the Board considers appropriate.
Communication of statement in writing
(12) A victim or a person referred to in subsection 142(3) shall, before the hearing, deliver to the Board a transcript of the statement that they plan to present under subsection (10) or (11). 97. Subsection 141(3) of the Act is replaced by the following:
Waiver and postponement
(3) An offender may waive the right to be provided with the information or summary or to have it provided within the period referred to in subsection (1). If they waive the latter right and they receive information so late that it is not possible for them to prepare for the review, they are entitled to a postponement and a member of the Board or a person designated by name or position by the Chairperson of the Board shall, at the offender’s request, postpone the review for the period that the member or person determines. If the Board receives information so late that it is not possible for it to prepare for the review, a member of the Board or a person designated by name or position by the Chairperson of the Board may postpone the review for any reasonable period that the member or person determines.
1995, c. 42, subpar. 71(a)(xxi)(F)
98. (1) Subparagraph 142(1)(b)(v) of the Act is replaced by the following: (v) any of the conditions attached to the offender’s unescorted temporary absence, parole or statutory release and the reasons for any unescorted temporary absence, (2) Paragraph 142(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (vii), by adding “and” at the end of subparagraph (viii) and by adding the following after subparagraph (viii):
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99. Subsection 144(1) of the Act is replaced by the following: Registry of decisions
144. (1) The Board shall maintain a registry of the decisions rendered by it under this Part or under paragraph 746.1(2)(c) or (3)(c) of the Criminal Code and its reasons for those decisions. 100. Subsection 146(1) of the Act is replaced by the following:
Constitution of Appeal Division
146. (1) There shall be a division of the Board known as the Appeal Division, consisting of not more than six full-time members — one of whom shall be designated Vice-Chairperson, Appeal Division — and a number of part-time members designated in both cases by the Governor in Council, on the recommendation of the Minister, from among the members appointed under section 103. 101. The Act is amended by adding the following after section 154:
Board members not to be witnesses
154.1 A member of the Board is not a competent or compellable witness in any civil proceedings in respect of any matter coming to their knowledge in the course of the exercise or purported exercise of their functions under this or any other Act of Parliament. 102. Section 157 of the Act is amended by adding the following in alphabetical order:
“statutory release” « libération d’office » 2001, c. 41, s. 91
“statutory release” has the same meaning as in Part II. 103. (1) Paragraph 1(a) of Schedule I to the Act is replaced by the following: (a) sections 46 and 47 (high treason); (a.01) section 75 (piratical acts); (2) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (a.5):
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Sécurité des rues et (a.6) section 83.18 (participation in activity of terrorist group); (a.7) section 83.19 (facilitating terrorist activity); (a.8) section 83.2 (commission of offence for terrorist group); (a.9) section 83.21 (instructing to carry out activity for terrorist group); (a.91) section 83.22 (instructing to carry out terrorist activity); (3) Paragraph 1(c) of Schedule I to the Act is replaced by the following: (c) section 87 (pointing a firearm); (c.1) section 98 (breaking and entering to steal firearm); (c.2) section 98.1 (robbery to steal firearm); (4) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (g): (g.1) section 153.1 (sexual exploitation of person with disability); (5) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (j): (j.1) section 163.1 (child pornography); (6) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (m): (m.1) section 172.1 (luring a child); (7) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (n): (n.1) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of 18 years); (8) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (r):
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(r.1) section 244.1 (causing bodily harm with intent — air gun or pistol); (r.2) section 244.2 (discharging firearm — recklessness); (r.3) section 245 (administering noxious thing); (9) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (s): (s.01) section 247 (traps likely to cause bodily harm); (s.02) section 248 (interfering with transportation facilities); (10) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (s.1): (s.11) subsections 249.1(3) and (4) (flight causing bodily harm or death); (s.12) section 249.2 (causing death by criminal negligence (street racing)); (s.13) section 249.3 (causing bodily harm by criminal negligence (street racing)); (s.14) section 249.4 (dangerous operation of motor vehicle while street racing); (11) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (s.3): (s.4) section 264.1 (uttering threats); (12) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (w): (w.1) section 269.1 (torture); (13) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (x): (x.1) section 270.01 (assaulting peace officer with weapon or causing bodily harm); (x.2) section 270.02 (aggravated assault of peace officer);
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Sécurité des rues et (14) Section 1 of Schedule I to the Act is amended by adding the following after paragraph (z.1): (z.11) section 273.3 (removal of child from Canada); (15) Paragraph 1(z.2) of Schedule I to the English version of the Act is replaced by the following: (z.2) section 279 (kidnapping and forcible confinement); (16) Paragraph 1(z.3) of Schedule I to the Act is replaced by the following: (z.3) sections 343 and 344 (robbery); (z.301) section 346 (extortion); 104. Schedule I to the Act is amended by adding the following after section 5: 5.1 If prosecuted by way of indictment, the offence of pointing a firearm, as provided for by subsection 86(1) of the Criminal Code, as it read immediately before December 1, 1998. Transitional Provisions
Recalculation of statutory release date
105. Subsection 127(5.1) of the Corrections and Conditional Release Act, as enacted by section 81, applies only in respect of an offender who is on parole or statutory release and who receives an additional sentence for an offence under an Act of Parliament on or after the day on which this section comes into force.
Detention
106. Subparagraph 129(2)(a)(ii) of the Corrections and Conditional Release Act and subparagraphs (a)(iv.1) and (vii.1) of the definition “sexual offence involving a child” in subsection 129(9) of that Act, as enacted by section 84, apply in respect of an offender who is sentenced in respect of an offence referred to in any of those subparagraphs, even if they were sentenced, committed or transferred to a penitentiary before the day on which this section comes into force.
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Automatic suspension, cancellation or revocation
107. Subsections 135(1.1) to (3.1), (6.2) to (6.4), (9.1) and (9.2) of the Corrections and Conditional Release Act, as enacted or amended by section 89, apply only in respect of an offender who receives an additional sentence on or after the day on which this section comes into force.
R.S., c. C-47
Safe Streets and
CRIMINAL RECORDS ACT 108. The long title of the Criminal Records Act is replaced by the following: An Act to provide for the suspension of the records of persons who have been convicted of offences and have subsequently rehabilitated themselves
1992, c. 22, s. 1(1); 2010, c. 5, par. 7.1(a)(E) and 7.3(a)(F)
109. (1) The definition “pardon” in subsection 2(1) of the Act is repealed.
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: “child” « enfant »
“Executive Committee” « Bureau »
“record suspension” « suspension du casier »
“service offence” « infraction d’ordre militaire »
“child” means a person who is less than 18 years of age; “Executive Committee” means the Executive Committee of the Board referred to in subsection 151(1) of the Corrections and Conditional Release Act; “record suspension” means a measure ordered by the Board under section 4.1; “service offence” has the same meaning as in subsection 2(1) of the National Defence Act;
1992, c. 22, s. 2(1); 2010, c. 5, ss. 7.2(E) and 7.5(F)
110. Section 2.1 of the Act is replaced by the following:
Jurisdiction of the Board
2.1 The Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.
Sécurité des rues et
2011-2012 1992, c. 22, s. 2(1)
111. (1) Subsection 2.2(1) of the Act is replaced by the following:
Quorum
2.2 (1) An application for a record suspension shall be determined, and a decision whether to revoke a record suspension under section 7 shall be made, by a panel that consists of one member of the Board.
1992, c. 22, ss. 2(1) and (2)(E)
(2) Subsection 2.2(2) of the English version of the Act is replaced by the following:
Panel of two or more persons
(2) The Chairperson of the Board may direct that the number of members of the Board required to constitute a panel to determine an application for a record suspension, to decide whether to revoke a record suspension under section 7 or to determine any class of those applications or make any class of those decisions shall be greater than one. 112. The Act is amended by adding the following after section 2.2: EFFECT OF RECORD SUSPENSION
Effect of record suspension
2.3 A record suspension (a) is evidence of the fact that (i) the Board, after making inquiries, was satisfied that the applicant was of good conduct, and (ii) the conviction in respect of which the record suspension is ordered should no longer reflect adversely on the applicant’s character; and (b) unless the record suspension is subsequently revoked or ceases to have effect, requires that the judicial record of the conviction be kept separate and apart from other criminal records and removes any disqualification or obligation to which the applicant is, by reason of the conviction, subject under any Act of Parliament — other than section 109, 110, 161, 259, 490.012, 490.019 or 490.02901 of the Criminal Code, subsection 147.1(1) or section 227.01 or 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
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113. The heading before section 3 of the Act is replaced by the following: APPLICATION FOR RECORD SUSPENSION 1992, c. 22, s. 3; 2004, c. 21, par. 40(1)(b)
114. Subsection 3(1) of the Act is replaced by the following:
Application for record suspension
3. (1) Subject to section 4, a person who has been convicted of an offence under an Act of Parliament may apply to the Board for a record suspension in respect of that offence, and a Canadian offender, within the meaning of the International Transfer of Offenders Act, who has been transferred to Canada under that Act may apply to the Board for a record suspension in respect of the offence of which he or she has been found guilty.
1997, c. 17, s. 38; 2010, c. 5, s. 2
115. Sections 4 and 4.01 of the Act are replaced by the following:
Restrictions on application for record suspension
4. (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence: (a) 10 years, in the case of an offence that is prosecuted by indictment or is a service offence for which the offender was punished by a fine of more than five thousand dollars, detention for more than six months, dismissal from Her Majesty’s service, imprisonment for more than six months or a punishment that is greater than imprisonment for less than two years in the scale of punishments set out in subsection 139(1) of the National Defence Act; or (b) five years, in the case of an offence that is punishable on summary conviction or is a service offence other than a service offence referred to in paragraph (a).
Ineligible persons
(2) Subject to subsection (3), a person is ineligible to apply for a record suspension if he or she has been convicted of
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Sécurité des rues et (a) an offence referred to in Schedule 1; or (b) more than three offences each of which either was prosecuted by indictment or is a service offence that is subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.
Exception
(3) A person who has been convicted of an offence referred to in Schedule 1 may apply for a record suspension if the Board is satisfied that (a) the person was not in a position of trust or authority towards the victim of the offence and the victim was not in a relationship of dependency with him or her; (b) the person did not use, threaten to use or attempt to use violence, intimidation or coercion in relation to the victim; and (c) the person was less than five years older than the victim.
Onus — exception
(4) The person has the onus of satisfying the Board that the conditions referred to in subsection (3) are met.
Amendment of Schedule 1
(5) The Governor in Council may, by order, amend Schedule 1 by adding or deleting a reference to an offence.
Exception — long-term supervision
4.01 The period during which a person is supervised under an order for long-term supervision, within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, is not included in the calculation of the period referred to in subsection 4(1).
2010, c. 5, s. 3
116. (1) Subsections 4.1(1) and (2) of the Act are replaced by the following:
Record suspension
4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that (a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and
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(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
Onus on applicant
(2) In the case of an offence referred to in paragraph 4(1)(a), the applicant has the onus of satisfying the Board that the record suspension would provide a measurable benefit to the applicant and would sustain his or her rehabilitation in society as a law-abiding citizen.
2010, c. 5, s. 3
(2) The portion of subsection 4.1(3) of the Act before paragraph (a) is replaced by the following:
Factors
(3) In determining whether ordering the record suspension would bring the administration of justice into disrepute, the Board may consider
2010, c. 5, s. 3
(3) Paragraph 4.1(3)(c) of the Act is replaced by the following: (c) information relating to the applicant’s criminal history and, in the case of a service offence, to any service offence history of the applicant that is relevant to the application; and
2010, c. 5, s. 4
117. (1) Subsections 4.2(1) and (2) of the Act are replaced by the following:
Inquiries
4.2 (1) On receipt of an application for a record suspension, the Board (a) shall cause inquiries to be made to ascertain whether the applicant is eligible to make the application; (b) if the applicant is eligible, shall cause inquiries to be made to ascertain the applicant’s conduct since the date of the conviction; and
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Entitlement to make representations
(2) If the Board proposes to refuse to order a record suspension, it shall notify in writing the applicant of its proposal and advise the applicant that he or she is entitled to make, or have made on his or her behalf, any representations to the Board that he or she believes relevant either in writing or, with the Board’s authorization, orally at a hearing held for that purpose.
2000, c. 1, s. 2
(2) Subsection 4.2(4) of the Act is replaced by the following:
Waiting period
(4) An applicant may not re-apply for a record suspension until the expiration of one year after the day on which the Board refuses to order a record suspension. 118. The Act is amended by adding the following after section 4.3:
Functions of Executive Committee
4.4 The Executive Committee shall, after the consultation with Board members that it considers appropriate, adopt policies relating to applications for record suspensions, including related inquiries and proceedings.
1992, c. 22, s. 5; 2000, c. 1, s. 3; 2010, c. 5, s. 5, c. 17, s. 64
119. Section 5 of the Act and the heading before it are repealed.
2000, c. 1, s. 5(E); 2010, c. 5, par. 7.1(b)(E)
120. Subsections 6(1) and (2) of the Act are replaced by the following:
Records to be delivered to Commissioner
6. (1) The Minister may, by order in writing addressed to a person having the custody or control of a judicial record of a conviction in respect of which a record suspension has been ordered, require that person to deliver that record into the Commissioner’s custody.
Records to be kept separate and not to be disclosed
(2) A record of a conviction in respect of which a record suspension has been ordered that is in the custody of the Commissioner or of any department or agency of the Government of
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Canada shall be kept separate and apart from other criminal records. No such record shall be disclosed to any person, nor shall the existence of the record or the fact of the conviction be disclosed to any person, without the prior approval of the Minister. 1992, c. 22, s. 6
121. The portion of section 6.2 of the Act before paragraph (a) is replaced by the following:
Disclosure to police forces
6.2 Despite sections 6 and 6.1, the name, date of birth and last known address of a person whose record is suspended under section 4.1 or who has received a discharge referred to in section 6.1 may be disclosed to a police force if a fingerprint, identified as that of the person, is found
2000, c. 1, s. 6; 2010, c. 5, s. 6(1)
122. (1) Subsections 6.3(1) to (3) of the Act are replaced by the following:
Definition of “vulnerable person”
6.3 (1) In this section, “vulnerable person” means a person who, because of his or her age, a disability or other circumstances, whether temporary or permanent, (a) is in a position of dependency on others; or (b) is otherwise at a greater risk than the general population of being harmed by a person in a position of trust or authority towards them.
Notation of records
(2) The Commissioner shall make, in the automated criminal conviction records retrieval system maintained by the Royal Canadian Mounted Police, a notation enabling a member of a police force or other authorized body to determine whether there is a record of an individual’s conviction for an offence listed in Schedule 2 in respect of which a record suspension has been ordered.
Verification
(3) At the request of any person or organization responsible for the well-being of a child or vulnerable person and to whom or to which an application is made for a paid or volunteer position, a member of a police force or other
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2010, c. 5, s. 6(2)
(2) Subsection 6.3(9) of the Act is replaced by the following:
Amendment of Schedule 2
(9) The Governor in Council may, by order, amend Schedule 2 by adding or deleting a reference to an offence.
2000, c. 1, s. 6; 2010, c. 5, par. 7.1(c)(E) and s. 7.4(F)
123. Section 6.4 of the Act is replaced by the following:
Operation of section 6.3
6.4 Section 6.3 applies in respect of a record of a conviction for any offence in respect of which a record suspension has been ordered regardless of the date of the conviction.
1992, c. 22, s. 7; 2010, c. 5, par. 7.1(d)(E)
124. Section 7 of the Act is replaced by the following:
Revocation of record suspension
7. A record suspension may be revoked by the Board (a) if the person to whom it relates is subsequently convicted of an offence referred to in paragraph 4(1)(b), other than an offence referred to in subparagraph 7.2(a)(ii); (b) on evidence establishing to the satisfaction of the Board that the person to whom it relates is no longer of good conduct; or (c) on evidence establishing to the satisfaction of the Board that the person to whom it relates knowingly made a false or deceptive statement in relation to the application for the record suspension, or knowingly concealed some material particular in relation to that application.
2000, c. 1, s. 7; 2010, c. 5, par. 7.1(e)(E)
125. (1) Subsection 7.1(1) of the Act is replaced by the following:
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Entitlement to make representations
7.1 (1) If the Board proposes to revoke a record suspension, it shall notify in writing the person to whom it relates of its proposal and advise that person that he or she is entitled to make, or have made on his or her behalf, any representations to the Board that he or she believes relevant either in writing or, with the Board’s authorization, orally at a hearing held for that purpose.
2000, c. 1, s. 7
(2) Subsection 7.1(2) of the English version of the Act is replaced by the following:
Board to consider representations
(2) The Board shall, before making its decision, consider any representations made to it within a reasonable time after the notification is given to a person under subsection (1).
2000, c. 1, s. 7; 2010, c. 5, s. 6.1(E) and par. 7.1(f)(E) and 7.3(b)(F)
126. Section 7.2 of the Act is replaced by the following:
Cessation of effect of record suspension
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7.2 A record suspension ceases to have effect if (a) the person to whom it relates is subsequently convicted of (i) an offence referred to in paragraph 4(1)(a), or (ii) any other offence under the Criminal Code, except subsection 255(1), or under the Controlled Drugs and Substances Act, the Firearms Act, Part III or IV of the Food and Drugs Act or the Narcotic Control Act, chapter N-1 of the Revised Statutes of Canada, 1985, that is punishable either on conviction on indictment or on summary conviction; or (b) the Board is convinced by new information that the person was not eligible for the record suspension when it was ordered.
1992, c. 22, s. 8(1); 2010, c. 5, par. 7.1(g)(E)
127. The portion of section 8 of the Act before paragraph (a) is replaced by the following:
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Sécurité des rues et 8. No person shall use or authorize the use of an application form for or relating to any of the following matters that contains a question that by its terms requires the applicant to disclose a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect: 128. The Act is amended by adding the following after section 9:
Disclosure of decisions
9.01 The Board may disclose decisions that order or refuse to order record suspensions. However, it may not disclose information that could reasonably be expected to identify an individual unless the individual authorizes the disclosure in writing.
2000, c. 1, s. 8
129. (1) Paragraph 9.1(c) of the English version of the Act is replaced by the following: (c) respecting the consent given by applicants to the verification of records and the disclosure of information contained in them, including the information to be given to applicants before obtaining their consent and the manner in which consent is to be given, for the purposes of subsections 6.3(3) and (7); (2) Section 9.1 of the Act is amended by striking out “and” at the end of paragraph (c.1) and by adding the following after that paragraph: (c.2) respecting the disclosure of decisions under section 9.01; and 130. The Act is amended by adding the following after section 10: REPORT TO PARLIAMENT
Annual report
11. (1) The Board shall, within three months after the end of each fiscal year, submit to the Minister a report for that year containing the following information: (a) the number of applications for record suspensions made in respect of the offences referred to in each of paragraphs 4(1)(a) and (b);
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(b) the number of record suspensions that the Board ordered or refused to order, in respect of the offences referred to in each of paragraphs 4(1)(a) and (b); (c) the number of record suspensions ordered, categorized by the offence to which they relate and, if applicable, the province of residence of the applicant; and (d) any other information required by the Minister. Tabling of report
(2) The Minister shall cause the report to be laid before each House of Parliament on any of the first 30 days on which that House is sitting after the day on which the Minister receives it. 131. Schedule 1 to the Act is amended by replacing the references after the heading “SCHEDULE 1” with the following: (Subsections 4(2), (3) and (5))
2010, c. 5, s. 9
132. Subparagraphs 1(b)(i) and (ii) of Schedule 1 to the Act are replaced by the following: (i) subsection 146(1) (sexual intercourse with a female under 14), (ii) subsection 146(2) (sexual intercourse with a female 14 or more but under 16), (iii) section 151 (seduction of a female 16 or more but under 18), (iv) section 166 (parent or guardian procuring defilement), and (v) section 167 (householder permitting defilement);
2010, c. 5, s. 9
133. Item 3 of Schedule 1 to the Act is repealed.
2000, c. 1, s. 8.1; 2008, c. 6, s. 58; 2010, c. 5, s. 8
134. Schedule 2 to the Act is replaced by the Schedule 2 set out in the schedule to this Act.
2011-2012 2004, c. 21
Sécurité des rues et INTERNATIONAL TRANSFER OF OFFENDERS ACT 135. Section 3 of the International Transfer of Offenders Act is replaced by the following:
Purpose
3. The purpose of this Act is to enhance public safety and to contribute to the administration of justice and the rehabilitation of offenders and their reintegration into the community by enabling offenders to serve their sentences in the country of which they are citizens or nationals. 136. (1) Subsection 10(1) of the Act is replaced by the following:
Factors — Canadian offenders
10. (1) In determining whether to consent to the transfer of a Canadian offender, the Minister may consider the following factors: (a) whether, in the Minister’s opinion, the offender’s return to Canada will constitute a threat to the security of Canada; (b) whether, in the Minister’s opinion, the offender’s return to Canada will endanger public safety, including (i) the safety of any person in Canada who is a victim, as defined in subsection 2(1) of the Corrections and Conditional Release Act, of an offence committed by the offender, (ii) the safety of any member of the offender’s family, in the case of an offender who has been convicted of an offence against a family member, or (iii) the safety of any child, in the case of an offender who has been convicted of a sexual offence involving a child; (c) whether, in the Minister’s opinion, the offender is likely to continue to engage in criminal activity after the transfer; (d) whether, in the Minister’s opinion, the offender left or remained outside Canada with the intention of abandoning Canada as their place of permanent residence;
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(e) whether, in the Minister’s opinion, the foreign entity or its prison system presents a serious threat to the offender’s security or human rights; (f) whether the offender has social or family ties in Canada; (g) the offender’s health; (h) whether the offender has refused to participate in a rehabilitation or reintegration program; (i) whether the offender has accepted responsibility for the offence for which they have been convicted, including by acknowledging the harm done to victims and to the community; (j) the manner in which the offender will be supervised, after the transfer, while they are serving their sentence; (k) whether the offender has cooperated, or has undertaken to cooperate, with a law enforcement agency; or (l) any other factor that the Minister considers relevant. (2) The portion of subsection 10(2) of the Act before paragraph (a) is replaced by the following: Factors — Canadian and foreign offenders
(2) In determining whether to consent to the transfer of a Canadian or foreign offender, the Minister may consider the following factors: CONSEQUENTIAL AMENDMENTS
R.S., c. H-6
Canadian Human Rights Act
1998, c. 9, s. 9
137. Section 2 of the English version of the Canadian Human Rights Act is replaced by the following:
Purpose
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of
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1996, c. 14, s. 2
138. Subsection 3(1) of the English version of the Act is replaced by the following:
Prohibited grounds of discrimination
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
1992, c. 22, s. 13
139. (1) The definition “conviction for which a pardon has been granted” in section 25 of the English version of the Act is repealed.
1992, c. 22, s. 13
(2) The definition “état de personne graciée” in section 25 of the French version of the Act is replaced by the following:
« état de personne graciée » “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered”
« état de personne graciée » État d’une personne physique qui a obtenu un pardon accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 du Code criminel ou une suspension du casier au titre de la Loi sur le casier judiciaire, qui n’a pas été révoqué ni annulé. (3) Section 25 of the English version of the Act is amended by adding the following in alphabetical order:
“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” « état de personne graciée »
“conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” means a conviction of an individual for an offence in respect of which a pardon has been granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code or a record suspension has been ordered under the Criminal Records Act, that has not been revoked or ceased to have effect;
78 1992, c. 47
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140. Section 63 of the French version of the Contraventions Act is replaced by the following: Pas de casier judiciaire
63. Quiconque est déclaré coupable d’une contravention n’est pas coupable d’une infraction criminelle et une contravention ne constitue pas une infraction pour l’application de la Loi sur le casier judiciaire, sauf si elle aboutit à une déclaration de culpabilité par voie de mise en accusation.
R.S., c. C-46
Criminal Code
2004, c. 10, s. 20
141. (1) The definition “réhabilitation” in subsection 490.011(1) of the French version of the Criminal Code is repealed.
2004, c. 10, s. 20
(2) The definition “pardon” in subsection 490.011(1) of the English version of the Act is replaced by the following:
“pardon” « pardon »
“pardon” means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 that has not been revoked. (3) Subsection 490.011(1) of the Act is amended by adding the following in alphabetical order:
“record suspension” « suspension du casier »
“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect. (4) Subsection 490.011(1) of the French version of the Act is amended by adding the following in alphabetical order:
« pardon » “pardon”
« pardon » Pardon conditionnel accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 qui n’a pas été révoqué.
2007, c. 5, s. 15
142. (1) Subsection 490.015(3) of the Act is replaced by the following:
Pardon or record suspension
(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
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2007, c. 5, s. 15
(2) Subsection 490.015(5) of the Act is replaced by the following:
Re-application
(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section 490.012 of this Act or section 227.01 of the National Defence Act after the previous application was made.
2004, c. 10, s. 20
143. Paragraph 490.022(2)(c) of the Act is replaced by the following: (c) the day on which a person referred to in paragraph 490.02(1)(b) provides satisfactory proof of a pardon or record suspension to a person who collects information, as defined in subsection 3(1) of the Sex Offender Information Registration Act, at a registration centre.
2007, c. 5, s. 24; 2010, c. 17, s. 16(2)
144. Subsections 490.026(4) and (5) of the Act are replaced by the following:
Pardon or record suspension
(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
Re-application
(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.02901, under section 227.06 of the National Defence Act or under section 36.1 of the International Transfer of Offenders Act or to an order under section 490.012 or under section 227.01 of the National Defence Act.
1991, c. 43, s. 4
145. Paragraph 672.35(c) of the Act is replaced by the following:
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(c) the National Parole Board or any provincial parole board may take the verdict into account in considering an application by the accused for parole or for a record suspension under the Criminal Records Act in respect of any other offence.
2000, c. 1, s. 9
146. Subsection 750(4) of the Act is replaced by the following:
Application for restoration of privileges
(4) A person to whom subsection (3) applies may, at any time before a record suspension for which he or she has applied is ordered under the Criminal Records Act, apply to the Governor in Council for the restoration of one or more of the capacities lost by the person by virtue of that subsection.
1997, c. 17, s. 4; 2008, c. 6, s. 45(3)(F)
147. Subsection 753.2(3) of the Act is replaced by the following:
Application for reduction in period of longterm supervision
(3) An offender who is required to be supervised, a member of the National Parole Board or, on approval of that Board, the offender’s parole supervisor, as defined in subsection 99(1) of the Corrections and Conditional Release Act, may apply to a superior court of criminal jurisdiction for an order reducing the period of long-term supervision or terminating it on the ground that the offender no longer presents a substantial risk of reoffending and thereby being a danger to the community. The onus of proving that ground is on the applicant.
1998, c. 37
DNA Identification Act 148. Subsection 10(8) of the DNA Identification Act is replaced by the following:
When record suspension is in effect
(8) Despite anything in this section, stored bodily substances of a person in respect of whom a record suspension, as defined in subsection 2(1) of the Criminal Records Act, is in effect shall be kept separate and apart from other stored bodily substances, and no such
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Sécurité des rues et bodily substance shall be used for forensic DNA analysis, nor shall the existence of such a bodily substance be communicated to any person.
2001, c. 27
Immigration and Refugee Protection Act 149. Paragraph 36(3)(b) of the Immigration and Refugee Protection Act is replaced by the following: (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a record suspension has been ordered and has not been revoked or ceased to have effect under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; 150. Paragraph 53(f) of the Act is replaced by the following: (f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and
2010, c. 5
Limiting Pardons for Serious Crimes Act 151. The Limiting Pardons for Serious Crimes Act is amended by adding the following after section 11:
Pardons in effect — Criminal Records Act
12. The Criminal Records Act, as it read immediately before the day on which this Act comes into force, applies to a pardon that was granted or issued before that day and that has not been revoked or ceased to have effect.
Coming into force
13. Section 12 is deemed to have come into force on June 29, 2010.
R.S., c. N-5
National Defence Act
1991, c. 43, s. 18
152. Paragraph 202.14(2)(h) of the National Defence Act is replaced by the following: (h) the National Parole Board or any provincial parole board may take the finding into account in considering an application by that
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person for parole or for a record suspension under the Criminal Records Act in respect of any other offence.
2007, c. 5, s. 4
153. (1) The definition “réhabilitation” in section 227 of the French version of the Act is repealed.
2007, c. 5, s. 4
(2) The definition “pardon” in section 227 of the English version of the Act is replaced by the following:
“pardon” « pardon »
“pardon” means a conditional pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code that has not been revoked. (3) Section 227 of the Act is amended by adding the following in alphabetical order:
“record suspension” « suspension du casier »
“record suspension” means a record suspension, as defined in subsection 2(1) of the Criminal Records Act, that has not been revoked or ceased to have effect. (4) Section 227 of the French version of the Act is amended by adding the following in alphabetical order:
« pardon » “pardon”
« pardon » Pardon conditionnel accordé en vertu de la prérogative royale de clémence que possède Sa Majesté ou de l’article 748 du Code criminel qui n’a pas été révoqué.
2007, c. 5, s. 4
154. (1) Subsection 227.03(3) of the Act is replaced by the following:
Pardon or record suspension
(3) Despite subsections (1) and (2), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
2007, c. 5, s. 4
(2) Subsection 227.03(5) of the Act is replaced by the following:
Re-application
(5) A person whose application is refused may re-apply if five years have elapsed since they made the previous application. They may also re-apply once they receive a pardon or once a record suspension is ordered. However, they may not re-apply under this subsection if an order is made with respect to them under section
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Sécurité des rues et 227.01 of this Act or section 490.012 of the Criminal Code after the previous application was made.
2007, c. 5, s. 4; 2010, c. 17, s. 53(2)
155. Subsections 227.12(4) and (5) of the Act are replaced by the following:
Pardon or record suspension
(4) Despite subsections (2) and (3), a person may apply for a termination order once they receive a pardon or once a record suspension is ordered.
Re-application
(5) A person whose application is refused may apply again if five years have elapsed since they made the previous application. They may also apply again once they receive a pardon or once a record suspension is ordered. However, they may not apply again if, after the previous application was made, they become subject to an obligation under section 490.019 or 490.02901 of the Criminal Code or under section 36.1 of the International Transfer of Offenders Act or to an order under section 227.01 of this Act or section 490.012 of the Criminal Code.
2002, c. 1
Youth Criminal Justice Act 156. Paragraph 82(1)(d) of the Youth Criminal Justice Act is replaced by the following: (d) the National Parole Board or any provincial parole board may consider the finding of guilt in considering an application for conditional release or for a record suspension under the Criminal Records Act.
157. Subparagraph 119(1)(n)(iii) of the Act is replaced by the following: (iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person, whether as a young person or an adult, 158. Subparagraph 120(4)(c)(iii) of the Act is replaced by the following:
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Safe Streets and (iii) considering an application for conditional release, or for a record suspension under the Criminal Records Act, made by the young person after the young person becomes an adult.
159. Subsection 128(5) of the Act is replaced by the following: Exception
(5) Despite subsections (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension ordered under the Criminal Records Act is in effect.
TERMINOLOGY CHANGES 160. In the following provisions, “National Parole Board” is replaced by “Parole Board of Canada”: (a) Schedule I to the Access to Information Act; (b) in the Corrections and Conditional Release Act, (i) subparagraph (a)(ii) of the definition “inmate” in subsection 2(1), (ii) paragraph 4(a), (iii) subsection 25(1), (iv) the definition “Board” in subsection 99(1), (v) paragraph 167(2)(a), (vi) paragraph 177(b), (vii) subsections 178(1) and (2), (viii) subsections 179(1) and (3), and (ix) section 180; (c) in the Criminal Code, (i) subparagraph (b)(xi) of the definition “justice system participant” in section 2, (ii) paragraph 672.35(c),
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(iii) paragraphs 746.1(2)(c) and (3)(c), (iv) subsection 753.2(3), and (v) subsections 761(1) and (2); (d) in the Criminal Records Act, (i) the definition “Board” in subsection 2(1), and (ii) the heading before section 2.1; (e) section 5 of the Department of Public Safety and Emergency Preparedness Act; (f) in the Financial Administration Act, (i) Schedule I.1, (ii) Schedule IV, and (iii) Part II of Schedule VI; (g) section 28 of the International Transfer of Offenders Act; (h) in the National Defence Act, (i) paragraph 202.14(2)(h), and (ii) subsection 222(2); (i) subsection 6(9) of the Prisons and Reformatories Act; (j) in the Privacy Act, (i) section 24, and (ii) the schedule, under the heading “OTHER GOVERNMENT INSTITUTIONS”; (k) Schedule I to the Public Sector Compensation Act, under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”; and (l) in the Youth Criminal Justice Act, (i) paragraph 77(3)(b), and (ii) paragraph 82(1)(d).
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Safe Streets and TRANSITIONAL PROVISIONS
New applications for pardons
161. Subject to section 162, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) or (b) of that Act, as it read immediately before the day on which this section comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Part, as though it were an application for a record suspension.
Pending applications — Criminal Records Act
162. An application for a pardon under the Criminal Records Act that is made on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010, came into force and before the day on which this section comes into force shall be dealt with and disposed of in accordance with the Criminal Records Act, as it read when the Board received the application, if the application is not finally disposed of on the day on which this section comes into force.
Pending applications — references in other legislation
163. A reference to an application for a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to an application for a pardon that is not finally disposed of on the day on which this section comes into force: (a) paragraph 672.35(c) and subsection 750(4) of the Criminal Code; (b) paragraph 202.14(2)(h) of the National Defence Act; and (c) paragraph 82(1)(d) and subparagraphs 119(1)(n)(iii) and 120(4)(c)(iii) of the Youth Criminal Justice Act.
Pardons in effect — Criminal Records Act
164. The Criminal Records Act, as it read immediately before the day on which this section comes into force, applies to a pardon that was granted on or after the day on which the Limiting Pardons for Serious Crimes Act, chapter 5 of the Statutes of Canada, 2010,
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came into force and before the day on which this section comes into force and that has not been revoked or ceased to have effect. Pardons in effect — references in other legislation
165. A reference to a record suspension in the following provisions, as enacted by this Part, is deemed also to be a reference to a pardon that is granted or issued under the Criminal Records Act: (a) the definition “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” in section 25 of the Canadian Human Rights Act; (b) the definition “record suspension” in subsection 490.011(1) of the Criminal Code; (c) subsection 10(8) of the DNA Identification Act; (d) paragraphs 36(3)(b) and 53(f) of the Immigration and Refugee Protection Act; (e) the definition “record suspension” in section 227 of the National Defence Act; and (f) subsection 128(5) of the Youth Criminal Justice Act. COMING INTO FORCE
Order in council
166. (1) The provisions of this Part, other than sections 108 to 146, 148 to 159 and 161 to 165, come into force on a day or days to be fixed by order of the Governor in Council.
Order in council
(2) Sections 135 and 136 come into force on a day to be fixed by order of the Governor in Council. PART 4 YOUTH CRIMINAL JUSTICE
2002, c. 1
YOUTH CRIMINAL JUSTICE ACT Amendments to the Act 167. (1) The definition “presumptive offence” in subsection 2(1) of the Youth Criminal Justice Act is repealed.
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(2) The definition “serious violent offence” in subsection 2(1) of the Act is replaced by the following: “serious violent offence” « infraction grave avec violence »
“serious violent offence” means an offence under one of the following provisions of the Criminal Code: (a) section 231 or 235 (first degree murder or second degree murder); (b) section 239 (attempt to commit murder); (c) section 232, 234 or 236 (manslaughter); or (d) section 273 (aggravated sexual assault). (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“serious offence” « infraction grave »
“violent offence” « infraction avec violence »
“serious offence” means an indictable offence under an Act of Parliament for which the maximum punishment is imprisonment for five years or more. “violent offence” means (a) an offence committed by a young person that includes as an element the causing of bodily harm; (b) an attempt or a threat to commit an offence referred to in paragraph (a); or (c) an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm. 168. (1) Paragraph 3(1)(a) of the Act is replaced by the following: (a) the youth criminal justice system is intended to protect the public by (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and
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(iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (2) The portion of paragraph 3(1)(b) of the Act before subparagraph (i) is replaced by the following: (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: 169. Subsection 29(2) of the Act is replaced by the following: Justification for detention in custody
(2) A youth justice court judge or a justice may order that a young person be detained in custody only if (a) the young person has been charged with (i) a serious offence, or (ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt; (b) the judge or justice is satisfied, on a balance of probabilities, (i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so, (ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or (iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice,
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Safe Streets and having regard to the principles set out in section 3 and to all the circumstances, including (A) the apparent strength of the prosecution’s case, (B) the gravity of the offence, (C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and
(c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b), (i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so, (ii) offer adequate protection to the public from the risk that the young person might otherwise present, or (iii) maintain confidence in the administration of justice. Onus
(3) The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General. 170. Subsection 32(1) of the Act is amended by adding “and” at the end of paragraph (b), by striking out “and” at the end of paragraph (c) and by repealing paragraph (d). 171. Subsection 37(4) of the Act is replaced by the following:
Appeals heard together
(4) An order under subsection 72(1) or (1.1) (adult or youth sentence), 75(2) (lifting of ban on publication) or 76(1) (placement when subject to adult sentence) may be appealed as part of the sentence and, unless the court to
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Sécurité des rues et which the appeal is taken otherwise orders, if more than one of these is appealed they must be part of the same appeal proceeding. 172. Subsection 38(2) of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e): (f) subject to paragraph (c), the sentence may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. 173. Paragraph 39(1)(c) of the Act is replaced by the following: (c) the young person has committed an indictable offence for which an adult would be liable to imprisonment for a term of more than two years and has a history that indicates a pattern of either extrajudicial sanctions or of findings of guilt or of both under this Act or the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985; or 174. (1) Paragraph 42(2)(o) of the Act is replaced by the following: (o) in the case of an offence set out in section 239 (attempt to commit murder), 232, 234 or 236 (manslaughter) or 273 (aggravated sexual assault) of the Criminal Code, make a custody and supervision order in respect of the young person for a specified period not exceeding three years from the date of committal that orders the young person to be committed into a continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105; (2) Paragraph 42(5)(a) of the Act is replaced by the following:
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(a) the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm; and (3) Subparagraphs 42(7)(a)(i) and (ii) of the Act are replaced by the following: (i) the young person has been found guilty of a serious violent offence, or (ii) the young person has been found guilty of an offence, in the commission of which the young person caused or attempted to cause serious bodily harm and for which an adult is liable to imprisonment for a term of more than two years, and the young person had previously been found guilty at least twice of such an offence; (4) Subsections 42(9) and (10) of the Act are repealed. 175. Sections 61 to 63 of the Act are repealed. 176. (1) Subsections 64(1) and (2) of the Act are replaced by the following: Application by Attorney General
64. (1) The Attorney General may, before evidence is called as to sentence or, if no evidence is called, before submissions are made as to sentence, make an application to the youth justice court for an order that a young person is liable to an adult sentence if the young person is or has been found guilty of an offence for which an adult is liable to imprisonment for a term of more than two years and that was committed after the young person attained the age of 14 years.
Obligation
(1.1) The Attorney General must consider whether it would be appropriate to make an application under subsection (1) if the offence is a serious violent offence and was committed after the young person attained the age of 14 years. If, in those circumstances, the Attorney General decides not to make an application, the Attorney General shall advise the youth justice court before the young person enters a plea or with leave of the court before the commencement of the trial.
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Order fixing age
(1.2) The lieutenant governor in council of a province may by order fix an age greater than 14 years but not greater than 16 years for the purpose of subsection (1.1).
Notice of intention to seek adult sentence
(2) If the Attorney General intends to seek an adult sentence for an offence by making an application under subsection (1), the Attorney General shall, before the young person enters a plea or with leave of the youth justice court before the commencement of the trial, give notice to the young person and the youth justice court of the intention to seek an adult sentence. (2) Subsections 64(4) and (5) of the Act are repealed. 177. Sections 65 and 66 of the Act are repealed. 178. (1) The portion of subsection 67(1) of the Act before paragraph (b) is replaced by the following:
Election — adult sentence
67. (1) The youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (2) if (2) The portion of subsection 67(3) of the Act before paragraph (b) is replaced by the following:
Election — Nunavut
(3) In respect of proceedings in Nunavut, the youth justice court shall, before a young person enters a plea, put the young person to his or her election in the words set out in subsection (4) if 179. Section 68 of the Act is repealed. 180. (1) Subsection 69(1) of the Act is repealed. (2) Subsection 69(2) of the Act is replaced by the following:
Included offences
(2) If the Attorney General has given notice under subsection 64(2) of the intention to seek an adult sentence and the young person is found guilty of an included offence for which an adult is liable to imprisonment for a term of more than two years, committed after he or she has attained the age of 14 years, the Attorney General may make an application under subsection 64(1) (application for adult sentence).
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181. Section 70 of the Act is repealed. 182. Section 71 of the Act is replaced by the following: Hearing — adult sentences
71. The youth justice court shall, at the commencement of the sentencing hearing, hold a hearing in respect of an application under subsection 64(1) (application for adult sentence), unless the court has received notice that the application is not opposed. Both parties and the parents of the young person shall be given an opportunity to be heard at the hearing. 183. (1) Subsections 72(1) to (3) of the Act are replaced by the following:
Order of adult sentence
72. (1) The youth justice court shall order that an adult sentence be imposed if it is satisfied that (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.
Order of youth sentence
(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.
Onus
(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.
Pre-sentence report
(3) In making an order under subsection (1) or (1.1), the youth justice court shall consider the pre-sentence report. (2) Subsection 72(5) of the Act is replaced by the following:
Appeal
(5) For the purposes of an appeal in accordance with section 37, an order under subsection (1) or (1.1) is part of the sentence.
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Sécurité des rues et 184. Section 73 of the Act is replaced by the following:
Court must impose adult sentence
73. (1) When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.
Court must impose youth sentence
(2) When the youth justice court makes an order under subsection 72(1.1) in respect of a young person, the court shall, on a finding of guilt, impose a youth sentence on the young person. 185. Section 75 of the Act is replaced by the following:
Decision regarding lifting of publication ban
75. (1) When the youth justice court imposes a youth sentence on a young person who has been found guilty of a violent offence, the court shall decide whether it is appropriate to make an order lifting the ban on publication of information that would identify the young person as having been dealt with under this Act as referred to in subsection 110(1).
Order
(2) A youth justice court may order a lifting of the ban on publication if the court determines, taking into account the purpose and principles set out in sections 3 and 38, that the young person poses a significant risk of committing another violent offence and the lifting of the ban is necessary to protect the public against that risk.
Onus
(3) The onus of satisfying the youth justice court as to the appropriateness of lifting the ban is on the Attorney General.
Appeals
(4) For the purposes of an appeal in accordance with section 37, an order under subsection (2) is part of the sentence. 186. Subsection 76(2) of the Act is replaced by the following:
Young person under age of 18
(2) No young person who is under the age of 18 years is to serve any portion of the imprisonment in a provincial correctional facility for adults or a penitentiary. 187. Section 81 of the Act is replaced by the following:
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Procedure for application or notice
81. An application or a notice to the court under section 64 or 76 must be made or given orally, in the presence of the other party, or in writing with a copy served personally on the other party.
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188. (1) Paragraph 82(1)(b) of the Act is replaced by the following: (b) a youth justice court may consider the finding of guilt in considering an application under subsection 64(1) (application for adult sentence); (2) Paragraph 82(4)(a) of the Act is repealed. (3) Paragraph 82(4)(b) of the French version of the Act is replaced by the following: b) de déterminer la peine applicable aux adultes à imposer. 189. Paragraph 110(2)(b) of the Act is replaced by the following: (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and 190. Section 115 of the Act is amended by adding the following after subsection (1): Extrajudicial measures
(1.1) The police force shall keep a record of any extrajudicial measures that they use to deal with young persons. 191. Paragraph 119(1)(o) of the French version of the Act is replaced by the following: o) toute personne, pour vérifier l’existence d’un casier judiciaire dans le cas où la vérification est exigée par le gouvernement du Canada ou d’une province ou par une municipalité en matière de recrutement de personnel ou de bénévoles ou de fourniture de services; 192. Paragraphs 120(3)(a) and (b) of the Act are replaced by the following:
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Sécurité des rues et (a) if the offence is an indictable offence, other than an offence referred to in paragraph (b), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and ending five years later; and (b) if the offence is a serious violent offence for which the Attorney General has given notice under subsection 64(2) (intention to seek adult sentence), the period starting at the end of the applicable period set out in paragraphs 119(2)(h) to (j) and continuing indefinitely. 193. Section 160 of the Act is repealed. 194. Section 162 of the Act is replaced by the following:
Commencement of proceedings
162. For the purposes of sections 158 and 159, proceedings are commenced by the laying of an information or indictment. Transitional Provision
Offences committed before this section in force
195. Any person who, before the coming into force of this section, while he or she was a young person, committed an offence in respect of which no proceedings were commenced before that coming into force shall be dealt with under the Youth Criminal Justice Act as amended by this Part as if the offence occurred after that coming into force, except that (a) the definition “violent offence” in subsection 2(1) of the Youth Criminal Justice Act, as enacted by subsection 167(3), does not apply in respect of the offence; (b) paragraph 3(1)(a) of that Act, as enacted by subsection 168(1), does not apply in respect of the offence; (c) paragraph 38(2)(f) of that Act, as enacted by section 172, does not apply in respect of the offence; (d) paragraph 39(1)(c) of that Act, as enacted by section 173, does not apply in respect of the offence; and
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(e) section 75 of that Act, as enacted by section 185, does not apply in respect of the offence. RELATED AMENDMENTS 1992, c. 20
2004, c. 21, s. 39
“sentence” « peine » ou « peine d’emprisonnement »
Corrections and Conditional Release Act 196. The definition “sentence” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following:
“sentence” means a sentence of imprisonment and includes (a) a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act, and (b) a youth sentence imposed under the Youth Criminal Justice Act consisting of a custodial portion and a portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act;
197. Paragraphs 99(2)(a) and (b) of the Act are replaced by the following: (a) any period during which the offender could be entitled to statutory release; (b) in the case of a youth sentence imposed under the Youth Criminal Justice Act, the portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act; or (c) any remission that stands to the credit of the offender on November 1, 1992.
2011-2012 R.S., c. P-20 2002, c. 1, s. 196(2)
“sentence” « peine »
Sécurité des rues et Prisons and Reformatories Act 198. The definition “sentence” in subsection 2(1) of the Prisons and Reformatories Act is replaced by the following: “sentence” includes a youth sentence imposed under the Youth Criminal Justice Act consisting of a custodial portion and a portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act.
1995, c. 42, s. 82(1)
199. (1) Subsection 6(1) of the Act is replaced by the following:
Remission
6. (1) Subject to subsection (7.2), every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with 15 days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.
2002, c. 1, s. 197
(2) Subsections 6(7.1) and (7.2) of the Act are replaced by the following:
Transfer or committal to prison
(7.1) When a prisoner is transferred from a youth custody facility to a prison as the result of the application of section 743.5 of the Criminal Code, the prisoner is credited with full remission under this section for the portion of the sentence that the offender served in the youth custody facility as if that portion of the sentence had been served in a prison.
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Exceptional date of release
(7.2) When a prisoner who was sentenced to custody under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act is transferred from a youth custody facility to a prison under section 92 or 93 of that Act, or is committed to imprisonment in a prison under section 89 of that Act, the prisoner is entitled to be released on the date on which the custody portion of his or her youth sentence under paragraph 42(2)(n), (o), (q) or (r) of that Act expires.
2002, c. 1, s. 197
(3) The portion of subsection 6(7.3) of the Act before paragraph (a) is replaced by the following:
Effect of release
(7.3) When a prisoner is committed or transferred in accordance with section 89, 92 or 93 of the Youth Criminal Justice Act and, in accordance with subsection (7.2), is entitled to be released,
Safe Streets and
CONSEQUENTIAL AMENDMENTS R.S., c. C-46 2002, c. 1, s. 181
Criminal Code 200. Paragraph 667(1)(a) of the Criminal Code is replaced by the following: (a) a certificate setting out with reasonable particularity the conviction or discharge under section 730, the finding of guilt under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act or the conviction and sentence or finding of guilt and sentence in Canada of an offender is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, without proof of the signature or the official character of the person appearing to have signed the certificate, if it is signed by (i) the person who made the conviction, order for the discharge or finding of guilt, (ii) the clerk of the court in which the conviction, order for the discharge or finding of guilt was made, or
2011-2012
Sécurité des rues et (iii) a fingerprint examiner;
1995, c. 42, par. 87(b)
201. Paragraph 746.1(2)(b) of the French version of the Act is replaced by the following: b) de permission de sortir sans escorte sous le régime de cette loi ou de la Loi sur les prisons et les maisons de correction;
1998, c. 37
DNA Identification Act
2005, c. 25, s. 19
202. Subsection 9.1(2) of the DNA Identification Act is replaced by the following:
Exception
(2) Section 9 nevertheless applies to information in the convicted offenders index in relation to (a) a serious violent offence as defined in subsection 2(1) of the Youth Criminal Justice Act; or (b) a record to which subsection 120(6) of that Act applies.
2005, c. 25, s. 21
203. Subsection 10.1(2) of the Act is replaced by the following:
Exception
(2) Subsections 10(6) and (7) nevertheless apply to the destruction of stored bodily substances of a young person that relate to (a) a serious violent offence as defined in subsection 2(1) of the Youth Criminal Justice Act; or (b) a record to which subsection 120(6) of that Act applies. COMING INTO FORCE
Order in council
204. The provisions of this Part come into force on a day or days to be fixed by order of the Governor in Council.
C. 1
Safe Streets and PART 5
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT AMENDMENTS TO THE ACT 205. Paragraph 3(1)(h) of the Immigration and Refugee Protection Act is replaced by the following: (h) to protect public health and safety and to maintain the security of Canadian society; 206. Section 30 of the Act is amended by adding the following after subsection (1):
Authorization
(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.
Instructions
(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.
Concurrence of second officer
(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.
Purpose
(1.4) The instructions shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.
Publication
(1.5) The instructions shall be published in the Canada Gazette.
Application
(1.6) The instructions take effect on the day on which they are published, or on any later day specified in the instructions, and apply in respect of all applications for authorization to work in Canada, including those that were filed before that day and for which a final decision has not been made.
Revocation
(1.7) The instructions cease to have effect on the day on which a notice of revocation is published in the Canada Gazette.
2011-2012
Sécurité des rues et 207. Subsection 94(2) of the Act is amended by striking out “and” at the end of paragraph (e) and by adding the following after that paragraph: (e.1) any instructions given under subsection 30(1.2) during the year in question and the date of their publication; and COMING INTO FORCE
Order in council
208. This Part comes into force on a day to be fixed by order of the Governor in Council.
C. 1
Safe Streets and Com SCHEDULE (Section 134)
SCHEDULE 2 (Subsections 6.3(2) and (9)) 1. Offences (a) under the following provisions of the Criminal Code: (i) section 153.1 (sexual exploitation of a person with a disability), (ii) section 155 (incest), (iii) section 162 (voyeurism), (iv) paragraph 163(1)(a) (obscene materials), (v) paragraph 163(2)(a) (obscene materials), (vi) section 168 (mailing obscene matter), (vii) subsection 173(1) (indecent acts), (viii) section 271 (sexual assault), (ix) subsection 272(1) and paragraph 272(2)(a) (sexual assault with firearm), (x) subsection 272(1) and paragraph 272(2)(b) (sexual assault other than with firearm), (xi) section 273 (aggravated sexual assault), (xii) section 280 (abduction of a person under 16), (xiii) section 281 (abduction of a person under 14), (xiv) subsection 372(2) (indecent phone calls), (xv) paragraph 348(1)(a) with respect to breaking and entering a place with intent to commit in that place an indictable offence listed in any of subparagraphs (i) to (xiv), and (xvi) paragraph 348(1)(b) with respect to breaking and entering a place and committing in that place an indictable offence listed in any of subparagraphs (i) to (xiv); and (b) of attempt or conspiracy to commit an offence referred to in any of subparagraphs (a)(i) to (xvi).
2. Offences (a) under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 1, 1988: (i) subsection 146(1) (sexual intercourse with a female under 14), (ii) subsection 146(2) (sexual intercourse with a female 14 or more but under 16), (iii) section 151 (seduction of a female 16 or more but under 18), (iv) section 153 (sexual intercourse with stepdaughter, etc., or female employee), and (v) section 157 (gross indecency); and
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Sécurité des rues et des
(b) of attempt or conspiracy to commit an offence referred to in any of subparagraphs (a)(i) to (v). 3. Offences (a) under the following provisions of the Criminal Code, R.S.C. 1970, c. C-34, as that Act read before January 4, 1983: (i) section 144 (rape), (ii) section 145 (attempt to commit rape), (iii) section 149 (indecent assault on female), (iv) section 156 (indecent assault on male), (v) section 245 (common assault), and (vi) subsection 246(1) (assault with intent to commit an indictable offence); and (b) of attempt or conspiracy to commit an offence referred to in any of subparagraphs (a)(i) to (vi).
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
|
C-25 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-25 An Act relating to pooled registered pension plans and making related amendments to other Acts
AS PASSED BY THE HOUSE OF COMMONS JUNE 12, 2012
SUMMARY This enactment provides a legal framework for the establishment and administration of pooled registered pension plans that will be accessible to employees and self-employed persons and that will pool the funds in members’ accounts to achieve lower costs in relation to investment management and plan administration.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT RELATING TO POOLED REGISTERED PENSION PLANS AND MAKING RELATED AMENDMENTS TO OTHER ACTS SHORT TITLE 1.
Pooled Registered Pension Plans Act INTERPRETATION
2. Definitions
3. Purpose
PURPOSE OF ACT
APPLICATION 4.
Application of Act AGREEMENTS
5. Bilateral agreement
6. Multilateral agreement
7. Force of law
8. Review by Federal Court
9. Association of supervisory authorities POWERS OF SUPERINTENDENT
10. Powers of Superintendent
11. Licensing of administrators REGISTRATION
12. Registration of plan
13. Filing of amendments ADMINISTRATION OF POOLED REGISTERED PENSION PLANS ADMINISTRATOR
14. Licence and registration
15. Compliance with this Act
16. Duties of administrator
17. Records
i 18.
Contract between administrator and employer
19. Employer terminates participation
20. Superintendent may require meeting
21. Transfer of assets to designated entity
22. Administration of plan and assets
23. Investment choices
24. Prohibition — inducements
25. Prohibition — investment options
26. Low-cost plan EMPLOYER
27. Prohibition — employees in included employment
28. Obligation — non-discrimination
29. Contract between employer and administrator
30. Employer not liable
31. Amounts deemed to be held in trust
32. Employer to provide information
33. Prohibition — inducements
34. Superintendent’s directions to administrators
35. Additional directions
36. Revocation of registration
DIRECTIONS OF COMPLIANCE
OBJECTIONS AND APPEALS 37.
Notice of objection
38. Appeal to Federal Court GENERAL REQUIREMENTS MEMBERSHIP
39. Full-time employees
40. Part-time employees
41. Advance notice to employees
42. Religious objections
43. Transfer of assets — notice
44. Termination of membership CONTRIBUTIONS
45. Contribution rates
46. Deductions from remuneration
ii LOCKING-IN 47.
Provisions respecting locking-in VARIABLE PAYMENTS
48. Election
49. Entitlement of survivor
50. Transfer or purchase of annuity
51. Cessation DEATH OF MEMBER
52. Entitlement of survivor DIVORCE, ANNULMENT, SEPARATION OR BREAKDOWN OF COMMON-LAW PARTNERSHIP
53. Meaning of “provincial law relating to the distribution of property” TRANSFER OF FUNDS AND PURCHASE OF LIFE ANNUITIES
54. Who may transfer funds
55. Transfer of funds at prescribed age SEX DISCRIMINATION PROHIBITED
56. Sex discrimination prohibited
57. Provisions respecting information
RIGHTS TO INFORMATION
DUTY TO PROVIDE INFORMATION 58.
Annual reporting requirements
59. Information to members
60. Information to Superintendent
61. Termination of pooled registered pension plan
62. Deemed termination
63. Designation of beneficiaries — provincial law
64. Electronic communications
65. Signatures
66. Enforcement of direction
67. Application to Federal Court
TERMINATION AND WINDING-UP
GENERAL
iv 68.
Superintendent may bring actions
69. Inspection
70. No action against person for withholding, etc.
71. Agreement in contravention of Act
72. Agreement to transfer, etc.
73. Agreement to surrender
74. Non-application of Statutory Instruments Act OFFENCES AND PUNISHMENT
75. Offences
76. Governor in Council
77. Incorporation by reference
78. Annual report
REGULATIONS
ANNUAL REPORT
RELATED AMENDMENTS 79-81.
Bankruptcy and Insolvency Act
82. Companies’ Creditors Arrangement Act
83. Canadian Human Rights Act
84-89.
Pension Benefits Standards Act, 1985
90-93.
Office of the Superintendent of Financial Institutions Act COORDINATING AMENDMENT
94. 2010, c. 25 COMING INTO FORCE
95. Order in council
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-25 An Act relating to pooled registered pension plans and making related amendments to other Acts
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Pooled Registered Pension Plans Act. 5 INTERPRETATION
Definitions
“administrator” « administrateur »
“common-law partner” « conjoint de fait »
“common-law partnership” « union de fait »
“designated province” « province désignée »
“electronic document” « document électronique »
2. (1) The following definitions apply in this Act. “administrator” means the holder of a licence issued under section 11 or an entity designated by the Superintendent under subsection 21(1). 10 “common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship, having so cohabited for a period of at least one year. “common-law partnership” means the relation- 15 ship between two persons who are common-law partners of each other. “designated province” means a province designated in the regulations. “electronic document” means any form of 20 representation of information or of concepts fixed in any medium by electronic, optical or other similar means that can be read or perceived by a person or by any means.
2 “employee” « salarié »
“employer” « employeur »
“employment” « emploi »
“included employment” « emploi visé »
“member” « participant »
“Minister” « ministre »
“multilateral agreement” « accord multilatéral »
“pooled registered pension plan” « régime de pension agréé collectif »
“prescribed” Version anglaise seulement
“spouse” « époux »
“Superintendent” « surintendant »
Pooled registere “employee” means an individual who holds a position that entitles that individual to a fixed or ascertainable stipend or remuneration and includes an individual who holds the position of an officer or director of a corporation or other 5 organization or of an agent or mandatary acting for a principal or mandator. “employer”, in relation to an employee, means the person or organization that employs the employee and includes their assigns or succes- 10 sors. “employment” means the performance by employee of work for an employer under express or implied contract of service apprenticeship, and includes the tenure of office.
an an or an 15
“included employment” means employment — other than employment by Her Majesty in right of Canada or any employment that is excluded by the regulations — on or in connection with 20 the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada. “member” means a person who holds an account with a pooled registered pension plan. 25 “Minister” means the Minister of Finance. “multilateral agreement” means an agreement entered into under subsection 6(1). “pooled registered pension plan” means a plan registered under section 12. 30
“prescribed” means prescribed by regulation.
“spouse”, in relation to an individual, includes a person who is party to a void marriage or, in Quebec, null marriage with the individual. “Superintendent” means the Superintendent of 35 Financial Institutions appointed under section 5 of the Office of the Superintendent of Financial Institutions Act.
2011-2012 “survivor” « survivant »
Régimes de pensio “survivor”, in relation to a deceased member, means (a) if there is no person described in paragraph (b), the member’s spouse at the time of the member’s death; or 5 (b) the common-law partner of the member immediately before the member’s death.
“winding-up” « liquidation »
“Year’s Maximum Pensionable Earnings” « maximum des gains annuels ouvrant droit à pension » Meaning of “spouse or common-law partner”
“winding-up”, in relation to a pooled registered pension plan, means the distribution of the assets of a plan that has been terminated. 10 “Year’s Maximum Pensionable Earnings” has the same meaning as in subsection 2(1) of the Canada Pension Plan.
(2) Except in section 53, a reference to a “spouse or common-law partner” in respect of a 15 member means the common-law partner of the member in the case where the member has both a spouse from whom they are separated and a common-law partner with whom they are cohabiting. 20 PURPOSE OF ACT
Purpose
3. The purpose of this Act is to provide a legal framework for the establishment and administration of a type of pension plan that is accessible to employees and self-employed persons and that pools the funds in members’ 25 accounts to achieve lower costs in relation to investment management and plan administration. APPLICATION
Application of Act
4. This Act does not apply in respect of a member of a pooled registered pension plan 30 who (a) is not employed in included employment, other than a member who is a self-employed person in Yukon, the Northwest Territories or Nunavut; or 35 (b) is employed in included employment but whose employer does not participate in the plan, other than a member who is employed in included employment in Yukon, the Northwest Territories or Nunavut. 40
Pooled registere AGREEMENTS
Bilateral agreement
5. The Minister may, with the approval of the Governor in Council, enter into a bilateral agreement with a designated province to (a) authorize the prescribed supervisory authority of that province to exercise any of 5 the Superintendent’s powers under this Act; and (b) authorize the Superintendent to exercise any powers of that prescribed supervisory authority. 10
Multilateral agreement
6. (1) The Minister may, with the approval of the Governor in Council, enter into an agreement with two or more designated provinces respecting any matter relating to pooled registered pension plans that are subject to the 15 legislation of at least one designated province that is a party to the agreement.
Content of agreement
(2) The multilateral agreement may, among other things, (a) limit the application of the legislation of a 20 designated province that is a party to the agreement to a pooled registered pension plan and adapt that legislation to that plan; (b) limit the application of this Act to a pooled registered pension plan and adapt the 25 Act to that plan; (c) exempt a pooled registered pension plan from the application of this Act or the legislation of a designated province that is a party to the agreement; 30 (d) provide for the administration and enforcement of this Act and the legislation of a designated province that is a party to the agreement; (e) authorize a prescribed supervisory 35 authority of a designated province that is a party to the agreement or the association referred to in section 9 to exercise any of the Superintendent’s powers under this Act; (f) authorize the Superintendent to exercise 40 any powers of a prescribed supervisory authority of a designated province that is a party to the agreement or the association referred to in section 9;
2011-2012
Régimes de pensio (g) establish requirements — in addition to any other requirements under this Act and the legislation of a designated province that is a party to the agreement — with respect to a pooled registered pension plan, an adminis- 5 trator or an employer; and (h) confer powers on the Superintendent.
Tabling in Parliament
(3) The Minister must cause to be tabled in each House of Parliament every multilateral agreement. 10
Publication — Canada Gazette
(4) The Minister must cause to be published in the Canada Gazette (a) every multilateral agreement and a notice of the date on which the agreement comes into effect with respect to pooled registered 15 pension plans; (b) every amendment to a multilateral agreement and a notice of the date on which the amendment comes into effect with respect to pooled registered pension plans; and 20 (c) a notice of the effective date of the Government of Canada’s withdrawal from the multilateral agreement or of the effective date of termination of that agreement, whichever comes first. 25
Publication — other
(5) In addition to the publishing requirements under subsection (4), the Minister must ensure that every multilateral agreement and every amendment to it is accessible to the public on the Internet or by any other means that the 30 Minister considers appropriate.
Force of law
7. (1) The provisions of a multilateral agreement, other than those exempted from the application of this subsection by regulation, have the force of law during the period that the 35 agreement is in effect with respect to pooled registered pension plans and are enforceable during that period as if those provisions formed part of this Act.
Inconsistency with agreement
(2) The provisions of a multilateral agree- 40 ment that have the force of law prevail over any provision of this Act and the regulations to the extent of any inconsistency or conflict between them.
Pooled registere
Review by Federal Court
8. (1) A decision of a prescribed supervisory authority of a designated province that is made under the authority of a multilateral agreement and that relates to the application of this Act is deemed to be a decision of a federal board, 5 commission or other tribunal, as defined in subsection 2(1) of the Federal Courts Act, and is subject to judicial review under that Act.
No review by Federal Court
(2) A decision of the Superintendent that is made under the authority of a multilateral 10 agreement and that relates to the application of the legislation of a designated province is deemed to be a decision of the prescribed supervisory authority of that province and is not subject to judicial review under the Federal 15 Courts Act.
Association of supervisory authorities
9. The Minister may, with the approval of the Governor in Council, enter into an agreement with any designated province respecting the establishment and operation in Canada of an 20 association of supervisory authorities. POWERS OF SUPERINTENDENT
Powers of Superintendent
Information and studies
10. (1) The Superintendent, under the direction of the Minister, is responsible for the control and supervision of the administration of this Act. 25 (2) The Superintendent may (a) conduct studies, surveys and research programs and compile statistical and other information relating to pooled registered pension plans and their operation; 30 (b) disclose information collected under paragraph (a) or any of subsection 12(2) and sections 13 and 58 to any government agency or regulatory body; and (c) collect information from a prescribed 35 supervisory authority of a designated province and disclose information to that authority for the purposes of implementing a multilateral agreement.
Terms and conditions
(3) Any approval, authorization, consent or 40 permission of the Superintendent given under this Act may be subject to terms and conditions.
2011-2012
Régimes de pensio
Licensing of administrators
11. (1) The Superintendent may issue a licence authorizing a corporation to be an administrator if the prescribed conditions are satisfied.
Terms and conditions
(2) A licence issued under this section may 5 be subject to terms and conditions. REGISTRATION
Registration of plan
12. (1) A plan that is to be administered by an administrator to provide members of the plan with a means of retirement savings may be registered by the Superintendent as a pooled 10 registered pension plan, except (a) a pension plan as defined in subsection 2(1) of the Pension Benefits Standards Act, 1985; (b) an employees’ profit sharing plan or a 15 deferred profit sharing plan as defined in sections 144 and 147, respectively, of the Income Tax Act; (c) a registered retirement savings plan or a retirement compensation arrangement as de- 20 fined in subsection 248(1) of the Income Tax Act or an arrangement to provide a retiring allowance as defined in that subsection; or (d) any other prescribed plan or prescribed arrangement. 25
Duty of administrator to file documents
(2) The administrator of a plan that wishes to have that plan registered must file with the Superintendent, in the form and manner that the Superintendent may direct, (a) a copy of the plan;
(b) a copy of every document that creates or supports the plan; and (c) a declaration, signed by the administrator, that the plan complies with the provisions of this Act and the regulations. 35 Registration of plan
(3) Subject to subsection (4), the Superintendent must register a plan and issue a certificate of registration in respect of the plan if the administrator of the plan has filed the documents required under subsection (2). 40
Pooled registere
Refusal to register
(4) The Superintendent may refuse to register a plan if the plan does not comply with the provisions of this Act and the regulations.
Notification
(5) If the Superintendent refuses to register a plan, he or she must notify the administrator of 5 the particulars of the non-compliance.
No members before registration
(6) An administrator must not accept any members before the plan is registered.
Filing of amendments
13. The administrator of a plan must file with the Superintendent, within 60 days after an 10 amendment is made to any document referred to in subsection 12(2), in the form and manner that the Superintendent may direct, a copy of the amendment and a declaration, signed by the administrator, that the plan as amended com- 15 plies with the provisions of this Act and the regulations. ADMINISTRATION OF POOLED REGISTERED PENSION PLANS ADMINISTRATOR
Licence and registration
14. The administrator of a pooled registered pension plan must, before entering into a contract with any person with respect to the 20 plan, provide proof to the person that it has a valid licence and that the plan is registered under this Act.
Compliance with this Act
15. The administrator of a pooled registered pension plan must ensure that the plan complies 25 with the provisions of this Act and the regulations.
Duties of administrator
16. (1) The administrator of a pooled registered pension plan must, in accordance with the provisions of this Act and the regulations, 30 administer the plan and its assets and file the required documents with the Superintendent.
Coordinates
(2) The administrator must inform the Superintendent, in the form and manner that the Superintendent may direct, of any change to the 35 administrator’s name or the address of its Canadian head office within 30 days after the change.
2011-2012
Régimes de pensio
Records
17. An administrator of a pooled registered pension plan must keep records that are sufficient to allow a member’s share of the assets of the plan to be determined.
Contract between administrator and employer
18. The administrator must notify the Super- 5 intendent if an employer fails to comply with the provisions of the contract between the employer and the administrator respecting the amounts and frequency of remittances to the administrator. 10
Employer terminates participation
19. If an employer terminates their participation in a pooled registered pension plan, the administrator of the plan must, within the prescribed period, notify in writing the Superintendent and the members of the plan who are 15 employees of the employer of the termination and the effective date of the termination.
Superintendent may require meeting
20. (1) An administrator must hold a meeting, within the period specified by the Superintendent, to consider any matters set out in a 20 written notice from the Superintendent requiring the administrator to hold a meeting.
Participation by Superintendent, etc.
(2) The Superintendent may (a) participate in the meeting; (b) require the administrator to invite mem- 25 bers to attend the meeting; and (c) require any other interested persons to attend the meeting.
Transfer of assets to designated entity
21. (1) If the administrator is insolvent or unable to act or the Superintendent is of the 30 opinion that it is in the best interests of the members, the Superintendent may order the administrator to transfer every pooled registered pension plan that it administers and all of their assets to any entity that is designated by the 35 Superintendent.
Rights and obligations
(2) The designated entity has, with respect to every pooled registered pension plan that is transferred to it, all the contractual rights and obligations of the administrator. 40
Administration of plan and assets
22. (1) The administrator must administer the pooled registered pension plan and its assets as a trustee for the members.
Pooled registere
Standard of care
(2) In the administration of the pooled registered pension plan and its assets, the administrator must exercise the degree of care that a reasonably prudent person would exercise in dealing with the property of another person 5 and the diligence and skill that it possesses, or ought to possess, taking into account the administrator’s business.
Pooling
(3) The funds in members’ accounts may be pooled for the purposes of investing the assets 10 of a pooled registered pension plan.
Manner of investing
(4) The administrator must invest the funds in members’ accounts and must do so in a manner that a reasonable and prudent person would apply in respect of a portfolio of 15 investments appropriate for retirement savings.
Investment managers
(5) The administrator is entitled to engage the services of any investment manager it chooses for the purposes of investing the funds in members’ accounts. 20
Investment choices
23. (1) A pooled registered pension plan may permit a member to make investment choices from among the investment options offered by the administrator.
Administrator’s duty
(2) If a pooled registered pension plan 25 permits a member to make investment choices, the administrator must offer investment options of varying degrees of risk and expected return that would allow a reasonable and prudent person to create a portfolio of investments that 30 is appropriate for retirement savings.
Default option
(3) If a member does not make an investment choice referred to in subsection (1) within the prescribed period, the investment option chosen by the administrator as the default option will 35 apply to the account of the member. The administrator will make all the decisions with respect to investing the funds in accounts to which the default option applies.
Deemed compliance
(4) With respect to an account in respect of 40 which an investment choice is made by a member, if the administrator offers investment options in accordance with subsection (2) and the regulations, that administrator is deemed to comply with subsection 22(4). 45
2011-2012
Régimes de pensio
Prohibition — inducements
24. Subject to the regulations, an administrator must not give, offer or agree to give or offer to an employer an inducement to enter into a contract with the administrator in respect of a pooled registered pension plan. 5
Prohibition — investment options
25. The administrator must not change an investment choice made by a member except on the request of the member or in the circumstances specified in the regulations.
Low-cost plan
26. An administrator must provide the 10 pooled registered pension plan to its members at a low cost. EMPLOYER
Prohibition — employees in included employment
27. An employer must not offer a plan whose purpose is retirement savings to those of its employees who are employed in included 15 employment, unless it is a plan registered under subsection 12(1) or a plan or arrangement described in any of paragraphs (a) to (d) of that subsection.
Obligation — nondiscrimination
28. An employer that enters into a contract 20 with an administrator to provide a pooled registered pension plan to a class of employees must provide it to all the members of that class.
Contract between employer and administrator
29. The contract between the employer and the administrator must provide for the amounts 25 in respect of employee contributions and employer contributions, if any, that must be remitted to the administrator and the frequency of those remittances, and for the consequences if the employer fails to comply with the 30 provisions of the contract respecting those remittances.
Employer not liable
30. An employer is not liable for the acts and omissions of the administrator.
Amounts deemed to be held in trust
31. (1) An employer must ensure that it 35 keeps separate and apart from its own money all of the following amounts that have not been remitted to the administrator: (a) amounts deducted by the employer from employees’ remuneration; 40 (b) amounts of employer contributions; and
Pooled registere (c) any other amounts required to be remitted to the administrator. The employer is deemed to hold those amounts in trust for members of the plan.
If bankruptcy, etc., of employer
(2) In the event of the winding-up, assign- 5 ment or bankruptcy of an employer, an amount equal to the amount that by subsection (1) is deemed to be held in trust is deemed to be separate from and form no part of the estate in liquidation, assignment or bankruptcy, whether 10 or not that amount has in fact been kept separate and apart from the employer’s own moneys or from the assets of the estate.
Employer to provide information
32. An employer must provide the administrator with the information that is required by 15 the administrator to comply with the terms of the plan and to discharge its duties under subsection 16(1).
Prohibition — inducements
33. Subject to the regulations, an employer must not demand, accept or offer or agree to 20 accept any inducement from an administrator to enter into a contract with the administrator in respect of a pooled registered pension plan. DIRECTIONS OF COMPLIANCE
Superintendent’s directions to administrators
34. (1) If, in the opinion of the Superintendent, an administrator, an employer or 25 any person is, in respect of a pooled registered pension plan, committing or about to commit an act, or pursuing or about to pursue any course of conduct, that is contrary to safe or sound financial or business practices, the Superintend- 30 ent may direct the administrator, employer or other person to (a) cease or refrain from committing the act or pursuing the course of conduct; and (b) perform those acts that, in the opinion of 35 the Superintendent, are necessary to remedy the situation.
Directions in the case of noncompliance
(2) If, in the opinion of the Superintendent, a pooled registered pension plan or its administration does not comply with the provisions of 40 this Act and the regulations, the administration of the plan does not comply with the plan itself, an employer has failed to comply with the provisions of the contract between the employer
2011-2012
Régimes de pensio and the administrator or an administrator has failed to comply with the terms and conditions of its licence, the Superintendent may direct the administrator, the employer or any person to take any of the measures referred to in 5 paragraphs (1)(a) and (b).
Opportunity for representations
(3) Subject to subsection (4), a direction under subsection (1) or (2) must not be issued unless the Superintendent gives the administrator, employer or other person a reasonable 10 opportunity to make written representations.
Temporary direction
(4) If, in the opinion of the Superintendent, the length of time required for representations to be made under subsection (3) might be prejudicial to the interests of the members, the 15 Superintendent may make a direction with respect to the matters referred to in subsection (1) or (2) that has effect for a specified period of not more than 15 days.
Continued effect
(5) A temporary direction under subsection 20 (4) continues to have effect after the expiry of the specified period if no representations are made to the Superintendent within that period or, after representations have been made, if the Superintendent notifies the administrator, em- 25 ployer or other person that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.
Additional directions
35. If the Superintendent issues a direction in respect of a pooled registered pension plan 30 under section 34, he or she may also issue a direction to the administrator to refrain from entering into any new contracts with employers or accepting any new members with respect to the plan. 35
Revocation of registration
36. If the administrator of a pooled registered pension plan does not comply with a direction under section 34 or 35, the Superintendent may — at least 60 days after the day on which the administrator is notified of the failure to comply 40 with the direction — revoke the registration and cancel the certificate of registration in respect of the plan. In that case, the Superintendent must notify the administrator of the measures taken, including the date of the revocation and 45 cancellation.
Pooled registere OBJECTIONS AND APPEALS
Notice of objection
37. (1) An administrator may, within 60 days after the day on which the notification is provided under subsection 12(5) or on which the revocation and cancellation referred to in section 36 occurs, send to the Superintendent a 5 notice of objection setting out the reasons for the objection and all facts relevant to it.
Reconsideration by Superintendent
(2) On receipt of the notice, the Superintendent must, without delay, reconsider the refusal or the revocation and cancellation, as the 10 case may be, and vary or confirm the action taken. The Superintendent must, without delay, notify the administrator of the decision.
Appeal to Federal Court
38. (1) If an administrator has sent a notice of objection, the administrator may appeal to the 15 Federal Court for an order referred to in paragraph (5)(b) (a) within 90 days after the Superintendent has confirmed the action taken under subsection 37(2); or 20 (b) not less than 90 days and not more than 180 days after the day on which the notice of objection was sent if the Superintendent has not notified the administrator that the Superintendent has varied or confirmed the action 25 taken under subsection 37(2).
Institution of appeal
(2) An appeal to the Federal Court must be made by filing in the Registry of the Court, or by sending by registered mail addressed to it at Ottawa, three copies of a notice of appeal in 30 prescribed form.
Registry to transmit copies
(3) On receipt of the copies of the notice of appeal, the Registry of the Court must transmit two copies to the Superintendent.
Documents relevant to appeal
(4) On receipt of a copy of the notice of 35 appeal, the Superintendent must forward to the Registry of the Court copies of all documents relevant to the appeal.
Disposal of appeal
(5) The Federal Court may dispose of an appeal 40 (a) by dismissing it and ordering the appellant to take any measures necessary to ensure that the pooled registered pension plan complies with the provisions of this Act and the regulations; or 45
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Régimes de pensio (b) by allowing it and ordering the Superintendent to register the pooled registered pension plan or to reinstate the registration of the plan, as the circumstances require, and issue a certificate of registration. 5
Conditions
(6) An order referred to in paragraph (5)(b) may include conditions imposed on the appellant that are conditions precedent to the registration or reinstatement of registration of the pooled registered pension plan. 10 GENERAL REQUIREMENTS MEMBERSHIP
Full-time employees
39. (1) Every employee in a class of employees who is employed in included employment and is engaged to work on a full-time basis for an employer that provides a pooled registered pension plan to that class is a member 15 of the plan, except for employees who terminate their membership under subsection 41(5) or who object to becoming members of the plan because of their religious beliefs.
Meaning of “full-time basis”
(2) In this section, “full-time basis” means, 20 in relation to an employee of a particular class, engaged to work throughout the year all or substantially all of the normally scheduled hours of work established for persons in that class of employees. 25
Part-time employees
40. (1) Every employee in a class of employees who is employed in included employment and is engaged to work on a part-time basis for an employer that provides a pooled registered pension plan to that class is a member 30 of the plan on and after the day on which the employee completes 24 months of continuous employment with the employer, except for employees who terminate their membership under subsection 41(5) or who object to 35 becoming members of the plan because of their religious beliefs.
Regulations altering subsection (1)
(2) The Governor in Council may make regulations extending the period of 24 months referred to in subsection (1). 40
Meaning of “continuous”
(3) In this section, “continuous” means, in relation to employment, without regard to periods of temporary interruption of the employment.
Pooled registere
Meaning of “part-time basis”
(4) In this section, “part-time basis” means, in relation to an employee, engaged to work on other than a full-time basis.
Advance notice to employees
41. (1) At least 30 days before entering into a contract with an administrator to provide a 5 pooled registered pension plan to a class of employees, an employer must notify in writing each employee of that class of (a) its intention to enter into the contract; (b) any existing business relationships it has 10 with the administrator of the plan; and (c) the right of any employee to object to being a member of the plan because of their religious beliefs.
Notice of plan membership
(2) As soon as feasible after the employer 15 enters into the contract with the administrator to provide a pooled registered pension plan to a class of employees, either the administrator or the employer must notify in writing each employee of that class of their membership in 20 the plan. The notice must (a) inform them of a member’s right to terminate their membership in the plan by notifying the employer within 60 days after receiving the notice; and 25 (b) include the prescribed information.
Contract must specify
(3) The contract referred to in subsection (2) must specify whether it is the employer or the administrator who has the duty to provide the notification under that subsection. 30
New employee
(4) As soon as feasible after the employer hires an employee who is part of the class of employees who are members of the pooled registered pension plan, the notice referred to in subsection (2) must be provided to that employ- 35 ee.
Membership termination
(5) An employee may terminate their membership in a pooled registered pension plan by notifying the employer within 60 days after receiving notice under subsection (2). 40
Religious objections
42. (1) An employee who objects to being a member of a pooled registered pension plan because of their religious beliefs must notify the employer.
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Employer’s duty
(2) An employer that is notified by an employee under subsection (1) must, as soon as feasible, take any measure that is necessary to ensure that the employee does not become a member of the plan or, if the employee is 5 already a member, that the employee’s membership is terminated.
Transfer of assets to new plan
43. (1) An employer that provides a pooled registered pension plan to a class of employees and enters into a contract with an administrator 10 to provide a new pooled registered pension plan to that class must cause the assets of the former plan to be transferred to the new plan and must provide the notification referred to in subsection 41(2) to the employees in that class. 15
No membership termination
(2) Despite subsection 41(5), the employees who were members of the former pooled registered pension plan are not entitled to terminate their membership in the new pooled registered pension plan and the notice provided 20 to them under subsection 41(2) is not to include the information referred to in paragraph (a) of that subsection.
Costs
(3) The employer is responsible for all of the costs in relation to the transfer of assets from 25 one pooled registered pension plan to another.
Termination of membership
44. A member of a pooled registered pension plan, other than one who has become a member under section 39 or 40, may terminate their membership in the plan by notifying the 30 administrator. CONTRIBUTIONS
Contribution rates
45. (1) The contribution rates in respect of members of a pooled registered pension plan, and any increases to those rates, are set by the administrator. The administrator must inform 35 members of the contribution rates and of any increases.
Exception
(2) Subject to the regulations, a member may, after notifying the administrator, set a 40 contribution rate of 0%.
Deductions from remuneration
46. The employer may begin to deduct a member’s contributions to the pooled registered pension plan from the member’s remuneration
Pooled registere no earlier than 61 days after the day on which the administrator or employer provides the notice referred to in subsection 41(2). LOCKING-IN
Provisions respecting locking-in
47. (1) Subject to subsection (2) and any other provision of this Act and the regulations, a 5 pooled registered pension plan must provide that (a) the funds in an account with the plan, or any interest or right in those funds, are not capable of being transferred, charged, at- 10 tached, anticipated or given as security and that any transaction appearing to do so is void or, in Quebec, null; (b) an interest or right in the funds in a member’s account is not capable of being 15 surrendered; (c) a member is not permitted to withdraw the funds in their account; and (d) an administrator is not permitted to withdraw the funds from a member’s account. 20
Optional provisions
(2) A pooled registered pension plan may provide that (a) in the case of a disability as defined by the regulations, a member may withdraw the funds in their account; and 25 (b) if the amount of funds in the member’s account is — subject to any other percentage that may be prescribed — less than 20% of the Year’s Maximum Pensionable Earnings for the year in which the member dies, in 30 which the member provides the notification referred to in section 44 or in which the member is no longer employed by an employer that is participating in the plan, the funds in the account may be withdrawn 35 by the member or survivor, as the case may be.
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Régimes de pensio VARIABLE PAYMENTS
Election
48. A pooled registered pension plan may provide that a member who has reached the prescribed age that is fixed for the purposes of this section may elect to receive variable payments from the funds in their account. 5
Entitlement of survivor
49. In the case of the death of a member who had a spouse or common-law partner at the time at which variable payments commenced, the survivor is entitled to receive — subject to the regulations, the Income Tax Act and the Income 10 Tax Regulations — variable payments from the funds in the member’s account.
Transfer or purchase of annuity
50. (1) At least once every year, or more frequently if the pooled registered pension plan permits, a member or their survivor who 15 receives variable payments may elect (a) to transfer the funds in the member’s account to an account for the member or survivor, as the case may be, with a pooled registered pension plan or another pension 20 plan, if that plan permits; (b) to transfer the funds in the member’s account to a retirement savings plan of the prescribed kind for the member or survivor, as the case may be; or 25 (c) to use the funds in the member’s account to purchase an immediate or deferred life annuity of the prescribed kind for the member or survivor, as the case may be.
Notification and effect to notification
(2) A member or survivor must notify the 30 administrator of their intention to make the election referred to in subsection (1) and the administrator must, without delay, take the necessary action to give effect to the notification. 35
Transfer in case of death
(3) The survivor may also, if he or she notifies the administrator of their intention to do so within 90 days after the death of the member or, in the case where the Superintendent permits a longer period under paragraph 57(1)(e) for 40 giving the statement referred to in that paragraph, within 60 days after the day on which the administrator gives that statement,
Pooled registere (a) transfer the funds in the member’s account to an account for the survivor with a pooled registered pension plan or another pension plan, if that plan permits; (b) transfer the funds in the member’s 5 account to a retirement savings plan of the prescribed kind for the survivor; or (c) use the funds in the member’s account to purchase an immediate or deferred life annuity of the prescribed kind for the 10 survivor.
Effect to notification
(4) The administrator must, without delay, take the necessary action to give effect to the notification.
Cessation
51. Before an administrator may cease to 15 make the variable payments referred to in section 48 and 49, the administrator must offer the member or survivor who receives those variable payments the options set out in subsection 50(1). 20 DEATH OF MEMBER
Entitlement of survivor
52. (1) In the case of the death of a member who had a spouse or common-law partner at the time of death, the survivor is entitled to the funds in the member’s account.
Designated beneficiary or estate or succession
(2) If a member dies without leaving a 25 survivor, the funds in the member’s account are to be paid, subject to the Income Tax Act and the Income Tax Regulations, to the member’s designated beneficiary or, if there is none, to the member’s estate or succession. 30
Surrender of funds in account
(3) If a pooled registered pension plan provides that a member’s survivor may surrender their right or interest in the funds in the member’s account, in writing, to a beneficiary designated by the survivor who is the survivor’s 35 or member’s dependant as defined in subsection 8500(1) of the Income Tax Regulations, the funds in the member’s account are to be paid to that designated beneficiary.
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Régimes de pensio DIVORCE, ANNULMENT, SEPARATION OR BREAKDOWN OF COMMON-LAW PARTNERSHIP
Meaning of “provincial law relating to the distribution of property”
53. (1) In this section, “provincial law relating to the distribution of property” means the law of a province relating to the distribution of property, in accordance with a court order or an agreement between them, 5 (a) of spouses on divorce, annulment or separation; or (b) of former common-law partners on the breakdown of their common-law partnership.
Funds in member’s account
(2) Subject to subsection (3), the funds in the 10 account of a member with a pooled registered pension plan are, on divorce, annulment, separation or breakdown of common-law partnership, subject to provincial law relating to the distribution of property. 15
Power to transfer to spouse, etc.
(3) A member of a pooled registered pension plan may transfer all or a portion of the funds in their account to their spouse, former spouse, common-law partner or former common-law partner, effective as of divorce, annulment, 20 separation, or breakdown of the common-law partnership, as the case may be.
Spouse, etc., must transfer
(4) The spouse, former spouse, common-law partner or former common-law partner to whom all or a portion of the funds in a member’s 25 account are transferred under subsection (3) must (a) transfer those funds to an account for him or her with a pooled registered pension plan or another pension plan, if that plan permits; 30 (b) transfer those funds to a retirement savings plan of the prescribed kind for him or her; or (c) use those funds to purchase an immediate or deferred life annuity of the prescribed kind 35 for him or her.
Duty of administrator
(5) On divorce, annulment, separation or breakdown of a common-law partnership, if a court order or an agreement between the parties provides for the distribution of property be- 40 tween a member and their spouse, former spouse or former common-law partner, the administrator must determine and administer
Pooled registere the member’s account in the prescribed manner and in accordance with the court order or the agreement on receipt of (a) a written request from either the member or their spouse, former spouse or former 5 common-law partner that all or part of the funds in the member’s account be distributed or administered in accordance with the court order or the agreement; and (b) a copy of the court order or the agree- 10 ment. However, in the case of a court order, the administrator must not administer the member’s account in accordance with the court order until all appeals from that order have been finally 15 determined or the time for appealing has expired.
Notice
(6) On receipt of a request referred to in paragraph (5)(a), the administrator must notify the non-requesting spouse, former spouse or 20 former common-law partner of the request and must provide that person with a copy of the court order or agreement submitted in support of the request, but this requirement does not apply in respect of a request or an agreement received 25 by the administrator in a form or manner that indicates that it was jointly submitted. TRANSFER OF FUNDS AND PURCHASE OF LIFE ANNUITIES
Who may transfer funds
54. (1) The following persons may, in accordance with subsection (2), transfer or use funds from their account with a pooled 30 registered pension plan: (a) a member who is no longer employed by an employer that is participating in the plan; (b) a member who has provided the notice 35 referred to in section 44; (c) a member of a plan that has been terminated under section 62; or (d) the survivor of a member.
Transfer of funds
(2) If the member or survivor, as the case may be, notifies the administrator within the 40 prescribed time or, in the case where the Superintendent permits a longer period under paragraph 57(1)(d) or (e) for giving the state2011-2012
Régimes de pensio ment referred to in any of those paragraphs, within 60 days after the day on which the administrator gives that statement, the funds in the member’s account may be (a) transferred to an account for the member 5 or the survivor, as the case may be, with a pooled registered pension plan or another pension plan, if that plan permits; (b) transferred to a retirement savings plan of the prescribed kind for the member or 10 survivor, as the case may be; or (c) used to purchase an immediate or deferred life annuity of the prescribed kind for the member or survivor, as the case may be.
Effect to notification
(3) The administrator must, without delay, 15 take the necessary action to give effect to the notification.
Transfer of funds at prescribed age
55. On or after January 1 of the year following the year in which a member reaches the prescribed age that is fixed for the purposes 20 of this section, the administrator may transfer the funds in the member’s account with the pooled registered pension plan to a prescribed account. SEX DISCRIMINATION PROHIBITED
Sex discrimination prohibited
56. The sex of a member or of their spouse, 25 former spouse, common-law partner or former common-law partner must not be taken into account in determining the amount of any contribution required to be paid by the member 30 under a pooled registered pension plan. RIGHTS TO INFORMATION
Provisions respecting information
57. (1) A pooled registered pension plan must provide (a) that each member and each employer that is participating in the plan will be given, in the prescribed circumstances and in the 35 prescribed time and manner, (i) a written explanation of the provisions of the plan and of any applicable amendments to the plan, and (ii) any other information that is pre- 40 scribed;
Pooled registere (b) that each member of the plan will be given, in the prescribed circumstances and manner, and within 45 days after the end of each year or any longer period specified by the Superintendent, a written statement show- 5 ing (i) the value of accumulated contributions made under the plan, expressed in the prescribed manner, by or in respect of the member since the member became a 10 member, and (ii) any other information that is prescribed; (c) that each member of the plan, and their spouse or common-law partner may, once in 15 each year, either personally or by an agent or mandatary authorized in writing for that purpose, request, in writing, copies of the documents or information filed with the Superintendent under subsection 12(2), sec- 20 tions 13 and 58, as well as any other prescribed documents, from the Canadian head office of the administrator; (d) that, if a member has provided notice under section 44, has been provided notice 25 under subsection 62(4) or is no longer employed by an employer that is participating in the plan, the administrator must give to the member a statement, in the prescribed form, of the funds in their account within 30 days 30 after the day on which the notice was provided or the employee’s employment with the employer ceased or any longer period permitted by the Superintendent; and (e) that, in the case of a member’s death, the 35 administrator must give to the survivor, if there is one, to the member’s designated beneficiary if the administrator has been notified of the designation and there is no survivor, or, in every other case, to the 40 executor or administrator of the member’s estate or to the liquidator of the member’s succession a statement, in the prescribed form, of the funds in the member’s account within 30 days after the day on which the 45 administrator received notice of the death or any longer period permitted by the Superintendent.
2011-2012 Administrator’s duty
Régimes de pensio (2) The administrator must, without delay, provide, on the payment of any reasonable fee that the administrator may fix, the documents requested under paragraph (1)(c). DUTY TO PROVIDE INFORMATION
Annual reporting requirements
58. (1) The administrator of a pooled regis- 5 tered pension plan must file with the Superintendent — annually or at any other intervals or times that the Superintendent directs — an information return relating to that plan, containing the prescribed information. 10
Financial statements and other information
(2) The administrator of a pooled registered pension plan must file with the Superintendent prescribed financial statements and any other prescribed information at any intervals or times that the Superintendent directs. 15
Financial statements
(3) Except as otherwise specified by the Superintendent, the financial statements must be prepared in accordance with generally accepted accounting principles, the primary source of which is the Handbook of the 20 Canadian Institute of Chartered Accountants.
Form and manner of filings and time limit
(4) Every document required to be filed under this section must be filed in the form and manner that the Superintendent may direct and, unless otherwise directed by the Super- 25 intendent, be filed within three months after the end of the year to which the document relates.
Information to members
59. The administrator must provide to the members, at the time and in the manner specified by the Superintendent, any informa- 30 tion that the Superintendent specifies.
Information to Superintendent
60. The employer and the administrator must provide to the Superintendent, at the time and in the manner specified by the Superintendent, any information that the Superintendent specifies. 35 TERMINATION AND WINDING-UP
Termination of pooled registered pension plan
61. Only the Superintendent or the administrator may terminate a pooled registered pension plan.
Deemed termination
62. (1) The revocation of registration of a pooled registered pension plan is deemed to 40 constitute the termination of the plan.
26 Superintendent may declare plan terminated
Pooled registere (2) The Superintendent may declare a pooled registered pension plan terminated if (a) a bankruptcy order has been made against the administrator under the Bankruptcy and Insolvency Act; 5 (b) the administrator is the subject of a winding-up order under the Winding-up and Restructuring Act; (c) the administrator is the subject of proceedings under the Companies’ Creditors 10 Arrangement Act or Part III of the Bankruptcy and Insolvency Act; or (d) the administrator has discontinued or is in the process of discontinuing its business operations. 15
Date of termination
(3) The Superintendent’s declaration must specify that a pooled registered pension plan is terminated as of the date that the Superintendent considers appropriate in the circumstances.
Notification — employers and members
(4) An administrator must, not less than 60 20 days and not more than 180 days before the date on which it terminates a pooled registered pension plan, provide written notification of this termination to the employers that are participating in the plan and the members of 25 the plan. The notice must specify the date of the termination.
Notification — Superintendent
(5) An administrator must, not less than 60 and not more than 180 days before the date on which it terminates or winds up a pooled 30 registered pension plan, provide notification of this termination or winding-up to the Superintendent. The notice must specify the date of the termination or winding up and be in the form and manner directed by the Superintend- 35 ent.
Termination or winding up effective
(6) Subject to subsections (1) and (2), the termination is effective only if the administrator notifies the Superintendent in accordance with subsection (5). 40
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Régimes de pensio
Payments into members’ accounts
(7) If a pooled registered pension plan is terminated, the employer must remit to the administrator, and the administrator must pay into the members’ accounts, all amounts that are due as of the date of the termination. 5
Effect of termination on assets
(8) On the termination of a pooled registered pension plan, the assets of the plan continue to be subject to this Act.
Termination report
(9) On the termination of a pooled registered pension plan, the administrator of the plan must 10 file with the Superintendent, in the form and manner that the Superintendent may direct, a termination report prepared by a person having the prescribed qualifications. The report must also set out the amounts referred to in subsec- 15 tion (7) — calculated as of the date of termination — and contain any prescribed information.
Assets not to be used or transferred
(10) Assets of the pooled registered pension plan must not be used or transferred for any 20 purpose until the Superintendent has approved the termination report. However, the administrator of the plan may make variable payments, as they fall due, to any persons entitled to receive them. 25
Superintendent may direct winding-up
(11) If a pooled registered pension plan has been terminated and the Superintendent is of the opinion that no action or insufficient action has been taken to wind up the plan, the Superintendent may direct the administrator to 30 distribute the funds in the members’ accounts and may direct that any expenses incurred in connection with that distribution be paid out of the members’ accounts, and the administrator must comply with that direction without delay. 35 GENERAL
Designation of beneficiaries — provincial law
63. Except to the extent that they are inconsistent with this Act, any provisions of any provincial law respecting the designation of beneficiaries that would be applicable to a pension plan are deemed to apply to members 40 who are employed in included employment as though that employment were not included employment.
28 Electronic communications
Pooled registere 64. (1) Any requirement under this Act to provide a person with information, including information in a document, may be satisfied by the provision of an electronic document if (a) the addressee has consented and has 5 designated an information system for the receipt of the electronic document; (b) the electronic document is provided to the designated information system; and (c) the information in the electronic docu- 10 ment is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference.
Meaning of “information system”
(2) For the purposes of subsection (1), “information system” means a system used to 15 generate, send, receive, store or otherwise process an electronic document.
Revocation of consent
(3) An addressee may revoke the consent referred to in paragraph (1)(a).
Non-application
(4) Subsections (1) and (3) do not apply
(a) to any requirement under this Act to provide the Minister or the Superintendent with information;
(b) to any requirement under this Act, imposed on the Minister or the Superintend- 25 ent, to provide a person with information; or (c) to any requirement under this Act exempted, by regulation, from the application of those subsections. Communications by Minister or Superintendent
(5) For greater certainty, the Minister and the 30 Superintendent may use electronic means to communicate information, including information in a document, under this Act.
Signatures
65. A requirement under this Act for a signature is satisfied in relation to an electronic 35 document if any prescribed requirements are met and if the signature results from the use by a person of a technology or a process that permits the following to be proven:
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Régimes de pensio (a) the signature resulting from the use by the person of the technology or process is unique to them; (b) the technology or process is used by the person to incorporate, attach or associate their 5 signature to the electronic document; and (c) the technology or process can be used to identify its user.
Enforcement of direction
66. (1) A direction of the Superintendent may be made an order of the Federal Court and 10 is enforceable in the same manner as such an order.
Procedure
(2) To make a direction of the Superintendent an order of the Federal Court, the Superintendent must file with the registrar of the 15 Federal Court a certified copy of the direction, signed by the Superintendent, at which time the direction becomes an order of the court.
Effect of variation or rescission
(3) If a direction of the Superintendent that has been made an order of the Federal Court is 20 rescinded or varied by a subsequent direction of the Superintendent, the order of the Federal Court is deemed to have been cancelled and the subsequent direction may be made an order of the court. 25
Option to enforce
(4) The Superintendent may, before or after one of his or her directions is made an order of the Federal Court, enforce the direction by his or her own action.
Application to Federal Court
67. (1) If an administrator, employer or 30 other person has omitted to do anything under this Act that is required to be done by them or on their part or contravenes a provision of this Act or the regulations, the Superintendent may, in addition to any other action that the Super- 35 intendent may take, apply to the Federal Court for an order requiring the administrator, employer or other person to cease the contravention or to do anything that is required to be done, and on such an application the Federal Court may 40 make that order and make any other order that it thinks fit.
Appeal
(2) An appeal from an order made under subsection (1) lies in the same manner as an appeal from any other order of the Federal 45 Court.
Pooled registere
Superintendent may bring actions
68. In addition to any other action that the Superintendent may take in respect of a pooled registered pension plan, the Superintendent may institute against the administrator, employer or any other person any legal proceedings that a 5 member could institute.
Inspection
69. (1) The Superintendent or any person authorized in writing by the Superintendent may, for a purpose related to verifying compliance with this Act, 10 (a) examine any book, record or other document, regardless of its physical form or characteristics, relating to a pooled registered pension plan or to any securities, obligations or other investments in which any assets of 15 the pooled registered pension plan are invested; and (b) require the administrator of a pooled registered pension plan to furnish any information in any form that, in the Super- 20 intendent’s opinion, is necessary.
Powers of Superintendent
(2) The Superintendent has the same powers as those conferred on commissioners under Part II of the Inquiries Act with respect to the taking of evidence. 25
Payment of expenses
(3) If the Superintendent directs an administrator to pay the fees and expenses of persons appointed on a temporary basis from outside the public service for the purposes of an inspection under paragraph (1)(a), including their fees and 30 expenses related to preparing a report to the Superintendent, the administrator must not pay those fees and expenses from the assets of the plan.
No action against person for withholding, etc.
70. No action lies against any person for 35 withholding, deducting, paying or crediting any sum of money if they do so under this Act or in the belief that they are doing so under this Act.
Agreement in contravention of Act
71. Any agreement or arrangement that, in contravention of this Act, requires a person to 40 not withhold, deduct, pay or credit an amount is void or, in Quebec, null.
2011-2012 Agreement to transfer, etc.
Régimes de pensio 72. Subject to any other provision of this Act and the regulations, any agreement or arrangement to transfer, charge, anticipate or give as security any of the following is void or, in Quebec, null: 5 (a) any funds in an account with a pooled registered pension plan or a right or interest in those funds; or (b) any funds withdrawn from a member’s account under section 54 or a right or interest 10 in those funds.
Agreement to surrender
73. (1) Any agreement or arrangement to surrender any of the following is void or, in Quebec, null: (a) a right or interest in any funds in an 15 account with a pooled registered pension plan; or (b) a right or interest in any funds withdrawn from a member’s accounts under section 54.
Exception
(2) Subsection (1) does not apply to prevent 20 the surrender of an interest or right made under subsection 52(3).
Non-application of Statutory Instruments Act
74. The Statutory Instruments Act does not apply to a direction issued by the Superintendent under this Act. 25 OFFENCES AND PUNISHMENT
Offences
75. (1) Every person is guilty of an offence who (a) contravenes any provision of this Act or the regulations or a direction of the Superintendent given under this Act; 30 (b) to avoid compliance with a provision of this Act or the regulations, (i) destroys, alters, mutilates, secretes or otherwise disposes of any record, writing or other document, 35 (ii) in any record, writing or other document, makes a false or deceptive statement or a false or deceptive entry, or (iii) omits to furnish any material particular in any statement or in any record, 40 writing or other document;
Pooled registere (c) knowingly prevents or obstructs, or attempts to prevent or obstruct, another person from doing anything that the other person is authorized to do under section 69 or, unless unable to do so, fails to do anything 5 that is required to be done under that section; or (d) being an employer, fails to remit to the administrator all amounts that the employer is liable to so remit. 10
Defense of due diligence
(2) A person is not to be found guilty of an offence under paragraph (1)(a) or (d) if the person establishes that he or she exercised due diligence to prevent the commission of the offence. 15
Punishment
(3) A person who commits an offence under this Act is (a) in the case of a natural person, liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not 20 exceeding 12 months, or to both; and (b) in the case of a corporation or other body, liable on summary conviction to a fine not exceeding $500,000.
Remittance of amount owing
(4) The court may also order the employer 25 that is found guilty of the offence referred to in paragraph (1)(d) to remit to the administrator all amounts owing with interest.
Evidence
(5) In any prosecution for an offence under this Act, a certificate purporting to be signed by 30 the Superintendent or by any person on the Superintendent’s behalf certifying that a copy of a pooled registered pension plan or of an amendment to that plan was not filed with the Superintendent as required by this Act, or 35 certifying as to the registration of a pooled registered pension plan, is admissible in evidence and, in the absence of any evidence to the contrary, is proof of the matters so certified.
Limitation
(6) Proceedings in respect of an offence 40 under this Act may be commenced within two years after the day on which the subject matter of the proceedings became known to the Superintendent.
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Régimes de pensio
Certificate of Superintendent
(7) A document that appears to have been issued by the Superintendent, certifying the day on which the subject matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature 5 or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Corporations and other bodies
(8) If a corporation or other body commits an offence under this Act, an officer, a director, an 10 agent or mandatary or a member of the corporation or body who directed, authorized, assented to or acquiesced or participated in the commission of the offence is a party to the offence and liable, on summary conviction, to 15 the punishment provided for the offence, whether or not the corporation or body has been prosecuted or convicted.
Informations and complaints
(9) An information or complaint under this section may be laid or made by any officer of 20 the Office of the Superintendent of Financial Institutions, any member of the Royal Canadian Mounted Police or any person authorized in writing by the Minister. REGULATIONS
Governor in Council
76. (1) The Governor in Council may make 25 regulations (a) respecting the terms and conditions for issuing a licence, the method for recovering the costs of licensing, and the number and scope of pooled registered pension plans that 30 may be offered by an administrator; (b) designating any province in which there is in force legislation similar to this Act; (c) respecting the implementation of a multilateral agreement; 35 (d) exempting a multilateral agreement or any provision of that agreement from the application of subsection 7(1); (e) respecting the management and investment of funds in members’ accounts, includ- 40 ing the way in which the funds are to be held; (f) respecting the process by which investment options are offered by an administrator and choices among those options are made;
Pooled registere (g) respecting investment options offered by an administrator; (h) specifying the circumstances in which an administrator may change an investment choice made by a member; 5 (i) specifying the circumstances in which inducements may be given or offered by an administrator or demanded or accepted by an employer, and the types of inducements that may be given, offered, demanded or ac- 10 cepted; (j) establishing criteria for determining whether a pooled registered pension plan is low-cost for the purposes of section 26; (k) respecting the manner and frequency of 15 remittances from the employer to the administrator; (l) specifying the form and content of a notice to be provided under this Act as well as the manner in which and the period within 20 which it is to be provided; (m) respecting the setting of a contribution rate of 0% under subsection 45(2); (n) respecting the circumstances in which a member or administrator is permitted to 25 withdraw the funds in a member’s account; (o) defining “disability” for the purposes of paragraph 47(2)(a); (p) respecting variable payments; (q) respecting the transfer of funds from the 30 account of a member by the administrator; (r) respecting the distribution of the funds in members’ accounts with a pooled registered pension plan that is being wound up; (s) prescribing any measure necessary for the 35 purposes of sections 64 and 65, including the time when and circumstances under which an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided 40 or received; (t) exempting from the application of subsections 64(1) and (3) any requirement under this Act to provide a person with information;
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Régimes de pensio (u) prescribing anything that by this Act is to be prescribed; and (v) generally for carrying out the purposes and provisions of this Act.
Exceptions from included employment
(2) The Governor in Council may make 5 regulations excluding from included employment (a) employment by an agent of Her Majesty in right of Canada; and (b) any other employment if the Governor in 10 Council, on a report of the Minister, is satisfied that provision has been made for the coverage of employees employed in that employment under the terms of a pension plan that is organized and administered for 15 the benefit primarily of employees employed in other than included employment and that is required to be registered under the law of a designated province.
General or specific application
(3) A regulation made under this Act may be 20 made applicable generally to all pooled registered pension plans or specifically to one or more pooled registered pension plans.
Incorporation by reference
77. (1) A regulation made under this Act may incorporate by reference a document 25 produced by a person or body other than the Minister or the Superintendent.
Reproduced or translated document
(2) A regulation may incorporate by reference a document that the Minister or Superintendent reproduces or translates from a 30 document produced by a person or body other than the Minister or Superintendent, with any adaptations of form or reference that will facilitate its incorporation.
Jointly produced document
(3) A regulation may incorporate by refer- 35 ence a document that the Minister or Superintendent produces jointly with a provincial or government agency for the purpose of harmonizing the regulation with other laws.
Pooled registere
Scope of incorporation
(4) A document may be incorporated by reference as it exists on a particular date or as it is amended from time to time.
Defence
(5) No person may be convicted of an offence or subjected to a penalty for the 5 contravention of a regulation if a document that is relevant to the offence or contravention is incorporated by reference in the regulation unless it is proved that, at the time of the alleged contravention, the document was rea- 10 sonably accessible to the person or reasonable steps had been taken to ensure that the document was accessible to the public.
Registration and publication
(6) For greater certainty, a document that is incorporated by reference in a regulation is not 15 required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Exception
(7) A regulation that is specifically applicable to one pooled registered pension plan or 20 one employer may not incorporate by reference a document produced by the employer or administrator or any person related to either of them, including any body corporate that — within the meaning of subsections 2(2), (4) and 25 (5) of the Canada Business Corporations Act — is affiliated with either of them or is the holding body corporate or a subsidiary of either of them. ANNUAL REPORT
Annual report
78. The Superintendent must, as soon as feasible after the end of each fiscal year, submit 30 to the Minister a report on the operation of this Act during that year, and the Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day the Minister 35 receives it.
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Régimes de pensio RELATED AMENDMENTS
R.S., c. B-3; 1992, c. 27, s. 2
BANKRUPTCY AND INSOLVENCY ACT 79. (1) Subparagraph 60(1.5)(a)(ii) of the Bankruptcy and Insolvency Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B): (C) an amount equal to the sum of all 5 amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act, and 10 (2) Subparagraph 60(1.5)(a)(iii) of the Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B): (C) an amount equal to the sum of all 15 amounts that would have been required to be paid by the employer in respect of a prescribed plan, if it were regulated by the Pooled Registered Pension Plans Act; and 20 80. (1) Paragraph 81.5(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) an amount equal to the sum of all 25 amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act; and 30 (2) Paragraph 81.5(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i), by adding “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): 35 (iii) an amount equal to the sum of all amounts that would have been required to be paid by the employer in respect of a prescribed plan, if it were regulated by the Pooled Registered Pension Plans Act. 40
Pooled registere 81. (1) Paragraph 81.6(1)(b) of the Act is amended by striking out “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) an amount equal to the sum of all 5 amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act; and 10 (2) Paragraph 81.6(1)(c) of the Act is amended by striking out “and” at the end of subparagraph (i), by adding “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): 15 (iii) an amount equal to the sum of all amounts that would have been required to be paid by the employer in respect of a prescribed plan, if it were regulated by the Pooled Registered Pension Plans Act. 20
R.S., c. C-36
COMPANIES’ CREDITORS ARRANGEMENT ACT 82. (1) Subparagraph 6(6)(a)(ii) of the Companies’ Creditors Arrangement Act is amended by striking out “and” at the end of clause (B) and by adding the following 25 after clause (B): (C) an amount equal to the sum of all amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled 30 Registered Pension Plans Act, and (2) Subparagraph 6(6)(a)(iii) of the Act is amended by striking out “and” at the end of clause (B) and by adding the following after clause (B): 35 (C) an amount equal to the sum of all amounts that would have been required to be paid by the employer in respect of a prescribed plan, if it were regulated by the Pooled Registered Pension Plans 40 Act; and
2011-2012 R.S., c. H-6
Régimes de pensio CANADIAN HUMAN RIGHTS ACT 83. Subsection 15(1) of the Canadian Human Rights Act is amended by adding the following after paragraph (d): (d.1) the terms of any pooled registered pension plan provide for variable payments 5 or the transfer of funds only at a fixed age under sections 48 or 55, respectively, of the Pooled Registered Pension Plans Act;
R.S., c. 32 (2nd Supp.)
PENSION BENEFITS STANDARDS ACT, 1985 84. Subsection 4(2) of the Pension Benefits Standards Act, 1985 is amended by striking 10 out “or” at the end of paragraph (b) and by adding the following after paragraph (b): (b.1) a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act; or 15
1998, c. 12, s. 5
85. Subsection 7(2) of the Act is repealed.
1998, c. 12, s. 6(5)
86. (1) The portion of subsection 8(10) of the Act before paragraph (a) is replaced by the following:
Other conflicts of interest
(10) If there is a material conflict of interest 20 between the role of an employer who is an administrator and their role in any other capacity, the administrator
1998, c. 12, s. 6(5)
(2) Paragraph 8(10)(a) of the French version of the Act is replaced by the 25 following: a) faire part du conflit au conseil des pensions ou aux participants du régime de pension dans les trente jours suivant le moment où il en constate l’existence; 30
2010, c. 12, s. 1799
87. Section 10.2 of the Act is renumbered as subsection 10.2(1) and is amended by adding the following:
Transfer to pooled registered pension plan
(2) Subject to section 26, the administrator may transfer or permit the transfer of any part of 35 the assets of the pension plan to a pooled registered pension plan, within the meaning of
Pooled registere subsection 2(1) of the Pooled Registered Pension Plans Act, only with the Superintendent’s permission.
1998, c. 12, s. 16(4)
88. Subsection 26(5) of the Act is amended by striking out “and” at the end of para- 5 graph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b): (c) a pooled registered pension plan, as defined in subsection 2(1) of the Pooled 10 Registered Pension Plans Act.
1998, c. 12, s. 26(1)
89. Paragraph 39(1)(a.1) of the Act is repealed.
R.S., c. 18 (3rd Supp.), Part I
OFFICE OF THE SUPERINTENDENT OF FINANCIAL INSTITUTIONS ACT
1998, c. 12, s. 27
90. The definition “pension plan” in section 3 of the Office of the Superintendent of 15 Financial Institutions Act is replaced by the following:
“pension plan” « régime de pension »
“pension plan” has the same meaning as in subsection 2(1) of the Pension Benefits Standards Act, 1985 or has the meaning assigned by 20 the definition “pooled registered pension plan” in subsection 2(1) of the Pooled Registered Pension Plans Act, as the case may be;
1998, c. 12, s. 29(2)
91. (1) Paragraph 4(2.1)(a) of the Act is replaced by the following: 25 (a) to supervise pension plans to determine whether they meet the minimum funding requirements and are complying with the other requirements of the Pension Benefits Standards Act, 1985 and the Pooled Regis- 30 tered Pension Plans Act and their regulations and supervisory requirements under that legislation;
1998, c. 12, s. 29(2)
(2) Paragraph 4(2.1)(b) of the English version of the Act is replaced by the 35 following:
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Régimes de pensio (b) to promptly advise the administrator of a pension plan in the event that the plan is not meeting the minimum funding requirements or is not complying with other requirements of the Pension Benefits Standards Act, 1985 5 or the Pooled Registered Pension Plans Act or their regulations or supervisory requirements under that legislation and, in such a case, to take, or require the administrator to take, the necessary corrective measures or 10 series of measures to deal with the situation in an expeditious manner; and
2001, c. 9, s. 476
“financial institutions Act” « loi sur les institutions financières »
92. The definition “financial institutions Act” in subsection 24(1) of the Act is replaced by the following: 15 “financial institutions Act” means the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act, the Pension Benefits Standards Act, 1985, the Pooled Registered Pension Plans Act and the Trust and Loan 20 Companies Act. 93. The schedule to the Act is amended by adding the following in alphabetical order: Pooled Registered Pension Plans Act Loi sur les régimes de pension agréés 25 collectifs COORDINATING AMENDMENT
2010, c. 25
94. On the first day on which both subsection 175(1) of the Sustaining Canada’s Economic Recovery Act and section 10 of this Act are in force, paragraphs 23(1.1)(a) and 30 (b) of the Office of the Superintendent of Financial Institutions Act are replaced by the following: (a) estimate the total amount of expenses to be incurred by the Office during the follow- 35 ing fiscal year for or in connection with the administration of the Pension Benefits Standards Act, 1985 and the Pooled Registered Pension Plans Act; and (b) ascertain the total amount of expenses 40 incurred by the Office during the preceding fiscal year for or in connection with the
Pooled registere administration of the Pension Benefits Standards Act, 1985 and the Pooled Registered Pension Plans Act. COMING INTO FORCE
Order in Council
95. This Act comes into force on a day to be fixed by order of the Governor in Council. 5
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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C-31 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-31 An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act
AS PASSED BY THE HOUSE OF COMMONS JUNE 11, 2012
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act”.
SUMMARY This enactment amends the Immigration and Refugee Protection Act and the Balanced Refugee Reform Act to, among other things, provide for the expediting of the processing of refugee protection claims. The Immigration and Refugee Protection Act is also amended to authorize the Minister, in certain circumstances, to designate as an irregular arrival the arrival in Canada of a group of persons and to provide for the effects of such a designation in respect of those persons, including in relation to detention, conditions of release from detention and applications for permanent resident status. In addition, the enactment amends certain enforcement provisions of that Act, notably to expand the scope of the offence of human smuggling and to provide for minimum punishments in relation to that offence. Furthermore, the enactment amends that Act to expand sponsorship options in respect of foreign nationals and to require the provision of biometric information when an application for a temporary resident visa, study permit or work permit is made.
In addition, the enactment amends the Marine Transportation Security Act to increase the penalties for persons who fail to provide information that is required to be reported before a vessel enters Canadian waters or to comply with ministerial directions and for persons who provide false or misleading information. It creates a new offence in respect of vessels that fail to comply with ministerial directions and authorizes the making of regulations respecting the disclosure of certain information for the purpose of protecting the safety or security of Canada or Canadians. Finally, the enactment amends the Department of Citizenship and Immigration Act to enhance the authority for the Minister of Citizenship and Immigration to enter into agreements and arrangements with foreign governments, and to provide services to the Canada Border Services Agency.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-31 An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
2001, c. 27
1. This Act may be cited as the Protecting Canada’s Immigration System Act. 5 IMMIGRATION AND REFUGEE PROTECTION ACT 2. Subsection 2(1) of the Immigration and Refugee Protection Act is amended by adding the following in alphabetical order:
“designated foreign national” « étranger désigné »
“designated foreign national” has the meaning assigned by subsection 20.1(2). 10 3. Subsection 6(3) of the Act is replaced by the following:
Exception
(3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1) or 77(1) or the ability to make 15 determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a). 4. The headings before section 11 of the Act are replaced by the following:
Immigration and Refugee Protection, Balanc Security and Department of C PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS AND SELECTION Requirements 5. Section 11 of the Act is amended by adding the following after subsection (1):
Restriction
(1.1) A designated foreign national may not make an application for permanent residence under subsection (1) 5 (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; 10 (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or (c) in any other case, until five years after the 15 day on which they become a designated foreign national.
Suspension of application
(1.2) The processing of an application for permanent residence under subsection (1) of a foreign national who, after the application is 20 made, becomes a designated foreign national is suspended (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years 25 after the day on which a final determination in respect of the claim is made; (b) if the foreign national has made an application for protection, until five years after the day on which a final determination 30 in respect of the application is made; or (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Refusal to consider application
(1.3) The officer may refuse to consider an 35 application for permanent residence made under subsection (1) if
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Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; 5 and (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.1) or (1.2). 6. The Act is amended by adding the 10 following after section 11:
Biometric information
11.1 A prescribed foreign national who makes an application for a temporary resident visa, study permit or work permit must follow the prescribed procedures for the collection of 15 prescribed biometric information. 7. Subsections 13(1) to (3) of the Act are replaced by the following:
Sponsorship of foreign nationals
13. (1) A Canadian citizen or permanent resident, or a group of Canadian citizens or 20 permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law — or any combination of them — may sponsor a foreign 25 national, subject to the regulations. 8. The Act is amended by adding the following after section 13: Undertakings
Undertaking binding
13.1 An undertaking given under this Act in respect of a foreign national — including a 30 sponsorship undertaking — is binding on the person who gives it.
Undertaking required
13.2 (1) If required to do so by the regulations, a foreign national who makes an application for a visa or for permanent or temporary 35 resident status must obtain the undertaking specified in the regulations.
Minister’s instructions
(2) An officer must apply the regulations made under paragraph 14(2)(e.1) in accordance with any instructions that the Minister may give. 40 9. (1) Paragraph 14(2)(e) of the Act is replaced by the following: (e) sponsorships;
Immigration and Refugee Protection, Balanc Security and Department of C (e.1) undertakings, and penalties for failure to comply with undertakings; (2) Section 14 of the Act is amended by adding the following after subsection (2):
Biometric information
(3) The regulations may provide for any 5 matter relating to the application of section 11.1, including (a) the circumstances in which a foreign national is exempt from the requirement to follow the procedures prescribed under that 10 section; (b) the circumstances in which a foreign national is not required to provide certain biometric information; and (c) the processing of the collected biometric 15 information, including creating biometric templates or converting the information into digital biometric formats. 10. The Act is amended by adding the following after section 20: 20
Designation — human smuggling or other irregular arrival
20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she (a) is of the opinion that examinations of the 25 persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or 30 (b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a 35 criminal organization or terrorist group.
Effect of designation
(2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the 40 subject of the designation becomes a designated foreign national unless, on arrival, they hold the
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Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.
Statutory Instruments Act
Application for permanent residence — restriction
(3) An order made under subsection (1) is not a statutory instrument for the purposes of the 5 Statutory Instruments Act. However, it must be published in the Canada Gazette. 20.2 (1) A designated foreign national may not apply to become a permanent resident (a) if they have made a claim for refugee 10 protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; (b) if they have made an application for 15 protection, until five years after the day on which a final determination in respect of the application is made; or (c) in any other case, until five years after the day on which they become a designated 20 foreign national.
Suspension of application for permanent residence
(2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended 25 (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; 30 (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or (c) in any other case, until five years after the 35 day on which the foreign national becomes a designated foreign national.
Refusal to consider application
(3) The officer may refuse to consider an application for permanent residence if (a) the designated foreign national fails, 40 without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and 45
Immigration and Refugee Protection, Balanc Security and Department of C (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).
11. (1) Subsection 21(2) of the Act is replaced by the following: 5 Protected person
(2) Except in the case of a person who is a member of a prescribed class of persons, a person who has made a claim for refugee protection or an application for protection and who has been finally determined by the Board 10 to be a Convention refugee or to be a person in need of protection, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their 15 application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38. (2) Section 21 of the Act is amended by 20 adding the following after subsection (2):
Pending application — subsection 108(2)
(3) A person in respect of whom the Minister has made an application under subsection 108(2) may not become a permanent resident under subsection (2) while the application is 25 pending. 12. Section 24 of the Act is amended by adding the following after subsection (4):
Restriction — designated foreign national
(5) A designated foreign national may not request a temporary resident permit 30 (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; 35 (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
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Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Suspension of request
(6) The processing of a request for a temporary resident permit of a foreign national 5 who, after the request is made, becomes a designated foreign national is suspended (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years 10 after the day on which a final determination in respect of the claim is made; (b) if the foreign national has made an application for protection, until five years after the day on which a final determination 15 in respect of the application is made; or (c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.
Refusal to consider request
(7) The officer may refuse to consider a 20 request for a temporary resident permit if (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any require- 25 ment imposed on them under section 98.1; and (b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6). 30
2010, c. 8, s. 4(1)
13. (1) Subsection 25(1) of the Act is replaced by the following:
Humanitarian and compassionate considerations — request of foreign national
25. (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident 35 status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the 40 foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate 45
Immigration and Refugee Protection, Balanc Security and Department of C considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Restriction — designated foreign national
(1.01) A designated foreign national may not make a request under subsection (1) 5 (a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; 10 (b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or (c) in any other case, until five years after the 15 day on which they become a designated foreign national.
Suspension of request
(1.02) The processing of a request under subsection (1) of a foreign national who, after the request is made, becomes a designated 20 foreign national is suspended (a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination 25 in respect of the claim is made; (b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or 30 (c) in any other case, until five years after the day on which they become a designated foreign national.
Refusal to consider request
(1.03) The Minister may refuse to consider a request under subsection (1) if 35 (a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; 40 and (b) less than 12 months have passed since the end of the applicable period referred to in subsection (1.01) or (1.02).
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Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit
2010, c. 8, s. 4(1)
(2) Subsection 25(1.1) of the French version of the Act is replaced by the following:
Paiement des frais
(1.1) Le ministre n’est saisi de la demande faite au titre du paragraphe (1) que si les frais afférents ont été payés au préalable. 5
2010, c. 8, s. 4(1)
(3) Subsection 25(1.2) of the Act is replaced by the following:
Exceptions
(1.2) The Minister may not examine the request if (a) the foreign national has already made 10 such a request and the request is pending; (b) the foreign national has made a claim for refugee protection that is pending before the Refugee Protection Division or the Refugee Appeal Division; or 15 (c) subject to subsection (1.21), less than 12 months have passed since the foreign national’s claim for refugee protection was last rejected, determined to be withdrawn after substantive evidence was heard or determined 20 to be abandoned by the Refugee Protection Division or the Refugee Appeal Division.
Exception to paragraph (1.2)(c)
(1.21) Paragraph (1.2)(c) does not apply in respect of a foreign national (a) who, in the case of removal, would be 25 subjected to a risk to their life, caused by the inability of each of their countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, to provide adequate health or 30 medical care; or (b) whose removal would have an adverse effect on the best interests of a child directly affected.
2010, c. 8, s. 4(1)
(4) Subsection 25(1.3) of the French ver- 35 sion of the Act is replaced by the following:
Non-application de certains facteurs
(1.3) Le ministre, dans l’étude de la demande faite au titre du paragraphe (1) d’un étranger se trouvant au Canada, ne tient compte d’aucun
Immigration and Refugee Protection, Balanc Security and Department of C des facteurs servant à établir la qualité de réfugié — au sens de la Convention — aux termes de l’article 96 ou de personne à protéger au titre du paragraphe 97(1); il tient compte, toutefois, des difficultés auxquelles l’étranger 5 fait face.
2010, c. 8, s. 5
14. (1) Subsection 25.2(1) of the Act is replaced by the following:
Public policy considerations
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national 10 who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any 15 conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations. (2) Section 25.2 of the Act is amended by adding the following after subsection (3): 20
Conditions
(4) The conditions referred to in subsection (1) may include a requirement for the foreign national to obtain an undertaking or to obtain a determination of their eligibility from a third party that meets any criteria specified by the 25 Minister. 15. Section 26 of the Act is amended by striking out “and” at the end of paragraph (d) and by adding the following after paragraph (d): 30 (d.1) undertakings that may or must be given in respect of requests made under subsection 25(1) or undertakings referred to in subsection 25.2(4), and penalties for failure to comply with undertakings; 35 (d.2) the determination of eligibility referred to in subsection 25.2(4); and 16. The Act is amended by adding the following after section 31: Refugee Travel Document
Designated foreign national
31.1 For the purposes of Article 28 of the 40 Refugee Convention, a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24. 17. Paragraph 40(1)(c) of the Act is replaced by the following: 5 (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or 18. The Act is amended by adding the following after section 40: 10
Cessation of refugee protection — foreign national
40.1 (1) A foreign national is inadmissible on a final determination under subsection 108(2) that their refugee protection has ceased.
Cessation of refugee protection — permanent resident
(2) A permanent resident is inadmissible on a final determination that their refugee protection 15 has ceased for any of the reasons described in paragraphs 108(1)(a) to (d). 19. (1) Subsection 46(1) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following 20 after paragraph (c): (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d); or 25 (2) Paragraph 46(1)(d) of the English version of the Act is replaced by the following: (d) on a final determination under section 109 to vacate a decision to allow their claim 30 for refugee protection or a final determination to vacate a decision to allow their application for protection. 20. Subsection 48(2) of the Act is replaced by the following: 35
Effect
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible. 21. Paragraph 49(2)(c) of the Act is 40 replaced by the following:
Immigration and Refugee Protection, Balanc Security and Department of C (c) if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the 5 claim is rejected; 22. Paragraph 53(e) of the Act is replaced by the following: (e) the effect and enforcement of removal orders, including the consideration of factors 10 in the determination of when enforcement is possible; 23. (1) Subsection 55(1) of the Act is replaced by the following:
Arrest and detention with warrant
55. (1) An officer may issue a warrant for 15 the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility 20 hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2). (2) Paragraph 55(3)(b) of the Act is 25 replaced by the following: (b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security, violating human or international rights, serious crim- 30 inality, criminality or organized criminality. (3) Section 55 of the Act is amended by adding the following after subsection (3):
Mandatory arrest and detention — designated foreign national
(3.1) If a designation is made under subsection 20.1(1), an officer must 35 (a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national and who is 16 years of age or older on the day of the arrival that is the subject of the 40 designation; or (b) arrest and detain without a warrant — or issue a warrant for the arrest and detention of — a foreign national who, after their entry
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit into Canada, becomes a designated foreign national as a result of the designation and who was 16 years of age or older on the day of the arrival that is the subject of the designation. 5 24. Section 56 of the Act is renumbered as subsection 56(1) and is amended by adding the following:
Period of detention — designated foreign national
(2) Despite subsection (1), a designated foreign national who is detained under this 10 Division and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question must be detained until (a) a final determination is made to allow their claim for refugee protection or applica- 15 tion for protection; (b) they are released as a result of the Immigration Division ordering their release under section 58; or (c) they are released as a result of the 20 Minister ordering their release under section 58.1. 25. The Act is amended by adding the following after section 57:
Initial review — designated foreign national
57.1 (1) Despite subsections 57(1) and (2), 25 in the case of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, the Immigration Division must review the reasons for their continued detention within 30 14 days after the day on which that person is taken into detention, or without delay afterward.
Further review — designated foreign national
(2) Despite subsection 57(2), in the case of the designated foreign national referred to in subsection (1), the Immigration Division must 35 review again the reasons for their continued detention on the expiry of six months following the conclusion of the previous review and may not do so before the expiry of that period.
Presence
(3) In a review under subsection (1) or (2), 40 the officer must bring the designated foreign national before the Immigration Division or to a place specified by it. 26. (1) Paragraphs 58(1)(c) and (d) of the Act are replaced by the following: 45
Immigration and Refugee Protection, Balanc Security and Department of C (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized 5 criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is 10 the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity 15 or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 20 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. (1.1) Section 58 of the Act is amended by adding the following after subsection (1): 25
Continued detention — designated foreign national
(1.1) Despite subsection (1), on the conclusion of a review under subsection 57.1(1), the Immigration Division shall order the continued detention of the designated foreign national if it is satisfied that any of the grounds described in 30 paragraphs (1)(a) to (c) and (e) exist, and it may not consider any other factors. (2) Section 58 of the Act is amended by adding the following after subsection (3):
Conditions — designated foreign national
(4) If the Immigration Division orders the 35 release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, it shall also impose any condition that is prescribed. 40 27. The Act is amended by adding the following after section 58:
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit
Release — on request
58.1 (1) The Minister may, on request of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question, order their release from detention if, in the Minister’s 5 opinion, exceptional circumstances exist that warrant the release.
Release — Minister’s own initiative
(2) The Minister may, on the Minister’s own initiative, order the release of a designated foreign national who was 16 years of age or 10 older on the day of the arrival that is the subject of the designation in question if, in the Minister’s opinion, the reasons for the detention no longer exist.
Conditions
(3) If the Minister orders the release of a 15 designated foreign national, the Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary. 20 28. Paragraph 61(a) of the Act is replaced by the following: (a) grounds for and criteria with respect to the release of persons from detention; (a.1) the type of conditions that an officer, 25 the Immigration Division or the Minister may impose with respect to the release of a person from detention; (a.2) the type of conditions that the Immigration Division must impose with respect to 30 the release of a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question;
2008, c. 28, s. 118
29. Subsection 87.3(1) of the Act is re- 35 placed by the following:
Application
87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to 40 sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by
Immigration and Refugee Protection, Balanc Security and Department of C foreign nationals in Canada and to requests under subsection 25(1) made by foreign nationals outside Canada. 30. Section 89 of the Act is renumbered as subsection 89(1) and is amended by adding 5 the following:
User Fees Act
(2) The User Fees Act does not apply to a fee for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of related 10 services. 31. (1) Paragraph 95(1)(c) of the Act is replaced by the following: (c) the Board allows their application for protection. 15 (2) Subsection 95(2) of the Act is replaced by the following:
Protected person
(2) A protected person is a person on whom refugee protection is conferred under subsection (1) and whose claim or application has not 20 subsequently been deemed to be rejected under subsection 108(3) or 109(3). 32. The Act is amended by adding the following after section 98:
Requirement to report
98.1 (1) A designated foreign national on 25 whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.
Obligation when reporting
(2) A designated foreign national who is required to report to an officer must answer 30 truthfully all questions put to him or her and must provide any information and documents that the officer requests.
Regulations
98.2 The regulations may provide for any matter relating to the application of section 98.1 35 and may include provisions respecting the requirement to report to an officer. 33. Section 99 of the Act is amended by adding the following after subsection (3):
Claim made inside Canada — not at port of entry
(3.1) A person who makes a claim for 40 refugee protection inside Canada other than at a port of entry must provide the officer, within the time limits provided for in the regulations, with the documents and information — includ2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit ing in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules. 34. Paragraphs 101(2)(a) and (b) of the Act are replaced by the following: 5 (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or 10 (b) in the case of inadmissibility by reason of a conviction outside Canada, the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of 15 imprisonment of at least 10 years. 35. (1) The portion of subsection 103(1) of the Act before paragraph (a) is replaced by the following:
Suspension
103. (1) Proceedings of the Refugee Protec- 20 tion Division in respect of a claim for refugee protection are suspended on notice by an officer that (2) Subsection 103(2) of the English version of the Act is replaced by the following: 25
Continuation
(2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division must continue.
2010, c. 8, s. 13(1)
36. (1) Subsections 110(1) and (2) of the 30 Act are replaced by the following:
Appeal
110. (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, 35 to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.
Notice of appeal
(1.1) The Minister may satisfy any require- 40 ment respecting the manner in which an appeal is filed and perfected by submitting a notice of appeal and any supporting documents.
18 Restriction on appeals
Immigration and Refugee Protection, Balanc Security and Department of C (2) No appeal may be made in respect of any of the following: (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign 5 national; (b) a determination that a refugee protection claim has been withdrawn or abandoned; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protec- 10 tion that states that the claim has no credible basis or is manifestly unfounded; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if 15 (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and 20 that is a party to an agreement referred to in paragraph 102(2)(d), and (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be 25 referred to the Refugee Protection Division; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that 30 refugee protection has ceased; (f) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. 35
2010, c. 8, s. 13(2)
(2) Subsection 110(3) of the Act is replaced by the following:
Procedure
(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of 40 the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is 45 conducted before a panel of three members,
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board.
2010, c. 8, s. 14
37. Subsection 111(1.1) of the Act is 5 repealed.
2010, c. 8, s. 15(3)
38. (1) Paragraph 112(2)(b.1) of the Act is replaced by the following:
(b.1) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a 10 national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 15 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; 20 (1.1) Paragraphs 112(2)(c) and (d) of the Act are replaced by the following: (c) less than 12 months have passed since their last application for protection was rejected or determined to be withdrawn or 25 abandoned by the Refugee Protection Division or the Minister. (2) Paragraph 112(3)(b) of the Act is replaced by the following: (b) is determined to be inadmissible on 30 grounds of serious criminality with respect to a conviction in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years or with respect to a conviction 35 outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; 40 39. (1) The portion of paragraph 113(d) of the Act before subparagraph (i) is replaced by the following:
Immigration and Refugee Protection, Balanc Security and Department of C (d) in the case of an applicant described in subsection 112(3) — other than one described in subparagraph (e)(i) or (ii) — consideration shall be on the basis of the factors set out in section 97 and 5 (2) Section 113 of the Act is amended by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d): (e) in the case of the following applicants, consideration shall be on the basis of sections 10 96 to 98 and subparagraph (d)(i) or (ii), as the case may be: (i) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction in 15 Canada punishable by a maximum term of imprisonment of at least 10 years for which a term of imprisonment of less than two years — or no term of imprisonment — was imposed, and 20 (ii) an applicant who is determined to be inadmissible on grounds of serious criminality with respect to a conviction of an offence outside Canada that, if committed in Canada, would constitute an offence 25 under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, unless they are found to be a person referred to in section F of Article 1 of the Refugee Convention. 30 40. The Act is amended by adding the following after section 113:
Regulations
113.1 The regulations may include provisions respecting the time limits for the making of a decision by the Refugee Protection 35 Division with respect to an application for protection, the extension of those time limits and the circumstances in which they do not apply. 41. (1) Subsection 117(1) of the Act is 40 replaced by the following:
Organizing entry into Canada
117. (1) No person shall organize, induce, aid or abet the coming into Canada of one or more persons knowing that, or being reckless as to whether, their coming into Canada is or 45 would be in contravention of this Act.
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (2) The portion of subsection 117(2) of the French version of the Act before paragraph (a) is replaced by the following:
Peines
(2) Quiconque contrevient au paragraphe (1) relativement à moins de dix personnes commet 5 une infraction et est passible, sur déclaration de culpabilité : (3) Subsection 117(3) of the French version of the Act is replaced by the following:
Peines
(3) Quiconque contrevient au paragraphe (1) 10 relativement à un groupe de dix personnes et plus commet une infraction et est passible, sur déclaration de culpabilité par mise en accusation, d’une amende maximale de un million de dollars et de l’emprisonnement à perpétuité, ou 15 de l’une de ces peines. (4) Section 117 of the Act is amended by adding the following after subsection (3):
Minimum penalty — fewer than 50 persons
(3.1) A person who is convicted on indictment of an offence under subsection (2) or (3) 20 with respect to fewer than 50 persons is also liable to a minimum punishment of imprisonment for a term of (a) three years, if either (i) the person, in committing the offence, 25 endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, or (ii) the commission of the offence was for 30 profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or (b) five years, if both (i) the person, in committing the offence, 35 endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was committed, and (ii) the commission of the offence was for 40 profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group.
22 Minimum penalty — 50 persons or more
Immigration and Refugee Protection, Balanc Security and Department of C (3.2) A person who is convicted of an offence under subsection (3) with respect to a group of 50 persons or more is also liable to a minimum punishment of imprisonment for a term of 5 (a) five years, if either (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was 10 committed, or (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group; or 15 (b) 10 years, if both (i) the person, in committing the offence, endangered the life or safety of, or caused bodily harm or death to, any of the persons with respect to whom the offence was 20 committed, and (ii) the commission of the offence was for profit, or was for the benefit of, at the direction of or in association with a criminal organization or terrorist group. 25 42. (1) The portion of subsection 121(1) of the Act before paragraph (b) is replaced by the following:
Aggravating factors
121. (1) The court, in determining the penalty to be imposed under section 120, shall take 30 into account whether (a) bodily harm or death occurred, or the life or safety of any person was endangered, as a result of the commission of the offence; (2) Paragraph 121(1)(d) of the French 35 version of the Act is replaced by the following: d) par suite de la perpétration de l’infraction, une personne a été soumise à un traitement dégradant ou attentatoire à la dignité hu- 40 maine, notamment en ce qui touche les activités professionnelles, la santé ou l’exploitation sexuelle. (3) Subsection 121(2) of the Act is repealed. 45
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit 43. The Act is amended by adding the following after section 121:
Definition of “criminal organization”
121.1 (1) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and (b)(ii) and paragraph 121(b), “criminal organi- 5 zation” means a criminal organization as defined in subsection 467.1(1) of the Criminal Code.
Definition of “terrorist group”
(2) For the purposes of subparagraphs 117(3.1)(a)(ii) and (b)(ii) and (3.2)(a)(ii) and 10 (b)(ii), “terrorist group” means a terrorist group as defined in subsection 83.01(1) of the Criminal Code. 44. (1) The portion of subsection 123(2) of the French version of the Act before para- 15 graph (a) is replaced by the following:
Circonstances aggravantes
(2) Le tribunal tient compte dans l’infliction de la peine des circonstances suivantes : (2) Paragraph 123(2)(a) of the Act is replaced by the following: 20 (a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121.1(1); and
2001, c. 32, par. 81(3)(b)
45. Section 131 of the French version of 25 the Act is replaced by the following:
Aide
131. Commet une infraction quiconque, sciemment, incite, aide ou encourage ou tente d’inciter, d’aider ou d’encourager une personne à commettre toute infraction visée aux articles 30 117, 118, 119, 122, 124 ou 129 ou lui conseille de la commettre; l’auteur est passible, sur déclaration de culpabilité, de la peine prévue à la disposition en cause.
2011, c. 8, s. 3
46. Section 133.1 of the Act is replaced by 35 the following:
Limitation period for summary conviction offences
133.1 (1) A proceeding by way of summary conviction for an offence under section 117, 126 or 127, or section 131 as it relates to section 117, may be instituted at any time within, but 40 not later than, 10 years after the day on which the subject-matter of the proceeding arose, and a proceeding by way of summary conviction for any other offence under this Act may be
Immigration and Refugee Protection, Balanc Security and Department of C instituted at any time within, but not later than, five years after the day on which the subjectmatter of the proceeding arose.
Application
(2) Subsection (1) does not apply if the subject-matter of the proceeding arose before 5 the day on which this section comes into force.
2005, c. 38, s. 119(1)
47. (1) Paragraph 150.1(1)(b) of the Act is replaced by the following: (b) the disclosure of information for the purposes of national security, the defence of 10 Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 or 5.1 of the Department of Citizenship and Immigration Act or section 15 13 of the Canada Border Services Agency Act; (2) Subsection 150.1(1) of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following 20 after paragraph (c): (d) the retention, use, disclosure and disposal by the Royal Canadian Mounted Police of biometric information and any related personal information that is provided to it under this 25 Act for the enforcement of any law of Canada or a province.
48. Section 153 of the Act is amended by adding the following after subsection (1): Public Service Employment Act
(1.1) A member of the Refugee Protection 30 Division may be appointed in accordance with the Public Service Employment Act rather than under paragraph (1)(a). 49. Section 161 of the Act is amended by adding the following after subsection (1): 35
Distinctions
(1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere. 40
2011-2012 2008, c. 3, s. 5(2)(E)
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit 50. (1) Paragraph 166(c) of the Act is replaced by the following: (c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in 5 the absence of the public; (c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding 10 before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending; (2) Paragraph 166(d) of the French ver- 15 sion of the Act is replaced by the following: d) sur demande ou d’office, la publicité des débats peut être accordée, assortie de toute mesure jugée nécessaire pour en assurer la confidentialité, sur preuve, après examen de 20 toutes les solutions de rechange à la disposition de la section et des facteurs visés à l’alinéa b), qu’il est indiqué de le faire; (3) Paragraph 166(e) of the Act is replaced by the following: 25 (e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for 30 refugee protection or an application for protection; and 51. The Act is amended by adding the following before the heading before section 171: 35
No reopening of claim or application
170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application 40 for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.
2010, c. 8, s. 28(1)
52. Paragraph 171(a.4) of the Act is 45 replaced by the following:
Immigration and Refugee Protection, Balanc Security and Department of C (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; (a.5) the Minister may, at any time before the 5 Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; 53. The Act is amended by adding the 10 following after section 171:
No reopening of appeal
171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — an appeal in respect of which 15 the Federal Court has made a final determination. 54. The Act is amended by adding the following after section 201:
Subsection 15(1) of Balanced Refugee Reform Act
201.1 The regulations may provide for 20 measures regarding the transition — in respect of an application for protection — between this Act, as it read immediately before the day on which subsection 15(1) of the Balanced Refugee Reform Act comes into force, and this Act, as it 25 read on the day on which that subsection comes into force.
2010, c. 8, s. 31
55. Section 275 of the Act is replaced by the following:
Order in council
275. Sections 73, 110, 111, 171, 194 and 195 30 come into force on a day to be fixed by order of the Governor in Council.
2010, c. 8
BALANCED REFUGEE REFORM ACT
56. Subsection 11(2) of the Balanced Refugee Reform Act is amended by replacing the subsections 100(4) and (4.1) that it enacts 35 with the following: Documents and information to be provided
(4) A person who makes a claim for refugee protection inside Canada at a port of entry and whose claim is referred to the Refugee Protection Division must provide the Division, within 40 the time limits provided for in the regulations,
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit with the documents and information — including in respect of the basis for the claim — required by the rules of the Board, in accordance with those rules.
Date of hearing
(4.1) The referring officer must, in accord- 5 ance with the regulations, the rules of the Board and any directions of the Chairperson of the Board, fix the date on which the claimant is to attend a hearing before the Refugee Protection Division. 10 57. Section 11.1 of the Act is amended by replacing the section 107.1 that it enacts with the following:
Manifestly unfounded
107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must 15 state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent. 58. Section 12 of the Act is amended by replacing the section 109.1 that it enacts with 20 the following:
Designation of countries of origin
109.1 (1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and section 111.1.
Limitation
(2) The Minister may only make a designa- 25 tion (a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has 30 made a final determination is equal to or greater than the number provided for by order of the Minister, (i) if the rate, expressed as a percentage, that is obtained by dividing the total 35 number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or 40 abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the 45 percentage provided for in the order, or
Immigration and Refugee Protection, Balanc Security and Department of C (ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the 5 period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during 10 the same period, made a final determination is equal to or greater than the percentage provided for in the order; or (b) in the case where the number of claims for refugee protection made in Canada by 15 nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the 20 country in question (i) there is an independent judicial system, (ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are 25 infringed, and (iii) civil society organizations exist.
Order of Minister
Statutory Instruments Act
(3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2). 30 (4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette. 59. Section 14.1 of the Act is amended by 35 replacing the section 111.1 that it enacts with the following:
Regulations
111.1 (1) The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting 40 (a) time limits for the provision of documents and information under subsection 99(3.1) or 100(4); (b) time limits for the hearing referred to in subsection 100(4.1); 45
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (c) exceptions to the application of paragraph 110(2)(d); (d) time limits for the filing and perfecting of an appeal under subsection 110(2.1); and (e) time limits for the making of a decision 5 by the Refugee Appeal Division, the extension of those time limits and the circumstances in which they do not apply.
Clarification — regulations made under paragraph (1)(b)
(2) With respect to claimants who are nationals of a country that is, on the day on 10 which their claim is made, a country designated under subsection 109.1(1), regulations made under paragraph (1)(b) may provide for time limits that are different from the time limits for other claimants. 15 60. (1) Subsection 15(1) of the Act is amended by replacing the portion of subsection 112(1.2) before paragraph (a) that it enacts with the following:
Suspension of application
(1.2) Despite subsection 105(1), proceedings 20 of the Refugee Protection Division in respect of an application are suspended on notice by an officer that (2) Subsection 15(3) of the Act is amended by replacing the paragraph 112(2)(b.1) that it 25 enacts with the following:
(b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 30 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; 35 (3) Subsection 15(4) of the Act is amended by replacing the portion of subsection 112(2.1) before paragraph (a) that it enacts with the following: Exemption
(2.1) The Minister may exempt from the 40 application of paragraph (2)(b.1) or (c) 61. Section 20 of the Act is amended by replacing the paragraphs 161(1)(a) and (a.1) that it enacts with the following:
Immigration and Refugee Protection, Balanc Security and Department of C (a) the referral of a claim for refugee protection to the Refugee Protection Division; (a.1) the factors to be taken into account in fixing or changing the date of the hearing 5 referred to in subsection 100(4.1); 62. Section 21 of the Act is repealed. 63. Section 23 of the Act is amended by replacing the subsection 167(1) that it enacts with the following: 10
Right to counsel
167. (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel. 64. Section 24 of the Act is repealed.
65. Subsection 25(3) of the Act is amended by replacing the French version of the subsection 169(2) that it enacts with the following: Règlements
(2) Les règlements régissent les modalités de 20 communication de la notification des décisions de la Section de la protection des réfugiés portant sur les demandes de protection ainsi que de ses motifs écrits. 66. Sections 33 and 34 of the Act are 25 replaced by the following:
Refugee protection claim referred
33. (1) Except its subsections 100(4) and (4.1), the Immigration and Refugee Protection Act, as amended by this Act, applies to every claim for refugee protection that is referred 30 to the Refugee Protection Division before the day on which this section comes into force if, before that day, there has been no hearing before the Refugee Protection Division in respect of the claim or, if there has been a 35 hearing, no substantive evidence has been heard.
Personal Information Form
(2) If a Personal Information Form, as defined in section 1 of the Refugee Protection Division Rules as they read immediately 40 before the day on which this section comes into force, has not been submitted in respect of a claim that is referred to the Refugee Protection Division before that day and the
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit time limit for submitting that Form has not expired, the claimant must submit that Form in accordance with those Rules, as they read on that day.
Hearing date
(3) If, before the day on which this section 5 comes into force, no date has been fixed for the hearing before the Refugee Protection Division in respect of a claim that is referred to that Division before that day, an official of the Immigration and Refugee Board must fix 10 the date on which the claimant is to attend the hearing.
Member who is assigned
34. A member who is assigned to the Refugee Protection Division under paragraph 159(1)(b) of the Immigration and 15 Refugee Protection Act, as it read immediately before the day on which subsection 19(1) of this Act comes into force, may, if authorized by the Chairperson, remain assigned to that Division. However, the 20 member may hear and make decisions only in respect of claims for refugee protection referred to that Division before that day.
67. Subsection 35(2) of the Act is replaced by the following: 25 Single member unable to continue
(2) If the single member is unable to continue to hear the claim, the claim must be referred to another member of the Refugee Protection Division, and that member must commence a new hearing in 30 accordance with the Immigration and Refugee Protection Act, as amended by this Act.
68. Sections 36 to 37.1 of the Act are replaced by the following: No appeal
36. (1) A decision made by the Refugee 35 Protection Division in respect of a claim for refugee protection that was referred to that Division before the day on which this section comes into force is not subject to appeal to the Refugee Appeal Division. 40
Immigration and Refugee Protection, Balanc Security and Department of C
Application made before expiry of 12-month waiting period
(2) An application made under subsection 112(1) of the Immigration and Refugee Protection Act before the day on which this section comes into force is terminated if it was made before the expiry of the 12-month 5 period referred to in paragraph 112(2)(b.1) of that Act, as enacted by subsection 15(3).
Decision set aside in judicial review
37. If a decision referred to in subsection 36(1) is set aside in a judicial review, the claim for refugee protection must be referred 10 to a member of the Refugee Protection Division who is appointed under section 169.1 of the Immigration and Refugee Protection Act, as enacted by section 26, and is to be considered in accordance with that Act, as 15 amended by this Act. However, the member’s decision is not subject to appeal to the Refugee Appeal Division.
Application for protection
37.1 Subject to regulations made under subsection 201.1 of the Immigration and 20 Refugee Protection Act, an application for protection that is made before the day on which subsection 15(1) comes into force is to be considered in accordance with that Act, as amended by this Act. 25 69. Section 42 of the Act is replaced by the following:
Order in council
42. (1) The provisions of this Act, except sections 3 to 6, 9, 13 and 14, subsection 15(3) and sections 28, 31, 32, 39 and 40, come into 30 force on a day or days to be fixed by order of the Governor in Council.
Subsection 15(3)
(2) Subsection 15(3) comes into force on the day on which the Protecting Canada’s Immigration System Act receives royal assent. 35
1994, c. 40
MARINE TRANSPORTATION SECURITY ACT
2001, c. 29, s. 56
70. (1) The portion of subsection 5(2) of the Marine Transportation Security Act before paragraph (a) is replaced by the following:
2011-2012 Offences relating to regulations — general
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (2) Every person who contravenes a regulation made under subsection (1), other than a provision that sets out an obligation described in subsection (3), is guilty of an offence punishable on summary conviction and liable 5 (2) Section 5 of the Act is amended by adding the following after subsection (2):
Offences — information to be reported before vessel enters Canadian waters
(3) Every individual who contravenes, in a regulation made under subsection (1), a provision that sets out an obligation to provide 10 information required to be reported before a vessel enters Canadian waters, is guilty of an offence and liable (a) on conviction on indictment, to a fine of not more than $75,000 or to imprisonment for 15 a term of not more than one year or to both; or (b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months or to both. 20 71. The Act is amended by adding the following after section 5:
Regulations — disclosure of information
5.1 (1) The Governor in Council may make regulations respecting the disclosure by the Minister to departments or agencies of the 25 Government of Canada or members or agents of such departments or agencies, for the purpose of protecting the safety or security of Canada or Canadians, of information collected for the purposes of this Act in respect of any vessel 30 referred to in subsection (2).
Vessels
(2) The vessels in respect of which the information may be disclosed are those that, in the Minister’s opinion, may pose a threat to the safety or security of Canada or Canadians. 35 72. Section 17 of the Act is replaced by the following:
Offences relating to directions — operator
17. (1) An operator of a vessel that contravenes a direction is guilty of an offence and liable 40 (a) on conviction on indictment
Immigration and Refugee Protection, Balanc Security and Department of C (i) in the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not 5 more than $500,000 or to imprisonment for a term of not more than two years or to both, or (ii) in the case of a corporation, for a first offence, to a fine of not more than 10 $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; or (b) on summary conviction (i) in the case of an individual, for a first offence, to a fine of not more than 15 $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year 20 or to both, or (ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000. 25
Offences relating to directions — vessel
(2) A vessel that contravenes a direction is guilty of an offence and liable on summary conviction, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $200,000. 30 73. (1) The portion of subsection 25(4) of the Act before paragraph (a) is replaced by the following:
Offence
(4) Every person who contravenes subsection (1) or (2) or any of paragraphs (3)(b) to (e) 35 is guilty of an offence and liable (2) Section 25 of the Act is amended by adding the following after subsection (4):
Offence
(5) Every person who contravenes paragraph (3)(a) is guilty of an offence and liable 40 (a) on conviction on indictment
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (i) in the case of an individual, for a first offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year or to both, and, for any subsequent offence, to a fine of not 5 more than $500,000 or to imprisonment for a term of not more than two years or to both, or (ii) in the case of a corporation, for a first offence, to a fine of not more than 10 $500,000 and, for any subsequent offence, to a fine of not more than $1,000,000; or (b) on summary conviction (i) in the case of an individual, for a first offence, to a fine of not more than 15 $100,000 or to imprisonment for a term of not more than six months or to both, and, for any subsequent offence, to a fine of not more than $200,000 or to imprisonment for a term of not more than one year 20 or to both, or (ii) in the case of a corporation, for a first offence, to a fine of not more than $250,000 and, for any subsequent offence, to a fine of not more than $500,000. 25
74. Section 26 of the English version of the Act is replaced by the following: Continuing offence
26. If an offence is committed or continued on more than one day, the person or vessel that committed it is liable to be convicted of a 30 separate offence for each day on which the offence is committed or continued. 75. Section 28 of the Act is amended by adding the following after subsection (4):
Vessels — proof related to directions
(5) In a prosecution of a vessel for an offence 35 under subsection 17(2), evidence that a direction was given to the master or to any person on board who is, or appears to be, in command or charge of the vessel, other than the pilot, is, in the absence of evidence to the contrary, proof 40 that it was given to the vessel.
36 Vessels — proof of offence
Immigration and Refugee Protection, Balanc Security and Department of C (6) In a prosecution of a vessel for an offence under subsection 17(2), the vessel is liable to be convicted of the offence if it is established that the offence was committed by the operator or by any person on board, other than a security 5 inspector, whether or not the person on board has been identified, prosecuted or convicted. 76. Section 29 of the Act is replaced by the following:
Defence
29. A person shall not be convicted of an 10 offence under this Act if they establish that they exercised all due diligence to prevent its commission, and a vessel shall not be convicted of an offence under subsection 17(2) if the person who committed the act or omission that 15 constitutes the offence establishes that they exercised all due diligence to prevent its commission. 77. Subsection 31(1) of the Act is replaced by the following: 20
Recovery of fines
1994, c. 31
31. (1) If a fine imposed on a person or vessel convicted of an offence under this Act is not paid when required, the conviction may be registered in the superior court of the province in which the trial was held and, when registered, 25 has the same force and effect, and all proceedings may be taken on it, as if the conviction were a judgment of that court obtained by Her Majesty in right of Canada against the convicted person or vessel for a debt in the amount of the 30 fine. DEPARTMENT OF CITIZENSHIP AND IMMIGRATION ACT 78. The Department of Citizenship and Immigration Act is amended by adding the following after section 5:
Agreements
5.1 (1) The Minister, with the approval of 35 the Governor in Council, may enter into an agreement with any foreign government for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of immigration 40 application services and other related services
2011-2012
Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit on that government’s behalf for purposes related to the administration and enforcement of their immigration laws.
Arrangements
(2) The Minister may enter into an arrangement with any foreign government for the 5 provision of services in relation to the collection, use and disclosure of biometric information and for the provision of immigration application services and other related services on that government’s behalf for purposes related 10 to the administration and enforcement of their immigration laws.
Amounts received
(3) The Minister may use the amounts received for the provision of services under an agreement or arrangement — in the fiscal year 15 in which they are received or in the following fiscal year — to offset the expenditures that the Minister incurs for the provision of such services.
Services
5.2 The Minister may provide services to the 20 Canada Border Services Agency. TRANSITIONAL PROVISIONS
Definition of “the Act”
79. In sections 80 to 83.1, “the Act” means the Immigration and Refugee Protection Act.
Humanitarian and compassionate and public policy considerations
80. Every request that is made under subsection 25(1) of the Act or for the 25 purposes of subsection 25.2(1) of the Act, as the Act read immediately before the day on which this Act receives royal assent, is to be determined in accordance with the Act as it read immediately before that day. 30
Designation under section 20.1
81. (1) A designation may be made under subsection 20.1(1) of the Act, as enacted by section 10, in respect of an arrival in Canada — after March 31, 2009 but before the day on which this section comes into force — of a 35 group of persons.
Effects of designation to apply
(2) For greater certainty and subject to subsection (3), if a designation that is authorized under subsection (1) is made, then the definition “designated foreign na- 40 tional” in subsection 2(1) of the Act, as
Immigration and Refugee Protection, Balanc Security and Department of C enacted by section 2, and any provisions of the Act, as enacted by this Act, that provide for the effects of the designation apply.
Exception — person not in detention
(3) If a designation that is authorized under subsection (1) is made, then paragraph 5 55(3.1)(b) of the Act, as enacted by subsection 23(3), does not apply in respect of a person who, as a result of that designation, becomes a designated foreign national and who, on the day on which this section comes into force, is 10 not in detention under Division 6 of Part 1 of the Act.
Review of grounds for detention
82. Paragraph 58(1)(c) of the Act, as enacted by subsection 26(1), applies in respect of a person who, on the day on which 15 this section comes into force, is in detention under Division 6 of Part 1 of the Act.
Claim made and referred
83. (1) Subsection 99(3.1) of the Act, as enacted by section 33, does not apply in respect of a claim for refugee protection that 20 is referred to the Refugee Protection Division before the day on which that section 33 comes into force.
Claim made but not referred
(2) A person who makes a claim for refugee protection inside Canada other than 25 at a port of entry before the day on which section 33 comes into force but whose claim is not referred to the Refugee Protection Division before that day must comply with the requirements of subsection 99(3.1) of the Act, 30 as enacted by section 33. However, the person must provide the documents and information to the Refugee Protection Division rather than to an officer.
Application made before expiry of 12-month waiting period
83.1 An application made under subsec- 35 tion 112(1) of the Act before the day on which this section comes into force is terminated if it was made before the expiry of the 12-month period referred to in paragraph 112(2)(c) of the Act, as enacted by subsection 38(1.1). 40 COORDINATING AMENDMENTS
2010, c. 8
84. (1) In this section, “other Act” means the Balanced Refugee Reform Act.
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Immigration et protection des réfugiés, Mesur maritime, Ministère de la Cit (2) On the first day on which both section 12 of the other Act and subsection 36(1) of this Act are in force, subsection 110(2) of the Immigration and Refugee Protection Act is amended by adding the following after 5 paragraph (d): (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the 10 day on which the decision was made, a country designated under subsection 109.1(1);
(3) On the first day on which both subsection 15(4) of the other Act and subsection 38(1.1) of this Act are in force, para- 15 graph 112(2)(c) of the Immigration and Refugee Protection Act is replaced by the following: (c) subject to subsection (2.1), less than 12 months, or, in the case of a person who is a 20 national of a country that is designated under subsection 109.1(1), less than 36 months, have passed since their last application for protection was rejected or determined to be withdrawn or abandoned by the Refugee 25 Protection Division or the Minister. (4) On the first day on which both section 26 of the other Act and section 48 of this Act are in force, subsection 153(1.1) of the Immigration and Refugee Protection Act is 30 repealed. (5) On the first day on which both section 12 of the other Act and section 49 of this Act are in force, subsection 161(1.1) of the Immigration and Refugee Protection Act is 35 replaced by the following: Distinctions
(1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at 40 a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).
Immigration and Refugee Protection, Balanc Security and Department of C COMING INTO FORCE
Order in council — same day
85. (1) Sections 4 and 6, subsection 9(2) and sections 30, 47 and 78 come into force on a day to be fixed by order of the Governor in Council.
Order in council — day or days
(2) Sections 7 and 8, subsections 9(1) and 5 11(1), sections 17 to 22, subsection 23(1), sections 29, 31, 33 to 35, subsections 38(1) and (2) and sections 39 to 46, 49 to 51, 53, 54 and 70 to 77 come into force on a day or days to be fixed by order of the Governor in 10 Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 2 An Act to provide for the continuation and resumption of air service operations
ASSENTED TO 15th MARCH, 2012 BILL C-33
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to provide for the continuation and resumption of air service operations”.
SUMMARY This enactment provides for the continuation and resumption of air service operations and imposes a final arbitration selection process to resolve matters remaining in dispute between the parties.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO PROVIDE FOR THE CONTINUATION AND RESUMPTION OF AIR SERVICE OPERATIONS SHORT TITLE 1.
Protecting Air Service Act INTERPRETATION
2. Definitions PART 1
TECHNICAL, MAINTENANCE AND OPERATIONAL SUPPORT EMPLOYEES INTERPRETATION 3.
Definitions AIR SERVICE OPERATIONS
4. Suspension of right to declare strike or lockout
5. Application of sections 6 to 8
6. Continuation or resumption of air service operations
7. Prohibitions
8. Obligations EXTENSION OF COLLECTIVE AGREEMENT
9. Extension
10. Strikes and lockouts prohibited FINAL OFFER SELECTION
11. Appointment of arbitrator
12. Powers and duties
13. Obligation to provide final offer
14. Arbitrator’s duties
15. Proceedings prohibited
16. New collective agreement not precluded NEW COLLECTIVE AGREEMENT
17. New collective agreement
i PART 2 PILOTS INTERPRETATION 18.
Definitions AIR SERVICE OPERATIONS
19. Suspension of right to declare strike or lockout
20. Application of sections 21 to 23
21. Continuation or resumption of air service operations
22. Prohibitions
23. Obligations EXTENSION OF COLLECTIVE AGREEMENT
24. Extension
25. Strikes and lockouts prohibited FINAL OFFER SELECTION
26. Appointment of arbitrator
27. Powers and duties
28. Obligation to provide final offer
29. Arbitrator’s duties
30. Proceedings prohibited
31. New collective agreement not precluded NEW COLLECTIVE AGREEMENT
32. New collective agreement PART 3 GENERAL COSTS
33. Costs ENFORCEMENT
34. Individuals
35. No imprisonment
36. Recovery of fines
37. Presumption
38. Coming into force
COMING INTO FORCE
60-61 ELIZABETH II —————— CHAPTER 2 An Act to provide for the continuation and resumption of air service operations [Assented to 15th March, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Protecting Air Service Act. INTERPRETATION
Definitions
“employer” « employeur »
“Minister” « ministre » Words and expressions
2. (1) The following definitions apply in this Act. “employer” means Air Canada. “Minister” means the Minister of Labour. (2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in Part I of the Canada Labour Code. PART 1 TECHNICAL, MAINTENANCE AND OPERATIONAL SUPPORT EMPLOYEES INTERPRETATION
Definitions
“arbitrator” « arbitre »
3. The following definitions apply in this Part. “arbitrator” means the arbitrator appointed under section 11.
C. 2
“collective agreement” « convention collective »
“collective agreement” means the collective agreement between the employer and the union that expired on March 31, 2011.
“employee” « employé »
“union” « syndicat »
Protecting A
“employee” means a person who is employed by the employer and bound by the collective agreement. “union” means the International Association of Machinists and Aerospace Workers. AIR SERVICE OPERATIONS
Suspension of right to declare strike or lockout
4. If, before the coming into force of this Act, the employer has not declared or caused a lockout and the union has not declared or authorized a strike, on the coming into force of this Act the employer’s right to declare or cause a lockout and the union’s right to declare or authorize a strike are suspended until the day on which the collective agreement, as extended by subsection 9(1), expires.
Application of sections 6 to 8
5. Sections 6 to 8 apply if, before the coming into force of this Act, the employer has declared or caused a lockout or the union has declared or authorized a strike.
Continuation or resumption of air service operations
6. On the coming into force of this Act, (a) the employer must continue, or resume without delay, as the case may be, air service operations; and (b) every employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.
Prohibitions
7. It is prohibited for the employer and for any officer or representative of the employer to (a) in any manner impede any employee from complying with paragraph 6(b); or (b) discharge or in any other manner discipline, or authorize or direct the discharge or discipline of, any employee by reason of the employee having been on strike before the coming into force of this Act.
Obligations
8. The union and each officer and representative of the union must
2011-2012
Protection des s (a) without delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, air service operations are to be continued or resumed, as the case may be, and that the employees, when so required, are to continue, or resume without delay, as the case may be, the duties of their employment; (b) take all reasonable steps to ensure that employees comply with paragraph 6(b); and (c) refrain from any conduct that may encourage employees not to comply with paragraph 6(b). EXTENSION OF COLLECTIVE AGREEMENT
Extension
9. (1) The term of the collective agreement is extended to include the period beginning on April 1, 2011 and ending on the day on which a new collective agreement between the employer and the union comes into effect.
Collective agreement binding for extended term
(2) Despite anything in the collective agreement or in Part I of the Canada Labour Code, the collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is extended. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement.
Strikes and lockouts prohibited
10. Until the day on which the collective agreement, as extended by subsection 9(1), expires, it is prohibited (a) for the employer and for any officer or representative of the employer to declare or cause a lockout against the union; (b) for the union and for any officer or representative of the union to declare or authorize a strike against the employer; and (c) for an employee to participate in a strike against the employer. FINAL OFFER SELECTION
Appointment of arbitrator
11. The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.
C. 2
Powers and duties
12. The arbitrator has, with any modifications that the circumstances require, all the powers and duties of an arbitrator under paragraphs 60(1)(a) and (a.2) to (a.4) and section 61 of the Canada Labour Code.
Obligation to provide final offer
13. (1) Within the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitrator
Protecting A
(a) a list of the matters on which the employer and the union were in agreement as of a date specified by the arbitrator and proposed contractual language that would give effect to those matters; (b) a list of the matters remaining in dispute on that date; and (c) a final offer in respect of the matters referred to in paragraph (b). Contractual language
(2) The final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.
Arbitrator’s duties
14. (1) Subject to section 16, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator must (a) determine the matters on which the employer and the union were in agreement as of the date specified for the purposes of paragraph 13(1)(a); (b) determine the matters remaining in dispute on that date; (c) select, in order to resolve the matters remaining in dispute, either the final offer submitted by the employer or the final offer submitted by the union; and (d) make a decision in respect of the resolution of the matters referred to in this subsection and forward a copy of the decision to the Minister, the employer and the union.
Guiding principle
(2) In making the selection of a final offer, the arbitrator is to take into account the tentative agreement reached by the employer and the union on February 10, 2012 and the report of the conciliation commissioner dated February 22, 2012 that was released to the parties, and is to be guided by the need for terms and
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Protection des s conditions of employment that are consistent with those in other airlines and that will provide the necessary degree of flexibility to ensure (a) the short- and long-term economic viability and competitiveness of the employer; and (b) the sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.
If no final offer submitted
(3) If either the employer or the union fails to provide the arbitrator with a final offer in accordance with paragraph 13(1)(c), the arbitrator must select the final offer provided by the other party.
Contractual language
(4) The arbitrator’s decision must be drafted in a manner that constitutes a new collective agreement between the employer and the union and, to the extent that it is possible, incorporate the contractual language that is referred to in paragraph 13(1)(a) and that is in the final offer selected by the arbitrator.
Proceedings prohibited
15. No order is to be made, no process is to be entered into and no proceeding is to be taken in court (a) to question the appointment of the arbitrator; or (b) to review, prohibit or restrain any proceeding or decision of the arbitrator.
New collective agreement not precluded
16. Nothing in this Part precludes the employer and the union from entering into a new collective agreement at any time before the arbitrator makes a decision and, if they do so, the arbitrator’s duties under this Part cease as of the day on which the new collective agreement is entered into. NEW COLLECTIVE AGREEMENT
New collective agreement
17. (1) Despite anything in Part I of the Canada Labour Code, the arbitrator’s decision constitutes a new collective agreement between the employer and the union that is effective and binding on the parties beginning on the day on which it is made. However, that Part applies in respect of the new collective agreement as if it had been entered into under that Part.
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Coming into effect of provisions
(2) The new collective agreement may provide that any of its provisions are effective and binding on a day that is before or after the day on which the new collective agreement becomes effective and binding.
Amendments
(3) Nothing in this Part is to be construed so as to limit or restrict the rights of the parties to agree to amend any provision of the new collective agreement, other than a provision relating to its term, and to give effect to the amendment.
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PART 2 PILOTS INTERPRETATION Definitions
18. The following definitions apply in this Part.
“arbitrator” « arbitre »
“arbitrator” means the arbitrator appointed under section 26.
“collective agreement” « convention collective »
“collective agreement” means the collective agreement between the employer and the union that expired on March 31, 2011.
“employee” « employé »
“union” « syndicat »
“employee” means a person who is employed by the employer and bound by the collective agreement. “union” means the Air Canada Pilots Association. AIR SERVICE OPERATIONS
Suspension of right to declare strike or lockout
19. If, before the coming into force of this Act, the employer has not declared or caused a lockout and the union has not declared or authorized a strike, on the coming into force of this Act the employer’s right to declare or cause a lockout and the union’s right to declare or authorize a strike are suspended until the day on which the collective agreement, as extended by subsection 24(1), expires.
Application of sections 21 to 23
20. Sections 21 to 23 apply if, before the coming into force of this Act, the employer has declared or caused a lockout or the union has declared or authorized a strike.
2011-2012 Continuation or resumption of air service operations
Protection des s 21. On the coming into force of this Act, (a) the employer must continue, or resume without delay, as the case may be, air service operations; and (b) every employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.
Prohibitions
22. It is prohibited for the employer and for any officer or representative of the employer to (a) in any manner impede any employee from complying with paragraph 21(b); or (b) discharge or in any other manner discipline, or authorize or direct the discharge or discipline of, any employee by reason of the employee having been on strike before the coming into force of this Act.
Obligations
23. The union and each officer and representative of the union must (a) without delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, air service operations are to be continued or resumed, as the case may be, and that the employees, when so required, are to continue, or resume without delay, as the case may be, the duties of their employment; (b) take all reasonable steps to ensure that employees comply with paragraph 21(b); and (c) refrain from any conduct that may encourage employees not to comply with paragraph 21(b). EXTENSION OF COLLECTIVE AGREEMENT
Extension
24. (1) The term of the collective agreement is extended to include the period beginning on April 1, 2011 and ending on the day on which a new collective agreement between the employer and the union comes into effect.
Collective agreement binding for extended term
(2) Despite anything in the collective agreement or in Part I of the Canada Labour Code, the collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is
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extended. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement. Strikes and lockouts prohibited
25. Until the day on which the collective agreement, as extended by subsection 24(1), expires, it is prohibited (a) for the employer and for any officer or representative of the employer to declare or cause a lockout against the union; (b) for the union and for any officer or representative of the union to declare or authorize a strike against the employer; and (c) for an employee to participate in a strike against the employer. FINAL OFFER SELECTION
Appointment of arbitrator
26. The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.
Powers and duties
27. The arbitrator has, with any modifications that the circumstances require, all the powers and duties of an arbitrator under paragraphs 60(1)(a) and (a.2) to (a.4) and section 61 of the Canada Labour Code.
Obligation to provide final offer
28. (1) Within the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitrator (a) a list of the matters on which the employer and the union were in agreement as of a date specified by the arbitrator and proposed contractual language that would give effect to those matters; (b) a list of the matters remaining in dispute on that date; and (c) a final offer in respect of the matters referred to in paragraph (b).
Contractual language
(2) The final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.
Arbitrator’s duties
29. (1) Subject to section 31, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator must
2011-2012
Protection des s (a) determine the matters on which the employer and the union were in agreement as of the date specified for the purposes of paragraph 28(1)(a); (b) determine the matters remaining in dispute on that date; (c) select, in order to resolve the matters remaining in dispute, either the final offer submitted by the employer or the final offer submitted by the union; and (d) make a decision in respect of the resolution of the matters referred to in this subsection and forward a copy of the decision to the Minister, the employer and the union.
Guiding principle
(2) In making the selection of a final offer, the arbitrator is to be guided by the need for terms and conditions of employment that are consistent with those in other airlines and that will provide the necessary degree of flexibility to ensure (a) the short- and long-term economic viability and competitiveness of the employer; and (b) the sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.
If no final offer submitted
(3) If either the employer or the union fails to provide the arbitrator with a final offer in accordance with paragraph 28(1)(c), the arbitrator must select the final offer provided by the other party.
Contractual language
(4) The arbitrator’s decision must be drafted in a manner that constitutes a new collective agreement between the employer and the union and, to the extent that it is possible, incorporate the contractual language that is referred to in paragraph 28(1)(a) and that is in the final offer selected by the arbitrator.
Proceedings prohibited
30. No order is to be made, no process is to be entered into and no proceeding is to be taken in court (a) to question the appointment of the arbitrator; or (b) to review, prohibit or restrain any proceeding or decision of the arbitrator.
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New collective agreement not precluded
31. Nothing in this Part precludes the employer and the union from entering into a new collective agreement at any time before the arbitrator makes a decision and, if they do so, the arbitrator’s duties under this Part cease as of the day on which the new collective agreement is entered into.
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NEW COLLECTIVE AGREEMENT New collective agreement
32. (1) Despite anything in Part I of the Canada Labour Code, the arbitrator’s decision constitutes a new collective agreement between the employer and the union that is effective and binding on the parties beginning on the day on which it is made. However, that Part applies in respect of the new collective agreement as if it had been entered into under that Part.
Coming into effect of provisions
(2) The new collective agreement may provide that any of its provisions are effective and binding on a day that is before or after the day on which the new collective agreement becomes effective and binding.
Amendments
(3) Nothing in this Part is to be construed so as to limit or restrict the rights of the parties to agree to amend any provision of the new collective agreement, other than a provision relating to its term, and to give effect to the amendment. PART 3 GENERAL COSTS
Costs
33. All costs incurred by Her Majesty in right of Canada relating to the appointment of an arbitrator and the performance of an arbitrator’s duties under this Act are debts due to Her Majesty in right of Canada and may be recovered as such, in any court of competent jurisdiction, in equal parts from, in the case of an appointment under Part 1, the International Association of Machinists and Aerospace Workers and the employer, and in the case of an appointment under Part 2, the Air Canada Pilots Association and the employer.
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Individuals
34. (1) An individual who contravenes any provision of this Act is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine of (a) not more than $50,000 if the individual was acting in the capacity of an officer or representative of the employer, the International Association of Machinists and Aerospace Workers or the Air Canada Pilots Association when the offence was committed; or (b) not more than $1,000 in any other case.
Employer or union
(2) If the employer, the International Association of Machinists and Aerospace Workers or the Air Canada Pilots Association contravenes any provision of this Act, it is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine of not more than $100,000.
No imprisonment
35. Despite subsection 787(2) of the Criminal Code, no term of imprisonment is to be imposed in default of payment of a fine that is imposed under section 34.
Recovery of fines
36. If a person is convicted of an offence under section 34 and the fine that is imposed is not paid when required, the prosecutor may, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in a superior court of the province in which the trial was held, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against the person in that court in civil proceedings.
Presumption
37. For the purposes of this Act, the International Association of Machinists and Aerospace Workers and the Air Canada Pilots Association are deemed to be persons.
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Protecting A COMING INTO FORCE
Coming into force
38. This Act comes into force on the expiry of the twenty-fourth hour after the time at which it is assented to.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 29 An Act to amend the Criminal Code (elder abuse)
ASSENTED TO 14th DECEMBER, 2012 BILL C-36
SUMMARY This enactment amends the Criminal Code to add vulnerability due to age as an aggravating circumstance for sentencing purposes.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 29 An Act to amend the Criminal Code (elder abuse) [Assented to 14th December, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. C-46
1. This Act may be cited as the Protecting Canada’s Seniors Act. CRIMINAL CODE 2. Paragraph 718.2(a) of the Criminal Code is amended by adding the following after subparagraph (iii): (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, COMING INTO FORCE
Thirty days after royal assent
3. This Act comes into force 30 days after the day on which it receives royal assent.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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C-310 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-310 An Act to amend the Criminal Code (trafficking in persons)
AS PASSED BY THE HOUSE OF COMMONS APRIL 27, 2012
SUMMARY This enactment amends the Criminal Code to add the offence of trafficking in persons to the offences committed outside Canada for which Canadian citizens or permanent residents may be prosecuted in Canada. It also amends the Act to add factors that the Court may consider when determining whether an accused exploits another person.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-310 An Act to amend the Criminal Code (trafficking in persons)
R.S., c. C-46
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. Section 7 of the Criminal Code is amended by adding the following after 5 subsection (4.1):
Offence in relation to trafficking in persons
(4.11) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence 10 against section 279.01, 279.011, 279.02 or 279.03 shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of 15 subsection 2(1) of the Immigration and Refugee Protection Act. 2. Section 279.04 of the Act is replaced by the following:
Exploitation
279.04 (1) For the purposes of sections 20 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other 25 person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service.
Criminal Code (tra
Factors
(2) In determining whether an accused exploits another person under subsection (1), the Court may consider, among other factors, whether the accused (a) used or threatened to use force or another 5 form of coercion; (b) used deception; or (c) abused a position of trust, power or authority.
Organ or tissue removal
(3) For the purposes of sections 279.01 to 10 279.03, a person exploits another person if they cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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C-311 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-311 An Act to amend the Importation of Intoxicating Liquors Act (interprovincial importation of wine for personal use)
AS PASSED BY THE HOUSE OF COMMONS JUNE 6, 2012
SUMMARY This enactment amends the Importation of Intoxicating Liquors Act to add an exception allowing individuals to import wine for their personal use to the provision that requires that all imports of intoxicating liquor be made by the province.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-311 An Act to amend the Importation of Intoxicating Liquors Act (interprovincial importation of wine for personal use)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. I-3
1. Subsection 3(2) of the Importation of Intoxicating Liquors Act is amended by 5 striking out “and” at the end of paragraph (f), by adding “and” at the end of paragraph (g) and by adding the following after paragraph (g): (h) the importation of wine from a province 10 by an individual, if the individual brings the wine or causes it to be brought into another province, in quantities and as permitted by the laws of the latter province, for his or her personal consumption, and not for resale or 15 other commercial use.
411444 Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 7 An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act
ASSENTED TO 17th MAY, 2012 BILL S-4
SUMMARY The amendments amend the Railway Safety Act to, among other things, (a) improve the oversight capacity of the Department of Transport by, for example, requiring companies to obtain a safety-based railway operating certificate indicating compliance with regulatory requirements; (b) strengthen that Department’s enforcement powers by introducing administrative monetary penalties and increasing fines; (c) enhance the role of safety management systems by including a provision for a railway executive who is accountable for safety and a non-punitive reporting system for employees of railway companies; (d) clarify the authority and responsibilities of the Minister of Transport with respect to railway matters; and (e) expand regulation-making powers, including in respect of environmental management, and clarify the process for rule making by railway companies.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 7 An Act to amend the Railway Safety Act and to make consequential amendments to the Canada Transportation Act [Assented to 17th May, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Safer Railways Act.
R.S., c. 32 (4th Supp.)
RAILWAY SAFETY ACT
1996, c. 10, s. 261
2. Subsection 2(2) of the Railway Safety Act is replaced by the following:
Application generally
(2) This Act applies in respect of railways that are within the legislative authority of Parliament.
Exceptions
(3) Despite subsection (2), this Act does not apply in respect of (a) railways referred to in section 16 of the Harbour Commissions Act; or (b) railways referred to in section 29 of the Canada Marine Act, except to the extent provided by regulations made under subsection 29(2) of that Act.
1999, c. 9, s. 1
Objectives
3. Section 3 of the Act is replaced by the following: 3. The objectives of this Act are to
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Railway
(a) promote and provide for the safety and security of the public and personnel, and the protection of property and the environment, in railway operations; (b) encourage the collaboration and participation of interested parties in improving railway safety and security; (c) recognize the responsibility of companies to demonstrate, by using safety management systems and other means at their disposal, that they continuously manage risks related to safety matters; and (d) facilitate a modern, flexible and efficient regulatory scheme that will ensure the continuing enhancement of railway safety and security.
Minister’s responsibilities respecting railway safety
3.1 The Minister is responsible for the development and regulation of matters to which this Act applies, including safety and security, and for the supervision of all matters connected with railways and, in the discharge of those responsibilities, the Minister may, among other things, (a) promote railway safety and security by means that the Minister considers appropriate; (b) provide facilities and services for the collection, publication or dissemination of information; (c) undertake, and cooperate with persons undertaking, projects, technical research, study or investigation; (d) inspect, examine and report on activities related to railway matters; and (e) undertake other activities that the Minister considers appropriate or that the Governor in Council may direct.
1999, c. 9, s. 2(4)
4. (1) The definitions “organisation intéressée” and “système de gestion de la sécurité” in subsection 4(1) of the French version of the Act are replaced by the following:
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« organisation intéressée » “relevant association or organization”
« organisation intéressée » Association ou organisation formée pour représenter le personnel d’une compagnie de chemin de fer ou les propriétaires ou locataires de matériel ferroviaire utilisé sur les voies ferrées exploitées par une telle compagnie de chemin de fer, et classée par arrêté du ministre comme organisation intéressée par rapport à la compagnie.
« système de gestion de la sécurité » “safety management system”
« système de gestion de la sécurité » Protocole visant la mise en oeuvre de la sécurité ferroviaire dans l’exploitation ferroviaire courante et intégrant les responsabilités et les pouvoirs au sein d’une compagnie, les règles, les procédures, les processus de surveillance et d’évaluation auxquels elle est assujettie ainsi que les objectifs en matière de sécurité, de rendement des mécanismes de contrôle d’application et d’évaluation des risques. (2) Subsection 4(1) of the Act is amended by adding the following in alphabetical order:
“company” « compagnie »
“company” means a railway company or a local railway company;
“fatigue science” « science de la fatigue »
“fatigue science” means a scientifically based, data-driven and systematic method used to measure and manage human fatigue;
“highest level of safety” « niveau de sécurité le plus élevé »
“highest level of safety” means the lowest acceptable level of risk as demonstrated by a risk management analysis;
“local railway company” « compagnie de chemin de fer locale »
“local railway company” means a person, other than a railway company or an agent or mandatary of a railway company, that operates railway equipment on a railway;
“railway” « chemin de fer »
“railway” means a railway within the legislative authority of Parliament and includes (a) branches, extensions, sidings, railway bridges, tunnels, stations, depots, wharfs, rolling stock, equipment, stores or other things connected with the railway, and (b) communications or signalling systems and related facilities and equipment used for railway purposes;
4 “railway company” « compagnie de chemin de fer »
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“railway company” means a person that constructs, operates or maintains a railway;
1996, c. 10, s. 263(2)
(3) Subsection 4(2) of the Act is repealed.
2001, c. 29, s. 64(2)
(4) Subsection 4(5) of the Act is replaced by the following:
Filing or sending notices and documents
(5) With the exception of a notice or document sent to or by the Tribunal, for the purposes of this Act, the filing or sending of a notice or document must be (a) in the case of an individual, by personal service, by facsimile or by mailing it by registered mail to the person’s latest known address; (b) in the case of a corporation, by facsimile or by mailing it by registered mail to its head office or any other office designated by the Minister; or (c) in either case, by any electronic or other means approved in writing by the Minister and subject to any conditions fixed by the Minister. 5. The Act is amended by adding the following after section 4:
Inconsistencies with operating agreements
4.1 This Act and all regulations, rules, certificates, orders, exemptions and emergency directives made or issued under this Act prevail over the provisions of any agreement or order that enables a company to operate railway equipment on the railway of a railway company in the event of an inconsistency between them. 6. Section 6 of the Act is replaced by the following:
Agreements between Department and Agency
6. The Minister may enter into an agreement with the Agency providing for the following matters and may, in consultation with the Agency, take any action that is necessary to
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Sécurité fe ensure that the terms of the agreement are disclosed to any railway company or other person likely to be affected by it: (a) the coordination of the activities of the Department of Transport and the Agency (i) relating to the construction, alteration, operation or maintenance of railway works and railway equipment, or (ii) in determining whether a person is constructing, operating or maintaining a railway; and (b) procedures to be followed by that Department and the Agency in the event that conflicting interests arise between them in their activities with respect to those matters.
Agreements with provincial ministers
6.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting (a) railway safety and security and the safety aspects of railway crossings; or (b) matters relating to the protection of the environment to which this Act applies.
Designation of body or person
(2) The Minister may designate any body established under an Act of Parliament, or any person or class of persons employed in the federal public administration, to administer the law in accordance with the agreement.
Duties and powers
(3) The designated body, person or class of persons may perform any duty and exercise any power necessary for the enforcement of the law, to the extent specified in the agreement.
Agreements with provincial authorities
6.2 The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the matters referred to in subsection 6.1(1) in relation to a railway in the same manner and to the same extent as it may regulate a railway within the authority’s jurisdiction. 7. (1) Subsection 7(1) of the French version of the Act is replaced by the following:
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Règlements normatifs en matière de construction et de modification
7. (1) Le gouverneur en conseil peut, par règlement, régir l’établissement de normes concernant la structure ou le rendement d’installations ferroviaires et applicables à la construction ou à la modification de celles-ci.
1999, c. 9, s. 3
(2) Subsection 7(3) of the Act is replaced by the following:
Application of certain provisions
(3) Section 19 and regulations made under section 20.2 apply in relation to standards referred to in subsection (2) or (2.1), with any modifications that the circumstances require and without regard to any obligation to consult.
1999, c. 9, s. 7
8. Section 11 of the Act is replaced by the following:
Sound engineering principles
11. (1) All work relating to railway works — including, but not limited to, design, construction, evaluation, maintenance and alteration — must be done in accordance with sound engineering principles.
Engineering work
(2) All engineering work relating to railway works must be approved by a professional engineer.
Railway
9. The Act is amended by adding the following before the heading “REGULATIONS” BEFORE SECTION 18: PROHIBITIONS 10. The Act is amended by adding the following after the heading “PROHIBITIONS”, as enacted by section 9: Requirement for certificate
17.1 (1) No person shall operate or maintain a railway, or operate railway equipment on a railway, without a railway operating certificate.
Crossing maintenance
(2) Subsection (1) does not apply to a person exempted under paragraph 17.9(1)(c) or to a municipality or road authority that maintains a crossing work. 11. (1) The Act is amended by adding the following before the heading “REGULATIONS” before section 18:
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Compliance with regulations and rules
17.2 No railway company shall operate or maintain a railway, including any railway work or railway equipment, and no local railway company shall operate railway equipment on a railway, otherwise than in accordance with the regulations and with the rules made in respect of the company under sections 19 and 20, except to the extent that the company is exempt from their application under section 22 or 22.1.
Crossing works
17.3 No person responsible for the maintenance of a crossing work shall maintain it otherwise than in accordance with the regulations made under section 18 unless that person is exempted under section 22 or 22.1 from the application of those regulations in relation to the maintenance of that crossing work. (2) Section 17.2 of the Act, as enacted by subsection (1), is replaced by the following:
Compliance with certificate, regulations and rules
17.2 No railway company shall operate or maintain a railway, including any railway work or railway equipment, and no local railway company shall operate railway equipment on a railway, otherwise than in accordance with a railway operating certificate and — except to the extent that the company is exempt from their application under section 22 or 22.1 — with the regulations and the rules made under sections 19 and 20 that apply to the company. 12. The Act is amended by adding the following after section 17.3: RAILWAY OPERATING CERTIFICATE
Issuance of certificate
17.4 (1) The Minister shall, on application, issue a railway operating certificate authorizing a person to operate and maintain a railway, or to operate railway equipment on a railway, if the Minister is satisfied that the prescribed conditions for obtaining one have been met.
Terms and conditions
(2) A railway operating certificate may contain any terms and conditions that the Minister considers appropriate.
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Variation
(3) The Minister may, on application by a company, vary the terms and conditions of its railway operating certificate.
Time limit
(4) A decision by the Minister whether to issue or vary a railway operating certificate shall be made as expeditiously as possible within 120 days after receipt of the application unless the applicant agrees otherwise.
Suspension or cancellation
(5) The Minister may suspend or cancel a company’s railway operating certificate if the company has
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(a) ceased to meet any of the prescribed conditions for obtaining the certificate; (b) contravened any provision of this Act or the regulations or any rule, order, standard or emergency directive made under this Act; or (c) requested its suspension or cancellation.
Notice of decision
Contents of notice
17.5 (1) The Minister shall notify the affected person or company of any decision made under subsection 17.4(1), (3) or (5). (2) The notice of decision shall specify (a) the grounds of the Minister’s decision; and (b) the address at which and the date, being thirty days after the notice is sent, on or before which the person may file a request for a review of the decision.
Effective date of decision
(3) The effective date of a decision is the day on which the notice is received by the person or company unless the notice specifies a later date.
Request for review
17.6 (1) A person or a company affected by a decision of the Minister under subsection 17.4(1), (3) or (5) may, on or before the date specified in the notice under section 17.5 or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the decision.
Effect of request
(2) A request under subsection (1) for a review of a decision under subsection 17.4(5) does not operate as a stay of the decision.
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Exception
(3) On application in writing by the person or company affected by a decision made under subsection 17.4(5), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, if he or she is satisfied that granting a stay would not constitute a threat to railway safety.
Time and place for review
17.7 (1) On receipt of a request filed under subsection 17.6(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Determination
(3) The member may confirm the decision of the Minister or refer the matter back to the Minister for reconsideration.
Effect of decision pending reconsideration
(4) If a decision under subsection 17.4(5) is referred back to the Minister for reconsideration under subsection (3), the decision of the Minister remains in effect until the reconsideration is concluded. However, the member, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded, if he or she is satisfied that granting a stay would not constitute a threat to railway safety.
Right of appeal
17.8 (1) Within thirty days after a determination made under subsection 17.7(3) by a member of the Tribunal, the person or company affected by the determination may appeal it to the Tribunal.
Effect of request
(2) A request under subsection (1) for an appeal of a decision under subsection 17.4(5) does not operate as a stay of the decision.
Exception
(3) On application in writing by the person or company affected by a decision made under subsection 17.4(5), after giving any notice to the Minister that is, in the member’s opinion,
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necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the appeal is completed, if he or she is satisfied that granting a stay would not constitute a threat to railway safety. Loss of right of appeal
(4) A person or company that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(5) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.
Effect of decision pending reconsideration
(6) If a decision under subsection 17.4(5) is referred back to the Minister for reconsideration under subsection (5), the decision of the Minister remains in effect until the reconsideration is concluded. However, the appeal panel, after considering any representations made by the parties, may grant a stay of the decision made under subsection 17.4(5) until the reconsideration is concluded, if it is satisfied that granting a stay would not constitute a threat to railway safety.
Regulations
17.9 (1) The Governor in Council may make regulations (a) respecting conditions to be met for the issuance of a railway operating certificate; (b) respecting the form and content of applications for railway operating certificates and the process for obtaining a certificate or the variation of one; and (c) exempting any class of persons from the application of section 17.1.
Application
(2) A regulation made under this section may be general or applicable to a group or class of persons or companies. 13. (1) Paragraph 18(1)(a) of the French version of the Act is replaced by the following:
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Sécurité fe a) régir toute question — notamment en matière de rendement — concernant l’exploitation ou l’entretien des lignes de chemin de fer, ou la conception, la construction, la modification, l’exploitation ou l’entretien de matériel ferroviaire; (2) Paragraphs 18(1)(c) and (d) of the Act are replaced by the following: (c) respecting the following matters, to the extent that they relate to safe railway operations, in relation to persons employed in positions referred to in paragraph (b): (i) the training of those persons, both before and after appointment to those positions, (ii) hours of work and rest periods to be observed by those persons, (iii) minimum medical, including audiometric and optometric, standards to be met by those persons, (iv) the control or prohibition of the consumption of alcoholic beverages and the use of drugs by those persons, (v) the establishment of support programs for those persons and standards applicable to such programs, and (vi) the establishment of a scheme for licensing those persons; and (d) respecting the prevention and control of fires on railway works. (3) Section 18 of the Act is amended by adding the following after subsection (2.1):
Application
(2.2) A regulation made under this section may be general or applicable to a group or class of persons or companies.
1999, c. 9, s. 12
(4) Subsection 18(3) of the French version of the Act is replaced by the following:
Incompatibilité
(3) Les dispositions des règlements pris par le gouverneur en conseil sous le régime des paragraphes (1) ou (2.1) annulent les dispositions incompatibles des règles approu12
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vées par le ministre aux termes des articles 19 ou 20 relativement à une compagnie particulière. 1999, c. 9, ss. 13 to 16
14. (1) Sections 19 to 22.1 of the Act are replaced by the following:
Formulation or revision of rules
19. (1) The Minister may, by order, require a company (a) to formulate rules respecting any matter referred to in subsection 18(1) or (2.1) or to revise its rules respecting that matter; and (b) within a specified period, to file the formulated or revised rules with the Minister for approval.
Company to consult
(2) A company shall not file rules with the Minister under subsection (1) unless it has first, during a period of sixty days, given a reasonable opportunity for consultation with it on the rules to (a) in the case of a railway company, each relevant association or organization that is likely to be affected by the implementation of the rules; or (b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules.
Notice to accompany rules
(3) When rules are filed with the Minister by a company pursuant to an order under subsection (1), the company shall, by notice filed with those rules, identify each association or organization or any railway company that was consulted and attach a copy of any objection that is made by any of them on grounds of safety.
Consideration of rules
(4) After rules are filed with the Minister by a company pursuant to an order under subsection (1), the Minister shall consider, without delay, whether, in the Minister’s opinion and after having regard to current railway practice, to the views of the company and the views of each relevant association or organization or any railway company identified under subsection (3) and to any other factor that the Minister considers relevant, those rules are conducive
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Sécurité fe to safe railway operations by the company, and shall, before the expiration of the assessment period in relation to those rules, (a) if the Minister is so satisfied, notify the company and each association or organization or any railway company identified under subsection (3) that the Minister approves those rules, either absolutely or on any terms and conditions that are specified in the notice; or (b) if the Minister is not so satisfied, notify the company and each association or organization or any railway company identified under subsection (3) that the Minister refuses to approve those rules and of the reasons why the Minister is not so satisfied.
Request for amendment to terms and conditions
(4.1) A company referred to in subsection (4) may, on the basis of new information about the safety of railway operations, request the Minister to amend the terms and conditions specified under paragraph (4)(a), and shall send a copy of the request to (a) in the case of a railway company, each relevant association or organization that is likely to be affected by the amendment to the terms and conditions; or (b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the amendment to the terms and conditions.
Amendments
(4.2) After receiving a request from a company under subsection (4.1), the Minister may amend the terms and conditions and, in that case, shall provide a copy of the amendments to each relevant association or organization, or any railway company, referred to in subsection (4.1).
Minister may seek advice
(5) The Minister may, in deciding whether to approve rules filed by a company, engage any person or organization having expertise in matters relating to safe railway operations to furnish advice in relation to the matter.
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Effective date of rules
(5.1) Rules approved by the Minister under subsection (4) come into force on a day specified by the Minister, but if they replace any regulations, they may not come into force earlier than the day on which the regulations are repealed.
Revision of rules
(6) If the Minister notifies a company that the Minister refuses to approve rules filed by the company in respect of a matter pursuant to an order under subsection (1),
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(a) the company may, unless the Minister indicates in that notice an intention to establish rules in respect of that matter under subsection (7), formulate and file with the Minister further rules as if the order made pursuant to subsection (1) had been made on the date of receipt by the company of the notice of refusal; and (b) the provisions of this section apply in relation to those further rules, with any modifications that the circumstances require. Failure to file rules
(7) If, in respect of a matter, a company fails to file rules pursuant to an order under subsection (1), or a company files rules pursuant to an order under subsection (1) but the Minister refuses to approve those rules, the Minister may, by order, establish rules in respect of that matter.
Consultation
(8) The Minister may not, under this section, establish rules applying to a company unless the Minister (a) has given, during a period of sixty days, a reasonable opportunity for consultation with the Minister on the rules to that company and (i) in the case of a railway company, to each relevant association or organization that is likely to be affected by the implementation of the rules, and (ii) in the case of a local railway company, to any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules; and (b) has considered any objection, on grounds of safety, to the establishment of the rules that is made in the course of that consultation.
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Rules established by Minister
(9) Rules established by the Minister under subsection (7) in relation to a company have the same effect as if they had been formulated by the company and approved by the Minister under subsection (4).
Definition of “assessment period”
(10) Subject to subsection (11), in this section, “assessment period”, in relation to rules filed with the Minister under this section, means (a) the period of sixty days commencing on the day after the day on which the rules are filed; or (b) if, before the expiration of that period of sixty days, the Minister determines that, by reason of the complexity of the rules or the number of rules filed or for any other reason, it will not be feasible to consider the rules within that period, and so notifies the company concerned, any greater period that the Minister specifies in the notice.
Period of inquiry not part of assessment period
(11) If, pursuant to section 40, the Minister directs persons to conduct an inquiry respecting proposed rules, the period commencing on the day when the Minister so directs and ending on the day when the persons report back to the Minister pursuant to section 40 shall be disregarded in computing the assessment period.
Formulation or revision of rules
20. (1) A company shall file with the Minister for approval any rules in respect of any matter referred to in subsection 18(1) or (2.1) that it proposes to formulate or revise on its own initiative.
Consultation
(2) A company may not file rules with the Minister under subsection (1) unless it has first given a reasonable opportunity during a period of sixty days for consultation with it concerning the rules, (a) in the case of a railway company, to each relevant association or organization that is likely to be affected by the implementation of the rules; or
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(b) in the case of a local railway company, to any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the implementation of the rules. Rules to be accompanied by notice
(3) Rules filed with the Minister by a company pursuant to subsection (1) shall be accompanied by a notice (a) setting out the reasons why the company proposes to formulate or revise the rules; and (b) identifying any relevant association or organization or any railway company that objects, on grounds of safety, to the implementation of those rules and attaching a copy of the notice of objection.
Application of certain provisions
(4) Subsections 19(4) to (5.1), (10) and (11) apply in relation to the filing and consideration of rules filed with the Minister under subsection (1) as if the rules had been duly filed in compliance with an order made under subsection 19(1).
Third party
20.1 A third party may act for and on behalf of a company in all matters relating to the formulation or revision of standards or rules under sections 7, 19 and 20.
Regulations — formulation of rules
20.2 (1) The Governor in Council may make regulations respecting the process for the formulation or revision of rules applicable to companies and for the amendment of their terms and conditions.
Application
(2) A regulation made under subsection (1) may be general or applicable to a group or class of companies. MISCELLANEOUS PROVISIONS RELATING TO REGULATIONS AND RULES
Uniformity of rules
21. In establishing, under section 19 or 20, rules applying to a particular company or in deciding, under section 19 or 20, whether to approve rules formulated or revised by, and applying to, a particular company, the Minister shall, to the extent that it is, in the opinion of the Minister, reasonable and practicable to do so, ensure that those rules are uniform with rules dealing with a like matter and applying to other companies.
2011-2012 Exemption by order in council
Sécurité fe 22. (1) The Governor in Council may, by order, on any terms and conditions that are specified in the order, (a) exempt a specified company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or (2.1) or of rules in force under section 19 or 20; or (b) exempt a specified person from the application of a specified provision of regulations made under subsection 18(2).
Exemption by Minister
(2) If, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations, he or she may, by notice, on any terms and conditions that are specified in the notice, (a) exempt a specified company, specified railway equipment or a specified railway work from the application of a specified provision of regulations made under subsection 18(1) or (2.1) or of rules in force under section 19 or 20; or (b) exempt a specified person from the application of a specified provision of regulations made under subsection 18(2).
Sending of notices
(3) A notice under subsection (2) shall be sent to the company or person exempted by the notice and takes effect on receipt by that company or person.
Application
(4) A company may apply to the Minister for an exemption from the application of a specified provision of regulations under subsection 18(1), (2) or (2.1) or of rules in force under section 19 or 20.
Company to consult
(5) A company may not apply for an exemption under subsection (4) unless it has first given (a) in the case of a railway company, each relevant association or organization that is likely to be affected by the exemption, and (b) in the case of a local railway company, any railway company on whose line the local railway company operates railway equipment and that is likely to be affected by the exemption,
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a reasonable opportunity during a period of sixty days to consult with it, except that it may apply for the exemption before the end of those sixty days if it has received comments from all those associations and organizations or from that railway company, as the case may be.
Copy of comments
(6) The company shall send with its application to the Minister a copy of all comments received from relevant associations and organizations or the railway company.
Period for granting application
(7) The Minister may grant the application within sixty days after receiving it if, in the opinion of the Minister, the exemption is in the public interest and is not likely to threaten safe railway operations. The Minister may extend the time for granting the application for an additional period of up to sixty days.
Other exemptions
22.1 (1) A company that proposes to conduct testing relating to railway transportation, or that requires an immediate exemption of short duration, may by notice seek an exemption from the application of any provision of standards formulated under section 7, regulations made under subsection 18(1) or (2) or 24(1) or rules in force under section 19 or 20 for a period of up to six months.
Notice
(2) A notice under subsection (1) shall be filed with the Minister and (a) in the case of a railway company, each relevant association or organization that is likely to be affected by the exemption; or (b) in the case of a local railway company, any railway company on whose railway the local railway company operates railway equipment and that is likely to be affected by the exemption.
Objections
(3) Each of the relevant associations or organizations or the railway company to which notice must be given, as the case may be, may object to an exemption on grounds of safety by
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Sécurité fe filing its objection with the Minister and the company within fourteen days after the notice referred to in subsection (1) is filed.
Minister’s decision
(4) The Minister may (a) within twenty-one days after the filing of an objection under subsection (3), confirm the objection if the Minister decides that the exemption threatens safety; (b) within twenty-one days after the filing of an objection under subsection (3) or within thirty-five days after receiving a notice under subsection (1), impose terms and conditions on the exemption that the Minister considers appropriate, if the Minister is of the opinion that the exemption without terms and conditions is not in the public interest or is likely to threaten safety; or (c) within thirty-five days after receiving the notice under subsection (1), deny the exemption if the Minister is of the opinion that the exemption is not in the public interest or is likely to threaten safety.
Effective date
(5) An exemption is effective if (a) the company receives a response from the Minister and each of those associations and organizations or the railway company, as the case may be, indicating that they do not object to the exemption; (b) no objections are confirmed by the Minister under paragraph (4)(a); (c) the Minister, instead of making or confirming an objection, imposes terms and conditions under paragraph (4)(b) and the company complies with the terms and conditions; or (d) the Minister does not deny the exemption under paragraph (4)(c). (2) Subsections 19(2) and (3) of the Act, as enacted by subsection (1), are replaced by the following:
Manner of making rules
(2) A company shall comply with the regulations made under section 20.2 in the formulation and filing of its rules.
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(3) Subsections 19(4) to (4.2) of the Act, as enacted by subsection (1), are replaced by the following: Consideration of rules
(4) If rules are filed with the Minister by a company pursuant to an order under subsection (1), the Minister shall without delay consider whether, in the Minister’s opinion, those rules are conducive to safe railway operations by the company — having regard to current railway practice, to the views of the company and each person that the company was required by the regulations to consult on the rules, and to any other factor that the Minister considers relevant — and shall, before the expiration of the assessment period in relation to those rules, (a) if the Minister is satisfied that the rules are conducive to those operations, notify the company and each person whose views were considered that the Minister approves those rules, either absolutely or on any terms and conditions that are specified in the notice; or (b) if the Minister is not so satisfied, notify the company and each person whose views were considered that the Minister refuses to approve those rules and of the reasons why the Minister is not so satisfied.
Request for amendment to terms and conditions
(4.1) A company referred to in subsection (4) may, on the basis of new information about the safety of railway operations, request the Minister to amend any terms or conditions specified under that subsection in accordance with the prescribed process.
Amendments
(4.2) After receiving a request from a company under subsection (4.1), the Minister may amend any terms or conditions specified under subsection (4) and, in that case, shall provide a copy of the amendments to each person that the company was required by regulation to consult on the request for amendments. (4) Paragraph 19(8)(a) of the Act, as enacted by subsection (1), is replaced by the following: (a) has given, during a period of sixty days, a reasonable opportunity to consult with the Minister on the rules to that company and each person that the company would be
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Sécurité fe required to consult if the rules were formulated by the company following an order made under subsection (1); and (5) Subsections 20(2) and (3) of the Act, as enacted by subsection (1), are replaced by the following:
Manner of making rules
1999, c. 9, s. 17
1994, c. 15, s. 1(F)
(2) A company shall comply with the regulations made under section 20.2 in the formulation and revision of its rules. 15. Section 23 of the Act is repealed. 16. (1) Paragraph 24(1)(f) of the Act is replaced by the following: (f) for restricting or preventing, by means of fences, signs or any other means, access to the land on which a line of railway is situated by persons — other than employees or agents or mandataries of the railway company concerned, or of the local railway company authorized to operate railway equipment on the railway — or by vehicles or animals, if their presence on that land would constitute a threat to safe railway operations; (2) Subsection 24(2) of the French version of the Act is replaced by the following:
Dommagesintérêts
(2) La compagnie de chemin de fer exploitant la voie ferrée contiguë à un terrain paie au propriétaire, au locataire ou à l’occupant de celui-ci ou des bâtiments ou autres ouvrages qui y sont situés, ou au propriétaire des mines ou autres installations qui y sont exploitées, les dommages-intérêts entraînés par l’application des règlements pris sous le régime du présent article, convenus entre elle et le propriétaire, le locataire ou l’occupant ou, à défaut d’entente, fixés aux termes de l’article 26.
1999, c. 9, s. 20(1)
17. (1) Subsection 25(1) of the English version of the Act is replaced by the following:
Entry onto land adjoining line of railway
25. (1) For the purpose of preventing a threat to safe railway operations on a line of railway or restoring safe railway operations on a line of railway, a railway company may enter onto any land adjoining the land on which the line of railway is situated
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(a) at any time, in order to maintain or alter railway works or remove obstructions to them, if no other access to the line of railway is reasonably available, and remain on the land for as long as is necessary to accomplish that purpose; (b) at any time, in order to deal with any fire occurring on either of those lands; (c) at any reasonable time, on giving notice in writing of its intention to do so to the owner of the adjoining land, in order to cut down trees or brush that has been permitted to grow on that land in contravention of regulations made under paragraph 24(1)(e); or (d) at any time between November 1 and March 31, in order to install or maintain a snow fence. 1999, c. 9, s. 20(3)
(2) Subsections 25(2) and (3) of the French version of the Act are replaced by the following:
Enlèvement de paraneiges
(2) La compagnie de chemin de fer fait enlever les paraneiges au plus tard le 1er avril suivant la date de leur installation.
Dommagesintérêts
(3) La compagnie de chemin de fer ou l’autorité responsable du service de voirie qui exerce les pouvoirs prévus au présent article paie au propriétaire, au locataire ou à l’occupant concerné les dommages-intérêts entraînés par cet exercice et convenus entre elle et ceux-ci ou, à défaut d’entente, fixés aux termes de l’article 26. Cet exercice n’est cependant pas subordonné au paiement préalable des dommagesintérêts.
1999, c. 9, s. 20.1
18. Section 26.2 of the French version of the Act is replaced by the following:
Priorité aux trains
26.2 Les usagers de la route doivent, à tout franchissement routier, céder le passage au train dont l’approche a été adéquatement signalée.
1999, c. 9, s. 22
19. Subsection 27(1) of the Act is replaced by the following:
Designation
27. (1) The Minister may designate any person whom the Minister considers qualified as a railway safety inspector or a screening officer for the purposes of this Act and the
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Sécurité fe Minister shall determine the matters in respect of which, and the restrictions or conditions under which, the person may exercise the powers of a railway safety inspector or screening officer.
Exercise of powers and duties
(1.1) When carrying out powers and duties under this Act, a person designated under subsection (1) is acting for and on behalf of the Minister.
1999, c. 9, s. 23
20. Paragraph 28(1)(a) of the Act is replaced by the following: (a) for the purpose of ensuring compliance with this Act and with the regulations, emergency directives, rules, orders and security measures made under this Act, enter any place, other than a private dwellingplace, where activities are carried on that relate directly or indirectly to the operation or maintenance of a railway or the operation of railway equipment, and carry out any inspection that the inspector considers necessary in relation to the matters designated by the Minister under section 27 in respect of which the inspector may exercise the powers of a railway safety inspector; 21. (1) Subsection 31(1) of the Act is replaced by the following:
Inspector may forbid or restrict use of unsafe works or equipment
31. (1) If a railway safety inspector is of the opinion that the standard of construction or maintenance of a line work or railway equipment of a company poses a threat to safe railway operations, the inspector (a) shall, by notice sent to the company, inform the company of that opinion and of the reasons for it; and (b) may, in the notice, if the inspector is satisfied that the threat is immediate, order the company to ensure that the line work or railway equipment not be used, or not be used otherwise than under terms and conditions specified in the notice, until the threat is removed to the inspector’s satisfaction.
1999, c. 9, s. 24(1)
(2) Subsection 31(2) of the French version of the Act is replaced by the following:
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Interdiction d’usage pour mauvais état d’ouvrages de franchissement
(2) L’inspecteur transmet au responsable de l’entretien d’ouvrages de franchissement un avis pour l’informer de son opinion et des motifs de celle-ci, lorsqu’il estime que les normes de construction ou d’entretien de ceux-ci risquent de compromettre la sécurité ferroviaire; il transmet aussi l’avis à la compagnie de chemin de fer concernée. S’il est convaincu que le risque est imminent, il peut en outre ordonner au responsable ou à la compagnie de chemin de fer, pour ce qui est de l’ouvrage de franchissement en cause, d’empêcher son utilisation ou de faire en sorte qu’il ne soit utilisé qu’à certaines conditions, tant que le risque ne lui paraîtra pas écarté.
1999, c. 9, s. 24(1)
(3) Subsection 31(3) of the Act is replaced by the following:
Inspector may forbid operation of certain works or equipment
(3) If a railway safety inspector is of the opinion that the operation of a line work or railway equipment threatens the safety or security of railway operations, the inspector, by notice sent to the company or to any other person who owns or leases the equipment,
Railway
(a) shall inform them of that opinion and of the reasons for it; and (b) may, if the inspector is satisfied that the threat is immediate, order either of them to ensure that the line work or railway equipment not be operated, or not be operated otherwise than under specified terms and conditions, unless it is operated so as to remove the threat, to the inspector’s satisfaction. 1999, c. 9, s. 24(2)
(4) Subsections 31(6) and (7) of the English version of the Act are replaced by the following:
Copies of certain notices to be served on supervisor
(6) If a notice sent to a company under this section contains an order, the railway safety inspector who sent the notice shall send a copy of it to the company supervisor who is directly responsible for the works or equipment concerned or, in the absence of that supervisor, to the employee who is at that time in charge of the works or equipment concerned.
Effect of order
(7) An order contained in a notice under this section has effect, in the case of a company, when the company receives the notice or when a
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Sécurité fe company supervisor or employee receives a copy of it, whichever occurs first and, in the case of any other person, when they receive the notice.
1999, c. 9, s. 24(3)
(5) Subsection 31(10) of the English version of the Act is replaced by the following:
When alteration or revocation effective
(10) An alteration or revocation of an order under this section has effect when the company or other person to whom the original notice was sent receives a notice of the alteration or revocation.
2001, c. 29, s. 67
22. Subsection 31.1(1) of the Act is replaced by the following:
Request for review of order of railway safety inspector
31.1 (1) A person who is sent a notice under section 31 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.
2001, c. 29, s. 67
23. Section 31.5 of the English version of the Act is replaced by the following:
When alteration or revocation effective
31.5 An alteration or revocation under section 31.4 has effect when the company or other person to whom notice of the order under section 31 was sent receives notice of the alteration or revocation.
1999, c. 9, s. 25
24. Subsections 32(3) and (3.1) of the Act are replaced by the following:
Contravention of regulations under section 24
(3) If the Minister is of the opinion that a person has contravened a regulation made under section 24, the Minister (a) by notice sent to the person, (i) shall inform the person of that opinion and of the reasons for it, and (ii) may, if the Minister believes that, by reason of that contravention, there exists in respect of particular railway works an immediate threat to safe railway operations, order the person to take any action that is necessary to remove the threat; and (b) by notice sent to the railway company concerned,
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Railway (i) shall inform the railway company of that opinion and of the reasons for it, and (ii) may, if the Minister believes that, by reason of that contravention, there exists an immediate threat to safe railway operations, order the railway company to ensure that specified railway works or specified railway equipment not be used, or not be used otherwise than under terms and conditions specified in the notice, until appropriate action to remove the threat has, to the Minister’s satisfaction, been taken by the person referred to in paragraph (a).
Safety management system deficiencies
(3.1) If the Minister is of the opinion that the safety management system established by a company has deficiencies that risk compromising railway safety, the Minister may, by notice sent to the company, order the company to take the necessary corrective measures.
2001, c. 29, s. 69
25. Subsection 32.1(1) of the Act is replaced by the following:
Request for review
32.1 (1) A person who is sent a notice under section 32 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.
2001, c. 29, s. 69
26. Section 32.5 of the English version of the Act is replaced by the following:
When alteration or revocation effective
32.5 An alteration or revocation under section 32.4 has effect when the company or other person to whom notice of the order under section 32 was sent receives notice of the alteration or revocation.
1999, c. 9, s. 26(1)
27. (1) Subsection 33(1) of the Act is replaced by the following:
Minister may send emergency directives
33. (1) If the Minister is of the opinion that there is an immediate threat to safe railway operations or the security of railway transportation, the Minister may, by emergency directive sent to a company, order it
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Sécurité fe (a) either absolutely or to the extent specified in the directive, to stop using the kind of railway works or railway equipment or following the maintenance or operating practice that poses the threat; or (b) to follow a maintenance or operating practice specified in the directive if the threat is posed by the company’s failure to follow that practice.
1999, c. 9, s. 26(2)
(2) Subsections 33(4) to (6) of the English version of the Act are replaced by the following:
Minister may rescind emergency directives
(4) The Minister may, by notice sent to the company, rescind an emergency directive, in which case the directive ceases to have effect.
Inconsistency between emergency directives, regulations, rules or orders
(5) In the event that there is an inconsistency between an emergency directive and a regulation made under subsection 18(1) or (2.1) or a rule in force under section 19 or 20, the emergency directive prevails to the extent of the inconsistency.
Minister may renew emergency directives
(6) The Minister may, before the expiration of the period during which an emergency directive has effect, by notice sent to the company, renew the directive for a further specified period commencing on the expiration of the previous period and not exceeding six months and, if the Minister does so, this section, except this subsection, applies to the directive as renewed. 28. Subsection 34(2) of the English version of the Act is replaced by the following:
Orders of railway safety inspectors
(2) For the purpose of enabling an order contained in a notice served on a company or person by a railway safety inspector to be enforced as an order of a court under this section, the Minister may, by notice sent to that company or person, confirm that order, and that order after that has effect as an order of the Minister.
1999, c. 9, s. 27
29. (1) Subsection 35(2) of the French version of the Act is replaced by the following:
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Avertissement médical
(2) Le médecin ou l’optométriste qui a des motifs raisonnables de croire que son patient occupe un tel poste doit, si à son avis l’état de l’intéressé risque de compromettre cette sécurité, en informer sans délai, par avis écrit motivé, tout médecin ou optométriste désigné par la compagnie de chemin de fer, après avoir pris des mesures raisonnables pour en informer d’abord son patient. Le patient est présumé avoir consenti à cette communication et une copie de l’avis lui est transmise sans délai.
Railway
(2) Subsection 35(4) of the French version of the Act is replaced by the following: Utilisation des renseignements
(4) La compagnie de chemin de fer peut faire, des renseignements communiqués aux termes du paragraphe (2), l’usage qu’elle estime nécessaire pour la sécurité ferroviaire.
1999, c. 9, s. 29
30. Section 37 of the Act is replaced by the following:
Power to require information
36. The Minister may order that a company provide, in the specified form and within the specified period, information or documents that he or she considers necessary for the purposes of ensuring compliance with this Act and with the regulations, rules, orders, standards and emergency directives made under this Act.
Maintenance and production of safety records
37. (1) The Governor in Council may make regulations (a) respecting the keeping and preservation by each company of information, records and documents relevant to the safety of railway operations conducted by that company, including a complete set of the regulations, emergency directives, rules and orders made pursuant to this Act that are applicable to that company; (b) respecting the filing with the Minister at the request of the Minister of information, records and documents kept and preserved pursuant to regulations made under paragraph (a); and (c) respecting notification to the Minister by companies of information suitable for monitoring safety performance or predicting potential changes in levels of safety,
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Sécurité fe including information about any accident or incident associated with railway safety or any situation that could have a detrimental impact on safety performance.
Application
(2) A regulation made under this section may be general or applicable to a group or class of companies. 31. The Act is amended by adding the following after section 40: ADMINISTRATIVE MONETARY PENALTIES 40.1 The Governor in Council may, by regulation, (a) designate as a provision the contravention of which may be proceeded with as a violation in accordance with sections 40.13 to 40.22, (i) any provision of this Act or the regulations, or (ii) any rule, standard, order or emergency directive made under this Act; and (b) prescribe the maximum amount payable for each violation, not to exceed (i) $50,000, in the case of an individual, and (ii) $250,000, in the case of a corporation.
Designation of enforcement officers
40.11 (1) The Minister may designate persons, or classes of persons, as enforcement officers.
Certification of enforcement officers
(2) Every person designated as an enforcement officer under subsection (1) shall receive an authorization in prescribed form attesting to the person’s designation and shall, on demand, present the authorization to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties.
Entry
(3) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may enter any place, other than a private dwelling-place, where activities are carried on that relate
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directly or indirectly to the construction or operation of a railway or the operation of railway equipment. Production of documents
(4) For the purposes of determining whether a violation referred to in section 40.13 has been committed, a person designated as an enforcement officer under subsection (1) may require any person to produce for examination or reproduction all or part of any document or electronically stored data that the enforcement officer believes on reasonable grounds contain any information relevant to that determination.
Assistance to enforcement officers
(5) Any person from whom documents or data are requested under subsection (4) shall provide all reasonable assistance in their power to enable the enforcement officer making the request to carry out the enforcement officer’s duties and shall furnish any information that the enforcement officer reasonably requires for the purposes of this Act.
Notices of violation
40.12 The Minister may establish the form and content of notices of violation.
Violation
40.13 (1) Every person who contravenes a provision designated under paragraph 40.1(a) commits a violation and is liable to a penalty not exceeding the maximum amount prescribed under paragraph 40.1(b).
Continuing violation
(2) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
How contraventions may be proceeded with
(3) If a contravention of a provision designated under paragraph 40.1(a) may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding in the other.
Nature of violation
(4) For greater certainty, a violation is not an offence and accordingly section 126 of the Criminal Code does not apply in respect of a violation.
Issuance of notice of violation
40.14 When a person designated by the Minister under subsection 40.11(1) believes on reasonable grounds that a person has committed
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Sécurité fe a violation, he or she may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out (a) the penalty for the violation that the person is liable to pay; and (b) particulars concerning the time for and manner of paying the penalty and the procedure for requesting a review.
Payment of specified amount precludes further proceedings
40.15 If a person served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in the notice, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention and no further proceedings under this Act shall be taken against the person in respect of that contravention.
Request for review of determination
40.16 (1) A person served with a notice of violation that wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice — or within any further time that the Tribunal on application may allow — file a written request for a review with the Tribunal.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person that filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person that filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The Minister has the burden of establishing that a person has committed a violation.
Person not compelled to testify
(5) A person alleged to have committed a violation is not required to give evidence.
Failure to pay
40.17 A person that fails to pay the amount of the penalty specified in a notice of violation within the specified time and that does not file a
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request for a review is deemed to have committed the contravention alleged in the notice. Determination by Tribunal member
40.18 At the conclusion of a review, the member of the Tribunal who conducts the review shall without delay inform the Minister and the person alleged to have committed a violation (a) that the person has not committed a violation, in which case, subject to section 40.19, no further proceedings under this Act shall be taken against the person in respect of the alleged violation; or (b) that the person has committed a violation and, subject to any regulations made under paragraph 40.1(b), of the amount that must be paid to the Tribunal by or on behalf of the person and the time within which it must be paid.
Right of appeal
40.19 (1) Within 30 days after a determination is made under section 40.18, the Minister or the person to whom it applies may appeal from the determination to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear an appeal may dispose of the appeal by dismissing it or by allowing it and, in allowing the appeal, the panel may substitute its decision for the determination.
Finding of violation
(4) If the appeal panel finds that a person has committed a violation, the panel shall without delay inform the person and the Minister of the finding and, subject to any regulations made under paragraph 40.1(b), of the amount determined by the panel to be payable to the Tribunal by or on behalf of the person in respect of the violation.
Certificate
40.2 The Minister may obtain from the Tribunal or the member, as the case may be, a certificate in the form established by the Governor in Council setting out the amount of the penalty required to be paid by a person who fails, within the time required,
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Sécurité fe (a) to pay the amount of a penalty set out in a notice of violation or to file a request for a review under section 40.16; (b) to pay an amount determined under paragraph 40.18(b) or file an appeal under section 40.19; or (c) to pay an amount determined under subsection 40.19(4).
Registration of certificate
40.21 (1) On production in any superior court, a certificate issued under section 40.2 shall be registered in the court and, when so registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.
Recovery of costs and charges
(2) All reasonable costs and charges attendant on the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been registered under subsection (1).
Amounts received deemed public moneys
(3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act.
Time limit for proceedings
40.22 Proceedings in respect of a violation may not be instituted later than 12 months after the time when the subject matter of the proceedings arose. 32. (1) Subsection 41(1) of the Act is replaced by the following:
Contravention of provision of Act
41. (1) Every person who contravenes a provision of this Act is guilty of an offence and liable (a) on conviction on indictment, (i) in the case of a corporation, to a fine not exceeding one million dollars, and (ii) in the case of an individual, to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding one year, or to both; or (b) on summary conviction,
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Railway (i) in the case of a corporation, to a fine not exceeding five hundred thousand dollars, and (ii) in the case of an individual, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months, or to both.
(2) Subsection 41(2) of the Act is amended by striking out “or” at the end of paragraph (e) and by adding the following after paragraph (f): (g) a railway operating certificate issued under section 17.4; or (h) an order made under section 36. 1999, c. 9, s. 31
(3) Subsection 41(2.1) of the Act is replaced by the following:
Punishment
(2.1) A person who is guilty of an offence under subsection (2) is liable on summary conviction (a) in the case of a corporation, to a fine of not more than one million dollars; and (b) in the case of an individual, to a fine of not more than fifty thousand dollars or to imprisonment for a term of not more than six months, or to both.
2007, c. 19, s. 54
33. Section 44 of the French version of the Act is replaced by the following:
Nomination
44. (1) Tout juge d’une cour supérieure peut nommer un agent de police chargé de faire observer la partie III de la Loi sur les transports au Canada, ainsi que les autres lois fédérales ou les lois provinciales touchant la protection des biens qu’administre ou possède la compagnie de chemin de fer, ou dont elle est propriétaire, ou la protection de personnes ou de biens se trouvant en des lieux qu’elle administre ou possède ou dont elle est propriétaire.
Restriction
(2) La nomination ne peut se faire que sur demande de la compagnie de chemin de fer qui administre ou possède des biens, ou en est le propriétaire, dans le ressort où le juge a compétence.
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Compétence de l’agent de police
(3) L’agent de police exerce sa compétence sur les biens que la compagnie de chemin de fer administre ou possède ou dont elle est propriétaire, ainsi qu’en tout lieu se trouvant dans un rayon de cinq cents mètres de ceux-ci.
Pouvoirs de l’agent de police
(4) L’agent de police peut amener toute personne inculpée d’une infraction créée par la partie III de la Loi sur les transports au Canada ou par toute autre loi visée au paragraphe (1) devant un tribunal ayant compétence dans le ressort où sont situés des biens que la compagnie de chemin de fer administre ou possède ou dont elle est propriétaire, indépendamment du lieu d’arrestation ou du lieu, réel ou présumé, de perpétration.
Compétence du tribunal
(5) Le tribunal statue sur le cas comme si l’inculpé avait été arrêté dans son ressort et y avait commis l’infraction, sauf si le lieu présumé de perpétration est situé à l’extérieur de la province.
Destitution ou licenciement
(6) Tout juge visé au paragraphe (1) ou la compagnie de chemin de fer peut destituer ou licencier l’agent de police, ce qui met fin à l’exercice des attributions qui lui sont conférées aux termes du présent article.
2007, c. 19, s. 54
34. Subsection 44.1(2) of the French version of the Act is replaced by the following:
Dépôt
(2) La compagnie de chemin de fer dépose auprès du ministre un double de la procédure. Elle met en oeuvre les recommandations de celui-ci, notamment celles concernant les moyens de porter à la connaissance du public l’existence de la procédure. 35. Section 46 of the Act is amended by striking out “or” at the end of paragraph (e) and by adding the following after paragraph (f): (g) railway operating certificates issued under section 17.4 and notices of decision given under section 17.5; or (h) orders made under section 36. 36. The heading before section 47 of the Act is replaced by the following: REGULATIONS — GENERAL
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1999, c. 9, s. 34
37. Section 47.1 of the Act is replaced by the following:
Regulations — safety management systems
47.1 (1) The Governor in Council may make regulations respecting safety management systems including, but not limited to, regulations respecting
Railway
(a) the establishment by companies of safety management systems that include (i) the identification of an executive who is (A) responsible for operations and activities of a company, and (B) accountable for the extent to which the requirements of the safety management system have been met, (ii) the implementation, as a result of a risk management analysis, of the remedial action required to maintain the highest level of safety, (iii) the continuous monitoring and regular assessment of the level of safety achieved, (iv) in the case of a railway company, the implementation of non-punitive internal reporting and confidential reporting to Transport Canada by employees of contraventions of this Act or of any regulations, rules, certificates, orders or emergency directives under this Act relating to safety, or of other safety concerns, and (v) in the case of a railway company, the involvement of employees and their collective bargaining agents in the ongoing operation of the safety management system; (b) the development and implementation of safety management systems by companies, including the involvement of employees and their collective bargaining agents in the case of railway companies; and (c) the criteria to which the safety management system must conform as well as the components, including the principle of fatigue science applicable to scheduling, that must be included in a safety management system.
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Release of pollutants
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(2) The Governor in Council may make regulations respecting the release of pollutants into the environment from the operation of railway equipment by a railway company including, but not limited to, regulations respecting (a) the keeping of records and information and their filing with the Minister; and (b) the form and content of labels to be affixed to railway equipment and their placement on railway equipment.
Environmental management plan
(3) The Governor in Council may make regulations requiring a railway company to file with the Minister environmental management plans and compliance audits with respect to those plans.
Application
(4) A regulation made under this section may be general or applicable to a group or class of companies.
Ministerial regulations — fees and charges
47.2 (1) The Minister may make regulations prescribing any fees or charges, or determining the manner of calculating any fees or charges, to be paid (a) for services or the use of facilities provided by the Minister in the administration of this Act; or (b) in relation to the filing of documents and the making of applications for and the issuance of certificates, exemptions, licences or approvals under this Act.
Limitation
(2) Her Majesty in right of Canada or a province and the entities named in Schedules II and III to the Financial Administration Act are not liable to pay fees or charges.
Application
(3) A regulation made under this section may be general or applicable to a group or class of companies.
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Review by House of Commons committee
47.3 (1) The Standing Committee on Transport, Infrastructure and Communities of the House of Commons or, if there is not a Standing Committee on Transport, Infrastructure and Communities, the appropriate committee of that House may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The Committee may hold public hearings and may table its report on its review in the House of Commons.
Review by Senate committee
(2) The Standing Senate Committee on Transport and Communications or, if there is not a Standing Senate Committee on Transport and Communications, the appropriate committee of the Senate may review any regulations made under this Act, either on its own initiative or on receiving a written complaint regarding a specific safety concern. The committee may hold public hearings and may table its report on its review in the Senate.
Railway
38. Section 51 of the Act is replaced by the following: Statutory review
51. (1) The Minister shall, not later than five years after the day on which this section comes into force, appoint one or more persons to carry out a comprehensive review of the operation of this Act.
Tabling of report
(2) The Minister shall have a report of the comprehensive review laid before each House of Parliament on any of the first thirty days on which that House is sitting after the Minister receives it.
1996, c. 10
CONSEQUENTIAL AMENDMENTS TO THE CANADA TRANSPORTATION ACT
2007, c. 19, s. 46
39. Subsection 157.1(1) of the Canada Transportation Act is replaced by the following:
Agreements to apply transportation law to provincial railways
157.1 (1) The Minister may enter into an agreement with a provincial minister responsible for transportation matters providing for the administration, in relation to persons who operate railways within the legislative authority of the province, of any law respecting
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Sécurité fe (a) accident investigations and railway crossings; or (b) railway noise and vibration, or the regulation of the rates and conditions of service of railway companies, to the extent that those matters are governed by this Act.
2007, c. 19, s. 47
40. Section 158 of the Act is replaced by the following:
Agreements made with provincial authorities
158. The Minister may enter into an agreement with a provincial authority to authorize the provincial authority to regulate the construction and operation of a railway as well as the rates and conditions of service in the same manner and to the same extent as it may regulate a railway within its jurisdiction.
TRANSITIONAL PROVISIONS Agreements continued
41. An agreement entered into or a designation made under section 157.1 of the Canada Transportation Act in respect of any matter referred to in section 6.1 of the Railway Safety Act, as enacted by section 6, continues in force in accordance with its terms until it is replaced by an agreement entered into under that section 6.1.
Agreements continued
42. An agreement entered into under section 158 of the Canada Transportation Act in respect of any matter referred to in section 6.2 of the Railway Safety Act, as enacted by section 6, continues in force in accordance with its terms until it is replaced by an agreement entered into under that section 6.2.
Grace period for obtaining certificate
43. For the period ending two years after the day on which section 10 comes into force, section 17.1 of the Railway Safety Act, as enacted by section 10, does not apply to a company that was operating or maintaining a railway on that day or that was operating railway equipment on a railway on that day.
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Grace period for obtaining certificate
44. For the period ending two years after the day on which section 17.2 of the Railway Safety Act, as enacted by subsection 11(2), comes into force, the requirement to comply with a railway operating certificate imposed by that section 17.2 does not apply to a company that has no railway operating certificate if that company was operating or maintaining a railway on that day or was operating railway equipment on a railway on that day.
Railway
COMING INTO FORCE Order in council
45. (1) The provisions of this Act, other than subsections 7(2) and 14(2) to (5), come into force on a day or days to be fixed by order of the Governor in Council.
First regulations — section 20.2
(2) Subsections 7(2) and 14(2) to (5) come into force on the day on which the first regulations made under section 20.2 of the Railway Safety Act, as enacted by subsection 14(1), come into force.
Published under authority of the Senate of Canada Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 6 An Act to amend the Criminal Code and the Firearms Act
ASSENTED TO 5th APRIL, 2012 BILL C-19
SUMMARY This enactment amends the Criminal Code and the Firearms Act to remove the requirement to register firearms that are neither prohibited nor restricted. It also provides for the destruction of existing records, held in the Canadian Firearms Registry and under the control of chief firearms officers, that relate to the registration of such firearms.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 6 An Act to amend the Criminal Code and the Firearms Act [Assented to 5th April, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. C-46
1. This Act may be cited as the Ending the Long-gun Registry Act. CRIMINAL CODE
2008, c. 6, s. 4
2. (1) Subsection 91(1) of the Criminal Code is replaced by the following:
Unauthorized possession of firearm
91. (1) Subject to subsection (4), every person commits an offence who possesses a firearm without being the holder of (a) a licence under which the person may possess it; and (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
1995, c. 39, s. 139
(2) Subparagraph 91(4)(b)(ii) of the Act is replaced by the following: (ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
2 1995, c. 39, s. 139
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Criminal Code
(3) Subsection 91(5) of the Act is repealed.
2008, c. 6, s. 5
3. (1) Subsection 92(1) of the Act is replaced by the following:
Possession of firearm knowing its possession is unauthorized
92. (1) Subject to subsection (4), every person commits an offence who possesses a firearm knowing that the person is not the holder of (a) a licence under which the person may possess it; and (b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
1995, c. 39, s. 139
(2) Subparagraph 92(4)(b)(ii) of the Act is replaced by the following: (ii) obtains a licence under which the person may possess it and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.
1995, c. 39, s. 139
(3) Subsections 92(5) and (6) of the Act are repealed.
2008, c. 6, s. 7
4. (1) The portion of subsection 94(1) of the Act before paragraph (a) is replaced by the following:
Unauthorized possession in motor vehicle
94. (1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless
1995, c. 39, s. 139
(2) Subparagraphs 94(1)(a)(i) and (ii) of the Act are replaced by the following: (i) the person or any other occupant of the motor vehicle is the holder of (A) a licence under which the person or other occupant may possess the firearm, and
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Code criminel (B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, (ii) the person had reasonable grounds to believe that any other occupant of the motor vehicle was the holder of (A) a licence under which that other occupant may possess the firearm, and (B) in the case of a prohibited firearm or a restricted firearm, an authorization and a registration certificate for it, or
1995, c. 39, s. 139
(3) Subsection 94(5) of the Act is repealed.
2008, c. 6, s. 8(1)
5. The portion of subsection 95(1) of the English version of the Act before paragraph (a) is replaced by the following:
Possession of prohibited or restricted firearm with ammunition
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of
1995, c. 39, s. 139
6. Paragraphs 106(1)(a) and (b) of the Act are replaced by the following: (a) after destroying any prohibited firearm, restricted firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition, or (b) on becoming aware of the destruction of any prohibited firearm, restricted firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition that was in the person’s possession before its destruction,
1995, c. 39, s. 139
7. Subsection 108(3) of the Act is replaced by the following:
Exception
(3) No person is guilty of an offence under paragraph (1)(b) by reason only of possessing a prohibited firearm or restricted firearm the serial number on which has been altered, defaced or removed, if that serial number has been replaced
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and a registration certificate in respect of the firearm has been issued setting out a new serial number for the firearm. 1995, c. 39, s. 139
8. Subsections 117.03(1) and (2) of the Act are replaced by the following:
Seizure on failure to produce authorization
117.03 (1) Despite section 117.02, a peace officer who finds (a) a person in possession of a firearm who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess the firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate for it, or (b) a person in possession of a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition who fails, on demand, to produce, for inspection by the peace officer, an authorization or a licence under which the person may lawfully possess it, may seize the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition unless its possession by the person in the circumstances in which it is found is authorized by any provision of this Part, or the person is under the direct and immediate supervision of another person who may lawfully possess it.
Return of seized thing on production of authorization
(2) If a person from whom any thing is seized under subsection (1) claims the thing within 14 days after the seizure and produces for inspection by the peace officer by whom it was seized, or any other peace officer having custody of it, (a) a licence under which the person is lawfully entitled to possess it, and (b) in the case of a prohibited firearm or a restricted firearm, an authorization and registration certificate for it, the thing shall without delay be returned to that person.
2011-2012 1995, c. 39
Code criminel FIREARMS ACT 9. Subparagraph 4(a)(i) of the Firearms Act is replaced by the following: (i) licences for firearms and authorizations and registration certificates for prohibited firearms or restricted firearms, under which persons may possess firearms in circumstances that would otherwise constitute an offence under subsection 91(1), 92(1), 93(1) or 95(1) of the Criminal Code,
10. The Act is amended by adding the following before section 13: Registration certificate
12.1 A registration certificate may only be issued for a prohibited firearm or a restricted firearm.
2003, c. 8, s. 17
11. Section 23 of the Act is replaced by the following:
Authorization to transfer firearms neither prohibited nor restricted
23. A person may transfer a firearm that is neither a prohibited firearm nor a restricted firearm if, at the time of the transfer, (a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; and (b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm.
Voluntary request to Registrar
23.1 (1) A transferor referred to in section 23 may request that the Registrar inform the transferor as to whether the transferee, at the time of the transfer, holds and is still eligible to hold the licence referred to in paragraph 23(a), and if such a request is made, the Registrar or his or her delegate, or any other person that the federal Minister may designate, shall so inform the transferor.
No record of request
(2) Despite sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act, neither the Registrar or his or her delegate nor a designated person shall retain any record of a request made under subsection (1).
C. 6
Authorization to transfer prohibited or restricted firearms
23.2 (1) A person may transfer a prohibited firearm or a restricted firearm if, at the time of the transfer,
Criminal Code
(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; (b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm; (c) the transferor informs the Registrar of the transfer; (d) if the transferee is an individual, the transferor informs a chief firearms officer of the transfer and obtains the authorization of the chief firearms officer for the transfer; (e) a new registration certificate for the firearm is issued in accordance with this Act; and (f) the prescribed conditions are met. Notice
(2) If, after being informed of a proposed transfer of a firearm, the Registrar decides to refuse to issue a registration certificate for the firearm, the Registrar shall inform a chief firearms officer of that decision.
2003, c. 8, s. 19
12. Subsection 26(1) of the Act is replaced by the following:
Authorization to transfer prohibited or restricted firearms to Crown, etc.
26. (1) A person may transfer a prohibited firearm or a restricted firearm to Her Majesty in right of Canada or a province, to a police force or to a municipality if the person informs the Registrar of the transfer and complies with the prescribed conditions.
2003, c. 8, s. 20(1)
13. The portion of section 27 of the Act before paragraph (a) is replaced by the following:
Chief firearms officer
27. On being informed of a proposed transfer of a prohibited firearm or restricted firearm under section 23.2, a chief firearms officer shall
2011-2012
Code criminel 14. Subparagraph 33(a)(ii) of the Act is replaced by the following: (ii) in the case of a prohibited firearm or a restricted firearm, lends the registration certificate for it to the borrower; or 15. Paragraph 34(a) of the Act is replaced by the following: (a) in the case of a prohibited firearm or a restricted firearm, the transferor lends the registration certificate for it to the borrower; and 16. Subsection 36(1) of the Act is replaced by the following:
Temporary licence and registration certificate
36. (1) A declaration that is confirmed under paragraph 35(1)(b) has the same effect after the importation of the firearm as a licence authorizing the non-resident to possess only that firearm and, in the case of a restricted firearm, as a registration certificate for the firearm until (a) the expiry of 60 days after the importation, in the case of a firearm that is neither a prohibited firearm nor a restricted firearm; or (b) the earlier of the expiry of 60 days after the importation and the expiry of the authorization to transport, in the case of a restricted firearm.
17. Subparagraph 38(1)(a)(ii) of the Act is replaced by the following: (ii) produces his or her licence and, in the case of a prohibited firearm or a restricted firearm, the registration certificate for the firearm and an authorization to transport the firearm; and 18. Paragraph 44(a) of the Act is replaced by the following: (a) in the case of a prohibited firearm or a restricted firearm, holds the registration certificate for the firearm; 19. Section 60 of the Act is replaced by the following:
C. 6
Registration certificates and authorizations to export or import
60. The Registrar is responsible for issuing registration certificates for prohibited firearms and restricted firearms and assigning firearms identification numbers to them and for issuing authorizations to export and authorizations to import.
Criminal Code
20. The portion of section 66 of the Act before paragraph (a) is replaced by the following: Term of registration certificates
66. A registration certificate for a prohibited firearm or a restricted firearm expires when
21. Paragraph 71(1)(a) of the Act is replaced by the following: (a) may revoke a registration certificate for a prohibited firearm or a restricted firearm for any good and sufficient reason; and
22. Subsection 72(5) of the Act is replaced by the following: Disposal of firearms — registration certificate
(5) A notice given under subsection (1) in respect of a registration certificate for a prohibited firearm or a restricted firearm must specify a reasonable period during which the applicant for or holder of the registration certificate may deliver to a peace officer or a firearms officer or a chief firearms officer or otherwise lawfully dispose of the firearm to which the registration certificate relates and during which sections 91, 92 and 94 of the Criminal Code do not apply to the applicant or holder. 23. Paragraphs 83(1)(a) and (b) of the Act are replaced by the following: (a) every licence, every registration certificate for a prohibited firearm or a restricted firearm and every authorization that is issued or revoked by the Registrar;
2011-2012
Code criminel (b) every application for a licence, a registration certificate for a prohibited firearm or a restricted firearm or an authorization that is refused by the Registrar; 24. Section 88 of the Act is replaced by the following:
Reporting of loss, finding, theft and destruction
88. A chief firearms officer to whom the loss, finding, theft or destruction of a prohibited firearm or a restricted firearm is reported shall have the Registrar informed without delay of the loss, finding, theft or destruction. 25. The Act is amended by adding the following after section 90:
Right of access — subsection 23.1(1)
90.1 For the purpose of subsection 23.1(1), the person responding to a request made under that subsection has a right of access to records kept by a chief firearms officer under section 87. 26. Section 105 of the Act is replaced by the following:
Demand to produce firearm
105. An inspector who believes on reasonable grounds that a person possesses a firearm may, by demand made to that person, require that person, within a reasonable time after the demand is made, to produce the firearm in the manner specified by the inspector for the purpose of verifying the serial number or other identifying features of the firearm and of ensuring that, in the case of a prohibited firearm or a restricted firearm, the person is the holder of the registration certificate for it. 27. Section 112 of the Act is repealed. 28. Sections 114 and 115 of the Act are replaced by the following:
Failure to deliver up revoked licence, etc.
114. Every person commits an offence who, being the holder of a licence, a registration certificate for a prohibited firearm or a restricted firearm or an authorization that is revoked, does not deliver it up to a peace officer or firearms officer without delay after the revocation.
Punishment
115. Every person who commits an offence under section 113 or 114 is guilty of an offence punishable on summary conviction.
C. 6
Criminal Code TRANSITIONAL PROVISIONS
Destruction of information — Commissioner
29. (1) The Commissioner of Firearms shall ensure the destruction as soon as feasible of all records in the Canadian Firearms Registry related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under the Commissioner’s control.
Destruction of information — chief firearms officers
(2) Each chief firearms officer shall ensure the destruction as soon as feasible of all records under their control related to the registration of firearms that are neither prohibited firearms nor restricted firearms and all copies of those records under their control.
Non-application
(3) Sections 12 and 13 of the Library and Archives of Canada Act and subsections 6(1) and (3) of the Privacy Act do not apply with respect to the destruction of the records and copies referred to in subsections (1) and (2).
COORDINATING AMENDMENTS 2003, c. 8
30. (1) In this section, “other Act” means An Act to amend the Criminal Code (firearms) and the Firearms Act, chapter 8 of the Statutes of Canada, 2003. (2) On the first day on which both section 27 of the other Act and section 16 of this Act are in force, paragraph 35.1(1)(b) of the Firearms Act is replaced by the following: (b) the individual produces a licence authorizing him or her to acquire and possess that kind of firearm and, in the case of a restricted firearm, satisfies the customs officer that the individual holds a registration certificate for the firearm; (3) On the first day on which both section 28 of the other Act and section 16 of this Act are in force, subsection 36(1) of the Firearms Act is replaced by the following:
2011-2012 Temporary licence and registration certificate
Code criminel 36. (1) A declaration that is confirmed under paragraph 35(1)(d) has the same effect after the importation of the firearm as a licence authorizing the non-resident to possess only that firearm and, in the case of a restricted firearm, as a registration certificate for the firearm until (a) the expiry of 60 days after the importation, in the case of a firearm that is neither a prohibited firearm nor a restricted firearm; or (b) the earlier of the expiry of 60 days after the importation and the expiry of the authorization to transport, in the case of a restricted firearm.
(4) If section 29 of the other Act comes into force before section 17 of this Act, then that section 17 is replaced by the following: 17. Paragraph 38(1)(a) of the Act is replaced by the following: (a) holds a licence to possess that kind of firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate and an authorization to transport the firearm; and (5) If section 17 of this Act comes into force before section 29 of the other Act, then, on the day on which that section 29 comes into force, paragraph 38(1)(a) of the Firearms Act is replaced by the following: (a) holds a licence to possess that kind of firearm and, in the case of a prohibited firearm or a restricted firearm, a registration certificate and an authorization to transport the firearm; and (6) If section 29 of the other Act comes into force on the same day as section 17 of this Act, then that section 17 is deemed to have come into force before that section 29 and subsection (5) applies as a consequence.
C. 6
Criminal Code
(7) On the first day on which both section 30 of the other Act and section 17 of this Act are in force, paragraphs 40(1)(b) and (c) of the Firearms Act are replaced by the following: (b) the individual produces a licence authorizing him or her to possess that kind of firearm; (c) in the case of a prohibited firearm or a restricted firearm, the individual holds an authorization to transport it and satisfies the customs officer that the individual holds a registration certificate for the firearm; and (8) On the first day on which both section 31 of the other Act and section 17 of this Act are in force, section 41 of the Firearms Act is replaced by the following: Temporary registration certificate
41. An authorization that is confirmed in accordance with paragraph 40(2)(e) has the same effect as a registration certificate for a restricted firearm until a registration certificate is issued for it. COMING INTO FORCE
Order in council
31. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 13 An Act respecting a day to increase public awareness about epilepsy
ASSENTED TO 28th JUNE, 2012 BILL C-278
SUMMARY This enactment designates the 26th day of March in each and every year as “Purple Day”.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 13 An Act respecting a day to increase public awareness about epilepsy [Assented to 28th June, 2012] Preamble
Whereas the Parliament of Canada wishes to assist in efforts to educate and increase awareness, among members of the public, about people living with epilepsy; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE
Short title
1. This Act may be cited as the Purple Day Act. PURPLE DAY
Purple Day
2. Throughout Canada, in each and every year, the 26th day of March is to be known as “Purple Day”.
Wearing purple
3. On the 26th day of March, people are encouraged to wear the colour purple to indicate their support for people with epilepsy and to increase public awareness of this disorder.
Not a legal holiday
4. For greater certainty, Purple Day is not a legal holiday or a non-juridical day.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 12 An Act respecting the National Flag of Canada
ASSENTED TO 28th JUNE, 2012 BILL C-288
SUMMARY The purpose of this enactment is to ensure that all Canadians are encouraged to display the National Flag of Canada.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 12 An Act respecting the National Flag of Canada [Assented to 28th June, 2012] Preamble
Whereas the Canadian flag is the symbol of the nation’s unity; Whereas the Canadian flag represents the principles of freedom, democracy, courage, and justice upon which our great nation is based; Whereas the Canadian flag represents all the citizens of Canada; Whereas the Canadian flag represents pride in our great nation and support for those who have sacrificed their lives for it; And whereas it is in the national and public interest to encourage the displaying of the National Flag;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the National Flag of Canada Act. DISPLAYING THE NATIONAL FLAG
Displaying flag
2. (1) All Canadians are encouraged to proudly display the National Flag of Canada in accordance with flag protocol.
Allowing display
(2) Every person who is in control of an apartment building, a condominium building or building in divided co-ownership or another
C. 12
National Fla
multiple-residence building or a gated community is encouraged to allow the National Flag of Canada to be displayed in accordance with flag protocol.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 8 An Act to provide for the continuation and resumption of rail service operations
ASSENTED TO 31st MAY, 2012 BILL C-39
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to provide for the continuation and resumption of rail service operations”.
SUMMARY This enactment provides for the continuation and resumption of rail service operations and imposes a binding arbitration process to resolve matters remaining in dispute between the parties.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO PROVIDE FOR THE CONTINUATION AND RESUMPTION OF RAIL SERVICE OPERATIONS SHORT TITLE 1.
Restoring Rail Service Act INTERPRETATION
2. Definitions
3. Continuation or resumption of rail service operations
4. Prohibitions
5. Obligations
RAIL SERVICE OPERATIONS
EXTENSION OF COLLECTIVE AGREEMENTS 6.
Extension
7. Strikes and lockouts prohibited ARBITRATION
8. Arbitration
9. Incorporation in collective agreement
10. Proceedings prohibited
11. New collective agreements not precluded NEW COLLECTIVE AGREEMENTS
12. New collective agreements COSTS
13. Costs ENFORCEMENT
14. Individuals
15. No imprisonment
16. Recovery of fines
17. Presumption COMING INTO FORCE
18. Coming into force
60-61 ELIZABETH II —————— CHAPTER 8 An Act to provide for the continuation and resumption of rail service operations [Assented to 31st May, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Restoring Rail Service Act. INTERPRETATION
Definitions
2. (1) The following definitions apply in this Act.
“arbitrator” « arbitre »
“arbitrator” means an arbitrator appointed under subsection 8(1).
“collective agreement” « convention collective »
“collective agreement” means any collective agreement between the employer and the union that expired on December 31, 2011.
“employee” « employé »
“employer” « employeur »
“Minister” « ministre »
“union” « syndicat »
“employee” means a person who is employed by the employer and bound by a collective agreement. “employer” means the Canadian Pacific Railway. “Minister” means the Minister of Labour. “union” means the Teamsters Canada Rail Conference, representing the rail traffic controllers’ bargaining unit or the running trades employees’ bargaining unit.
C. 8
Words and expressions
(2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in Part I of the Canada Labour Code.
Restoring R
RAIL SERVICE OPERATIONS Continuation or resumption of rail service operations
3. On the coming into force of this Act, (a) the employer must continue, or resume without delay, as the case may be, rail service operations; and (b) every employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.
Prohibitions
4. It is prohibited for the employer and for any officer or representative of the employer to (a) in any manner impede any employee from complying with paragraph 3(b); or (b) discharge or in any other manner discipline, or authorize or direct the discharge or discipline of, any employee by reason of the employee having been on strike before the coming into force of this Act.
Obligations
5. The union and each officer and representative of the union must (a) without delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, rail service operations are to be continued or resumed, as the case may be, and that the employees, when so required, are to continue, or resume without delay, as the case may be, the duties of their employment; (b) take all reasonable steps to ensure that employees comply with paragraph 3(b); and (c) refrain from any conduct that may encourage employees not to comply with paragraph 3(b). EXTENSION OF COLLECTIVE AGREEMENTS
Extension
6. (1) The term of each collective agreement is extended to include the period beginning on January 1, 2012 and ending on the day on which a new collective agreement between the parties comes into effect.
2011-2012
Reprise des serv
Collective agreement binding for extended term
(2) A collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is extended, despite anything in the collective agreement or in Part I of the Canada Labour Code. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement.
Strikes and lockouts prohibited
7. Until the day on which a collective agreement, as extended by subsection 6(1), expires, it is prohibited (a) for the employer and for any officer or representative of the employer to declare or cause a lockout against the union in respect of the bargaining unit to which the collective agreement applies; (b) for the union and for any officer or representative of the union to declare or authorize a strike against the employer in respect of that bargaining unit; and (c) for an employee who is a member of that bargaining unit to participate in a strike against the employer. ARBITRATION
Arbitration
8. (1) The Minister must, after the coming into force of this Act, appoint an arbitrator in respect of each collective agreement and refer to the arbitrator all matters relating to the amendment or revision of the collective agreement that, at the time of the appointment, are in dispute between the parties to it.
Powers and duties
(2) An arbitrator has, with any modifications that the circumstances require, all the powers and duties of an arbitrator under paragraphs 60(1)(a) and (a.2) to (a.4) and section 61 of the Canada Labour Code.
Time limit and report
(3) An arbitrator must decide all matters referred to the arbitrator under this Act within 90 days after the day on which he or she is appointed, or any longer period that the Minister may allow, and make a report to the Minister on the arbitrator’s decision in respect of those matters.
C. 8
Form of decision
(4) The decision of an arbitrator respecting a collective agreement must be set out in a form that enables it to be incorporated into the collective agreement in accordance with section 9.
Incorporation in collective agreement
9. Beginning on the day on which an arbitrator reports to the Minister under subsection 8(3), the collective agreement is deemed to be amended by the incorporation into it of
Restoring R
(a) any agreement between the parties to it arrived at before the appointment of the arbitrator; (b) any agreement resolving the matters in dispute between the parties to it arrived at after the appointment of the arbitrator and before the day on which the arbitrator reports to the Minister; and (c) the decision of the arbitrator in respect of the matters that were referred to arbitration. Proceedings prohibited
10. No order is to be made, no process entered into and no proceeding taken in court (a) to question the appointment of an arbitrator; or (b) to review, prohibit or restrain any proceeding or decision of an arbitrator.
New collective agreements not precluded
11. Nothing in this Act precludes the parties to a collective agreement from entering into a new collective agreement at any time before the arbitrator reports to the Minister under subsection 8(3) and, if they do so, the arbitrator’s duties under this Act cease as of the day on which the new collective agreement is entered into. NEW COLLECTIVE AGREEMENTS
New collective agreements
12. (1) Despite anything in Part I of the Canada Labour Code, an arbitrator’s decision constitutes a new collective agreement between the parties that is effective and binding on them beginning on the day on which it is made. However, that Part applies in respect of the new collective agreement as if it had been entered into under that Part.
2011-2012
Reprise des serv
Coming into effect of provisions
(2) A new collective agreement may provide that any of its provisions are effective and binding on a day that is before or after the day on which the new collective agreement becomes effective and binding.
Amendments
(3) Nothing in this Act is to be construed so as to limit or restrict the rights of the parties to a new collective agreement to amend any of its provisions, other than a provision relating to its term, and to give effect to the amendment. COSTS
Costs
13. All costs incurred by Her Majesty in right of Canada relating to the appointment of an arbitrator and the performance of an arbitrator’s duties under this Act are debts due to Her Majesty in right of Canada and may be recovered as such, in equal parts from the employer and the union, in any court of competent jurisdiction. ENFORCEMENT
Individuals
14. (1) An individual who contravenes any provision of this Act is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine of (a) not more than $50,000 if the individual was acting in the capacity of an officer or representative of the employer or the union when the offence was committed; or (b) not more than $1,000 in any other case.
Employer or union
(2) If the employer or the union contravenes any provision of this Act, it is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine of not more than $100,000.
No imprisonment
15. Despite subsection 787(2) of the Criminal Code, no term of imprisonment is to be imposed in default of payment of a fine that is imposed under section 14.
Recovery of fines
16. If a person is convicted of an offence under section 14 and the fine that is imposed is not paid when required, the prosecutor may, by
C. 8
Restoring R
filing the conviction, enter as a judgment the amount of the fine and costs, if any, in a superior court of the province in which the trial was held, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against the person in that court in civil proceedings. Presumption
17. For the purposes of this Act, the union is deemed to be a person. COMING INTO FORCE
Coming into force
18. This Act comes into force on the expiry of the twelfth hour after the time at which it is assented to.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 23 An Act respecting a National Philanthropy Day
ASSENTED TO 22nd NOVEMBER, 2012 BILL S-201
SUMMARY This enactment designates the 15th day of November in each and every year as “National Philanthropy Day”.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 23 An Act respecting a National Philanthropy Day
[Assented to 22nd November, 2012] Preamble
Whereas philanthropy is the spirit of giving without expectation of reward; Whereas Canadians continue to be inspired by the dedication of volunteers who devote themselves to improving the lives of others; Whereas philanthropy helps build strong communities and active civic participation by bringing people together to serve a common goal; Whereas countless Canadians have benefited from the help they have received from charitable organizations and caring individuals; Whereas through the dedicated work of caring individuals and organizations, November 15th has come to be known throughout Canada as National Philanthropy Day; And whereas it is important to honour all Canadians who demonstrate the spirit of giving by recognizing National Philanthropy Day;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the National Philanthropy Day Act.
C. 23
National Phila
NATIONAL PHILANTHROPY DAY National Philanthropy Day
2. Throughout Canada, in each and every year, the 15th day of November shall be known as “National Philanthropy Day”.
Published under authority of the Senate of Canada Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 22 An Act to amend the Members of Parliament Retiring Allowances Act
ASSENTED TO 1st NOVEMBER, 2012 BILL C-46
SUMMARY This enactment amends the Members of Parliament Retiring Allowances Act to increase the contribution rates in order to bring the members’ share of the current service cost to 50% and to increase the retirement age from 55 to 65. The amendments also provide for a reduced allowance before members reach the age of 65, and they coordinate allowances with pension benefits paid under the Canada Pension Plan or under a similar provincial pension plan. They also reduce the rate of interest to be credited to the pension accounts established under the Members of Parliament Retiring Allowances Act and change the allowance payable to former Prime Ministers who cease to hold the office of Prime Minister after December 31, 2012.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 22 An Act to amend the Members of Parliament Retiring Allowances Act [Assented to 1st November, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Pension Reform Act.
R.S., c. M-5
MEMBERS OF PARLIAMENT RETIRING ALLOWANCES ACT
1992, c. 46, s. 81
2. (1) The portion of subsection 2(1) of the Members of Parliament Retiring Allowances Act before the first definition is replaced by the following:
Definitions
2. (1) The following definitions apply in this Act.
1992, c. 46, s. 81
(2) The definition “earnings limit” in subsection 2(1) of the Act is replaced by the following:
“earnings limit” « gains maximums »
“earnings limit”, in relation to a member in respect of one or more sessions in any calendar year, means (a) for any calendar year before 2016, the amount in respect of which benefits may be accrued during that calendar year for the purposes of a registered pension plan within the meaning of the Income Tax Act, determined by dividing the defined benefit limit in respect of that calendar year by 0.02, and
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(b) for 2016 and subsequent calendar years, the amount determined by the following formula, rounded to the next highest multiple of $100: [(A – (B × C)) / 0.02] + C where A is the the amount determined for the calendar year in accordance with the definition “defined benefit limit” in subsection 8500(1) of the Income Tax Regulations, B is the number fixed by the Chief Actuary under subsection (6), and C is the amount of the Year’s Maximum Pensionable Earnings, as defined in subsection 2(1) of the Canada Pension Plan, for that calendar year. (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: “average annual pensionable earnings” « moyenne annuelle des gains ouvrant droit à pension »
“average maximum pensionable earnings” « moyenne des maximums des gains ouvrant droit à pension »
“average annual pensionable earnings”, with respect to any member, means the average annual pensionable earnings received as a member during any five-year period of pensionable service selected by or on behalf of the member, or during any period so selected consisting of consecutive periods of pensionable service totalling five years. “average maximum pensionable earnings”, with respect to any former member, means the average of the Year’s Maximum Pensionable Earnings, as defined in subsection 2(1) of the Canada Pension Plan, for the earlier of the years referred to in paragraphs (a) and (b), and for each of the four years preceding that earlier year, (a) the year in which the former member ceased to be a member, and (b) the year in which the former member becomes entitled to receive a retirement pension under the Canada Pension Plan or under a similar provincial pension plan.
“Chief Actuary” « actuaire en chef »
“Chief Actuary” means the Chief Actuary of the Office of the Superintendent of Financial Institutions.
2011-2012 “pensionable earnings” « gains ouvrant droit à pension »
Allocations de retrait “pensionable earnings”, with respect to any member in respect of any calendar year, means the aggregate of (a) his or her sessional indemnity for the year, (b) any annual allowance payable to him or her in respect of the year, and (c) any salary payable to the member in respect of the year.
“reduction factor” « facteur de réduction »
“reduction factor”, with respect to any former member, means the number determined by the calculation referred to in the description of D in subsection 37.3(2).
1992, c. 46, s. 81
(4) Subsection 2(2) of the Act is replaced by the following:
Calculation of average annual sessional indemnity
(2) For the purposes of calculating a member’s average annual sessional indemnity, any period during which he or she is, by virtue of paragraph 12(1)(b) or (c) or 34(1)(b), as it read immediately before January 1, 2013, prohibited from contributing in respect of the sessional indemnity payable to him or her is deemed to be a period of pensionable service to the member’s credit.
Calculation of average annual sessional indemnity
(2.1) For the purposes of calculating a member’s average annual sessional indemnity, any period during which he or she is required to make contributions under subsection 12(2) or would be required to contribute under that subsection if he or she were under 71 years of age is deemed to be a period of pensionable service to the member’s credit.
Calculation of average annual pensionable earnings
(2.2) For the purposes of calculating a member’s average annual pensionable earnings, any period during which he or she is required to make contributions under subsection 12(2.1) or would be required to contribute under that subsection if he or she were under 71 years of age is deemed to be a period of pensionable service to the member’s credit. (5) Section 2 of the Act is amended by adding the following after subsection (5):
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Power to fix number
(6) The Chief Actuary may, taking into account the percentage fixed for the purposes of subsection 17.1(2), fix a number for the purpose of the description of B in paragraph (b) of the definition “earnings limit” in subsection (1).
Members of Parliamen
3. The Act is amended by adding the following after section 2.6: CONTRIBUTION RATES Obligation to fix rates
2.7 (1) The Chief Actuary shall fix contribution rates for the purpose of the provisions of this Act that require contributions to be made at the applicable contribution rate.
Classes
(2) In fixing contribution rates for the purpose of any provision of this Act, the Chief Actuary may fix a rate for all of the members of the Senate or House of Commons or for any class of members specified by the Chief Actuary.
Applicable contribution rate
(3) For the purposes of any provision of this Act that requires the payment of a contribution, the applicable contribution rate with respect to a member is the contribution rate that is fixed by the Chief Actuary for the purposes of that provision that applies to the member or to the class of members to which the member belongs.
Contribution rate for purpose of paragraph 31.1(1)(a) — 2013 to 2015
(4) Despite subsection (1), but subject to subsection (9), the applicable contribution rate for the purpose of paragraph 31.1(1)(a) for the calendar years 2013 to 2015 is 4%.
Contribution rates for purpose of paragraph 31.1(1)(b) — 2013 to 2015
(5) Despite subsection (1), the applicable contribution rates for the purpose of paragraph 31.1(1)(b) for the calendar years 2013 to 2015 are (a) for 2013, 4%; (b) for 2014, 5%; and (c) for 2015, 6%.
Contribution rates for purpose of paragraphs 31.1(1)(c) and (2)(a) and (b) — 2013 to 2015
(6) Despite subsection (1), but subject to subsections (7) to (9), the applicable contribution rates for the purpose of paragraphs 31.1(1)(c) and (2)(a) and (b) for the calendar years 2013 to 2015 are (a) for 2013, 8%;
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Allocations de retrait (b) for 2014, 9%; and (c) for 2015, 10%.
Contribution rate for certain members — 2013 to 2015
(7) Despite subsection (1), the applicable contribution rate for the purpose of paragraph 31.1(1)(c) for the calendar years 2013 to 2015 for members who are required to contribute under subsection 12(2) is 4% in respect of the portion of salary or annual allowance that is payable to them that exceeds their earnings limit for the calendar year.
Contribution rates for certain members — 2013 to 2015
(8) Despite subsection (1), the applicable contribution rates for the purpose of paragraph 31.1(1)(c) for the calendar years 2013 to 2015, in respect of salary or annual allowance, for members who are required to contribute under subsection 12(2) are (a) for 2013, 4%; (b) for 2014, 5%; and (c) for 2015, 6%.
Contribution rate for certain members — 2013 to 2015
(9) Despite subsection (1), the applicable contribution rate for the purpose of paragraphs 31.1(1)(a) and (2)(a) for the calendar years 2013 to 2015 for members who are required to contribute under subsection 12(2) and members who would be required to contribute under subsection 12(2) if they were under 71 years of age is 1%.
Publication of rates
(10) The Minister shall cause to be published in the Canada Gazette the contribution rates fixed under subsection (1) as soon as feasible after they are fixed.
Objective
2.8 In fixing contribution rates, the Chief Actuary’s objective is to ensure that by not later than January 1, 2017 the total amount of contributions to be paid by members under Parts I and II will meet 50% of the current service cost in respect of the benefits payable under Parts I, II and IV.
2001, c. 20, s. 15
4. Paragraphs 4(1)(a) and (b) of the Act are replaced by the following:
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(a) the contributions paid under sections 9, 9.1, 11 and 11.1 on or after January 1, 1992 and contributions made under subsections 21(7) and 22(3) of the former Act that are paid on or after that date; (b) the interest paid under sections 11 and 11.1; and 1992, c. 46, s. 81
5. (1) Paragraph 5(1)(b) of the Act is replaced by the following: (b) an amount representing interest on the balance from time to time to the credit of the Retiring Allowances Account, calculated and credited in accordance with subsection (2).
1992, c. 46, s. 81
(2) Subsection 5(2) of the Act is replaced by the following:
Determination of amount
(2) The amount referred to in paragraph (1)(b) is to be credited to the Retiring Allowances Account in respect of each quarter in each fiscal year on the last day of the quarter and is to be determined by multiplying an amount equal to the balance to the credit of the Account on the last day of the preceding quarter by the rate referred to in subsection (3).
Rate
(3) The rate for the purpose of subsection (2) is the effective quarterly rate derived from the valuation interest rate for the fiscal year that is set out in the most recent valuation report for this Act that is laid before the Senate and the House of Commons under section 9 of the Public Pensions Reporting Act.
1992, c. 46, s. 81
6. Section 6 of the Act is repealed.
1992, c. 46, s. 81
7. Section 8 of the Act is replaced by the following:
Amounts to be credited to meet total cost
8. There shall be credited to the Retiring Allowances Account, at the time and in the manner determined by the Minister, an amount that, in the Minister’s opinion, based on actuarial advice, together with the amount estimated by the Minister to be to the credit of that Account at that time, is necessary to meet the total cost of all allowances and other
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Amounts to be debited
8.1 If the Minister is of the opinion, based on actuarial advice, that the amount estimated by the Minister to be to the credit of the Retiring Allowances Account exceeds the total cost of all allowances and other benefits payable under this Part and all supplementary benefits payable under Part IV in respect of those allowances or benefits, there may be debited from that Account, at the time and in the manner determined by the Minister, an amount specified by the Minister.
2001, c. 20, s. 16(1)
8. (1) Subsection 9(1) of the Act is replaced by the following:
Contributions — January 1, 2001 to December 31, 2015
9. (1) During the period that begins on January 1, 2001 and ends on December 31, 2015, a member shall with respect to each calendar year, by reservation from his or her sessional indemnity, contribute to the Retiring Allowances Account 4% of that portion of that sessional indemnity that does not exceed his or her earnings limit for the calendar year.
Non-application
(1.01) Subsection (1) does not apply to a member who is required to make a contribution under subsection 12(2).
2001, c. 20, s. 16(2); 2003, c. 16, s. 1
(2) Subsection 9(2) of the Act is replaced by the following:
Additional contributions
(2) During the period that begins on January 1, 2001 and ends on December 31, 2015, a member to whom subsection 12(2) applies who is in receipt of a salary or an annual allowance shall with respect to each calendar year, by reservation from that salary or allowance, contribute to the Retiring Allowances Account an amount equal to 4% of that portion of that salary or allowance that does not exceed his or her earnings limit for the calendar year, unless he or she elects in respect of that salary or allowance (a) not to contribute under this subsection and has also elected before December 31, 2015 not to contribute under subsection 31(4) or (5) or paragraph 31.1(1)(c) or (2)(b); or
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(b) to contribute at a lesser rate than that specified in this subsection. 9. The Act is amended by adding the following after section 9: Contributions — beginning on January 1, 2016
9.1 (1) Beginning on January 1, 2016, a member shall with respect to each calendar year, by reservation from his or her pensionable earnings, contribute to the Retiring Allowances Account at the applicable contribution rate in respect of any part specified by the Chief Actuary of the portion of the member’s pensionable earnings that does not exceed the member’s earnings limit for the calendar year.
Exception
(2) Subsection (1) does not apply to a member who is required to make a contribution under subsection 12(2.1).
2001, c. 20, s. 17(1)
10. The portion of subsection 11(1) of the Act before paragraph (a) is replaced by the following:
Contributions in respect of previous sessions — election before January 1, 2016
11. (1) If a member elects before January 1, 2016 to contribute to the Retiring Allowances Account in respect of a previous session, he or she shall pay into the Consolidated Revenue Fund 11. The Act is amended by adding the following after section 11:
Contributions in respect of previous sessions — election made on or after January 1, 2016
11.1 (1) If a member elects on January 1, 2016 to contribute to the Allowances Account in respect of a session, he or she shall pay into the dated Revenue Fund
or after Retiring previous Consoli(a) a contribution, calculated at the contribution rates fixed for the purposes of section 9.1 that are in force on the day on which the election is made, in respect of the portion of his or her pensionable earnings during that previous session that does not exceed his or her earnings limit for the year during that previous session; and (b) interest on that contribution, calculated at a rate and in the manner prescribed, from the day on which the final payment by way of pensionable earnings was made to the member in respect of that session to the day on which the election is made.
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Earnings limit for part of year
(2) For the purpose of subsection (1), if the person was not a member during the whole of a calendar year, the earnings limit for that calendar year is determined by multiplying the member’s earnings limit for the calendar year by the ratio that the part of the calendar year during which he or she was a member is to the whole calendar year.
2001, c. 20, s. 18(1); 2003, c. 16, s. 2(1)
12. (1) Subsection 12(1) of the Act is amended by adding “or” at the end of paragraph (a) and by replacing paragraphs (b) and (c) with by the following: (b) after the member has reached 71 years of age.
2003, c. 16, s. 2(2)
(2) Subsection 12(2) of the Act is replaced by the following:
Contribution of 1%
(2) During the period that begins on January 1, 2001 and ends on December 31, 2015, a member who has not reached 71 years of age shall with respect to each calendar year, by reservation from his or her sessional indemnity, after the aggregate of the products obtained by multiplying the number of years of pensionable service to the member’s credit by the multipliers set out in subsection 16(1) and, as applicable, subsection 36(2) or (6) equals 0.75, contribute under this Part 1% of that portion of the sessional indemnity that does not exceed his or her earnings limit for the calendar year.
Contributions on or after January 1, 2016
(2.1) Beginning on January 1, 2016, a member who has not reached 71 years of age shall with respect to each calendar year, by reservation from his or her pensionable earnings, after the aggregate of the products obtained under subsection (2) and the product obtained by multiplying the number of years of pensionable service on or after January 1, 2016 to the member’s credit by 0.02 equals 0.75, contribute under this Part at the applicable contribution rate in respect of the portion of the member’s pensionable earnings that does not exceed the member’s earnings limit for the calendar year.
1992, c. 46, s. 81
13. Paragraph 14(1)(b) of the Act is replaced by the following:
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(b) with respect to each year and portion of a year of pensionable service calculated in accordance with subsections (4) and (5), the number of those years and portions of years multiplied by 0.05. 1992, c. 46, s. 81
14. (1) Paragraphs 16(1)(a) and (b) of the Act are replaced by the following: (a) with respect to each year and portion of a year of pensionable service calculated in accordance with subsections (3), (4) and (6), the number of those years and portions of years multiplied by 0.03, in the case of a member of the Senate, and by 0.05, in the case of a member of the House of Commons; and (b) subject to subsection (2), with respect to each year and portion of a year of pensionable service calculated in accordance with subsections (5) and (6), the number of those years and portions of years multiplied by 0.02.
1992, c. 46, s. 81
(2) The portion of subsection 16(5) of the Act before paragraph (a) is replaced by the following:
Calculation of years of pensionable service between January 1, 1992 and December 31, 2015
(5) For the purposes of paragraph (1)(b), in respect of time spent as a member during the period that begins on January 1, 1992 and ends on December 31, 2015, or any period of pensionable service in respect of which an election under section 10 has been made during that period, a person is, on ceasing to be a member, deemed to have one year of pensionable service to his or her credit for each amount, equal to 4% of the sessional indemnity payable to a member during any 12-month period beginning
1992, c. 46, s. 81
15. (1) Paragraphs 17(1)(a) and (b) of the Act are replaced by the following:
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Allocations de retrait (a) with respect to each year and portion of a year of pensionable service calculated in accordance with subsections (3) and (5), the number of those years and portions of years multiplied by 0.05; and (b) subject to subsection (2), with respect to each year and portion of a year of pensionable service calculated in accordance with subsections (4) and (5), the number of those years and portions of years multiplied by 0.02.
2001, c. 20, s. 19
(2) Paragraph 17(4)(b) of the Act is replaced by the following: (b) during the period that begins on January 1, 2001 and ends on December 31, 2015, or any period of pensionable service in respect of which an election under section 10 has been made during that period, the person is, on ceasing to be a member, deemed to have one year of pensionable service to his or her credit for each amount, equal to 4% of the sessional indemnity payable to the person as a member of the Senate or House of Commons, as the case may be, during any calendar year, that the person has, during that calendar year, contributed under subsection 9(2) or elected to contribute under subparagraph 11(1)(a)(i). (3) Section 17 of the Act is amended by adding the following after subsection (5):
Limitation — pensionable service before January 1, 2016
(6) The additional retirement allowance payable to a person under subsection (1) is only payable in respect of his or her pensionable service before January 1, 2016. 16. The Act is amended by adding the following after section 17:
Allowance on ceasing to be member on or after January 1, 2016 — 65 years of age or older
17.1 (1) Subject to sections 58 and 59, if a person ceases to be a member after December 31, 2015, having contributed or elected to contribute under this Part or Part I or III of the former Act as a member for at least six years and the person has reached 65 years of age when he or she ceases to be a member, there shall be paid to that person during his or her lifetime a retirement allowance in an amount calculated under subsection (2).
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Amount
(2) The amount of the retirement allowance is equal to the portion of the person’s average annual pensionable earnings that does not exceed his or her earnings limit for the calendar year in which he or she ceased to be a member multiplied by the number of years and portions of years of the person’s pensionable service calculated in accordance with subsections (3) and (4) multiplied by 0.02, minus an amount equal to the percentage fixed by the Chief Actuary of
Members of Parliamen
(a) the person’s average maximum pensionable earnings, multiplied by (b) the number of years and portions of years of the person’s pensionable service calculated in accordance with subsections (3) and (4) multiplied by 0.02. Pensionable service
(3) Subject to subsection (4), the person’s pensionable service for the purposes of subsection (2) is (a) the years and portions of years spent as a member after December 31, 2015 during which he or she was required to contribute under this Part, other than any period in respect of which a withdrawal allowance has been paid to the person; and (b) the years and portions of years in respect of which he or she elected on or after January 1, 2016 to bring to his or her credit as time spent as a member.
Service after contributions under subsection 12(2.1) not to be included
(4) The person’s service as a member during which he or she was required to contribute under subsection 12(2.1), if any, is not to be included in the calculation under subsection (3) of the person’s pensionable service.
Retirement pension to be taken into account
(5) In fixing the percentage for the purposes of subsection (2), the Chief Actuary shall take into account the retirement pension payable to a person under the Canada Pension Plan or under a similar provincial pension plan.
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Allowance on ceasing to be member on or after January 1, 2016 — under 65 years of age
17.2 (1) Subject to sections 58 and 59, if a person ceases to be a member after December 31, 2015, having contributed or elected to contribute under this Part or Part I or III of the former Act as a member for at least six years and the person is under 65 years of age when he or she ceases to be a member, and the person has elected to receive an allowance under section 37.3, there shall be paid to that person, subject to subsection (3), during his or her lifetime, a retirement allowance in an amount calculated under subsection (2).
Amount of retirement allowance
(2) For the purposes of subsection (1), the amount of the retirement allowance is equal to the amount of the retirement allowance determined under section 17.1 as though that section applied to the person, minus the product obtained by multiplying that amount by the reduction factor.
When retirement allowance becomes payable
(3) The retirement allowance payable under subsection (1) becomes payable on the later of (a) the day the person reaches the age of 60, and (b) the day the person begins to receive his or her allowance under section 37.3.
1992, c. 46, s. 81
17. Paragraph 18(b) of the Act is replaced by the following: (b) the interest on those contributions that the person has paid under section 11 or 11.1 or under section 23 of the former Act.
1992, c. 46, s. 81
18. Paragraph 19(b) of the Act is replaced by the following: (b) the interest on those contributions that the person has paid under section 11 or 11.1 or under section 23 of the former Act. 19. Section 20 of the Act is amended by adding the following after subsection (2):
Deeming
(3) For the purpose of subsection (2), if any amount was or would have been subtracted in the calculation of the amount of the member or former member’s retirement allowance under
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section 17.1 or 17.2, the member or former member is deemed to have received or to have been entitled to receive, as the case may be, a retirement allowance under that section calculated without that subtracted amount. 2000, c. 12, s. 177
20. Paragraphs 25(1)(a) and (b) of the Act are replaced by the following: (a) the former member’s retirement allowances and any additional retirement allowance, under this Part; and (b) the former member’s compensation allowances, if any, and any additional compensation allowance, under Part II.
1992, c. 46, s. 81
21. (1) Paragraph 28(1)(b) of the Act is replaced by the following: (b) an amount representing interest on the balance from time to time to the credit of the Compensation Arrangements Account, calculated and credited in accordance with subsection (2). (2) Section 28 of the Act is amended by adding the following after subsection (1):
Determination of amount
(1.1) The amount referred to in paragraph (1)(b) is to be credited to the Compensation Arrangements Account in respect of each quarter in each fiscal year on the last day of the quarter and is to be determined by multiplying an amount equal to the balance to the credit of the Account on the last day of the preceding quarter by the rate referred to in subsection (1.2).
Rate
(1.2) The rate for the purpose of subsection (1.1) is the effective quarterly rate derived from the valuation interest rate for the calendar year that is set out in the most recent valuation report for this Act that is laid before the Senate and the House of Commons under section 9 of the Public Pensions Reporting Act.
1992, c. 46, s. 81
22. Section 29 of the Act is replaced by the following:
Amounts to be credited to meet total cost
29. There shall be credited to the Compensation Arrangements Account, at the time and in the manner determined by the Minister, an
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Allocations de retrait amount that, in the Minister’s opinion, based on actuarial advice, together with the amount estimated by the Minister to be to the credit of that Account at that time, is necessary to meet the total cost of all allowances and other benefits payable under this Part and Part III and all supplementary benefits payable under Part IV in respect of those allowances or benefits.
Amounts to be debited
29.1 If the Minister is of the opinion, based on actuarial advice, that the amount estimated by the Minister to be to the credit of the Compensation Arrangements Account exceeds the total cost of all allowances and other benefits payable under this Part and Part III and all supplementary benefits payable under Part IV in respect of those allowances or benefits, there may be debited from that Account, at the time and in the manner determined by the Minister, an amount specified by the Minister. 23. Section 31 of the Act is amended by adding the following after subsection (5):
Cessation
(6) This section ceases to apply on December 31, 2012. 24. The Act is amended by adding the following after section 31:
Contributions — January 1, 2013 to December 31, 2015 — under 71 years of age
31.1 (1) During the period that begins on January 1, 2013 and ends on December 31, 2015, a member who has not reached 71 years of age shall with respect to each calendar year contribute to the Compensation Arrangements Account, (a) by reservation from his or her sessional indemnity, at the applicable contribution rate in respect of the portion of the sessional indemnity payable to him or her that exceeds his or her earnings limit for the calendar year; (b) by reservation from his or her sessional indemnity, at the applicable contribution rate in respect of the sessional indemnity payable to him or her; and
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(c) by reservation from any salary or annual allowance that he or she receives, at the applicable contribution rates in respect of that salary or annual allowance, unless he or she elects not to contribute under this paragraph. Contributions — January 1, 2013 to December 31, 2015 — over 71 years of age
(2) During the period that begins on January 1, 2013 and ends on December 31, 2015, a member who has reached 71 years of age shall with respect to each calendar year contribute to the Compensation Arrangements Account, (a) by reservation from his or her sessional indemnity, at the applicable contribution rate in respect of the sessional indemnity payable to him or her; and (b) by reservation from any salary or annual allowance that he or she receives, at the applicable contribution rate in respect of that salary or annual allowance, unless he or she elects not to contribute under this paragraph.
Contributions — from January 1, 2016 — under 71 years of age
31.2 (1) Beginning on January 1, 2016, a member who has not reached 71 years of age shall with respect to each calendar year, by reservation from the member’s pensionable earnings, contribute to the Compensation Arrangements Account (a) at the applicable contribution rate in respect of the portion of his or her pensionable earnings that exceeds his or her earnings limit for the calendar year; and (b) at the applicable contribution rate in respect of his or her pensionable earnings.
Contributions — from January 1, 2016 — 71 years of age or older
(2) Beginning on January 1, 2016, a member who has reached 71 years of age shall, by reservation from his or her pensionable earnings, contribute to the Compensation Arrangements Account, at the applicable contribution rate in respect of the member’s pensionable earnings.
Different rates
(3) Without restricting the generality of subsection 2.7(3), the Chief Actuary shall fix rates for the purposes of paragraph (1)(a) that are different for members who are required to contribute under subsection 12(2.1) than those for other members, and rates for the purposes of subsection (2) that are different for members
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Application
(5) This section applies only in respect of elections made before January 1, 2013.
1992, c. 46, s. 81; 2001, c. 20, s. 24(2); 2003, c. 16, s. 6
26. Section 34 of the Act is replaced by the following:
Contributions in respect of previous sessions — election made between January 1, 2013 and December 31, 2015
33.1 (1) If a member elects, during the period that begins on January 1, 2013 and ends on December 31, 2015, to contribute to the Compensation Arrangements Account in respect of a previous session, he or she shall pay into the Consolidated Revenue Fund (a) if the member has not reached 71 years of age at the time the election is made, a contribution equal to the aggregate of (i) an amount calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.1(1)(a) that is in force on the day on which the election is made in respect of the portion of the sessional indemnity paid to the member during that previous session that exceeds his or her earnings limit for the year during that previous session, (ii) an amount calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.1(1)(b) that is in force on the day on which the election is made in respect of the sessional indemnity paid to the member during that previous session, and (iii) an amount calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.1(1)(c) that is in force on the day on which the election is made in respect of any salary or annual allowance paid to the member during that previous session, if he or she elects to contribute in respect of that salary or annual allowance;
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(b) if the member has reached 71 years of age at the time the election is made, a contribution equal to the aggregate of (i) an amount calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.1(2)(a) that is in force on the day on which the election is made in respect of the sessional indemnity paid to the member during that previous session, and (ii) an amount calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.1(2)(b) that is in force on the day on which the election is made in respect of any salary or annual allowance paid to the member during that previous session, if he or she elects to contribute in respect of that salary or annual allowance; and (c) the interest on that contribution calculated at a rate and in the manner prescribed from the day on which the final payment by way of sessional indemnity, salary or annual allowance, as the case may be, was made to the member in respect of that previous session to the day on which the election is made. Earnings limit for part of year
(2) For the purpose of subsection (1), if the person was not a member during the whole of a calendar year, the earnings limit for that calendar year is determined by multiplying the member’s earnings limit for the calendar year by the ratio that the part of the calendar year during which he or she was a member is to the whole calendar year.
Contributions in respect of previous sessions — election made on or after January 1, 2016
33.2 (1) If a member elects on or after January 1, 2016 to contribute to the Compensation Arrangements Account in respect of a previous session, he or she shall pay into the Consolidated Revenue Fund (a) if the member has not reached 71 years of age at the time the election is made, (i) a contribution, calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.2(1)(a) that is in force on the day on which the election is made, in respect of the portion of the member’s pensionable earnings during that
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Allocations de retrait previous session that exceeds his or her earnings limit for the year during that previous session, and (ii) a contribution, calculated at his or her applicable contribution rate that is fixed for the purpose of paragraph 31.2(1)(b) that is in force on the day on which the election is made, in respect of the member’s pensionable earnings during that previous session, and (b) if the member has reached 71 years of age at the time the election is made, a contribution, calculated at his or her applicable contribution rate that is fixed for the purpose of subsection 31.2(2) that is in force on the day on which the election is made, in respect of the member’s pensionable earnings during that previous session; and (c) the interest on that contribution calculated at a rate and in the manner prescribed from the day on which the final payment by way of pensionable earnings was made to the member in respect of that previous session to the day on which the election is made.
Earnings limit for part of year
(2) For the purpose of subsection (1), if the person was not a member during the whole of a calendar year, the earnings limit for that calendar year is determined by multiplying the member’s earnings limit for the calendar year by the ratio that the part of the calendar year during which he or she was a member is to the whole calendar year.
Limits on contributions
34. Despite anything in this Part, no contribution shall be paid by a member under this Part in respect of any session in the course of which the member ceases to be a Senator by reason of disqualification or was expelled from the House of Commons.
Contribution of 1% — January 1, 2001 to December 31, 2012 — 69 years of age or more
34.1 (1) During the period that begins on January 1, 2001 and ends on December 31, 2012, a member who has reached 69 years of age shall with respect to each calendar year, by reservation from the sessional indemnity payable to him or her, contribute under this Part 1% of the amount payable to him or her by way of sessional indemnity after the aggregate of the products obtained by multiplying the number of
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Members of Parliamen
years of pensionable service to the member’s credit by the multipliers set out in subsection 16(1) and, as applicable, subsection 36(2) or (6) equals 0.75. Exception for 1%
(2) During the period that begins on January 1, 2001 and ends on December 31, 2012, a member to whom subsection 12(2) applies shall with respect to each calendar year, by reservation from the sessional indemnity payable to him or her, contribute to the Compensation Arrangements Account 1% of that portion of his or her sessional indemnity for the calendar year that exceeds the his or her earnings limit for that year.
Exclusions from computation of contributions
34.2 In a computation of the total amount that a member has contributed or elected to contribute under this Part, there shall not be included (a) any contributions in respect of which a withdrawal allowance has been paid under this Part; (b) any contributions in respect of which the member’s election has been revoked under this Part; or (c) any amount paid by way of interest.
2003, c. 16, s. 7
27. (1) The portion of subsection 36(1) of the Act before paragraph (a) is replaced by the following:
Compensation allowance
36. (1) Subject to sections 58 and 59, a compensation allowance determined in accordance with this section shall be paid to a person during his or her lifetime in respect of contributions made under this Part, other than those made in respect of salary or annual allowance and those made under subsection 34(2) or (2.1), as that subsection read on December 31, 2012 — and those made under paragraph 31.1(1)(a) or (2)(a) if the person was contributing at the contribution rate referred to in subsection 2.7(9) —, if the person
2003, c. 16, s. 7
(2) The portion of paragraph 36(2)(a) of the Act before subparagraph (i) is replaced by the following:
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Allocations de retrait (a) the person’s average annual sessional indemnity multiplied by, subject to subsections (3) and (3.1), the number of years and portions of years of pensionable service calculated for the purpose of paragraph 16(1)(b) in accordance with subsections 16(5) and (6), multiplied by
2003, c. 16, s. 7
(3) Clause 36(2)(a)(i)(C) of the Act is replaced by the following: (C) 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — on or after January 1, 2001 and before January 1, 2016, other than those made under an election referred to in clause (A) or (B),
2003, c. 16, s. 7
(4) Clause 36(2)(a)(ii)(C) of the Act is replaced by the following: (C) 0.01 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — on or after January 1, 2001 and before January 1, 2016, other than those made under an election referred to in clause (A) or (B), (5) Subparagraph 36(2)(a)(iii) of the Act is amended by striking out “and” at the end of clause (A) and by adding the following after clause (B): (C) 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 71st birthday and January 1, 2013 and ending on December 31, 2015, other than those made under an election referred to in clause (A) or (B) or subparagraph (a)(iv), and
2003, c. 16, s. 7
(6) Subparagraph 36(2)(a)(iv) of the Act is replaced by the following: (iv) if the person contributed after he or she reached 69 years of age, 0.03 for the years and portions of years of pensionable
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Members of Parliamen
service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 69th birthday and January 1, 2001 and ending on December 31, 2012, other than those made under an election referred to in clause (iii)(A) or (B), 2003, c. 16, s. 7
(7) Paragraph 36(2)(b) of the Act is replaced by the following: (b) the person’s average annual sessional indemnity multiplied by the number of years of pensionable service calculated in accordance with subsection (4), multiplied by 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made during the period beginning on January 1, 2001 and ending on December 31, 2012, other than those made under an election made before January 1, 2001; and (c) the person’s average annual sessional indemnity multiplied by the number of years of pensionable service calculated in accordance with subsection (4.1), multiplied by 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made during the period beginning on January 1, 2013 and ending on December 31, 2015, other than those made under an election made before January 1, 2013.
2003, c. 16, s. 7
(8) The portion of subsection 36(3) of the Act before paragraph (a) is replaced by the following:
Years of service — clauses (2)(a)(iii)(A) and (B)
(3) For the purposes of clauses (2)(a)(iii)(A) and (B), a person, on ceasing to be a member, is deemed to have one year of pensionable service to his or her credit for
2003, c. 16, s. 7
(9) Subsections 36(4) and (5) of the Act are replaced by the following:
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Allocations de retrait
Years of service — clause (2)(a)(iii)(C) and subparagraphs (2)(a)(iv) and (6)(a)(iv)
(3.1) For the purposes of clause (2)(a)(iii)(C) and subparagraphs (2)(a)(iv) and (6)(a)(iv), a person, on ceasing to be a member, is deemed to have the same number of years and portions of years of pensionable service to his or her credit that would be calculated for the purpose of paragraph 16(1)(b) in accordance with subsections 16(5) and (6) if the person were a person required to contribute under Part I.
Years of service — paragraphs (2)(b) and 2(6)(b)
(4) For the purposes of paragraphs (2)(b) and (6)(b), a person, on ceasing to be a member, is deemed to have one year of pensionable service to his or her credit for each amount — equal to 7% of the sessional indemnity payable to a member of the Senate or House of Commons, as the case may be, during a calendar year — that, during the period beginning on January 1, 2001 and ending on December 31, 2012, he or she contributed or elected to contribute under subsection 31(1) or 33(1) in respect of that portion of the sessional indemnity that exceeded his or her earnings limit for the calendar year.
Years of service — paragraphs (2)(c) and (6)(c)
(4.1) For the purposes of paragraphs (2)(c) and (6)(c), for each of the calendar years from 2013 to 2015, a person, on ceasing to be a member, is deemed to have one year of pensionable service to his or her credit for each amount equal to the amount determined under subsection (4.2) that, during that calendar year, the person contributed or elected to contribute under section 31.1 or subsection 33.1(1) in respect of that portion of the sessional indemnity that exceeded his or her earnings limit for the calendar year.
Amount
(4.2) The amount for the purposes of subsection (4.1) in respect of a person for a calendar year is the sessional indemnity payable to a member of the Senate or House of Commons, as the case may be, during the calendar year multiplied by the contribution rate that is fixed for the calendar year for the purpose of paragraph 31.1(2)(a).
Application of subsections (3), (4), (4.1) and (7)
(5) In the application of subsections (3), (4), (4.1) and (7), the deeming provision of subsection 16(6) in relation to a portion of a year’s pensionable service shall apply, with any modifications that the circumstances require.
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2003, c. 16, s. 7
(10) Subparagraphs 36(6)(a)(ii) and (iii) of the Act are replaced by the following:
Members of Parliamen
(ii) subject to subparagraphs (iii) and (iv), if the person has reached 60 years of age, 0.01, (iii) if the person contributed after he or she reached 69 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 69th birthday and January 1, 2001 and ending on December 31, 2012, other than those made under an election made before that birthday, and (iv) if the person contributed after he or she reached 71 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 71st birthday and January 1, 2013 and ending on December 31, 2015, other than those made under an election made before that birthday, 2003, c. 16, s. 7
(11) Paragraph 36(6)(b) of the Act is replaced by the following: (b) the person’s average annual sessional indemnity multiplied by the number of years of pensionable service calculated in accordance with subsection (4), multiplied by 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made during the period beginning on January 1, 2001 and ending on December 31, 2012, other than those made under an election made before January 1, 2001; and (c) the person’s average annual sessional indemnity multiplied by the number of years of pensionable service calculated in accordance with subsection (4.1), multiplied by 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made during the period
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Allocations de retrait beginning on January 1, 2013 and ending on December 31, 2015, other than those made under an election made before January 1, 2013.
2003, c. 16, s. 7
(12) Paragraph 36(8)(c) of the Act is replaced by the following: (c) if the person contributed after he or she reached 71 years of age, 0.04 for the years and portions of years of pensionable service calculated by reference to contributions made on or after the 71st birthday, other than those made under an election made before that birthday.
2003, c. 16, s. 7
(13) Subsection 36(9) of the Act is replaced by the following:
Special case — January 1, 2001 to December 31, 2015
(9) For the purposes of calculating the compensation allowance payable under subsection (1) to a person who, during the period that begins on January 1, 2001 and ends on December 31, 2015, elected to contribute under this Part in respect of any session or part of a session before December 31, 2015, the multipliers referred to in paragraph (2)(a) shall, in lieu of the numbers set out in that paragraph, be (a) if the person has not reached 60 years of age, 0.03; (b) subject to paragraphs (c) and (d), if the person has reached 60 years of age, 0.01; (c) if the person contributed after he or she reached 69 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 69th birthday and January 1, 2001 and ending on December 31, 2012, other than those made under an election made before that birthday; and (d) if the person contributed after he or she reached 71 years of age, 0.03 for the years or portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 71st birthday and January 1, 2013
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and ending on December 31, 2015, other than those made under an election made before that birthday. 2001, c. 20, s. 26(1)
28. (1) Clause 37(2)(a)(i)(C) of the Act is replaced by the following: (C) 0.03 for the years and portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001 and before January 1, 2016, other than those made under an election referred to in clause (A) or (B),
2001, c. 20, s. 26(1)
(2) Clause 37(2)(a)(ii)(C) of the Act is replaced by the following: (C) 0.01 for the years and portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001 and before January 1, 2016, other than those made under an election referred to in clause (A) or (B), (3) Subparagraph 37(2)(a)(iii) of the Act is amended by striking out “and” at the end of clause (A) and by adding the following after clause (B): (C) 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 71st birthday and January 1, 2013 and ending on December 31, 2015, other than those made under an election referred to in clause (A) or (B), and
2001, c. 20, s. 26(1)
(4) Subparagraph 37(2)(a)(iv) of the Act is replaced by the following: (iv) if the person contributed after he or she reached 69 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 69th birthday and January 1, 2001 and ending on
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Allocations de retrait December 31, 2012, other than those made under an election referred to in subparagraph (iii), and
2001, c. 20, s. 26(1)
(5) Subparagraphs 37(2)(b)(i) to (iii) of the Act are replaced by the following: (i) 0.05 for the years and portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 1992 and before July 13, 1995, (ii) 0.04 for the years and portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than under an election referred to in subparagraph (i), and (iii) 0.03 for the years and portions of years of pensionable service calculated by reference to those contributions made during the period beginning on January 1, 2001 and ending on December 31, 2012, other than those made under an election made before January 1, 2001, and (iv) 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made during the period beginning on January 1, 2013 and ending on December 31, 2015, other than those made under an election made before January 1, 2013.
2003, c. 16, s. 8
(6) Paragraph 37(3)(c) of the Act is replaced by the following: (c) each amount, equal to 7% of the sessional indemnity payable to the person as a member of the Senate or House of Commons, as the case may be, during a calendar year, that the person — during the period beginning on January 1, 2001 and ending on December 31, 2012 — has contributed or elected to contribute under subsection 31(3), paragraph 31(4)(b) or subsection 31(5) or 33(1), other than amounts paid under subsection 33(1) in respect of sessional indemnity or as interest.
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(7) Section 37 of the Act is amended by adding the following after subsection (3): Years of pensionable service
(3.1) For the purposes of paragraph (2)(b), for each of the calendar years from 2013 to 2015, a person, on ceasing to be a member, is deemed to have one year of pensionable service to his or her credit for each amount equal to the amount determined under subsection (3.2) that, during that calendar year, the person contributed or elected to contribute under paragraph 31.1(1)(c) or (2)(b) or subsection 33.1(1), other than amounts paid under subsection 33.1(1) in respect of sessional indemnity or as interest.
Amount
(3.2) The amount for the purposes of subsection (3.1) in respect of a person for a calendar year is the sessional indemnity payable to a member of the Senate or House of Commons, as the case may be, during the calendar year multiplied by the contribution rate that is fixed for the calendar year for the purpose of paragraph 31.1(2)(a).
2001, c. 20, s. 26(3)
(8) Subparagraph 37(5)(a)(iii) of the Act is replaced by the following: (iii) if the person has reached 71 years of age and contributed after reaching that age, 0.04 for the years and portions of years of pensionable service calculated by reference to those contributions made on or after the 71st birthday, other than those made under an election made before that birthday; and
2001, c. 20, s. 26(3)
(9) Subsection 37(6) of the Act is replaced by the following:
Special case — January 1, 2001 to December 31, 2015
(6) For the purposes of calculating the additional compensation allowance payable under subsection (2) to a person who, during the period begining on January 1, 2001 and ending on December 31, 2015, elected to contribute under this Part in respect of any session or part of a session before December 31,
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Allocations de retrait 2015, the multipliers referred to in paragraph (2)(a) shall, in lieu of the numbers set out in that paragraph, be (a) if the person has not reached 60 years of age, 0.03; (b) subject to paragraphs (c) and (d), if the person has reached 60 years of age, 0.01; (c) if the person contributed after he or she reached 69 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 69th birthday and January 1, 2001 and ending on December 31, 2012, other than those made under an election made before that birthday; and (d) if the person contributed after he or she reached 71 years of age, 0.03 for the years and portions of years of pensionable service calculated by reference to contributions made — or in respect of which an election was made — during the period beginning on the later of the 71st birthday and January 1, 2013 and ending on December 31, 2015, other than those made under an election made before that birthday.
1995, c. 30, s. 11
29. The portion of subsection 37.1(1) of the Act before paragraph (a) is replaced by the following:
Beginning of payment of allowances — July 13, 1995 to December 31, 2015
37.1 (1) Despite sections 36 and 37, the allowances otherwise payable to a person under those sections in respect of pensionable service calculated by reference to contributions made during the period beginning on July 13, 1995 and ending on December 31, 2015, other than those made under an election made before July 13, 1995, are not payable until the earlier of
30. The Act is amended by adding the following after section 37.1:
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Allowance on ceasing to be member on or after January 1, 2016 — 65 years of age or older
37.2 (1) Subject to sections 58 and 59, if a person ceases to be a member after December 31, 2015, having contributed or elected to contribute under this Part or Part I or III of the former Act as a member for at least six years and the person has reached 65 years of age when he or she ceases to be a member, there shall be paid to that person during his or her lifetime a compensation allowance in an amount calculated under subsection (2).
Amount
(2) The amount of the compensation allowance is the amount determined by the formula
Members of Parliamen
(A × B × 0.03) – (C + D) where A is the person’s average annual pensionable earnings; B is the number of years and portions of years of the person’s pensionable service calculated in accordance with subsections (3) and (4); C is an amount equal to the number determined by the calculation referred to in the description of B multiplied by an amount equal to the portion of the person’s average annual pensionable earnings that does not exceed his or her earnings limit for the calendar year in which he or she ceased to be a member multiplied by 0.02; D is an amount equal to the percentage fixed by the Chief Actuary for the purpose of subsection 17.1(2) of (i) the person’s average maximum pensionable earnings multiplied by B, multiplied by (ii) 0.01. Pensionable service
(3) Subject to subsection (4), the person’s pensionable service for the purpose of subsection (2) is (a) the years and portions of years spent as a member after December 31, 2015 during which he or she was required to contribute
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Allocations de retrait under this Part, other than any period in respect of which a withdrawal allowance has been paid to the person; and (b) the years and portions of years in respect of which he or she elected on or after January 1, 2016 to bring to his or her credit as time spent as a member.
Service after contributions under subsection 12(2.1) not to be included
(4) The person’s service as a member during which he or she was required to contribute under subsection 12(2.1), if any, is not to be included in the calculation under subsection (3) of the person’s pensionable service.
Allowance on ceasing to be member on or after January 1, 2016 — under 65 years of age
37.3 (1) Subject to sections 58 and 59, if a person ceases to be a member after December 31, 2015, having contributed or elected to contribute under this Part or Part I or III of the former Act as a member for at least six years and the person is under 65 years of age when he or she ceases to be a member, and the person elects to receive a compensation allowance under this section, there shall be paid to that person, beginning on the date specified by him or her, (a) if the specified date is before the person reaches 60 years of age, (i) until the person reaches the age of 60, a compensation allowance in an amount calculated under subsection (2), and (ii) after the person reaches the age of 60, during his or her lifetime, a compensation allowance in an amount calculated under subsection (3); and (b) if the specified date is the day of the person’s 60th birthday or any day after that day, during his or her lifetime, a compensation allowance in an amount calculated under subsection (3).
Amount of compensation allowance
(2) For the purposes of subparagraph (1)(a)(i), the amount of the compensation allowance is the amount determined by the formula (A × B × 0.03) – (C × D) where
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Members of Parliamen
A is the person’s average annual pensionable earnings; B is the number of years and portions of years of the person’s pensionable service calculated in accordance with subsections 37.2(3) and (4); C is an amount equal to A x B x 0.03; and D is the product obtained by multiplying 0.01 by the number of years by which the person’s age in years, to the nearest 1/10 of a year, at the time the allowance is payable, is less than 65 years of age. Amount of compensation allowance
(3) For the purposes of subparagraph (1)(a)(ii) and paragraph (1)(b), the amount of the compensation allowance is the amount determined by the formula A – (A × B) where A is the allowance that would be payable to the person under subsection 37.2(2) if the person had reached 65 years of age; and B is the reduction factor.
Limitation regarding specified date
(4) The date specified by the person shall not be earlier than the person’s 55th birthday.
1992, c. 46, s. 81
31. Paragraph 38(b) of the Act is replaced by the following: (b) the interest on those contributions that the person has paid under paragraph 33(1)(c) or (2)(d), 33.1(1) (c) or 33.2(1)(c).
1992, c. 46, s. 81
32. Paragraph 39(b) of the Act is replaced by the following: (b) the interest on those contributions that the person has paid under paragraph 33(1)(c) or (2)(d), 33.1(1)(c) or 33.2(1)(c). 33. Section 40 of the Act is amended by adding the following after subsection (2):
Deeming
(3) For the purposes of subsection (2), if the member or former member has pensionable service that came to his or her credit on or after January 1, 2016, the member or former member
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Allocations de retrait is deemed to have received or to have been entitled to receive, as the case may be, a compensation allowance in an amount determined under subsection 37.2(2) without taking into account the calculation referred to in the description of D in that subsection.
2000, c. 12, s. 178
34. Paragraphs 45(1)(a) and (b) of the Act are replaced by the following: (a) the former member’s retirement allowances and any additional retirement allowance, under Part I; and (b) the former member’s compensation allowances, if any, and any additional compensation allowance, under this Part.
1992, c. 46, s. 81
35. Sections 47 and 48 of the Act are replaced by the following:
Contributions by Prime Minister — January 1, 2013 to December 31, 2015
47. (1) Beginning on January 1, 2013 and ending on December 31, 2015, the member who holds the office of Prime Minister shall with respect to each calendar year, by reservation from the annual salary payable to the member as Prime Minister under the Salaries Act, contribute to the Compensation Arrangements Account, in respect of that salary, at the applicable contribution rate that is fixed for the purpose of paragraph 31.1(1)(c).
Contributions by Prime Minister — beginning January 1, 2016
(2) Beginning on January 1, 2016, the member who holds the office of Prime Minister shall with respect to each calendar year, by reservation from the annual salary payable to the member as Prime Minister under the Salaries Act, contribute to the Compensation Arrangements Account, in respect of that salary, at the contribution rate that is fixed for the purpose of subsection 31.2(2).
Allowance to former Prime Ministers
48. (1) There shall be paid to every person who has held the office of Prime Minister for four years before February 6, 2006 an allowance beginning on the day on which that person ceases to be a member or reaches 65 years of age, whichever is the later, equal to 2/3 of the annual salary payable under the Salaries Act to the Prime Minister as Prime Minister on that day.
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Allowance to former Prime Ministers
(2) There shall be paid to every person who has held the office of Prime Minister for four years on or after February 6, 2006 an allowance beginning on the day on which that person ceases to be a member or reaches 67 years of age, whichever is the later, in an amount determined in accordance with subsections (3) and (4).
Amount
(3) The amount of the allowance is the annual salary payable under the Salaries Act to the Prime Minister as Prime Minister on the later of the days referred to in subsection (2) multiplied by the number of years and portions of years that the member held the office of Prime Minister multiplied by 0.03.
Maximum
(4) The maximum allowance payable to a person under subsection (2) is 2/3 of the annual salary payable under the Salaries Act to the Prime Minister as Prime Minister on the later of the days referred to in that subsection.
Duration of entitlement
(5) An allowance payable to a person under subsection (1) or (2) continues during the lifetime of that person, but is suspended in respect of any period during which the person is a Senator or a member of the House of Commons.
2000, c. 12, s. 179(1)
36. Subsection 49(1) of the Act is replaced by the following:
Allowance to former Prime Minister’s survivor
49. (1) The survivor of a person described in subsection 48(1) or (2) shall be paid an allowance equal to 1/2 of the allowance that the person was receiving under that subsection at the time of death or would have been eligible to receive if, immediately before the time of death, the person described in that subsection had ceased to hold the office of Prime Minister and had, in the case of a person described in subsection 48(1) reached 65 years of age or, in the case of a person described in subsection 48(2), 67 years of age.
1992, c. 46, s. 81
37. The portion of subsection 57(1) of the Act before paragraph (a) is replaced by the following:
Members of Parliamen
2011-2012 Manner of payment
Allocations de retrait 57. (1) Every amount required to be paid by a member under section 11, 11.1, 33, 33.1 or 33.2 shall be paid at his or her option 38. The Act is amended by adding the following after section 58:
Beginning of payment of allowances and amount
58.1 (1) Despite sections 17.1, 17.2, 37.2 and 37.3, if a former member who has not reached 65 years of age and who is entitled to be paid, but is not yet being paid, a retirement allowance and a compensation allowance under any of those sections becomes entitled to receive a disability pension under the Canada Pension Plan or under a similar provincial pension plan, the retirement allowance and the compensation allowance under those sections are payable to him or her on the day he or she becomes entitled to receive the disability pension and the amount of the retirement allowance and the compensation allowance payable is (a) the amount of the retirement allowance that would have been payable to the person under section 17.1 if he or she had reached 65 years of age; and (b) the amount of the compensation allowance that would have been payable to the person under section 37.2 if he or she had reached 65 years of age.
Amount
(2) Despite sections 17.2 and 37.3, if a former member who has not reached 65 years of age and who is being paid a compensation allowance under section 37.3 becomes entitled to receive a disability pension under the Canada Pension Plan or under a similar provincial pension plan, the amount of the retirement allowance and the compensation allowance payable to the person under sections 17.2 and 37.3 on the day he or she becomes entitled to receive the disability pension is (a) the amount of the retirement allowance that would have been payable to the person under section 17.1 if he or she had reached 65 years of age; and (b) the amount of the compensation allowance that would have been payable to the person under section 37.2 if he or she had reached 65 years of age.
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1992, c. 46, s. 81
39. Section 59 of the Act is replaced by the following:
Limitation respecting allowances
59. (1) Despite anything in this Act, but subject to subsection (2), the aggregate of the retirement allowance payable to a person under section 16 and the compensation allowance payable to him or her under section 36 with respect to service as a member that comes to his or her credit before January 1, 2016 shall not exceed the his or her average annual sessional indemnity multiplied by 0.75.
Withdrawal allowance
(2) For the purposes of subsection (1), a period in respect of which a withdrawal allowance has been paid to the person and in respect of which he or she has not elected to bring to his or her credit before January 1, 2016 is not to be included in the person’s service as a member that has come to his or her credit before January 1, 2016.
Limitation respecting allowances
(3) Despite anything in this Act, the aggregate of the retirement allowance payable to a person under section 17.1 or 17.2 and the compensation allowance payable to the person under section 37.2 or 37.3 with respect to service as a member that comes to his or her credit on or after January 1, 2016 shall not exceed his or her average annual pensionable earnings multiplied by 0.75.
Limitation respecting allowances
(4) Despite anything in this Act, if a person has service as a member that has come to his or her credit before January 1, 2016 and service as a member that has come to his or her credit on or after that date, any time spent by him or her as a member after he or she is required to contribute under subsection 12(2.1) or would be required to contribute under that subsection if he or she were under 71 years of age is not to be included in the calculation of the retirement allowance payable to him or her under section 17.1 or 17.2 or the compensation allowance payable to him or her under section 37.2 or 37.3.
1992, c. 46, s. 81
40. (1) Paragraphs 64(1)(a) and (b) of the Act are replaced by the following:
Members of Parliamen
2011-2012
Allocations de retrait (b) prescribing, for the purposes of any of sections 11, 11.1, 33, 33.1 and 33.2 and subsection 63(2), the rate of interest and the manner of calculating interest;
2001, c. 20, s. 28
(2) Paragraph 64(1)(l) of the Act is replaced by the following: (l) prescribing, for the purposes of this Act, the manner of determining a portion of the member’s earnings limit for a year;
Terminology
41. The Act is amended by replacing “or portions of years” by “and portions of years” in the following provisions: (a) clauses 36(2)(a)(i)(A) and (B); (b) clauses 36(2)(a)(ii)(A) and (B); (c) clauses 36(2)(a)(iii)(A) and (B); (d) the portion of paragraph 36(6)(a) before subparagraph (i); (e) the portion of paragraph 37(2)(a) before subparagraph (i); (f) clauses 37(2)(a)(i)(A) and (B); (g) clauses 37(2)(a)(ii)(A) and (B); and (h) clauses 37(2)(a)(iii)(A) and (B).
COMING INTO FORCE January 1, 2013
42. This Act comes into force or is deemed to have come into force on January 1, 2013.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 9 An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons)
ASSENTED TO 28th JUNE, 2012 BILL C-26
SUMMARY This enactment amends the Criminal Code to enable a person who owns or has lawful possession of property, or persons authorized by them, to arrest within a reasonable time a person whom they find committing a criminal offence on or in relation to that property. It also amends the Criminal Code to simplify the provisions relating to the defences of property and persons.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 9 An Act to amend the Criminal Code (citizen’s arrest and the defences of property and persons) [Assented to 28th June, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. C-46
1. This Act may be cited as the Citizen’s Arrest and Self-defence Act. CRIMINAL CODE
1992, c. 1, s. 60 (Sch. I, s. 20)(F)
2. Sections 34 to 42 of the Criminal Code are replaced by the following:
Defence — use or threat of force
34. (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances.
Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances
C. 9
Criminal Code (citizen’s arrest and th
of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. DEFENCE OF PROPERTY
Defence — property
35. (1) A person is not guilty of an offence if (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (b) they believe on reasonable grounds that another person
2011-2012
Code criminel (arrestation par des citoyens et aux per (i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (c) the act that constitutes the offence is committed for the purpose of (i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (d) the act committed is reasonable in the circumstances.
No defence
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
No defence
(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. 3. (1) Subsection 494(2) of the Act is replaced by the following:
Arrest by owner, etc., of property
(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and (a) they make the arrest at that time; or
C. 9
Criminal Code (citizen’s arrest and th
(b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. (2) Section 494 of the Act is amended by adding the following after subsection (3): For greater certainty
(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25. COMING INTO FORCE
Order in council
4. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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C-11 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-11 An Act to amend the Copyright Act
AS PASSED BY THE HOUSE OF COMMONS JUNE 18, 2012
SUMMARY This enactment amends the Copyright Act to (a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards; (b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright; (c) permit businesses, educators and libraries to make greater use of copyright material in digital form; (d) allow educators and students to make greater use of copyright material; (e) permit certain uses of copyright material by consumers; (f) give photographers the same rights as other creators; (g) ensure that it remains technologically neutral; and (h) mandate its review by Parliament every five years.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-11 An Act to amend the Copyright Act
Preamble
Whereas the Copyright Act is an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation and affects many sectors of the knowledge econo- 5 my; Whereas advancements in and convergence of the information and communications technologies that link communities around the world present opportunities and challenges that are 10 global in scope for the creation and use of copyright works or other subject-matter; Whereas in the current digital era copyright protection is enhanced when countries adopt coordinated approaches, based on internation- 15 ally recognized norms; Whereas those norms are reflected in the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms 20 Treaty, adopted in Geneva in 1996; Whereas those norms are not wholly reflected in the Copyright Act; Whereas the exclusive rights in the Copyright Act provide rights holders with recognition, 25 remuneration and the ability to assert their rights, and some limitations on those rights exist to further enhance users’ access to copyright works or other subject-matter;
Copy Whereas the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures, in a manner that promotes 5 culture and innovation, competition and investment in the Canadian economy; And whereas Canada’s ability to participate in a knowledge economy driven by innovation and network connectivity is fostered by en- 10 couraging the use of digital technologies for research and education;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 15 SHORT TITLE Short title
R.S., c. C-42
1. This Act may be cited as the Copyright Modernization Act. COPYRIGHT ACT
R.S., c. 10 (4th Supp.), s. 1(3); 1994, c. 47, s. 56(3)
2. (1) The definitions “moral rights” and “treaty country” in section 2 of the Copyright Act are replaced by the following: 20
“moral rights” « droits moraux »
“moral rights” means the rights described in subsections 14.1(1) and 17.1(1);
“treaty country” « pays signataire »
“treaty country” means a Berne Convention country, UCC country, WCT country or WTO Member; 25 (2) Section 2 of the Act is amended by adding the following in alphabetical order:
“WCT country” « pays partie au traité de l’ODA »
“WCT country” means a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996; 30
2011-2012 “WPPT country” « pays partie au traité de l’OIEP »
Droit d “WPPT country” means a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996; 3. Section 2.4 of the Act is amended by 5 adding the following after subsection (1):
Communication to the public by telecommunication
(1.1) For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in 10 a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public. 4. Subsection 3(1) of the Act is amended 15 by striking out “and” at the end of paragraph (h), by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i): (j) in the case of a work that is in the form of 20 a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner, 25
1994, c. 47, s. 57(1); 1997, c. 24, s. 5(2); 2001, c. 34, s. 34
5. Subsections 5(1.01) to (1.03) of the Act are replaced by the following:
Protection for older works
(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country, a WCT country or a WTO Member 30 after the date of the making or publication of a work is deemed to have been a Berne Convention country, a WCT country or a WTO Member, as the case may be, at that date, subject to subsection (1.02) and sections 33 to 35 33.2.
Limitation
(1.02) Subsection (1.01) does not confer copyright protection in Canada on a work whose term of copyright protection in the country referred to in that subsection had 40 expired before that country became a Berne Convention country, a WCT country or a WTO Member, as the case may be.
4 Application of subsections (1.01) and (1.02)
Copy (1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country, a WCT country or a WTO Member before or after the coming into force of 5 those subsections.
1997, c. 24, s. 7
6. Section 10 of the Act is repealed.
1997, c. 24, s. 10(1)
7. Subsection 13(2) of the Act is repealed.
1997, c. 24, s. 14
8. The headings before section 15 of the Act are replaced by the following: 10 PART II COPYRIGHT IN PERFORMERS’ PERFORMANCES, SOUND RECORDINGS AND COMMUNICATION SIGNALS AND MORAL RIGHTS IN PERFORMERS’ PERFORMANCES PERFORMERS’ RIGHTS Copyright 9. (1) Section 15 of the Act is amended by adding the following after subsection (1):
Copyright in performer’s performance
(1.1) Subject to subsections (2.1) and (2.2), a performer’s copyright in the performer’s performance consists of the sole right to do 15 the following acts in relation to the performer’s performance or any substantial part of it and to authorize any of those acts: (a) if it is not fixed, (i) to communicate it to the public by 20 telecommunication, (ii) to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and 25 (iii) to fix it in any material form; (b) if it is fixed in a sound recording, to reproduce that fixation; (c) to rent out a sound recording of it;
2011-2012
Droit d (d) to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that 5 member of the public and to communicate the sound recording to the public by telecommunication in that way; and
(e) if it is fixed in a sound recording that is in the form of a tangible object, to sell or 10 otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s perform- 15 ance. (2) Section 15 of the Act is amended by adding the following after subsection (2): Conditions for copyright
(2.1) Subsection (1.1) applies if (a) the performer’s performance takes place 20 in Canada; (b) the performer’s performance is fixed in (i) a sound recording whose maker, at the time of its first fixation, (A) was a Canadian citizen or perma- 25 nent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, in the case of a natural person, or (B) had its headquarters in Canada, in 30 the case of a corporation, or (ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada; or 35 (c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from Canada by a broadcaster that has its headquarters in Canada. 40 (3) Section 15 of the Act is amended by adding the following before subsection (3):
6 Conditions for copyright
Copy (2.2) Subsection (1.1) also applies if (a) the performer’s performance takes place in a WPPT country; (b) the performer’s performance is fixed in (i) a sound recording whose maker, at the 5 time of its first fixation, (A) was a citizen or permanent resident of a WPPT country, in the case of a natural person, or (B) had its headquarters in a WPPT 10 country, in the case of a corporation, or (ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country; or 15 (c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from a WPPT country by a broadcaster that has its headquarters in that country. 20 (4) Section 15 of the Act is amended by adding the following after subsection (3):
Publication
(4) The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the 25 interval between the publication in that WPPT country and the earlier publication does not exceed 30 days. 10. The Act is amended by adding the following after section 17: 30 Moral Rights
Moral rights
17.1 (1) In the cases referred to in subsections 15(2.1) and (2.2), a performer of a live aural performance or a performance fixed in a sound recording has, subject to subsection 28.2(1), the right to the integrity of the 35 performance, and — in connection with an act mentioned in subsection 15(1.1) or one for which the performer has a right to remuneration under section 19 — the right, if it is reasonable in the circumstances, to be associated with the 40 performance as its performer by name or under a pseudonym and the right to remain anonymous.
2011-2012
Droit d
No assignment of moral rights
(2) Moral rights may not be assigned but may be waived in whole or in part.
No waiver by assignment
(3) An assignment of copyright in a performer’s performance does not by itself constitute a waiver of any moral rights. 5
Effect of waiver
(4) If a waiver of any moral right is made in favour of an owner or a licensee of a copyright, it may be invoked by any person authorized by the owner or licensee to use the performer’s performance, unless there is an indication to the 10 contrary in the waiver.
Application and term
17.2 (1) Subsection 17.1(1) applies only in respect of a performer’s performance that occurs after the coming into force of that subsection. The moral rights subsist for the same term as the 15 copyright in that performer’s performance.
Succession
(2) The moral rights in respect of a performer’s performance pass, on the performer’s death, to (a) the person to whom those rights are 20 specifically bequeathed; (b) if there is not a specific bequest of those moral rights and the performer dies testate in respect of the copyright in the performer’s performance, the person to whom that copy- 25 right is bequeathed; or (c) if there is not a person as described in paragraph (a) or (b), the person entitled to any other property in respect of which the performer dies intestate. 30
Subsequent succession
(3) Subsection (2) applies, with any modifications that the circumstances require, on the death of any person who holds moral rights. 11. (1) Section 18 of the Act is amended by adding the following after subsection (1): 35
Copyright in sound recordings
(1.1) Subject to subsections (2.1) and (2.2), a sound recording maker’s copyright in the sound recording also includes the sole right to do the following acts in relation to the sound recording or any substantial part of it and to authorize any 40 of those acts:
Copy (a) to make it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public and to 5 communicate it to the public by telecommunication in that way; and (b) if it is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has 10 never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the sound recording.
1997, c. 24, s. 14; 2001, c. 27, s. 237 Conditions for copyright
(2) Subsection 18(2) of the Act is replaced 15 by the following: (2) Subsection (1) applies only if (a) at the time of the first fixation or, if that first fixation was extended over a considerable period, during any substantial part of that 20 period, the maker of the sound recording (i) was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, 25 (ii) was a citizen or permanent resident of a Berne Convention country, a Rome Convention country, a WPPT country or a country that is a WTO Member, or (iii) had its headquarters in one of those 30 countries, in the case of a corporation; or (b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in any country referred to in paragraph (a). 35 (3) Section 18 of the Act is amended by adding the following after subsection (2):
Conditions for copyright
(2.1) Subsection (1.1) applies if (a) at the time of the first fixation or, if that first fixation was extended over a consider- 40 able period, during any substantial part of that period, the maker of the sound recording
2011-2012
Droit d (i) was a Canadian citizen or permanent resident as defined in subsection 2(1) of the Immigration and Refugee Protection Act, or (ii) had its headquarters in Canada, in the 5 case of a corporation; or (b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada. 10 (4) Section 18 of the Act is amended by adding the following before subsection (3):
Conditions for copyright
(2.2) Subsection (1.1) also applies if (a) at the time of the first fixation or, if that first fixation was extended over a consider- 15 able period, during any substantial part of that period, the maker of the sound recording (i) was a citizen or permanent resident of a WPPT country, or (ii) had its headquarters in a WPPT 20 country, in the case of a corporation; or (b) the first publication of the sound recording in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country. 25
(5) Section 18 of the Act is amended by adding the following after subsection (3): Publication
(4) The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the 30 interval between the publication in that WPPT country and the earlier publication does not exceed 30 days.
1997, c. 24, s. 14
12. (1) Subsection 19(1) of the Act is replaced by the following: 35
Right to remuneration — Canada
19. (1) If a sound recording has been published, the performer and maker are entitled, subject to subsection 20(1), to be paid equitable remuneration for its performance in public or its
Copy communication to the public by telecommunication, except for a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.
Right to remuneration — Rome Convention country
(1.1) If a sound recording has been pub- 5 lished, the performer and maker are entitled, subject to subsections 20(1.1) and (2), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for 10 (a) a communication in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a), if the person entitled to the equitable remuneration is entitled to the right referred to in those paragraphs for that 15 communication; and (b) any retransmission. (2) Section 19 of the Act is amended by adding the following before subsection (2):
Right to remuneration — WPPT country
(1.2) If a sound recording has been pub- 20 lished, the performer and maker are entitled, subject to subsections 20(1.2) and (2.1), to be paid equitable remuneration for its performance in public or its communication to the public by telecommunication, except for a communication 25 in the circumstances referred to in paragraph 15(1.1)(d) or 18(1.1)(a) and any retransmission.
1997, c. 24, s. 14
(3) The portion of subsection 19(2) of the English version of the Act before paragraph (a) is replaced by the following: 30
Royalties
(2) For the purpose of providing the remuneration mentioned in this section, a person who performs a published sound recording in public or communicates it to the public by telecommunication is liable to pay royalties 35 13. The Act is amended by adding the following after section 19:
Deemed publication — Canada
19.1 Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that 40 allows a member of the public to access it from a place and at a time individually chosen by that member of the public, or that has been
2011-2012
Droit d communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1). 14. The Act is amended by adding the following before section 20: 5
Deemed publication — WPPT country
19.2 Despite subsection 2.2(1), a sound recording that has been made available to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that 10 member of the public, or that has been communicated to the public by telecommunication in that way, is deemed to have been published for the purposes of subsection 19(1.2). 15
1997, c. 24, s. 14; 2001, c. 27, s. 238(1)
15. (1) Subsection 20(1) of the Act is replaced by the following:
Conditions — Canada
20. (1) The right to remuneration conferred by subsection 19(1) applies only if (a) the maker was, at the date of the first 20 fixation, a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada; or 25 (b) all the fixations done for the sound recording occurred in Canada.
Conditions — Rome Convention country
(1.1) The right to remuneration conferred by subsection 19(1.1) applies only if (a) the maker was, at the date of the first 30 fixation, a citizen or permanent resident of a Rome Convention country or, if a corporation, had its headquarters in a Rome Convention country; or (b) all the fixations done for the sound 35 recording occurred in a Rome Convention country.
Copy (2) Section 20 of the Act is amended by adding the following before subsection (2):
Conditions — WPPT country
(1.2) The right to remuneration conferred by subsection 19(1.2) applies only if (a) the maker was, at the date of the first 5 fixation, a citizen or permanent resident of a WPPT country or, if a corporation, had its headquarters in a WPPT country; or (b) all the fixations done for the sound recording occurred in a WPPT country. 10
2001, c. 27, s. 238(2)
(3) Subsection 20(2) of the Act is replaced by the following:
Exception — Rome Convention country
(2) Despite subsection (1.1), if the Minister is of the opinion that a Rome Convention country does not grant a right to remuneration, 15 similar in scope and duration to that provided by subsection 19(1.1), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or 20 permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, 25 limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country. 30
(4) Section 20 of the Act is amended by adding the following after subsection (2): Exception — WPPT country
(2.1) Despite subsection (1.2), if the Minister is of the opinion that a WPPT country does not grant a right to remuneration, similar in scope 35 and duration to that provided by subsection 19(1.2), for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first
2011-2012
Droit d fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement 5 published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its head- 10 quarters in that country.
1997, c. 24, s. 14
(5) Subsection 20(3) of the Act is replaced by the following:
Exception
(3) If so requested by a country that is a party to the North American Free Trade Agreement, 15 the Minister may, by a statement published in the Canada Gazette, grant the right to remuneration conferred by subsection 19(1.1) to performers or makers who are nationals of that country and whose sound recordings embody 20 dramatic or literary works.
1997, c. 24, s. 14; 2001, c. 27, s. 239(1)
16. (1) The portion of subsection 22(1) of the Act before paragraph (a) is replaced by the following:
Reciprocity
22. (1) If the Minister is of the opinion that a 25 country other than a Rome Convention country or a WPPT country grants or has undertaken to grant
1997, c. 24, s. 14; 2001, c. 27, s. 239(2)
(2) The portion of subsection 22(2) of the Act before paragraph (a) is replaced by the 30 following:
Copy
Reciprocity
(2) If the Minister is of the opinion that a country other than a Rome Convention country or a WPPT country neither grants nor has undertaken to grant
1997, c. 24, s. 14
17. Subsections 23(1) to (3) of the Act are 5 replaced by the following:
Term of copyright — performer’s performance
23. (1) Subject to this Act, copyright in a performer’s performance subsists until the end of 50 years after the end of the calendar year in which the performance occurs. However, 10 (a) if the performance is fixed in a sound recording before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first fixation of the performance in a sound 15 recording occurs; and (b) if a sound recording in which the performance is fixed is published before the copyright expires, the copyright continues until the earlier of the end of 50 years after 20 the end of the calendar year in which the first publication of the sound recording occurs and the end of 99 years after the end of the calendar year in which the performance occurs. 25
Term of copyright — sound recording
(1.1) Subject to this Act, copyright in a sound recording subsists until the end of 50 years after the end of the calendar year in which the first fixation of the sound recording occurs. However, if the sound recording is published 30 before the copyright expires, the copyright continues until the end of 50 years after the end of the calendar year in which the first publication of the sound recording occurs.
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Term of copyright — communication signal
(1.2) Subject to this Act, copyright in a communication signal subsists until the end of 50 years after the end of the calendar year in which the communication signal is broadcast.
Term of right to remuneration
(2) The rights to remuneration conferred on 5 performers and makers by section 19 have the same terms, respectively, as those provided by subsections (1) and (1.1).
Application of subsections (1) to (2)
(3) Subsections (1) to (2) apply whether the fixation, performance or broadcast occurred 10 before or after the coming into force of this section. 18. Section 27 of the Act is amended by adding the following after subsection (2):
Clarification
(2.1) For greater certainty, a copy made 15 outside Canada does not infringe copyright under subsection (2) if, had it been made in Canada, it would have been made under a limitation or exception under this Act.
Secondary infringement related to lesson
(2.2) It is an infringement of copyright for 20 any person to do any of the following acts with respect to anything that the person knows or should have known is a lesson, as defined in subsection 30.01(1), or a fixation of one: (a) to sell it or to rent it out;
(b) to distribute it to an extent that the owner of the copyright in the work or other subjectmatter that is included in the lesson is prejudicially affected; (c) by way of trade, to distribute it, expose or 30 offer it for sale or rental or exhibit it in public; (d) to possess it for the purpose of doing anything referred to in any of paragraphs (a) to (c); (e) to communicate it by telecommunication 35 to any person other than a person referred to in paragraph 30.01(3)(a); or (f) to circumvent or contravene any measure taken in conformity with paragraph 30.01(6)(b), (c) or (d). 40
Copy
Infringement — provision of services
(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copy- 5 right occurs by means of the Internet or another digital network as a result of the use of that service.
Factors
(2.4) In determining whether a person has infringed copyright under subsection (2.3), the 10 court may consider (a) whether the person expressly or implicitly marketed or promoted the service as one that could be used to enable acts of copyright infringement; 15 (b) whether the person had knowledge that the service was used to enable a significant number of acts of copyright infringement; (c) whether the service has significant uses other than to enable acts of copyright 20 infringement; (d) the person’s ability, as part of providing the service, to limit acts of copyright infringement, and any action taken by the person to do so; 25 (e) any benefits the person received as a result of enabling the acts of copyright infringement; and (f) the economic viability of the provision of the service if it were not used to enable acts 30 of copyright infringement.
R.S., c. 10 (4th Supp.), s. 6
19. Section 28.1 of the Act is replaced by the following:
Infringement generally
28.1 Any act or omission that is contrary to any of the moral rights of the author of a work 35 or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.
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R.S., c. 10 (4th Supp.), s. 6
20. The portion of subsection 28.2(1) of the Act before paragraph (a) is replaced by the following:
Nature of right of integrity
28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s perform- 5 ance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,
1997, c. 24, s. 18(1)
21. Section 29 of the Act is replaced by the following: 10
Research, private study, etc.
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
22. The Act is amended by adding the following after section 29.2: 15 Non-commercial User-generated Content Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or 20 other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, 25 if (a) the use of, or the authorization to disseminate, the new work or other subjectmatter is done solely for non-commercial purposes; 30 (b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so; 35 (c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
Copy (d) the use of, or the authorization to disseminate, the new work or other subjectmatter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing 5 work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subjectmatter is not a substitute for the existing one.
Definitions
“intermediary” « intermédiaire »
“use” « utiliser »
(2) The following definitions apply in sub- 10 section (1). “intermediary” means a person or entity who regularly provides space or means for works or other subject-matter to be enjoyed by the public. “use” means to do anything that by this Act the 15 owner of the copyright has the sole right to do, other than the right to authorize anything.
Reproduction for Private Purposes Reproduction for private purposes
29.22 (1) It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a 20 work or other subject-matter if (a) the copy of the work or other subjectmatter from which the reproduction is made is not an infringing copy; (b) the individual legally obtained the copy 25 of the work or other subject-matter from which the reproduction is made, other than by borrowing it or renting it, and owns or is authorized to use the medium or device on which it is reproduced; 30 (c) the individual, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; 35 (d) the individual does not give the reproduction away; and
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Meaning of “medium or device”
(2) For the purposes of paragraph (1)(b), a “medium or device” includes digital memory in which a work or subject-matter may be stored 5 for the purpose of allowing the telecommunication of the work or other subject-matter through the Internet or other digital network.
Limitation — audio recording medium
(3) In the case of a work or other subjectmatter that is a musical work embodied in a 10 sound recording, a performer’s performance of a musical work embodied in a sound recording or a sound recording in which a musical work or a performer’s performance of a musical work is embodied, subsection (1) does not apply if the 15 reproduction is made onto an audio recording medium as defined in section 79.
Limitation — destruction of reproductions
(4) Subsection (1) does not apply if the individual gives away, rents or sells the copy of the work or other subject-matter from which the 20 reproduction is made without first destroying all reproductions of that copy that the individual has made under that subsection. Fixing Signals and Recording Programs for Later Listening or Viewing
Reproduction for later listening or viewing
29.23 (1) It is not an infringement of copyright for an individual to fix a communication 25 signal, to reproduce a work or sound recording that is being broadcast or to fix or reproduce a performer’s performance that is being broadcast, in order to record a program for the purpose of listening to or viewing it later, if 30 (a) the individual receives the program legally;
(b) the individual, in order to record the program, did not circumvent, as defined in section 41, a technological protection meas- 35 ure, as defined in that section, or cause one to be circumvented; (c) the individual makes no more than one recording of the program; (d) the individual keeps the recording no 40 longer than is reasonably necessary in order to listen to or view the program at a more convenient time;
Copy (e) the individual does not give the recording away; and (f) the recording is used only for the individual’s private purposes.
Limitation
(2) Subsection (1) does not apply if the 5 individual receives the work, performer’s performance or sound recording under an ondemand service.
Definitions
(3) The following definitions apply in this section. 10
“broadcast” « radiodiffusion »
“on-demand service” « service sur demande »
“broadcast” means any transmission of a work or other subject-matter by telecommunication for reception by the public, but does not include a transmission that is made solely for performance in public. 15 “on-demand service” means a service that allows a person to receive works, performer’s performances and sound recordings at times of their choosing. Backup Copies
Backup copies
29.24 (1) It is not an infringement of copy- 20 right in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter (in this section referred to as the “source copy”) to reproduce the source copy if 25 (a) the person does so solely for backup purposes in case the source copy is lost, damaged or otherwise rendered unusable; (b) the source copy is not an infringing copy; (c) the person, in order to make the repro- 30 duction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; and (d) the person does not give any of the 35 reproductions away.
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Backup copy becomes source copy
(2) If the source copy is lost, damaged or otherwise rendered unusable, one of the reproductions made under subsection (1) becomes the source copy.
Destruction
(3) The person shall immediately destroy all 5 reproductions made under subsection (1) after the person ceases to own, or to have a licence to use, the source copy.
1997, c. 24, s. 18(1)
23. (1) Subsection 29.4(1) of the Act is replaced by the following: 10
Reproduction for instruction
29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of education or training on its premises to reproduce a work, or do any other necessary 15 act, in order to display it.
1997, c. 24, s. 18(1)
(2) Subsection 29.4(3) of the Act is replaced by the following:
If work commercially available
(3) Except in the case of manual reproduction, the exemption from copyright infringement 20 provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition “commercially available” in section 2, in a medium that is 25 appropriate for the purposes referred to in those subsections.
1997, c. 24, s. 18(1)
24. (1) Paragraph 29.5(b) of the Act is replaced by the following: (b) the performance in public of a sound 30 recording, or of a work or performer’s performance that is embodied in a sound recording, as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable 35 grounds to believe that it is an infringing copy; (2) Section 29.5 of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after that paragraph: 40 (d) the performance in public of a cinematographic work, as long as the work is not an infringing copy or the person responsible
Copy for the performance has no reasonable grounds to believe that it is an infringing copy.
1997, c. 24, s. 18(1)
25. (1) The portion of subsection 29.6(1) of the Act before paragraph (a) is replaced by 5 the following:
News and commentary
29.6 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority to
1997, c. 24, s. 18(1)
(2) Paragraph 29.6(1)(b) of the Act is 10 replaced by the following: (b) perform the copy in public before an audience consisting primarily of students of the educational institution on its premises for educational or training purposes. 15
1997, c. 24, s. 18(1)
(3) Subsection 29.6(2) of the Act is repealed.
1997, c. 24, s. 18.
26. Paragraph 29.9(1)(a) of the Act is repealed. 27. The Act is amended by adding the 20 following after section 30:
Meaning of “lesson”
30.01 (1) For the purposes of this section, “lesson” means a lesson, test or examination, or part of one, in which, or during the course of which, an act is done in respect of a work or 25 other subject-matter by an educational institution or a person acting under its authority that would otherwise be an infringement of copyright but is permitted under a limitation or exception under this Act. 30
Application
(2) This section does not apply so as to permit any act referred to in paragraph (3)(a), (b) or (c) with respect to a work or other subjectmatter whose use in the lesson constitutes an infringement of copyright or for whose use in 35 the lesson the consent of the copyright owner is required.
Communication by telecommunication
(3) Subject to subsection (6), it is not an infringement of copyright for an educational institution or a person acting under its authority 40
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Participation by telecommunication
(4) A student who is enrolled in a course of which the lesson forms a part is deemed to be a 15 person on the premises of the educational institution when the student participates in or receives the lesson by means of communication by telecommunication under paragraph (3)(a).
Reproducing lessons
(5) It is not an infringement of copyright for 20 a student who has received a lesson by means of communication by telecommunication under paragraph (3)(a) to reproduce the lesson in order to be able to listen to or view it at a more convenient time. However, the student shall 25 destroy the reproduction within 30 days after the day on which the students who are enrolled in the course to which the lesson relates have received their final course evaluations.
Conditions
(6) The educational institution and any 30 person acting under its authority, except a student, shall (a) destroy any fixation of the lesson within 30 days after the day on which the students who are enrolled in the course to which the 35 lesson relates have received their final course evaluations; (b) take measures that can reasonably be expected to limit the communication by telecommunication of the lesson to the 40 persons referred to in paragraph (3)(a); (c) take, in relation to the communication by telecommunication of the lesson in digital form, measures that can reasonably be expected to prevent the students from fixing, 45
Copy reproducing or communicating the lesson other than as they may do under this section; and (d) take, in relation to a communication by telecommunication in digital form, any meas- 5 ure prescribed by regulation.
Exception — digital reproduction of works
30.02 (1) Subject to subsections (3) to (5), it is not an infringement of copyright for an educational institution that has a reprographic reproduction licence under which the institution 10 is authorized to make reprographic reproductions of works in a collective society’s repertoire for an educational or training purpose (a) to make a digital reproduction — of the same general nature and extent as the 15 reprographic reproduction authorized under the licence — of a paper form of any of those works; (b) to communicate the digital reproduction by telecommunication for an educational or 20 training purpose to persons acting under the authority of the institution; or (c) to do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) and (b). 25
Exception
(2) Subject to subsections (3) to (5), it is not an infringement of copyright for a person acting under the authority of the educational institution to whom the work has been communicated under paragraph (1)(b) to print one copy of the 30 work.
Conditions
(3) An educational institution that makes a digital reproduction of a work under paragraph (1)(a) shall (a) pay to the collective society, with respect 35 to all the persons to whom the digital reproduction is communicated by the institution under paragraph (1)(b), the royalties that would be payable if one reprographic reproduction were distributed by the institution to 40 each of those persons, and comply with the licence terms and conditions applicable to a reprographic reproduction to the extent that they are reasonably applicable to a digital reproduction; 45
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Restriction
(4) An educational institution may not make a digital reproduction of a work under paragraph 15 (1)(a) if (a) the institution has entered into a digital reproduction agreement respecting the work with a collective society under which the institution may make a digital reproduction of 20 the work, may communicate the digital reproduction by telecommunication to persons acting under the authority of the institution and may permit those persons to print at least one copy of the work; 25 (b) there is a tariff certified under section 70.15 that is applicable to the digital reproduction of the work, to the communication of the digital reproduction by telecommunication to persons acting under the 30 authority of the institution and to the printing by those persons of at least one copy of the work; or (c) the institution has been informed by the collective society that is authorized to enter 35 into reprographic agreements with respect to the work that the owner of the copyright in the work has informed it, under subsection (5), that the owner refuses to authorize the collective society to enter into a digital 40 reproduction agreement with respect to the work.
Restriction
(5) If the owner of the copyright in a work informs the collective society that is authorized to enter into reprographic agreements with 45 respect to the work that the owner refuses to authorize it to enter into digital reproduction
Copy agreements with respect to the work, the collective society shall inform the educational institutions with which it has entered into reprographic reproduction agreements with respect to the work that they are not permitted 5 to make digital reproductions under subsection (1).
Deeming provision
(6) The owner of the copyright in a work who, in respect of the work, has authorized a collective society to enter into a reprographic 10 reproduction agreement with an educational institution is deemed to have authorized the society to enter into a digital reproduction agreement with the institution — subject to the same restrictions as a reprographic repro- 15 duction agreement — unless the owner has refused to give this authorization under subsection (5) or has authorized another collective society to enter into a digital reproduction agreement with respect to the work. 20
Maximum amount that may be recovered
(7) In proceedings against an educational institution for making a digital reproduction of a paper form of a work, or for communicating such a reproduction by telecommunication for an educational or training purpose to persons 25 acting under the authority of the institution, the owner of the copyright in the work may not recover an amount more than (a) in the case where there is a digital reproduction licence that meets the conditions 30 described in paragraph (4)(a) in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that would be payable under that licence in 35 respect of those acts or, if there is more than one applicable licence, the greatest amount of royalties payable under any of those licences; and (b) in the case where there is no licence 40 described in paragraph (a) but there is a reprographic reproduction licence in respect of the work — or, if none exists in respect of the work, in respect of a work of the same category — the amount of royalties that 45 would be payable under that licence in
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No damages
(8) The owner of the copyright in a work may not recover any damages against a person 5 acting under the authority of the educational institution who, in respect of a digital reproduction of the work that is communicated to the person by telecommunication, prints one copy of the work if, at the time of the printing, it was 10 reasonable for the person to believe that the communication was made in accordance with paragraph (1)(b).
Royalties — digital reproduction agreement
30.03 (1) If an educational institution has paid royalties to a collective society for the 15 digital reproduction of a work under paragraph 30.02(3)(a) and afterwards the institution enters into a digital reproduction agreement described in paragraph 30.02(4)(a) with any collective society, 20 (a) in the case where the institution would — under that digital reproduction agreement — pay a greater amount of royalties for the digital reproduction of that work than what was payable under paragraph 30.02(3)(a), the 25 institution shall pay to the collective society to which it paid royalties under that paragraph the difference between (i) the amount of royalties that the institution would have had to pay for the digital 30 reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and (ii) the amount of royalties that the 35 institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital 40 reproduction agreement; and (b) in the case where the institution would — under that digital reproduction agreement — pay a lesser amount of royalties for the digital reproduction of that work than what was 45 payable under paragraph 30.02(3)(a), the
Copy collective society to which the institution paid royalties under that paragraph shall pay to the institution the difference between (i) the amount of royalties that the institution paid to the society under paragraph 5 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the day on which they enter into the digital reproduction agreement, and 10 (ii) the amount of royalties that the institution would have had to pay for the digital reproduction of that work if the agreement had been entered into on the day on which the institution first made a digital 15 reproduction under paragraph 30.02(1)(a).
Royalties — tariff
(2) If an educational institution has paid royalties to a collective society for the digital reproduction of a work under paragraph 30.02(3)(a) and afterwards a tariff applies to 20 the digital reproduction of that work under paragraph 30.02(4)(b), (a) in the case where the institution would — under the tariff — pay a greater amount of royalties for the digital reproduction of that 25 work than what was payable under paragraph 30.02(3)(a), the institution shall pay to the collective society to which it paid royalties under that paragraph the difference between (i) the amount of royalties that the institu- 30 tion would have had to pay for the digital reproduction of that work if the tariff had been certified on the day on which the institution first made a digital reproduction under paragraph 30.02(1)(a), and 35 (ii) the amount of royalties that the institution paid to the society under paragraph 30.02(3)(a) for the digital reproduction of that work from the day on which that paragraph comes into force until the 40 day on which the tariff is certified; and
(b) in the case where the institution would — under the tariff — pay a lesser amount of royalties for the digital reproduction of that work than what was payable under paragraph 45 30.02(3)(a), the collective society to which
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Work available through Internet
30.04 (1) Subject to subsections (2) to (5), it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in 20 respect of a work or other subject-matter that is available through the Internet: (a) reproduce it; (b) communicate it to the public by telecommunication, if that public primarily con- 25 sists of students of the educational institution or other persons acting under its authority; (c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting 30 under its authority; or (d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c).
Conditions
(2) Subsection (1) does not apply unless the 35 educational institution or person acting under its authority, in doing any of the acts described in that subsection in respect of the work or other subject-matter, mentions the following: (a) the source; and (b) if given in the source, the name of (i) the author, in the case of a work, (ii) the performer, in the case of a performer’s performance,
Copy (iii) the maker, in the case of a sound recording, and (iv) the broadcaster, in the case of a communication signal.
Non-application
(3) Subsection (1) does not apply if the 5 work or other subject-matter — or the Internet site where it is posted — is protected by a technological protection measure that restricts access to the work or other subject-matter or to the Internet site. 10
Non-application
(4) Subsection (1) does not permit a person to do any act described in that subsection in respect of a work or other subject-matter if (a) that work or other subject-matter — or the Internet site where it is posted — is 15 protected by a technological protection measure that restricts the doing of that act; or (b) a clearly visible notice — and not merely the copyright symbol — prohibiting that act is posted at the Internet site where the work or 20 other subject-matter is posted or on the work or other subject-matter itself.
Non-application
(5) Subsection (1) does not apply if the educational institution or person acting under its authority knows or should have known that the 25 work or other subject-matter was made available through the Internet without the consent of the copyright owner.
Regulations
(6) The Governor in Council may make regulations for the purposes of paragraph 30 (4)(b) prescribing what constitutes a clearly visible notice.
1997, c. 24, s. 18(1)
28. Paragraph 30.1(1)(c) of the Act is replaced by the following: (c) in an alternative format if the library, 35 archive or museum or a person acting under the authority of the library, archive or museum considers that the original is currently in a format that is obsolete or is
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1997, c. 24, s. 18(1)
29. Subsections 30.2(4) and (5) of the Act are replaced by the following: 5
Conditions
(4) A library, archive or museum may provide the person for whom the copy is made under subsection (2) with the copy only on the condition that (a) the person is provided with a single copy 10 of the work; and (b) the library, archive or museum informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research 15 or private study may require the authorization of the copyright owner of the work in question.
Patrons of other libraries, etc.
(5) Subject to subsection (5.02), a library, archive or museum, or a person acting under the 20 authority of one, may do, on behalf of a patron of another library, archive or museum, anything under subsection (1) or (2) that it is authorized by this section to do on behalf of one of its own patrons. 25
Deeming
(5.01) For the purpose of subsection (5), the making of a copy of a work other than by reprographic reproduction is deemed to be a making of a copy of the work that may be done under subsection (2). 30
Limitation regarding copies in digital form
(5.02) A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), provide a copy in digital form to a person who has requested it through another library, archive or museum if the 35 providing library, archive or museum or person takes measures to prevent the person who has requested it from (a) making any reproduction of the digital copy, including any paper copies, other than 40 printing one copy of it; (b) communicating the digital copy to any other person; and
Copy (c) using the digital copy for more than five business days from the day on which the person first uses it.
2004, c. 11, s. 21(1)
30. (1) Subsection 30.21(1) of the Act is replaced by the following: 5
Copying works deposited in archive
30.21 (1) Subject to subsections (3) and (3.1), it is not an infringement of copyright for an archive to make, for any person requesting to use the copy for research or private study, a copy of an unpublished work that is deposited in 10 the archive and provide the person with it.
1997, c. 24, s. 18(1); 2004, c. 11, s. 21(2)(E)
(2) Subsections 30.21(3) and (4) of the Act are replaced by the following:
Conditions for copying of works
(3) The archive may copy the work only on the condition that 15 (a) the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying; and (b) copying has not been prohibited by any other owner of copyright in the work. 20
Condition for providing copy
(3.1) The archive may provide the person for whom a copy is made under subsection (1) with the copy only on the condition that (a) the person is provided with a single copy of the work; and 25 (b) the archive informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright 30 owner of the work in question.
Regulations
(4) The Governor in Council may prescribe by regulation the manner and form in which the conditions set out in subsections (3) and (3.1) may be met. 35
1997, c. 24, s. 18(1)
31. Section 30.6 of the Act is replaced by the following:
Permitted acts
30.6 It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized 40 by the owner of the copyright, or has a licence to use a copy of the computer program, to
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Interoperability of computer programs
30.61 (1) It is not an infringement of copy- 20 right in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, to reproduce the copy if 25 (a) they reproduce the copy for the sole purpose of obtaining information that would allow the person to make the program and another computer program interoperable; and (b) they do not use or disclose that informa- 30 tion, except as necessary to make the program and another computer program interoperable or to assess that interoperability.
No limitation
(2) In the case where that information is used or disclosed as necessary to make another 35 computer program interoperable with the program, subsection (1) applies even if the other computer program incorporates the information and is then sold, rented or otherwise distributed.
Copy Encryption Research
Encryption research
30.62 (1) Subject to subsections (2) and (3), it is not an infringement of copyright for a person to reproduce a work or other subjectmatter for the purposes of encryption research if (a) it would not be practical to carry out the 5 research without making the copy; (b) the person has lawfully obtained the work or other subject-matter; and (c) the person has informed the owner of the copyright in the work or other subject-matter. 10
Limitation
(2) Subsection (1) does not apply if the person uses or discloses information obtained through the research to commit an act that is an offence under the Criminal Code.
Limitation — computer program
(3) Subsection (1) applies with respect to a 15 computer program only if, in the event that the research reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security flaw public, the person gives adequate notice of the vulner- 20 ability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the public interest in having the vulnerability or security 25 flaw made public without adequate notice outweighs the owner’s interest in receiving that notice. Security
Security
30.63 (1) Subject to subsections (2) and (3), it is not an infringement of copyright for a 30 person to reproduce a work or other subjectmatter for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, 35 system or network or of correcting any security flaws.
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Limitation
(2) Subsection (1) does not apply if the person uses or discloses information obtained through the assessment or correction to commit an act that is an offence under the Criminal Code. 5
Limitation — computer program
(3) Subsection (1) applies with respect to a computer program only if, in the event that the assessment or correction reveals a vulnerability or a security flaw in the program and the person intends to make the vulnerability or security 10 flaw public, the person gives adequate notice of the vulnerability or security flaw and of their intention to the owner of copyright in the program. However, the person need not give that adequate notice if, in the circumstances, the 15 public interest in having the vulnerability or security flaw made public without adequate notice outweighs the owner’s interest in receiving that notice. 32. The Act is amended by adding the 20 following after section 30.7: Temporary Reproductions for Technological Processes
Temporary reproductions
30.71 It is not an infringement of copyright to make a reproduction of a work or other subject-matter if (a) the reproduction forms an essential part 25 of a technological process; (b) the reproduction’s only purpose is to facilitate a use that is not an infringement of copyright; and (c) the reproduction exists only for the 30 duration of the technological process.
1997, c. 24, s. 18(1)
33. The portion of subsection 30.8(11) of the Act after paragraph (c) is replaced by the following: The undertaking must hold a broadcasting 35 licence issued by the Canadian Radio-television and Telecommunications Commission under the Broadcasting Act, or be exempted from this requirement by the Canadian Radio-television and Telecommunications Commission. 40
Copy
1997, c. 24, s. 18(1)
34. (1) The portion of subsection 30.9(1) of the Act before paragraph (b) is replaced by the following:
Ephemeral recordings — broadcasting undertaking
30.9 (1) It is not an infringement of copyright for a broadcasting undertaking to repro- 5 duce in accordance with this section a sound recording, or a performer’s performance or work that is embodied in a sound recording, solely for the purpose of their broadcasting, if the undertaking 10 (a) owns the copy of the sound recording, performer’s performance or work and that copy is authorized by the owner of the copyright, or has a licence to use the copy;
1997, c. 24, s. 18(1)
(2) Subsection 30.9(4) of the Act is re- 15 placed by the following:
Destruction
(4) The broadcasting undertaking must destroy the reproduction when it no longer possesses the sound recording, or performer’s performance or work embodied in the sound 20 recording, or its licence to use the sound recording, performer’s performance or work expires, or at the latest within 30 days after making the reproduction, unless the copyright owner authorizes the reproduction to be re- 25 tained.
1997, c. 24, s. 18(1)
(3) Subsection 30.9(6) of the Act is repealed. 35. The Act is amended by adding the following after section 31: 30 Network Services
Network services
31.1 (1) A person who, in providing services related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Inter- 35 net or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter.
Incidental acts
(2) Subject to subsection (3), a person referred to in subsection (1) who caches the 40 work or other subject-matter, or does any similar act in relation to it, to make the
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Conditions for application
(3) Subsection (2) does not apply unless the person, in respect of the work or other subject- 5 matter, (a) does not modify it, other than for technical reasons; (b) ensures that any directions related to its caching or the doing of any similar act, as the 10 case may be, that are specified in a manner consistent with industry practice by whoever made it available for telecommunication through the Internet or another digital network, and that lend themselves to automated 15 reading and execution, are read and executed; and (c) does not interfere with the use of technology that is lawful and consistent with industry practice in order to obtain data on 20 the use of the work or other subject-matter.
Hosting
(4) Subject to subsection (5), a person who, for the purpose of allowing the telecommunication of a work or other subject-matter through the Internet or another digital network, provides 25 digital memory in which another person stores the work or other subject-matter does not, by virtue of that act alone, infringe copyright in the work or other subject-matter.
Condition for application
(5) Subsection (4) does not apply in respect 30 of a work or other subject-matter if the person providing the digital memory knows of a decision of a court of competent jurisdiction to the effect that the person who has stored the work or other subject-matter in the digital 35 memory infringes copyright by making the copy of the work or other subject-matter that is stored or by the way in which he or she uses the work or other subject-matter.
Exception
(6) Subsections (1), (2) and (4) do not apply 40 in relation to an act that constitutes an infringement of copyright under subsection 27(2.3).
Copy
1997, c. 24, s. 19
36. The portion of subsection 32(1) of the Act before paragraph (a) is replaced by the following:
Reproduction in alternate format
32. (1) It is not an infringement of copyright for a person with a perceptual disability, for a 5 person acting at the request of such a person or for a non-profit organization acting for the benefit of such a person to 37. The Act is amended by adding the following after section 32: 10
Sending copies outside Canada
32.01 (1) Subject to this section, it is not an infringement of copyright for a non-profit organization acting for the benefit of persons with a print disability to make a copy, in a format specially designed for persons with a 15 print disability, of a work and to send the copy to a non-profit organization in another country for use by persons with print disabilities in that country, if the author of the work that is reformatted is 20 (a) a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or (b) a citizen or permanent resident of the country to which the copy is sent. 25
Limitation
(2) Subsection (1) does not authorize a large print book or a cinematographic work to be sent outside Canada.
Work available in country
(3) Subsection (1) does not authorize a copy to be sent to a country if the organization knows 30 or has reason to believe that the work, in the format specially designed for persons with a print disability, is available in that country within a reasonable time and for a reasonable price, and may be located in that country with 35 reasonable effort.
Good faith mistake as to author’s nationality
(3.1) If a non-profit organization that is relying on the exception set out in subsection (1) infringes copyright by reason only of making a mistake in good faith as to the 40 citizenship or residency of the author of the work, an injunction is the only remedy that the owner of the copyright in the work has against the organization.
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Royalty
(4) The organization making and sending the copy shall pay, in accordance with the regulations, any royalty established under the regulations to the copyright owner in the work.
If copyright owner cannot be located
(5) If the organization cannot locate the 5 copyright owner, despite making reasonable efforts to do so, the organization shall pay, in accordance with the regulations, any royalty established under the regulations to a collective society. 10
Reports
(6) The organization making and sending the copy shall submit reports to an authority in accordance with the regulations on the organization’s activities under this section.
Regulations
(7) The Governor in Council may make 15 regulations (a) requiring a non-profit organization that seeks to send a copy outside Canada to, before doing so, enter into a contract with the recipient non-profit organization with respect 20 to the use of the copy; (b) respecting the form and content of such contracts; (c) respecting any royalties to be paid under subsections (4) and (5); 25 (d) respecting to which collective society a royalty is payable in relation to works or classes of works for the purposes of subsection (5); (e) respecting what constitutes reasonable 30 efforts for the purposes of subsection (5); and (f) respecting the reports to be made, and the authorities to which the reports are to be submitted, under subsection (6).
Meaning of “print disability”
(8) In this section, “print disability” means a 35 disability that prevents or inhibits a person from reading a literary, musical or dramatic work in its original format, and includes such a disability resulting from (a) severe or total impairment of sight or the 40 inability to focus or move one’s eyes; (b) the inability to hold or manipulate a book; or (c) an impairment relating to comprehension.
Copy
38. Subsection 32.2(1) of the Act is amended by striking out “or” at the end of paragraph (d), by adding “or” at the end of paragraph (e) and by adding the following after paragraph (e): 5 (f) for an individual to use for private or noncommercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable 10 consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.
39. The Act is amended by adding the following after section 32.5: 15 Certain rights and interests protected
32.6 Despite sections 27, 28.1 and 28.2, if a person has, before the day on which subsection 15(1.1), 17.1(1) or 18(1.1) applies in respect of a particular performers’ performance or sound recording, incurred an expenditure or a liability 20 in connection with, or in preparation for, the doing of an act that would, if done after that day, have infringed rights under that subsection, any right or interest of that person that arises from, or in connection with, the doing of that act and 25 that is subsisting and valuable on that day is not, for two years after the day on which this section comes into force, prejudiced or diminished by reason only of the subsequent application of that subsection in respect of the performers’ 30 performance or sound recording.
1997, c. 24, s. 19
40. Subsection 33(1) of the Act is replaced by the following:
Certain rights and interests protected
33. (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person 35 has, before the later of January 1, 1996 and the day on which a country becomes a treaty country other than a WCT country, incurred an expenditure or liability in connection with, or in preparation for, the doing of an act that, if that 40 country had been such a treaty country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest
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Certain rights and interests protected
33.1 (1) Despite subsections 27(1), (2) and 10 (4) and sections 27.1, 28.1 and 28.2, if a person has, before the later of the day on which this section comes into force and the day on which a country that is a treaty country but not a WCT country becomes a WCT country, incurred an 15 expenditure or liability in connection with, or in preparation for, the doing of an act that, if that country had been a WCT country, would have infringed a right under paragraph 3(1)(j), any right or interest of that person that arises from, 20 or in connection with, the doing of that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that 25 country having become a WCT country.
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when the owner pays the person any compensa- 30 tion that is agreed to between the parties or, failing agreement, that is determined by the Board in accordance with section 78.
Certain rights and interests protected
33.2 (1) Despite subsections 27(1), (2) and (4) and sections 27.1, 28.1 and 28.2, if a person 35 has, before the later of the day on which this section comes into force and the day on which a country that is not a treaty country becomes a WCT country, incurred an expenditure or a liability in connection with, or in preparation 40 for, the doing of an act that, if that country had been a WCT country, would have infringed copyright in a work or moral rights in respect of a work, any right or interest of that person that arises from, or in connection with, the doing of 45
Copy that act and that is subsisting and valuable on the later of those days is not, except as provided by an order of the Board made under subsection 78(3), prejudiced or diminished by reason only of that country having become a WCT country. 5
Compensation
(2) Despite subsection (1), a person’s right or interest that is protected by that subsection terminates as against the copyright owner if and when that owner pays the person any compensation that is agreed to between the parties or, 10 failing agreement, that is determined by the Board in accordance with section 78. 42. The Act is amended by adding the following before section 34: Infringement of Copyright and Moral Rights
1997, c. 24, s. 20(1)
43. Subsection 34(2) of the Act is replaced 15 by the following:
Moral rights
(2) In any proceedings for an infringement of moral rights, the court may grant to the holder of those rights all remedies by way of injunction, damages, accounts, delivery up and 20 otherwise that are or may be conferred by law for the infringement of a right.
1997, c. 24, s. 20(1)
44. The portion of subsection 34.1(1) of the Act before paragraph (a) is replaced by the following: 25
Presumptions respecting copyright and ownership
34.1 (1) In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,
1997, c. 24, s. 20(1)
45. Sections 36 and 37 of the Act are 30 repealed.
1997, c. 24, s. 20(1)
46. (1) Subsections 38.1(1) to (3) of the Act are replaced by the following:
Statutory damages
38.1 (1) Subject to this section, a copyright owner may elect, at any time before final 35 judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for which
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Infringement of subsection 27(2.3)
(1.1) An infringement under subsection 27(2.3) may give rise to an award of statutory damages with respect to a work or other subjectmatter only if the copyright in that work or other subject-matter was actually infringed as a result 20 of the use of a service referred to in that subsection.
Deeming — infringement of subsection 27(2.3)
(1.11) For the purpose of subsection (1), an infringement under subsection 27(2.3) is deemed to be for a commercial purpose. 25
Infringements not involved in proceedings
(1.12) If the copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for noncommercial purposes, they are barred from recovering statutory damages under this section 30 from that defendant with respect to any other of the defendant’s infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made. 35
No other statutory damages
(1.2) If a copyright owner has made an election under subsection (1) with respect to a defendant’s infringements that are for noncommercial purposes, every other copyright owner is barred from electing to recover 40 statutory damages under this section in respect of that defendant for any of the defendant’s
Copy infringements that were done for non-commercial purposes before the institution of the proceedings in which the election was made.
If defendant unaware of infringement
(2) If a copyright owner has made an election under subsection (1) and the defendant satisfies 5 the court that the defendant was not aware and had no reasonable grounds to believe that the defendant had infringed copyright, the court may reduce the amount of the award under paragraph (1)(a) to less than $500, but not less 10 than $200.
Special case
(3) In awarding statutory damages under paragraph (1)(a) or subsection (2), the court may award, with respect to each work or other subject-matter, a lower amount than $500 or 15 $200, as the case may be, that the court considers just, if (a) either (i) there is more than one work or other subject-matter in a single medium, or 20 (ii) the award relates only to one or more infringements under subsection 27(2.3); and (b) the awarding of even the minimum amount referred to in that paragraph or that 25 subsection would result in a total award that, in the court’s opinion, is grossly out of proportion to the infringement. (2) Subsection 38.1(5) of the Act is amended by striking out “and” at the end 30 of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c): (d) in the case of infringements for noncommercial purposes, the need for an award 35 to be proportionate to the infringements, in consideration of the hardship the award may cause to the defendant, whether the infringement was for private purposes or not, and the impact of the infringements on the plaintiff. 40 (3) Subsection 38.1(6) of the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c): 45
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1997, c. 24, s. 22
47. Section 41 of the Act is replaced by the following: Technological Protection Measures and Rights Management Information
Definitions
“circumvent” « contourner »
41. The following definitions apply in this section and in sections 41.1 to 41.21. “circumvent” means,
(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise 15 avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and (b) in respect of a technological protection 20 measure within the meaning of paragraph (b) of the definition “technological protection measure”, to avoid, bypass, remove, deactivate or impair the technological protection measure. 25
“technological protection measure” « mesure technique de protection »
“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation, (a) controls access to a work, to a performer’s performance fixed in a sound recording 30 or to a sound recording and whose use is authorized by the copyright owner; or (b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of 35 any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.
Prohibition
41.1 (1) No person shall
Copy (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41; (b) offer services to the public or provide 5 services if (i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure, (ii) the uses or purposes of those services 10 are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or (iii) the person markets those services as 15 being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or 20 (c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if (i) the technology, device or component is 25 designed or produced primarily for the purposes of circumventing a technological protection measure, (ii) the uses or purposes of the technology, device or component are not commercially 30 significant other than when it is used for the purposes of circumventing a technological protection measure, or (iii) the person markets the technology, device or component as being for the 35 purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes. 40
Circumvention of technological protection measure
(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made 45 under section 41.21, entitled to all remedies —
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No statutory damages
(3) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover 10 statutory damages from an individual who contravened that paragraph only for his or her own private purposes.
Services, technology, device or component
(4) Every owner of the copyright in a work, a performer’s performance fixed in a sound 15 recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made 20 under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened 25 paragraph (1)(b) or (c).
Law enforcement and national security
41.11 (1) Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of 30 Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security.
Services
(2) Paragraph 41.1(1)(b) does not apply if the services are provided by or for the persons 35 responsible for carrying out such an investigation or such activities.
Technology, device or component
(3) Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured, imported or provided by the persons 40 responsible for carrying out such an investigation or such activities, or is manufactured, imported, provided or offered for sale or rental as a service provided to those persons.
Copy
Interoperability of computer programs
41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects 5 that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.
Services
(2) Paragraph 41.1(1)(b) does not apply to a 10 person who offers services to the public or provides services for the purposes of circumventing a technological protection measure if the person does so for the purpose of making the computer program and any other computer 15 program interoperable.
Technology, device or component
(3) Paragraph 41.1(1)(c) does not apply to a person who manufactures, imports or provides a technology, device or component for the purposes of circumventing a technological 20 protection measure if the person does so for the purpose of making the computer program and any other computer program interoperable and (a) uses that technology, device or compo- 25 nent only for that purpose; or (b) provides that technology, device or component to another person only for that purpose.
Sharing of information
(4) A person referred to in subsection (1) 30 may communicate the information obtained under that subsection to another person for the purposes of allowing that person to make the computer program and any other computer program interoperable. 35
Limitation
(5) A person to whom the technology, device or component referred to in subsection (3) is provided or to whom the information referred to in subsection (4) is communicated may use it only for the purpose of making the computer 40 program and any other computer program interoperable.
Non-application
(6) However, a person is not entitled to benefit from the exceptions under subsections (1) to (3) or (5) if, for the purposes of making 45
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Non-application
(7) Furthermore, a person is not entitled to benefit from the exception under subsection (4) 5 if, for the purposes of making the computer program and any other computer program interoperable, the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or 10 any Act of the legislature of a province.
Encryption research
41.13 (1) Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological protection measure by means of decryption 15 if (a) it would not be practical to carry out the research without circumventing the technological protection measure; (b) the person has lawfully obtained the 20 work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure; and (c) the person has informed the owner of the 25 copyright in the work, the performer’s performance fixed in a sound recording or the sound recording who has applied the technological protection measure.
Non-application
(2) However, a person acting in the circum- 30 stances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or 35 any Act of the legislature of a province.
Technology, device or component
(3) Paragraph 41.1(1)(c) does not apply to a person referred to in subsection (1) who manufactures a technology, device or component for the purposes of circumventing a 40 technological protection measure that is subject to paragraph 41.1(1)(a) if the person does so for the purpose of encryption research and (a) uses that technology, device or component only for that purpose; or 45
Copy (b) provides that technology, device or component only for that purpose to another person who is collaborating with the person.
Personal information
41.14 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- 5 ical protection measure if (a) the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice 10 indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to 15 prevent the collection and communication of personal information without the user’s use of it being restricted; and (b) the only purpose of circumventing the technological protection measure is to verify 20 whether it permits the collection or communication of personal information and, if it does, to prevent it.
Services, technology, device or component
(2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers services to the 25 public or provides services, or manufactures, imports or provides a technology, device or component, for the purposes of circumventing a technological protection measure in accordance with subsection (1), to the extent that the 30 services, technology, device or component do not unduly impair the technological protection measure.
Security
41.15 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- 35 ical protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the comput- 40 er, system or network or correcting any security flaws.
Services
(2) Paragraph 41.1(1)(b) does not apply if the services are provided to a person described in subsection (1). 45
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Technology, device or component
(3) Paragraph 41.1(1)(c) does not apply if the technology, device or component is manufactured or imported by a person described in subsection (1), or is manufactured, imported, provided — including by selling or renting — 5 offered for sale or rental or distributed as a service provided to that person.
Non-application
(4) A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection 10 if the person does an act that constitutes an infringement of copyright or an act that contravenes any Act of Parliament or any Act of the legislature of a province.
Persons with perceptual disabilities
41.16 (1) Paragraph 41.1(1)(a) does not 15 apply to a person with a perceptual disability, another person acting at their request or a nonprofit organization acting for their benefit if that person or organization circumvents a technological protection measure for the sole purpose of 20 making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.
Services, technology, device or component
(2) Paragraphs 41.1(1)(b) and (c) do not 25 apply to a person who offers or provides services to persons or organizations referred to in subsection (1), or manufactures, imports or provides a technology, device or component, for the purposes of enabling those persons or 30 organizations to circumvent a technological protection measure in accordance with that subsection, to the extent that the services, technology, device or component do not unduly impair the technological protection measure. 35
Broadcasting undertakings
41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a 40 sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by 45 the technological protection measure makes
Copy available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.
Radio apparatus
41.18 (1) Paragraph 41.1(1)(a) does not 5 apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus. 10
Services or technology, device or component
(2) Paragraphs 41.1(1)(b) and (c) do not apply to a person who offers the services to the public or provides the services, or manufactures, imports or provides the technology, device or component, for the sole purpose of facilitating 15 access to a telecommunications service by means of a radio apparatus.
Definitions
(3) The following definitions apply in this section.
“radio apparatus” « appareil radio »
“telecommunications service” « service de télécommunication »
“radio apparatus” has the same meaning as in 20 section 2 of the Radiocommunication Act. “telecommunications service” has the same meaning as in subsection 2(1) of the Telecommunications Act.
Reduction of damages
41.19 A court may reduce or remit the 25 amount of damages it awards in the circumstances described in subsection 41.1(1) if the defendant satisfies the court that the defendant was not aware, and had no reasonable grounds to believe, that the defendant’s acts constituted a 30 contravention of that subsection.
Injunction only remedy
41.2 If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was 35 not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.
Regulations
41.21 (1) The Governor in Council may 40 make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s
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Regulations
(2) The Governor in Council may make 10 regulations (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors: (i) whether not being permitted to circum- 15 vent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording 20 when that use is authorized, (ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available, 25 (iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, 30 teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording, (iv) whether being permitted to circum- 35 vent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or 40 its market value, (v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that 45 is appropriate for non-profit archival, preservation or educational uses, and
Copy (vi) any other relevant factor; and (b) requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection meas- 5 ure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) 10 prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with. 15
Prohibition — rights management information
41.22 (1) No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound record- 20 ing, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19. 25
Removal or alteration of rights management information
(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording is, subject to this Act, entitled to all remedies — by way of injunction, damages, accounts, delivery up and 30 otherwise — that are or may be conferred by law for the infringement of copyright against a person who contravenes subsection (1).
Subsequent acts
(3) The copyright owner referred to in subsection (2) has the same remedies against a 35 person who, without the owner’s consent, knowingly does any of the following acts with respect to any material form of the work, the performer’s performance fixed in a sound recording or the sound recording and knows 40 or should have known that the rights management information has been removed or altered in a way that would give rise to a remedy under that subsection: (a) sells it or rents it out; (b) distributes it to an extent that the copyright owner is prejudicially affected;
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Droit d (c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; (d) imports it into Canada for the purpose of doing anything referred to in any of para- 5 graphs (a) to (c); or (e) communicates it to the public by telecommunication.
Definition of “rights management information”
(4) In this section, “rights management information” means information that 10 (a) is attached to or embodied in a copy of a work, a performer’s performance fixed in a sound recording or a sound recording, or appears in connection with its communication to the public by telecommunication; and 15 (b) identifies or permits the identification of the work or its author, the performance or its performer, the sound recording or its maker or the holder of any rights in the work, the performance or the sound recording, or 20 concerns the terms or conditions of the work’s, performance’s or sound recording’s use. General Provisions
Protection of separate rights
41.23 (1) Subject to this section, the owner of any copyright, or any person or persons 25 deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, 30 to the extent of that right, title and interest, is entitled to the remedies provided by this Act.
Copyright owner to be made party
(2) If proceedings under subsection (1) are taken by a person other than the copyright owner, the copyright owner shall be made a 35 party to those proceedings, except (a) in the case of proceedings taken under section 44.1, 44.2 or 44.4; (b) in the case of interlocutory proceedings, unless the court is of the opinion that the 40 interests of justice require the copyright owner to be a party; and
Copy (c) in any other case in which the court is of the opinion that the interests of justice do not require the copyright owner to be a party.
Owner’s liability for costs
(3) A copyright owner who is made a party to proceedings under subsection (2) is not liable 5 for any costs unless the copyright owner takes part in the proceedings.
Apportionment of damages, profits
(4) If a copyright owner is made a party to proceedings under subsection (2), the court, in awarding damages or profits, shall, subject to 10 any agreement between the person who took the proceedings and the copyright owner, apportion the damages or profits referred to in subsection 35(1) between them as the court considers appropriate. 15
Concurrent jurisdiction of Federal Court
41.24 The Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings, other than the prosecution of offences under sections 42 and 43, for the enforcement of a provision of this 20 Act or of the civil remedies provided by this Act. PROVISIONS RESPECTING PROVIDERS OF NETWORK SERVICES OR INFORMATION LOCATION TOOLS
Notice of claimed infringement
41.25 (1) An owner of the copyright in a work or other subject-matter may send a notice of claimed infringement to a person who 25 provides (a) the means, in the course of providing services related to the operation of the Internet or another digital network, of telecommunication through which the electronic 30 location that is the subject of the claim of infringement is connected to the Internet or another digital network; (b) for the purpose set out in subsection 31.1(4), the digital memory that is used for 35 the electronic location to which the claim of infringement relates; or (c) an information location tool as defined in subsection 41.27(5).
Form and content of notice
(2) A notice of claimed infringement shall be 40 in writing in the form, if any, prescribed by regulation and shall
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Droit d (a) state the claimant’s name and address and any other particulars prescribed by regulation that enable communication with the claimant; (b) identify the work or other subject-matter to which the claimed infringement relates; 5 (c) state the claimant’s interest or right with respect to the copyright in the work or other subject-matter; (d) specify the location data for the electronic location to which the claimed infringement 10 relates; (e) specify the infringement that is claimed; (f) specify the date and time of the commission of the claimed infringement; and (g) contain any other information that may 15 be prescribed by regulation.
Obligations related to notice
41.26 (1) A person described in paragraph 41.25(1)(a) or (b) who receives a notice of claimed infringement that complies with subsection 41.25(2) shall, on being paid any fee 20 that the person has lawfully charged for doing so, (a) as soon as feasible forward the notice electronically to the person to whom the electronic location identified by the location 25 data specified in the notice belongs and inform the claimant of its forwarding or, if applicable, of the reason why it was not possible to forward it; and (b) retain records that will allow the identity 30 of the person to whom the electronic location belongs to be determined, and do so for six months beginning on the day on which the notice of claimed infringement is received or, if the claimant commences proceedings 35 relating to the claimed infringement and so notifies the person before the end of those six months, for one year after the day on which the person receives the notice of claimed infringement. 40
Fees related to notices
(2) The Minister may, by regulation, fix the maximum fee that a person may charge for performing his or her obligations under
Copy subsection (1). If no maximum is fixed by regulation, the person may not charge any amount under that subsection.
Damages related to notices
(3) A claimant’s only remedy against a person who fails to perform his or her obliga- 5 tions under subsection (1) is statutory damages in an amount that the court considers just, but not less than $5,000 and not more than $10,000.
Regulations — change of amounts
(4) The Governor in Council may, by regulation, increase or decrease the minimum 10 or maximum amount of statutory damages set out in subsection (3).
Injunctive relief only — providers of information location tools
41.27 (1) In any proceedings for infringement of copyright, the owner of the copyright in a work or other subject-matter is not entitled to 15 any remedy other than an injunction against a provider of an information location tool that is found to have infringed copyright by making a reproduction of the work or other subject-matter or by communicating that reproduction to the 20 public by telecommunication.
Conditions for application
(2) Subsection (1) applies only if the provider, in respect of the work or other subjectmatter, (a) makes and caches, or does any act similar 25 to caching, the reproduction in an automated manner for the purpose of providing the information location tool; (b) communicates that reproduction to the public by telecommunication for the purpose 30 of providing the information that has been located by the information location tool; (c) does not modify the reproduction, other than for technical reasons; (d) complies with any conditions relating to 35 the making or caching, or doing of any act similar to caching, of reproductions of the work or other subject-matter, or to the communication of the reproductions to the public by telecommunication, that were 40 specified in a manner consistent with industry practice by whoever made the work or other subject-matter available through the Internet
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Limitation
(3) If the provider receives a notice of claimed infringement, relating to a work or other subject-matter, that complies with subsec- 10 tion 41.25(2) after the work or other subjectmatter has been removed from the electronic location set out in the notice, then subsection (1) applies, with respect to reproductions made from that electronic location, only to infringe- 15 ments that occurred before the day that is 30 days — or the period that may be prescribed by regulation — after the day on which the provider receives the notice.
Exception
(4) Subsection (1) does not apply to the 20 provision of the information location tool if the provision of that tool constitutes an infringement of copyright under subsection 27(2.3).
Factors — scope of injunction
(4.1) If it grants an injunction as set out in subsection (1), the court shall, among any other 25 relevant factors, consider the following in establishing the terms of the injunction: (a) the harm likely to be suffered by the copyright owner if steps are not taken to prevent or restrain the infringement; and 30 (b) the burden imposed on the provider and on the operation of the information location tool, including (i) the aggregate effect of the injunction and any injunctions from other proceed- 35 ings, (ii) whether implementing the injunction would be technically feasible and effective in addressing the infringement, (iii) whether implementing the injunction 40 would interfere with the use of the information location tool for non-infringing acts, and (iv) the availability of less burdensome and comparably effective means of pre- 45 venting or restraining the infringement.
Copy
Limitation
(4.2) A court is not permitted to grant an injunction under section 39.1 against a provider who is the subject of an injunction set out in subsection (1).
Meaning of “information location tool”
(5) In this section, “information location 5 tool” means any tool that makes it possible to locate information that is available through the Internet or another digital network. 48. Section 42 of the Act is amended by adding the following after subsection (3): 10
Circumvention of technological protection measure
(3.1) Every person, except a person who is acting on behalf of a library, archive or museum or an educational institution, is guilty of an offence who knowingly and for commercial purposes contravenes section 41.1 and is liable 15 (a) on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years or to both; or (b) on summary conviction, to a fine not exceeding $25,000 or to imprisonment for a 20 term not exceeding six months or to both.
49. The Act is amended by adding the following after section 43: LIMITATION OR PRESCRIPTION PERIOD Limitation or prescription period for civil remedies
43.1 (1) Subject to subsection (2), a court may award a remedy for any act or omission 25 that has been done contrary to this Act only if (a) the proceedings for the act or omission giving rise to a remedy are commenced within three years after it occurred, in the case where the plaintiff knew, or could 30 reasonably have been expected to know, of the act or omission at the time it occurred; or (b) the proceedings for the act or omission giving rise to a remedy are commenced within three years after the time when the 35 plaintiff first knew of it, or could reasonably have been expected to know of it, in the case
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Restriction
(2) The court shall apply the limitation or prescription period set out in paragraph (1)(a) or 5 (b) only in respect of a party who pleads a limitation period.
1997, c. 24, s. 34(1)
50. Subsection 58(1) of the Act is replaced by the following:
Execution of instruments
58. (1) Any assignment of a copyright, or 10 any licence granting an interest in a copyright, may be executed, subscribed or acknowledged at any place in a treaty country, a Rome Convention country or a WPPT country by the assignor, licensor or secured or hypothecary 15 debtor, before any notary public, commissioner or other official, or the judge of any court, who is authorized by law to administer oaths or certify documents in that place and who also subscribes their signature and affixes to, or 20 impresses on, the assignment or licence their official seal or the seal of the court of which they are a judge.
1997, c. 24, s. 37(2)
51. Paragraphs 62(1)(a) and (b) of the Act are replaced by the following: 25 (a) for the purposes of paragraph 30.01(6)(d), respecting measures, which may vary according to circumstances specified in the regulations;
( b ) f o r t h e p u r p o s e s o f p a r a g r a p h 30 30.02(3)(d), respecting measures, which may vary according to circumstances specified in the regulations;
(c) prescribing the form of a notice of claimed infringement referred to in subsec- 35 tion 41.25(2) and prescribing information to be contained in it; (d) prescribing anything that by this Act is to be prescribed by regulation; and (e) generally for carrying out the purposes 40 and provisions of this Act. 1997, c. 24, s. 45; 2001, c. 34, s. 35(E)
52. Subsection 67.1(4) of the Act is replaced by the following:
62 Prohibition of enforcement
Copy (4) If a proposed tariff is not filed with respect to the work, performer’s performance or sound recording in question, no action may be commenced, without the written consent of the Minister, for 5 (a) the infringement of the rights, referred to in section 3, to perform a work in public or to communicate it to the public by telecommunication; (b) the infringement of the rights referred to 10 in paragraph 15(1.1)(d) or 18(1.1)(a); or (c) the recovery of royalties referred to in section 19.
1997, c. 24, s. 45
53. Subparagraph 68(2)(a)(i) of the Act is replaced by the following: 15 (i) the tariff applies in respect of performer’s performances and sound recordings only in the situations referred to in the provisions of section 20 other than subsections 20(3) and (4), 20
1997, c. 24, s. 45
54. Subsection 68.2(2) of the Act is replaced by the following:
Proceedings barred if royalties tendered or paid
(2) No proceedings may be brought against a person who has paid or offered to pay the royalties specified in an approved tariff for 25 (a) the infringement of the right to perform in public or the right to communicate to the public by telecommunication, referred to in section 3; (b) the infringement of the rights referred to 30 in paragraph 15(1.1)(d) or 18(1.1)(a); or (c) the recovery of royalties referred to in section 19.
1997, c. 24, s. 50
55. Subsection 71(1) of the Act is replaced by the following: 35
Filing of proposed tariffs
71. (1) Each collective society that carries on the business of collecting royalties referred to in subsection 29.7(2) or (3) or paragraph 31(2)(d) shall file with the Board a proposed tariff, but no other person may file such a tariff. 40
1997, c. 24, s. 50
56. (1) Subsection 76(2) of the Act is replaced by the following:
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Royalties that may be recovered
(2) An owner of copyright who does not authorize a collective society to collect, for that person’s benefit, royalties referred to in subsection 29.7(2) or (3) is, if such royalties are payable during a period when an approved tariff 5 that is applicable to that kind of work or other subject-matter is effective, entitled to be paid those royalties by the collective society that is designated by the Board, of its own motion or on application, subject to the same conditions as 10 those to which a person who has so authorized that collective society is subject.
1997, c. 24, s. 50
(2) Subparagraphs 76(4)(b)(i) and (ii) of the Act are repealed.
1997, c. 24, s. 50
57. Subsection 78(1) of the Act is replaced 15 by the following:
Board may determine compensation
78. (1) Subject to subsection (2), for the purposes of subsections 32.4(2), 32.5(2), 33(2), 33.1(2) and 33.2(2), the Board may, on application by any of the parties referred to in 20 one of those provisions, determine the amount of the compensation referred to in that provision that the Board considers reasonable, having regard to all the circumstances, including any judgment of a court in an action between the 25 parties for the enforcement of a right mentioned in subsection 32.4(3) or 32.5(3).
1997, c. 24, s. 50.
58. Section 92 of the Act is replaced by the following:
Review of Act
92. Five years after the day on which this 30 section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this 35 Act. TRANSITIONAL PROVISIONS
No revival of copyright in photograph
59. (1) The repeal of section 10 of the Copyright Act by section 6 does not have the effect of reviving copyright in any photograph in which, on the coming into force of 40 that section 6, copyright had expired.
Copy
Cases where corporations were deemed to be authors
(2) In any case in which, immediately before the coming into force of section 6, a corporation is deemed, by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of that section 6, 5 to be the author of a photograph in which copyright subsists at that time, the copyright in that photograph continues to subsist for the term determined in accordance with sections 6, 6.1, 6.2, 9, 11.1 or 12 of the 10 Copyright Act as if its author were the individual who would have been considered the author of the photograph apart from that subsection 10(2).
Cases where individuals were deemed to be authors
(3) In any case in which an individual is 15 deemed to be the author of a photograph, by virtue of subsection 10(2) of the Copyright Act as it read before the coming into force of section 6, the individual continues, after the coming into force of that section 6, to be the 20 author of that photograph for the purposes of the Copyright Act.
Engraving, photograph or portrait
60. Subsection 13(2) of the Copyright Act, as it read immediately before the coming into force of section 7, continues to apply with 25 respect to any engraving, photograph or portrait the plate or original of which was commissioned before the coming into force of that section 7.
No revival of copyright
61. Subsections 23(1) to (2) of the Copy- 30 right Act, as enacted by section 17, do not have the effect of reviving the copyright, or a right to remuneration, in any performer’s performance or sound recording in which the copyright or the right to remuneration had 35 expired on the coming into force of those subsections.
Limitation or prescription period
62. (1) Subsection 43.1(1) of the Copyright Act, as enacted by section 49, applies only to proceedings with respect to an act or omis- 40 sion that occurred after the coming into force of that section.
Former limitation or prescription period continued
(2) Subsection 41(1) of the Copyright Act, as it read immediately before the coming into force of section 47, applies to proceedings 45 with respect to an infringement that occurred before the coming into force of that section.
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COMING INTO FORCE Order in council
63. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 21 An Act respecting World Autism Awareness Day
ASSENTED TO 1st NOVEMBER, 2012 BILL S-206
SUMMARY This enactment designates the second day of April in each and every year as “World Autism Awareness Day”.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 21 An Act respecting World Autism Awareness Day [Assented to 1st November, 2012] Preamble
Whereas autism spectrum disorders affect a significant number of families in Canada; Whereas Canada has a health care system and social safety net to prevent illness and serve citizens; Whereas Canadian families affected by autism spectrum disorders have unequal access to services across the country; Whereas worldwide the number of diagnoses of autism spectrum disorders is growing; Whereas a greater awareness of the importance of early diagnosis and treatment for people with autism is required to engage more Canadians in helping their fellow citizens; Whereas early intervention in the treatment of autism spectrum disorders can have promising results and help people engage with and contribute to society; Whereas there is no known cause or cure for autism spectrum disorders; Whereas 192 United Nations representatives agreed that World Autism Awareness Day would draw the attention of people across the globe to this neurological disorder that is affecting an increasing number of families; Whereas in 2007 the United Nations General Assembly designated April 2, from 2008 on, as World Autism Awareness Day;
C. 21
World Autism A
Whereas Canada is a signatory to the United Nations Convention on the Rights of the Child and the United Nations Convention on the Rights of Persons with Disabilities, which maintain that children with disabilities should enjoy a full and decent life in conditions that ensure dignity, promote self-reliance and facilitate their active participation in the community, while also enjoying all human rights and fundamental freedoms on an equal basis with other children; And whereas Canada is a member of the United Nations and supports the work of this vital international organization;
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the World Autism Awareness Day Act. WORLD AUTISM AWARENESS DAY
World Autism Awareness Day
2. Throughout Canada, in each and every year, the second day of April shall be known as “World Autism Awareness Day”.
Published under authority of the Senate of Canada Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 31 A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures
ASSENTED TO 14th DECEMBER, 2012 BILL C-45
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures”.
SUMMARY Part 1 implements certain income tax measures and related measures proposed in the March 29, 2012 budget. Most notably, it (a) amends the rules relating to Registered Disability Savings Plans (RDSPs) by (i) replacing the 10-year repayment rule applying to withdrawals with a proportional repayment rule, (ii) allowing investment income earned in a Registered Education Savings Plan (RESP) to be transferred on a tax-free basis to the RESP beneficiary’s RDSP, (iii) extending the period that RDSPs of beneficiaries who cease to qualify for the Disability Tax Credit may remain open in certain circumstances, (iv) amending the rules relating to maximum and minimum withdrawals, and (v) amending certain RDSP administrative rules; (b) includes an employer’s contributions to a group sickness or accident insurance plan in an employee’s income in certain circumstances; (c) amends the rules applicable to retirement compensation arrangements; (d) amends the rules applicable to Employees Profit Sharing Plans; (e) expands the eligibility for the accelerated capital cost allowance for clean energy generation equipment to include a broader range of bioenergy equipment; (f) phases out the Corporate Mineral Exploration and Development Tax Credit; (g) phases out the Atlantic Investment Tax Credit for activities related to the oil and gas and mining sectors; (h) provides that qualified property for the purposes of the Atlantic Investment Tax Credit will include certain electricity generation equipment and clean energy generation equipment used primarily in an eligible activity; (i) amends the Scientific Research and Experimental Development (SR&ED) investment tax credit by
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
(i) reducing the general SR&ED investment tax credit rate from 20% to 15%, (ii) reducing the prescribed proxy amount, which taxpayers use to claim SR&ED overhead expenditures, from 65% to 55% of the salaries and wages of employees who are engaged in SR&ED activities, (iii) removing the profit element from arm’s length third-party contracts for the purpose of the calculation of SR&ED tax credits, and (iv) removing capital from the base of eligible expenditures for the purpose of the calculation of SR&ED tax incentives; (j) introduces rules to prevent the avoidance of corporate income tax through the use of partnerships to convert income gains into capital gains; (k) clarifies that transfer pricing secondary adjustments are treated as dividends for the purposes of withholding tax imposed under Part XIII of the Income Tax Act; (l) amends the thin capitalization rules by (i) reducing the debt-to-equity ratio from 2:1 to 1.5:1, (ii) extending the scope of the thin capitalization rules to debts of partnerships of which a Canadian-resident corporation is a member, (iii) treating disallowed interest expense under the thin capitalization rules as dividends for the purposes of withholding tax imposed under Part XIII of the Income Tax Act, and (iv) preventing double taxation in certain circumstances when a Canadian resident corporation borrows money from its controlled foreign affiliate; (m) imposes, in certain circumstances, withholding tax under Part XIII of the Income Tax Act when a foreign-based multinational corporation transfers a foreign affiliate to its Canadian subsidiary, while preserving the ability of the Canadian subsidiary to undertake expansion of its Canadian business; and (n) phases out the Overseas Employment Tax Credit.
Part 1 also implements other selected income tax measures. Most notably, it introduces tax rules to accommodate Pooled Registered Pension Plans and provides that income received from a retirement compensation arrangement is eligible for pension income splitting in certain circumstances. Part 2 amends the Excise Tax Act and the Jobs and Economic Growth Act to implement rules applicable to the financial services sector in respect of the goods and services tax and harmonized sales tax (GST/HST). They include rules that allow certain financial institutions to obtain pre-approval from the Minister of National Revenue of methods used to determine their liability in respect of the provincial component of the HST, that require certain financial institutions to have fiscal years that are calendar years, that require group registration of financial institutions in certain cases and that provide for changes to a rebate of the provincial component of the HST to certain financial institutions that render services to clients that are outside the HST provinces. This Part also confirms the authority under which certain GST/HST regulations relating to financial institutions are made.
Part 3 amends the Federal-Provincial Fiscal Arrangements Act to provide the legislative authority to share with provinces and territories taxes in respect of specified investment flow-through (SIFT) entities — trusts or partnerships — under section 122.1 and Part IX.1 of the Income Tax Act, consistent with the federal government’s proposal on the introduction of those taxes. It also provides the legislative authority to share with provinces and territories the tax on excess EPSP amounts imposed under Part XI.4 of the Income Tax Act, consistent with the measures proposed in the March 29, 2012 budget. It also allows the Minister of Finance to request from the Minister of National Revenue information that is necessary for the administration of the sharing of taxes with the provinces and territories.
Part 4 enacts and amends several Acts in order to implement various measures. Division 1 of Part 4 amends the Trust and Loan Companies Act, the Bank Act, the Insurance Companies Act and the Jobs and Economic Growth Act as a result of amendments introduced in the Jobs, Growth and Long-term Prosperity Act to allow certain public sector investment pools to directly invest in a federally regulated financial institution. Division 2 of Part 4 amends the Canada Shipping Act, 2001 to permit the incorporation by reference into regulations of all Canadian modifications to an international convention or industry standard that are also incorporated by reference into the regulations, by means of a mechanism similar to that used by many other maritime nations. It also provides for third parties acting on the Minister of Transport’s behalf to set fees for certain services that they provide in accordance with an agreement with that Minister.
Division 3 of Part 4 amends the Canada Deposit Insurance Corporation Act to, among other things, provide for a limited, automatic stay in respect of certain eligible financial contracts when a bridge institution is established. It also amends the Payment Clearing and Settlement Act to facilitate central clearing of standardized over-the-counter derivatives. Division 4 of Part 4 amends the Fisheries Act to amend the prohibition against obstructing the passage of fish and to provide that certain amounts are to be paid into the Environmental Damages Fund. It also amends the Jobs, Growth and Long-term Prosperity Act to amend the definition of Aboriginal fishery and another prohibition relating to the passage of fish. Finally, it provides transitional provisions relating to authorizations issued under the Fisheries Act before certain amendments to that Act come into force.
Division 5 of Part 4 enacts the Bridge To Strengthen Trade Act, which excludes the application of certain Acts to the construction of a bridge that spans the Detroit River and other works and to their initial operator. That Act also establishes ancillary measures. It also amends the International Bridges and Tunnels Act. Division 6 of Part 4 amends Schedule I to the Bretton Woods and Related Agreements Act to reflect changes made to the Articles of Agreement of the International Monetary Fund as a result of the 2010 Quota and Governance Reforms. The amendments pertain to the rules and regulations of the Fund’s Executive Board and complete the updating of that Act to reflect those reforms.
Division 7 of Part 4 amends the Canada Pension Plan to implement the results of the 2010-12 triennial review, most notably, to clarify that contributions for certain benefits must be made during the contributory period, to clarify how certain deductions are to be determined for the purpose of calculating average monthly pensionable earnings, to determine the minimum qualifying period for certain late applicants for a disability pension and to enhance the authority of the Review Tribunal and the Pension Appeals Board. It also amends the Department of Human Resources and Skills Development Act to enhance the authority of the Social Security Tribunal.
Division 8 of Part 4 amends the Indian Act to modify the voting and approval procedures in relation to proposed land designations. Division 9 of Part 4 amends the Judges Act to implement the Government of Canada’s response to the report of the fourth Judicial Compensation and Benefits Commission regarding salary and benefits for federally appointed judges. It also amends that Act to shorten the period in which the Government of Canada must respond to a report of the Commission. Division 10 of Part 4 amends the Canada Labour Code to (a) simplify the calculation of holiday pay; (b) set out the timelines for making certain complaints under Part III of that Act and the circumstances in which an inspector may suspend or reject such complaints; (c) set limits on the period that may be covered by payment orders; and (d) provide for a review mechanism for payment orders and notices of unfounded complaint. Division 11 of Part 4 amends the Merchant Seamen Compensation Act to transfer the powers and duties of the Merchant Seamen Compensation Board to the Minister of Labour and to repeal provisions that are related to the Board. It also makes consequential amendments to other Acts. Division 12 of Part 4 amends the Customs Act to strengthen and streamline procedures related to arrivals in Canada, to clarify the obligations of owners or operators of international transport installations to maintain port of entry facilities and to allow the Minister of Public Safety and Emergency Preparedness to require prescribed information about any person who is or is expected to be on board a conveyance. Division 13 of Part 4 amends the Hazardous Materials Information Review Act to transfer the powers and functions of the Hazardous Materials Information Review Commission to the Minister of Health and to repeal provisions of that Act that are related to the Commission. It also makes consequential amendments to other Acts. Division 14 of Part 4 amends the Agreement on Internal Trade Implementation Act to reflect changes made to Chapter 17 of the Agreement on Internal Trade. It provides primarily for the enforceability of orders to pay tariff costs and monetary penalties made under Chapter 17. It also repeals subsection 28(3) of the Crown Liability and Proceedings Act.
Division 15 of Part 4 amends the Employment Insurance Act to provide a temporary measure to refund a portion of employer premiums for small businesses. An employer whose premiums were $10,000 or less in 2011 will be refunded the increase in 2012 premiums over those paid in 2011, to a maximum of $1,000.
Division 16 of Part 4 amends the Immigration and Refugee Protection Act to provide for an electronic travel authorization and to provide that the User Fees Act does not apply to a fee for the provision of services in relation to an application for an electronic travel authorization. Division 17 of Part 4 amends the Canada Mortgage and Housing Corporation Act to remove the age limit for persons from outside the federal public administration being appointed or continuing as President or as a director of the Corporation. Division 18 of Part 4 amends the Navigable Waters Protection Act to limit that Act’s application to works in certain navigable waters that are set out in its schedule. It also amends that Act so that it can be deemed to apply to certain works in other navigable waters, with the approval of the Minister of Transport. In particular, it amends that Act to provide for an assessment process for certain works and to provide that works that are assessed as likely to substantially interfere with navigation require the Minister’s approval. It also amends that Act to provide for administrative monetary penalties and additional offences. Finally, it makes consequential and related amendments to other Acts. Division 19 of Part 4 amends the Canada Grain Act to (a) combine terminal elevators and transfer elevators into a single class of elevators called terminal elevators; (b) replace the requirement that the operator of a licensed terminal elevator receiving grain cause that grain to be officially weighed and officially inspected by a requirement that the operator either weigh and inspect that grain or cause that grain to be weighed and inspected by a third party; (c) provide for recourse if an operator does not weigh or inspect the grain, or cause it to be weighed or inspected; (d) repeal the grain appeal tribunals; (e) repeal the requirement for weigh-overs; and (f) provide the Canadian Grain Commission with the power to make regulations or orders with respect to weighing and inspecting grain and the security that is to be obtained and maintained by licensees. It also amends An Act to amend the Canada Grain Act and the Agriculture and Agri-Food Administrative Monetary Penalties Act and to Repeal the Grain Futures Act as well as other Acts, and includes transitional provisions. Division 20 of Part 4 amends the International Interests in Mobile Equipment (aircraft equipment) Act and other Acts to modify the manner in which certain international obligations are implemented. Division 21 of Part 4 makes technical amendments to the Canadian Environmental Assessment Act, 2012 and amends one of its transitional provisions to make that Act applicable to designated projects, as defined in that Act, for which an environmental assessment would have been required under the former Act. Division 22 of Part 4 provides for the temporary suspension of the Canada Employment Insurance Financing Board Act and the dissolution of the Canada Employment Insurance Financing Board. Consequently, it enacts an interim Employment Insurance premium rate-setting regime under the Employment Insurance Act and makes amendments to the Canada Employment Insurance Financing Board Act, the Department of Human Resources and Skills Development Act, the Jobs, Growth and Long-term Prosperity Act and Schedule III to the Financial Administration Act.
Division 23 of Part 4 amends the Canadian Forces Superannuation Act, the Public Service Superannuation Act and the Royal Canadian Mounted Police Superannuation Act and makes consequential amendments to other Acts.
The Canadian Forces Superannuation Act is amended to change the limitations that apply in respect of the contribution rates at which contributors are required to pay as a result of amendments to the Public Service Superannuation Act. The Public Service Superannuation Act is amended to provide that contributors pay no more than 50% of the current service cost of the pension plan. In addition, the pensionable age is raised from 60 to 65 in relation to persons who become contributors on or after January 1, 2013. The Royal Canadian Mounted Police Superannuation Act is amended to change the limitations that apply in respect of the contribution rates at which contributors are required to pay as a result of amendments to the Public Service Superannuation Act. Division 24 of Part 4 amends the Canada Revenue Agency Act to make section 112 of the Public Service Labour Relations Act applicable to the Canada Revenue Agency. That section makes entering into a collective agreement subject to the Governor in Council’s approval. The Division also amends the Canada Revenue Agency Act to require that the Agency have its negotiating mandate approved by the President of the Treasury Board and to require that it consult the President of the Treasury Board before determining certain other terms and conditions of employment for its employees.
TABLE OF PROVISIONS
A SECOND ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON MARCH 29, 2012 AND OTHER MEASURES SHORT TITLE Jobs and Growth Act, 2012
1. PART 1 AMENDMENTS TO THE INCOME TAX ACT AND RELATED REGULATIONS 2–73. PART 2 MEASURES IN RESPECT OF SALES TAX 74–96. PART 3 FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT 97–98. PART 4 VARIOUS MEASURES DIVISION 1 FINANCIAL INSTITUTIONS 99–155. DIVISION 2 SHIPPING 156–165. DIVISION 3 PRESERVING THE STABILITY AND STRENGTH OF CANADA’S FINANCIAL SECTOR 166–172.
i DIVISION 4 FISHERIES 173–178. DIVISION 5 BRIDGE TO STRENGTHEN TRADE ACT 179.
Enactment of Act
AN ACT RESPECTING A BRIDGE SPANNING THE DETROIT RIVER BETWEEN WINDSOR AND DETROIT AND OTHER WORKS SHORT TITLE 1.
Bridge To Strengthen Trade Act
2. Definitions
INTERPRETATION
CONSTRUCTION OF THE BRIDGE, PARKWAY AND RELATED WORKS 3.
Exemption from certain Acts and regulations
4. Exemption from Canadian Environmental Assessment Act, 2012
5. Responsible authority
6. Other exemptions
7. Construction of bridge
8. Impact on fish habitat
9. Impact on listed wildlife species, etc.
10. Adverse environmental effects
11. Port Authorities Operations Regulations
12. Plan amendment
13. Implementation of and compliance with plans OPERATION OF THE BRIDGE AND RELATED WORKS
14. Designation of initial operator GENERAL PROVISIONS
15. Authorization — persons
16. Definition of “corporation”
17. Authorization to construct and operate
18. Deeming — establishment of corporation
19. Not agent of Her Majesty
ii 20.
Public agency
21. Public body corporate and compact entity
22. Agreements INFORMATION GATHERING
23. Production of documents
24. Offence
25. Offence committed by employee or agent or mandatary of accused
26. Due diligence defence
27. Limitation period
28. Regulations
OFFENCES
REGULATORY POWERS 180–184. DIVISION 6 BRETTON WOODS AND RELATED AGREEMENTS ACT 185–192. DIVISION 7 CANADA PENSION PLAN 193–205. DIVISION 8 INDIAN ACT 206–209. DIVISION 9 JUDGES ACT 210–218. DIVISION 10 CANADA LABOUR CODE 219–232. DIVISION 11 MERCHANT SEAMEN COMPENSATION ACT 233–263.
iv DIVISION 12 CUSTOMS ACT 264–268. DIVISION 13 HAZARDOUS MATERIALS INFORMATION REVIEW ACT 269–298. DIVISION 14 AGREEMENT ON INTERNAL TRADE IMPLEMENTATION ACT 299–306. DIVISION 15 EMPLOYMENT INSURANCE ACT 307. DIVISION 16 IMMIGRATION AND REFUGEE PROTECTION ACT 308–314. DIVISION 17 CANADA MORTGAGE AND HOUSING CORPORATION ACT 315. DIVISION 18 NAVIGABLE WATERS PROTECTION ACT 316–350. DIVISION 19 CANADA GRAIN ACT 351–410. DIVISION 20 INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (AIRCRAFT EQUIPMENT) ACT 411–424.
v DIVISION 21 CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012 425–432. DIVISION 22 CANADA EMPLOYMENT INSURANCE FINANCING BOARD 433–463. DIVISION 23 PUBLIC SECTOR PENSIONS 464–514. DIVISION 24 CANADA REVENUE AGENCY ACT 515–516. SCHEDULE 1 SCHEDULE 2
60-61 ELIZABETH II —————— CHAPTER 31 A second Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures
[Assented to 14th December, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Jobs and Growth Act, 2012. PART 1 AMENDMENTS TO THE INCOME TAX ACT AND RELATED REGULATIONS
R.S., c. 1 (5th Supp.)
INCOME TAX ACT 2. (1) Subparagraph 6(1)(a)(i) of the Income Tax Act is replaced by the following: (i) derived from the contributions of the taxpayer’s employer to or under a deferred profit sharing plan, an employee life and health trust, a group sickness or accident insurance plan, a group term life insurance policy, a pooled registered pension plan, a private health services plan, a registered pension plan or a supplementary unemployment benefit plan,
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(2) Subsection 6(1) of the Act is amended by adding the following after paragraph (e): Group sickness or accident insurance plans
(e.1) the total of (i) all amounts (or the portions of those amounts) contributed by the taxpayer’s employer after March 28, 2012 and before 2013 that are attributable to the taxpayer’s coverage after 2012 under a group sickness or accident insurance plan, except to the extent that the contributions (or portions of those contributions) are attributable to benefits under the plan that, if received by the taxpayer, would be included in the taxpayer’s income under paragraph (f) in the year the benefits are received if that paragraph were read without regard to its subparagraph (v), and (ii) all amounts contributed in 2013 in respect of the taxpayer by the taxpayer’s employer to a group sickness or accident insurance plan, except to the extent that the contributions are attributable to benefits under the plan that, if received by the taxpayer, would be included in the taxpayer’s income under paragraph (f) in the year the benefits are received if that paragraph were read without regard to its subparagraph (v); (3) Paragraph 6(1)(e.1) of the Act, as enacted by subsection (2), is replaced by the following:
Group sickness or accident insurance plans
(e.1) the total of all amounts contributed in the year in respect of the taxpayer by the taxpayer’s employer to a group sickness or accident insurance plan, except to the extent that the contributions are attributable to benefits under the plan that, if received by the taxpayer, would be included in the taxpayer’s income under paragraph (f) in the year the benefits are received if that paragraph were read without regard to its subparagraph (v); (4) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force.
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(5) Subsection (2) applies to the 2013 taxation year. (6) Subsection (3) applies to the 2014 and subsequent taxation years. 3. (1) Subsection 8(1) of the Act is amended by adding the following after paragraph (o.1): Excess EPSP amounts
(o.2) an amount that is an excess EPSP amount (as defined in subsection 207.8(1)) of the taxpayer for the year, other than any portion of the excess EPSP amount for which the taxpayer’s tax for the year under subsection 207.8(2) is waived or cancelled; (2) Subsection (1) applies to the 2012 and subsequent taxation years. 4. (1) Subsection 12(1) of the Act is amended by adding the following after paragraph (l):
Partnership — interest deduction add back
(l.1) the total of all amounts, each of which is the amount, if any, determined in respect of a partnership by the formula A × B/C – D where A is the total of all amounts each of which is an amount of interest that is (i) deductible by the partnership, and (ii) paid by the partnership in, or payable by the partnership in respect of, the taxation year of the taxpayer (depending on the method regularly followed by the taxpayer in computing the taxpayer’s income) on a debt amount included in the taxpayer’s outstanding debts to specified nonresidents (as defined in subsection 18(5)), B is the amount determined under paragraph 18(4)(a) in respect of the taxpayer for the year, C is the amount determined under paragraph 18(4)(b) in respect of the taxpayer for the year, and
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D is the total of all amounts each of which is an amount included under subsection 91(1) in computing the income of the taxpayer for the year or a subsequent taxation year, or of the partnership for a fiscal period, that may reasonably be considered to be in respect of interest described in A;
(2) Subsection (1) applies to taxation years that begin after March 28, 2012. 5. (1) Subsection 15(2) of the French version of the Act is replaced by the following: Dette d’un actionnaire
(2) La personne ou la société de personnes — actionnaire d’une société donnée, personne ou société de personnes rattachée à un tel actionnaire ou associé d’une société de personnes, ou bénéficiaire d’une fiducie, qui est un tel actionnaire — qui, au cours d’une année d’imposition, obtient un prêt ou devient la débitrice de la société donnée, d’une autre société liée à celle-ci ou d’une société de personnes dont la société donnée ou une société liée à celle-ci est un associé est tenue d’inclure le montant du prêt ou de la dette dans le calcul de son revenu pour l’année. Le présent paragraphe ne s’applique pas aux sociétés résidant au Canada ni aux sociétés de personnes dont chacun des associés est une société résidant au Canada. (2) The portion of subsection 15(2) of the Act after paragraph (c) is replaced by the following: and the person or partnership has in a taxation year received a loan from or become indebted to (otherwise than by way of a pertinent loan or indebtedness) the particular corporation, any other corporation related to the particular corporation or a partnership of which the particular corporation or a corporation related to the particular corporation is a member, the
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amount of the loan or indebtedness is included in computing the income for the year of the person or partnership.
(3) Section 15 of the Act is amended by adding the following after subsection (2.1): Pertinent loan or indebtedness
(2.11) For the purposes of subsection (2) and subject to subsection 17.1(3), “pertinent loan or indebtedness” means a loan received, or an indebtedness incurred, at any time, by a nonresident corporation (in this subsection referred to as the “subject corporation”), or by a partnership of which the subject corporation is, at that time, a member, that is an amount owing to a corporation resident in Canada (in this subsection and subsections (2.12) and (2.14) referred to as the “CRIC”) or to a qualifying Canadian partnership in respect of the CRIC and in respect of which amount owing all of the following apply: (a) subsection (2) would, in the absence of this subsection, apply to the amount owing; (b) the amount becomes owing after March 28, 2012; (c) at that time, the CRIC is controlled by a non-resident corporation that (i) is the subject corporation, or (ii) does not deal at arm’s length with the subject corporation; and (d) either (i) in the case of an amount owing to the CRIC, the CRIC and a non-resident corporation that controls the CRIC jointly elect in writing under this subparagraph in respect of the amount owing and file the election with the Minister on or before the filing-due date of the CRIC for the taxation year that includes that time, or
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(ii) in the case of an amount owing to the qualifying Canadian partnership, all the members of the qualifying Canadian partnership and a non-resident corporation that controls the CRIC jointly elect in writing under this subparagraph in respect of the amount owing and file the election with the Minister on or before the filing-due date of the CRIC for its taxation year in which ends the fiscal period of the qualifying Canadian partnership that includes that time.
Late-filed elections
(2.12) Where an election referred to in paragraph (2.11)(d) was not made on or before the day on or before which the election was required by that paragraph to be made, the election is deemed to have been made on that day if the election is made on or before the day that is three years after that day and the penalty in respect of the election is paid by the CRIC when the election is made.
Penalty for latefiled election
(2.13) For the purposes of subsection (2.12), the penalty in respect of an election referred to in that subsection is the amount equal to the product obtained by multiplying $100 by the number of months each of which is a month all or part of which is during the period commencing with the day on or before which the election is required by paragraph (2.11)(d) to be made and ending on the day the election is made.
Partnerships
(2.14) For the purposes of this subsection, subsection (2.11) and section 17.1, (a) a “qualifying Canadian partnership”, at any time in respect of a CRIC, means a partnership each member of which is, at that time, the CRIC or another corporation resident in Canada to which the CRIC is, at that time, related; and
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Emploi et croi (b) a person or partnership that is (or is deemed by this paragraph to be) a member of a particular partnership that is a member of another partnership is deemed to be a member of the other partnership.
Mergers
(2.15) For the purposes of subsections (2.11) and (2.14), (a) if there has been an amalgamation to which subsection 87(1) applies, the new corporation referred to in that subsection is deemed to be the same corporation as, and a continuation of, each predecessor corporation referred to in that subsection; and (b) if there has been a winding-up to which subsection 88(1) applies, the parent referred to in that subsection is deemed to be the same corporation as, and a continuation of, the subsidiary referred to in that subsection. (4) Subsection (1) applies to loans made and indebtedness arising in the 1990 and subsequent taxation years. (5) Subsection (2) and subsections 15(2.11) to (2.14) of the Act, as enacted by subsection (3), apply to loans received and indebtedness incurred after March 28, 2012. However, any election referred to in paragraph 15(2.11)(d) of the Act, as enacted by subsection (3), that would otherwise be required to be filed with the Minister of National Revenue on or before the day that is 120 days after the day on which this Act receives royal assent is deemed to have been filed with the Minister on a timely basis if it is filed with the Minister on or before the day that is 365 days after the day on which this Act receives royal assent. (6) Subsection 15(2.15) of the Act, as enacted by subsection (3), applies to amalgamations that occur, and windings-up that begin, after March 28, 2012. 6. (1) The Act is amended by adding the following after section 17:
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Deemed interest income — sections 15 and 212.3
17.1 (1) Subject to subsection (2), if — at any time in a taxation year of a corporation resident in Canada (in this section referred to as the “CRIC”) or in a fiscal period of a qualifying Canadian partnership in respect of the CRIC — a non-resident corporation, or a partnership of which the non-resident corporation is a member, owes an amount to the CRIC or the qualifying Canadian partnership and the amount owing is a pertinent loan or indebtedness (as defined in subsection 15(2.11) or 212.3(11)),
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(a) section 17 does not apply in respect of the amount owing; and (b) the amount, if any, determined by the following formula is to be included in computing the income of the CRIC for the year or of the qualifying Canadian partnership for the fiscal period, as the case may be: A–B where A is the amount that is the greater of (i) the amount of interest that would be included in computing the income of the CRIC for the year or of the qualifying Canadian partnership for the fiscal period, as the case may be, in respect of the amount owing for the particular period in the year, or the fiscal period, during which the amount owing was a pertinent loan or indebtedness if that interest were computed at the prescribed rate for the particular period, and (ii) the total of all amounts of interest payable in respect of the period in the year, or the fiscal period, during which the amount owing was a pertinent loan or indebtedness, by the CRIC, the qualifying Canadian partnership, a person resident in Canada with which the CRIC did not, at the time the amount owing arose, deal at arm’s length or a partnership of which the CRIC or the person is a member, in respect of a debt obligation — entered into as part of a series of transactions or events that includes the transaction by
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Emploi et croi which the amount owing arose — to the extent that the proceeds of the debt obligation can reasonably be considered to have directly or indirectly funded, in whole or in part, the amount owing, and B is an amount included in computing the income of the CRIC for the year or of the qualifying Canadian partnership for the fiscal period, as the case may be, as, on account of, in lieu of or in satisfaction of, interest in respect of the amount owing for the period in the year, or the fiscal period, during which the amount owing was a pertinent loan or indebtedness.
Acquisition of control
(2) If at any time a parent referred to in section 212.3 acquires control of a CRIC and the CRIC was not controlled by a non-resident corporation immediately before that time, no amount is to be included under subsection (1) in computing the income of the CRIC in respect of a pertinent loan or indebtedness (as defined in subsection 212.3(11)) for the period that begins at that time and ends on the day that is 180 days after that time.
Tax treaties
(3) A particular loan or indebtedness that would, in the absence of this subsection, be a pertinent loan or indebtedness is deemed not to be a pertinent loan or indebtedness if, because of a provision of a tax treaty, the amount included in computing the income of the CRIC for any taxation year or of the qualifying Canadian partnership for any fiscal period, as the case may be, in respect of the particular loan or indebtedness is less than it would be if no tax treaty applied. (2) Subsection (1) applies to taxation years and fiscal periods that end after March 28, 2012. However, in respect of acquisitions of control of a corporation resident in Canada
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that occur before the day on which the ways and means motion to implement this subsection is tabled in the House of Commons, subsection 17.1(2) of the Act, as enacted by subsection (1), is to be read as follows:
(2) If at any time a parent referred to in section 212.3 acquires control of a CRIC and the CRIC was not controlled by a non-resident corporation immediately before that time, no amount is to be included under subsection (1) in computing the income of the CRIC in respect of a pertinent loan or indebtedness (as defined in subsection 212.3(11)) for the period that begins on March 29, 2012 and ends on the day that is 180 days after the day on which the ways and means motion to implement this subsection is tabled in the House of Commons. 7. (1) Subparagraph 18(1)(k)(iii) of the Act is replaced by the following: (iii) a pooled registered pension plan or registered pension plan; (2) The portion of subsection 18(4) of the Act before paragraph (a) is replaced by the following: Limitation — deduction of interest by certain corporations
(4) Notwithstanding any other provision of this Act (other than subsection (8)), in computing the income for a taxation year of a corporation resident in Canada from a business or property, no deduction shall be made in respect of that proportion of any amount otherwise deductible in computing its income for the year in respect of interest paid or payable by it on outstanding debts to specified nonresidents that (3) The po rtion of sub parag raph 18(4)(a)(ii) of the Act before clause (A) is replaced by the following: (ii) 1.5 times the total of (4) Clause 18(4)(a)(ii)(B) of the Act is replaced by the following:
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Emploi et croi (B) the average of all amounts each of which is the corporation’s contributed surplus (other than any portion of that contributed surplus that arose in connection with an investment, as defined in subsection 212.3(10), to which subsection 212.3(2) applies) at the beginning of a calendar month that ends in the year, to the extent that it was contributed by a specified non-resident shareholder of the corporation, and (5) The portion of subsection 18(5) of the Act before the definition “outstanding debts to specified non-residents” is replaced by the following:
Definitions
(5) Notwithstanding any other provision of this Act (other than subsection (5.1)), in this subsection and subsections (4) to (7), (6) Subsection 18(5) of the Act is amended by adding the following in alphabetical order:
“specified proportion” « proportion déterminée »
“specified proportion”, of a member of a partnership for a fiscal period of the partnership, means the proportion that the member’s share of the total income or loss of the partnership for the partnership’s fiscal period is of the partnership’s total income or loss for that period and, for the purposes of this definition, where that income or loss for a period is nil, that proportion shall be computed as if the partnership had income for that period in the amount of $1,000,000; (7) Section 18 of the Act is amended by adding the following after subsection (6):
Partnership debts
(7) For the purposes of this subsection, paragraph (4)(a), subsections (5) to (6) and paragraph 12(1)(l.1), each member of a partnership at any time is deemed at that time (a) to owe the portion (in this subsection and paragraph 12(1)(l.1) referred to as the “debt amount”) of each debt or other obligation to pay an amount of the partnership that is equal to
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(i) the member’s specified proportion for the last fiscal period, if any, of the partnership ending (A) at or before the end of the taxation year referred to in subsection (4), and (B) at a time when the member is a member of the partnership, and (ii) if the member does not have a specified proportion described in subparagraph (i), the proportion that (A) the fair market value of the member’s interest in the partnership at that time is of (B) the fair market value of all interests in the partnership at that time; (b) to owe the debt amount to the person to whom the partnership owes the debt or other obligation to pay an amount; and (c) to have paid interest on the debt amount that is deductible in computing the member’s income to the extent that an amount in respect of interest paid or payable on the debt amount by the partnership is deductible in computing the partnership’s income.
Exception — foreign accrual property income
(8) An amount in respect of interest paid or payable to a controlled foreign affiliate of a corporation resident in Canada that would otherwise not be deductible by the corporation for a taxation year because of subsection (4) may be deducted to the extent that an amount included under subsection 91(1) in computing the corporation’s income for the year or a subsequent year can reasonably be considered to be in respect of the interest. (8) The portion of paragraph 18(11)(c) of the Act before subparagraph (i) is replaced by the following:
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Emploi et croi (c) making a contribution to a deferred profit sharing plan, a pooled registered pension plan or a registered pension plan, other than (9) Subsections (1) and (8) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. (10) Subsection (2) applies to taxation years that end after March 28, 2012. (11) Subsection (3) applies to taxation years that begin after 2012. (12) Subsection (4) is deemed to have come into force on March 29, 2012. (13) Subsections (5) and (6) and subsection 18(7) of the Act, as enacted by subsection (7), apply to taxation years that begin after March 28, 2012. (14) Subsection 18(8) of the Act, as enacted by subsection (7), applies to taxation years that end after 2004. 8. (1) Paragraph 20(1)(q) of the Act is replaced by the following:
Employer’s contributions to RPP or PRPP
(q) such amount in respect of employer contributions to registered pension plans or pooled registered pension plans as is permitted under subsection 147.2(1) or 147.5(10); (2) Paragraph 20(2.2)(a) of the Act is replaced by the following: (a) that is or is issued pursuant to a pooled registered pension plan, a registered pension plan, a registered retirement savings plan, an income-averaging annuity contract or a deferred profit sharing plan;
(3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force.
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9. (1) Subparagraph 37(1)(a)(i) of the Act is replaced by the following: (i) on scientific research and experimental development related to a business of the taxpayer, carried on in Canada and directly undertaken by the taxpayer, (i.01) on scientific research and experimental development related to a business of the taxpayer, carried on in Canada and directly undertaken on behalf of the taxpayer, (2) Paragraph 37(1)(b) of the Act is repealed. (3) Paragraph 37(1)(d) of the Act is replaced by the following: (d) the total of all amounts each of which is the amount of any government assistance or non-government assistance (as defined in subsection 127(9)) in respect of an expenditure described in paragraph (a) or (b), as paragraph (a) or (b), as the case may be, read in its application in respect of the expenditure, that at the taxpayer’s filing-due date for the year the taxpayer has received, is entitled to receive or can reasonably be expected to receive, (4) Subsection 37(6) of the Act is replaced by the following: Expenditures of a capital nature
(6) For the purposes of section 13, an amount claimed under subsection (1) that may reasonably be considered to be in respect of a property described in paragraph (1)(b), as that paragraph read in its application in respect of the property, is deemed to be an amount allowed to the taxpayer in respect of the property under regulations made under paragraph 20(1)(a), and for that purpose the property is deemed to be of a separate prescribed class. (5) Clause 37(6.1)(a)(i)(B) of the Act is replaced by the following: (B) the lesser of the amounts determined immediately before that time in respect of the corporation under subparagraphs (1)(b)(i) and (ii), as those subparagraphs read on March 29, 2012,
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Emploi et croi in respect of expenditures made, and property acquired, by the corporation before 2014, or (6) Clause 37(8)(a)(ii)(A) of the Act is amended by adding “or” at the end of subclause (I), by replacing “or” with “and” at the end of subclause (II) and by repealing subclause (III). (7) Subclause 37(8)(a)(ii)(B)(I) of the Act is repealed. (8) Subclause 37(8)(a)(ii)(B)(II) of the Act is replaced by the following: (II) an expenditure of a current nature in respect of the prosecution of scientific research and experimental development in Canada directly undertaken on behalf of the taxpayer, (9) Subclause 37(8)(a)(ii)(B)(III) of the Act is repealed. (10) Clause 37(8)(a)(ii)(B) of the Act is amended by adding “or” at the end of subclause (IV), by striking out “or” at the end of subclause (V) and by repealing subclause (VI). (11) Paragraph 37(8)(d) of the Act is replaced by the following: (d) references to expenditures of a current nature include any expenditure made by a taxpayer other than an expenditure made by the taxpayer for (i) the acquisition from a person or partnership of a property that is a capital property of the taxpayer, or (ii) the use of, or the right to use, property that would be capital property of the taxpayer if it were owned by the taxpayer. (12) Section 37 of the Act is amended by adding the following after subsection (13):
Look-through rule
(14) For the purposes of subparagraphs (1)(a)(i.01) to (iii), the amount of a particular expenditure made by a taxpayer shall be reduced by the amount of any related expenditure of the person or partnership to whom the
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particular expenditure is made that is not an expenditure of a current nature of the person or partnership. Reporting of certain payments
(15) If an expenditure is required to be reduced because of subsection (14), the person or the partnership referred to in that subsection is required to inform the taxpayer in writing of the amount of the reduction without delay if requested by the taxpayer and in any other case no later than 90 days after the end of the calendar year in which the expenditure was made. (13) Subsection (1) applies in respect of expenditures made after 2012. (14) Subsections (2) and (6) to (12) apply in respect of expenditures made after 2013 and expenditures that subsection 37(1.2) of the Act deems not to have been made before 2014. (15) Subsections (3) to (5) come into force on January 1, 2014. 10. (1) Paragraph 53(2)(c) of the Act is amended by striking out “and” at the end of subparagraph (xi), by adding “and” at the end of subparagraph (xii) and by adding the following after subparagraph (xii): (xiii) the amount of any reduction (within the meaning of paragraph 247(13)(a)) of the amount of a dividend deemed to have been received by the taxpayer in respect of a transaction (as defined in subsection 247(1)) or series of transactions in which the partnership was a participant; (2) Subsection (1) is deemed to have come into force on March 29, 2012. 11. (1) Subsection 56(1) of the Act is amended by striking out “and” at the end of paragraph (z.1), by adding “and” at the end of paragraph (z.2) and by adding the following after paragraph (z.2):
Pooled registered pension plan
(z.3) any amount required by section 147.5 to be included in computing the taxpayer’s income for the year.
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Emploi et croi (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 12. (1) Subparagraph 60(l)(v) of the Act is amended by adding the following after clause (A): (A.1) the amount included in computing the taxpayer’s income for the year as a payment (other than a payment that is part of a series of periodic payments) received by the taxpayer out of or under a pooled registered pension plan as a consequence of the death of an individual who was, immediately before the death, a spouse or common-law partner of the taxpayer, (2) Clause 60(l)(v)(B.01) of the Act is replaced by the following: (B.01) the amount included in computing the taxpayer’s income for the year as a payment (other than a payment that is part of a series of periodic payments or that relates to an actuarial surplus) received by the taxpayer out of or under a pooled registered pension plan, a registered pension plan or a specified pension plan as a consequence of the death of an individual of whom the taxpayer was a child or grandchild, if the taxpayer was, immediately before the death, financially dependent on the individual for support because of mental or physical infirmity, (3) Sub-subclause 60(l)(v)(B.1)(II)1 of the Act is replaced by the following: 1. a payment (other than a payment that is part of a series of periodic payments or that relates to an actuarial surplus) received by the taxpayer out of or under a pooled registered pension plan, a registered pension plan or a specified pension plan,
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(4) Subsections (1) to (3) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 13. (1) The definition “eligible individual” in subsection 60.02(1) of the Act is replaced by the following: “eligible individual” « particulier admissible »
“eligible individual” means a child or grandchild of a deceased annuitant under a registered retirement savings plan or a registered retirement income fund, or of a deceased member of a pooled registered pension plan, a registered pension plan or a specified pension plan, who was financially dependent on the deceased for support, at the time of the deceased’s death, by reason of mental or physical infirmity. (2) Paragraph (c) of the definition “eligible proceeds” in subsection 60.02(1) of the Act is replaced by the following: (c) a payment (other than a payment that is part of a series of periodic payments or that relates to an actuarial surplus) out of or under a pooled registered pension plan, a registered pension plan or a specified pension plan. (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 14. (1) The definition “eligible pension income” in subsection 60.03(1) of the Act is replaced by the following:
“eligible pension income” « revenu de pension déterminé »
“eligible pension income”, of an individual for a taxation year, means the total of (a) the eligible pension income (as defined in subsection 118(7)) of the individual for the year, and (b) if the individual has attained the age of 65 years before the end of the year, the lesser of (i) the total of all amounts each of which is a payment made in the year to the individual
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Emploi et croi (A) out of or under a retirement compensation arrangement that provides benefits that supplement the benefits provided under a registered pension plan (other than an individual pension plan for the purposes of Part LXXXIII of the Income Tax Regulations), and (B) in respect of a life annuity that is attributable to periods of employment for which benefits are also provided to the individual under the registered pension plan, and (ii) the amount, if any, by which the defined benefit limit (as defined in subsection 8500(1) of the Income Tax Regulations) for the year multiplied by 35 exceeds the amount determined under paragraph (a). (2) Subsection (1) applies to the 2013 and subsequent taxation years. 15. (1) Paragraph 75(3)(a) of the Act is replaced by the following: (a) by a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a pooled registered pension plan, a registered disability savings plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan, a retirement compensation arrangement or a TFSA;
(2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 16. (1) Paragraphs 84(1)(c.1) and (c.2) of the Act are replaced by the following: (c.1) if the corporation is an insurance corporation, any action by which it converts contributed surplus related to its insurance business (other than any portion of that contributed surplus that arose in connection with an investment, as defined in subsection
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212.3(10), to which subsection 212.3(2) applies) into paid-up capital in respect of the shares of its capital stock, (c.2) if the corporation is a bank, any action by which it converts any of its contributed surplus that arose on the issuance of shares of its capital stock (other than any portion of that contributed surplus that arose in connection with an investment, as defined in subsection 212.3(10), to which subsection 212.3(2) applies) into paid-up capital in respect of shares of its capital stock, or (2) The portion of paragraph 84(1)(c.3) of the Act before subparagraph (i) is replaced by the following: (c.3) if the corporation is neither an insurance corporation nor a bank, any action by which it converts into paid-up capital in respect of a class of shares of its capital stock any of its contributed surplus that arose after March 31, 1977 (other than any portion of that contributed surplus that arose in connection with an investment, as defined in subsection 212.3(10), to which subsection 212.3(2) applies) (3) Subsections (1) and (2) are deemed to have come into force on March 29, 2012. 17. (1) Paragraph 87(2)(g.1) of the Act is replaced by the following: Continuation
(g.1) for the purposes of sections 12.4 and 26 and subsection 97(3), the new corporation is deemed to be the same corporation as, and a continuation of, each predecessor corporation; (2) Subsection (1) applies in respect of amalgamations that occur, and windings-up that begin, after March 28, 2012. 18. (1) Paragraph 88(1)(d) of the Act is amended by striking out “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (ii.1) for the purpose of calculating the amount in subparagraph (ii) in respect of an interest of the subsidiary in a partnerEmploi et croi
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ship, the fair market value of the interest at the time the parent last acquired control of the subsidiary is deemed to be the amount determined by the formula A–B where A is the fair market value (determined without reference to this subparagraph) of the interest at that time, and B is the portion of the amount by which the fair market value (determined without reference to this subparagraph) of the interest at that time exceeds its cost amount at that time as may reasonably be regarded as being attributable at that time to the total of all amounts each of which is (A) in the case of a depreciable property held directly by the partnership or held indirectly by the partnership through one or more other partnerships, the amount by which the fair market value (determined without reference to liabilities) of the property exceeds its cost amount, (B) in the case of a Canadian resource property or a foreign resource property held directly by the partnership or held indirectly by the partnership through one or more other partnerships, the fair market value (determined without reference to liabilities) of the property, or (C) in the case of a property that is not a capital property, a Canadian resource property or a foreign resource property and that is held directly by the partnership or held indirectly through one or more other partnerships, the amount by which the fair market value (determined without reference to liabilities) of the property exceeds its cost amount, and
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(2) Subsection 88(1) of the Act is amended by adding the following after paragraph (d.3): (e) for the purposes of the description of A in subparagraph (d)(ii.1), the fair market value of an interest in a particular partnership held by the subsidiary at the time the parent last acquired control of the subsidiary is deemed not to include the amount that is the total of each amount that is the fair market value of a property that would otherwise be included in the fair market value of the interest, if (i) as part of the transaction or event or series of transactions or events in which control of the subsidiary is last acquired by the parent and on or before the acquisition of control, (A) the subsidiary disposes of the property to the particular partnership or any other partnership and subsection 97(2) applies to the disposition, or (B) where the property is an interest in a partnership, the subsidiary acquires the interest in the particular partnership or any other partnership from a person or partnership with whom the subsidiary does not deal at arm’s length (otherwise than because of a right referred to in paragraph 251(5)(b)) and section 85 applies in respect of the acquisition of the interest, and (ii) at the time of the acquisition of control, the particular partnership holds directly, or indirectly through one or more other partnerships, property described in clauses (A) to (C) of the description of B in subparagraph (d)(ii.1);
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(3) Subsection (1) applies to amalgamations that occur and windings-up that begin after March 28, 2012, other than — if a taxable Canadian corporation (in this subsection referred to as the “parent corporation”) has acquired control of another taxable Canadian corporation (in this subsection referred to as the “subsidiary corporation”) — an amalgamation of the parent corporation and the subsidiary corporation that occurs before 2013, or a winding-up of the subsidiary corporation into the parent corporation that begins before 2013, if (a) the parent corporation acquired control of the subsidiary corporation before March 29, 2012 or was obligated as evidenced in writing before March 29, 2012 to acquire control of the subsidiary (except that the parent corporation shall not be considered to be obligated if, as a result of amendments to the Act, it may be excused from the obligation to acquire control); and (b) the parent corporation had the intention as evidenced in writing before March 29, 2012 to amalgamate with, or wind up, the subsidiary corporation. (4) Subsection (2) applies to dispositions made after August 13, 2012 other than a disposition made before 2013 pursuant to an obligation under a written agreement entered into before August 14, 2012 by parties that deal with each other at arm’s length. The parties shall not be considered to be obligated if any party may be excused from the obligation as a result of amendments to the Act. 19. (1) Subparagraph (b)(iii) of the definition “paid-up capital” in subsection 89(1) of the Act is replaced by the following: (iii) where the particular time is after March 31, 1977, an amount equal to the paid-up capital in respect of that class of
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shares at the particular time, computed without reference to the provisions of this Act except subsections 51(3) and 66.3(2) and (4), sections 84.1 and 84.2, subsections 85(2.1), 85.1(2.1) and (8), 86(2.1), 87(3) and (9), paragraph 128.1(1)(c.3), subsections 128.1(2) and (3), 138(11.7), 139.1(6) and (7), 192(4.1) and 194(4.1) and sections 212.1 and 212.3, (2) Subsection (1) is deemed to have come into force on March 29, 2012. 20. (1) The portion of subsection 93.1(1) of the Act before paragraph (a) is replaced by the following: Shares held by partnership
93.1 (1) For the purposes of determining whether a non-resident corporation is a foreign affiliate of a corporation resident in Canada for the purposes of subsections (2) and 20(12), sections 93 and 113, paragraphs 128.1(1)(c.3) and (d), section 212.3 and subsection 219.1(2), (and any regulations made for the purposes of those provisions), section 95 (to the extent that it is applied for the purposes of those provisions) and section 126, if, based on the assumptions contained in paragraph 96(1)(c), at any time shares of a class of the capital stock of a corporation are owned by a partnership or are deemed under this subsection to be owned by a partnership, then each member of the partnership is deemed to own at that time the number of those shares that is equal to the proportion of all those shares that (2) Subsection (1) is deemed to have come into force on March 29, 2012. 21. (1) The portion of subsection 97(2) of the Act before paragraph (a) is replaced by the following:
Rules if election by partners
(2) Notwithstanding any other provision of this Act other than subsections (3) and 13(21.2), where a taxpayer at any time disposes of any property that is a capital property, Canadian resource property, foreign resource property, eligible capital property or inventory of the taxpayer to a partnership that immediately after that time is a Canadian partnership of which the taxpayer is a member, if the taxpayer and all the
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other members of the partnership jointly so elect in prescribed form within the time referred to in subsection 96(4),
(2) Section 97 of the Act is amended by adding the following after subsection (2): Election not available — section 88
(3) Subsection (2) does not apply to a disposition of a property by a taxpayer to a particular partnership if (a) as part of a transaction or event or series of transactions or events that includes the disposition (i) control of a taxable Canadian corporation (in this subsection referred to as the “subsidiary”) is acquired by another taxable Canadian corporation (in this paragraph referred to as the “parent”), (ii) the subsidiary is wound up under subsection 88(1) or amalgamated with one or more other corporations under subsection 87(11), and (iii) the parent makes a designation under paragraph 88(1)(d) in respect of an interest in a partnership; (b) the disposition occurs after the acquisition of control of the subsidiary; (c) the property (i) is referred to in clauses (A) to (C) of the description of B in subparagraph 88(1)(d)(ii.1), or (ii) is an interest in a partnership that holds, directly or indirectly through one or more partnerships, property referred to in clauses (A) to (C) of the description of B in subparagraph 88(1)(d)(ii.1); and (d) the subsidiary is the taxpayer or has, before the disposition of the property, directly or indirectly in any manner whatever, an interest in the taxpayer.
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(3) Subsections (1) and (2) apply in respect of dispositions made after March 28, 2012. 22. (1) The portion of subsection 100(1) of the Act before paragraph (b) is replaced by the following: Disposition of interest in partnership
100. (1) If, as part of a transaction or event or series of transactions or events, a taxpayer disposes of an interest in a partnership and an interest in the partnership is acquired by a person or partnership described in any of paragraphs (1.1)(a) to (d), then notwithstanding paragraph 38(a), the taxpayer’s taxable capital gain for a taxation year from the disposition of the interest is deemed to be the total of (a) 1/2 of such portion of the taxpayer’s capital gain for the year from the disposition as may reasonably be regarded as attributable to increases in the value of any partnership property of the partnership that is capital property other than depreciable property held directly by the partnership or held indirectly by the partnership through one or more other partnerships, and
(2) Section 100 of the Act is amended by adding the following after subsection (1): Acquisition by certain persons or partnerships
(1.1) Subject to subsection (1.2), subsection (1) applies in respect of a disposition of a partnership interest by a taxpayer if the interest is acquired by (a) a person exempt from tax under section 149; (b) a non-resident person; (c) another partnership to the extent that the interest can reasonably be considered to be held, at the time of its acquisition by the other partnership, indirectly through one or more partnerships, by a person that is (i) exempt from tax under section 149, (ii) a non-resident, or
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(iii) a trust resident in Canada (other than a mutual fund trust) if (A) an interest as a beneficiary (in this subsection and subsection (1.2) having the meaning assigned by subsection 108(1)) under the trust is held, directly or indirectly through one or more other partnerships, by a person that is exempt from tax under section 149 or that is a trust (other than a mutual fund trust), and (B) the total fair market value of the interests as beneficiaries under the trust held by persons referred to in clause (A) exceeds 10% of the fair market value of all the interests as beneficiaries under the trust; or (d) a trust resident in Canada (other than a mutual fund trust) to the extent that the trust can reasonably be considered to have a beneficiary that is (i) exempt from tax under section 149, (ii) a partnership, if (A) an interest in the partnership is held, whether directly or indirectly through one or more other partnerships, by one or more persons that are exempt from tax under section 149 or are trusts (other than mutual fund trusts), and (B) the total fair market value of the interests held by persons referred to in clause (A) exceeds 10% of the fair market value of all the interests in the partnership, or (iii) another trust (other than a mutual fund trust), if (A) one or more beneficiaries under the other trust are a person exempt from tax under section 149, a partnership or a trust (other than a mutual fund trust), and (B) the total fair market value of the interests as beneficiaries under the other trust held by the beneficiaries referred to
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De minimis
(1.2) Subsection (1) does not apply to a taxpayer’s disposition of a partnership interest to a partnership or trust described in paragraph (1.1)(c) or (d) — other than a trust under which the amount of the income or capital to be distributed at any time in respect of any interest as a beneficiary under the trust depends on the exercise by any person or partnership of, or the failure by any person or partnership to exercise, any discretionary power — if the extent to which subsection (1) would, but for this subsection, apply to the taxpayer’s disposition of the interest because of subsection (1.1) does not exceed 10% of the taxpayer’s interest.
Exception — non-resident person
(1.3) Subsection (1) does not apply in respect of a disposition of an interest in a partnership by a taxpayer to a person referred to in paragraph (1.1)(b) if (a) property of the partnership is used, immediately before and immediately after the acquisition of the interest by the nonresident person, in carrying on business through one or more permanent establishments in Canada; and
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Emploi et croi (b) the total fair market value of the property referred to in paragraph (a) equals at least 90% of the total fair market value of all property of the partnership.
Antiavoidance — dilution
(1.4) Subsection (1.5) applies in respect of a taxpayer’s interest in a partnership if (a) it is reasonable to conclude that one of the purposes of a dilution, reduction or alteration of the interest was to avoid the application of subsection (1) in respect of the interest; and (b) as part of a transaction or event or series of transactions or events that includes the dilution, reduction or alteration, there is (i) an acquisition of an interest in the partnership by a person or partnership described in any of paragraphs (1.1)(a) to (d), or (ii) an increase in, or alteration of, an interest in the partnership held by a person or partnership described in any of paragraphs (1.1)(a) to (d).
Deemed gain — dilution
(1.5) If this subsection applies in respect of a particular interest in a partnership of a taxpayer, then for the purposes of subsection (1), (a) the taxpayer is deemed to have disposed of an interest in the partnership at the time of the dilution, reduction or alteration; (b) the taxpayer is deemed to have a capital gain from the disposition equal to the amount by which the fair market value of the particular interest immediately before the dilution, reduction or alteration exceeds its fair market value immediately thereafter; and (c) the person or partnership referred to in paragraph (1.4)(b) is deemed to have acquired an interest in the partnership as part of
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the transaction or event or series of transactions or events that includes the disposition referred to in paragraph (a).
(3) Subsection (1) applies in respect of any disposition made after March 28, 2012, except that (a) in respect of any disposition made before August 14, 2012, the portion of subsection 100(1) of the Act before paragraph (b), as enacted by subsection (1), is to be read as follows: 100. (1) If, as part of a transaction or event or series of transactions or events, a taxpayer disposes of an interest in a partnership and that interest is acquired by a person exempt from tax under section 149 or by a non-resident person, notwithstanding paragraph 38(a), the taxpayer’s taxable capital gain for a taxation year from the disposition of the interest is deemed to be (a) 1/2 of such portion of the taxpayer’s capital gain for the year therefrom as may reasonably be regarded as attributable to increases in the value of any partnership property of the partnership that is capital property other than depreciable property, plus (b) subsection (1) does not apply in respect of a disposition of an interest in a partnership by a taxpayer before 2013 to a person with whom the taxpayer deals at arm’s length if the taxpayer is obligated to dispose of the interest to the person pursuant to a written agreement entered into by the taxpayer before March 29, 2012. A taxpayer is not considered to be obligated if, as a result of amendments to the Act, the taxpayer may be excused from the obligation.
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(4) Subsection (2) is deemed to have come into force on March 29, 2012, except that subsections 100(1.1), (1.2), (1.4) and (1.5) of the Act, as enacted by subsection (2), do not apply (a) before August 14, 2012; or (b) in respect of a disposition, dilution, reduction or alteration of an interest in a partnership if the disposition, dilution, reduction or alteration occurs before 2013 pursuant to an obligation under a written agreement entered into before August 14, 2012 by parties that deal with each other at arm’s length and no party to the agreement may be excused from the obligation as a result of amendments to the Act.
23. (1) Paragraph (a) of the definition “trust” in subsection 108(1) of the Act is replaced by the following: (a) an amateur athlete trust, an employee life and health trust, an employee trust, a trust described in paragraph 149(1)(o.4) or a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a foreign retirement arrangement, a pooled registered pension plan, a registered disability savings plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan or a TFSA,
(2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 24. (1) Clause (a)(i)(C) of the definition “investment expense” in subsection 110.6(1) of the Act is replaced by the following:
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(2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 25. (1) Subparagraph (a)(i) of the definition “pension income” in subsection 118(7) of the Act is replaced by the following: (i) a payment in respect of a life annuity out of or under a superannuation or pension plan (other than a pooled registered pension plan) or a specified pension plan, (2) Paragraph (a) of the definition “pension income” in subsection 118(7) of the Act is amended by adding the following before subparagraph (iv): (iii.2) an amount included under section 147.5, (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 26. (1) The portion of paragraph 122.3(1)(c) of the Act before subparagraph (i) is replaced by the following: (c) an amount equal to that proportion of the specified amount for the year that the number of days (2) Paragraph 122.3(1)(d) of the Act is replaced by the following: (d) the specified percentage for the year of the individual’s income for the year from that employment that is reasonably attributable to duties performed on the days referred to in paragraph (c) (3) Section 122.3 of the Act is amended by adding the following after subsection (1):
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(1.01) For the purposes of paragraph (1)(c), the specified amount for a taxation year of an individual is (a) for the 2013 to 2015 taxation years, the amount determined by the formula [$80,000 × A/(A + B)] + [C × B/(A + B)] where A is the individual’s income described in paragraph (1)(d) for the taxation year that is earned in connection with a contract that was committed to in writing before March 29, 2012 by a specified employer of the individual, B is the individual’s income described in paragraph (1)(d) for the taxation year, other than income included in the description of A, and C is (i) for the 2013 taxation year, $60,000, (ii) for the 2014 taxation year, $40,000, and (iii) for the 2015 taxation year, $20,000; and (b) for the 2016 and subsequent taxation years, nil.
Specified percentage
(1.02) For the purposes of paragraph (1)(d), the specified percentage for a taxation year of an individual is (a) for the 2013 to 2015 taxation years, the amount determined by the formula [80% × A/(A + B)] + [C × B/(A + B)] where A is the value of A in subsection (1.01), B is the value of B in subsection (1.01), and C is (i) for the 2013 taxation year, 60%, (ii) for the 2014 taxation year, 40%, and (iii) for the 2015 taxation year, 20%; and
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(b) for the 2016 and subsequent taxation years, 0%.
(4) Subsections (1) to (3) apply to the 2013 and subsequent taxation years. 27. (1) Subparagraph (a)(i) of the definition “contract payment” in subsection 127(9) of the Act is replaced by the following: (i) for or on behalf of a person or partnership entitled to a deduction in respect of the amount because of subparagraph 37(1)(a)(i.01) or (i.1), and (2) Paragraph (b) of the definition “contract payment” in subsection 127(9) of the Act is replaced by the following: (b) an amount in respect of an expenditure of a current nature (within the meaning assigned by paragraph 37(8)(d)) of a taxpayer, other than a prescribed amount, payable by a Canadian government or municipality or other Canadian public authority or by a person exempt, because of section 149, from tax under this Part on all or part of the person’s taxable income for scientific research and experimental development to be performed for it or on its behalf;
(3) The definition “first term shared-useequipment” in subsection 127(9) of the Act is replaced by the following: “first term shared-useequipment” « matériel à vocations multiples de première période »
“first term shared-use-equipment”, of a taxpayer, means depreciable property of the taxpayer (other than prescribed depreciable property of a taxpayer) acquired before 2014 that is used by the taxpayer, during its operating time in the period (in this subsection and subsection (11.1) referred to as the “first period”) beginning at the time the property was acquired by the taxpayer and ending at the end of the taxpayer’s first taxation year ending
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Emploi et croi at least 12 months after that time, primarily for the prosecution of scientific research and experimental development in Canada, but does not include general purpose office equipment or furniture; (4) Paragraph (a) of the definition “investment tax credit” in subsection 127(9) of the Act is replaced by the following: (a) the total of all amounts each of which is the specified percentage of the capital cost to the taxpayer of qualified property or qualified resource property acquired by the taxpayer in the year, (5) Paragraph (a.1) of the definition “investment tax credit” in subsection 127(9) of the Act is replaced by the following: (a.1) 15% of the amount by which the taxpayer’s SR&ED qualified expenditure pool at the end of the year exceeds the total of all amounts each of which is the superallowance benefit amount for the year in respect of the taxpayer in respect of a province, (6) Paragraph (a.3) of the definition “investment tax credit” in subsection 127(9) of the Act is replaced by the following: (a.3) if the taxpayer is a taxable Canadian corporation, the total of (i) the specified percentage of the portion of the taxpayer’s pre-production mining expenditure described in subparagraph (a)(i) of the definition “pre-production mining expenditure”, and (ii) the specified percentage of the portion of the taxpayer’s pre-production mining expenditure described in subparagraph (a)(ii) of the definition “pre-production mining expenditure”, (7) Paragraph (a) of the definition “preproduction mining expenditure” in subsection 127(9) of the Act is replaced by the following:
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(a) is a Canadian exploration expense and would be (i) described in paragraph (f) of the definition “Canadian exploration expense” in subsection 66.1(6) if the expression “mineral resource” in that paragraph were defined to mean a mineral deposit from which the principal mineral to be extracted is diamond, a base or precious metal deposit, or a mineral deposit from which the principal mineral to be extracted is an industrial mineral that, when refined, results in a base or precious metal, or (ii) described in paragraph (g), and not in paragraph (f), of the definition “Canadian exploration expense” in subsection 66.1(6) if the expression “mineral resource” in paragraph (g) were defined to mean a mineral deposit from which the principal mineral to be extracted is diamond, a base or precious metal deposit, or a mineral deposit from which the principal mineral to be extracted is an industrial mineral that, when refined, results in a base or precious metal, and (8) Paragraphs (a) and (b) of the definition “qualified expenditure” in subsection 127(9) of the Act are replaced by the following: (a) an amount that is an expenditure incurred in the year by the taxpayer in respect of scientific research and experimental development and is (i) an expenditure described in subparagraph 37(1)(a)(i), (ii) 80% of an expenditure described in any of subparagraphs 37(1)(a)(i.01) to (iii), (iii) an expenditure for first term shareduse-equipment or second term shared-useequipment, or (iv) an expenditure described in subparagraph 37(1)(b)(i), or (b) a prescribed proxy amount of the taxpayer for the year,
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(9) Paragraph (a) of the definition “qualified expenditure” in subsection 127(9) of the Act, as enacted by subsection (8), is amended by adding “or” at the end of subparagraph (ii) and by repealing subparagraph (iv). (10) Paragraph (a) of the definition “qualified expenditure” in subsection 127(9) of the Act, as amended by subsection (9), is amended by adding “or” at the end of subparagraph (i) and by repealing subparagraph (iii). (11) The portion of the definition “qualified property” in subsection 127(9) of the Act before paragraph (a) is replaced by the following: “qualified property” « bien admissible »
“qualified property”, of a taxpayer, means property (other than a qualified resource property) that is (12) The definition “qualified property” in subsection 127(9) of the Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b): (b.1) prescribed energy generation and conservation property acquired by the taxpayer after March 28, 2012, (13) Subparagraphs (c)(iv) to (xiii) of the definition “qualified property” in subsection 127(9) of the Act are replaced by the following: (iv) storing grain, or (v) harvesting peat, (14) The portion of paragraph (c.1) of the definition “qualified property” in subsection 127(9) of the Act before subparagraph (i) is replaced by the following: (c.1) property (other than property described in paragraph (b.1)) to be used by the taxpayer in Canada primarily for the purpose of producing or processing electrical energy or steam in a prescribed area, if
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(15) The portion of paragraph (d) of the definition “qualified property” in subsection 127(9) of the Act before subparagraph (i) is replaced by the following: (d) to be leased by the taxpayer to a lessee (other than a person exempt from tax under this Part because of section 149) who can reasonably be expected to use the property in Canada primarily for any of the purposes referred to in paragraph (c), but this paragraph does not apply to property that is prescribed for the purposes of paragraph (b) or (b.1) unless (16) The definition “specified percentage” in subsection 127(9) of the Act is amended by adding the following after paragraph (a): (a.1) in respect of a qualified resource property acquired by a taxpayer primarily for use in Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, the Gaspé Peninsula or the prescribed offshore region, and that is acquired (i) after March 28, 2012 and before 2014, 10%, (ii) after 2013 and before 2017, 10% if the property (A) is acquired by the taxpayer under a written agreement of purchase and sale entered into by the taxpayer before March 29, 2012, or (B) is acquired as part of a phase of a project and (I) the construction of the phase was started by, or on behalf of, the taxpayer before March 29, 2012 (and for this purpose construction does not include obtaining permits or regulatory approvals, conducting environmental assessments, community consultations or impact benefit studies, and similar activities), or (II) the engineering and design work for the construction of the phase, as evidenced in writing, was started by,
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or on behalf of, the taxpayer before March 29, 2012 (and for this purpose engineering and design work does not include obtaining permits or regulatory approvals, conducting environmental assessments, community consultations or impact benefit studies, and similar activities), and (iii) in any other case, (A) in 2014 and 2015, 5%, and (B) after 2015, 0%,
(17) The definition “specified percentage” in subsection 127(9) of the Act is amended by striking out “and” at the end of paragraph (i) and by replacing paragraph (j) with the following: (j) in respect of a pre-production mining expenditure of the taxpayer that is described in subparagraph (a)(i) of the definition “preproduction mining expenditure” and that is incurred (i) before 2013, 10%, (ii) in 2013, 5%, and (iii) after 2013, 0%, and (k) in respect of a pre-production mining expenditure of the taxpayer that is described in subparagraph (a)(ii) of the definition “preproduction mining expenditure” and that is incurred (i) before 2014, 10%, (ii) after 2013 and before 2016, 10% if the expenditure is incurred (A) under a written agreement entered into by the taxpayer before March 29, 2012, or (B) as part of the development of a new mine and
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Jobs and Gr (I) the construction of the mine was started by, or on behalf of, the taxpayer before March 29, 2012 (and for this purpose construction does not include obtaining permits or regulatory approvals, conducting environmental assessments, community consultations or impact benefit studies, and similar activities), or (II) the engineering and design work for the construction of the mine, as evidenced in writing, was started by, or on behalf of, the taxpayer before March 29, 2012 (and for this purpose engineering and design work does not include obtaining permits or regulatory approvals, conducting environmental assessments, community consultations or impact benefit studies, and similar activities), and
(iii) in any other case, (A) in 2014, 7%, (B) in 2015, 4%, and (C) after 2015, 0%; (18) Subsection 127(9) of the Act is amended by adding the following in alphabetical order: “phase” « phase »
“qualified resource property” « bien minier admissible »
“phase”, of a project, means a discrete expansion in the extraction, processing or production capacity of the project of a taxpayer beyond a capacity level that was attained before March 29, 2012 and which expansion in capacity was the taxpayer’s demonstrated intention immediately before that date; “qualified resource property”, of a taxpayer, means property that is a prescribed building or prescribed machinery and equipment, that is acquired by the taxpayer after March 28, 2012, that has not been used, or acquired for use or lease, for any purpose whatever before it was acquired by the taxpayer and that is (a) to be used by the taxpayer in Canada primarily for the purpose of (i) operating an oil or gas well or extracting petroleum or natural gas from a natural accumulation of petroleum or natural gas,
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(ii) extracting minerals from a mineral resource, (iii) processing (A) ore (other than iron ore or tar sands ore) from a mineral resource to any stage that is not beyond the prime metal stage or its equivalent, (B) iron ore from a mineral resource to any stage that is not beyond the pellet stage or its equivalent, or (C) tar sands ore from a mineral resource to any stage that is not beyond the crude oil stage or its equivalent, (iv) producing industrial minerals, (v) processing heavy crude oil recovered from a natural reservoir in Canada to a stage that is not beyond the crude oil stage or its equivalent, (vi) Canadian field processing, (vii) exploring or drilling for petroleum or natural gas, or (viii) prospecting or exploring for or developing a mineral resource, or (b) to be leased by the taxpayer to a lessee (other than a person exempt from tax under this Part because of section 149) who can reasonably be expected to use the property in Canada primarily for any of the purposes referred to in paragraph (a), but this paragraph does not apply to prescribed machinery and equipment unless (i) the property is leased in the ordinary course of carrying on a business in Canada by a corporation whose principal business is any of, or a combination of, leasing property, lending money, purchasing conditional sales contracts, accounts receivable, bills of sale, chattel mortgages or hypothecary claims on movables, bills of exchange or other obligations representing all or part of the sale price of merchandise or services,
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(ii) the property is manufactured and leased in the ordinary course of carrying on business in Canada by a corporation whose principal business is manufacturing property that it sells or leases, or (iii) the property is leased in the ordinary course of carrying on business in Canada by a corporation the principal business of which is selling or servicing property of that type, and, for the purpose of this definition, “Canada” includes the offshore region prescribed for the purpose of the definition “specified percentage”;
(19) The portion of subsection 127(10.1) of the Act before paragraph (a) is replaced by the following: Additions to investment tax credit
(10.1) For the purposes of paragraph (e) of the definition “investment tax credit” in subsection (9), if a corporation was throughout a taxation year a Canadian-controlled private corporation, there shall be added in computing the corporation’s investment tax credit at the end of the year the amount that is 20% of the least of (20) The portion of subsection 127(11) of the Act before paragraph (a) is replaced by the following:
Interpretation
(11) For the purposes of the definitions “qualified property” and “qualified resource property” in subsection (9), (21) The portion of paragraph 127(11)(b) of the Act before subparagraph (i) is replaced by the following:
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Emploi et croi (b) for greater certainty, the purposes referred to in paragraph (c) of the definition “qualified property” and paragraph (a) of the definition “qualified resource property” in subsection (9) do not include (22) Paragraph 127(11.2)(a) of the Act is replaced by the following: (a) qualified property, qualified resource property and first term shared-use-equipment are deemed not to have been acquired, and (23) Paragraph 127(11.2)(a) of the Act, as enacted by subsection (22), is replaced by the following: (a) qualified property and qualified resource property are deemed not to have been acquired, and (24) Paragraph 127(11.2)(b) of the Act is replaced by the following: (b) expenditures included in an eligible child care space expenditure are deemed not to have been incurred (25) Paragraph 127(11.5)(a) of the Act is replaced by the following: (a) the amount of an expenditure (other than a prescribed proxy amount or an amount described in paragraph (b)) incurred by a taxpayer in a taxation year is deemed to be the amount of the expenditure determined under subsection (11.6); and (26) Subsection 127(11.5) of the Act, as amended by subsection (25), is replaced by the following:
Adjustments to qualified expenditures
(11.5) For the purposes of the definition “qualified expenditure” in subsection (9), the amount of an expenditure (other than a prescribed proxy amount) incurred by a taxpayer in a taxation year is deemed to be the amount of the expenditure determined under subsection (11.6). (27) The portion of subsection 127(11.6) of the Act after paragraph (b) and before paragraph (c) is replaced by the following:
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the amount of the expenditure incurred by the taxpayer for the service or property and the cost to the taxpayer of the property are deemed to be
(28) Subparagraph 127(11.6)(d)(i) of the Act is replaced by the following: (i) the cost to the taxpayer of the property otherwise determined, and (29) Subsection 127(11.8) of the Act is amended by adding “and” at the end of paragraph (a), by striking out “and” at the end of paragraph (b) and by repealing paragraph (c). (30) Subsection 127(33) of the Act is replaced by the following: Certain nonarm’s length transfers
(33) Subsections (27) to (29), (34) and (35) do not apply to a taxpayer or partnership (in this subsection referred to as the “transferor”) that disposes of a property to a person or partnership (in this subsection and subsections (34) and (35) referred to as the “purchaser”), that does not deal at arm’s length with the transferor, if the purchaser acquired the property in circumstances where the cost of the property to the purchaser would have been an expenditure of the purchaser described in subclause 37(8)(a)(ii)(A)(III) or (B)(III) (as those subclauses read on March 29, 2012) but for subparagraph 2902(b)(iii) of the Income Tax Regulations. (31) Subsections (1) and (8) apply in respect of expenditures made after 2012. (32) Subsections (2), (9), (24), (25) and (29) apply in respect of expenditures made after 2013.
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Emploi et croi (33) Subsections (3), (18), (20) to (22) and (30) are deemed to have come into force on March 29, 2012. (34) Subsections (4) and (6) apply to taxation years ending after March 28, 2012. (35) Subsections (5) and (19) apply to taxation years that end after 2013, except that for taxation years that include January 1, 2014 (a) the reference to “15%” in paragraph (a.1) of the definition “investment tax credit” in subsection 127(9) of the Act, as enacted by subsection (5), is to be read as a reference to the percentage that is the total of (i) 20% multiplied by the proportion that the number of days that are in the taxation year and before 2014 is of the number of days in the taxation year, and (ii) 15% multiplied by the proportion that the number of days that are in the taxation year and after 2013 is of the number of days in the taxation year; and (b) the reference to “20%” in the portion of subsection 127(10.1) of the Act before paragraph (a), as enacted by subsection (19), is to be read as a reference to the percentage that is the total of (i) 15% multiplied by the proportion that the number of days that are in the taxation year and before 2014 is of the number of days in the taxation year, and (ii) 20% multiplied by the proportion that the number of days that are in the taxation year and after 2013 is of the number of days in the taxation year.
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(36) Subsections (7) and (17) apply in respect of expenditures incurred after March 28, 2012. (37) Subsections (10), (23) and (26) to (28) come into force on February 1, 2017. (38) Subsections (11) to (16) apply in respect of property acquired after March 28, 2012. 28. (1) Subparagraph (f)(i) of the definition “refundable investment tax credit” in subsection 127.1(2) of the Act is replaced by the following: (i) the portion of the amount required by subsection 127(10.1) to be added in computing the taxpayer’s investment tax credit at the end of the year that is in respect of qualified expenditures incurred by the taxpayer in the year, and (2) Subsection 127.1(2.01) of the Act is replaced by the following: Addition to refundable investment tax credit
(2.01) In the case of a taxpayer that is a Canadian-controlled private corporation other than a qualifying corporation or an excluded corporation, the refundable investment tax credit of the taxpayer for a taxation year is the amount, if any, by which (a) the total of (i) the portion of the amount required by subsection 127(10.1) to be added in computing the taxpayer’s investment tax credit at the end of the year that is in respect of qualified expenditures incurred by the taxpayer in the year, and (ii) all amounts determined under paragraph (a.1) of the definition “investment tax credit” in subsection 127(9) in respect of expenditures for which an amount is included in subparagraph (i) exceeds (b) the total of (i) the portion of the total of all amounts deducted by the taxpayer under subsection 127(5) for the year or a preceding taxation year (other than an amount deemed by subsection (3) to have been so deducted for
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the year) that can reasonably be considered to be in respect of the total determined under paragraph (a), and (ii) the portion of the total of all amounts required by subsection 127(6) to be deducted in computing the taxpayer’s investment tax credit at the end of the year that can reasonably be considered to be in respect of the total determined under paragraph (a). (3) Subsections (1) and (2) come into force on February 1, 2017. 29. (1) Paragraph 128(2)(d.1) of the Act is replaced by the following: (d.1) where, by reason of paragraph (d), a taxation year of the individual is not a calendar year, (i) paragraph 146(5)(b) shall, for the purpose of the application of subsection 146(5) to the taxation year, be read as follows: “(b) the amount, if any, by which (i) the amount, if any, by which the taxpayer’s RRSP deduction limit for the particular calendar year in which the taxation year ends exceeds the total of all contributions made by an employer in the particular calendar year to a pooled registered pension plan in respect of the taxpayer exceeds (ii) the total of the amounts deducted under this subsection and subsection (5.1) in computing the taxpayer’s income for any preceding taxation year that ends in the particular calendar year.”, and (ii) paragraph 146(5.1)(b) shall, for the purpose of the application of subsection 146(5.1) to the taxation year, be read as follows: “(b) the amount, if any, by which (i) the amount, if any, by which the taxpayer’s RRSP deduction limit for the particular calendar year in which the
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taxation year ends exceeds the total of all contributions made by an employer in the particular calendar year to a pooled registered pension plan in respect of the taxpayer exceeds (ii) the total of the amount deducted under subsection (5) in computing the taxpayer’s income for the year and the amounts deducted under this subsection and subsection (5) in computing the taxpayer’s income for any preceding taxation year that ends in the particular calendar year.”;
(2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 30. (1) Subsection 128.1(1) of the Act is amended by striking out “and” at the end of paragraph (c.2) and by adding the following after paragraph (c.2): Foreign affiliate dumping — immigrating corporation
(c.3) if the taxpayer is a corporation that was, immediately before the particular time, controlled by a particular non-resident corporation and the taxpayer owned, immediately before the particular time, one or more shares of one or more non-resident corporations (each of which is in this paragraph referred to as a “subject affiliate”) that, immediately after the particular time, were — or that became, as part of a transaction or event or series of transactions or events that includes the taxpayer having become resident in Canada — foreign affiliates of the taxpayer, then (i) in computing the paid-up capital, at any time after the time that is immediately after the particular time, of any particular class of shares of the capital stock of the taxpayer there is to be deducted the amount determined by the formula A × B/C where A is the lesser of
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Emploi et croi (A) the paid-up capital in respect of all of the shares of the capital stock of the taxpayer at the time that is immediately after the particular time, and (B) the total of all amounts each of which is the fair market value at the particular time of (I) a share of the capital stock of a subject affiliate owned by the taxpayer at the particular time, or (II) an amount owing by the subject affiliate to the taxpayer at the particular time, B is the paid-up capital in respect of the particular class of shares of the capital stock of the taxpayer at the time that is immediately after the particular time, and C is the paid-up capital in respect of all the shares of the capital stock of the taxpayer at the time that is immediately after the particular time, and (ii) for the purposes of Part XIII, the taxpayer is deemed, immediately after the particular time, to have paid to the particular non-resident corporation, and the particular non-resident corporation is deemed, immediately after the particular time, to have received from the taxpayer, a dividend equal to the amount, if any, by which the amount determined under clause (B) of the description of A in subparagraph (i) exceeds the amount determined under clause (A) of the description of A in subparagraph (i); and (2) Subsection 128.1(3) of the Act is replaced by the following:
Paid-up capital adjustment
(3) In computing the paid-up capital at any time in respect of a class of shares of the capital stock of a corporation (a) there is to be deducted an amount equal to the lesser of A and B, and added an amount equal to the lesser of A and C, where
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A is the absolute value of the difference between (i) the total of all amounts deemed by subsection 84(3), (4) or (4.1) to be a dividend on shares of the class paid before that time by the corporation, and (ii) the total that would be determined under subparagraph (i) if this Act were read without reference to subsection (2), B is the total of all amounts required by subsection (2) to be added in computing the paid-up capital in respect of the class before that time, and C is the total of all amounts required by subsection (2) to be deducted in computing the paid-up capital in respect of the class before that time; and (b) there is to be added an amount equal to the lesser of (i) the amount, if any, by which (A) the total of all amounts deemed by subsection 84(3), (4) or (4.1) to be a dividend on shares of the class paid after March 28, 2012 and before that time by the corporation exceeds (B) the total that would be determined under clause (A) if this Act were read without reference to subparagraph (c.3)(i), and (ii) the total of all amounts required by subparagraph (c.3)(i) to be deducted in computing the paid-up capital in respect of the class before that time.
(3) Subsection (1) applies in respect of corporations that become resident in Canada after March 28, 2012. (4) Subsection (2) is deemed to have come into force on March 29, 2012. 31. (1) Subsection 138.1(7) of the Act is replaced by the following:
2011-2012 Non-application of subsections (1) to (6)
Emploi et croi (7) Subsections (1) to (6) do not apply to the holder of a segregated fund policy with respect to such a policy that is issued or effected as or under a pooled registered pension plan, registered pension plan, registered retirement income fund, registered retirement savings plan or TFSA. (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 32. (1) The description of D in paragraph (b) of the definition “unused RRSP deduction room” in subsection 146(1) of the Act is replaced by the following: D is the total of all amounts each of which is (i) an amount deducted by the taxpayer under any of subsections (5) to (5.2), in computing the taxpayer’s income for the year, (ii) an amount deducted by the taxpayer under paragraph 10 of Article XVIII of the Canada-United States Tax Convention signed at Washington on September 26, 1980 or a similar provision in another tax treaty, in computing the taxpayer’s taxable income for the year, (iii) a contribution made by an employer in the year to a pooled registered pension plan in respect of the taxpayer, or (iv) the amount, if any, by which the taxpayer’s exempt-income contribution amount (as defined in subsection 147.5(1)) for the year exceeds the taxpayer’s unused non-deductible PRPP room (as defined in subsection 147.5(1)) at the end of the preceding taxation year, and
(2) The portion of subsection 146(1.1) of the Act before the formula is replaced by the following:
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Restriction — financially dependent
(1.1) For the purposes of paragraph (b) of the definition “refund of premiums” in subsection (1), clause 60(l)(v)(B.01), the definition “eligible individual” in subsection 60.02(1), subparagraph 104(27)(e)(i) and section 147.5, it is assumed, unless the contrary is established, that an individual’s child or grandchild was not financially dependent on the individual for support immediately before the individual’s death if the income of the child or grandchild for the taxation year preceding the taxation year in which the individual died exceeded the amount determined by the formula
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(3) Paragraph 146(5)(a) of the Act is amended by adding the following after subparagraph (iii): (iii.1) that was an exempt-income contribution amount (as defined in subsection 147.5(1)) for any taxation year, (4) Paragraph 146(5)(b) of the Act is replaced by the following: (b) the amount, if any, by which the taxpayer’s RRSP deduction limit for the year exceeds the total of all contributions made by an employer in the year to a pooled registered pension plan in respect of the taxpayer. (5) Paragraph 146(5.1)(b) of the Act is replaced by the following: (b) the amount, if any, by which the taxpayer’s RRSP deduction limit for the year exceeds the total of all amounts each of which is (i) the amount deducted under subsection (5) in computing the taxpayer’s income for the year, or (ii) a contribution made by an employer in the year to a pooled registered pension plan in respect of the taxpayer. (6) Subparagraph 146(8.2)(b)(iii) of the Act is replaced by the following: (iii) was not paid by way of a transfer of an amount to a registered retirement savings plan from
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Emploi et croi (A) a pooled registered pension plan in circumstances to which subsection 147.5(21) applied, or (B) a specified pension plan in circumstances to which subsection (21) applied, (7) Subsection 146(21.2) of the Act is replaced by the following:
Specified pension plan — account
(21.2) For the purposes of paragraph (8.2)(b), subsection (8.21), paragraphs (16)(a) and (b) and 18(1)(u), subparagraph (a)(i) of the definition “excluded right or interest” in subsection 128.1(10), paragraph (b) of the definition “excluded premium” in subsection 146.01(1), paragraph (c) of the definition “excluded premium” in subsection 146.02(1), subsections 146.3(14) and 147(19), section 147.3 and paragraph 147.5(21)(c), and for the purposes of any regulations made under subsection 147.1(18), an individual’s account under a specified pension plan is deemed to be a registered retirement savings plan under which the individual is the annuitant. (8) Subsections (1) to (7) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 33. (1) The portion of the definition “registered education savings plan” in subsection 146.1(1) of the Act before paragraph (a) is replaced by the following:
“registered education savings plan” or “RESP” « régime enregistré d’épargneétudes » ou « REEE »
“registered education savings plan” or “RESP” means
(2) Section 146.1 of the Act is amended by adding the following after subsection (1):
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Election
(1.1) A subscriber under an RESP that allows accumulated income payments and a holder of an RDSP may jointly elect in prescribed form to have subsection (1.2) apply in respect of a beneficiary under the RESP if, at the time the election is made, the beneficiary is also the beneficiary under the RDSP and
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(a) the beneficiary has a severe and prolonged mental impairment that prevents, or can reasonably be expected to prevent, the beneficiary from enrolling in a qualifying educational program at a post-secondary educational institution; or (b) the RESP meets the conditions described in clause (2)(d.1)(iii)(A) or (B) to make an accumulated income payment.
Effect of election
(1.2) If an election is made under subsection (1.1) and is filed by the promoter of the RESP with the Minister without delay, then notwithstanding paragraph (2)(d.1) and any terms of the RESP required by that paragraph, an accumulated income payment under the RESP may be made to the RDSP. (3) Paragraph 146.1(2)(i.1) of the Act is replaced by the following: (i.1) if the plan allows accumulated income payments, the plan provides that it must be terminated before March of the year following the year in which the first such payment is made out of the plan; (4) Paragraph 146.1(7.1)(a) of the Act is replaced by the following: (a) each accumulated income payment (other than an accumulated income payment made under subsection (1.2)) received in the year by the taxpayer under a registered education savings plan; and (5) Subsections (2) to (4) come into force on January 1, 2014.
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Emploi et croi 34. (1) Paragraph 146.3(2)(f) of the Act is amended by striking out “or” at the end of subparagraph (vi), by adding “or” at the end of subparagraph (vii) and by adding the following after subparagraph (vii): (viii) a pooled registered pension plan in accordance with subsection 147.5(21); (2) Subsection 146.3(14.1) of the Act is replaced by the following:
Transfer to PRPP or RPP
(14.1) An amount is transferred from a registered retirement income fund of an annuitant in accordance with this subsection if the amount (a) is transferred at the direction of the annuitant directly to an account of the annuitant under a pooled registered pension plan; or (b) is transferred at the direction of the annuitant directly to a registered pension plan of which, at any time before the transfer, the annuitant was a member (within the meaning assigned by subsection 147.1(1)) or to a prescribed registered pension plan and is allocated to the annuitant under a money purchase provision (within the meaning assigned by subsection 147.1(1)) of the plan. (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 35. (1) The definition “registered disability savings plan” in subsection 146.4(1) of the Act is replaced by the following:
“registered disability savings plan” or “RDSP” « régime enregistré d’épargneinvalidité » ou « REEI »
“registered disability savings plan” or “RDSP” means a disability savings plan that satisfies the conditions in subsection (2), but does not include a plan to which subsection (3) or (10) applies. (2) Paragraph (d) of the definition “contribution” in subsection 146.4(1) of the Act is replaced by the following:
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(d) other than for the purposes of paragraphs (4)(f) to (h) and (n) and paragraph (b) of the definition “advantage” in subsection 205(1), (i) a specified RDSP payment as defined in subsection 60.02(1), or (ii) an accumulated income payment made to the plan under subsection 146.1(1.2). (3) Paragraph (c) of the definition “holder” in subsection 146.4(1) of the Act is replaced by the following: (c) the beneficiary if, at that time, the beneficiary is not an entity described in paragraph (a) or (b) and has rights under the plan to make decisions (either alone or with other holders of the plan) concerning the plan, except where the only such right is a right to direct that disability assistance payments be made as provided for in subparagraph (4)(n)(ii). (4) Subsection 146.4(1) of the Act is amended by adding the following in alphabetical order: “specified maximum amount” « plafond »
“specified maximum amount”, for a calendar year in respect of a disability savings plan, means the amount that is the greater of (a) the amount determined by the formula set out in paragraph (4)(l) in respect of the plan for the calendar year, and (b) the amount determined by the formula A+B where A is 10% of the fair market value of the property held by the plan trust at the beginning of the calendar year (other than annuity contracts held by the plan trust that, at the beginning of the calendar year, are not described in paragraph (b) of the definition “qualified investment” in subsection 205(1)), and B is the total of all amounts each of which is (i) a periodic payment under an annuity contract held by the plan trust at the beginning of the calendar year (other than
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an annuity contract described at the beginning of the calendar year in paragraph (b) of the definition “qualified investment” in subsection 205(1)) that is paid to the plan trust in the calendar year, or (ii) if the periodic payment under such an annuity contract is not made to the plan trust because the plan trust disposed of the right to that payment in the calendar year, a reasonable estimate of that payment on the assumption that the annuity contract had been held throughout the calendar year and no rights under the contract were disposed of in the calendar year.
(5) Paragraphs 146.4(1.2)(b) to (f) of the Act are replaced by the following: (b) the time that is immediately before the earliest time in a calendar year when the total disability assistance payments, other than non-taxable portions, made from the plan in the year and while it was a specified disability savings plan exceeds $10,000 (or such greater amount as is required to satisfy the condition in subparagraph (d)(i)); (c) the time that is immediately before the time that (i) a contribution is made to the plan, (ii) an amount described in any of paragraphs (a) and (b) and subparagraph (d)(ii) of the definition “contribution” in subsection (1) is paid into the plan, (iii) the plan is terminated, (iv) the plan ceases to be a registered disability savings plan as a result of the application of paragraph (10)(a), or (v) is the beginning of the first calendar year throughout which the beneficiary under the plan has no severe and prolonged impairments with the effects described in paragraph 118.3(1)(a.1); and
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(d) the time immediately following the end of a calendar year if (i) in the year the total amount of disability assistance payments made from the plan to the beneficiary is less than the amount determined by the formula set out in paragraph (4)(l) in respect of the plan for the year (or such lesser amount as is supported by the property of the plan), and (ii) the year is not the calendar year in which the plan became a specified disability savings plan. (6) Subsection 146.4(3) of the Act is replaced by the following: Registered status nullified
(3) A disability savings plan is deemed never to have been a registered disability savings plan unless (a) the issuer of the plan provides without delay notification of the plan’s establishment in prescribed form containing prescribed information to the specified Minister; and (b) if the beneficiary is the beneficiary under another registered disability savings plan at the time the plan is established, that other plan is terminated without delay. (7) Subparagraphs 146.4(4)(n)(i) to (iii) of the Act are replaced by the following: (i) if the calendar year is not a specified year for the plan, the total amount of disability assistance payments made from the plan to the beneficiary in the calendar year shall not exceed the specified maximum amount for the calendar year, except that, in calculating that total amount, any payment made following a transfer in the calendar year from another plan in accordance with subsection (8) is to be disregarded if it is made (A) to satisfy an undertaking described in paragraph (8)(d), or (B) in lieu of a payment that would otherwise have been permitted to be made from the other plan in the calendar year had the transfer not occurred, and
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(ii) if the beneficiary attained the age of 27 years, but not the age of 59 years, before the calendar year, the beneficiary has the right to direct that, within the constraints imposed by subparagraph (i) and paragraph (j), one or more disability assistance payments be made from the plan to the beneficiary in the calendar year;
(8) Subsection 146.4(4) of the Act is amended by adding the following after paragraph (n): (n.1) the plan provides that, if the beneficiary attained the age of 59 years before a calendar year, the total amount of disability assistance payments made from the plan to the beneficiary in the calendar year shall not be less than the amount determined by the formula set out in paragraph (l) in respect of the plan for the calendar year (or such lesser amount as is supported by the property of the plan trust); (9) Paragraph 146.4(4)(o) of the Act is replaced by the following: (o) the plan provides that, at the direction of the holders of the plan, the issuer shall transfer all of the property held by the plan trust (or an amount equal to its value) to another registered disability savings plan of the beneficiary, together with all information in its possession (other than information provided to the issuer of the other plan by the specified Minister) that may reasonably be considered necessary for compliance, in respect of the other plan, with the requirements of this Act and with any conditions and obligations imposed under the Canada Disability Savings Act; and (10) Subparagraph 146.4(4)(p)(ii) of the Act is replaced by the following: (ii) the first calendar year
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Jobs and Gr (A) if an election is made under subsection (4.1), that includes the time that the election ceases because of paragraph (4.2)(b) to be valid, and (B) in any other case, throughout which the beneficiary has no severe and prolonged impairments with the effects described in paragraph 118.3(1)(a.1).
(11) Section 146.4 of the Act is amended by adding the following after subsection (4): Election on cessation of DTC-eligibility
(4.1) A holder of a registered disability savings plan may elect in respect of a beneficiary under the plan who is not a DTCeligible individual for a particular taxation year if (a) a medical doctor licensed to practise under the laws of a province certifies in writing that the nature of the beneficiary’s condition is such that, in the professional opinion of the medical doctor, the beneficiary is likely to become a DTC-eligible individual for a future taxation year; (b) the beneficiary was a DTC-eligible individual for the year that immediately precedes the particular taxation year; (c) the holder makes the election in a manner and format acceptable to the specified Minister before the end of the year immediately following the particular taxation year and provides the election and the medical certification in respect of the beneficiary to the issuer of the plan; and (d) the issuer notifies the specified Minister of the election in a manner and format acceptable to the specified Minister.
Election
(4.2) An election under subsection (4.1) ceases to be valid at the time that is the earlier of (a) the beginning of the first taxation year for which the beneficiary is again a DTC-eligible individual; and
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Emploi et croi (b) the end of the fourth taxation year following the particular taxation year referred to in subsection (4.1).
Transitional rule
(4.3) Unless an election is made under subsection (4.1), if 2011 or 2012 is the first calendar year throughout which the beneficiary of a registered disability savings plan has no severe and prolonged impairments with the effects described in paragraph 118.3(1)(a.1) and the plan has not been terminated, then notwithstanding subparagraph (4)(p)(ii) as it read on March 28, 2012 and any terms of the plan required by that subparagraph, the plan must be terminated no later than December 31, 2014. (12) Paragraph 146.4(8)(c) of the Act is replaced by the following: (c) the issuer of the prior plan provides the issuer of the new plan with all information in its possession concerning the prior plan (other than information provided to the issuer of the new plan by the specified Minister) as may reasonably be considered necessary for compliance, in respect of the new plan, with the requirements of this Act and with any conditions and obligations imposed under the Canada Disability Savings Act; and (13) Subsections (2) to (5), (7), (8) and (10) and subsections 146.4(4.1) and (4.2) of the Act, as enacted by subsection (11), come into force on January 1, 2014. (14) Subsection 146.4(4.3) of the Act, as enacted by subsection (11), is deemed to have come into force on March 29, 2012, except that before 2014 it is to be read as follows: (4.3) If 2011 or 2012 is the first calendar year throughout which the beneficiary of a registered disability savings plan has no severe and prolonged impairments with the effects described in paragraph 118.3(1)(a.1) and the plan has not been terminated, then notwithstanding subparagraph (4)(p)(ii) as it read on March 28, 2012 and any terms of the plan required by that subparagraph, the plan must be terminated no later than December 31, 2014.
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36. (1) The Act is amended by adding the following after section 147.4: Pooled Registered Pension Plans Definitions
“administrator” « administrateur »
147.5 (1) The following definitions apply in this section. “administrator”, of a pooled pension plan, means (a) a corporation resident in Canada that is responsible for the administration of the plan and that is authorized under the Pooled Registered Pension Plans Act or a similar law of a province to act as an administrator for one or more pooled pension plans; or (b) an entity designated in respect of the plan under section 21 of the Pooled Registered Pension Plans Act or any provision of a law of a province that is similar to that section.
“designated pooled pension plan” « régime de pension collectif désigné »
“designated pooled pension plan”, for a calendar year, means a pooled pension plan that, at any time in the year (other than the year in which the plan became registered as a PRPP), meets any of the following conditions: (a) the plan has fewer than 10 participating employers; (b) the fair market value of the property held in connection with the accounts of all members of the plan employed by a particular participating employer exceeds 50% of the fair market value of the property held in connection with the plan; (c) more than 50% of the members of the plan are employed by a particular participating employer; or (d) it is reasonable to conclude that the participation in the plan of one or more participating employers occurs primarily to avoid the application of any of paragraphs (a) to (c).
“exempt earned income” « revenu gagné exonéré »
“exempt earned income”, of a taxpayer for a taxation year, means the total of all amounts each of which is an amount that is
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“exempt-income contribution amount” « cotisation provenant du revenu exonéré »
“exempt-income contribution amount”, of a taxpayer for a taxation year, means the total of (a) all amounts each of which is a contribution to a PRPP made by the taxpayer for the year that is not deductible in computing the income of the taxpayer because of subsection (32), and (b) the amount, if any, designated under subsection (34) by the taxpayer for the year in prescribed form filed with the Minister by the taxpayer’s filing-due date for the year, or such later date as is acceptable to the Minister, provided that the later date is within three calendar years following the end of the year.
“member” « participant »
“participating employer” « employeur participant »
“member”, of a pooled pension plan, means an individual (other than a trust) who holds an account under the plan. “participating employer”, in relation to a pooled pension plan for a calendar year, means an employer that, in the year, (a) makes contributions to the plan in respect of all or a class of its employees or former employees; or (b) remits to the administrator of the plan contributions made by members of the plan under a contract with the administrator in respect of all or a class of its employees.
“pooled pension plan” « régime de pension collectif »
“pooled pension plan” means a plan that is registered under the Pooled Registered Pension Plan Act or a similar law of a province.
64 “pooled registered pension plan” or “PRPP” « régime de pension agréé collectif » ou « RPAC »
“qualifying annuity” « rente admissible »
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“pooled registered pension plan” or “PRPP” means a pooled pension plan that has been accepted for registration by the Minister for the purposes of this Act, which registration has not been revoked. “qualifying annuity”, for an individual, means an annuity that (a) is payable to (i) the individual for the individual’s life, or (ii) the individual for the lives, jointly, of the individual and the individual’s spouse or common-law partner and to the survivor of them for the survivor’s life; (b) is payable beginning no later than the later of (i) the end of the calendar year in which the individual attains 71 years of age, and (ii) the end of the calendar year in which the annuity is acquired; (c) unless the annuity is subsequently commuted into a single payment, is payable (i) at least annually, and (ii) in equal amounts or is not so payable solely because of an adjustment that would, if the annuity were an annuity under a retirement savings plan, in accordance with any of subparagraphs 146(3)(b)(iii) to (v); (d) if the annuity includes a guaranteed period, requires that (i) the period not exceed 15 years, and (ii) in the event of the later of the death of the individual and that of the individual’s spouse or common-law partner during the period, any remaining amounts otherwise payable be commuted into a single payment as soon as practicable after the later death; and (e) does not permit any premiums to be paid, other than the premium paid from the PRPP to acquire the annuity.
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2011-2012 “qualifying survivor” « survivant admissible »
“qualifying survivor”, in relation to a member of a PRPP, means an individual who, immediately before the death of the member (a) was a spouse or common-law partner of the member; or (b) was a child or grandchild of the member who was financially dependent on the member for support.
“restricted investment” « placement non admissible »
“restricted investment”, for a pooled pension plan, means (a) a debt of a member of the plan; (b) a share of, an interest in, or a debt of (i) a corporation, partnership or trust in which a member of the plan has a significant interest, or (ii) a person or partnership that does not deal at arm’s length with the member of the plan or with a person or partnership described in subparagraph (i); (c) an interest (or, for civil law, a right) in, or a right to acquire, a share, interest or debt described in paragraph (a) or (b); or (d) prescribed property.
“single amount” « montant unique »
“successor member” « participant remplaçant »
“unused nondeductible PRPP room” « somme inutilisée non déductible au titre des RPAC »
“single amount” means an amount that is not part of a series of periodic payments. “successor member” means an individual who was the spouse or common-law partner of a member of a PRPP immediately before the death of the member and who acquires, as a consequence of the death, all of the member’s rights in respect of the member’s account under the PRPP. “unused non-deductible PRPP room”, of a taxpayer at the end of a taxation year, means the amount determined by the formula A–B where A is the amount of the taxpayer’s unused RRSP deduction room at the end of the year, determined in accordance with subsection (33); and
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B is the taxpayer’s unused RRSP deduction room at the end of the year.
Registration conditions
(2) The Minister may accept for registration a pooled pension plan for the purposes of this Act, but shall not accept for registration any plan unless application for registration is made in prescribed manner by the plan administrator and, in the Minister’s opinion, the plan complies with the following conditions: (a) the primary purpose of the plan is to accept and invest contributions in order to provide retirement income to plan members, subject to the limits and other requirements under this Act; (b) a single and separate account is maintained for each member under the member’s Social Insurance Number (i) to which are credited all contributions made to the plan in respect of the member, and any earnings of the plan allocated to the member, and (ii) to which are charged all payments and distributions made in respect of the member;
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(c) the only benefits provided under the plan in respect of each member are benefits determined solely with reference to, and provided by, the amount in the member’s account; (d) all earnings of the plan are allocated to plan members on a reasonable basis and no less frequently than annually; (e) the arrangement under which property is held in connection with the plan is acceptable to the Minister; (f) no right of a person under the plan is capable of being assigned, charged, anticipated, given as security or surrendered, other than (i) an assignment pursuant to a decree, order or judgment of a competent tribunal, or a under a written agreement, relating to a division of property between the member and the member’s spouse or common-law partner or former spouse or common-law partner, in settlement of rights arising out of, or on a breakdown of, their marriage or common-law partnership, or (ii) an assignment by the legal representative of a deceased individual on the distribution of the individual’s estate; (g) the plan requires that all amounts contributed or allocated to a member’s account vest immediately and indefeasibly for the benefit of the member; (h) the plan permits the payment of an amount to a member if the amount is paid to reduce the amount of tax that would otherwise be payable under Part X.1 by the member; (i) any amount payable from an account of a member after the death of the member is paid as soon as practicable after the death; (j) there is no reason to expect that the plan may become a revocable plan; and (k) any prescribed conditions. Conditions applicable to PRPPs
(3) A pooled registered pension plan becomes a revocable plan at any time that
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(a) a contribution is made to the plan other than an amount (i) paid by a member of the plan, (ii) paid by an employer or former employer of a member of the plan in respect of the member, or (iii) transferred to the plan in accordance with any of subsections (21), 146(16) and (21), 146.3(14) and (14.1), 147(19) and 147.3(1), (4) and (5) to (7); (b) a contribution is made to the plan in respect of a member after the calendar year in which the member attains 71 years of age, other than an amount described in subparagraph (a)(iii); (c) a participating employer makes contributions to the plan in a calendar year in respect of a member of the plan in excess of the RRSP dollar limit for the year, except in accordance with a direction by the member; (d) a distribution is made from the plan other than (i) a payment of benefits in accordance with subsection (5), or (ii) a return of contributions (A) if a contribution to the plan has been made as a result of a reasonable error by a member of the plan or a participating employer in relation to the plan and the return of contributions is made to the person who made the contribution no later than December 31 of the year following the calendar year in which the contribution was made, (B) to avoid the revocation of the registration of the plan, (C) to reduce the amount of tax that would otherwise be payable under Part X.1 by a member, or (D) to comply with any requirement under this Act; (e) property is held in connection with the plan that
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Emploi et croi (i) the administrator knew or ought to have known was a restricted investment for the plan, or (ii) in the case of a designated pooled pension plan, is a share or debt of, or an interest in, a participating employer of the plan or any person or partnership that does not deal at arm’s length with a participating employer, or an interest (or, for civil law, a right) in, or a right to acquire, such a share, debt or interest; (f) the value of a member’s right under the plan depends on the value of, or income or capital gains in respect of, property that would be described in paragraph (e) if it were held in connection with the plan; (g) the administrator borrows money or other property for the purposes of the plan; or (h) the plan or the administrator does not comply with a prescribed condition.
Non-payment of minimum amount
(4) A PRPP becomes a revocable plan at the beginning of a calendar year if the total amount distributed from a member’s account under the PRPP in the calendar year is less than the amount that would be the minimum amount for the calendar year under subsection 8506(5) of the Income Tax Regulations if the member’s account were an account under a money purchase provision of a registered pension plan.
Permissible benefits
(5) The following benefits may be provided under a pooled pension plan: (a) the payment of benefits to a member that would be in accordance with paragraph 8506(1)(e.1) of the Income Tax Regulations
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if the benefits were provided under a money purchase provision of a registered pension plan; and (b) the payment of a single amount from the member’s account. Additional conditions
(6) The Minister may, at any time, impose reasonable conditions, in writing, applicable with respect to PRPPs, a class of PRPPs or a particular PRPP.
Acceptance of amendments
(7) The Minister shall not accept an amendment to a PRPP unless (a) application for the acceptance is made in prescribed manner by the administrator of the PRPP; and (b) the amendment and the PRPP as amended comply with the registration conditions specified in subsection (2).
Trust not taxable
(8) No tax is payable under this Part by a trust governed by a PRPP on its taxable income for a taxation year, except that, if at any time in the year, it carries on a business, tax is payable under this Part by the trust on the amount that would be its taxable income for the year if it had no income or losses from sources other than the business, and for this purpose, (a) all capital gains and capital losses from the disposition of property held in connection with the business are deemed to be income or losses, as the case may be, from the business; and (b) the trust’s income is to be computed without reference to subsections 104(6), (19) and (21).
Obligations of administrator
(9) The administrator of a PRPP shall exercise the care, diligence and skill of a reasonably prudent trustee to minimize the possibility that the registration of the PRPP may be revoked other than at the request of the administrator.
Employer contributions deductible
(10) There may be deducted in computing a taxpayer’s income for a taxation year, the total of all amounts each of which is a contribution made by the taxpayer in the year or within 120
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Member contributions
(11) For the purposes of paragraphs 60(j), (j.1) and (l), section 146 (other than subsections (8.3) to (8.7)), paragraphs 146.01(3)(a) and 146.02(3)(a) and Parts X.1 and X.5, a contribution made to a PRPP by a member of a PRPP is deemed to be a premium paid by the member to an RRSP under which the member is the annuitant.
Member’s account
(12) For the purposes of paragraph 18(1)(u), subparagraph (a)(i) of the definition “excluded right or interest” in subsection 128.1(10), paragraph 146(8.2)(b), subsection 146(8.21), paragraphs 146(16)(a) and (b), subparagraph 146(21)(a)(i), paragraph (b) of the definition “excluded premium” in subsection 146.01(1), paragraph (c) of the definition “excluded premium” in subsection 146.02(1), subsections 146.3(14) and 147(19) to (21), section 147.3 and paragraphs 212(1)(j.1) and (m), and of regulations made under 147.1(18), a member’s account under a PRPP is deemed to be a registered retirement savings plan under which the member is the annuitant.
Taxable amounts
(13) There shall be included in computing the income of a taxpayer for a taxation year (a) if the taxpayer is a member of a PRPP, the total of all amounts each of which is a distribution made in the year from the member’s account under the PRPP, other than an amount that is (i) included in computing the income of another taxpayer for the year under paragraph (b), (ii) described in subsection (22), or
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(iii) distributed after the death of the member; (b) if the taxpayer is a participating employer in relation to a PRPP, the total of all amounts each of which is a return of contributions that is described in clause (3)(d)(ii)(A) and that is made to the taxpayer in the year.
Treatment on death — no successor member
(14) If a member of a PRPP dies and there is no successor member in respect of the deceased member’s account under the PRPP, an amount, equal to the amount by which the fair market value of all property held in connection with the account immediately before the death exceeds the total of all amounts distributed from the account that are described in subsection (16), is deemed to have been distributed from the account immediately before the death.
Treatment on death — successor member
(15) If a member of a PRPP dies and there is a successor member in respect of the deceased member’s account under the PRPP, (a) the account ceases to be an account of the deceased member at the time of the death; (b) the successor member is, after the time of the death, deemed to hold the account as a member of the PRPP; and (c) the successor member is deemed to be a separate member in respect of any other account under the PRPP that the successor member holds.
Qualifying survivor
(16) If, as a consequence of the death of a member of a PRPP, an amount is distributed in a taxation year from the member’s account under the PRPP to, or on behalf of, a qualifying survivor of the member, the amount shall be included in computing the survivor’s income for the year, except to the extent that it is an amount described in subsection (22).
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2011-2012 Deemed distribution to qualifying survivor
(17) If an amount is distributed at any time from a deceased member’s account under a PRPP to the member’s legal representative and a qualifying survivor of the member is entitled to all or a portion of the amount in full or partial satisfaction of the survivor’s rights as a beneficiary (as defined in subsection 108(1)) under the deceased’s estate, then, for the purposes of subsection (16), the amount or portion of the amount, as the case may be, is deemed to have been distributed at that time from the member’s account to the qualifying survivor (and not to the legal representative) to the extent that it is so designated jointly by the legal representative and the qualifying survivor in prescribed form filed with the Minister.
Post-death increase in value
(18) There shall be included in computing the income for a taxation year of a taxpayer who is not a qualifying survivor in relation to a member of a PRPP, the total of all amounts each of which is an amount determined by the formula A–B where A is the amount of a distribution made in the year from the member’s account under the PRPP as a consequence of the member’s death to, or on behalf of, the taxpayer, and B is an amount designated by the administrator of the PRPP not exceeding the lesser of (a) the amount of the distribution, and (b) the amount by which the fair market value of all property held in connection with the account immediately before the death exceeds the total of all amounts each of which is (i) the value of B in respect of any prior distribution made from the account, or (ii) an amount included under subsection (16) in computing the income of a qualifying survivor in relation to the member.
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Post-death decrease in value
(19) There may be deducted in computing the income of a member of a PRPP for the taxation year in which the member dies, an amount not exceeding the amount determined, after all amounts payable from the member’s account under the PRPP have been distributed, by the formula
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A–B where A is the total of all amounts each of which is an amount in respect of the account (a) included in the member’s income under subsection (13) because of the application of subsection (14), (b) included in the income of another taxpayer under subsection (16) or (18), or (c) transferred in accordance with subsection (21) in circumstances described in subparagraph (21)(b)(iii); and B is the total of all distributions made from the account after the member’s death.
Subsection (19) not applicable
(20) Except where the Minister has waived in writing the application of this subsection with respect to all or any portion of the amount determined in subsection (19) in respect of a member’s account under a PRPP, that subsection does not apply if the last distribution from the account was made after the end of the calendar year following the year in which the member died.
Transfer of amounts
(21) An amount is transferred from a member’s account under a PRPP in accordance with this subsection if the amount (a) is a single amount; (b) is transferred on behalf of an individual who (i) is the member,
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(ii) is a spouse or common-law partner or former spouse or common-law partner of the member and who is entitled to the amount under a decree, order or judgment of a competent tribunal, or under a written agreement, relating to a division of property between the member and the individual, in settlement of rights arising out of, or on a breakdown of, their marriage or common-law partnership, or (iii) is entitled to the amount as a consequence of the death of the member and was a spouse or common-law partner of the member immediately before the death; and (c) is transferred directly to (i) the individual’s account under the PRPP, (ii) another PRPP in respect of the individual, (iii) a registered pension plan for the benefit of the individual, (iv) a registered retirement savings plan or registered retirement income fund under which the individual is the annuitant, or (v) a licensed annuities provider to acquire a qualifying annuity for the individual. Taxation of transfers
(22) If subsection (21) applies to an amount transferred from a member’s account under a PRPP on behalf of an individual, (a) the amount shall not, by reason only of that transfer, be included in computing the income of the individual; and (b) no deduction may be made in respect of the amount in computing the income of any taxpayer.
Taxation of qualifying annuity
(23) If an amount is transferred in accordance with subsection (21) to acquire a qualifying annuity, there shall be included — under this section and not under any other provision of this Act — in computing an individual’s income for a taxation year any amount received by the individual during the year out of or under the annuity or as proceeds from a disposition in respect of the annuity.
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Notice of intent
(24) The Minister may give notice (in subsections (25) and (26) referred to as a “notice of intent”) to an administrator of a PRPP in writing that the Minister intends to revoke the registration of the plan as a PRPP if
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(a) the plan does not comply with the conditions for registration in subsection (2); (b) the plan is not administered in accordance with the terms of the plan as registered; (c) the plan becomes a revocable plan; (d) a condition imposed under subsection (6) that applies with respect to the plan is not complied with; or (e) registration of the plan under the Pooled Registered Pension Plans Act or a similar law of a province is refused or revoked. Date of revocation
(25) The notice of intent shall specify the date on which revocation of a PRPP is to be effective, which date shall not be earlier than the earliest date on which one of the events described in subsection (24) occurs.
Notice of revocation
(26) At any time after 30 days after the day on which the notice of intent is mailed to an administrator of a PRPP, the Minister may give notice (in this subsection and in subsection (27) referred to as a “notice of revocation”) in writing to the administrator that the registration of the PRPP is revoked as of the date specified in the notice of revocation and that date may not be earlier than the date specified in the notice of intent.
Revocation of registration
(27) If the Minister gives a notice of revocation to the administrator of a PRPP, the registration of the PRPP is revoked as of the date specified in the notice of revocation, unless the Federal Court of Appeal or a judge of that Court, on application made at any time before the determination of an appeal pursuant to subsection 172(3), orders otherwise.
Voluntary revocation
(28) If the administrator of a PRPP so requests in writing, the Minister may give notice in writing to the administrator that the
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Emploi et croi registration of the PRPP is revoked as of a specified date and that date may not be earlier than the date specified in the administrator’s request.
Single employer
(29) For the purposes of the definition “designated pooled pension plan” in subsection (1), all employers that are related to each other are deemed to be a single employer and all the structural units of a trade union, including each local, branch, national and international unit, are deemed to be a single employer.
Significant interest
(30) For the purposes of the definition “restricted investment” in subsection (1), a member of a pooled pension plan has a significant interest in a corporation, trust or partnership at any time if, at that time, (a) in the case of a corporation, the member is a specified shareholder of the corporation; and (b) in the case of a partnership or trust, (i) the member is a specified unitholder of the partnership or the trust, as the case may be, or (ii) the total fair market value of the member’s interests in the partnership or the trust, as the case may be, together with all interests in the partnership or the trust held by persons or partnerships with whom the member does not deal at arm’s length or is affiliated, is 10% or more of the fair market value of all interests in the partnership or the trust.
Contributions from exempt income
(31) Contributions may be made to a PRPP in respect of a member of the PRPP as if the member’s earned income (as defined in subsection 146(1)) for a taxation year included the member’s exempt earned income for the year.
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Non-deductible contributions
(32) A contribution made by a member of a PRPP to the member’s account under the PRPP out of or from the member’s exempt earned income may not be deducted in computing the income of the member for any taxation year.
Exempt contributions not overcontributions
(33) For the purposes of Part X.1 as it applies because of subsection (11) in respect of contributions made to a PRPP,
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(a) an individual’s earned income (as defined in subsection 146(1)) for any taxation year after 2012 includes the individual’s exempt earned income for that year; (b) an individual’s exempt-income contribution amount for any taxation year is deemed to have been deducted by the individual under subsection 146(5) in computing the individual’s income for that year; and (c) the description of D in paragraph (b) of the definition “unused RRSP deduction room” in subsection 146(1) is to be read without reference to subparagraph (iv).
Designation of exempt-income contribution amount
(34) A taxpayer may designate an amount as the taxpayer’s exempt-income contribution amount for a taxation year if the amount designated does not exceed the lesser of (a) the taxpayer’s unused non-deductible PRPP room at the end of the preceding taxation year, and (b) the total of the taxpayer’s contributions as a member to a PRPP for the year (other than contributions to which subsection (32) applies).
Regulations — other
(35) The Governor in Council may make regulations (a) prescribing conditions applicable to administrators; (b) requiring administrators to file information returns respecting pooled pension plans;
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Emploi et croi (c) enabling the Minister to require any person to provide the Minister with information for the purposes and provisions of this Act relating to PRPPs; and (d) generally to carry out the purposes and provisions of this Act relating to PRPPs.
(2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 37. (1) Subsection 148(1) of the Act is amended by adding the following after paragraph (b.2): (b.3) a pooled registered pension plan, (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 38. (1) Subsection 149(1) of the Act is amended by adding the following after paragraph (u.2): Pooled registered pension plan
(u.3) a trust governed by a pooled registered pension plan to the extent provided under section 147.5; (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 39. (1) Paragraph 152(6)(f.3) of the Act is replaced by following: (f.3) a deduction (including for the purposes of this subsection a reduction of an amount otherwise required to be included in computing a taxpayer’s income) under subsection 146(8.9) or (8.92), 146.3(6.2) or (6.3) or 147.5(14) or (19), (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force.
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40. (1) The description of A in the definition “net tax owing” in subsection 156.1(1) of the Act is replaced by the following: A is the total of the taxes payable under this Part and Parts I.2, X.5 and XI.4 by the individual for the year, (2) Subsection (1) applies to the 2012 and subsequent taxation years. 41. (1) Subsection 172(3) of the Act is amended by striking out “or” at the end of paragraph (f.1) and by adding the following after paragraph (g): (h) refuses to accept for registration for the purposes of this Act any pooled pension plan or gives notice under subsection 147.5(24) to the administrator of a pooled registered pension plan that the Minister proposes to revoke its registration, or (i) refuses to accept an amendment to a pooled registered pension plan, (2) The portion of subsection 172(3) of the Act, as amended by subsection (1), after paragraph (i) is replaced by the following: the person described in paragraph (a), (a.1) or (a.2), the applicant in a case described in paragraph (b), (e) or (g), a trustee under the plan or an employer of employees who are beneficiaries under the plan, in a case described in paragraph (c), the promoter in a case described in paragraph (e.1), the administrator of the plan or an employer who participates in the plan, in a case described in paragraph (f) or (f.1), or the administrator of the plan in a case described in paragraph (h) or (i), may appeal from the Minister’s decision, or from the giving of the notice by the Minister, to the Federal Court of Appeal. (3) Paragraphs 172(5)(a) and (b) of the Act are replaced by the following: (a) to register for the purposes of this Act any pension plan or pooled pension plan, or (b) to accept an amendment to a registered pension plan or a pooled registered pension plan
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(4) Subsections (1) to (3) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 42. (1) Subsection 180(1) of the Act is amended by striking out “or” at the end of paragraph (c.1) and by replacing paragraph (d) with the following: (c.2) the mailing of notice to the administrator of the pooled registered pension plan under subsection 147.5(24), or (d) the time the decision of the Minister to refuse the application for acceptance of the amendment to the registered pension plan or pooled registered pension plan was mailed, or otherwise communicated in writing, by the Minister to any person, (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 43. (1) The description of D in paragraph 204.2(1.1)(b) of the Act is replaced by the following: D is the group plan amount in respect of the individual at that time, (2) Subparagraph (a)(iii) of the description of I in subsection 204.2(1.2) of the Act is replaced by the following: (iii)
an amount transferred to the plan on behalf of the individual in accordance with any of subsections 146(16), 147(19), 147.3(1) and (4) to (7) and 147.5(21) or in circumstances to which subsection 146(21) applies,
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(3) The description of I in subsection 204.2(1.2) of the Act is amended by striking out “or” at the end of paragraph (a), by replacing “and” at the end of paragraph (b) with “or” and by adding the following after paragraph (b): (c) an amount contributed in the year and before that time by an employer or former employer of the individual to an account of the individual under a pooled registered pension plan, and (4) Paragraph (a) of the description of J in subsection 204.2(1.2) of the Act is replaced by following: (a) the total of all amounts each of which is an amount (other than the portion of it that reduces the amount on which tax is payable by the individual under subsection 204.1(1)) received by the individual in the year and before that time out of or under a pooled registered pension plan, a registered retirement savings plan or a registered retirement income fund and included in computing the individual’s income for the year (5) The portion of subsection 204.2(1.3) of the Act before paragraph (a) is replaced by the following: Group plan amount
(1.3) For the purposes of this section, the group plan amount in respect of an individual at any time in a taxation year is the lesser of
(6) Subparagraph (i) of the description F in paragraph 204.2(1.3)(a) of the Act is replaced by the following: (i) the total of all amounts each of which is a qualifying group plan amount in respect of the individual, to the extent that the amount is included in determining the value of I in subsection (1.2) in respect of the individual at that time, and (7) Subparagraph (ii) of the description K in paragraph 204.2(1.3)(a) of the Act is replaced by the following:
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Emploi et croi (ii) in any other case, the group plan amount in respect of the individual at the end of the preceding taxation year, and (8) Subsection 204.2(1.31) of the Act is replaced by the following:
Qualifying group plan amount
(1.31) For the purposes of the description of F in paragraph (1.3)(a), a qualifying group plan amount in respect of an individual is a premium paid under a registered retirement savings plan or an amount contributed by an employer or former employer of the individual to an account of the individual under a pooled registered pension plan if (a) the plan is part of a qualifying arrangement or is a pooled registered pension plan, (b) the premium or contribution is an amount to which the individual is entitled for services rendered by the individual (whether or not as an employee), and (c) the premium or contribution was remitted to the plan on behalf of the individual by the person or body of persons that is required to remunerate the individual for the services, or by an agent for that person or body, but does not include the part, if any, of a premium or contribution that, by making (or failing to make) an election or exercising (or failing to exercise) any other right under the plan after beginning to participate in the plan and within 12 months before the time the premium was paid or the contribution was made, the individual could have prevented the premium or contribution and that would not as a consequence have been required to be remitted on behalf of the individual to another registered retirement savings plan or pooled registered pension plan or to a money purchase provision of a registered pension plan.
(9) Section 204.2 of the Act is amended by adding the following after subsection (4):
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PRPP withdrawals
(5) Notwithstanding the Pooled Registered Pension Plans Act or any similar law of a province, a member of a PRPP may withdraw an amount from the member’s account under the PRPP to reduce the amount of tax that would otherwise be payable by the member under this Part, to the extent that the reduction cannot be achieved by withdrawals from plans other than PRPPs.
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(10) Subsections (1) to (9) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 44. (1) Subsection 207.5(1) of the Act is amended by adding the following in alphabetical order: “advantage” « avantage »
“advantage”, in relation to a retirement compensation arrangement, means (a) any benefit, loan or indebtedness that is conditional in any way on the existence of the arrangement, other than (i) a benefit derived from the provision of administrative or investment services in respect of the arrangement, (ii) a loan or an indebtedness the terms and conditions of which are terms and conditions that persons dealing at arm’s length with each other would have entered into, and (iii) a payment out of or under the arrangement that is included in computing a taxpayer’s income under Part I, and (b) a benefit that is an increase in the total fair market value of the subject property of the arrangement if it is reasonable to consider, having regard to all the circumstances, that the increase is attributable, directly or indirectly, to a transaction or event or a series of transactions or events one of the main purposes of which was to enable a person or a partnership to benefit from a provision of this Part, or from the exemption from tax under paragraph 149(1)(q.1), if the transaction, event or series
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(i) would not have occurred in a normal commercial or investment context in which parties deal with each other at arm’s length and act prudently, knowledgeably and willingly, or (ii) included a payment received as, on account or in lieu of, or in satisfaction of, a payment (A) for services provided by a person who is, or does not deal at arm’s length with, a specified beneficiary of the arrangement, or (B) of interest, of a dividend, of rent, of a royalty or of any other return on investment, or of proceeds of disposition, in respect of property (other than subject property of the arrangement) held by a person who is, or does not deal at arm’s length with, a specified beneficiary of the arrangement, (c) a benefit that is income or a capital gain that is reasonably attributable, directly or indirectly, to (i) a prohibited investment in respect of the arrangement, (ii) an amount received by a specified beneficiary of the arrangement, or by a person who does not deal at arm’s length with the specified beneficiary, if it is reasonable to consider, having regard to all the circumstances, that the amount was paid in relation to, or would not have been paid but for, subject property of the arrangement and the amount was paid as, on account or in lieu of, or in satisfaction of, a payment (A) for services provided by a person who is, or who does not deal at arm’s length with, the specified beneficiary, or (B) of interest, of a dividend, of rent, of a royalty or of any other return on investment, or of proceeds of disposition, (d) an RCA strip in respect of the arrangement, and (e) a prescribed benefit;
86 “prohibited investment” « placement interdit »
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“prohibited investment”, for a retirement compensation arrangement at any time, means property (other than prescribed excluded property) that is at that time (a) a debt of a specified beneficiary of the arrangement, (b) a share of the capital stock of, an interest in, or a debt of (i) a corporation, partnership or trust in which the specified beneficiary has a significant interest, or (ii) a person or partnership that does not deal at arm’s length with, or is affiliated with, the specified beneficiary, (c) an interest (or, for civil law, a right) in, or a right to acquire, a share, interest or debt described in paragraph (a) or (b), or (d) prescribed property;
“RCA strip” « somme découlant d’un dépouillement de CR »
“significant interest” « participation notable »
“specified beneficiary” « bénéficiaire déterminé »
“RCA strip”, in respect of a retirement compensation arrangement, means the amount of a reduction in the fair market value of subject property of the arrangement, if the value is reduced as part of a transaction or event or a series of transactions or events one of the main purposes of which is to enable a specified beneficiary of the arrangement, or a person or a partnership who does not deal at arm’s length with the specified beneficiary, to benefit from a provision of this Part or to obtain a benefit in respect of subject property of the arrangement or as a result of the reduction, but does not include an amount that is included in computing the income of the specified beneficiary or of an employer or former employer of the specified beneficiary; “significant interest” has the same meaning as in subsection 207.01(4); “specified beneficiary”, of a retirement compensation arrangement, means an individual who has an interest or a right in respect of the arrangement and who has or had a significant interest in an employer or former employer in respect of the arrangement;
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(2) Section 207.5 of the Act is amended by adding the following after subsection (2): Limitation on election
(3) Subsection (2) does not apply in respect of an RCA trust if any part of a decline in the fair market value of subject property of the retirement compensation arrangement is reasonably attributable to a prohibited investment for, or an advantage in relation to, the RCA trust unless the Minister is satisfied that it is just and equitable to allow the election to be made, having regard to all the circumstances, in which case, the Minister may adjust the amount deemed by subsection (2) to be the refundable tax of the arrangement to take into account all or part of the decline in the fair market value of the subject property.
(3) Subsection (1) applies after March 28, 2012, except that the definition “advantage” in subsection 207.5(1) of the Act, as enacted by subsection (1), does not apply in respect of transactions or events that relate to subject property of a retirement compensation arrangement acquired before March 29, 2012 (a) if the amount of what would otherwise be an advantage is included in computing the income of a beneficiary of the arrangement, or an employer in respect of the arrangement, for the taxation year in which the amount arose or the immediately following taxation year; or (b) if the subject property is a promissory note or similar debt obligation, commercially reasonable payments of principal and interest are made at least annually after 2012 in respect of the note or obligation and no RCA strip arises after March 28, 2012 in respect of the arrangement. For the purposes of this paragraph, an amendment to the terms of the note or
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obligation to provide for such payments is deemed not to be a disposition or an acquisition of the note or obligation.
(4) Subsection (2) applies to elections in respect of tax paid under subsection 207.7(1) of the Act in respect of contributions made to a retirement compensation arrangement after March 28, 2012 and income earned, capital gains realized and losses incurred, in respect of such contributions. 45. (1) The Act is amended by adding the following after section 207.6: Tax payable on prohibited investment
207.61 (1) A custodian of a retirement compensation arrangement shall pay a tax under this Part for a calendar year if, at any time in the year, (a) the arrangement acquires property that is a prohibited investment for the arrangement; or (b) subject property of the arrangement becomes a prohibited investment for the arrangement after March 29, 2012.
Amount of tax payable
(2) The amount of tax payable in respect of each property described in subsection (1) is 50% of the fair market value of the property at the time referred to in that subsection.
Refund
(3) If in a calendar year an RCA trust disposes of a property in respect of which a tax is imposed under subsection (1) on the custodian of the retirement compensation arrangement, the custodian is entitled to a refund for the year of an amount equal to (a) the amount of the tax so imposed, unless paragraph (b) applies; or (b) nil, (i) if it is reasonable to consider that the custodian, or a specified beneficiary of the arrangement, knew, or ought to have known, at the time the property was
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Emploi et croi acquired by the arrangement, that it was, or would become, a property described in subsection (1), or (ii) if the property is not disposed of by the arrangement before the end of the calendar year following the calendar year in which the tax arose, or any later time that the Minister considers reasonable in the circumstances.
Deemed disposition and reacquisition
(4) If, at any time, a property held by an RCA trust ceases to be, or becomes, a prohibited investment for the RCA trust, the RCA trust is deemed to have disposed of the property immediately before that time for proceeds of disposition equal to the fair market value of the property at that time and to have reacquired the property at that time at a cost equal to that fair market value.
Tax payable in respect of advantage
207.62 (1) A custodian of a retirement compensation arrangement shall pay a tax under this Part for a calendar year if, in the year, an advantage in relation to the arrangement is extended to, or is received or receivable by, an RCA trust under the arrangement, a specified beneficiary of the arrangement or any person who does not deal at arm’s length with the specified beneficiary.
Amount of tax payable
(2) The amount of tax payable in respect of an advantage described in subsection (1) is (a) in the case of a benefit, the fair market value of the benefit; (b) in the case of a loan or an indebtedness, the amount of the loan or indebtedness; and (c) in the case of an RCA strip, the amount of the RCA strip.
Joint liability
207.63 If a custodian of a retirement compensation arrangement is liable to pay a tax under section 207.61 or 207.62, a specified beneficiary of the arrangement is jointly and severally, or solidarily, liable for that tax to the extent that the specified beneficiary participated in, assented to or acquiesced in the making of, the transaction or event or series of transactions or events that resulted in the liability.
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Waiver of tax payable
207.64 If a person would otherwise be liable to pay a tax under this Part because of any of sections 207.61 to 207.63, the Minister may waive or cancel all or part of the liability if the Minister considers it just and equitable to do so having regard to all the circumstances, including
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(a) whether the tax arose as a consequence of reasonable error; and (b) the extent to which the transaction or event or series of transactions or events that gave rise to the tax also gave rise to another tax under this Act.
Deemed distribution
207.65 For the purposes of the definition “refundable tax” in subsection 207.5(1), tax paid under section 207.61 or 207.62 by a custodian of a retirement compensation arrangement out of property held in connection with the arrangement is deemed to be a distribution under the arrangement for the taxation year in which the tax is paid to the extent that the tax has not been refunded, waived or cancelled.
(2) Subsection (1) applies after March 28, 2012. For the purposes of section 207.61 of the Act, as enacted by subsection (1), an amendment to the terms of a promissory note, or similar debt obligation, that is subject property of a retirement compensation arrangement acquired before March 29, 2012 to provide for commercially reasonable payments of principal and interest is deemed not to be a disposition or an acquisition of the note or obligation. 46. (1) The Act is amended by adding the following after Part XI.3:
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2011-2012 PART XI.4
TAX ON EXCESS EPSP AMOUNTS Excess EPSP amount
207.8 (1) In this Part, “excess EPSP amount”, of a specified employee for a taxation year in respect of an employer, means the amount determined by the formula A – (20% × B) where A is the portion of the total of all amounts paid by the employer of the specified employee (or by a corporation with which the employer does not deal at arm’s length) to a trust governed by an employees profit sharing plan that is allocated for the year to the specified employee; and B is the specified employee’s total income for the year from an office or employment with the employer computed without reference to paragraph 6(1)(d) and sections 7 and 8.
Tax payable
(2) If a specified employee has an excess EPSP amount for a taxation year, the specified employee shall pay a tax for the year equal to the amount determined by the formula (A + B) × C where A is 29%; B is (a) if the specified employee is resident in Quebec at the end of the year, 0%, (b) if the specified employee is resident in a province other than Quebec at the end of the year, the highest percentage rate of tax, including surtaxes but not taxes that are limited to a maximum amount, imposed by the province for the year on the income of an individual who is a resident of the province, or (c) in any other case, 14%; and C is the total of all excess EPSP amounts of the specified employee for the year.
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Waiver or cancellation
(3) If a specified employee would otherwise be liable to pay a tax under subsection (2), the Minister may waive or cancel all or part of the liability if the Minister considers it just and equitable to do so having regard to all the circumstances.
Return and payment of tax
(4) Every person who is liable to pay tax under this Part for a taxation year shall
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(a) on or before the person’s filing-due date for the year, file with the Minister a return for the year under this Part in prescribed form and containing prescribed information; and (b) on or before the person’s balance-due day for the year, pay to the Receiver General the amount of tax payable under this Part by the person for the year.
Provisions applicable to this Part
(5) Subsections 150(2) and (3), sections 152, 155 to 156.1, 158 to 160.1, 161 and 161.2 to 167 and Division J of Part I apply to this Part with any modifications that the circumstances require. (2) Subsection (1) applies to the 2012 and subsequent taxation years, except that it does not apply in respect of payments made to a trust governed by an employees profit sharing plan (a) before March 29, 2012; or (b) before 2013 pursuant to an obligation arising under a written agreement or arrangement entered into before March 29, 2012. 47. (1) The definition “registered life insurance policy” in subsection 211(1) of the Act is replaced by the following:
“registered life insurance policy” « police d’assurance-vie agréée »
“registered life insurance policy” means a life insurance policy issued or effected as or under a pooled registered pension plan, a registered retirement savings plan, a deferred profit sharing plan or a registered pension plan;
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Emploi et croi (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 48. (1) Paragraph 212(1)(h) of the Act is amended by adding the following before subparagraph (iii): (ii) an amount distributed from a pooled registered pension plan that has been designated by the administrator of the plan in accordance with subsection 147.5(18), (2) The po rtion of sub parag raph 212(1)(h)(iii.1) of the Act before clause (B) is replaced by the following: (iii.1) the portion of the payment that is transferred by the payer on behalf of the non-resident person, pursuant to an authorization in prescribed form, to a pooled registered pension plan, registered pension plan, registered retirement savings plan or registered retirement income fund and that (A) because of any of subsections 146(21), 147.3(9) and 147.5(22) would not, if the non-resident person had been resident in Canada throughout the taxation year in which the payment was made, be included in computing the non-resident person’s income, or (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 49. (1) The Act is amended by adding the following after section 212.2:
Foreign affiliate dumping — conditions for application
212.3 (1) Subsection (2) applies to an investment in a non-resident corporation (in this section referred to as the “subject corporation”) made at any time (in this section referred to as the “investment time”) by a corporation resident in Canada (in this section referred to as the “CRIC”) if (a) the subject corporation is immediately after the investment time, or becomes as part of a transaction or event or series of
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transactions or events that includes the making of the investment, a foreign affiliate of the CRIC; (b) the CRIC is at the investment time, or becomes as part of a transaction or event or series of transactions or events that includes the making of the investment, controlled by a non-resident corporation (in this section referred to as the “parent”); and (c) neither subsection (16) nor (18) applies in respect of the investment.
Foreign affiliate dumping — consequences
(2) If this subsection applies to an investment in a subject corporation made by a CRIC, (a) for the purposes of this Part and subject to subsections (3) and (7), the CRIC is deemed to have paid to the parent, and the parent is deemed to have received from the CRIC, at the investment time, a dividend equal to the total of all amounts each of which is the portion of the fair market value at the investment time of any property (not including shares of the capital stock of the CRIC) transferred, any obligation assumed or incurred, or any benefit otherwise conferred, by the CRIC, or of any property transferred to the CRIC which transfer results in the reduction of an amount owing to the CRIC, that can reasonably be considered to relate to the investment; and (b) in computing the paid-up capital in respect of any class of shares of the capital stock of the CRIC at any time that is at or after the investment time, there is to be deducted the amount of any increase in the paid-up capital in respect of the class, determined without reference to this section, that can reasonably be considered to relate to the investment.
2011-2012 Dividend substitution election
Emploi et croi (3) If a CRIC, all corporations that are, at the investment time, qualifying substitute corporations in respect of the CRIC, and the parent (or the parent and another non-resident corporation that is at the investment time controlled by the parent) jointly elect in writing under this subsection in respect of an investment, amounts are agreed on in respect of classes of shares of the capital stock of any of the CRIC and one or more of the qualifying substitute corporations, the total of the amounts agreed on equals the amount of the dividend that would, in the absence of this subsection, be deemed under paragraph (2)(a) to be paid and received, and the election is filed with the Minister on or before the earliest of the filing-due dates of the CRIC and the qualifying substitute corporations for their respective taxation years that include the investment time, then (a) the dividend that would, in the absence of this subsection, be deemed under paragraph (2)(a) to have been paid by the CRIC to the parent and received by the parent from the CRIC (i) is reduced by the total of all amounts each of which is an amount agreed on in the election in respect of a class of shares of the capital stock of a qualifying substitute corporation, and (ii) is, as reduced by the application of subparagraph (i), deemed to be paid to, and received by, the parent or the other nonresident corporation (if the other nonresident corporation has elected under this subsection), as one or more dividends in the amounts, and in respect of the classes of shares of the capital stock of the CRIC, agreed on in the election; and (b) a dividend is deemed, at the investment time, to be paid to either the parent or the other non-resident corporation, as the case may be, by each qualifying substitute corporation in respect of which an amount has been agreed on in the election, and received by the parent, or the other non-resident corporation, from that qualifying substitute
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corporation, in the amount, and in respect of each class referred to in subparagraph (a)(i), agreed on in the election.
Qualifying substitute corporation
(4) For the purposes of this section, “qualifying substitute corporation”, at any time in respect of a CRIC, means a corporation resident in Canada (a) that is, at that time, controlled by the parent; (b) that has, at that time, an equity percentage (as defined in subsection 95(4)) in the CRIC; and (c) shares of the capital stock of which are, at that time, owned by the parent or another non-resident corporation with which the parent does not, at that time, deal at arm’s length.
Modification of terms — paragraph (10)(e)
(5) In the case of an investment described in paragraph (10)(e), the CRIC is deemed for the purposes of paragraph (2)(a) to transfer to the subject corporation property that relates to the investment, the fair market value of which property is (a) if the investment is described in subparagraph (10)(e)(i), the amount owing in respect of the debt obligation referred to in that subparagraph immediately after the investment time, or (b) if the investment is described in subparagraph (10)(e)(ii), the fair market value of the shares referred to in that subparagraph immediately after the investment time.
Application of subsection (7)
(6) Subsection (7) applies if paragraph (2)(a) or (3)(b) applies to an investment in a subject corporation made by a CRIC and (a) if an election is made under subsection (3) in respect of the investment, (i) each class of shares of the capital stock of the CRIC or of a qualifying substitute corporation, in respect of which an amount has been agreed on in the election, is a
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class of which the parent, or another nonresident corporation with which the parent does not, at the investment time, deal at arm’s length, owns shares, and (ii) the election results in the greatest possible amount that is the total of all amounts each of which would, if subparagraph (7)(b)(i) applied in respect of the investment, be a reduction of paid-up capital in respect of a share of the capital stock of the CRIC, or a qualifying substitute corporation, that is owned by the parent or another non-resident corporation with which the parent does not, at the investment time, deal at arm’s length; or (b) in any other case, the following conditions are met: (i) either (A) there was only one class of issued and outstanding shares of the capital stock of the CRIC at the investment time, or (B) the CRIC demonstrates that an amount of paid-up capital in respect of one or more classes of shares of the capital stock of the CRIC arose from one or more transfers of property to the CRIC and that (I) in the case of an investment described in paragraph (10)(f), all the property transferred was used by the CRIC to make, in whole or in part, the direct acquisition referred to in that paragraph, and (II) in any other case, all the property transferred was used by the CRIC to make, in whole or in part, the investment; and (ii) at the investment time, each share of the capital stock of the CRIC that was not owned by the parent was owned by (A) a person who was dealing at arm’s length with the CRIC, or (B) a non-resident person who was not dealing at arm’s length with the CRIC.
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Reduction of deemed dividend
(7) If this subsection applies, the following rules apply:
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(a) the amount of any dividend deemed under this section to have been paid by the CRIC or a qualifying substitute corporation and to have been received by a non-resident corporation in respect of the investment is to be reduced by the lesser of (i) the amount that would, in the absence of this subsection, be deemed to be paid and received as a dividend under this section, and (ii) one of (A) if paragraph (6)(a) applies, the amount of paid-up capital in respect of the class of shares in respect of which the dividend is deemed to be paid, (B) if clause (6)(b)(i)(A) applies, the amount of paid-up capital in respect of the class referred to in that clause immediately before the investment time, or (C) if clause (6)(b)(i)(B) applies, the total of all amounts of paid-up capital, determined under that clause, in respect of a class of shares of the capital stock of the CRIC; and (b) in computing the paid-up capital in respect of a class of shares of the capital stock of the CRIC or a qualifying substitute corporation, as the case may be, at any time that is at or after the investment time, there is to be deducted (i) if clause (a)(ii)(A) applies, the amount determined under paragraph (a) in respect of the class, and (ii) if clause (a)(ii)(B) or (C) applies, the amount determined under paragraph (a) that can reasonably be considered to relate to the class.
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Paid-up capital adjustment
(8) In computing the paid-up capital at any time after March 28, 2012 in respect of a class of shares of the capital stock of a corporation, there is to be added an amount equal to the lesser of (a) the amount, if any, by which (i) the total of all amounts deemed by subsection 84(3), (4) or (4.1) to be a dividend on shares of the class paid after March 28, 2012 and before that time by the corporation exceeds (ii) the total that would be determined under subparagraph (i) if this Act were read without reference to paragraphs (2)(b) and (7)(b) and subsection (9), and (b) the amount, if any, by which (i) the total of all amounts required by paragraph (2)(b) or (7)(b) to be deducted in computing the paid-up capital in respect of the class before that time exceeds (ii) the total of all amounts required by subsection (9) to be added in computing the paid-up capital in respect of the class before that time.
Paid-up capital reinstatement
(9) If, in respect of an investment in a subject corporation made by a CRIC that is described in paragraph (10)(a), (b) or (f), an amount is required by paragraph (2)(b) or (7)(b) to be deducted in computing the paid-up capital in respect of a class of shares of the capital stock of a particular corporation, and the particular corporation reduces, at a time subsequent to the investment time, the paid-up capital in respect of the class, then the paid-up capital in respect of the class is to be increased, immediately before the subsequent time, by the least of
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(a) the amount of the reduction of the paidup capital at the subsequent time, (b) the amount, if any, by which (i) the amount required by paragraph (2)(b) or (7)(b), as the case may be, to be deducted, in respect of the investment, in computing the paid-up capital in respect of the class exceeds (ii) the total of all amounts required under this subsection to be added, in respect of the investment, to the paid-up capital of the class in respect of a reduction of paid-up capital made before the subsequent time, and (c) an amount that (i) if the property distributed on the reduction of paid-up capital is shares of the capital stock of the subject corporation (in this paragraph referred to as the “subject shares”) or shares of the capital stock of a foreign affiliate of the particular corporation that were substituted for the subject shares, is equal to the fair market value of the subject shares, or the portion of the fair market value of the substituted shares that may reasonably be considered to relate to the subject shares, as the case may be, at the subsequent time, (ii) the particular corporation demonstrates that it has received directly or indirectly after the investment time and no more than 180 days before the subsequent time (A) as proceeds from the disposition of the subject shares, or as the portion of the proceeds from the disposition of the substituted shares that may reasonably be considered to relate to the subject shares, other than as proceeds from a disposition in respect of which the related acquisition is one to which subsection (18) applies, or (B) as a dividend or reduction of paidup capital in respect of a class of subject shares, or the portion of a dividend or reduction of paid-up capital in respect of
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a class of substituted shares that may reasonably be considered to relate to the subject shares, or (iii) if neither subparagraph (i) nor (ii) applies, is equal to nil. Investment in subject corporation
(10) In this section, “investment”, in a subject corporation made by a CRIC, means any of (a) an acquisition of shares of the capital stock of the subject corporation by the CRIC; (b) a contribution of capital to the subject corporation by the CRIC, which is deemed to include any transaction or event under which a benefit is conferred on the subject corporation by the CRIC; (c) a transaction under which an amount becomes owing by the subject corporation to the CRIC, other than an amount owing (i) that arises in the ordinary course of the business of the CRIC and that is repaid, other than as part of a series of loans or other transactions and repayments, within 180 days after the day on which the amount becomes owing, or (ii) that is a pertinent loan or indebtedness immediately after the time of the transaction; (d) an acquisition of a debt obligation of the subject corporation by the CRIC from a person, other than (i) if the acquisition is made in the ordinary course of the business of the CRIC, a debt obligation acquired from a person with which the CRIC deals at arm’s length at the time of the acquisition, or (ii) a debt obligation that is a pertinent loan or indebtedness immediately after the time of the acquisition; (e) an extension of (i) the maturity date of a debt obligation (other than a debt obligation that is a pertinent loan or indebtedness immediately after the time of the extension) owing by the subject corporation to the CRIC, or
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(ii) the redemption, acquisition or cancellation date of shares of the capital stock of the subject corporation owned by the CRIC; (f) an indirect acquisition by the CRIC of shares of the capital stock of the subject corporation that results from a direct acquisition by the CRIC of shares of the capital stock of another corporation resident in Canada, of which the subject corporation is a foreign affiliate, if the total fair market value of all the shares that are held directly or indirectly by the other corporation and are shares of foreign affiliates of the other corporation exceeds 75% of the total fair market value (determined without reference to debt obligations of any corporation resident in Canada in which the other corporation has a direct or indirect interest) of all of the properties owned by the other corporation; and (g) an acquisition by the CRIC of an option in respect of, or an interest in, or for civil law a right in, shares of the capital stock of, an amount owing by (other than an amount owing described in subparagraph (c)(i) or (ii)), or a debt obligation of (other than a debt obligation described in subparagraph (d)(i) or (ii)), the subject corporation.
Pertinent loan or indebtedness
(11) For the purposes of subsection (10) and subject to subsection 17.1(3), “pertinent loan or indebtedness”, at any time, means an amount owing at that time by the subject corporation to the CRIC in respect of which all of the following apply: (a) either (i) the amount became owing after March 28, 2012, or
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Emploi et croi (ii) the amount became owing before March 29, 2012 and is a debt obligation for which the maturity date was extended after March 28, 2012 and at or before that time; (b) the amount owing is not an amount owing described in subparagraph (10)(c)(i) or a debt obligation described in subparagraph (10)(d)(i); and (c) the CRIC and the parent jointly elect in writing under this paragraph in respect of the amount owing and file the election with the Minister on or before the filing-due date of the CRIC (i) in the case of an amount owing described in subparagraph (a)(i), for the year in which the amount became owing, or (ii) in the case of an amount owing described in subparagraph (a)(ii), for the year in which the extension was made.
Late-filed elections
(12) Where an election referred to in subsection (3) or paragraph (11)(c) was not made on or before the day on or before which the election was required by that paragraph to be made, the election is deemed to have been made on that day if the election is made on or before the day that is three years after that day and the penalty in respect of the election is paid by the CRIC when the election is made.
Penalty for latefiled election
(13) For the purposes of subsection (12), the penalty in respect of an election referred to in that subsection is the amount equal to the product obtained by multiplying $100 by the number of months each of which is a month all or part of which is during the period commencing with the day on or before which the election is required by subsection (3) or paragraph (11)(c), as the case may be, to be made and ending on the day on which the election is made.
Rules for paragraph (10)(f)
(14) For the purposes of paragraph (10)(f), (a) the condition in that paragraph is deemed to be satisfied at the time of the acquisition if
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(i) any property (other than shares of foreign affiliates of the other corporation that is referred to in that paragraph) held directly or indirectly by that other corporation is disposed of, after the time of the acquisition, directly or indirectly by that corporation as part of a series of transactions or events that includes the acquisition, and (ii) at any time that is subsequent to the time of the acquisition and that is in the period during which the series occurs, the condition in that paragraph would have been satisfied had the acquisition occurred at the subsequent time; and (b) the fair market value of properties held directly or indirectly by the other corporation is not to be taken into account more than once in determining whether the condition in that paragraph is satisfied. Control
(15) For the purposes of this section and paragraph 128.1(1)(c.3), a CRIC that would, in the absence of this subsection, be controlled at any time (a) by more than one non-resident corporation is deemed not to be controlled at that time by any such non-resident that controls at that time another non-resident corporation that controls at that time the CRIC, unless the application of this subsection would otherwise result in no non-resident corporation controlling the CRIC; and (b) by a particular non-resident corporation is deemed not to be controlled at that time by the particular corporation if the particular corporation is controlled at that time by another corporation that is at that time (i) resident in Canada, and (ii) not controlled by any non-resident person.
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2011-2012 Exception — more closely connected business activities
(16) Subject to subsection (19), subsection (2) does not apply to an investment in a subject corporation made by a CRIC if the CRIC demonstrates that all of the following conditions are met: (a) the business activities carried on by the subject corporation and all other corporations (those other corporations in this subsection and subsection (17) referred to as the “subject subsidiary corporations”) in which the subject corporation has, at the investment time, an equity percentage (as defined in subsection 95(4)) are at the investment time, and are expected to remain, on a collective basis, more closely connected to the business activities carried on in Canada by the CRIC, or by any corporation resident in Canada with which the CRIC does not, at the investment time, deal at arm’s length, than to the business activities carried on by any nonresident corporation with which the CRIC, at the investment time, does not deal at arm’s length, other than (i) the subject corporation, (ii) the subject subsidiary corporations, and (iii) any corporation that is, immediately before the investment time, a controlled foreign affiliate of the CRIC for the purposes of section 17, (b) officers of the CRIC had and exercised the principal decision-making authority in respect of the making of the investment and a majority of those officers were, at the investment time, persons each of whom was resident, and working principally, (i) in Canada, or (ii) in a country in which a particular corporation is resident if the particular corporation (in this subsection and subsection (17) referred to as a “connected affiliate”) is a controlled foreign affiliate of the CRIC for the purposes of section 17 and carries on business activities that are, at the investment time, and are expected to remain, at least as closely connected to those of the subject corporation and the
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subject subsidiary corporations, on a collective basis, as the business activities carried on in Canada by the CRIC, or any corporation resident in Canada with which the CRIC does not, at the investment time, deal at arm’s length, as the case may be, are to those of the subject corporation and the subject subsidiary corporations, on a collective basis; and (c) at the investment time, it is reasonably expected that (i) officers of the CRIC will have and exercise the ongoing principal decisionmaking authority in respect of the investment, (ii) a majority of those officers will be persons each of whom will be resident, and working principally, in Canada or in a country in which a connected affiliate is resident, and (iii) the performance evaluation and compensation of the officers of the CRIC who are resident, and work principally, in Canada, or in a country in which a connected affiliate is resident, will be based on the results of operations of the subject corporation to a greater extent than will be the performance evaluation and compensation of any officer of a nonresident corporation (other than the subject corporation, a corporation controlled by the subject corporation or a connected affiliate) that does not deal at arm’s length with the CRIC. Dual officers
(17) For the purposes of paragraphs (16)(b) and (c), any person who is an officer of the CRIC and of a non-resident corporation with which the CRIC, at the investment time, does not deal at arm’s length (other than the subject corporation, a subject subsidiary corporation or a connected affiliate) is deemed to not be resident, and to not work principally, in a country in which a connected affiliate is resident.
2011-2012 Exception — corporate reorganizations
Emploi et croi (18) Subject to subsections (19) and (20), subsection (2) does not apply to an investment in a subject corporation made by a CRIC if (a) the investment is described in paragraph (10)(a) and is an acquisition of shares of the capital stock of the subject corporation (i) from a corporation resident in Canada (A) to which the CRIC is, immediately before the investment time, related (determined without reference to paragraph 251(5)(b)), and (B) that is, at no time that is in the period during which the series of transactions or events that includes the making of the investment occurs and that is before the investment time, dealing at arm’s length (determined without reference to paragraph 251(5)(b)) with the CRIC, or (ii) on an amalgamation described in subsection 87(1) of two or more corporations (each of which is in this subparagraph referred to as a “predecessor corporation”) to form the CRIC if (A) all of the predecessor corporations are, immediately before the amalgamation, related to each other (determined without reference to paragraph 251(5)(b)), and (B) none of the predecessor corporations deal at arm’s length (determined without reference to paragraph 251(5)(b)) with another predecessor corporation at any time that is in the period during which the series of transactions or events that includes the making of the investment occurs and that is before the investment time; (b) the investment is described in paragraph (10)(a) and is an acquisition of shares of the capital stock of the subject corporation in which the shares are acquired by the CRIC (i) in an exchange to which subsection 51(1) applies,
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(ii) as consideration for a disposition of shares to which subsection 85.1(3) applies (determined without reference to subsection 85.1(4)), (iii) in the course of a reorganization of the capital of the subject corporation to which subsection 86(1) applies, (iv) as a result of a foreign merger (as defined in subsection 87(8.1)) under which the subject corporation was formed, (v) on a liquidation and dissolution to which subsection 88(3) applies, (vi) on a redemption of shares of another non-resident corporation that is, immediately before the investment time, a foreign affiliate of the CRIC, or (vii) as a dividend or a reduction of paidup capital in respect of the shares of another non-resident corporation that is, immediately before the investment time, a foreign affiliate of the CRIC; (c) the investment is an indirect acquisition referred to in paragraph (10)(f) that results from a direct acquisition of shares of the capital stock of another corporation resident in Canada (i) from a corporation (A) to which the CRIC is, immediately before the investment time, related (determined without reference to paragraph 251(5)(b)), and (B) that is, at no time that is in the period during which the series of transactions or events that includes the making of the investment occurs and that is before the investment time, dealing at arm’s length (determined without reference to paragraph 251(5)(b)) with the CRIC, (ii) on an amalgamation described in subsection 87(1) of two or more corporations (each of which is in this subparagraph referred to as a “predecessor corporation”) to form the CRIC if
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Emploi et croi (A) all of the predecessor corporations are, immediately before the amalgamation, related to each other (determined without reference to paragraph 251(5)(b)), and (B) none of the predecessor corporations deal at arm’s length (determined without reference to paragraph 251(5)(b)) with another predecessor corporation at any time that is in the period during which the series of transactions or events that includes the making of the investment occurs and that is before the investment time, (iii) in an exchange to which subsection 51(1) applies, (iv) in the course of a reorganization of the capital of the other corporation to which subsection 86(1) applies, or (v) to the extent that an investment (other than one described in paragraph (10)(f)) is made in the subject corporation by the other corporation, or by a particular corporation resident in Canada to which the CRIC and the other corporation are related at the investment time, using property transferred, directly or indirectly, by the CRIC to the other corporation or the particular corporation, as the case may be, if the two investments (A) occur within 30 days of each other, and (B) are part of the same series of transactions or events; or (d) the investment is an acquisition of shares of the capital stock of the subject corporation that is described in paragraph (10)(a), or an indirect acquisition referred to in paragraph (10)(f) that results from a direct acquisition of shares of the capital stock of another corporation resident in Canada, under which the shares of the subject corporation or the other corporation, as the case may be, are received by the CRIC as the sole consideration for an exchange of a debt obligation owing to the CRIC, other than an exchange to which subsection 51(1) applies.
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Preferred shares
(19) Subsection (16) and paragraphs (18)(b) and (d) do not apply to an acquisition of shares of the capital stock of a subject corporation by a CRIC if, having regard to all the terms and conditions of the shares and any agreement in respect of the shares, the shares may not reasonably be considered to fully participate in the profits of the subject corporation and any appreciation in the value of the subject corporation, unless the subject corporation would be a subsidiary wholly-owned corporation of the CRIC throughout the period during which the series of transactions or events that includes the acquisition occurs if the CRIC owned all of the shares of the capital stock of the subject corporation that are owned by any of
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(a) the CRIC; (b) a corporation resident in Canada that is a subsidiary wholly-owned corporation of the CRIC; and (c) a corporation resident in Canada of which the CRIC is a subsidiary wholly-owned corporation.
Assumption of debt on liquidation or distribution
(20) Subsection (2) applies to an investment in a subject corporation made by a CRIC that is an acquisition of shares of the capital stock of the subject corporation described in any of subparagraphs (18)(b)(v) to (vii) to the extent of the lesser of (a) the total of all amounts each of which is the amount of a debt obligation assumed by the CRIC in respect of the liquidation and dissolution, redemption, dividend or reduction of paid-up capital, as the case may be, and (b) the fair market value of the shares at the investment time.
Persons deemed not to be related
(21) If it can reasonably be considered that one of the main purposes of one or more transactions or events is to cause two or more persons to be related to each other so that, in the
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Emploi et croi absence of this subsection, subsection (2) would not apply because of subsection (18) to an investment in a subject corporation made by a CRIC, those persons are deemed not to be related to each other for the purposes of subsection (18).
Mergers
(22) For the purposes of this section and subsections 219.1(3) and (4), (a) if there has been an amalgamation to which subsection 87(11) applies, (i) the new corporation referred to in that subsection is deemed to be the same corporation as, and a continuation of, the parent and each subsidiary referred to in that subsection, and (ii) the new corporation is deemed not to acquire any property of the parent, or of any subsidiary, as a result of the amalgamation; and (b) if there has been a winding-up to which subsection 88(1) applies, (i) the parent referred to in that subsection is deemed to be the same corporation as, and a continuation of, the subsidiary referred to in that subsection, and (ii) the parent is deemed not to acquire any property of the subsidiary as a result of the winding-up.
Indirect investment
(23) Subsection (2) applies to an investment in a subject corporation made by a CRIC to which, in the absence of this subsection, subsection (2) would not apply because of subsection (16), to the extent that one or more properties received by the subject corporation from the CRIC as a result of the investment, or property substituted for any such property, may reasonably be considered to have been used by the subject corporation, directly or indirectly as part of a series of transactions or events that includes the making of the investment, in a transaction or event to which subsection (2) would have applied if the CRIC had entered into the transaction, or participated in the event, as the case may be, instead of the subject corporation.
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Indirect funding
(24) Subsection (2) does not apply to an investment in a subject corporation made by a CRIC to which, in the absence of this subsection, subsection (2) would apply, if the CRIC demonstrates that
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(a) all the properties received by the subject corporation from the CRIC as a result of the investment were used, at a particular time that is within 30 days after the investment time and at all times after the particular time, by the subject corporation to make a loan to a particular corporation that was, at the time of the loan, a controlled foreign affiliate of the CRIC for the purposes of section 17; (b) the particular corporation is, throughout the period that begins at the investment time and during which the series of transactions or events that includes the making of the loan occurs, a corporation in which an investment made by the CRIC would not be subject to subsection (2) because of subsection (16); and (c) the particular corporation uses, throughout the period during which the loan is outstanding, the proceeds of the loan in an active business (as defined in subsection 95(1)) carried on by it in the country in which it is resident.
Partnerships
(25) For the purposes of this section, subsection 17.1(1) (as it applies in respect of a pertinent loan or indebtedness as defined in subsection (11)), paragraph 128.1(1)(c.3) and subsection 219.1(2), (a) any transaction entered into, or event participated in, by a partnership is deemed to have been entered into, or participated in, as the case may be, by each member of the partnership in the proportion that the fair market value, at the time of the transaction or event, of the member’s interest — held directly or indirectly through one or more other partnerships — in the partnership is of the fair market value, at that time, of all direct interests in the partnership;
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Emploi et croi (b) if at any time, based on the assumptions contained in paragraph 96(1)(c), property would be owned by a partnership, that property is deemed to be owned at that time by each member of the partnership in the proportion that the fair market value, at that time, of the member’s interest — held directly or indirectly through one or more other partnerships — in the partnership is of the fair market value, at that time, of all direct interests in the partnership; (c) if at any time there is an increase (including, for greater certainty, as a result of a particular acquisition of an interest in a partnership in which, immediately prior to the particular acquisition, the member did not have an interest) in the portion of a property that is deemed under paragraph (b) to be owned by a member of a partnership, the member is deemed at that time (i) to acquire the additional portion of the property, and (ii) to transfer property that relates to the acquisition of the additional portion and that has a fair market value equal to the fair market value at that time of the additional portion; (d) if at any time, based on the assumptions contained in paragraph 96(1)(c), an amount would be owing by a partnership, that amount is deemed to be owed by each member of the partnership in the proportion that the fair market value, at that time, of the member’s interest — held directly or indirectly through one or more other partnerships — in the partnership is of the fair market value, at that time, of all direct interests in the partnership; (e) if a member of a partnership enters into a transaction, or participates in an event, with the partnership, paragraph (a) does not apply to the transaction or event to the extent that the transaction or event would, in the absence of this paragraph, be deemed by paragraph (a) to have been entered into, or participated in, as the case may be, by the member; and
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(f) a person or partnership that is (or is deemed by this paragraph to be) a member of a particular partnership that is a member of another partnership is deemed to be a member of the other partnership.
(2) Subject to subsection (3), subsection (1) applies in respect of transactions and events that occur after March 28, 2012. However, (a) subsection (1) does not apply to transactions that occur before 2013 between parties that deal at arm’s length with each other if (i) either (A) in the case of an indirect acquisition referred to in paragraph 212.3(10)(f) of the Act, as enacted by subsection (1), the CRIC referred to in that paragraph is obligated to complete the direct acquisition referred to in that paragraph under the terms of an agreement in writing entered into before March 29, 2012 between the CRIC and a public corporation that is the other corporation resident in Canada referred to in that paragraph, or (B) the parties are obligated to complete the transaction under the terms of an agreement in writing entered into between the parties before March 29, 2012, and (ii) no party to the agreement may be excused from the obligation as a result of amendments to the Act; and (b) any election referred to in subsection 212.3(3) or paragraph 212.3(11)(c) of the Act, as enacted by subsection (1), that
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Emploi et croi would otherwise be required to be filed with the Minister of National Revenue on or before the day that is 120 days after the day on which this Act receives royal assent is deemed to have been filed with the Minister on a timely basis if it is filed with the Minister on or before the day that is 365 days after the day on which this Act receives royal assent. (3) If a corporation resident in Canada (in this subsection referred to as the “CRIC”) and a non-resident corporation that controls the CRIC jointly elect in writing under this subsection in respect of all transactions and events to which subsection 212.3(2) of the Act, as enacted by subsection (1), would, in the absence of this subsection, apply and file the election with the Minister of National Revenue on or before the day that is the later of the CRIC’s filing-due date for the CRIC’s taxation year that includes the day on which this Act receives royal assent and the day that is one year after the day on which this Act receives royal assent, then, in respect of transactions and events that occur before August 14, 2012, section 212.3 of the Act, as enacted by subsection (1), is to be read without reference to its subsections (3) to (7), (9), (11) to (14), (17) to (22) and (24) and the following rules apply: (a) subsections 212.3(1) and (2) of the Act are to be read as follows:
212.3 (1) Subsection (2) applies to an investment in a non-resident corporation (referred to in this section as the “subject corporation”) that is made, at any time, by a corporation resident in Canada (referred to in this section as the “CRIC”) if (a) the subject corporation is, immediately after that time, or becomes, as part of a transaction or event or series of transactions or events that includes the investment, a foreign affiliate of the CRIC;
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(b) the CRIC is at that time controlled by another non-resident corporation (referred to in this section as the “parent”); and (c) the investment may not reasonably be considered to have been made by the CRIC, instead of being made or retained by the parent or another non-resident person that does not deal at arm’s length with the parent, primarily for bona fide purposes other than to obtain a tax benefit (as defined in subsection 245(1)).
(2) If this subsection applies to an investment in a subject corporation, (a) for the purposes of this Part, the CRIC is deemed to have paid to the parent at the time the investment was made, and the parent is deemed to have received from the CRIC at that time, a dividend equal to the total of all amounts each of which is the fair market value, at that time, of any property (not including shares of the capital stock of the CRIC) transferred, or obligation assumed or incurred, by the CRIC in respect of the investment; and (b) in computing the paid-up capital at any time after March 28, 2012 of any class of shares of the capital stock of the CRIC, there is to be deducted the amount of any increase, because of the investment, in the paid-up capital in respect of the shares of the class, computed without reference to this section. (b) subsection 212.3(8) of the Act is to be read as follows:
(8) In computing the paid-up capital at any time after March 28, 2012 in respect of a class of shares of the capital stock of a corporation, there is to be added an amount equal to the lesser of (a) the amount, if any, by which
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(i) the total of all amounts deemed by subsection 84(3), (4) or (4.1) to be a dividend on shares of the class paid after March 28, 2012 and before that time by the corporation, exceeds (ii) the total that would be determined under subparagraph (i) if this Act were read without reference to paragraph (2)(b); and (b) the total of all amounts required by paragraph (2)(b) to be deducted in computing the paid-up capital in respect of the class before that time. (c) subsection 212.3(10) of the Act is to be read as follows: (10) For the purposes of this section, an investment made in a subject corporation by a CRIC means any of (a) an acquisition of shares of the capital stock of the subject corporation by the CRIC; (b) a contribution of capital to the subject corporation by the CRIC; (c) a transaction under which an amount became owing by the subject corporation to the CRIC, other than an amount owing that arises in the ordinary course of the business of the CRIC and that is repaid within a commercially reasonable period; (d) an acquisition of a debt obligation of the subject corporation by the CRIC from another person, other than, if the acquisition was made in the ordinary course of the business of the CRIC, an acquisition from a person with which the CRIC dealt, at the time of the acquisition, at arm’s length; (e) an acquisition by the CRIC of an option in respect of, or an interest in, or for civil law a right in, shares of the capital stock, or a debt obligation, of the subject corporation; and (f) any transaction or event that is similar in effect to any of the transactions described in paragraphs (a) to (e). (d) subsections 212.3(15) and (16) of the Act are to be read as follows:
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(15) For the purposes of this section and paragraph 128.1(1)(c.3), a CRIC that is controlled by more than one non-resident corporation is deemed not to be controlled by any such non-resident that controls another non-resident corporation that controls the CRIC, unless the application of this subsection would otherwise result in no non-resident corporation controlling the CRIC. (16) In determining whether paragraph (1)(c) applies, the following factors are to be given primary consideration: (a) whether the business activities carried on by the subject corporation and any other corporation in which the subject corporation has, at the time referred to in subsection (1), an equity percentage (as defined in subsection 95(4)) are at that time, and are expected to remain, more closely connected to the business activities carried on by the CRIC (or by a corporation resident in Canada that is a subsidiary wholly-owned corporation of the CRIC or that is a corporation of which the CRIC is a subsidiary wholly-owned corporation) than to the business activities carried on by any non-resident corporation (other than the subject corporation or any corporation in which the subject corporation has such an equity percentage) with which the CRIC, at that time, does not deal at arm’s length; (b) whether the terms or conditions of any shares of the subject corporation that are owned by the CRIC at that time, or any agreement in respect of the shares or their issue, are such that the CRIC does not fully
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Emploi et croi participate in the profits of the subject corporation or any appreciation in the value of the subject corporation (for greater certainty, the fact that the shares owned by the CRIC do fully participate in the profits of the subject corporation and any appreciation in the value of the subject corporation is not a relevant factor); (c) whether the investment was made at the direction or request of a non-resident corporation with which the CRIC was not, at that time, dealing at arm’s length; (d) whether, in the case of an investment described in paragraph (10)(a), (d), (e) or (f), negotiations with the vendor in respect of the investment were initiated by senior officers of the CRIC who were resident in, and worked principally in, Canada or, if the vendor initiated the transaction, the vendor’s principal point of contact was an officer of the CRIC who was resident in, and worked principally in, Canada; (e) whether senior officers of the CRIC who were resident in, and worked principally in, Canada had and exercised the principal decision-making authority in respect of the making of the investment, and have and exercise the principal decision making authority in respect of the investment; (f) whether the performance evaluation or compensation of senior officers of the CRIC who are resident in, and work principally in, Canada is connected to the results of operations of the subject corporation to a greater extent than the performance evaluation or compensation of any senior officers of a nonresident corporation (other than the subject corporation or a corporation controlled by the subject corporation) that does not deal at arm’s length with the CRIC is so connected; and (g) whether senior officers of the subject corporation report to, and are functionally accountable to, senior officers of the CRIC who are resident in, and work principally in, Canada to a greater extent than to any senior
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officers of any non-resident corporation (other than the subject corporation) that does not deal at arm’s length with the CRIC. (e) subsection 212.3(23) of the Act is to be read as follows:
(23) A particular investment by a CRIC in a subject corporation that would, in the absence of this subsection, be excluded from the application of subsection (2) because of paragraph (1)(c) is not to be so excluded to the extent that one or more properties, if any, received by the subject corporation from the CRIC as a result of the particular investment, or property substituted for any such property, may reasonably be considered to have been used by the subject corporation, directly or indirectly as part of a transaction or event or series of transactions or events that includes the particular investment, to make another investment in a non-resident corporation that would, if the other investment had been made by the CRIC, have been subject to subsection (2). (f) subsection 212.3(25) of the Act is to be read as follows: (25) For the purposes of this section, paragraph 128.1(1)(c.3) and subsection 219.1(2), (a) any transaction entered into by a partnership is deemed to have been entered into by each member of the partnership in proportion to the fair market value of the member’s direct or indirect interest in the partnership; (b) property that would, in the absence of this paragraph, be owned by a partnership is deemed to be owned by each member of the partnership in proportion to the fair market value of the member’s direct or indirect interest in the partnership; and (c) amounts that would, in the absence of this paragraph, be owing by a partnership are deemed to be owed by each member of the partnership in proportion to the fair market value of the member’s direct or indirect interest in the partnership.
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50. (1) Section 214 of the Act is amended by adding the following after subsection (15): Deemed dividends
(16) For the purposes of this Part, (a) an amount paid or credited as interest by a corporation resident in Canada, or by a partnership, in a taxation year of the corporation to a non-resident person is deemed to have been paid by the corporation as a dividend, and not to have been paid or credited by the corporation or the partnership as interest, to the extent that an amount in respect of the interest (i) is not deductible in computing the income of the corporation for the year because of subsection 18(4), or (ii) is included in computing the income of the corporation for the year under paragraph 12(1)(l.1); and (b) to the extent that amounts paid or credited to a non-resident person in the year are deemed by paragraph (a) to have been paid by a corporation as dividends, the corporation may designate in its return of income under Part I for the year which amounts paid or credited as interest to the non-resident person in the year are deemed to have been paid as dividends and not as interest.
Deemed interest payments
(17) For the purposes of subsection (16), (a) interest payable (other than interest payable pursuant to a legal obligation to pay interest on an amount of interest) by a corporation resident in Canada, or by a partnership, in respect of a taxation year of the corporation, but that has not been paid or credited in the year, is deemed to have been paid immediately before the end of the year and not to have been paid or credited at any other time; and
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(b) if subsection (6) or (7) deems a payment of interest to have been made to a nonresident person in respect of a debt or other obligation of a corporation, interest that, at the time of the transfer or assignment, is payable by the corporation in respect of the debt or other obligation and has not been paid or credited is deemed to have been paid by the corporation immediately before that time to the non-resident person. (2) Subsection (1) applies to taxation years that end after March 28, 2012, except that (a) for taxation years that include March 29, 2012, the amount of each dividend deemed by paragraph 214(16)(a) of the Act, as enacted by subsection (1), to have been paid in the taxation year is the proportion of the amount of the dividend otherwise determined under the paragraph that the number of days in the taxation year that are after March 28, 2012 is of the number of days in the taxation year; and (b) before August 14, 2012, subsection 214(17) of the Act, as enacted by subsection (1), is to be read as follows:
(17) For the purposes of subsection (16), interest payable (other than interest payable pursuant to a legal obligation to pay interest on an amount of interest) by a corporation resident in Canada, or by a partnership, in respect of a taxation year of the corporation, but that has not been paid or credited in the year, is deemed to have been paid immediately before the end of the year and not at any other time. 51. (1) Section 219.1 of the Act is replaced by the following: Corporate emigration
219.1 (1) If a taxation year of a corporation (in this subsection and subsection (2) referred to as the “emigrating corporation”) is deemed by paragraph 128.1(4)(a) to have ended at any
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time, the emigrating corporation shall, on or before its filing-due date for the year, pay a tax under this Part for the year equal to the amount determined by the formula 25% × (A – B) where A is the fair market value of all the property owned by the emigrating corporation immediately before that time; and B is the total of (a) the paid-up capital in respect of all the shares of the capital stock of the emigrating corporation immediately before that time, (b) all amounts (other than amounts payable by the emigrating corporation in respect of dividends and amounts payable under this section) each of which is a debt owing by the emigrating corporation, or an obligation of the emigrating corporation to pay an amount, that is outstanding at that time, and (c) if a tax was payable by the emigrating corporation under subsection 219(1) or this section for a preceding taxation year that began before 1996 and after the emigrating corporation last became resident in Canada, four times the total of all amounts that would, but for sections 219.2 and 219.3 and any tax treaty, have been so payable.
Foreign affiliate dumping — emigrating corporation
(2) The paid-up capital referred to in paragraph (a) of the description of B in subsection (1) is deemed to be nil if (a) one or corporation corporation owned by Canada;
more shares of the emigrating are, at the time the emigrating ceases to be resident in Canada, another corporation resident in
(b) the other corporation is controlled, at that time, by a non-resident corporation; and
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(c) the emigrating corporation is, immediately after that time — or becomes, as part of a transaction or event or series of transactions or events that includes the emigrating corporation ceasing to be resident in Canada — a foreign affiliate of the other corporation. Application of subsection (4)
(3) Subsection (4) applies if (a) a corporation ceases to be resident in Canada at any time (referred to in subsection (4) as the “emigration time”); (b) an amount is required by paragraph 212.3(2)(b) or (7)(b) to be deducted in computing the paid-up capital in respect of a class of shares of the capital stock of the corporation because of an investment in a subject corporation made by a CRIC that is described in paragraph 212.3(10)(a), (b) or (f); (c) subsection 212.3(9) has not applied in respect of any reduction of the paid-up capital in respect of a class of shares of the capital stock of the corporation or a specified predecessor corporation (as defined in subsection 95(1)) of the corporation; and (d) subsection (2) does not apply in respect of the cessation of residence.
Paid-up capital reinstatement
(4) If this subsection applies, the paid-up capital referred to in paragraph (a) of the description of B in subsection (1) is to be increased, immediately before the time that is immediately before the emigration time, by the lesser of (a) the total of all amounts each of which is an amount by which the paid-up capital of a class of shares of the capital stock of the corporation was required by paragraph 212.3(2)(b) or (7)(b) to be reduced in respect of an investment in a subject corporation made by the CRIC that is described in paragraph 212.3(10)(a), (b) or (f), and (b) the total of all amounts each of which is (i) the fair market value of a share of the capital stock of a subject corporation that is owned by the corporation immediately before the emigration time, or
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Emploi et croi (ii) the portion of the fair market value of a particular share of the capital stock of a foreign affiliate of the corporation owned by the corporation immediately before the emigration time that may reasonably be considered to relate to a share of the capital stock of a subject corporation that was previously owned by the corporation and for which the particular share was substituted.
Assigned meanings from section 212.3
(5) For the purposes of subsections (3) and (4), “CRIC” and “subject corporation” have the meaning assigned to those terms by subsection 212.3(1) and “investment” has the same meaning as in subsection 212.3(10). (2) Subsection (1) applies to corporations that cease to be resident in Canada after March 28, 2012. 52. (1) Section 227 of the Act is amended by adding the following after subsection (8.4):
No penalty — certain deemed payments
(8.5) Subsection (8) does not apply to a corporation in respect of (a) an amount of interest deemed by subsection 214(16) to have been paid as a dividend by the corporation unless, if the Act were read without reference to subsection 214(16), a penalty under subsection (8) would have applied in respect of the amount; and (b) an amount deemed by subsection 247(12) to have been paid as a dividend by the corporation. (2) Subsection (1) applies to taxation years that end after March 28, 2012. 53. (1) Subparagraph 241(4)(d)(vii) of the Act is replaced by the following: (vii) to an official solely for the purposes of the administration or enforcement of the Pension Benefits Standards Act, 1985, the Pooled Registered Pension Plans Act or a similar law of a province,
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(2) Paragraph (b) of the definition “official” in subsection 241(10) of the Act is replaced by the following: (b) an authority engaged in administering a law of a province similar to the Pension Benefits Standards Act, 1985 or the Pooled Registered Pension Plans Act, (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 54. (1) Section 247 of the Act is amended by adding the following after subsection (11): Deemed dividends to non-residents
(12) For the purposes of Part XIII, if a particular corporation that is a resident of Canada for the purposes of Part XIII would have a transfer pricing capital adjustment or a transfer pricing income adjustment for a taxation year, if the particular corporation, or a partnership of which the particular corporation is a member, had undertaken no transactions or series of transactions other than those in which a particular non-resident person, or a partnership of which the particular non-resident person is a member, that does not deal at arm’s length with the particular corporation (other than a corporation that was for the purposes of section 17 a controlled foreign affiliate of the particular corporation throughout the period during which the transaction or series of transactions occurred) was a participant, (a) a dividend is deemed to have been paid by the particular corporation and received by the particular non-resident person immediately before the end of the taxation year; and (b) the amount of the dividend is the amount, if any, by which (i) the amount that would be the portion of the total of the particular corporation’s transfer pricing capital adjustment and transfer pricing income adjustment for the
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taxation year that could reasonably be considered to relate to the particular nonresident person if (A) the only transactions or series of transactions undertaken by the particular corporation were those in which the particular non-resident person was a participant, and (B) the definition “transfer pricing capital adjustment” in subsection (1) were read without reference to the references therein to “1/2 of” and “3/4 of” exceeds (ii) the amount that would be the portion of the total of the particular corporation’s transfer pricing capital setoff adjustment, and transfer pricing income setoff adjustment, for the taxation year that could reasonably be considered to relate to the particular non-resident person if (A) the only transactions or series of transactions undertaken by the particular corporation were those in which the particular non-resident person was a participant, and (B) the definition “transfer pricing capital adjustment” in subsection (1) were read without reference to the references therein to “1/2 of” and “3/4 of”. Repatriation
(13) If a dividend is deemed by subsection (12) to have been paid by a corporation and received by a non-resident person, and a particular amount has been paid with the concurrence of the Minister by the non-resident person to the corporation, (a) the amount of the dividend may be reduced by the amount (in this subsection referred to as the “reduction”) that the Minister considers appropriate, having regard to all the circumstances, and (b) subsections 227(8.1) and (8.3) apply as if (i) the amount of the dividend were not reduced, and
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(ii) on the day on which the particular amount was paid, the corporation paid to the Receiver General an amount equal to the amount that would be required to be withheld and remitted under Part XIII in respect of the reduction. Repatriation — interest
(14) If the amount of a dividend is reduced under paragraph (13)(a), the amount of interest payable by a taxpayer because of paragraph (13)(b) may be reduced to the amount that the Minister considers appropriate, having regard to all the circumstances, including the provision of reciprocal treatment by the country in which the non-resident person referred to in subsection (13) is resident.
Non-application of provisions
(15) Section 15, subsections 56(2) and 212.3(2) and section 246 do not apply in respect of an amount to the extent that a dividend is deemed by subsection (12) (determined without reference to subsection (13)) to have been paid in respect of the amount. (2) Subsection (1) applies in respect of any transaction that occurs after March 28, 2012. 55. (1) The definitions “registered disability savings plan”, “registered education savings plan” and “registered pension plan” in subsection 248(1) of the Act are replaced by the following:
“registered disability savings plan” or “RDSP” « régime enregistré d’épargneinvalidité » ou « REEI »
“registered education savings plan” or “RESP” « régime enregistré d’épargneétudes » ou « REEE »
“registered disability savings plan” or “RDSP” has the same meaning as in subsection 146.4(1);
“registered education savings plan” or “RESP” has the same meaning as in subsection 146.1(1);
2011-2012 “registered pension plan” « régime de pension agréé »
Emploi et croi “registered pension plan” means a pension plan (other than a pooled pension plan) that has been registered by the Minister for the purposes of this Act and whose registration has not been revoked; (2) The definition “retirement compensation arrangement” in subsection 248(1) of the Act is amended by adding the following after paragraph (a): (a.1) a pooled registered pension plan, (3) The definition “salary deferral arrangement” in subsection 248(1) of the Act is amended by adding the following after paragraph (a): (a.1) a pooled registered pension plan, (4) The portion of the definition “superannuation or pension benefit” in subsection 248(1) of the Act before paragraph (a) is replaced by the following:
“superannuation or pension benefit” « prestation de retraite ou de pension »
“superannuation or pension benefit” includes any amount received out of or under a superannuation or pension fund or plan (including, except for the purposes of subparagraph 56(1)(a)(i), a pooled registered pension plan) and, without restricting the generality of the foregoing, includes any payment made to a beneficiary under the fund or plan or to an employer or former employer of the beneficiary under the fund or plan (5) Subsection 248(1) of the Act is amended by adding the following in alphabetical order:
“pooled pension plan” « régime de pension collectif »
“pooled registered pension plan” or “PRPP” « régime de pension agréé collectif » ou « RPAC »
“pooled pension plan” has the same meaning as in subsection 147.5(1);
“pooled registered pension plan” or “PRPP” has the same meaning as in subsection 147.5(1);
130 “specified unitholder” « détenteur d’unité déterminé »
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“specified unitholder”, of a partnership or trust (referred to in this definition as the “entity”), the interests in which are described by reference to units, means a taxpayer who would be a specified shareholder of the entity if the entity were a corporation and each unit of the entity were a share of a class of the corporation having the same attributes as the unit;
(6) The definition “registered pension plan” in subsection 248(1) of the Act, as enacted by subsection (1), and subsections (2) to (5) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 56. (1) Subsection 252(3) of the Act is replaced by the following: Extended meaning of “spouse” and “former spouse”
(3) For the purposes of paragraph 56(1)(b), section 56.1, paragraphs 60(b) and (j), section 60.1, subsections 70(6) and (6.1), 73(1) and (5) and 104(4), (5.1) and (5.4), the definition “pre1972 spousal trust” in subsection 108(1), subsection 146(16), the definition “survivor” in subsection 146.2(1), subparagraph 146.3(2)(f)(iv), subsections 146.3(14), 147(19) and 147.3(5) and (7), section 147.5, subsections 148(8.1) and (8.2), the definition “qualifying transfer” in subsection 207.01(1), subparagraph 210(c)(ii) and subsections 248(22) and (23), “spouse” and “former spouse” of a particular individual include another individual who is a party to a void or voidable marriage with the particular individual. (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 57. (1) Section 253.1 of the Act is replaced by the following:
Investments in limited partnerships
253.1 For the purposes of subparagraph 108(2)(b)(ii), paragraphs 130.1(6)(b), 131(8)(b) and 132(6)(b), subsection 146.2(6), paragraph 146.4(5)(b), subsection 147.5(8), paragraph 149(1)(o.2), the definition “private holding
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Emploi et croi corporation” in subsection 191(1) and regulations made for the purposes of paragraphs 149(1)(o.3) and (o.4), if a trust or corporation holds an interest as a member of a partnership and, by operation of any law governing the arrangement in respect of the partnership, the liability of the member as a member of the partnership is limited, the member shall not, solely because of its acquisition and holding of that interest, be considered to carry on any business or other activity of the partnership. (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the the Pooled Registered Pension Plans Act comes into force.
C.R.C., c. 945
INCOME TAX REGULATIONS 58. (1) Paragraph (b) of the definition “remuneration” in subsection 100(1) of the Income Tax Regulations is replaced by the following: (b) a superannuation or pension benefit (including an annuity payment made pursuant to or under a superannuation or pension fund or plan) other than a distribution (i) that is made from a pooled registered pension plan and is not required to be included in computing a taxpayer’s income under paragraph 56(1)(z.3) of the Act, or (ii) that subsection 147.5(14) of the Act deems to have been made, (2) Paragraph 100(3)(a) of the Regulations is replaced by the following: (a) a contribution to or under a pooled registered pension plan, a registered pension plan or a specified pension plan, or (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 59. (1) The Regulations are amended by adding the following after section 212:
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POOLED REGISTERED PENSION PLANS 213. An administrator of a PRPP must file with the Minister an information return for each calendar year in prescribed form in respect of the PRPP (a) if an agreement concerning annual information returns has been entered into by the Minister and an authority responsible for the supervision of the PRPP under the Pooled Registered Pension Plans Act or a similar law of a province, on or before the day on which an information return required by that authority is to be filed for the calendar year; and (b) in any other case, on or before May 1 of the following calendar year. (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 60. (1) Paragraph 304(1)(a) of the Regulations is replaced by the following: (a) an annuity contract that is, or is issued pursuant to, an arrangement described in any of paragraphs 148(1)(a) to (b.3) and (d) of the Act; (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 61. (1) The portion of subsection 1104(13) of the Regulations before the definition “basic oxygen furnace gas” is replaced by the following: (13) The definitions in this subsection apply for the purposes of this subsection, subsections (14) to (17) and Classes 43.1 and 43.2 in Schedule II. (2) The definitions “eligible waste fuel” and “plant residue” in subsection 1104(13) of the Regulations are replaced by the following:
2011-2012
Emploi et croi “eligible waste fuel” means biogas, bio-oil, digester gas, landfill gas, municipal waste, plant residue, pulp and paper waste and wood waste. (combustible résiduaire admissible) “plant residue” means residue of plants (not including wood waste and waste that no longer has the chemical properties of the plants of which it is a residue) that would otherwise be waste material and that is used (a) in a system that converts biomass into bio-oil or biogas; or (b) as an eligible waste fuel. (résidus végétaux) (3) Section 1104 of the Regulations is amended by adding the following after subsection (16): (17) A property that would otherwise be eligible for inclusion in Class 43.1 or Class 43.2 in Schedule II by a taxpayer is deemed not to be eligible for inclusion in either of those classes if (a) the property is included in Class 43.1 because of its subparagraph (c)(i) or is described in any of subparagraphs (d)(viii), (ix), (xi) and (xiii) of Class 43.1 and paragraph (a) of Class 43.2; and (b) at the time the property becomes available for use by the taxpayer, the taxpayer has not satisfied the requirements of all environmental laws, by-laws and regulations (i) of Canada, a province or a municipality in Canada, or (ii) of a municipal or public body performing a function of government in Canada applicable in respect of the property.
(4) Subsections (1) to (3) are deemed to have come into force on March 29, 2012. 62. (1) Subsection 2900(4) of the Regulations is replaced by the following: (4) For the purposes of the definition “qualified expenditure” in subsection 127(9) of the Act, the prescribed proxy amount of a taxpayer
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for a taxation year, in respect of a business, in respect of which the taxpayer elects under clause 37(8)(a)(ii)(B) of the Act is 55% of the total of all amounts each of which is that portion of the amount incurred in the year by the taxpayer in respect of salary or wages of an employee of the taxpayer who is directly engaged in scientific research and experimental development carried on in Canada that can reasonably be considered to relate to the scientific research and experimental development having regard to the time spent by the employee on the scientific research and experimental development. (2) Subsection (1) applies to taxation years that end after 2012, except that for taxation years that begin before 2014 the reference to “55%” in subsection 2900(4) of the Regulations, as enacted by subsection (1), is to be read as a reference to the percentage that is the total of (a) 65% multiplied by the proportion that the number of days that are in the taxation year and before 2013 is of the number of days in the taxation year, (b) 60% multiplied by the proportion that the number of days that are in the taxation year and in 2013 is of the number of days in the taxation year, and (c) 55% multiplied by the proportion that the number of days that are in the taxation year and after 2013 is of the number of days in the taxation year.
63. (1) Subparagraph 2902(b)(ii) of the Regulations is replaced by the following: (ii) the acquisition of property that is qualified property or qualified resource property within the meaning assigned by subsection 127(9) of the Act, or (2) Paragraph 2902(b) of the Regulations, as amended by subsection (1), is replaced by the following:
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Emploi et croi (b) an expenditure incurred by a taxpayer in respect of (i) the acquisition of property that is qualified property or qualified resource property within the meaning assigned by subsection 127(9) of the Act, or (ii) the acquisition of property that has been used, or acquired for use or lease, for any purpose whatever before it was acquired by the taxpayer; (3) The portion of paragraph 2902(e) of the Regulations before subparagraph (i) is replaced by the following: (e) an expenditure of a taxpayer, to the extent that the taxpayer has received or is entitled to receive a reimbursement in respect of it from (4) Subsection (1) applies in respect of expenditures incurred after March 28, 2012. (5) Subsections (2) and (3) apply in respect of expenditures incurred after 2013. 64. (1) Section 2903 of the Regulations is repealed. (2) Subsection (1) applies after 2013. 65. (1) Section 4301 of the Regulations is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (b): (b.1) subsection 17.1(1) of the Act, the prescribed rate in effect during any particular quarter is the rate that would be determined under paragraph (a) in respect of the particular quarter if the reference in subparagraph (a)(i) to “the next higher whole percentage where the mean is not a whole percentage” were read as “two decimal points”; and (2) Subsection (1) is deemed to have come into force on March 29, 2012. 66. (1) The portion of subsection 4600(1) of the Regulations before paragraph (a) is replaced by the following:
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4600. (1) Property is a prescribed building for the purposes of the definitions “qualified property” and “qualified resource property” in subsection 127(9) of the Act if it is depreciable property of the taxpayer that is a building or grain elevator and it is erected on land owned or leased by the taxpayer, (2) The portion of subsection 4600(2) of the Regulations before paragraph (a) is replaced by the following: (2) Property is prescribed machinery and equipment for the purposes of the definitions “qualified property” and “qualified resource property” in subsection 127(9) of the Act if it is depreciable property of the taxpayer (other than property referred to in subsection (1)) that is (3) Section 4600 of the Regulations is amended by adding the following after subsection (2): (3) Property is prescribed energy generation and conservation property for the purposes of the definition “qualified property” in subsection 127(9) of the Act if it is depreciable property of the taxpayer (other than property referred to in subsection (1) or (2)) that is a property included in any of subparagraph (a.1)(i) of Class 17 and Classes 43.1, 43.2 and 48 in Schedule II. (4) Subsections (1) to (3) are deemed to have come into force on March 29, 2012. 67. (1) Subsection 4802(1) of the Regulations is amended by adding the following after paragraph (c.2): (c.3) a pooled registered pension plan; (2) Paragraph 4802(1.1)(e) of the Regulations is replaced by the following: (e) each of the beneficiaries of the trust was a trust governed by a deferred profit sharing plan, a pooled registered pension plan or a registered pension plan.
2011-2012
Emploi et croi (3) Subsections (1) and (2) come into force or are deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 68. (1) The portion of section 8201 of the Regulations before paragraph (a) is replaced by the following: 8201. For the purposes of subsection 16.1(1), the definition “outstanding debts to specified non-residents” in subsection 18(5), the definition “excluded income” and “excluded revenue” in subsection 95(2.5), subsections 100(1.3), 112(2), 125.4(1) and 125.5(1), the definition “taxable supplier” in subsection 127(9), subparagraph 128.1(4)(b)(ii), paragraphs 181.3(5)(a) and 190.14(2)(b), the definition “Canadian banking business” in subsection 248(1) and paragraph 260(5)(a) of the Act, a “permanent establishment” of a person or partnership (either of whom is referred to in this section as the “person”) means a fixed place of business of the person, including an office, a branch, a mine, an oil well, a farm, a timberland, a factory, a workshop or a warehouse if the person has a fixed place of business and, if the person does not have any fixed place of business, the principal place at which the person’s business is conducted, and (2) Subsection (1) applies to the 2012 and subsequent taxation years. 69. (1) Subparagraph 8502(b)(iv) of the Regulations is replaced by the following: (iv) is transferred to the plan in accordance with any of subsections 146(16), 146.3(14.1), 147(19), 147.3(1) to (8) and 147.5(21) of the Act, or (2) Subsection (1) comes into force or is deemed to have come into force on the day on which the Pooled Registered Pension Plans Act comes into force. 70. (1) Subparagraph (d)(ix) of Class 43.1 in Schedule II to the Regulations is replaced by the following: (ix) equipment used by the taxpayer, or by a lessee of the taxpayer, for the sole purpose of generating heat energy,
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primarily from the consumption of eligible waste fuel and not using any fuel other than eligible waste fuel or fossil fuel, including such equipment that consists of fuel handling equipment used to upgrade the combustible portion of the fuel and control, feedwater and condensate systems, and other ancillary equipment, but not including equipment used for the purpose of producing heat energy to operate electrical generating equipment, buildings or other structures, heat rejection equipment (such as condensers and cooling water systems), fuel storage facilities, other fuel handling equipment and property otherwise included in Class 10 or 17,
(2) Clause (d)(xv)(B) of Class 43.1 in Schedule II to the Regulations is replaced by the following: (B) is part of a district energy system that uses thermal energy that is primarily supplied by equipment that is described in subparagraphs (i), (iv) or (ix) or would be described in those subparagraphs if owned by the taxpayer, and (3) Subsections (1) and (2) are deemed to have come into force on March 29, 2012. SOR/2008-186
CANADA DISABILITY SAVINGS REGULATIONS 71. Paragraph 4(g) of the Canada Disability Savings Regulations is replaced by the following: (g) the issuer shall, when transferring the property of the RDSP, provide to the issuer of the new plan all information that it is required to provide in accordance with paragraph 146.4(8)(c) of the Income Tax Act; and 72. (1) Subsections 5(1) and (2) of the Regulations are replaced by the following:
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5. (1) Subject to sections 5.1 and 5.2, an issuer of an RDSP shall repay to the Minister, within the period set out in the issuer agreement, the amount referred to in subsection (2) if (a) the RDSP is terminated; (b) the plan ceases to be an RDSP as a result of the application of paragraph 146.4(10)(a) of the Income Tax Act; (c) the beneficiary ceases to be a DTCeligible individual, unless they are the subject of an election made under subsection 146.4(4.1) of the Income Tax Act; or (d) the beneficiary dies. (2) The amount that must be repaid as a result of the occurrence of an event described in subsection (1) is the lesser of (a) the fair market value, immediately before the occurrence, of the property held by the RDSP, and (b) the assistance holdback amount of the RDSP immediately before the occurrence. (2) Subsection (1) comes into force on January 1, 2014. 73. (1) The Regulations are amended by adding the following after section 5: 5.1 If an event described in paragraph 5(1)(a), (b) or (d) occurs while the beneficiary of an RDSP is the subject of an election made under subsection 146.4(4.1) of the Income Tax Act, the issuer of the RDSP shall repay to the Minister, within the period set out in the issuer agreement, the lesser of (a) the fair market value, immediately before the occurrence of the event, of the property held by the RDSP, and (b) the amount determined by the formula A+B–C where A is the assistance holdback amount of the RDSP immediately before the beneficiary ceased to be a DTC-eligible individual,
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B is the amount of any grant or bond that is paid into the RDSP during the period beginning on the day on which the beneficiary ceased to be a DTC-eligible individual and ending on the day on which the event occurs, and C is the amount of any grant or bond that has been repaid since the day on which the beneficiary ceased to be a DTCeligible individual.
5.2 If an election made under subsection 146.4(4.1) of the Income Tax Act in respect of the beneficiary of an RDSP ceases to be valid because of paragraph 146.4(4.2)(b) of that Act, the issuer of the RDSP shall repay to the Minister, within the period set out in the issuer agreement, the lesser of (a) the fair market value, immediately before the election ceases to be valid, of the property held by the RDSP, and (b) the amount determined by the formula A+B–C where A is the assistance holdback amount of the RDSP immediately before the beneficiary ceased to be a DTC-eligible individual, B is the amount of any grant or bond that is paid into the RDSP during the period beginning on the day on which the beneficiary ceased to be a DTC-eligible individual and ending on the day on which the election ceases to be valid, and C is the amount of any grant or bond that has been repaid since the day on which the beneficiary ceased to be a DTCeligible individual.
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5.3 (1) Subject to section 5.4, if a disability assistance payment is made, the issuer of the RDSP shall repay to the Minister, within the period set out in the issuer agreement, the least of the following amounts: (a) $3 for every $1 of disability assistance payment made, (b) the fair market value, immediately before the making of the disability assistance payment, of the property held by the RDSP, and (c) the assistance holdback amount of the RDSP immediately before the making of the disability assistance payment. (2) An issuer that repays the amount referred to in paragraph (1)(a) is to do so from the grants and bonds that were paid into the RDSP within the 10-year period preceding the making of the disability assistance payment, in the order in which they were paid into it. 5.4 (1) If a disability assistance payment is made to a beneficiary who is the subject of an election made under subsection 146.4(4.1) of the Income Tax Act, the issuer of the RDSP shall repay to the Minister, within the period set out in the issuer agreement, the least of the following amounts: (a) $3 for every $1 of disability assistance payment made, (b) the fair market value, immediately before the making of the disability assistance payment, of the property held by the RDSP, and (c) the amount determined by the formula A+B–C where A is the assistance holdback amount of the RDSP immediately before the beneficiary ceased to be a DTC-eligible individual, B is the amount of any grant or bond that is paid into the RDSP during the period beginning on the day on which the beneficiary ceased to be a DTC-eligible individual and ending on the day on which the disability assistance payment is made, and
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C is the amount of any grant or bond that has been repaid since the day on which the beneficiary ceased to be a DTCeligible individual. (2) An issuer that repays the amount referred to in paragraph (1)(a) is to do so from the grants and bonds that were paid into the RDSP within the 10-year period before the beneficiary ceased to be a DTC-eligible individual and those that were paid into the RDSP within the period referred to in the description of B in paragraph (1)(c), in the order in which they were paid into it. (3) Subsection (1) does not apply in respect of any disability assistance payment made in the calendar year in which the beneficiary of the RDSP attains 60 years of age, or in any subsequent calendar year, if the total amount of disability assistance payments made to the beneficiary in that calendar year is less than or equal to the amount determined in accordance with paragraph 146.4(4)(l) of the Income Tax Act for that calendar year. (2) Subsection (1) comes into force on January 1, 2014. PART 2 MEASURES IN RESPECT OF SALES TAX R.S., c. E-15
EXCISE TAX ACT
1990, c. 45, s. 12(1)
74. (1) The definition “fiscal year” in subsection 123(1) of the Excise Tax Act is replaced by the following:
“fiscal year” « exercice »
“fiscal year” of a person means (a) if section 244.1 applies to the person, the period determined under that section, (b) if section 244.1 does not apply to the person and the person has made an election under section 244 that is in effect, the period that the person elected to be the fiscal year of the person, and (c) in all other cases, the taxation year of the person;
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(2) Subsection 123(1) of the Act is amended by adding the following in alphabetical order: “participating employer” « employeur participant »
“pension entity” « entité de gestion »
“participating employer” of a pension plan means an employer that has made, or is required to make, contributions to the pension plan in respect of the employer’s employees or former employees, or payments under the pension plan to the employer’s employees or former employees, and includes an employer prescribed for the purposes of the definition “participating employer” in subsection 147.1(1) of the Income Tax Act; “pension entity” of a pension plan means a person in respect of the pension plan that is (a) a person referred to in paragraph (a) of the definition “pension plan”, (b) a corporation referred to in paragraph (b) of that definition, or (c) a prescribed person;
“pension plan” « régime de pension »
“pension plan” means a registered pension plan (as defined in subsection 248(1) of the Income Tax Act) (a) that governs a person that is a trust or that is deemed to be a trust for the purposes of that Act, (b) in respect of which a corporation is (i) incorporated and operated either (A) solely for the administration of the registered pension plan, or (B) for the administration of the registered pension plan and for no other purpose other than acting as trustee of, or administering, a trust governed by a retirement compensation arrangement (as defined in subsection 248(1) of that Act), where the terms of the arrangement provide for benefits only in respect of individuals who are provided with benefits under the registered pension plan, and
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(ii) accepted by the Minister, under subparagraph 149(1)(o.1)(ii) of that Act, as a funding medium for the purpose of the registration of the registered pension plan, or (c) in respect of which a person is prescribed for the purposes of the definition “pension entity”; (3) Subsection (1) is deemed to have come into force on July 1, 2009. (4) Subsection (2) is deemed to have come into force on September 23, 2009. 2010, c. 12, s. 58(1)
75. (1) The definitions “participating employer”, “pension entity” and “pension plan” in subsection 172.1(1) of the Act are repealed. (2) Subsection (1) is deemed to have come into force on September 23, 2009.
2009, c. 32, s. 14(1)
76. (1) Paragraph 218.1(1)(a) of the Act is replaced by the following: (a) every person that is resident in a participating province and is the recipient of an imported taxable supply that is a supply of intangible personal property or a service that is acquired by the person for a prescribed purpose in respect of the supply or, in the absence of a prescribed purpose in respect of the supply, for consumption, use or supply in participating provinces to an extent that is prescribed, must, for each time an amount of consideration for the supply becomes due or is paid without having become due and for each participating province, pay to Her Majesty in right of Canada, in addition to the tax imposed by section 218, tax equal to the amount determined by the formula A×B×C where A is the tax rate for the participating province, B is the value of that consideration that is paid or becomes due at that time, and C is the prescribed percentage in respect of the supply or, in the absence of a prescribed percentage in respect of the
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2009, c. 32, s. 14(1)
(2) Clause (B) of the description of C in paragraph 218.1(1)(b) of the Act is replaced by the following: (B) in any other case, the prescribed percentage in respect of the supply or, in the absence of a prescribed percentage in respect of the supply, the extent (expressed as a percentage) to which the person acquired the property or service for consumption, use or supply in the particular participating province.
2001, c. 15, s. 8(2)
(3) Subsection 218.1(1.1) of the Act is replaced by the following:
Delivery in a province
(1.1) Section 3 of Part II of Schedule IX applies for the purpose of subparagraph (1)(b)(ii).
2010, c. 12, s. 64(2)
(4) The description of A2 in the second formula in paragraph 218.1(1.2)(a) of the Act is replaced by the following: A2 is the prescribed percentage in respect of the internal charge or, in the absence of a prescribed percentage in respect of the internal charge, the extent (expressed as a percentage) to which the internal charge is attributable to outlays or expenses that were made or incurred to consume, use or supply the whole or part of property or of a qualifying service, in respect of which the internal charge is attributable, in carrying on, engaging in or conducting an activity of the qualifying taxpayer in the particular participating province, and
2010, c. 12, s. 64(2)
(5) The description of B2 in the third formula in paragraph 218.1(1.2)(a) of the Act is replaced by the following:
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2010, c. 12, s. 64(2)
(6) The description of D in paragraph 218.1(1.2)(b) of the Act is replaced by the following: D is the prescribed percentage in respect of the qualifying consideration or, in the absence of a prescribed percentage in respect of the qualifying consideration, the extent (expressed as a percentage) to which the whole or part of the outlay or expense, which corresponds to the qualifying consideration, was made or incurred to consume, use or supply the whole or part of property or of a qualifying service, in respect of which the qualifying consideration is attributable, in carrying on, engaging in or conducting an activity of the qualifying taxpayer in the particular participating province. (7) Subsections (1) and (2) apply in respect of any supply made on or after July 1, 2010. (8) Subsection (3) is deemed to have come into force on July 1, 2010. (9) Subsections (4) to (6) apply in respect of any specified year of a person that ends on or after July 1, 2010.
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2010, c. 12, s. 68(1)
77. (1) The portion of subsection 220.05(3.1) of the Act before paragraph (a) is replaced by the following:
Pension entities
(3.1) No tax is payable under subsection (1) in respect of property if a person that is a pension entity of a pension plan is the recipient of a particular supply of the property made by a participating employer of the pension plan and (2) Subsection (1) is deemed to have come into force on September 23, 2009.
2009, c. 32, s. 19(1)
78. (1) Subsection 220.08(1) of the Act is replaced by the following:
Tax in participating province
220.08 (1) Subject to this Part, every person that is resident in a participating province and is the recipient of a taxable supply made in a particular province of intangible personal property or a service that is acquired by the person for a prescribed purpose in respect of the supply or, in the absence of a prescribed purpose in respect of the supply, for consumption, use or supply in whole or in part in any participating province that is not the particular province must pay to Her Majesty in right of Canada, each time an amount of consideration for the supply becomes due or is paid without having become due, tax equal to the amount determined in prescribed manner.
2010, c. 12, s. 69(1)
(2) The portion of subsection 220.08(3.1) of the Act before paragraph (a) is replaced by the following:
Pension entities
(3.1) No tax is payable under subsection (1) in respect of a particular supply of property or a service made by a participating employer of a pension plan to a person that is a pension entity of the pension plan if (3) Subsection (1) applies in respect of any supply made on or after July 1, 2010. (4) Subsection (2) is deemed to have come into force on September 23, 2009.
1997, c. 10, s. 208(1)
79. (1) Subsection 225.2(1) of the Act is replaced by the following:
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Selected listed financial institutions
225.2 (1) For the purposes of this Part, a financial institution is a selected listed financial institution throughout a reporting period in a fiscal year that ends in a taxation year of the financial institution if the financial institution is
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(a) a listed financial institution described in any of subparagraphs 149(1)(a)(i) to (x) during the taxation year; and (b) a prescribed financial institution throughout the reporting period.
1997, c. 10, s. 208(1)
(2) Paragraph (a) of the description of F in subsection 225.2(2) of the Act is replaced by the following: (a) all amounts of tax (other than a prescribed amount of tax) under subsection 165(2) in respect of supplies made in the participating province to the financial institution, or under section 212.1 calculated at the tax rate for the participating province, that (i) became payable, or were paid without having become payable, by the financial institution during (A) the particular reporting period, or (B) any other reporting period of the financial institution that precedes the particular reporting period, provided that (I) the particular reporting period ends within two years after the end of the financial institution’s fiscal year that includes the other reporting period, and (II) the financial institution was a selected listed financial institution throughout the other reporting period, (ii) were not included in determining the positive or negative amounts that the financial institution is required to add, or may deduct, under this subsection in determining its net tax for any reporting period of the financial institution other than the particular reporting period, and
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1997, c. 10, s. 208(1)
(3) Paragraph (b) of the description of F in subsection 225.2(2) of the English version of the Act is replaced by the following: (b) all amounts each of which is an amount, in respect of a supply made during the particular reporting period of property or a service to which the financial institution and another person have elected to have paragraph (c) of the description of A apply, equal to tax payable by the other person under any of subsection 165(2), sections 212.1 and 218.1 and Division IV.1 that is included in the cost to the other person of supplying the property or service to the financial institution; and
1997, c. 10, s. 208(1)
(4) Subsection 225.2(8) of the Act is repealed. (5) Subsections (1) and (2) apply in respect of any reporting period of a person that ends on or after July 1, 2010. (6) Subsection (4) is deemed to have come into force on July 1, 2010. 80. (1) The Act is amended by adding the following after section 225.2:
Definitions
225.3 (1) In this section, “exchange-traded fund”, “exchange-traded series”, “non-stratified investment plan” and “stratified investment plan” have the meaning prescribed by regulation.
Application to Minister
(2) A selected listed financial institution that is an exchange-traded fund may apply to the Minister to use particular methods, for a fiscal year that ends in a taxation year of the financial institution, to determine (a) if the financial institution is a stratified investment plan, the financial institution’s percentages for the purposes of subsection
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225.2(2) for each exchange-traded series of the financial institution, for each participating province and for the taxation year; and (b) if the financial institution is a nonstratified investment plan, the financial institution’s percentages for the purposes of subsection 225.2(2) for each participating province and for the taxation year. Form and manner of application
(3) An application made by a selected listed financial institution under subsection (2) is to be (a) made in prescribed form containing prescribed information, including (i) if the financial institution is a stratified investment plan, the particular methods to be used for each exchange-traded series of the financial institution, and (ii) if the financial institution is a nonstratified investment plan, the particular methods to be used for the financial institution; and (b) filed by the financial institution with the Minister in prescribed manner on or before (i) the day that is 180 days before the first day of the fiscal year for which the application is made, or (ii) any later day that the Minister may allow.
Authorization
(4) On receipt of an application made under subsection (2), the Minister must (a) consider the application and authorize or deny the use of the particular methods; and (b) notify the selected listed financial institution in writing of the decision on or before (i) the later of (A) the day that is 180 days after the receipt of the application, and (B) the day that is 180 days before the first day of the fiscal year for which the application is made, or (ii) any later day that the Minister may specify, if the day is set out in a written application filed by the financial institution with the Minister.
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Effect of authorization
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(5) If the Minister authorizes under subsection (4) the use of particular methods for a fiscal year of the selected listed financial institution, (a) despite Part 2 of the Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations, (i) the financial institution’s percentages for any participating province and for the taxation year in which the fiscal year ends that would, in the absence of this section, be determined under that Part are to be determined in accordance with those particular methods, and (ii) the financial institution’s percentages for any exchange-traded series of the financial institution, for any participating province and for the taxation year in which the fiscal year ends that would, in the absence of this section, be determined under that Part are to be determined in accordance with those particular methods; and (b) the financial institution must consistently, throughout the fiscal year, use those particular methods as indicated in the application to determine the percentages referred to in paragraph (a).
Revocation
(6) An authorization granted under subsection (4) to a selected listed financial institution in respect of a fiscal year of the financial institution ceases to have effect on the first day of the fiscal year and, for the purposes of this Part, is deemed never to have been granted, if (a) the Minister revokes the authorization and sends a notice of revocation to the financial institution at least 60 days before the first day of the fiscal year; or
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(b) the financial institution files with the Minister in prescribed manner a notice of revocation in prescribed form containing prescribed information on or before the first day of the fiscal year. Definitions
225.4 (1) The following definitions apply in this section.
“business input” « intrant d’entreprise »
“business input” has the same meaning as in subsection 141.02(1).
“Canadian activity” « activité au Canada »
“exclusive input” « intrant exclusif »
“Canadian activity” has the same meaning as in section 217. “exclusive input” of a person means property or a service that is acquired or imported by the person for consumption or use directly and exclusively for the purpose of making taxable supplies for consideration or directly and exclusively for purposes other than making taxable supplies for consideration.
Prescribed definitions
(2) In this section, “exchange-traded fund”, “exchange-traded series”, “individual”, “investment plan”, “non-stratified investment plan”, “plan member”, “private investment plan”, “series”, “specified investor”, “stratified investment plan” and “unit” have the meaning prescribed by regulation.
Stratified investment plans
(3) If a selected listed financial institution is a stratified investment plan and no election under subsection (6) in respect of a series of the financial institution is in effect throughout a fiscal year of the financial institution that ends in a calendar year, the following rules apply: (a) for the purposes of the Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations, (i) if the series is an exchange-traded series, all units of the series that are held, at a particular time in the fiscal year, by a person that the financial institution knows, on December 31 of the calendar year, is not resident in Canada at the particular time are deemed to be held at the particular time by a particular individual that is resident in Canada but not resident in any participating province,
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Non-stratified investment plans
(4) If a selected listed financial institution is a non-stratified investment plan and no election under subsection (7) made by the financial institution is in effect throughout a fiscal year of the financial institution that ends in a calendar year, the following rules apply:
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(a) for the purposes of the Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations, (i) if the financial institution is an exchange-traded fund, all units of the financial institution that are held, at a particular time in the fiscal year, by a person that the financial institution knows, on December 31 of the calendar year, is not resident in Canada at the particular time are deemed to be held at the particular time by a particular individual that is resident in Canada but not resident in any participating province, (ii) if the financial institution is not an exchange-traded fund, all units of the financial institution that are held, at a particular time in the fiscal year, by an individual, or a specified investor in the financial institution, that the financial institution knows, on December 31 of the calendar year, is not resident in Canada at the particular time are deemed to be held at the particular time by a particular individual that is resident in Canada but not resident in any participating province, and (iii) the financial institution is deemed to know, on December 31 of the calendar year, the province in which the particular individual referred to in subparagraph (i) or (ii) is resident; (b) for the purposes of determining an input tax credit of the financial institution, any supply made during the fiscal year by the financial institution in respect of units of the financial institution that are held by a person that is not resident in Canada is deemed to have been made to a person resident in Canada; (c) for the purposes of the definitions “external charge” and “qualifying consideration” in section 217, any outlay made, or expense
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Pension entities and private investment plans
(5) If a selected listed financial institution is an investment plan that is a pension entity of a pension plan or a private investment plan and no election under subsection (7) made by the financial institution is in effect throughout a fiscal year of the financial institution that ends in a calendar year, the following rules apply: (a) for the purposes of the Selected Listed Financial Institutions Attribution Method (GST/HST) Regulations, (i) all plan members of the financial institution that the financial institution knows, on December 31 of the calendar year, are not resident in Canada at a particular time in the fiscal year are deemed to be resident in Canada at the particular time but not resident in any participating province, and (ii) the financial institution is deemed to know, on December 31 of the calendar year, the province in which each of the plan members referred to in subparagraph (i) is resident; (b) for the purposes of determining an input tax credit of the financial institution, any supply made during the fiscal year by the financial institution in respect of plan members of the financial institution that are not resident in Canada is deemed to have been made to a person resident in Canada;
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(c) for the purposes of the definitions “external charge” and “qualifying consideration” in section 217, any outlay made, or expense incurred, by the financial institution during the fiscal year in respect of plan members of the financial institution that are not resident in Canada is deemed to be applicable to a Canadian activity of the financial institution; and (d) no amount of tax in respect of a business input of the financial institution that becomes payable by the financial institution during the fiscal year or that is paid by the financial institution during the fiscal year without having become payable is to be included in determining an input tax credit of the financial institution if the business input is not an exclusive input of the financial institution. Election — stratified investment plans
(6) A stratified investment plan may make an election in respect of a series of the investment plan to have subsection (3) not apply to the series, and that election is to be effective from the first day of a fiscal year of the investment plan.
Election — other investment plans
(7) A person that is a non-stratified investment plan, a pension entity or a private investment plan may make an election to have subsection (4) or (5), as the case may be, not apply to the person, and that election is to be effective from the first day of a fiscal year of the person.
Form of election
(8) An election made under subsection (6) or (7) by a person is to (a) be made in prescribed form containing prescribed information; (b) set out the first fiscal year of the person during which the election is to be in effect; and (c) be filed with the Minister in prescribed manner on or before the first day of that first fiscal year or any later day that the Minister may allow.
Cessation
(9) An election made under subsection (6) or (7) by a person ceases to have effect on the earliest of
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Revocation
(10) A person that has made an election under subsection (6) or (7) may revoke the election, effective on the first day of a fiscal year of the person that begins at least five years after the election becomes effective, or on the first day of any earlier fiscal year as the Minister may allow on application by the person, by filing with the Minister in prescribed manner a notice of revocation in prescribed form containing prescribed information no later than the day on which the revocation is to become effective.
Restriction
(11) If a revocation of an election made under subsection (6) or (7) by a person becomes effective on a particular day, any subsequent election under that subsection is not a valid election unless the first day of the fiscal year of the person set out in the subsequent election is a day that is at least five years after the particular day or any earlier day as the Minister may allow on application by the person. (2) Subsection (1) applies in respect of any fiscal year of a person that ends on or after July 1, 2010, except that for any fiscal year that begins before March 1, 2011, paragraph 225.4(8)(c) of the Act, as enacted by subsection (1), is to be read as follows: (c) be filed with the Minister in prescribed manner on or before March 1, 2011 or any later day that the Minister may allow.
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2010, c. 12, s. 71(1)
81. (1) Paragraph 232.01(1)(a) of the Act is replaced by the following:
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(a) “employer resource” and “specified resource” have the same meanings as in section 172.l; (2) Subsection (1) is deemed to have come into force on September 23, 2009. 82. (1) Section 240 of the Act is amended by adding the following after subsection (1.1): Prescribed selected listed financial institutions
(1.2) Every selected listed financial institution that is prescribed is required to be registered for the purposes of this Part.
Group registration of selected listed financial institutions
(1.3) The following rules apply in respect of a prescribed group of selected listed financial institutions: (a) the group is required to be registered for the purposes of this Part; (b) a person that is prescribed in respect of the group must apply to the Minister for registration of the group before the day that is prescribed; (c) each member of the group is deemed to be a registrant for the purposes of this Part; and (d) despite subsections (1) to (1.2), each member of the group is not required to be separately registered.
Additional member of group
(1.4) If a selected listed financial institution becomes, on a particular day, a member of an existing group that is required to be registered for the purposes of this Part or that is registered under this Subdivision, the following rules apply: (a) if the group is required to be registered, the application for the registration of the group under paragraph (1.3)(b) must list the financial institution as a member of the group;
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Emploi et croi (b) if the group is registered, the financial institution or the person that is prescribed in respect of the group for the purpose of paragraph (1.3)(b) must, before the day that is 30 days after the particular day, apply to the Minister to add the financial institution to the registration of the group; (c) the financial institution is deemed to be a registrant for the purposes of this Part as of the particular day; and (d) despite subsections (1) to (1.2), the financial institution is not required to be separately registered as of the particular day.
1993, c. 27, s. 100(1)
(2) The portion of subsection 240(2.1) of the Act before paragraph (b) is replaced by the following:
Application
(2.1) A person required under any of subsections (1) to (1.2) to be registered must apply to the Minister for registration before the day that is 30 days after (a) in the case of a person required under subsection (1.1) to be registered in respect of a taxi business, the day the person first makes a taxable supply in Canada in the course of that business; (a.1) in the case of a selected listed financial institution required under subsection (1.2) to be registered, the day that is prescribed; and
1993, c. 27, s. 100(1)
(3) Paragraph 240(2.1)(b) of the French version of the Act is replaced by the following: b) dans les autres cas, la date où la personne effectue, autrement qu’à titre de petit fournisseur, une première fourniture taxable au Canada dans le cadre d’une activité commerciale qu’elle y exerce.
1993, c. 27, s. 100(1)
(4) The portion of subsection 240(3) of the Act before paragraph (a) is replaced by the following:
Registration permitted
(3) An application for registration for the purposes of this Part may be made to the Minister by any person that is not required
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under subsection (1), (1.1), (1.2), (2) or (4) to be registered, that is not required to be included in, or added to, the registration of a group under subsection (1.3) or (1.4) and that 1990, c. 45, s. 12(1)
(5) Subsection 240(5) of the Act is replaced by the following:
Form and contents of application
(5) An application for registration, or an application to be added to the registration of a group, is to be filed with the Minister in prescribed manner and is to be made in prescribed form containing prescribed information. (6) Subsections (1) to (5) are deemed to have come into force on July 1, 2010.
1990, c. 45, s. 12(1); 1993, c. 27, s. 101(1)
83. (1) Subsection 241(1) of the Act is replaced by the following:
Registration
241. (1) The Minister may register any person that applies for registration and, upon doing so, must assign a registration number to the person and notify the person in writing of the registration number and the effective date of the registration.
Group registration
(1.1) If a person applies to register a group of selected listed financial institutions that is prescribed for the purposes of subsection 240(1.3), the Minister may register the group and, upon doing so, the following rules apply: (a) the Minister must assign a registration number to the group and notify in writing the person that is prescribed in respect of the group for the purpose of paragraph 240(1.3)(b) and each financial institution listed on the application of the registration number and the effective date of the registration of the group; (b) for each member of the group that is registered under this Subdivision on the day preceding the effective date, that registration is cancelled as of the effective date of the registration of the group; and (c) each member of the group is deemed, for the purposes of this Part other than section 242, to be registered under this Subdivision
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Emploi et croi as of the effective date of the registration of the group and to have a registration number that is the same as the registration number of the group.
Addition of new member to group registration
(1.2) If an application is made to add a selected listed financial institution to the registration of a group under paragraph 240(1.4)(b), the Minister may add the financial institution to the registration and, upon doing so, the following rules apply: (a) the Minister must notify in writing the person that is prescribed in respect of the group for the purpose of paragraph 240(1.3)(b) and the financial institution of the effective date of the addition to the registration; (b) if the financial institution is registered under this Subdivision on the day preceding the effective date, that registration of the financial institution is cancelled as of the effective date; and (c) the financial institution is deemed, for the purposes of this Part other than section 242, to be registered under this Subdivision as of the effective date and to have a registration number that is the same as the registration number of the group. (2) Subsection (1) is deemed to have come into force on July 1, 2010. 84. (1) Section 242 of the Act is amended by adding the following after subsection (1):
Cancellation of group registration
(1.1) The Minister may, after giving reasonable written notice to each member of a group that is registered under this Subdivision and to the person that is prescribed in respect of the group for the purposes of paragraph 240(1.3)(b), cancel the registration of the group if the Minister is satisfied that the registration is not required for the purposes of this Part.
Cancellation of group registration
(1.2) The Minister must cancel the registration of a group in prescribed circumstances.
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Removal from group registration
(1.3) The Minister may, after giving reasonable written notice to a particular person that is a member of a group that is registered under this Subdivision and to the person that is prescribed in respect of the group for the purposes of paragraph 240(1.3)(b), remove the particular person from the registration of the group if the Minister is satisfied that the particular person is not required to be included in the registration for the purposes of this Part.
Removal from group registration
(1.4) The Minister must remove a person from the registration of a group in prescribed circumstances.
1993, c. 27, s. 102(2)
(2) Subsection 242(3) of the Act is replaced by the following:
Notice of cancellation or variation
(3) If the Minister cancels or varies the registration of a person, the Minister must notify the person in writing of the cancellation or variation and its effective date.
Group registration — notice of cancellation
(4) If the Minister cancels the registration of a group,
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(a) the Minister must notify in writing each member of the group and the person that is prescribed in respect of the group for the purposes of paragraph 240(1.3)(b) of the cancellation and its effective date; and (b) each member of the group is deemed, for the purposes of this Part, to no longer be registered under this Subdivision as of the effective date of the cancellation.
Group registration — notice of removal
(5) If the Minister removes a particular person from the registration of a group, (a) the Minister must notify in writing the particular person and the person that is prescribed in respect of the group for the purposes of paragraph 240(1.3)(b) of the removal and its effective date; and (b) the particular person is deemed, for the purposes of this Part, to no longer be registered under this Subdivision as of the effective date of the removal. (3) Subsections (1) and (2) are deemed to have come into force on July 1, 2010.
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Emploi et croi 85. (1) The Act is amended by adding the following after section 244:
Fiscal year — selected listed financial institution
244.1 (1) If a person is a financial institution described in subparagraph 149(1)(a)(vi) or (ix) that is a selected listed financial institution throughout a particular reporting period in a particular fiscal year of the person that begins in a particular calendar year and the person was not a selected listed financial institution throughout the reporting period immediately before the particular reporting period, the following rules apply: (a) the particular fiscal year ends on the last day of the particular calendar year; and (b) as of the beginning of the first day of the calendar year that is immediately after the particular calendar year, the fiscal years of the person are calendar years and any election made by the person under section 244 ceases to have effect.
Fiscal year — selected listed financial institution
(2) Despite subsection (1), if a person is a financial institution described in subparagraph 149(1)(a)(vi) or (ix) that is a selected listed financial institution throughout a particular reporting period in a particular fiscal year of the person, the following rules apply in prescribed circumstances to determine the fiscal year of the person: (a) the particular fiscal year ends on the day immediately before the prescribed day referred to in paragraph (b); and (b) the following fiscal year of the person begins on a prescribed day.
Ceasing to be selected listed financial institution
(3) If a person is a financial institution described in subparagraph 149(1)(a)(vi) or (ix) that is a selected listed financial institution throughout a reporting period in a particular fiscal year and the person is not a selected listed financial institution throughout a reporting period in the following fiscal year of the person, that following fiscal year ends on the day on which it would end in the absence of this section. (2) Subsection (1) applies in respect of any fiscal year of a person that ends after 2010, except that in applying subsection 244.1(1) of
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the Act, as enacted by subsection (1), in respect of any fiscal year that begins before 2011, that subsection of the Act is to be read without reference to “and the person was not a selected listed financial institution throughout the reporting period immediately before the particular reporting period”. 1990, c. 45, s. 12(1)
86. (1) Subsection 246(3) of the Act is replaced by the following:
Duration of election
(3) An election made under this section by a person is to remain in effect until the earlier of (a) the beginning of the day on which an election by the person under section 247 or 248 takes effect, and (b) the day on which a revocation of the election by the person under subsection (4) becomes effective.
Revocation of election
(4) A listed financial institution that has made an election under this section may revoke the election, effective on the first day of a fiscal year of the financial institution, by filing in prescribed manner with the Minister a notice of revocation in prescribed form containing prescribed information not later than the day on which the revocation is to become effective or any later day that the Minister may allow. (2) Subsection (1) applies to any fiscal year that ends on or after July 1, 2010. 87. (1) Subsection 247(2) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c): (d) the day on which a revocation of the election by the person under subsection (3) becomes effective. (2) Section 247 of the Act is amended by adding the following after subsection (2):
Revocation of election
(3) A listed financial institution that has made an election under this section may revoke the election, effective on the first day of a fiscal year of the financial institution, by filing in prescribed manner with the Minister a notice of revocation in prescribed form containing
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Emploi et croi prescribed information not later than the day on which the revocation is to become effective or any later day that the Minister may allow. (3) Subsections (1) and (2) apply to any fiscal year that ends on or after July 1, 2010.
2010, c. 12, s. 75(2)
88. (1) The definitions “participating employer”, “pension entity” and “pension plan” in subsection 261.01(1) of the Act are repealed. (2) Subsection (1) is deemed to have come into force on September 23, 2009.
1997, c. 10, s. 229(1)
89. (1) Subsection 261.3(2) of the Act is repealed. (2) Subsection (1) is deemed to have come into force on July 1, 2010.
1997, c. 10, s. 229(1)
90. (1) Subsection 261.31(1) of the Act is repealed.
1997, c. 10, s. 229(1); 2009, c. 32, s. 34(1)
(2) Subsections 261.31(2) and (3) of the Act are replaced by the following:
Rebate for tax payable by investment plans
(2) If tax under subsection 165(2), sections 212.1 or 218.1 or Division IV.1 is payable by a listed financial institution described in subparagraph 149(1)(a)(vi) or (ix), other than a selected listed financial institution, or by a prescribed person and prescribed conditions are satisfied, the Minister must, subject to section 261.4, pay a rebate to the financial institution or person equal to the amount determined in prescribed manner.
Election by segregated fund and insurer
(3) An insurer and a segregated fund of the insurer may elect, in prescribed form containing prescribed information, to have the insurer pay to, or credit in favour of, the segregated fund the amount of any rebates payable to the segregated fund under subsection (2) in respect of supplies made by the insurer to the segregated fund.
1997, c. 10, s. 229(1)
(3) Subsection 261.31(5) of the Act is replaced by the following:
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Application to insurer
(5) An insurer may pay or credit to or in favour of a segregated fund of the insurer the amount of a rebate under subsection (2) in respect of a taxable supply made by the insurer to the segregated fund that, if the segregated fund complied with section 261.4 in relation to the supply, would be payable to the segregated fund if
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(a) the insurer and the segregated fund have filed an election made under subsection (3) that is in effect when tax in respect of the supply becomes payable; and (b) the segregated fund, within one year after the day on which tax becomes payable in respect of the supply, submits to the insurer an application for the rebate in prescribed form containing prescribed information.
(4) Subsections (1) to (3) apply in respect of any rebate that is in respect of tax that became payable, or was paid without having become payable, on or after July 1, 2010. 91. (1) Section 261.4 of the Act is renumbered as subsection 261.4(1) and is amended by adding the following: Exception for investment plans, etc.
(2) A rebate under any of sections 261.1 to 261.3 in respect of tax paid or payable by a listed financial institution described in subparagraph 149(1)(a)(vi) or (ix) must not be paid. (2) Subsection (1) applies in respect of any rebate that is in respect of tax that became payable, or was paid without having become payable, on or after July 1, 2010. 92. (1) Section 263.01 of the Act is amended by adding the following after subsection (3):
Exception — prescribed person
(4) Despite subsection (1), a rebate under section 261.31 in respect of a prescribed amount of tax may be paid to a person that is prescribed for the purpose of subsection 261.31(2).
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(2) Subsection (1) is deemed to have come into force on July 1, 2010. 2010, c. 12
JOBS AND ECONOMIC GROWTH ACT 93. (1) Subsection 58(2) of the Jobs and Economic Growth Act is amended by striking out “and” at the end of paragraph (a) and by adding the following after paragraph (a): (a.1) if a person that is a participating employer of a pension plan acquires property or a service for the purpose of making a supply of all or part of the property or service to a pension entity of the pension plan but not for the purpose of making a supply of any part of the property or service to a pension entity of the pension plan after June 2010, the amount determined for B in the formula in paragraph 172.1(5)(c) of the Act, as enacted by subsection (1), for Nova Scotia in respect of a taxable supply of all or part of the property or service that is deemed to have been made under paragraph 172.1(5)(a) of the Act, as enacted by subsection (1), on the last day of a fiscal year of the person is to be determined as if the tax rate for Nova Scotia on the last day of the fiscal year were 8%; and (2) The formula in the read-as text in paragraph 58(2)(b) of the Act and the descriptions in that formula are replaced by the following: E × [(F × G/H) – (I × J/H)] where E is the amount determined for C, F is the provincial factor in respect of the pension plan and the participating province for the particular fiscal year, G is (i) if the participating province is Ontario or British Columbia, the number of days in the particular fiscal year that are after June 2010, and
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Jobs and Gr (ii) in any other case, the number of days in the particular fiscal year, H is the number of days in the particular fiscal year, I
is the amount (expressed as a percentage) that would be the provincial factor in respect of the pension plan and the participating province for the particular fiscal year if the tax rate for the participating province on the last day of the fiscal year were 2%, and
J
is (i) if the participating province is Nova Scotia, the number of days in the particular fiscal year that are before July 2010, and (ii) in any other case, zero; and
94. Section 64 of the Act is amended by adding the following after subsection (7): (8) Despite subsections (5) and (6), the amount of tax payable by a person under subsection 218.1(1.2) of the Act, as enacted by subsections (2) and (3), for the specified year of the person that begins before July 1, 2010 and ends on or after that day and for Nova Scotia or the Nova Scotia offshore area is equal to the amount determined by the formula A – [0.2 × A × (B/C)] where A is the amount that, in the absence of this subsection, would be tax payable under subsection 218.1(1.2) of the Act, as enacted by subsections (2) and (3), for the specified year and for Nova Scotia or the Nova Scotia offshore area, as the case may be; B is the number of days in the specified year that are before July 2010; and C is the number of days in the specified year.
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95. The formula in the read-as text in subsection 75(4) of the Act and the descriptions in that formula are replaced by the following: A × B × [(C/D) – ((2% × E/F)/D)] × [(F – G)/F] where A is the pension rebate amount of the pension entity for the claim period, B is the pension entity’s percentage for the participating province for the taxation year for the purposes of C in the formula in subsection 225.2(2), C is the tax rate for the participating province, D is the rate set out in subsection 165(1), E is (i) if the participating province is Nova Scotia, the number of days in the claim period that are before July 1, 2010, and (ii) in any other case, zero, F is the number of days in the claim period, and G is (i) if the participating province is Ontario or British Columbia, the number of days in the claim period that are before July 1, 2010, and (ii) in any other case, zero; and
2010, c. 12, s. 91
INPUT TAX CREDIT ALLOCATION METHODS (GST/HST) REGULATIONS 96. The Input Tax Credit Allocation Methods (GST/HST) Regulations are deemed (a) to have been made under section 277 of the Excise Tax Act;
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(b) for the purposes of subsection 5(1) of the Statutory Instruments Act, to have been transmitted to the Clerk of the Privy Council for registration; and (c) to have met the publication requirements of subsection 11(1) of the Statutory Instruments Act. PART 3 R.S., c. F-8; 1995, c. 17, s. 45(1)
FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT 97. (1) The Federal-Provincial Fiscal Arrangements Act is amended by adding the following after section 12.3: PART IV.11 TRANSFER PAYMENTS — TAX IN RESPECT OF SIFT TRUSTS OR SIFT PARTNERSHIPS
Definitions
12.31 The following definitions apply in this Part.
“SIFT entity” « entité intermédiaire de placement déterminée »
“SIFT entity” means a SIFT trust or a SIFT partnership.
“SIFT partnership” « société de personnes intermédiaire de placement déterminée »
“SIFT partnership” has the same meaning as in subsection 248(1) of the Income Tax Act.
“SIFT trust” « fiducie intermédiaire de placement déterminée »
“SIFT trust” has the same meaning as in subsection 248(1) of the Income Tax Act.
Permanent establishment
12.32 The definition “permanent establishment” in subsection 400(2) of the Income Tax Regulations, as it read on March 12, 2009 and as it is amended from time to time after that date, applies in determining the amount payable to a province under this Part.
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2011-2012 Transfer payments for SIFT entity with single permanent establishment
12.33 Subject to this Act, the Minister may pay to a province, in respect of tax payable under subsection 122(1) or 197(2) of the Income Tax Act by a SIFT entity that, in a taxation year, has a permanent establishment in the province and no permanent establishment outside the province, the amount determined by the formula Z×Y where Z is (a) in respect of a taxation year that is after 2006 and before 2009 for which no election was made by the SIFT entity under subsection 34(4) of the Budget Implementation Act, 2008, 0.13, and (b) in any other case, the amount determined under paragraph 414(3)(b) of the Income Tax Regulations in respect of the SIFT entity for the taxation year; and Y is (a) for a SIFT entity that is a SIFT trust, the SIFT trust’s taxable SIFT trust distributions, as defined in subsection 122(3) of the Income Tax Act, for the taxation year, and (b) for a SIFT entity that is a SIFT partnership, the SIFT partnership’s taxable non-portfolio earnings, as defined in subsection 197(1) of the Income Tax Act, for the taxation year.
Transfer payments for SIFT entity with multiple permanent establishments
12.34 (1) Subject to this Act, the Minister may pay to a province, in respect of tax payable under subsection 122(1) or 197(2) of the Income Tax Act by a SIFT entity that, in a taxation year, has a permanent establishment in the province and a permanent establishment outside the province, the amount determined by the formula (Z/Y) × (X × W) where
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Z is, subject to subsection (2), the amount determined by the second formula in paragraph 414(3)(c) of the Income Tax Regulations for the taxation year in respect of the province; Y is (a) subject to subsection (2), in respect of a taxation year that is after 2006 and before 2009 for which no election was made by the SIFT entity under subsection 34(4) of the Budget Implementation Act, 2008, the amount that would be determined under paragaph 414(3)(c) of the Income Tax Regulations in respect of the SIFT entity for the taxation year if the SIFT entity had made that election, and (b) in any other case, the amount determined under paragraph 414(3)(c) of the Income Tax Regulations in respect of the SIFT entity for the taxation year; X is (a) in respect of a taxation year that is after 2006 and before 2009 for which no election was made by the SIFT entity under subsection 34(4) of the Budget Implementation Act, 2008, 0.13, and (b) in any other case, the amount determined under paragraph 414(3)(c) of the Income Tax Regulations in respect of the SIFT entity for the taxation year; and W is (a) for a SIFT entity that is a SIFT trust, the SIFT trust’s taxable SIFT trust distributions, as defined in subsection 122(3) of the Income Tax Act, for the taxation year, and (b) for a SIFT entity that is a SIFT partnership, the SIFT partnership’s taxable non-portfolio earnings, as defined in subsection 197(1) of the Income Tax Act, for the taxation year.
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2007 and 2008 taxation years — permanent establishment in Quebec
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(2) In respect of a taxation year that is after 2006 and before 2009 for which no election was made under subsection 34(4) of the Budget Implementation Act, 2008 by a SIFT entity that has a permanent establishment in the province of Quebec in that taxation year, in calculating the amount determined by the second formula in paragraph 414(3)(c) of the Income Tax Regulations in respect of that province, paragraph (a) of the definition “general corporate income tax rate” in subsection 414(1) is to be read as follows: (a) for Quebec, the highest percentage rate of tax imposed under the laws of Quebec on the taxable income of a public corporation earned in the taxation year in Quebec;
Consolidated Revenue Fund
12.35 Payments that the Minister may make under section 12.33 or 12.34 are to be made out of the Consolidated Revenue Fund at any time that the Minister may determine.
Information
12.36 A SIFT entity that has not made an election under subsection 34(4) of the Budget Implementation Act, 2008 in respect of a taxation year that is after 2006 and before 2009 must furnish to the Minister of National Revenue any information that that Minister may require for the purpose of determining the amount payable to a province under this Part in respect of taxes payable by the SIFT entity under subsection 122(1) or 197(2) of the Income Tax Act for that taxation year.
(2) Part IV.11 of the Act, as enacted by subsection (1), applies in respect of the 2007 and subsequent taxation years. 98. (1) The Act is amended by adding the following after section 12.5:
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Jobs and Gr PART IV.3
TRANSFER PAYMENTS — TAX ON EXCESS EPSP AMOUNTS UNDER PART XI.4 OF THE INCOME TAX ACT Transfer payments — Consolidated Revenue Fund
12.6 Subject to this Act, the Minister may, at such time as he or she determines, pay to a province, out of the Consolidated Revenue Fund in respect of tax payable under section 207.8 of the Income Tax Act for a taxation year by a person who is resident in the province at the end of the taxation year, the amount determined by the formula: A×B where A is the percentage applicable to the person for the taxation year under the description of B in the formula in subsection 207.8(2) of the Income Tax Act; and B is the amount determined for the person for the taxation year under the description of C in the formula in subsection 207.8(2) of the Income Tax Act.
Eligibility for payment
12.7 No payment may be made under this Part to a province if, in the opinion of the Minister, the province imposes or purports to impose a tax that is similar to the tax imposed under Part XI.4 of the Income Tax Act. PART IV.4 TRANSFER PAYMENTS WITH RESPECT TO FEDERAL TAXES — NECESSARY INFORMATION
Information to be provided
12.8 The Minister of National Revenue shall provide to the Minister in a form and manner, and at a time, satisfactory to the Minister, any information necessary for the administration of Parts IV.01 to IV.3. (2) Part IV.3 of the Act, as enacted by subsection (1), applies in respect of the 2012 and subsequent taxation years.
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2011-2012 PART 4
VARIOUS MEASURES DIVISION 1 FINANCIAL INSTITUTIONS 1991, c. 45
Trust And Loan Companies Act
2012, c. 19, s. 326
99. Paragraph 164(f.1) of the Trust and Loan Companies Act is replaced by the following: (f.1) a person who is an officer, director, employee or agent of — or any other person acting on behalf of — an eligible agent within the meaning of section 374.1;
1994, c. 47, s. 206
100. Section 376.1 of the Act is replaced by the following:
Exception — small holdings
376.1 Despite section 376, if, as a result of a transfer or issue of shares of a class of shares of a company to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the company in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class, the company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the company as a result of that issue or transfer of shares. 101. Section 377 of the Act is amended by adding the following after subsection (3):
Exception — eligible agent
(3.1) If the person referred to in subsection (1) is an eligible agent or an entity controlled by an eligible agent, then the Minister may reduce the percentage referred to in subsection (2) or (3).
2001, c. 9, s. 520
102. Paragraph 378(1)(b) of the Act is replaced by the following: (b) a person, other than an eligible agent, who controls, within the meaning of paragraph 3(1)(a), the company acquires additional shares of the company. 103. Subsection 391(2) of the Act is replaced by the following:
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Notice of decision
(2) Subject to subsections (4) and 392(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 390(1) in the following cases:
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(a) the application involves the acquisition of control of a company; (b) the application is made by an eligible agent or an entity controlled by an eligible agent; or (c) an application is made for the approval referred to in subsection 396(3). 104. Subsection 392(2) of the English version of the Act is replaced by the following: Reasonable opportunity to make representations
(2) If, after receipt of the notice sent in accordance with subsection 391(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
2012, c. 19, s. 328
105. Subsection 396(4) of the Act is replaced by the following:
Application made jointly
(4) The application for the approval referred to in subsection (3) must be made jointly by the company and the eligible agent.
Matters for consideration
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 388(1)(a) to (g).
Consequence of revocation of approval
(6) If an approval referred to in subsection (3) is revoked, the company shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent.
Disposition of shareholdings
(7) If a company or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases
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Emploi et croi to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the company beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order.
Representations
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
Appeal
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 530. 106. Section 399 of the Act is amended by adding the following after subsection (5):
Consequence of suspension of approval
(6) If an approval referred to in subsection 396(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the company that is beneficially owned by the eligible agent. 107. Subsection 402(1) of the Act is replaced by the following:
Application to court
402. (1) If a person fails to comply with a direction made under subsection 396(7) or 401(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
1996, c. 6, s. 132
108. Subsection 530(1) of the Act is replaced by the following:
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Appeal to Federal Court
530. (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 396(7) or 401(1).
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1991, c. 46
Bank Act
2012, c. 19, s. 330
109. Paragraph 160(f.1) of the Bank Act is replaced by the following: (f.1) a person who is an officer, director, employee or agent of — or any other person acting on behalf of — an eligible agent within the meaning of subsection 370(1);
2001, c. 9, s. 98
110. Section 381 of the Act is replaced by the following:
Exception — small holdings
381. Despite section 379, if, as a result of a transfer or issue of shares of a class of shares of a bank to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the bank in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class, the bank is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the bank as a result of that issue or transfer of shares. 111. Section 382 of the Act is amended by adding the following after subsection (3):
Exception — eligible agent
(3.1) If the person referred to in subsection (1) is an eligible agent or an entity controlled by an eligible agent, then the Minister may reduce the percentage referred to in subsection (2) or (3).
2001, c. 9, s. 98
112. Paragraph 383(1)(b) of the Act is replaced by the following: (b) a person, other than an eligible agent, who controls, within the meaning of paragraph 3(1)(a), the bank acquires additional shares of the bank.
2001, c. 9, s. 98
113. The portion of subsection 396(2) of the Act before paragraph (a) is replaced by the following:
Exception
(2) Except for an application by an eligible agent for an approval under section 373, and subject to subsection 377(1), the Minister shall
2011-2012
Emploi et croi take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding
2001, c. 9, s. 98
114. Subsection 399(2) of the Act is replaced by the following:
Notice of decision
(2) Subject to subsections (4) and 400(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 398(1) in the following cases: (a) the application involves the acquisition of control of a bank; (b) the application is made by an eligible agent or an entity controlled by an eligible agent; or (c) an application is made for the approval referred to in subsection 401.2(3).
2001, c. 9, s. 98
115. Subsection 400(2) of the English version of the Act is replaced by the following:
Reasonable opportunity to make representations
(2) If, after receipt of the notice sent in accordance with subsection 399(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter. 116. (1) Section 401.2 of the Act is amended by adding the following after subsection (2):
Certain foreign banks excluded
(2.1) Subsection (2) does not permit a bank to record in its securities register a transfer or issue of any share of the bank to a foreign bank that is a foreign bank by reason only of paragraph (f) of the definition “foreign bank” in section 2.
2012, c. 19, s. 333
(2) Subsection 401.2(4) of the Act is replaced by the following:
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Application made jointly
(4) The application for the approval referred to in subsection (3) must be made jointly by the bank and the eligible agent.
Matters for consideration
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 396(1)(a) to (h).
Consequence of revocation of approval
(6) If an approval referred to in subsection (3) is revoked, the bank shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent.
Disposition of shareholdings
(7) If a bank or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the bank beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order.
Representations
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the bank concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
Appeal
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 977.
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117. Section 401.3 of the Act is amended by adding the following after subsection (3):
2011-2012 Consequence of suspension of approval
Emploi et croi (4) If an approval referred to in subsection 401.2(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the bank that is beneficially owned by the eligible agent. 118. Subsection 403(1) of the Act is replaced by the following:
Application to court
403. (1) If a person fails to comply with a direction made under subsection 401.2(7) or 402(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
2012, c. 19, s. 335
119. Paragraph 750(f.1) of the Act is replaced by the following: (f.1) a person who is an officer, director, employee or agent of — or any other person acting on behalf of — an eligible agent within the meaning of subsection 370(1);
2001, c. 9, s. 183
120. Section 889 of the Act is replaced by the following:
Exception — small holdings
889. Despite section 887, if, as a result of a transfer or issue of shares of a class of shares of a bank holding company to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the bank holding company in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class, the bank holding company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the bank holding company as a result of that issue or transfer of shares. 121. Section 890 of the Act is amended by adding the following after subsection (3):
Exception — eligible agent
(3.1) If the person referred to in subsection (1) is an eligible agent or an entity controlled by an eligible agent, then the Minister may reduce the percentage referred to in subsection (2) or (3).
2001, c. 9, s. 183
122. Paragraph 891(1)(b) of the Act is replaced by the following:
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(b) a person, other than an eligible agent, who controls, within the meaning of paragraph 3(1)(a), the bank holding company acquires additional shares of the bank holding company. 2001, c. 9, s. 183
123. The portion of subsection 906(2) of the Act before paragraph (a) is replaced by the following:
Exception
(2) Except for an application by an eligible agent for an approval under section 875, and subject to subsection 882(1), the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding
2001, c. 9, s. 183
124. Subsection 909(2) of the Act is replaced by the following:
Notice of decision
(2) Subject to subsections (4) and 910(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 908(1) in the following cases: (a) the application involves the acquisition of control of a bank holding company; (b) the application is made by an eligible agent or an entity controlled by an eligible agent; or (c) an application is made for the approval referred to in subsection 913(3).
2001, c. 9, s. 183
125. Subsection 910(2) of the English version of the Act is replaced by the following:
Reasonable opportunity to make representations
(2) If, after receipt of the notice sent in accordance with subsection 909(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
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Emploi et croi 126. (1) Section 913 of the Act is amended by adding the following after subsection (2):
Certain foreign banks excluded
(2.1) Subsection (2) does not permit a bank holding company to record in its securities register a transfer or issue of any share of the bank holding company to a foreign bank that is a foreign bank by reason only of paragraph (f) of the definition “foreign bank” in section 2.
2012, c. 19, s. 337
(2) Subsection 913(4) of the Act is replaced by the following:
Application made jointly
(4) The application for the approval referred to in subsection (3) must be made jointly by the bank holding company and the eligible agent.
Matters for consideration
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 906(1)(a) to (g).
Consequence of revocation of approval
(6) If an approval referred to in subsection (3) is revoked, the bank holding company shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent.
Disposition of shareholdings
(7) If a bank holding company or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the bank holding company beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order.
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Representations
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the bank holding company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
Appeal
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 977.
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127. Section 914 of the Act is amended by adding the following after subsection (3): Consequence of suspension of approval
(4) If an approval referred to in subsection 913(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the bank holding company that is beneficially owned by the eligible agent.
2001, c. 9, s. 183
128. Section 916 of the French version of the Act is replaced by the following:
Appel
916. Les personnes visées par l’arrêté prévu au paragraphe 915(1) peuvent, dans les trente jours qui suivent sa prise, en appeler conformément à l’article 977.
2001, c. 9, s. 183
129. Subsection 917(1) of the Act is replaced by the following:
Application to court
917. (1) If a person fails to comply with a direction made under subsection 913(7) or 915(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
2001, c. 9, s. 183
130. Subsection 977(1) of the Act is replaced by the following:
Appeal to Federal Court
977. (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 401.2(7), 402(1), 913(7) or 915(1).
1991, c. 47
Insurance Companies Act
2012, c. 19, s. 339
131. Paragraph 168(1)(f.1) of the Insurance Companies Act is replaced by the following:
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Emploi et croi (f.1) a person who is an officer, director, employee or agent of — or any other person acting on behalf of — an eligible agent within the meaning of section 406.1;
1994, c. 47, s. 123
132. Section 408.1 of the Act is replaced by the following:
Exception — small holdings
408.1 Despite section 408, if, as a result of a transfer or issue of shares of a class of shares of a company to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the company in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class, the company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the company as a result of that issue or transfer of shares. 133. Section 409 of the Act is amended by adding the following after subsection (3):
Exception — eligible agent
(3.1) If the person referred to in subsection (1) is an eligible agent or an entity controlled by an eligible agent, then the Minister may reduce the percentage referred to in subsection (2) or (3).
2001, c. 9, s. 405
134. Paragraph 410(1)(b) of the Act is replaced by the following: (b) a person, other than an eligible agent, who controls, within the meaning of paragraph 3(1)(a), the company acquires additional shares of the company.
2001, c. 9, s. 412
135. The portion of subsection 420(1.1) of the Act before paragraph (a) is replaced by the following:
Exception
(1.1) Except for an application by an eligible agent for an approval under section 407, and subject to subsection 407.2(1), the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding 136. Subsection 423(2) of the Act is replaced by the following:
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Notice of decision
(2) Subject to subsections (4) and 424(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 422(1) in the following cases:
Jobs and Gr
(a) the application involves the acquisition of control of a company; (b) the application is made by an eligible agent or an entity controlled by an eligible agent; or (c) an application is made for the approval referred to in subsection 428(3). 137. Subsection 424(2) of the English version of the Act is replaced by the following: Reasonable opportunity to make representations
(2) If, after receipt of the notice sent in accordance with subsection 423(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
2012, c. 19, s. 341
138. Subsection 428(4) of the Act is replaced by the following:
Application made jointly
(4) The application for the approval referred to in subsection (3) must be made jointly by the company and the eligible agent.
Matters for consideration
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 420(1)(a) to (h).
Consequence of revocation of approval
(6) If an approval referred to in subsection (3) is revoked, the company shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent.
Disposition of shareholdings
(7) If a company or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases
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Emploi et croi to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the company beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order.
Representations
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
Appeal
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 1020. 139. Section 430 of the Act is amended by adding the following after subsection (5):
Consequence of suspension of approval
(6) If an approval referred to in subsection 428(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the company that is beneficially owned by the eligible agent. 140. Subsection 433(1) of the Act is replaced by the following:
Application to court
433. (1) If a person fails to comply with a direction made under subsection 428(7) or 432(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
2012, c. 19, s. 344
141. Paragraph 797(f.1) of the Act is replaced by the following:
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(f.1) a person who is an officer, director, employee or agent of — or any other person acting on behalf of — an eligible agent within the meaning of section 406.1; 2012, c. 19, s. 345
142. Section 926 of the English version of the Act is replaced by the following:
Sections 406.1 and 406.2 apply
926. Sections 406.1 and 406.2 apply in respect of insurance holding companies, except that references to “company” in section 406.2 are to be read as references to “insurance holding company”.
2001, c. 9, s. 465
143. Section 935 of the Act is replaced by the following:
Exception — small holdings
935. Despite section 934, if, as a result of a transfer or issue of shares of a class of shares of an insurance holding company to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the insurance holding company in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class, the insurance holding company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the insurance holding company as a result of that issue or transfer of shares. 144. Section 936 of the Act is amended by adding the following after subsection (3):
Exception — eligible agent
(3.1) If the person referred to in subsection (1) is an eligible agent or an entity controlled by an eligible agent, then the Minister may reduce the percentage referred to in subsection (2) or (3).
2001, c. 9, s. 465
145. Paragraph 937(1)(b) of the Act is replaced by the following: (b) a person, other than an eligible agent, who controls, within the meaning of paragraph 3(1)(a), the insurance holding company acquires additional shares of the insurance holding company.
2001, c. 9, s. 465
146. The portion of subsection 947(2) of the Act before paragraph (a) is replaced by the following:
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Emploi et croi
Exception
(2) Except for an application by an eligible agent for an approval under section 927, and subject to section 933, the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding
2001, c. 9, s. 465
147. Subsection 950(2) of the Act is replaced by the following:
Notice of decision
(2) Subject to subsections (4) and 951(2), the notice referred to in paragraph (1)(a) or (b) shall be sent by the Minister within a period of 45 days after the certified date referred to in subsection 949(1) in the following cases: (a) the application involves the acquisition of control of an insurance holding company; (b) the application is made by an eligible agent or an entity controlled by an eligible agent; or (c) an application is made for the approval referred to in subsection 954(3).
2001, c. 9, s. 465
148. Subsection 951(2) of the English version of the Act is replaced by the following:
Reasonable opportunity to make representations
(2) If, after receipt of the notice sent in accordance with subsection 950(2) that the Minister is not satisfied that the transaction to which the application relates should be approved, the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of 45 days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
2012, c. 19, s. 346
149. Subsection 954(4) of the Act is replaced by the following:
Application made jointly
(4) The application for the approval referred to in subsection (3) must be made jointly by the insurance holding company and the eligible agent.
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Matters for consideration
(5) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 947(1)(a) to (g).
Consequence of revocation of approval
(6) If an approval referred to in subsection (3) is revoked, the insurance holding company shall delete any entry in its securities register in respect of the recording of the issuance of shares to the eligible agent.
Disposition of shareholdings
(7) If an insurance holding company or an eligible agent fails to comply with any undertaking or term or condition in relation to an approval referred to in subsection (3), or if an eligible agent ceases to be an eligible agent, the Minister may, if the Minister considers it to be in the public interest to do so, by order, direct the eligible agent or former eligible agent and any person controlled by the eligible agent or former eligible agent to dispose of any number of shares of the insurance holding company beneficially owned by the eligible agent or former eligible agent or the persons controlled by the eligible agent or former eligible agent that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the eligible agent or former eligible agent and the persons controlled by the eligible agent or former eligible agent that is specified in the order.
Representations
(8) No direction shall be made under subsection (7) unless the Minister has provided each person to whom the direction relates and the insurance holding company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
Appeal
(9) Any person with respect to whom a direction has been made under subsection (7) may, within 30 days after the date of the direction, appeal the matter in accordance with section 1020.
Jobs and Gr
150. Section 955 of the Act is amended by adding the following after subsection (3):
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Emploi et croi
Consequence of suspension of approval
(4) If an approval referred to in subsection 954(3) is suspended, the eligible agent shall not exercise, in person or by proxy, any voting rights attached to any share of the insurance holding company that is beneficially owned by the eligible agent.
2001, c. 9, s. 465
151. Subsection 957(1) of the Act is replaced by the following:
Application to court
957. (1) If a person fails to comply with a direction made under subsection 954(7) or 956(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
2001, c. 9, s. 465
152. Subsection 1020(1) of the Act is replaced by the following:
Appeal to Federal Court
1020. (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 428(7), 432(1), 954(7) or 956(1).
2010, c. 12
Jobs and Economic Growth Act 153. Section 2073 of the English version of the Jobs and Economic Growth Act is amended by replacing the portion of subsection 402(1) that it enacts before paragraph (a) with the following:
Disposition
402. (1) If, with respect to any bank, a person contravenes section 372 or subsection 373(1), 374(1) or 375(1) or section 376.1 or 376.2, subsection 377(1) or section 377.1 or 377.2 or fails to comply with an undertaking referred to in subsection 390(2) or with any terms and conditions imposed under section 397, the Minister may, if the Minister considers it in the public interest to do so, by order, direct that person and any person controlled by that person to Coordinating Amendments
2010, c. 12
154. (1) In this section, “other Act” means the Jobs and Economic Growth Act.
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(2) On the first day on which both section 2062 of the other Act and section 110 of this Act are in force, section 381 of the Bank Act is replaced by the following: Exception — small holdings
381. Despite section 379, if, as a result of a transfer or issue of shares of a class of shares, or of membership shares, of a bank to a person, other than an eligible agent, the total number of shares of that class registered in the securities register of the bank, or the total number of membership shares registered in the members register of the bank, as the case may be, in the name of that person would not exceed 5,000 and would not exceed 0.1% of the outstanding shares of that class or of the outstanding membership shares, as the case may be, the bank is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares or in membership shares of the bank as a result of that issue or transfer of shares or membership shares. (3) On the first day on which both subsection 2071(2) of the other Act and subsection 116(1) of this Act are in force, subsection 401.2(2.1) of the Bank Act is replaced by the following:
Certain foreign banks excluded
(2.1) Subsection (2) does not permit a bank to record in its securities register or members register a transfer or issue of any share or membership share of the bank to a foreign bank that is a foreign bank by reason only of paragraph (f) of the definition “foreign bank” in section 2. (4) If section 2073 of the other Act comes into force before section 153 of this Act, then (a) that section 153 and the heading before it are deemed never to have come into force and are repealed; and (b) the portion of subsection 402(1) of the English version of the Bank Act preceding paragraph (a) is replaced by the following:
Disposition
402. (1) If, with respect to any bank, a person contravenes section 372 or subsection 373(1), 374(1) or 375(1) or section 376.1 or
Emploi et croi
2011-2012
376.2, subsection 377(1) or section 377.1 or 377.2 or fails to comply with an undertaking referred to in subsection 390(2) or with any terms and conditions imposed under section 397, the Minister may, if the Minister considers it in the public interest to do so, by order, direct that person and any person controlled by that person to (5) If section 2073 of the other Act comes into force on the same day as section 153 of this Act, then that section 153 is deemed to have come into force before that section 2073. 2012, c. 19
155. On the first day on which both section 117 of this Act is in force and subsection 348(2) of the Jobs, Growth and Long-term Prosperity Act has produced its effects, subsection 401.3(4) of the Bank Act, as enacted by section 117 of this Act, is renumbered as subsection 401.3(5) and is repositioned accordingly if required. DIVISION 2 SHIPPING
2001, c. 26
Canada Shipping Act, 2001 156. Paragraph 16(4)(d) of the Canada Shipping Act, 2001 is replaced by the following: (d) the applicant has not paid a fee for services related to the document or has not paid a fine or penalty imposed on them under this Act; or
2001, c. 29, par. 72(g)
157. Subparagraph 20(1)(g)(i) of the Act is replaced by the following: (i) the applicant has not paid a fee for services related to the document, or 158. Subsection 32(5) of the Act is replaced by the following:
Variations of externally produced material
(4.1) A regulation made under this Act on the recommendation of the Minister of Transport or on the joint recommendation of that Minister and the Minister of Natural Resources
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may incorporate by reference material produced by the Minister of Transport that varies material incorporated by reference under subsection (1). Scope of incorporation
(5) Material referred to in subsections (1) to (4) may be incorporated by reference as amended from time to time or as it exists on a particular date. Material referred to in subsection (4.1) that is to be incorporated by reference must be incorporated as it exists on a particular date. 159. Subsection 35(1) of the Act is amended by striking out “and” at the end of paragraph (f) and by adding the following after paragraph (g): (h) specifying the services for the purposes of paragraph 36.1(1)(d); and (i) specifying the services to which section 36.1 does not apply or the circumstances in which that section does not apply. 160. (1) Subsection 36(1) of the French version of the Act is replaced by the following:
Créances de Sa Majesté
36. (1) Les droits imposés sous le régime des alinéas 35(1)g) ou (3)d) et les intérêts afférents constituent des créances de Sa Majesté du chef du Canada, dont le recouvrement peut être poursuivi à ce titre devant tout tribunal compétent. (2) The portion of subsection 36(2) of the French version of the Act before paragraph (a) is replaced by the following:
Paiement des droits
(2) Les droits imposés sous le régime des alinéas 35(1)g) ou (3)d) et les intérêts afférents frappant un bâtiment sont à payer : 161. The Act is amended by adding the following after section 36:
Services provided by third parties
36.1 (1) Unless otherwise provided in the regulations, any person or organization that provides, in the exercise of powers or the performance of duties under this Act in accordance with an agreement or arrangement entered into by the Minister of Transport under paragraph 10(1)(c), any of the following
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Emploi et croi services may, if that person or organization is not part of the federal public administration, set the fees to be paid to it for those services: (a) services related to a Canadian maritime document; (b) services related to any approvals or certifications; (c) the conduct or witnessing of tests; and (d) services specified in the regulations.
Not public money
(2) Unless otherwise provided in the regulations, the fees referred to in subsection (1) are not public money within the meaning of the Financial Administration Act and the User Fees Act does not apply in respect of them.
Non-application of certain regulations
(3) Unless otherwise provided in the regulations, the regulations made under paragraph 35(1)(g) do not apply in respect of any service referred to in any of paragraphs (1)(a) to (d) that is provided by any person or organization that is not part of the federal public administration in the exercise of powers or the performance of duties under this Act in accordance with an agreement or arrangement entered into by the Minister of Transport under paragraph 10(1)(c). Services Provided by Classification Societies
Setting of fees — Canada Shipping Act, 2001
162. (1) A classification society that provides, during the period beginning on July 1, 2007 and ending on the day before the day on which this Act receives royal assent, any of the following services in the exercise of powers or the performance of duties under the Canada Shipping Act, 2001 in accordance with an agreement or arrangement entered into by the Minister of Transport under paragraph 10(1)(c) of that Act may set the fees to be paid to it for those services: (a) services related to a Canadian maritime document; (b) services related to any approvals or certifications; and (c) the conduct or witnessing of tests.
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(2) The fees referred to in subsection (1) are not public money within the meaning of the Financial Administration Act and the User Fees Act does not apply in respect of them.
Non-application of certain regulations
(3) The regulations made under paragraph 35(1)(g) of the Canada Shipping Act, 2001 do not apply in respect of any service referred to in any of paragraphs (1)(a) to (c) that is provided, during the period beginning on July 1, 2007 and ending on the day before the day on which this Act receives royal assent, by a classification society in the exercise of powers or the performance of duties under that Act in accordance with an agreement or arrangement entered into by the Minister of Transport under paragraph 10(1)(c) of that Act.
Setting of fees — Canada Shipping Act
163. (1) A classification society that provides, during the period beginning on January 1, 1999 and ending on June 30, 2007, any of the following services in the exercise of powers or the performance of duties under the Canada Shipping Act in accordance with an agreement or arrangement entered into by the Minister of Transport under paragraph 8(1)(c) of that Act may set the fees to be paid to it for those services:
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(a) services related to an inspection certificate; (b) services related to any approvals or certifications; and (c) the conduct or witnessing of tests.
Not public money
(2) The fees referred to in subsection (1) are not public money within the meaning of the Financial Administration Act and are not subject to subsection 408(2) of the Canada Shipping Act.
User Fees Act
(3) The User Fees Act does not apply in respect of the fees referred to in subsection (1).
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164. The regulations made under paragraph 231(1)(d), subsections 408(1) or (4) or paragraphs 657(1)(l) or (m) of the Canada Shipping Act do not apply in respect of any service referred to in any of paragraphs 163(1)(a) to (c) that is provided, during the period beginning on January 1, 1999 and ending on June 30, 2007, by a classification society in the exercise of powers or the performance of duties under that Act. Coming into Force
July 1, 2007
165. (1) Sections 160 and 162 are deemed to have come into force on July 1, 2007.
March 31, 2004
(2) Subsection 163(3) is deemed to have come into force on March 31, 2004.
January 1, 1999
(3) Subsections 163(1) and (2) and section 164 are deemed to have come into force on January 1, 1999. DIVISION 3 PRESERVING THE STABILITY AND STRENGTH OF CANADA’S FINANCIAL SECTOR
R.S., c. C-3
Canada Deposit Insurance Corporation Act
2009, c. 2, s. 245(7)
166. (1) Subsection 39.15(7.1) of the Canada Deposit Insurance Corporation Act is replaced by the following:
Stay — eligible financial contracts
(7.01) If an order directing the incorporation of a bridge institution is made, the actions referred to in subsection (7) are not to be taken during the period beginning on the coming into force of the order and ending on the following business day at 5:00 p.m. at the location of the Corporation’s head office, by reason only of (a) the federal member institution’s insolvency; (b) the making of an order appointing the Corporation as receiver in respect of the federal member institution or the making of the order directing the incorporation of the bridge institution; or
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(c) the eligible financial contract being assigned to or assumed by the bridge institution. Exception
(7.02) Subsection (7.01) does not apply in respect of an eligible financial contract between the federal member institution and a clearing house, as defined in section 2 of the Payment Clearing and Settlement Act, that provides clearing and settlement services for a clearing and settlement system designated under section 4 of that Act or between the federal member institution and a securities and derivatives clearing house as defined in subsection 13.1(3) of that Act.
Definition of “business day”
(7.03) For the purpose of subsection (7.01), “business day” means a day other than a Saturday, a Sunday or any other day on which the clearing and settlement systems operated by the Canadian Payments Association are closed.
Corporation’s undertaking — eligible financial contracts
(7.1) If an order directing the incorporation of a bridge institution is made and the Corporation undertakes to unconditionally guarantee the payment of any amount due or that may become due by the federal member institution, in accordance with the provisions of the eligible financial contract, or to ensure that all obligations of the federal member institution arising from the eligible financial contract will be assumed by the bridge institution, the actions referred to in subsection (7) are not to be taken by reason only of (a) the federal member institution’s insolvency; (b) the making of an order appointing the Corporation as receiver in respect of the federal member institution or the making of the order directing the incorporation of the bridge institution; or (c) the eligible financial contract being assigned to or assumed by the bridge institution.
Agreements overridden
(7.11) Any stipulation in an eligible financial contract is of no force or effect if it
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2007, c. 29, s. 103(1)
“financial collateral” « garantie financière »
(2) The definition “financial collateral” in subsection 39.15(9) of the Act is replaced by the following: “financial collateral” has the same meaning as in subsection 13(2) of the Payment Clearing and Settlement Act.
1996, c. 6, s. 41
167. Section 39.18 of the Act is renumbered as subsection 39.18(1) and is amended by adding the following:
Exception
(2) Subsection (1) does not apply to subsections 39.15(7.01), (7.02), (7.11) and (7.2) and, only for the purpose of interpreting those subsections, to subsections 39.15(7), (7.03) and (9).
1996, c. 6, Sch.
Payment Clearing and Settlement Act
2012, c. 5, s. 213(2)
168. The definitions “clearing and settlement system” and “clearing house” in section 2 of the Payment Clearing and Settlement Act are replaced by the following:
“clearing and settlement system” « système de compensation et de règlement »
“clearing and settlement system” means a system or arrangement for the clearing or settlement of payment obligations or payment messages in which (a) there are at least three participants, at least one of which is a Canadian participant and at least one of which has its head office in a jurisdiction other than the jurisdiction where the head office of the clearing house is located;
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(b) clearing or settlement is all or partly in Canadian dollars; and (c) except in the case of a system or arrangement for the clearing or settlement of derivatives contracts, the payment obligations that arise from clearing within the system or arrangement are ultimately settled through adjustments to the account or accounts of one or more of the participants at the Bank. For greater certainty, it includes a system or arrangement for the clearing or settlement of securities transactions, derivatives contracts, foreign exchange transactions or other transactions if the system or arrangement also clears or settles payment obligations arising from those transactions. “clearing house” « chambre de compensation »
“clearing house” means a corporation, association, partnership, agency or other entity that provides clearing or settlement services for a clearing and settlement system. It includes a securities and derivatives clearing house, as defined in subsection 13.1(3), but does not include a stock exchange or the Bank. 169. (1) Paragraph 8(1)(c) of the Act is replaced by the following: (c) if a payment is made, property is delivered or an interest in, or in Quebec a right to, property is transferred in accordance with the settlement rules of a designated clearing and settlement system, the payment, delivery or transfer shall not be required to be reversed, repaid or set aside.
(2) Section 8 of the Act is amended by adding the following after subsection (3): Sections 39.15 and 39.152 of Canada Deposit Insurance Corporation Act
(3.1) Despite subsections (1) to (3) and the settlement rules, no action may be taken in respect of an eligible financial contract, as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act, if it is prevented by subsection 39.15(7.01), (7.1) or (7.11) or section 39.152 of that Act. (3) Subsection 8(5) of the Act is replaced by the following:
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Interpretation
(5) In this section, “settlement rules” means the rules, however established, that provide the basis on which payment obligations, delivery obligations or other transfers of property or interests in, or in Quebec rights to, property are made, calculated, netted or settled and includes rules for the taking of action in the event that a participant is unable or likely to become unable to meet its obligations to the clearing house, a central counter-party, other participants or the Bank.
1999, c. 28, s. 133(1)
170. (1) Subsection 13(1) of the Act is replaced by the following:
Termination
13. (1) Despite anything in any law relating to bankruptcy or insolvency or any order of a court made in respect of a reorganization, arrangement or receivership involving insolvency, a party to a netting agreement may terminate the agreement and determine a net termination value or net settlement amount in accordance with the provisions of the agreement and the party entitled to the net termination value or net settlement amount is to be a creditor of the party owing the net termination value or net settlement amount for that value or amount.
2007, c. 29, s. 111(1)
(2) The portion of subsection 13(1.1) of the Act before paragraph (a) is replaced by the following:
Eligible financial contract
(1.1) If a netting agreement referred to in subsection (1) is an eligible financial contract, a party to the agreement may also, in accordance with the provisions of that agreement, deal with financial collateral including (3) Section 13 of the Act is amended by adding the following after subsection (1.1):
Sections 39.15 and 39.152 of Canada Deposit Insurance Corporation Act
(1.2) Despite subsections (1) and (1.1), no action may be taken in respect of an eligible financial contract, as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act, if it is prevented by subsection 39.15(7.01), (7.1) or (7.11) or section 39.152 of that Act.
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(4) The portion of subsection 13(2) of the Act before the definition “financial collateral” is replaced by the following: Interpretation
(2) The following definitions apply in this section. (5) The definition “financial collateral” in subsection 13(2) of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after paragraph (c): (d) an assignment of a right to payment or delivery against a clearing house, or (e) any other collateral that is prescribed.
2007, c. 29, s. 111(2)
“netting agreement” « accord de compensation »
(6) The definition “netting agreement” in subsection 13(2) of the Act is replaced by the following: “netting agreement” means an agreement between two or more financial institutions, between the Bank and one or more financial institutions or between a participant and a customer to which the participant provides clearing services that is (a) an eligible financial contract; or (b) an agreement that provides for the netting or set-off or compensation of present or future obligations to make payments against the present or future rights to receive payments.
2002, c. 14, s. 1
171. (1) Paragraph 13.1(1)(b) of the Act is replaced by the following: (b) interfering with the rights or remedies of a securities and derivatives clearing house in respect of any collateral that has been granted to it as security for the performance of an obligation incurred in respect of the clearing and settlement services provided by the securities and derivatives clearing house. (2) Section 13.1 of the Act is amended by adding the following after subsection (1):
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2011-2012 Sections 39.15 and 39.152 of Canada Deposit Insurance Corporation Act
(1.1) Despite subsection (1), no action may be taken in respect of an eligible financial contract, as defined in subsection 39.15(9) of the Canada Deposit Insurance Corporation Act, if it is prevented by subsection 39.15(7.01), (7.1) or (7.11) or section 39.152 of that Act. 172. The Act is amended by adding the following after section 23: REGULATIONS
Financial collateral
24. The Governor in Council may make regulations prescribing collateral for the purpose of paragraph (e) of the definition “financial collateral” in subsection 13(2). DIVISION 4 FISHERIES
R.S., c. F-14
Fisheries Act 173. Section 29 of the Fisheries Act is replaced by the following:
Obstructing passage of fish or waters
29. (1) No person shall erect, use or maintain any seine, net, weir or other fishing appliance that (a) unduly obstructs the passage of fish in any Canadian fisheries waters, whether subject to any exclusive right of fishery or not; or (b) obstructs more than two thirds of the width of any river or stream or more than one third of the width of the main channel at low tide of any tidal stream.
Removal
(2) The Minister or a fishery officer may order the removal of or remove any seine, net, weir or other fishing appliance that, in the opinion of the Minister or fishery officer, results in an obstruction referred to in paragraph (1)(a) or (b).
Tidal streams
(3) For the purposes of paragraph (1)(b), if a tidal stream has no main channel at low tide, then the tidal stream’s width is considered to be the width of its main channel.
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174. Section 40 of the Act is amended by adding the following after subsection (5): Application of fines
(6) All fines received by the Receiver General in respect of the commission of an offence under this section are to be credited to the Environmental Damages Fund, an account in the accounts of Canada, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat, or for administering that Fund.
Recommendations of court
(7) The court imposing the fine may recommend to the Minister that all or a portion of the fine credited to the Environmental Damages Fund be paid to a person or an organization specified by the court for a purpose referred to in subsection (6).
2012, c. 19
Jobs, Growth and Long-term Prosperity Act 175. Subsection 133(3) of the Jobs, Growth and Long-term Prosperity Act is amended by replacing the definition “Aboriginal” that it enacts with the following:
“Aboriginal” « autochtone »
“Aboriginal”, in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food, for social or ceremonial purposes or for purposes set out in a land claims agreement entered into with the Aboriginal organization; 176. Section 136 of the Act is amended by replacing the subsections 20(4) and (5) that it enacts with the following:
Obstruction of free passage of fish
(4) No person shall (a) damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction; (b) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s request;
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(c) stop or hinder fish from entering or passing through any fishway, or from surmounting any obstacle or leap; (d) damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request; or (e) fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.
Exception — removal for repairs
(5) Despite paragraph (4)(d), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request if the removal is required for modification, repair or maintenance. Transitional Provisions
Ministerial authorizations
177. (1) An authorization issued by the Minister under section 32 or subsection 35(2) of the Fisheries Act as it existed before June 29, 2012, or under paragraph 32(2)(c) or paragraph 35(2)(b) of the Fisheries Act as it existed before the coming into force of subsection 142(2) of the Jobs, Growth and Long-term Prosperity Act, and that is still valid on the day on which that subsection 142(2) comes into force, is deemed to be an authorization issued by the Minister under paragraph 35(2)(b) of the Fisheries Act after that coming into force.
Amendment
(2) On the request of the holder of an authorization referred to in subsection (1) that is made within 90 days after the day on which subsection 142(2) of the Jobs, Growth and Long-term Prosperity Act comes into force, the Minister must examine the authorization, and the Minister may, within 210 days after the day on which that subsection 142(2) comes into force, confirm or amend the authorization or, if the Minister is of the opinion that the holder no longer needs an authorization, cancel it.
Conditions of authorizations
(3) Paragraph 40(3)(a) of the Fisheries Act does not apply to the holder of an authorization referred to in subsection (1) until 90 days
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after the day on which subsection 142(2) of the Jobs, Growth and Long-term Prosperity Act comes into force. However, if the holder makes a request under subsection (2), then that paragraph does not apply to that holder until the day on which that holder receives notice of the Minister’s decision to confirm, amend or cancel the authorization or until 210 days after the day on which that subsection 142(2) comes into force, whichever is earlier. Coming into Force 2012, c. 19
178. Sections 173 and 174 come into force on the day on which subsection 147(1) of the Jobs, Growth and Long-term Prosperity Act comes into force. DIVISION 5 BRIDGE TO STRENGTHEN TRADE ACT Enactment of Act
Enactment
179. The Bridge To Strengthen Trade Act, whose schedule is set out in Schedule 1 to this Act, is enacted as follows: An Act respecting a bridge spanning the Detroit River between Windsor and Detroit and other works SHORT TITLE
Short title
1. This Act may be cited as the Bridge To Strengthen Trade Act. INTERPRETATION
Definitions
“bridge” « pont »
“construction” « construction »
2. The following definitions apply in this Act. “bridge” means a bridge that spans the Detroit River and connects Windsor, Ontario to Detroit, Michigan and whose piers, in Ontario, are located within the boundaries of the territory described in the schedule, as well as the approaches to the bridge. “construction” in relation to the bridge, the parkway or a related work, includes any work or activity related to its construction.
2011-2012 “Minister” « ministre »
“operation” « exploitation »
“parkway” « promenade »
“person” « personne »
“related work” « ouvrage connexe »
Emploi et croi “Minister” means the Minister of Transport. “operation” in relation to the bridge or a related work, includes its maintenance and repair. “parkway” means a road connecting Highway 401 with any work referred to in paragraph (a) or (b) of the definition “related work” that is located within the boundaries of the territory described in the schedule and any works ancillary to that road. “person” means an individual, corporation, partnership, trust, joint venture or unincorporated association or organization. “related work” means any of the following works: (a) any border services facility related to the bridge that is located in Michigan or within the boundaries of the territory described in the schedule; (b) any work useful to the operation of the bridge or any border services facility referred to in paragraph (a), including toll booths, duty-free shops and parking lots, that is located in Michigan or within the boundaries of the territory described in the schedule; (c) any road or interchange connecting Interstate 75 with any work referred to in paragraph (a) or (b) that is located in Michigan; (d) any work that is accessory to the bridge or to any work referred to in paragraphs (a) to (c); and (e) any other work specified in the regulations. CONSTRUCTION OF THE BRIDGE, PARKWAY AND RELATED WORKS
Exemption from certain Acts and regulations
3. (1) The Fisheries Act, the Navigable Waters Protection Act, the Species at Risk Act, section 6 of the International Bridges and Tunnels Act and the Port Authorities Operations Regulations do not apply to the construction of the bridge, parkway or any related work.
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Authorizations deemed issued
(2) After completion of the construction of the bridge, parkway or any related work, as the case may be, any authorization that would have been required for its construction but for subsection (1), is deemed to have been issued for the purpose of the application of the Acts and regulations referred to in subsection (1).
Exemption from Canadian Environmental Assessment Act, 2012
4. (1) Subject to subsection (2), the Canadian Environmental Assessment Act, 2012 does not apply to the bridge, parkway or any related work.
Expansion, decommissioning, abandonment
(2) The expansion, decommissioning or abandonment of the bridge, parkway or any related work is a project as defined in section 66 of the Canadian Environmental Assessment Act, 2012 and is subject to sections 67 to 72 of that Act.
Responsible authority
5. (1) A responsible authority is exempt from any obligation accrued or accruing under subsections 20(2) and 38(1) of the Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992, in relation to the bridge, parkway or any related work.
Windsor Port Authority
(2) The Windsor Port Authority is exempt from any obligation accrued or accruing under subsection 15(2) of the Canada Port Authority Environmental Assessment Regulations in relation to the bridge, parkway or any related work.
Other exemptions
6. (1) The Governor in Council may, by order, exempt any person, on any condition that the Governor in Council considers to be in the public interest, from any requirement under any federal Act to obtain a permit, licence, approval or other authorization in relation to the construction of the bridge, parkway or any related work.
Exemption from Statutory Instruments Act
(2) The Statutory Instruments Act does not apply to the order. However, the order must be published in the Canada Gazette.
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Authorizations deemed issued
(3) After completion of the construction of the bridge, parkway or the related work, as the case may be, any authorization that would have been required in relation to its construction but for an exemption granted under subsection (1), is deemed to have been issued for the purpose of the application of the federal Act for which the exemption was granted.
Construction of bridge
7. (1) Before a person who proposes the construction of the bridge begins its construction, they must file with the Minister a plan that includes all measures to be taken to mitigate the bridge’s impact on navigation, the plans for its design and construction, a description of its proposed site and the plans for its management and operation.
Obligation to consult
(2) The person must consult with the Minister before filing the plan.
Impact on fish habitat
8. (1) Before a person who proposes to carry on any work, undertaking or activity, for the purpose of the construction of the bridge, parkway or any related work and for which an authorization referred to in paragraphs 35(2)(b) or (c) of the Fisheries Act would have been required but for section 3, begins to carry on the work, undertaking or activity, they must file with the Minister a plan that includes all measures to be taken to offset any loss of fish habitat resulting from the carrying on of the work, undertaking or activity.
Obligation to consult
(2) The person must consult with the Minister of Fisheries and Oceans before filing the plan.
Authorizations under Fisheries Act
(3) Any authorization referred to in paragraph 35(2)(b) or (c) of the Fisheries Act that was issued before the coming into force of this section in relation to the carrying on of such a work, undertaking or activity is deemed to be a plan that has been filed in accordance with subsections (1) and (2).
Impact on listed wildlife species, etc.
9. (1) Before a person who proposes to engage in an activity affecting a listed wildlife species, any part of its critical habitat or the residences of its individuals, for the purpose of
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the construction of the bridge, parkway or any related work and for which an authorization under subsection 73(1) of the Species at Risk Act would have been required but for section 3, begins to engage in the activity, they must file with the Minister a plan that includes all measures to be taken to mitigate the impact of the activity on the species, its critical habitat or the residences of its individuals. Obligation to consult
(2) The person must consult with the Minister of the Environment before filing the plan.
Authorizations under Species at Risk Act
(3) Any authorization referred to in subsection 73(1) of the Species at Risk Act that was granted before the coming into force of this section in relation to the activity is deemed to be a plan that has been filed in accordance with subsections (1) and (2).
Adverse environmental effects
10. Before a person who proposes the construction in Canada of the bridge or of any work referred to in paragraph (a) or (b) of the definition “related work” in section 2 begins its construction, they must file with the Minister a plan that includes all measures to be taken to mitigate any adverse environmental effects caused by the construction and sets out a process for consulting the public with respect to the construction.
Port Authorities Operations Regulations
11. (1) Before a person who proposes to do anything in the Port of Windsor — in order to construct the bridge — that will have or is likely to have any result that is listed in section 5 of the Port Authorities Operations Regulations begins to do any such thing, they must file with the Minister a plan that includes all measures to be taken to mitigate or prevent the result.
Obligation to consult
(2) The person must consult with the Windsor Port Authority before filing the plan.
Plan amendment
12. (1) Any person who files a plan under any of sections 7 to 11 may amend that plan.
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Application of sections 7 to 11 to amended plan
(2) The requirements regarding the content of a plan filed under any of sections 7 to 11, as well as any obligation to consult with respect to that plan, also apply to the corresponding amended plan.
Filing of amended plan
(3) The person must file the amended plan with the Minister. Once filed, the amended plan replaces the plan previously filed.
Implementation of and compliance with plans
13. Any person who files a plan must ensure that it is implemented and complied with. OPERATION OF THE BRIDGE AND RELATED WORKS
Designation of initial operator
14. (1) The Minister may designate, in writing, a person as the initial operator of the bridge and any related work.
Exemption from International Bridges and Tunnels Act
(2) Paragraph 23(1)(b) of the International Bridges and Tunnels Act does not apply to the initial operator.
Exemption from Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the designation. GENERAL PROVISIONS
Authorization — persons
15. (1) Any person may, with the approval of the Governor in Council, do anything referred to in any of paragraphs 90(1)(a) to (e) of the Financial Administration Act for any purpose relating to the construction or operation of the bridge or any related work.
Authorization — parent Crown corporation
(2) Any parent Crown corporation as defined in subsection 83(1) of the Financial Administration Act may, with the approval of the Governor in Council, sell or otherwise dispose of all or substantially all of the corporation’s assets for any purpose relating to the construction or operation of the bridge or any related work.
Definition of “corporation”
16. For the purposes of sections 17 to 21, “corporation” means a corporation established under section 29 of the International Bridges and Tunnels Act for any purpose relating to the construction or operation of the bridge or any related work.
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Authorization to construct and operate
17. (1) Subject to its letters patent, a corporation is authorized to construct and operate the bridge or any related work.
Authorization by corporation
(2) The corporation may authorize another person to construct or operate the bridge or related work.
Deeming — establishment of corporation
18. (1) A corporation that was established before the coming into force of section 180 of the Jobs and Growth Act, 2012 is deemed to have been established under section 29 of the International Bridges and Tunnels Act as amended by that section 180 and its establishment is deemed to have been authorized for the purpose of paragraph 90(1)(a) of the Financial Administration Act.
Deeming — action taken by corporation
(2) Any action taken by the corporation between the date of its establishment and the date of the coming into force of this section is deemed to have been taken as if sections 16, 17 and 19 to 21 were in force at the time that the action was taken.
Not agent of Her Majesty
19. A corporation is not an agent of Her Majesty in right of Canada.
Public agency
20. A corporation is deemed to be a public agency for the purposes of the Urban Cooperation Act of 1967, MCL 124.501 to 124.512, an Act of the state of Michigan.
Public body corporate and compact entity
21. A corporation may enter into an agreement with the government of the state of Michigan or of any political subdivision of that state or with any of their agencies or agents to establish an entity that is both a public body corporate and a compact entity under the laws of the United States.
Agreements
22. (1) The Minister may enter into an agreement for any purpose relating to the construction or operation of the bridge, parkway or any related work with any person or with the government of the United States or of any political subdivision of the United States or any of their agencies or agents.
Contents of agreement
(2) The agreement may include undertakings to provide financial assistance by Canada, including the granting of guarantees.
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2011-2012 Authority to carry out agreement
(3) The Minister may take any measures that he or she considers appropriate to carry out the agreement or to protect the interests or enforce the rights of Her Majesty in right of Canada under the agreement, including accepting and holding on behalf of Her Majesty any security granted under the agreement or releasing or realizing on that security. INFORMATION GATHERING
Production of documents
23. (1) The Minister may, for the purpose of verifying compliance with this Act, by registered letter or by a demand served personally, require any person to produce at a place specified in the letter or in the demand any document that the Minister believes is relevant for that purpose that is in the person’s possession, or to which the person may reasonably be expected to have access, within any reasonable time and in any reasonable manner that is specified in the letter or demand.
Compliance
(2) A person who is required to produce any document under subsection (1) must do so as required. OFFENCES
Offence
24. A person who contravenes any of sections 7 to 11 and 13 and subsection 23(2) is guilty of an offence punishable on summary conviction and liable (a) in the case of an individual, to a fine of not more than $25,000; and (b) in any other case, to a fine of not more than $500,000.
Offence committed by employee or agent or mandatary of accused
25. In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised due diligence to prevent its commission.
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Due diligence defence
26. Subject to section 25, a person is not to be found guilty of an offence under this Act if they establish that they exercised due diligence to prevent its commission.
Limitation period
27. Proceedings in respect of an offence under this Act may be instituted within two years after the day on which the subject matter of the proceedings arose.
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REGULATORY POWERS Regulations
28. (1) The Minister may, by regulation, (a) specify that a work is a related work for the purpose of the definition “related work” in section 2; and (b) amend the schedule to change the boundaries of the territory described in the schedule.
Coming into effect
2007, c. 1
(2) A regulation has effect from the day on which it is made. Related Amendments to the International Bridges and Tunnels Act 180. Subsection 29(1) of the International Bridges and Tunnels Act is replaced by the following:
Letters patent
29. (1) The Governor in Council may, on the recommendation of the Minister, issue letters patent of incorporation for the establishment of a corporation, with or without share capital, for any purpose relating to the construction or operation of an international bridge or tunnel. Letters patent take effect on the date stated in them. 181. Subsection 32(1) of the Act is replaced by the following:
Capacity and powers
32. (1) A corporation that is incorporated for any purpose relating to the construction or operation of an international bridge or tunnel in respect of which its letters patent are issued has, for that purpose and for the purposes of this Act, the capacity, rights, powers and privileges of a natural person. 182. Section 33 of the Act is replaced by the following:
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Charges
33. (1) Subject to this Act and to its letters patent, a corporation may fix and charge tolls, fees or other charges for the use of an international bridge or tunnel.
Authorization by corporation
(2) The corporation may authorize another person to fix or charge tolls, fees or other charges for the use of the international bridge or tunnel. Coordinating Amendments 183. On the first day on which both sections 179 and 316 of this Act are in force, section 3 of the Bridge To Strengthen Trade Act is replaced by the following:
Exemption from certain Acts and regulations
3. The Fisheries Act, the Navigation Protection Act, the Species at Risk Act, section 6 of the International Bridges and Tunnels Act and the Port Authorities Operations Regulations do not apply to the construction of the bridge, parkway or any related work.
2012, c. 19
184. (1) In this section, “other Act” means the Jobs, Growth and Long-term Prosperity Act. (2) If subsection 142(2) of the other Act comes into force before section 179 of this Act, then on the day on which that section 179 comes into force, subsection 8(1) of the Bridge To Strengthen Trade Act is replaced by the following:
Harm to fish
8. (1) Before a person who proposes to carry on any work, undertaking or activity, for the purpose of the construction of the bridge, parkway or any related work and for which an authorization referred to in paragraphs 35(2)(b) or (c) of the Fisheries Act would have been required but for section 3, begins to carry on the work, undertaking or activity, they must file with the Minister a plan that includes all measures to be taken to mitigate the harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery resulting from the carrying on of the work, undertaking or activity.
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(3) If section 179 of this Act comes into force before subsection 142(2) of the other Act, then, on the day on which that subsection 142(2) comes into force, (a) subsection 8(1) of the Bridge To Strengthen Trade Act is replaced by the following: Harm to fish
8. (1) Before a person who proposes to carry on any work, undertaking or activity, for the purpose of the construction of the bridge, parkway or any related work and for which an authorization referred to in paragraphs 35(2)(b) or (c) of the Fisheries Act would have been required but for section 3, begins to carry on the work, undertaking or activity, they must file with the Minister a plan that includes all measures to be taken to mitigate the harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery resulting from the carrying on of the work, undertaking or activity. (b) section 8 of the Bridge To Strengthen Trade Act is amended by adding the following after subsection (3):
Transitional provision
(4) If a plan was filed with respect to a work, undertaking or activity under subsection (1) as it read before the coming into force of this subsection, then, as of that coming into force, that subsection (1) continues to apply with respect to that work, undertaking or activity.
(4) If subsection 142(2) of the other Act comes into force on the same day as section 179 of this Act, then that subsection 142(2) is deemed to have come into force before that section 179 and subsection (2) applies as a consequence.
Emploi et croi
2011-2012 DIVISION 6 R.S., c. B-7; R.S., c. 24 (1st Supp.), s. 3
BRETTON WOODS AND RELATED AGREEMENTS ACT 185. (1) Paragraphs 3(b) to (d) of Article XII of Schedule I to the Bretton Woods and Related Agreements Act are replaced by the following: (b) Subject to (c) below, the Executive Board shall consist of twenty Executive Directors elected by the members, with the Managing Director as chairman. (c) For the purpose of each regular election of Executive Directors, the Board of Governors, by an eighty-five percent majority of the total voting power, may increase or decrease the number of Executive Directors specified in (b) above. (d) Elections of Executive Directors shall be conducted at intervals of two years in accordance with regulations which shall be adopted by the Board of Governors. Such regulations shall include a limit on the total number of votes that more than one member may cast for the same candidate. (2) Paragraph 3(f) of Article XII of Schedule I to the Act is replaced by the following: (f) Executive Directors shall continue in office until their successors are elected. If the office of an Executive Director becomes vacant more than ninety days before the end of his term, another Executive Director shall be elected for the remainder of the term by the members that elected the former Executive Director. A majority of the votes cast shall be required for election. While the office remains vacant, the Alternate of the former Executive Director shall exercise his powers, except that of appointing an Alternate.
1991, c. 21, s. 2
(3) Paragraphs 3(i) and (j) of Article XII of Schedule I to the Act are replaced by the following: (i)(i) Each Executive Director shall be entitled to cast the number of votes which counted towards his election.
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(ii) When the provisions of Section 5(b) of this Article are applicable, the votes which an Executive Director would otherwise be entitled to cast shall be increased or decreased correspondingly. All the votes which an Executive Director is entitled to cast shall be cast as a unit. (iii) When the suspension of the voting rights of a member is terminated under Article XXVI, Section 2(b), the member may agree with all the members that have elected an Executive Director that the number of votes allotted to that member shall be cast by such Executive Director, provided that, if no regular election of Executive Directors has been conducted during the period of the suspension, the Executive Director in whose election the member had participated prior to the suspension, or his successor elected in accordance with paragraph 3(c)(i) of Schedule L or with (f) above, shall be entitled to cast the number of votes allotted to the member. The member shall be deemed to have participated in the election of the Executive Director entitled to cast the number of votes allotted to the member. (j) The Board of Governors shall adopt regulations under which a member may send a representative to attend any meeting of the Executive Board when a request made by, or a matter particularly affecting, that member is under consideration. (4) Section 8 of Article XII of Schedule I to the Act is replaced by the following: Section 8. Communication of views to members The Fund shall at all times have the right to communicate its views informally to any member on any matter arising under this Agreement. The Fund may, by a seventy percent majority of the total voting power, decide to publish a report made to a member regarding its monetary or economic conditions and developments which directly tend to produce a serious disequilibrium in the international balance of payments of members. The relevant member
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Emploi et croi shall be entitled to representation in accordance with Section 3(j) of this Article. The Fund shall not publish a report involving changes in the fundamental structure of the economic organization of members.
186. Subparagraph (a)(ii) of Article XXI of Schedule I to the Act is replaced by the following: (ii) For decisions by the Executive Board on matters pertaining exclusively to the Special Drawing Rights Department only Executive Directors elected by at least one member that is a participant shall be entitled to vote. Each of these Executive Directors shall be entitled to cast the number of votes allotted to the members that are participants whose votes counted towards his election. Only the presence of Executive Directors elected by members that are participants and the votes allotted to members that are participants shall be counted for the purpose of determining whether a quorum exists or whether a decision is made by the required majority. 187. Paragraph (a) of Article XXIX of Schedule I to the Act is replaced by the following: (a) Any question of interpretation of the provisions of this Agreement arising between any member and the Fund or between any members of the Fund shall be submitted to the Executive Board for its decision. If the question particularly affects any member, it shall be entitled to representation in accordance with Article XII, Section 3(j). 188. Paragraph 1(a) of Schedule D of Schedule I to the Act is replaced by the following: 1. (a) Each member or group of members that has the number of votes allotted to it or them cast by an Executive Director shall appoint to the Council one Councillor, who
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shall be a Governor, Minister in the government of a member, or person of comparable rank, and may appoint not more than seven Associates. The Board of Governors may change, by an eighty-five percent majority of the total voting power, the number of Associates who may be appointed. A Councillor or Associate shall serve until a new appointment is made or until the next regular election of Executive Directors, whichever shall occur sooner. 1991, c. 21, s. 4
189. Paragraphs 5(e) and (f) of Schedule D of Schedule I to the Act are replaced by the following: (e) When an Executive Director is entitled to cast the number of votes allotted to a member pursuant to Article XII, Section 3(i)(iii), the Councillor appointed by the group whose members elected such Executive Director shall be entitled to vote and cast the number of votes allotted to such member. The member shall be deemed to have participated in the appointment of the Councillor entitled to vote and cast the number of votes allotted to the member. 190. Schedule E of Schedule I to the Act is replaced by the following: SCHEDULE E TRANSITIONAL PROVISIONS WITH RESPECT TO EXECUTIVE DIRECTORS 1. Upon the entry into force of this Schedule: (a) Each Executive Director who was appointed pursuant to former Article XII, Sections 3(b)(i) or 3(c), and was in office immediately prior to the entry into force of this Schedule, shall be deemed to have been elected by the member who appointed him; and (b) Each Executive Director who cast the number of votes of a member pursuant to former Article XII, Section 3(i)(ii) immediately prior to the entry into force of this Schedule, shall be deemed to have been elected by such a member.
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1991, c. 21, s. 5
191. Paragraph 1(b) of Schedule L of Schedule I to the Act is replaced by the following: (b) appoint a Governor or Alternate Governor, appoint or participate in the appointment of a Councillor or Alternate Councillor, or elect or participate in the election of an Executive Director.
1991, c. 21, s. 5
192. The portion of paragraph 3(c) of Schedule L of Schedule I to the Act before subparagraph (i) is replaced by the following: (c) The Executive Director elected by the member, or in whose election the member has participated, shall cease to hold office, unless such Executive Director was entitled to cast the number of votes allotted to other members whose voting rights have not been suspended. In the latter case: DIVISION 7
R.S., c. C-8
CANADA PENSION PLAN Amendments to the Act
R.S., c. 30 (2nd Supp.), s. 1(2)
“contributor” « cotisant »
193. The definition “contributor” in subsection 2(1) of the Canada Pension Plan is replaced by the following: “contributor” means a person who has made an employee’s contribution or a contribution in respect of the person’s self-employed earnings, and includes a person the amount of whose earnings on which a contribution has been made for a year under this Act calculated as provided in subparagraph 53(1)(b)(i) exceeds zero and a person to whom unadjusted pensionable earnings have been attributed under section 55, 55.1 or 55.2; 194. Subsection 42(1) of the Act is amended by adding the following in alphabetical order:
222 “substantially gainful” « véritablement rémunératrice » 1997, c. 40, s. 69(3)
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“substantially gainful”, in respect of an occupation, has the meaning that may be prescribed; 195. (1) The portion of paragraph 44(2)(a) of the Act before subparagraph (i) is replaced by the following: (a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if the contributor has made contributions during the contributor’s contributory period on earnings that are not less than the contributor’s basic exemption, calculated without regard to subsection 20(2), (2) Section 44 of the Act is amended by adding the following after subsection (2.1):
Family allowance — late applications for disability pensions
(2.2) A contributor referred to in subparagraph (1)(b)(ii) is deemed to have made contributions for not less than the minimum qualifying period for the purposes of subparagraph (1)(b)(i) if (a) they became disabled in a month in which they were a family allowance recipient; (b) in the year in which they became disabled (i) the child in respect of which they were a family allowance recipient reached seven years of age, and (ii) their unadjusted pensionable earnings were less than their basic exemption, calculated without regard to subsection 20(2); and (c) in the absence of this subsection, a disability pension would not be payable to them, but had they become disabled in the year immediately before the year in which they became disabled, a disability pension would have been payable to them under subparagraph (1)(b)(ii). (3) The portion of subsection 44(3) of the Act before paragraph (a) is replaced by the following:
2011-2012 Calculation for other supplementary benefits
Emploi et croi (3) For the purposes of paragraphs (1)(c), (d) and (f), a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if the contributor has made contributions during the contributor’s contributory period 196. (1) Paragraph 48(3)(b) of the Act is replaced by the following: (b) from the contributor’s total pensionable earnings remaining after the deduction under paragraph (2)(b), the aggregate of the contributor’s pensionable earnings for a number of months equal to the number of months deducted under paragraph (a), for which months that aggregate is less than — or, if not less than, then equal to — the aggregate of the contributor’s pensionable earnings for any other like number of months in the contributor’s contributory period other than for months for which a deduction has already been made under subsection (2). (2) Paragraph 48(4)(b) of the Act is replaced by the following: (b) from the contributor’s total pensionable earnings remaining after making any deduction under subsection (2) or (3), the aggregate of the contributor’s pensionable earnings for a number of months equal to the number of months deducted under paragraph (a), for which months that aggregate is less than — or, if not less than, then equal to — the contributor’s aggregate pensionable earnings for any like number of months in the contributor’s contributory period other than for months for which a deduction has already been made under subsection (2) or (3).
2000, c. 12, s. 46(1)
197. (1) Subsection 55(1) of the Act is replaced by the following:
Application for division
55. (1) Subject to this section, subsections 55.2(2), (3) and (4) and section 55.3, an application for a division of the unadjusted pensionable earnings of former spouses may be made in writing to the Minister by or on behalf of either former spouse, by the estate or
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succession of either former spouse or by any person that may be prescribed, within 36 months or, if both former spouses agree in writing, at any time after the date of a judgment granting a divorce or of a judgment of nullity of the marriage, rendered on or after January 1, 1978 and before January 1, 1987.
R.S., c. 30 (2nd Supp.), s. 22(2); 2000, c. 12, s. 46(2)(F)
(2) Paragraph 55(2)(b) of the Act is replaced by the following:
(b) the marriage is deemed to have been solemnized or nullified or a divorce is deemed to have been made final on the last day of the year preceding the registered date of the marriage or the judgment of nullity or the effective date of the judgment granting a divorce; and 2000, c. 12, s. 47
198. Paragraph 55.1(1)(a) of the Act is replaced by the following: (a) in the case of spouses, following a judgment granting a divorce or a judgment of nullity of the marriage, on the Minister’s being informed of the judgment and receiving the prescribed information;
2000, c. 12, s. 47
199. Paragraph 55.11(a) of the Act is replaced by the following: (a) in respect of judgments granting a divorce and judgments of nullity of a marriage, rendered on or after January 1, 1987;
2000, c. 12, s. 48(2)
200. (1) Subparagraph 55.2(3)(c)(ii) of the Act is replaced by the following: (ii) in the case of a division under paragraph 55.1(1)(a), before the rendering of the judgment granting a divorce or the judgment of nullity of the marriage, as the case may be, and
2000, c. 12, s. 48(2)
(2) Subsection 55.2(4) of the Act is replaced by the following:
Minister to notify parties
(4) The Minister shall, without delay after being informed of a judgment granting a divorce or a judgment of nullity of a marriage or after receiving an application under section
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55 or paragraph 55.1(1)(b) or (c), notify each of the persons subject to the division, in the prescribed manner, of the periods of unadjusted pensionable earnings to be divided, and of any other information that the Minister considers necessary. 201. (1) Paragraph 78(a) of the Act is replaced by the following: (a) the contributor’s earnings on which a contribution has been made for the year under this Act, calculated as provided in subparagraph 53(1)(b)(i), (2) Paragraph 78(b) of the Act is replaced by the following: (b) the aggregate of the amount mentioned in paragraph (a) and the contributor’s earnings on which a contribution has been made for the year under a provincial pension plan, calculated as provided in subparagraph 53(1)(b)(ii). 202. Subsection 84(1) of the Act is amended by striking out “or” at the end of paragraph (e) and by adding the following after paragraph (f): (g) whether a penalty should be imposed under this Part, or (h) the amount of that penalty, R.S., c. 30 (2nd Supp.), s. 58
203. Subsection 115(2) of the Act is replaced by the following:
Report when certain Bills introduced
(2) In addition to any report required under subsection (1) and in accordance with a request of the Minister of Finance, whenever any Bill is introduced in the House of Commons to amend this Act in a manner that would in the opinion of the Chief Actuary materially affect any of the estimates contained in the most recent report made under that subsection, the Chief Actuary shall prepare a report as set out in subsection (3).
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Contents of report
(3) A report that is prepared under subsection (2) in respect of a Bill shall set out the extent to which the Bill would, if enacted by Parliament, materially affect any of the estimates contained in the most recent report made under subsection (1), using the same actuarial assumptions and basis that were used in that report and using, in addition, other actuarial assumptions and another basis if the Chief Actuary is of the opinion that these other actuarial assumptions and the other basis more accurately reflect a change in demographic or economic circumstances since the most recent report made under subsection (1) was prepared.
2005, c. 34
Related Amendment to the Department of Human Resources and Skills Development Act
Jobs and Gr
204. Subsection 64(2) of the Department of Human Resources and Skills Development Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c): (d) whether a penalty should be imposed under Part II of that Act or its amount. Coming into Force Subsection 114(2) of Canada Pension Plan does not apply
205. (1) Subsection 114(2) of the Canada Pension Plan does not apply in respect of the amendments to that Act contained in this Division.
Order in council
(2) Sections 195 and 196 come into force, in accordance with subsection 114(4) of the Canada Pension Plan, on a day or days to be fixed by order of the Governor in Council. DIVISION 8
R.S., c. I-5
INDIAN ACT Amendments to the Act
R.S., c. 17 (4th Supp.), s. 2
206. Subsection 37(2) of the Indian Act is replaced by the following:
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Other transactions
(2) Except where this Act otherwise provides, lands in a reserve shall not be leased nor an interest in them granted until they have been designated under subsection 38(2) by the band for whose use and benefit in common the reserve was set apart.
R.S., c. 17 (4th Supp.), s. 3
207. (1) The portion of subsection 39(1) of the Act before paragraph (a) is replaced by the following:
Conditions — surrender R.S., c. 17 (4th Supp.), s. 3
39. (1) An absolute surrender is void unless (2) Subparagraph 39(1)(b)(ii) of the Act is replaced by the following: (ii) at a special meeting of the band called by the Minister for the purpose of considering a proposed absolute surrender, or
R.S., c. 17 (4th Supp.), s. 3
(3) Subsections 39(2) and (3) of the Act are replaced by the following:
Minister may call meeting or referendum
(2) If a majority of the electors of a band did not vote at a meeting or referendum called under subsection (1), the Minister may, if the proposed absolute surrender was assented to by a majority of the electors who did vote, call another meeting by giving 30 days’ notice of that other meeting or another referendum as provided in the regulations.
Assent of band
(3) If a meeting or referendum is called under subsection (2) and the proposed absolute surrender is assented to at the meeting or referendum by a majority of the electors voting, the surrender is deemed, for the purposes of this section, to have been assented to by a majority of the electors of the band.
R.S., c. 17 (4th Supp.), s. 4
208. Section 40 of the Act is replaced by the following:
Conditions — designation
39.1 A designation is valid if it is made to Her Majesty, is assented to by a majority of the electors of the band voting at a referendum held
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in accordance with the regulations, is recommended to the Minister by the council of the band and is accepted by the Minister. Certification — surrender
40. A proposed absolute surrender that is assented to by the band in accordance with section 39 shall be certified on oath by the superintendent or other officer who attended the meeting and by the chief or a member of the council of the band and then submitted to the Governor in Council for acceptance or refusal.
Certification — designation
40.1 (1) A proposed designation that is assented to in accordance with section 39.1 shall be certified on oath by an officer of the Department and by the chief or a member of the council of the band.
Ministerial decision
(2) On the recommendation of the council of the band, the proposed designation shall be submitted to the Minister who may accept or reject it. Coming into Force
Order in council
209. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 9
R.S., c. J-1
JUDGES ACT
1999, c. 3, s. 72; 2006, c. 11, ss. 1 and 2; 2011, c. 24, s. 170
210. Sections 9 to 22 of the Judges Act are replaced by the following:
Supreme Court of Canada
9. The yearly salaries of the judges of the Supreme Court of Canada are as follows: (a) the Chief Justice of Canada, $370,300; and (b) the eight puisne judges, $342,800 each.
Federal Courts
10. The yearly salaries of the judges of the Federal Courts are as follows: (a) the Chief Justice of the Federal Court of Appeal, $315,900; (b) the other judges of the Federal Court of Appeal, $288,100 each;
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(c) the Chief Justice of the Federal Court, $315,900; and (d) the other judges of the Federal Court, $288,100 each. Tax Court of Canada
11. The yearly salaries of the judges of the Tax Court of Canada are as follows: (a) the Chief Justice, $315,900; (b) the Associate Chief Justice, $315,900; and (c) the other judges, $288,100 each.
Court of Appeal for Ontario and Superior Court of Justice
12. The yearly salaries of the judges of the Court of Appeal for Ontario and of the Superior Court of Justice in and for the Province of Ontario are as follows: (a) the Chief Justice and the Associate Chief Justice of Ontario, $315,900 each; (b) the 14 Justices of Appeal, $288,100 each; (c) the Chief Justice and the Associate Chief Justice of the Superior Court of Justice, $315,900 each; and (d) the 192 other judges of the Superior Court of Justice, $288,100 each.
Court of Appeal and Superior Court of Quebec
13. The yearly salaries of the judges of the Court of Appeal and of the Superior Court in and for the Province of Quebec are as follows: (a) the Chief Justice of Quebec, $315,900; (b) the 18 puisne judges of the Court of Appeal, $288,100 each; (c) the Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Superior Court, $315,900 each; and (d) the 140 puisne judges of the Superior Court, $288,100 each.
Court of Appeal and Supreme Court of Nova Scotia
14. The yearly salaries of the judges of the Nova Scotia Court of Appeal and the Supreme Court of Nova Scotia are as follows: (a) the Chief Justice of Nova Scotia, $315,900;
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(b) the seven other judges of the Court of Appeal, $288,100 each; (c) the Chief Justice and the Associate Chief Justice of the Supreme Court, $315,900 each; and (d) the 23 other judges of the Supreme Court, $288,100 each. Court of Appeal and Court of Queen’s Bench of New Brunswick
15. The yearly salaries of the judges of the Court of Appeal of New Brunswick and of the Court of Queen’s Bench of New Brunswick are as follows: (a) the Chief Justice of New Brunswick, $315,900; (b) the five other judges of the Court of Appeal, $288,100 each; (c) the Chief Justice of the Court of Queen’s Bench, $315,900; and (d) the 21 other judges of the Court of Queen’s Bench, $288,100 each.
Court of Appeal and Court of Queen’s Bench for Manitoba
16. The yearly salaries of the judges of the Court of Appeal for Manitoba and of Her Majesty’s Court of Queen’s Bench for Manitoba are as follows: (a) the Chief Justice of Manitoba, $315,900; (b) the six Judges of Appeal, $288,100 each; (c) the Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, $315,900 each; and (d) the 31 puisne judges of the Court of Queen’s Bench, $288,100 each.
Court of Appeal and Supreme Court of British Columbia
17. The yearly salaries of the judges of the Court of Appeal for British Columbia and of the Supreme Court of British Columbia are as follows: (a) the Chief Justice of British Columbia, $315,900; (b) the 12 Justices of Appeal, $288,100 each; (c) the Chief Justice and the Associate Chief Justice of the Supreme Court, $315,900 each; and
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Emploi et croi (d) the 81 other judges of the Supreme Court, $288,100 each.
Supreme Court of Prince Edward Island
18. The yearly salaries of the judges of the Supreme Court of Prince Edward Island are as follows: (a) the Chief Justice of Prince Edward Island, $315,900; (b) the two other judges of the Appeal Division, $288,100 each; (c) the Chief Justice of the Trial Division, $315,900; and (d) the three other judges of the Trial Division, $288,100 each.
Court of Appeal and Court of Queen’s Bench for Saskatchewan
19. The yearly salaries of the judges of the Court of Appeal for Saskatchewan and of Her Majesty’s Court of Queen’s Bench for Saskatchewan are as follows: (a) the Chief Justice of Saskatchewan, $315,900; (b) the six Judges of Appeal, $288,100 each; (c) the Chief Justice of the Court of Queen’s Bench, $315,900; and (d) the 29 other judges of the Court of Queen’s Bench, $288,100 each.
Court of Appeal and Court of Queen’s Bench of Alberta
20. The yearly salaries of the judges of the Court of Appeal of Alberta and of the Court of Queen’s Bench of Alberta are as follows: (a) the Chief Justice of Alberta, $315,900; (b) the 10 Justices of Appeal, $288,100 each; (c) the Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, $315,900 each; and (d) the 55 other Justices of the Court of Queen’s Bench, $288,100 each.
Supreme Court of Newfoundland and Labrador
21. The yearly salaries of the judges of the Supreme Court of Newfoundland and Labrador are as follows:
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(a) the Chief Justice of Newfoundland and Labrador, $315,900; (b) the five Judges of Appeal, $288,100 each; (c) the Chief Justice of the Trial Division, $315,900; and (d) the 18 other judges of the Trial Division, $288,100 each. Supreme Court of Yukon
22. (1) The yearly salaries of the judges of the Supreme Court of Yukon are as follows: (a) the senior judge, $315,900; and (b) the other judge, $288,100.
Supreme Court of the Northwest Territories
(2) The yearly salaries of the judges of the Supreme Court of the Northwest Territories are as follows: (a) the senior judge, $315,900; and (b) the two other judges, $288,100 each.
Nunavut Court of Justice
(2.1) The yearly salaries of the judges of the Nunavut Court of Justice are as follows: (a) the senior judge, $315,900; and (b) the four other judges, $288,100 each.
Definition of “senior judge”
(3) In this section, “senior judge” means the judge with the earliest date of appointment to the court in question who has not made an election under subsection 29(1) or 32.1(1) or, in the case of more than one such judge having been appointed on the same day, the judge that the Governor in Council may designate as the senior judge.
2006, c. 11, s. 4(1)
211. (1) Subsection 25(1) of the Act is replaced by the following:
Annual adjustment of salary
25. (1) The yearly salaries referred to in sections 9 to 22 apply in respect of the twelve month period commencing April 1, 2012.
2006, c. 11, s. 4(2)
(2) The portion of subsection 25(2) of the Act before paragraph (a) is replaced by the following:
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Annual adjustment of salary
(2) The salary annexed to an office of judge in sections 9 to 22 for the twelve month period commencing April 1, 2013, and for each subsequent twelve month period, shall be the amount obtained by multiplying
1998, c. 30, s. 5
212. (1) Subsection 26(2) of the Act is replaced by the following:
Quadrennial inquiry
(2) The Commission shall commence an inquiry on October 1, 2015, and on October 1 of every fourth year after 2015, and shall submit a report containing its recommendations to the Minister of Justice of Canada within nine months after the date of commencement.
1998, c. 30, s. 5
(2) Subsection 26(7) of the Act is replaced by the following:
Response to report
(7) The Minister of Justice shall respond to a report of the Commission within four months after receiving it. Following that response, if applicable, he or she shall, within a reasonable period, cause to be prepared and introduced a bill to implement the response.
2006, c. 11, s. 6(2)
213. (1) Paragraph 27(6)(g) of the Act is replaced by the following: (g) the Senior Judge of the Family Court, and each regional senior judge, of the Superior Court of Justice in and for the Province of Ontario, $5,000.
2002, c. 7, s. 190(5)
(2) The definition “senior judge” in subsection 27(9) of the Act is replaced by the following:
“senior judge” « juge principal »
“senior judge” of the Supreme Court of Yukon, of the Supreme Court of the Northwest Territories or of the Nunavut Court of Justice means the judge with the earliest date of appointment to the court in question who has not made an election under subsection 29(1) or 32.1(1) or, in the case of more than one such judge having been appointed on the same day, the judge that the Governor in Council may designate as the senior judge. 214. (1) Subsection 29(4) of the English version of the Act is replaced by the following:
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Salary of supernumerary judge
(4) The salary of each supernumerary judge of a superior court is the salary annexed to the office of a judge of that court other than a chief justice, senior associate chief justice, associate chief justice or senior judge.
2002, c. 7, s. 191(2)
(2) Subsection 29(6) of the Act is replaced by the following:
Definition of “senior judge”
(6) In this section, “senior judge” of the Supreme Court of Yukon, of the Supreme Court of the Northwest Territories or of the Nunavut Court of Justice means the judge with the earliest date of appointment to the court in question who has not made an election under subsection (1) or 32.1(1) or, in the case of more than one such judge having been appointed on the same day, the judge that the Governor in Council may designate as the senior judge.
2002, c. 8, s. 89(E)
215. The heading before section 31 of the Act is replaced by the following:
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CHIEF JUSTICE OR SENIOR JUDGE CONTINUING AS JUDGE 216. The Act is amended by adding the following after section 32: Senior judge
32.1 (1) If the senior judge, as defined in subsection 22(3), of the Supreme Court of Yukon, of the Supreme Court of the Northwest Territories or of the Nunavut Court of Justice has notified the Minister of Justice of Canada and the attorney general of the territory of his or her election to cease to perform the duties of senior judge and to perform only the duties of a judge, he or she shall then hold only the office of a judge, other than the senior judge, of that court and shall be paid the salary annexed to the office of a judge, other than the senior judge, of the applicable court until he or she reaches the age of retirement, resigns or is removed from or otherwise ceases to hold office.
Restriction on election
(2) The senior judge may make the election referred to in subsection (1) only if he or she has continued in that position for at least five years.
Duties
(3) The senior judge who has made the election referred to in subsection (1) shall perform all of the judicial duties normally performed by a judge, other than the senior judge, of the applicable court.
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Salary
(4) The salary of a senior judge who has made the election referred to in subsection (1) is the salary annexed to the office of a judge of the applicable court, other than the senior judge.
2002, c. 8, ss. 96(1)(E) and (2)
217. Subsections 43(1) and (2) of the Act are replaced by the following:
Annuity payable to supernumerary judge
43. (1) If a supernumerary judge, before becoming a supernumerary judge, held the office of chief justice, senior associate chief justice or associate chief justice, or served in the position of senior judge, as defined in subsection 29(6), of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories or the Nunavut Court of Justice, the annuity payable to the judge under section 42 is an annuity equal to two thirds of the salary annexed, at the time of his or her resignation, removal or attaining the age of retirement, to the office or position previously held by him or her of chief justice, senior associate chief justice, associate chief justice or senior judge.
Annuity — election under section 31, 32 or 32.1
(2) If the Chief Justice of the Federal Court of Appeal or of the Federal Court or the Chief Justice or Associate Chief Justice of the Tax Court of Canada, in accordance with section 31, or a chief justice of a superior court of a province, in accordance with section 32, or a senior judge, as defined in subsection 22(3), of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories or the Nunavut Court of Justice, in accordance with section 32.1, has elected to cease to perform his or her duties as such and to perform only the duties of a judge, the annuity payable to him or her under section 42 is an annuity equal to two thirds of the salary annexed, at the time of his or her resignation, removal or attaining the age of retirement, to the office or position held by him or her immediately before his or her election.
2002, c. 7, s. 194
218. Subsection 54(4) of the Act is replaced by the following:
Definition of “senior judge”
(4) In this section, “senior judge”, in respect of the Supreme Court of Yukon, the Supreme Court of the Northwest Territories or the Nunavut Court of Justice, means the judge with the earliest date of appointment to the court in question who has not made an election under
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subsection 29(1) or 32.1(1) or, in the case of more than one such judge having been appointed on the same day, the judge that the Governor in Council may designate as the senior judge. DIVISION 10 R.S., c. L-2
CANADA LABOUR CODE Amendments to the Act 219. (1) The portion of section 188 of the Canada Labour Code before paragraph (a) is replaced by the following:
Termination of employment during year
188. When an employee ceases to be employed, the employer shall pay to the employee within 30 days after the day on which the employee ceases to be employed (2) Paragraph 188(b) of the English version of the Act is replaced by the following: (b) four per cent or, if the employee has completed six consecutive years of employment by one employer, six per cent of the wages of the employee during any part of the completed portion of their year of employment in respect of which vacation pay has not been paid to the employee. 220. Section 191 of the Act is replaced by the following:
Definitions
191. The following definitions apply in this Division.
“employed in a continuous operation” « occupé à un travail ininterrompu »
“employed in a continuous operation” means, in respect of an employee, employment in (a) any industrial establishment in which, in each seven-day period, operations once begun normally continue without cessation until the completion of the regularly scheduled operations for that period; (b) any operations or services concerned with the running of trains, planes, ships, trucks or other vehicles, whether in scheduled or non-scheduled operations; (c) any telephone, radio, television, telegraph or other communication or broadcasting operations or services; or
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“holiday pay” « indemnité de congé »
“holiday pay” means pay calculated in accordance with section 196.
“holiday with pay” « congé payé »
“holiday with pay” means a holiday for which an employee is entitled to holiday pay.
2001, c. 34, ss. 18(F) and 19(F)
221. Sections 196 to 198 of the Act are replaced by the following:
Holiday pay
196. (1) Subject to subsections (2) to (4), an employee shall, for each general holiday, be paid holiday pay equal to at least one twentieth of the wages, excluding overtime pay, that they earned in the four-week period immediately preceding the week in which the general holiday occurs.
Employees on commission
(2) An employee whose wages are paid in whole or in part on a commission basis and who has completed at least 12 weeks of continuous employment with an employer shall, for each general holiday, be paid holiday pay equal to at least one sixtieth of the wages, excluding overtime pay, that they earned in the 12-week period immediately preceding the week in which the general holiday occurs.
First 30 days of employment
(3) An employee is not entitled to holiday pay for a general holiday that occurs in their first 30 days of employment with an employer.
Continuous operation employee not reporting for work
(4) An employee who is employed in a continuous operation is not entitled to holiday pay for a general holiday (a) on which they do not report for work after having been called to work on that day; or (b) for which they make themselves unavailable to work when the conditions of employment in the industrial establishment in which they are employed (i) require them to be available, or
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(ii) allow them to make themselves unavailable. Employment
(5) For the purposes of subsection (3), a person is deemed to be in the employment of another person when they are available at the call of that other person, whether or not they are called on to perform any work.
Additional pay for holiday work
197. (1) An employee who is required to work on a day on which they are entitled to holiday pay shall be paid, in addition to the holiday pay for that day, wages at a rate equal to at least one and one-half times their regular rate of wages for the time that they work on that day.
Employment in continuous operation
(2) An employee employed in a continuous operation who is required to work on a day on which they are entitled to holiday pay shall (a) be paid in accordance with subsection (1); (b) be given a holiday with pay at some other time, either by adding it to their annual vacation or by granting it at a time convenient to both the employee and the employer; or (c) be paid holiday pay for the first day on which they do not work after that day, if a collective agreement that is binding on the employer and the employee so provides.
Employees not entitled to holiday pay
(3) If an employee who is not entitled to holiday pay under subsection 196(3) is required to work on a general holiday, they shall be paid at a rate equal to at least one and one-half times their regular rate of wages for the time that they work on that day unless they are employed in a continuous operation, in which case they are entitled to their regular rate of wages for the time that they work on that day.
R.S., c. 9 (1st Supp.), s. 8; 1993, c. 42, ss. 24 and 25; 2001, c. 34, s. 20(F)
222. Sections 199 to 202 of the Act are replaced by the following:
Holiday work for managers, etc.
199. Despite section 197, an employee excluded from the application of Division I under subsection 167(2) who is required to work on a day on which they are entitled to holiday pay shall be given a holiday with pay at some other
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time, either by adding it to their annual vacation or by granting it at a time convenient to both the employee and the employer. Holiday pay deemed to be wages
200. Holiday pay granted to an employee is for all purposes deemed to be wages.
Application of section 189
201. Section 189 applies for the purposes of this Division. 223. The Act is amended by adding the following after section 251: Complaints
Making of complaint
251.01 (1) Any employee may make a complaint in writing to an inspector if they believe that the employer has contravened (a) any provision of this Part or of the regulations made under this Part; or (b) any order.
Time for making complaint
(2) A complaint under subsection (1) shall be made within the following period (a) in the case of a complaint of nonpayment of wages or other amounts to which the employee is entitled under this Part, six months from the last day on which the employer was required to pay those wages or other amounts under this Part; and (b) in the case of any other complaint, six months from the day on which the subjectmatter of the complaint arose.
Extension of time
(3) The Minister may, subject to the regulations, extend the period set out in subsection (2) (a) if the Minister is satisfied that a complaint was made within that period to a government official who had no authority to deal with the complaint and that the person making the complaint believed the official had that authority; (b) in any circumstances prescribed by regulation; or (c) in the conditions prescribed by regulation.
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Limitation
(4) An employee is not permitted to make a complaint under subsection (1) if the complaint is that the employee has been dismissed and considers the dismissal to be unjust.
For greater certainty
(5) For greater certainty, a complaint is not permitted under this section if it relates to a disagreement whose settlement is governed exclusively by a collective agreement under subsection 168(1.1).
Suspension of complaint
251.02 (1) If satisfied that the employee must take measures before the complaint may be dealt with, an inspector may suspend consideration of the complaint made under section 251.01, in whole or in part.
Notice
(2) If the inspector suspends a complaint, the inspector must notify the employee in writing and specify in the notice
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(a) the measures that the employee must take; and (b) the period of time within which the employee must take those measures. Extension of time
(3) The inspector may, upon request, extend the time period specified in the notice.
End of suspension
(4) The suspension ends when, in the inspector’s opinion, the measures specified in the notice have been taken.
Inspector to assist parties
251.03 After receipt of a complaint, an inspector may assist the parties to the complaint to settle the complaint or cause another inspector to do so.
Settlement of amounts due
251.04 (1) If an employer and an employee who has made a complaint relating to the nonpayment of wages or other amounts to which they are entitled under this Part reach a settlement in writing on the wages or other amounts to be paid, the employer may pay those amounts to the employee or to the Minister.
If amount paid to Minister
(2) If an employer pays the amounts to the Minister, the Minister shall, without delay after receiving them, pay them over to the employee who is entitled to the amounts.
Minister’s consent required for prosecution
(3) No prosecution for failure to pay an employee the wages or other amounts that were the subject of the complaint may without the
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written consent of the Minister be instituted against an employer if the employer has paid the amount of wages or other amounts referred to in subsection (1) to the employee or the Minister. Rejection of complaint
251.05 (1) An inspector may reject a complaint made under section 251.01, in whole or in part, (a) if the inspector is satisfied (i) that the complaint is not within their jurisdiction, (ii) that the complaint is frivolous, vexatious or not made in good faith, (iii) that the complaint has been settled, (iv) that there are other means available to the employee to resolve the subject-matter of the complaint that the inspector considers should be pursued, (v) that the subject-matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator, (vi) that in respect of a complaint other than a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, there is insufficient evidence to substantiate the complaint, or (vii) that in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject-matter of the complaint and provides a third party dispute resolution process; or (b) if consideration of the complaint was suspended under subsection 251.02(1) and if, in the inspector’s opinion, the other measures specified in the notice under subsection 251.02(2) were not taken within the specified time period.
Notice of rejection of complaint
(2) If a complaint has been rejected, the inspector shall notify the employee in writing, with reasons.
Request for review
(3) The employee may, within 15 days after the day on which the employee is notified of the rejection, request in writing, with reasons, that the Minister review the inspector’s decision.
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Review
(4) The Minister may confirm the inspector’s decision, or rescind it and direct an inspector to deal with the complaint.
Notice of Minister’s decision
(5) The Minister shall notify the employee in writing of the Minister’s decision.
Review is final
(6) The Minister’s confirmation or rescission is final and conclusive and is not subject to appeal to or review by any court.
1993, c. 42, s. 37
224. Subsection 251.1(2) of the Act is replaced by the following:
Limitation
(1.1) A payment order must not relate to wages or other amounts to which the employee is entitled for the period preceding
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(a) in the case where the employee made a complaint under subsection 251.01(1) that was not rejected under subsection 251.05(1), the 12 months before the day on which the complaint was made or, if there was a termination of employment prior to the complaint being made, the 12 months before the date of termination; and (b) in any other case, the 12 months before the day on which an inspection under this Part, during the course of which the inspector made the finding referred to in subsection (1), began. Unpaid vacation pay
(1.2) In respect of unpaid vacation pay, a reference to a period of 12 months in subsection (1.1) shall be read as a reference to a period of 24 months.
If complaint unfounded
(2) An inspector dealing with a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part shall notify the employee in writing that their complaint is unfounded if the inspector concludes that the employer has paid to the employee all wages and other amounts to which the employee is entitled under this Part for the period of six months set out in paragraph 251.01(2)(a) or for the extended period provided for in subsection 251.01(3).
1993, c. 42, s. 37
225. Section 251.11 of the Act is replaced by the following:
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Request for review
251.101 (1) A person who is affected by a payment order or a notice of unfounded complaint may send a written request with reasons for a review of the inspector’s decision to the Minister within 15 days after the day on which the order or a copy of the order or the notice is served.
Payment of amount
(2) An employer or a director of a corporation is not permitted to request a review of a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director’s liability under section 251.18.
Review
(3) On receipt of the request for review, the Minister may, in writing, confirm, rescind or vary, in whole or in part, the payment order or the notice of unfounded complaint and, if the Minister rescinds the notice, the Minister shall direct an inspector to re-examine the complaint.
Service of documents
(4) Service of a decision made under subsection (3) shall be made to the persons who are affected by the payment order or by the notice of unfounded complaint, by personal service or by registered or certified mail and, in the case of registered or certified mail, the decision is deemed to have been received by the addressee on the seventh day after the day on which it is mailed.
Proof of service of documents
(5) A certificate purporting to be signed by the Minister certifying that a decision referred to in subsection (4) was sent by registered or certified mail to the person to whom it was addressed, accompanied by an identifying post office certificate of the registration or certification and a true copy of the decision, is admissible in evidence and is proof of the statements contained in it, without proof of the signature or official character of the person appearing to have signed the certificate.
Review is final
(6) Subject to the right of appeal under section 251.11, the decision made under subsection (3) is final and conclusive and is not subject to appeal to or review by any court.
Request treated as an appeal
(7) The Minister may, if the Minister considers it appropriate in the circumstances, treat the request for review as an appeal of the
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inspector’s decision, in which case the Minister shall so inform the persons affected by the payment order or by the notice of unfounded complaint, and the request for review shall be considered to be an appeal for the purposes of section 251.12. Appeal
251.11 (1) A person who is affected by a decision made under subsection 251.101(3), other than a decision to rescind a notice of unfounded complaint, may appeal the decision to the Minister, in writing, within 15 days after the day on which the decision is served, but only on a question of law or jurisdiction.
Grounds of appeal
(2) The request for appeal shall contain a statement of the grounds of appeal.
Payment of amount
(3) An employer or director of a corporation is not permitted to appeal from a decision unless the employer or director pays to the Minister (a) if no amount was paid under subsection 251.101(2), the amount indicated in the payment order or, if the decision varied that amount, the amount indicated in the decision; and (b) if an amount was paid under subsection 251.101(2) that is less than the amount indicated in the decision, the amount equal to the difference between the two amounts.
Limitation
(4) In the case of a director, subsection (3) applies subject to the maximum amount of the director’s liability under section 251.18.
1993, c. 42, s. 37
226. (1) Subsection 251.12(1) of the Act is replaced by the following:
Appointment of referee
251.12 (1) The Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate an appeal and shall provide that person with the decision being appealed and either the request for appeal or, if subsection 251.101(7) applies, the request for review submitted under subsection 251.101(1).
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Emploi et croi (2) Paragraph 251.12(4)(a) of the Act is replaced by the following: (a) confirm, rescind or vary, in whole or in part, the decision being appealed;
1993, c. 42, s. 37
227. Subsection 251.14(1) of the Act is replaced by the following:
Deposit of moneys
251.14 (1) If the Minister receives moneys under this Division, the Minister shall deposit those moneys to the credit of the Receiver General in the account known as the “Labour Standards Suspense Account” or in any other special account created for the purposes of this section and may authorize payments out of that account to any employee or other person who is entitled to that money.
1993, c. 42, s. 37
228. Subsection 251.15(1) of the Act is replaced by the following:
Enforcement of orders
251.15 (1) Any person who is affected by a payment order issued under subsection 251.1(1) or confirmed or varied under subsection 251.101(3) or by a referee’s order made under subsection 251.12(4), or the Minister on the request of any such person, may, after the day provided in the order for compliance or after 15 days following the day on which the order is made, confirmed or varied, whichever is the later, file in the Federal Court a copy of the payment order, or a copy of the referee’s order exclusive of the reasons.
Limitation
(1.1) However, a payment order is not to be filed while it is or may be the subject of a review under subsection 251.101(1) or an appeal under subsection 251.101(7) or section 251.11 or if a referee’s order is made under paragraph 251.12(4)(a) relating to the payment order. 229. Section 264 of the Act is amended by striking out “and” at the end of paragraph (j) and by adding the following after paragraph (j): (j.1) prescribing the circumstances and conditions for the purposes of subsection 251.01(3); and
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Complaints, notices and payment orders
230. The Canada Labour Code, as it read immediately before the day on which this section comes into force, applies (a) to complaints that allege that an employer contravened any provision of Part III of that Act, any provision of regulations made under that Part or any order within the meaning of that Part and that were received by the Minister of Labour before that day; (b) to notices of unfounded complaint issued under subsection 251.1(2) of that Act that relate to complaints referred to in paragraph (a); and (c) to payment orders issued under subsection 251.1(1) of that Act (i) before that day, and (ii) on or after that day, if the inspector made the finding that resulted in the payment order during the course of an inspection under Part III of that Act that began before that day or as a result of dealing with a complaint referred to in paragraph (a).
Payment orders and notices
231. The Canada Labour Code, as it read immediately before the day on which this section comes into force, applies to any payment orders and notices of unfounded complaint issued before that day under section 251.1 of that Act. Coming into Force
Order in council
232. (1) Section 219 comes into force on a day to be fixed by order of the Governor in Council.
Order in council
(2) Sections 220 to 222 come into force on a day to be fixed by order of the Governor in Council.
Order in council
(3) Sections 223, 224, 229 and 230 come into force on a day to be fixed by order of the Governor in Council.
Order in council
(4) Sections 225 to 228 and 231 come into force on a day to be fixed by order of the Governor in Council.
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2011-2012 DIVISION 11 R.S., c. M-6
MERCHANT SEAMEN COMPENSATION ACT Amendments to the Act 233. The definition “Board” in subsection 2(1) of the Merchant Seamen Compensation Act is repealed. 234. The heading before section 3 and sections 3 and 4 of the Act are repealed. 235. Subsections 6(2) and (3) of the Act are replaced by the following:
Notice of election
(2) Notice of an election under subsection (1) shall be given to the Minister within three months after the happening of an accident or, if an accident results in death, within three months after the death or within any longer period that, either before or after the expiry of the three months, the Minister may allow.
Waiver of all claims
(3) No compensation is payable in respect of any accident mentioned in subsection (1) unless the seaman or their dependants submit to the Minister, in a form approved by the Minister, a waiver of all claims for compensation under the foreign law referred to in that subsection. 236. Sections 9 and 10 of the Act are replaced by the following:
Deductions
9. Except with the Minister’s approval, the amount of compensation payable under this Act is not subject to any deduction or abatement by reason of, on account of or in respect of any matter or thing whatever except in respect of any sums of money that have been paid by the employer to a seaman on account of an injury received by the seaman, which sum or sums shall be deducted from the amount of the compensation.
Amount not to be assigned, etc.
10. Except with the Minister’s approval, the amount of compensation payable under this Act is not capable of being assigned, charged or attached and shall not pass to any other person by operation of law nor shall any claim be set off against it, including, in Quebec, by way of compensation.
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237. Section 11 of the French version of the Act is replaced by the following: Aucune renonciation
11. Un marin ne peut s’engager envers son employeur à renoncer à ses droits à l’une des prestations auxquelles lui-même ou les personnes à sa charge ont droit ou peuvent avoir droit en vertu de la présente loi ou à délaisser ceux-ci, et toute entente à cette fin est absolument de nul effet. 238. Section 12 of the Act is replaced by the following:
Claims to be heard by Minister
12. No action lies for the recovery of compensation payable under this Act, but all claims for compensation shall be heard and determined by the Minister. 239. Sections 14 to 20 of the Act are replaced by the following:
Minister decides right to compensation
14. Any party to an action may apply to the Minister for adjudication and determination of the question of the plaintiff’s right to compensation under this Act, or whether the right to bring the action is taken away by this Act.
Exclusive jurisdiction of Minister
15. The Minister has exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and with respect to any matter or thing in respect of which any power, authority or discretion is conferred on him or her.
Reconsideration and amendment
16. The Minister may reconsider any matter that has been dealt with by him or her or rescind or amend any decision or order previously made.
Production of information
17. In any matter arising under this Act, the Minister has the power to require the production of any information that he or she considers necessary.
Decisions final
19. The Minister’s decisions and findings are final and conclusive.
Award
20. The Minister may award any sum that he or she considers reasonable to the successful party to a contested claim for compensation or to any other contested matter as compensation for the expenses that the party incurred by reason of or incidental to the contest. An order
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1992, c. 51, s. 57(1)
240. The portion of section 21 of the Act before paragraph (a) is replaced by the following:
Order enforced as judgment of court
21. An order of the Minister for the payment of compensation by an employer or any other order of the Minister for the payment of money under this Act, or a copy of the order that is certified to be a true copy by a person who is duly authorized by the Minister, may be filed with 241. Section 23 of the Act is replaced by the following:
Minister’s discretion
23. Despite section 22, compensation or a sum in lieu of compensation may be awarded to any seaman who is not a resident of Canada or to any non-resident dependant, as the Minister considers appropriate, but the compensation or sum shall not in any case exceed the amount of compensation provided for under this Act. 242. Subsection 24(4) of the Act is replaced by the following:
Notice of election
(4) Notice of the election referred to in subsection (3) shall be given to the employer within three months after the happening of an accident or, if an accident results in death, within three months after the death or within any longer period that, either before or after the expiry of the three months, the Minister may allow. 243. Subsection 25(4) of the Act is replaced by the following:
Failure to give notice
(4) Failure to give the prescribed notice or to make the claim referred to in subsection (1), or any defect or inaccuracy in a notice, does not bar the right to compensation if the Minister considers that the employer was not prejudiced by it or it appears that the claim for compensation is a just one and ought to be allowed.
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244. (1) The portion of subsection 26(1) of the Act before paragraph (a) is replaced by the following: Employer to give notice
26. (1) Subject to subsection (2), every employer shall, within 30 days after the happening of an accident to a seaman in its employment by which the seaman is disabled from performing their duties or that necessitates medical aid, notify the Minister in writing of (2) The portion of subsection 26(1) of the Act after paragraph (e) is replaced by the following: The employer shall also produce any further information respecting any other accident or claim to compensation that the Minister may require. (3) Subsections 26(2) to (4) of the Act are replaced by the following:
Minister may relieve employer
(2) The Minister may, by order, relieve any employer from the obligation to comply with subsection (1) to the extent provided for in the order.
Failure to comply
(3) Every person who fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
Due diligence
(4) A person is not to be found guilty of an offence under subsection (3) if they establish that they exercised due diligence to prevent the commission of the offence.
Minister’s consent
(5) No proceedings shall be taken under this section against any person without the Minister’s consent. 245. Subsection 27(1) of the Act is replaced by the following:
Medical examination
27. (1) A seaman who claims compensation, or to whom compensation is payable under this Act, shall, if required to do so by their employer, submit themselves for examination by a duly qualified medical practitioner who is selected and paid for by the employer and shall, if required to do so by the Minister, submit themselves for examination by a medical referee.
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Minister may refer matter to medical referee
28. (1) If a seaman has, on their employer’s request, submitted themselves for examination, or has been examined by a duly qualified medical practitioner selected by themselves, and a copy of the medical practitioner’s report on the seaman’s condition has been furnished in the former case by the employer to the seaman and in the latter case by the seaman to the employer, the Minister may, on the application of either of them or of his or her own motion, refer the matter to a medical referee.
Certificate of medical referee
(2) The medical referee to whom a reference is made under subsection (1) or who has examined the seaman by the Minister’s direction under subsection 27(1) shall certify to the Minister as to the condition of the seaman and their fitness for employment, specifying, if necessary, the kind of employment and, if unfit, the cause and degree of the unfitness, and the referee’s certificate, unless the Minister otherwise directs, is conclusive as to the matters certified. (2) Subsection 28(4) of the Act is replaced by the following:
Diminution or suspension of compensation
(4) The Minister may diminish the compensation to which a seaman is entitled, or suspend payment of it, whenever the seaman persists in dangerous or unsanitary practices imperilling or retarding their cure and whenever they refuse to submit to any medical treatment that the Minister, on the medical referee’s advice, considers necessary for their cure.
R.S., c. 1 (2nd Supp.), s. 213(1) (Sch. I, item 8)
247. Sections 29 and 30 of the Act are replaced by the following:
Payments may be reviewed
29. Any weekly or other periodic payment to a seaman may be reviewed at the employer’s or seaman’s request, and on such review the Minister may put an end to or diminish the payment or increase the payment to a sum not beyond the maximum prescribed in this Act.
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Employer to be insured
30. (1) Every employer shall cover by insurance or other means satisfactory to the Minister the risks of compensation arising under this Act.
Failure to comply
(2) Every person who fails to comply with subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both.
Due diligence
(3) A person is not to be found guilty of an offence under subsection (2) if they establish that they exercised due diligence to prevent the commission of the offence.
Minister’s consent
(4) No proceedings shall be taken under this section against any person without the Minister’s consent. 248. (1) Subparagraph 31(1)(e)(ii) of the Act is replaced by the following: (ii) with the Minister’s approval, for each child under the age of 21 years who is attending school; (2) Subparagraph 31(1)(f)(ii) of the Act is replaced by the following: (ii) with the Minister’s approval, to each child under the age of 21 years who is attending school; and (3) Paragraph 31(1)(g) of the Act is replaced by the following: (g) if the dependants are persons other than those mentioned in paragraphs (d) to (f), a reasonable sum that is proportionate to the pecuniary loss to those dependants occasioned by the death, to be determined by the Minister.
2000, c. 12, s. 188(3)
(4) Subsection 31(2) of the Act is replaced by the following:
If no survivor
(2) If a seaman leaves no survivor or the survivor subsequently dies, and a competent authority has appointed a person to care for the children who are entitled to compensation, the Minister may pay that person the same monthly payments of compensation as if that person
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Emploi et croi were the survivor of the deceased, and in that case the children’s part of the payments shall be in lieu of the monthly payments that they would otherwise have been entitled to receive. (5) Subsections 31(4) to (6) of the Act are replaced by the following:
Duration of payments
(4) In the case provided for by paragraph (1)(g), the payments shall continue only so long as, in the Minister’s opinion, it might reasonably have been expected that the seaman, had they lived, would have continued to contribute to the support of the dependants, and, in any case under that paragraph, compensation may be made wholly or partly in a lump sum or by any form of payment that the Minister considers most suitable in the circumstances.
Dependant to whom seaman stood in place of parent
(5) A dependant to whom the seaman stood in the place of a parent or a dependant who stood in the place of a parent to the seaman is entitled, as the Minister may determine, to share in or receive compensation under paragraph (1)(e), (f) or (g).
Disabled child
(6) Compensation is payable to a disabled child without regard to their age, and payments to the child shall continue until, in the Minister’s opinion, the child ceases to be disabled. (6) Subsection 31(8) of the Act is replaced by the following:
Payments to other persons
(8) If the Minister is of the opinion that it is desirable that a payment in respect of a child should not be made directly to their parent, the Minister may direct that the payment be made to any person or be applied in any manner that he or she considers most advantageous for the child. 249. Subsection 32(2) of the Act is replaced by the following:
Dependent minors attending school
(2) In addition to the amounts of compensation payable under section 31 to or for a seaman’s dependent children as a result of the seaman’s death from an accident incurred before May 1, 1965, there shall be paid, with the Minister’s approval, to or for each dependent child under the age of 21 years who is attending school, the compensation that would have been
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payable had the accident from which the death of the seaman resulted occurred on or after May 1, 1965. 250. Subsections 37(2) to (4) of the Act are replaced by the following: Difference in earnings before and after accident
(2) If the Minister considers it more equitable to do so, he or she may award compensation for permanent partial disability, having regard to the difference between the seaman’s average weekly earnings before the accident and the average amount that they are earning or are able to earn in a suitable employment or business after the accident, and the compensation may be a weekly payment of 75% of the difference, and regard shall be had to the seaman’s fitness to continue the employment in the course of which they were injured or to adapt themselves to some other suitable occupation.
Rating schedule
(3) The Minister may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations that may be used as a guide in determining the compensation payable in permanent partial disability cases.
Fixed amount
(4) Despite subsections (1) and (2), if the impairment of the seaman’s earning capacity does not exceed 10% of their earning capacity, instead of a weekly payment payable under those subsections, the Minister may, unless he or she is of the opinion that it would not be to the seaman’s advantage to do so, fix an amount to be paid to the seaman as full compensation and pay the seaman the amount either in one sum or in periodic payments as the Minister may direct. 251. Subsection 41(5) of the Act is replaced by the following:
Earnings at time of accident considered
(5) If in any case it seems more equitable to do so, the Minister may award compensation, having regard to a seaman’s earnings at the time of an accident. 252. Section 43 of the Act is replaced by the following:
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Semi-monthly or monthly payments
43. (1) Whenever the Minister considers it advisable, the payment of compensation may be made semi-monthly or monthly instead of weekly.
Residence outside Canada
(2) Subject to section 23, if a seaman or a dependant is not a resident of Canada or ceases to reside in Canada, the periods of payments may be otherwise fixed or the compensation commuted as the Minister considers appropriate.
2000, c. 12, s. 191
253. Subsections 44(1) and (2) of the Act are replaced by the following:
Cases where compensation may be diverted
44. (1) If a seaman is entitled to compensation and it is made to appear to the Minister that the seaman’s spouse, former spouse, commonlaw partner, former common-law partner or children under 18 years of age are without adequate means of support, the Minister may divert the compensation in whole or in part from the seaman for their benefit.
Diversion of compensation from survivor
(2) If a seaman’s survivor is entitled to compensation under section 31 and it is made to appear to the Minister that the seaman’s spouse, former spouse, former common-law partner or children under 18 years of age are without adequate means of support, the Minister may divert the compensation in whole or in part from the survivor for their benefit. 254. Section 45 of the Act is replaced by the following:
If seaman or dependant is a minor
45. If a seaman or a dependant is a minor or under any other legal incapacity, the compensation to which they are entitled may be paid to any person or be applied in any manner that the Minister considers is to the seaman’s or the dependant’s best advantage. 255. Subsection 46(3) of the Act is replaced by the following:
Question of necessity
(3) Any question as to the necessity, character and sufficiency of any medical aid furnished or to be furnished may be referred to the Minister for a decision. 256. Sections 48 to 51 of the Act are replaced by the following:
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Reports by physician, etc.
48. Every physician, surgeon or hospital official attending, consulted respecting or having the care of any seaman shall furnish the employer from time to time with any reports that are required by the employer in respect of that seaman, and may charge for the preparation of those reports any reasonable fees that are agreed on with the employer or, in the absence of an agreement, that the Minister approves.
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RULES AND ORDERS Minister may make rules and orders
49. The Minister may make any rules and orders that he or she considers expedient or necessary for regulating his or her procedure and for carrying any of the purposes or provisions of this Act into effect. DELEGATION AND COSTS OF ADMINISTRATION
Delegation
50. The Minister may delegate to any person the exercise of any power or the performance of any duty that may be exercised or performed by the Minister under this Act, except for the powers referred to in section 49.
Costs chargeable against employers
51. All costs incurred relative to the administration of this Act, including salaries, expenses, fees and commissions, are chargeable against the various employers, apportioned on a basis to be determined by the Minister. Transitional Provisions
Definition of “Board”
257. In sections 258 to 260, “Board” means the Merchant Seamen Compensation Board established by section 3 of the Merchant Seamen Compensation Act as that Act read immediately before the coming into force of this section.
Appointments terminated
258. (1) Members of the Board cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Board has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from
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any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by operation of this Division. Continuation of proceedings
259. Every proceeding commenced under the Merchant Seamen Compensation Act before the coming into force of this section is to be taken up and continued under and in conformity with that Act, as it is amended by this Act.
Reconsideration of Board’s decisions
260. The Minister of Labour may reconsider any matter that has been dealt with by the Board or rescind or amend any decision or order previously made by it. Consequential Amendments
R.S., c. A-1
Access to Information Act 261. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Merchant Seamen Compensation Board Commission d’indemnisation des marins marchands
R.S., c. P-21
Privacy Act 262. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Merchant Seamen Compensation Board Commission d’indemnisation des marins marchands Coming into Force
Order in council
263. This Division comes into force on a day to be fixed by order of the Governor in Council.
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R.S., c. 1 (2nd Supp.)
CUSTOMS ACT Amendments to the Act 264. Subsection 2(1) of the Customs Act is amended by adding the following in alphabetical order:
“carrier code” « code de transporteur »
“carrier code” means the unique identification number issued by the Minister either under subsection 12.1(4) or before the coming into force of that subsection; 265. (1) Section 6 of the Act is amended by adding the following after subsection (1):
Clarification
(1.1) For the purposes of subsection (1), “maintain” means, in addition to performing general maintenance, paying all costs related to the operation of the buildings, accommodation and other facilities, including electricity, lighting, ventilation, heating, cooling, water supply, sewage treatment, fire protection, snow removal and cleaning.
Retroactive effect
(1.2) Subsection (1.1) has retroactive effect to the day on which subsection (1) came into force and applies in respect of any action or judicial proceeding that is pending on the day on which this subsection comes into force. (2) Section 6 of the Act is amended by adding the following after subsection (3):
Retroactive effect of regulations
(3.1) A regulation made under subsection (3) may, if it so provides, have retroactive effect and apply in respect of any pending action or judicial proceeding.
2009, c. 10, s. 6
266. Section 12.1 of the Act is replaced by the following:
Advance information
12.1 (1) Before the arrival of a conveyance in Canada, the owner or person in charge of a conveyance who is prescribed or any other prescribed person shall give the Agency
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Exemption
(2) A person who is required to provide information under subsection (1) shall hold a valid carrier code unless they are exempt.
Carrier code — requirements
(3) An application for a carrier code shall be made in the prescribed form with the prescribed information.
Carrier code — issuance
(4) The Minister shall issue a carrier code to a person who applies for it if the application meets the requirements referred to in subsection (3) and the Minister is satisfied that the prescribed requirements and conditions for the carrier code to be issued have been met.
Carrier code — suspension, cancellation and reinstatement
(5) The Minister may, subject to the regulations, suspend, cancel or reinstate a carrier code.
Notification
(6) The Minister may issue a notification to any person who provides information under subsection (1) to require the person to take any specified measure with respect to the information.
Obligation to comply
(7) The person to whom a notification is issued shall comply with the notification.
Regulations
(8) The Governor in Council may make regulations for the purposes of this section, including regulations (a) respecting the information that must be given under subsection (1); (b) prescribing the persons or classes of persons who must give the information under subsection (1); (c) respecting the circumstances in which the information must be given under subsection (1); (d) respecting the time within which and the manner in which the information must be given under subsection (1); (e) regarding the requirements and conditions that are to be met before a carrier code may be issued;
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(f) regarding the persons or classes of persons who are exempt from holding a valid carrier code; and (g) regarding the manner and circumstances in which a carrier code may be suspended, cancelled or reinstated. 2009, c. 10, s. 12
267. Subsection 107.1(1) of the Act is replaced by the following:
Passenger information
107.1 (1) The Minister may, under prescribed circumstances and conditions, require any prescribed person or prescribed class of persons to provide, or to provide access to, within the prescribed time and in the prescribed manner, prescribed information about any person on board or expected to be on board a conveyance. Coming into Force
Order in council
268. Sections 264 and 266 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 13
R.S., c. 24 (3rd Supp.), Part III
HAZARDOUS MATERIALS INFORMATION REVIEW ACT Amendments to the Act 269. (1) The portion of subsection 10(1) of the Hazardous Materials Information Review Act before the first definition is replaced by the following:
Definitions
10. (1) The following definitions apply in this Act. (2) The definitions “Commission”, “President”, “rule” and “screening officer” in subsection 10(1) of the Act are repealed. (3) The definitions “directeur de la Section d’appel” and “directeur de la Section de contrôle” in subsection 10(1) of the French version of the Act are repealed.
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Emploi et croi (4) The definitions “Chief Appeals Officer” and “Chief Screening Officer” in subsection 10(1) of the English version of the Act are replaced by the following:
“Chief Appeals Officer” « agent d’appel en chef »
“Chief Appeals Officer” means an individual designated as the Chief Appeals Officer under subsection 47(1);
“Chief Screening Officer” « agent de contrôle en chef »
“Chief Screening Officer” means an individual designated as the Chief Screening Officer under subsection 47(1); (5) The definition “affected party” in subsection 10(1) of the English version of the Act is amended by replacing “this Part” with “this Act”. (6) Subsection 10(1) of the French version of the Act is amended by adding the following in alphabetical order:
« agent d’appel en chef » “Chief Appeals Officer”
« agent d’appel en chef » Individu désigné à ce titre en vertu du paragraphe 47(1).
« agent de contrôle en chef » “Chief Screening Officer”
« agent de contrôle en chef » Individu désigné à ce titre en vertu du paragraphe 47(1).
1996, c. 8, par. 34(1)(b)
270. Subsection 13(2) of the Act is repealed.
2007, c. 7, s. 7(2)
271. (1) Paragraph 23(1)(b) of the Act is amended by adding “and” at the end of subparagraph (ii), by striking out “and” at the end of subparagraph (iii), and by repealing subparagraph (iv). (2) Section 23 of the Act is amended by adding the following after subsection (1):
Appearance of Minister
(1.1) The Minister may appear before the appeal board to make representations with respect to a submission made to it. 272. Paragraph 24(1)(a) of the Act is replaced by the following:
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(a) cause a copy of the decision to be given to the claimant and the Minister; and 273. The heading before section 28 of the Act is replaced by the following: COUNCIL 274. Subsection 28 of the Act is replaced by the following: Council established
28. (1) The Minister shall establish a council, whose members are appointed by the Minister, to advise and assist him or her on matters arising in connection with the operation of this Act.
Appointment of members
(2) The council shall consist of the following members: (a) two members to represent workers, appointed after consultation by the Minister with any organizations representative of workers that the Minister considers appropriate; (b) one member to represent suppliers, appointed after consultation by the Minister with any organizations representative of suppliers that the Minister considers appropriate; (c) one member to represent employers, appointed after consultation by the Minister with any organizations representative of employers that the Minister considers appropriate; (d) one member to represent the Government of Canada, appointed on the recommendation of the Minister of Labour; and (e) not fewer than four and not more than 13 members to represent the governments of the 10 provinces, the Government of Yukon, the Government of the Northwest Territories and the Government of Nunavut, appointed after consultation by the Minister with each of those governments. 275. The heading before section 29 and sections 29 to 42 of the Act are repealed. 276. Subsection 43(3) of the Act is replaced by the following:
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2011-2012 Lists of nominees
(3) The Chief Appeals Officer shall establish and maintain in respect of each province the following lists of nominees for appointment to appeal boards to be convened in that province: (a) in relation to appeals relating to the provisions of the Hazardous Products Act, (i) a list containing the names of persons nominated for appointment by any organizations representative of workers in that province that the Minister considers appropriate, and (ii) a list containing the names of persons nominated for appointment by any organizations representative of suppliers and any organizations representative of employers in that province that the Minister considers appropriate; and (b) in relation to appeals relating to the provisions of the Canada Labour Code, (i) a list containing the names of persons nominated for appointment by any organizations representative of employees in that province to whom the Canada Labour Code applies that the Minister of Labour considers appropriate, and (ii) a list containing the names of persons nominated for appointment by any organizations representative of employers in that province to whom the Canada Labour Code applies that the Minister of Labour considers appropriate.
Council consulted
(3.1) The Minister shall consult the council in identifying the organizations that the Minister considers appropriate for the purposes of paragraph (3)(a). 277. Section 45 of the Act and the heading before it are replaced by the following: SUPERANNUATION
Members
45. A member of the council or of an appeal board shall be deemed not to be employed in the public service for the purposes of the Public Service Superannuation Act unless the Governor in Council, by order, deems the member to be so employed for those purposes.
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278. (1) Subsection 46(1) of the Act is replaced by the following: Information privileged
46. (1) Subject to this Act and any regulations made under it, all information obtained from a supplier or employer for the purposes of this Act is privileged and, despite the Access to Information Act or any other Act or law, no person who has obtained information from a supplier or employer for the purposes of this Act shall knowingly, without the written consent of the person who provided the information, (a) communicate the information, or allow it to be communicated, to any person; or (b) allow any person to inspect or to have access to any book, record, writing or other document containing that information.
Exception — administration or enforcement of Act
(1.1) A person who has obtained information from a supplier or employer for the purposes of this Act may communicate the information or allow it to be communicated, or allow inspection of or access to any book, record, writing or other document containing that information for the purposes of the administration or enforcement of this Act.
1996, c. 8, s. 24
(2) The portion of subsection 46(2) of the Act before paragraph (c) is replaced by the following:
Exceptions
(2) A person who has obtained information from a supplier or employer for the purposes of this Act may communicate the information or allow it to be communicated, or allow inspection of or access to any book, record, writing or other document containing that information, to or by (3) Subsection 46(3) of the Act is replaced by the following:
Other exceptions
(3) A person who has obtained information from a supplier or employer for the purposes of this Act may communicate or disclose the information or cause it to be communicated or disclosed to any physician or prescribed medical professional who requests that information for the purpose of making a medical diagnosis of, or rendering medical treatment to, a person in an emergency.
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279. Section 47 of the Act and the heading before it are replaced by the following: POWERS OF THE MINISTER Designations
47. (1) The Minister may designate any individual as Chief Screening Officer and any other individual as Chief Appeals Officer.
Powers and functions
(2) The Minister may, in addition to exercising the powers and performing the functions specified in this Act, (a) exercise the powers and perform the functions that were previously conferred on or assigned to the Hazardous Materials Information Review Commission by any law of a province relating to occupational health and safety; and (b) exercise the powers and perform the functions that are conferred on or assigned to him or her, in relation to the review of claims for exemption and to appeals, by any law of a province relating to occupational health and safety.
2007, c. 7, s. 8
280. (1) Paragraph 48(1)(b.2) of the Act is replaced by the following: (b.2) respecting the participation of the Minister in an appeal heard before an appeal board; (2) Subsection 48(2) of the Act is replaced by the following:
Regulations prescribing fees
(2) The Governor in Council may, on the recommendation of the Minister, after consultation by the Minister with the council, make regulations prescribing fees or the manner of calculating fees to be paid under this Act. 281. Sections 50 and 51 of the Act are replaced by the following:
No personal liability
50. No member of an appeal board is personally liable for anything done or omitted to be done in good faith in the exercise or performance of their powers, duties or functions under this Act.
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282. The Act is amended by replacing “this Part” with “this Act” in the following provisions: (a) section 9; (b) subsections 10(2) and (3); (c) subsection 19(3); (d) subsection 43(4); (e) paragraphs 48(1)(d) to (f); and (f) the portion of subsection 49(1) before paragraph (a). 283. The French version of the Act is amended by replacing “directeur de la Section d’appel” with “agent d’appel en chef”, with any grammatical changes that the circumstances require, in the following provisions: (a) subsection 20(1.1); (b) the portion of section 21 before paragraph (a); (c) section 22; (d) subsections 27(1) and (2); and (e) paragraphs 43(1)(a) and (2)(a). 284. The French version of the Act is amended by replacing “directeur de la Section de contrôle” with “agent de contrôle en chef”, with any grammatical changes that the circumstances require, in the following provisions: (a) subsections 11(1) and (2); (b) the portion of subsection 12(1) before paragraph (a); and (c) subsections 18(1) and (2). Transfer of Employees and Positions Order
285. (1) Before section 275 comes into force, the Governor in Council may, by order made on the recommendation of the Treasury Board, declare that any person appointed under section 38 of the Hazardous Materials Information Review Act or any class of those persons shall, on the coming into force of the order, occupy their positions in the Department of Health.
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Transfer
(2) Any person appointed under section 38 of the Hazardous Materials Information Review Act who has been advised that they will be laid off in accordance with subsection 64(1) of the Public Service Employment Act and who is not the subject of an order made under subsection (1) is, for the purpose of any workforce adjustment measure taken with respect to the person, transferred to the Department of Health on the day on which section 275 comes into force. Transitional Provisions
Definitions
“Commission” « Conseil »
“Minister” « ministre »
286. The following definitions apply for the purposes of 287 to 289. “Commission” means the Hazardous Materials Information Review Commission established by subsection 28(1) of the Hazardous Materials Information Review Act. “Minister” means the Minister of Health.
Transfer of appropriations
287. Any amount appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the Commission that is unexpended on the day on which this section comes into force is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the Department of Health.
Transfer of powers, duties and functions
288. If, under any Act of Parliament, any instrument made under an Act of Parliament or any order, contract, lease, licence or other document, any power, duty or function is vested in or may be exercised or performed by the Commission or its President in relation to any matter to which the powers, duties and functions of the Minister extend by virtue of the Hazardous Materials Information Review Act, that power, duty or function is vested in or may be exercised or
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performed by the Minister, unless the Governor in Council by order designates another Minister to exercise that power or perform that duty or function. Rights and obligations transferred
289. All rights and property held by or in the name of or in trust for the Commission and all obligations and liabilities of the Commission are deemed to be rights, property, obligations and liabilities of Her Majesty in right of Canada. Consequential Amendments
R.S., c. A-1
Access to Information Act
R.S., c. 24 (3rd Supp.), s. 52
290. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses
R.S., c. F-11
Financial Administration Act
1992, c. 1, s. 72; 1996, c. 8, s. 23
291. Schedule I.1 to the Financial Administration Act is amended by striking out, in column I, the reference to Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses and the corresponding reference in column II to “Minister of Health”.
2003, c. 22, s. 11
292. Schedule IV to the Act is amended by striking out the following: Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses
2006, c. 9, s. 270
293. Part III of Schedule VI to the Act is amended by striking out, in column I, the reference to
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Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses and the corresponding reference in column II to “President”. R.S., c. P-21
Privacy Act
R.S., c. 24 (3rd Supp.), s. 53
294. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses
1991, c. 30
Public Sector Compensation Act 295. Schedule I to the Public Sector Compensation Act is amended by striking out the following under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”: Hazardous Materials Information Review Commission Conseil de contrôle des renseignements relatifs aux matières dangereuses
SI/93-81
Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order 296. Item 53 of the schedule to the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order is repealed. Repeal
Repeal
297. Order in Council P.C. 1988-2030, dated September 15, 1988 and registered as SI/88-137, is repealed.
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Order in council
298. This Division, other than section 285, comes into force on a day to be fixed by order of the Governor in Council. DIVISION 14
1996, c. 17
AGREEMENT ON INTERNAL TRADE IMPLEMENTATION ACT Amendments to the Act 299. The definition “Agreement” in section 2 of the Agreement on Internal Trade Implementation Act is replaced by the following:
“Agreement” « Accord »
“Agreement” means the Agreement on Internal Trade signed in 1994, as amended from time to time; 300. The Act is amended by adding the following after section 8: ORDERS MADE UNDER CHAPTER 17 OF AGREEMENT
Orders of Federal Court
8.1 (1) An order to pay a monetary penalty or tariff costs made under Chapter 17 of the Agreement may, for the purpose of its enforcement only, be made an order of the Federal Court.
Procedure
(2) To make the order an order of the Federal Court, the party to the Agreement or the person in favour of whom the order is made must file a certified copy of the order in the Registry of the Federal Court and, on filing, the order becomes an order of that Court.
Enforcement
8.2 An order that is made an order of the Federal Court is enforceable in the same manner as any other order of that Court.
Orders final and binding
8.3 An order that is made an order of the Federal Court is final and binding and is not subject to appeal to any court. 301. The heading before section 9 of the English version of the Act is replaced by the following: ORDERS OF GOVERNOR IN COUNCIL
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302. (1) The portion of subsection 9(1) of the Act before paragraph (a) is replaced by the following: Orders
9. (1) For the purpose of suspending benefits of equivalent effect or imposing retaliatory measures of equivalent effect in respect of a province under Article 1709 of the Agreement, the Governor in Council may, by order, do any one or more of the following: (2) Paragraphs 9(3)(a) and (b) of the Act are replaced by the following: (a) the requirements for standing set out in Article 1703(8) of the Agreement; and (b) the conditions and limitations set out in Articles 1709(3), (4) and (10) of the Agreement. 303. Section 12 of the Act is replaced by the following:
Rosters
12. The Governor in Council may appoint any person who meets the requirements set out in Annex 1704(2) of the Agreement to be on the rosters referred to in Article 1704(2) of the Agreement. 304. Section 15 of the Act and the headings before it are replaced by the following:
Screener
15. The Governor in Council may, by order, appoint any person to be a screener for the purposes of Part B of Chapter 17 of the Agreement if the person meets the requirements set out in that Part. RELATED AND CONSEQUENTIAL AMENDMENTS
R.S., c. C-50; 1990, c. 8, s. 21
Related Amendment to the Crown Liability and Proceedings Act
1996, c. 17, s. 15
305. Subsection 28(3) of the Crown Liability and Proceedings Act is repealed. Coming into Force
Order in council
306. This Division comes into force on a day to be fixed by order of the Governor in Council.
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1996, c. 23
307. (1) Section 96 of the Employment Insurance Act is amended by adding the following after subsection (8.9): Temporary measure — small business refund 2012
(8.91) If an employer’s premium is $10,000 or less for 2011, the Minister shall refund to the employer a portion of the premium for 2012 determined by the following formula if that amount is more than $2: P2 – P1 where P1 is the amount of the employer’s premium in 2011; and P2 is the amount of the employer’s premium in 2012.
P1 can equal zero
(8.92) For the purposes of subsection (8.91), P1 is equal to zero if a person was not required to pay an employer’s premium in 2011.
Maximum refund
(8.93) A refund under subsection (8.91) shall not exceed $1,000.
2011, c. 24, s. 160(2)
(2) Subsection 96(13.1) of the Act is replaced by the following:
No interest payable
(13.1) Despite subsection (13), no interest shall be paid on refunds payable under subsection (8.7) or (8.91). DIVISION 16
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT Amendments to the Act 308. Section 11 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (1):
Electronic travel authorization
(1.01) Despite subsection (1), a foreign national must, before entering Canada, apply for an electronic travel authorization required by the regulations by means of an electronic system, unless the regulations provide that the application may be made by other means. The application may be examined by the system or
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Emploi et croi by an officer and, if the system or officer determines that the foreign national is not inadmissible and meets the requirements of this Act, the authorization may be issued by the system or officer. 309. Section 14 of the Act is amended by adding the following after subsection (2):
Electronic travel authorization
(3) For the purposes of subsection 11(1.01), the regulations may include provisions respecting the circumstances in which an application may be made by other means and respecting those other means. 310. Subsection 15(1) of the Act is replaced by the following:
Examination by officer
15. (1) An officer is authorized to proceed with an examination if a person makes an application to the officer in accordance with this Act or if an application is made under subsection 11(1.01).
2012, c. 19, s. 706(1)
311. Subsection 87.3(1) of the Act is replaced by the following:
Application
87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. 312. Section 89 of the Act is renumbered as subsection 89(1) and is amended by adding the following:
User Fees Act
(2) The User Fees Act does not apply to a fee for the provision of services in relation to an application referred to in subsection 11(1.01).
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Jobs and Gr Coordinating Amendments
2012, c. 17
313. (1) In this section, “other Act” means the Protecting Canada’s Immigration System Act. (2) On the first day on which both subsection 14(3) of the Immigration and Refugee Protection Act, as enacted by subsection 9(2) of the other Act, and subsection 14(3) of the Immigration and Refugee Protection Act, as enacted by section 309 of this Act, are in force, subsection 14(3) of the Immigration and Refugee Protection Act, as enacted by subsection 9(2) of the other Act, is renumbered as subsection 14(4) and is repositioned accordingly if required. (3) If section 30 of the other Act comes into force before section 312 of this Act, then (a) that section 312 is deemed never to have come into force and is repealed; and (b) section 89 of the Immigration and Refugee Protection Act is amended by adding the following after subsection (2):
User Fees Act
(3) The User Fees Act does not apply to a fee for the provision of services in relation to an application referred to in subsection 11(1.01). (4) If section 312 of this Act comes into force before section 30 of the other Act, then that section 30 is replaced by the following: 30. Section 89 of the Act is amended by adding the following after subsection (2):
User Fees Act
(3) The User Fees Act does not apply to a fee for the provision of services in relation to the collection, use and disclosure of biometric information and for the provision of related services. (5) If section 30 of the other Act comes into force on the same day as section 312 of this Act, then that section 30 is deemed to have come into force before that section 312 and subsection (3) applies as a consequence.
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2011-2012 2012, c. 19
314. On the first day on which both section 311 of this Act is in force and subsection 710(2) of the Jobs, Growth and Long-term Prosperity Act has produced its effects, subsection 87.3(1) of the Immigration and Refugee Protection Act is replaced by the following:
Application
87.3 (1) This section applies to applications for visas or other documents made under subsections 11(1) and (1.01), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. DIVISION 17
R.S., c. C-7
CANADA MORTGAGE AND HOUSING CORPORATION ACT 315. Subsection 8(1) of the Canada Mortgage and Housing Corporation Act is amended by adding “or” at the end of paragraph (b) and by repealing paragraph (c). DIVISION 18
R.S., c. N-22
NAVIGABLE WATERS PROTECTION ACT Amendments to the Act 316. Section 1 of the Navigable Waters Protection Act is replaced by the following:
Short title
1. This Act may be cited as the Navigation Protection Act. 317. (1) The portion of section 2 of the English version of the Act before the first definition is replaced by the following:
Definitions
2. The following definitions apply in this Act.
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2009, c. 2, s. 317
(2) The definition “ferry cable” in section 2 of the Act is repealed.
2009, c. 2, s. 317
(3) The definition “bateau” in section 2 of the French version of the Act is repealed.
2009, c. 2, s. 317
(4) The definition “work” in section 2 of the Act is replaced by the following:
“work” « ouvrage »
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“work” includes any structure, device or thing, whether temporary or permanent, that is made by humans. It also includes the dumping of fill or the excavation of materials from the bed of any navigable water. (5) Section 2 of the Act is amended by adding the following in alphabetical order:
“designated work” « ouvrage désigné »
“designated work” means a minor work or a work that is constructed or placed in, on, over, under, through or across any minor water.
“minor water” « eaux secondaires »
“minor water” means any navigable water designated under paragraph 28(2)(b).
“minor work” « ouvrage secondaire »
“minor work” means any work designated under paragraph 28(2)(a).
“obstruction” « obstacle »
“owner” « propriétaire »
“obstruction” means a vessel, or part of one, that is wrecked, sunk, partially sunk, lying ashore or grounded, or any thing, that obstructs or impedes navigation or renders it more difficult or dangerous, but does not include a thing of natural origin unless a person causes the thing of natural origin to obstruct or impede navigation or to render it more difficult or dangerous. “owner”, in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandatary. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of the work. It also includes a person who proposes to construct or place a work.
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2011-2012 “person in charge” « responsable »
“Tribunal” « Tribunal »
“person in charge”, with respect to an obstruction, includes the owner of the obstruction and, in the case of a vessel, or part of one, that is an obstruction, the registered owner or other owner at the time the obstruction was occasioned, as well as the managing owner, master and any subsequent purchaser. “Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
(6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order: « bâtiment » “vessel”
« bâtiment » Toute construction flottante conçue ou utilisée pour la navigation en mer ou dans les eaux internes, qu’elle soit pourvue ou non d’un moyen propre de propulsion. Est compris dans la présente définition tout ce qui fait partie des machines, de l’outillage de chargement, de l’équipement, de la cargaison, des approvisionnements ou du lest du bâtiment.
R.S., c. 1 (2nd suppl.), s. 213(1), Sch. I, item 9(1); 2004, c. 15, s. 95; 2009, c. 2, ss. 319 to 328, 329(F) and 330 to 334
318. The headings before section 3 and sections 3 to 18 of the Act are replaced by the following:
WORKS Prohibition
3. It is prohibited to construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule except in accordance with this Act or any other federal Act.
Opt in
4. (1) An owner of a work that is constructed or placed, or proposed to be constructed or placed, in, on, over, under, through or across any navigable water, other than any navigable water that is listed in the schedule, may request that this Act be made applicable to the work as if it were a work that is constructed or placed, or
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proposed to be constructed or placed, in, on, over, under, through or across any navigable water that is listed in the schedule. Request
(2) The request shall be made to the Minister in the form and manner, and contain the information, that is specified by the Minister and shall be accompanied by the applicable fee.
Deeming
(3) The Minister may accept the request if he or she considers that it is justified in the circumstances, in which case the work is deemed, for the purposes of this Act, to be a work that is constructed or placed, or proposed to be constructed or placed, in, on, over, under, through or across any navigable water that is listed in the schedule, as the case may be.
Assessment by Minister
5. (1) An owner who proposes to construct, place, alter, repair, rebuild, remove or decommission a work — other than a designated work — in, on, over, under, through or across any navigable water that is listed in the schedule shall give notice of the proposal to the Minister.
Notice
(2) The notice shall be made in the form and manner, and contain the information, that is specified by the Minister and shall be accompanied by the applicable fee.
Application
(3) Subsection (1) also applies even if construction, placement, alteration, repair, building, removal or decommissioning of work has begun or is completed before Minister is notified under subsection (1).
Assessment — factors
(4) In determining whether the work is likely to substantially interfere with navigation, the Minister shall, on receipt of the notice and the applicable fee, assess the proposal and in doing so shall take into account any relevant factor, including
the rethe the
(a) the characteristics of the navigable water in question; (b) the safety of navigation; (c) the current or anticipated navigation in that navigable water;
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Emploi et croi (d) the impact of the work on navigation in that navigable water, for example, as a result of its construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation or use; and (e) the cumulative impact of the work on navigation in that navigable water.
Related works
(5) If the Minister is of the opinion that two or more works are related, the Minister may consider them to be a single work.
Minister’s powers
(6) In determining whether the work is likely to substantially interfere with navigation, the Minister may require from the owner (a) any additional information that the Minister considers appropriate; and (b) the deposit of any information specified by the Minister in the local land registry or land titles office or in any other place specified by the Minister and the publication of a notice containing any information specified by the Minister in the Canada Gazette and in any other publication specified by the Minister.
Notice
(7) The notice referred to in paragraph (6)(b) shall invite any interested person to provide written comments to the Minister within 30 days after its publication.
Assessment results
(8) On completion of the assessment of the proposal, the Minister shall determine whether or not the work is likely to substantially interfere with navigation and shall so inform the owner.
Notice
(9) If the work does not conform to the description that the owner provided in the notice referred to in subsection (1), the owner shall so notify the Minister. The Minister may then require that a new notice be given under that subsection.
Approval
6. (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule that the Minister has determined under section 5 is likely to substantially interfere with navigation only if the Minister has issued an approval for
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the work, which may be issued only if an application for the approval is submitted and the application is accompanied by the applicable fee. Application for approval
(2) The application for an approval shall be made in the form and manner, and contain the information, specified by the Minister.
Refusal
(3) The Minister may refuse to issue an approval if he or she considers that the refusal is in the public interest, including by reason of the record of compliance of the owner under this Act.
Terms and conditions
(4) The Minister may attach any term or condition that he or she considers appropriate to an approval including a requirement that the owner give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or any other form that is satisfactory to the Minister.
Compliance with requirements
(5) The owner shall comply with the approval and maintain, operate and use the work in accordance with the requirements under this Act.
Contiguous area
(6) The Minister may, in an approval, designate an area contiguous with a work that is necessary for the safety of persons and navigation.
Transfer
(7) An approval may only be transferred if written notice of the transfer is given to the Minister 30 days before the transfer takes place.
Approval after construction or placement begins
(8) The Minister may, if he or she considers that it is justified in the circumstances, approve the construction or placement of the work after its construction or placement begins or is completed.
Amendment of approval
7. (1) The Minister may amend an approval by amending or revoking any term or condition of the approval.
Other amendment of approval
(2) The Minister may otherwise amend the approval, including by adding terms and conditions, only if he or she is satisfied that
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Emploi et croi (a) the work that is the subject of the approval interferes more with navigation at the time in question than it did when the approval was issued; (b) the work causes or is likely to cause a serious and imminent danger to navigation; or (c) the amendment of the approval is in the public interest.
Suspension or cancellation
(3) The Minister may suspend or cancel an approval if he or she considers that (a) the owner has not complied with the approval; (b) the approval was obtained by a fraudulent or improper means or by the misrepresentation of a material fact; (c) the owner has not paid a fine or penalty imposed under this Act; (d) the owner has contravened this Act; or (e) the suspension or cancellation is in the public interest, including by reason of the record of compliance of the owner under this Act.
Emergency
8. Even if the notice referred to in subsection 5(1) has not yet been given, the Minister may authorize the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work — other than a designated work — in, on, over, under, through or across any navigable water that is listed in the schedule if the Minister considers that such an authorization is necessary as a result of an emergency that has resulted in or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources and that is caused by a real or imminent (a) fire, flood, drought, storm, earthquake or other natural phenomenon; (b) disease in human beings, animals or plants; or (c) accident or pollution incident.
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Permitted works
9. (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a work in, on, over, under, through or across any navigable water that is listed in the schedule that the Minister has determined under section 5 is not likely to substantially interfere with navigation only if the construction, placement, alteration, repair, rebuilding, removal or decommissioning is in accordance with the requirements under this Act.
Terms and conditions
(2) The Minister may impose any term or condition that he or she considers appropriate on the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of the work including the designation of an area contiguous with a work that is necessary for the safety of persons and navigation.
Security
(3) In addition, the Minister may require, as a term or condition, that the owner give security in the form of a letter of credit, guarantee, suretyship or indemnity bond or insurance or any other form satisfactory to the Minister.
Compliance with requirements
(4) The owner shall comply with the terms and conditions imposed under subsections (2) and (3) and maintain, operate and use the work in accordance with the requirements under this Act.
Amendment of terms and conditions
(5) The Minister may amend or revoke any term or condition.
Designated works
10. (1) An owner may construct, place, alter, repair, rebuild, remove or decommission a designated work in, on, over, under, through or across any navigable water that is listed in the schedule only if the construction, placement, alteration, repair, rebuilding, removal or decommissioning is in accordance with the requirements under this Act.
Maintenance, operation and use
(2) The owner shall maintain, operate and use the designated work in accordance with the requirements under this Act.
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2011-2012 Application
Minister’s powers
11. (1) This section applies to any work that is constructed, placed, altered, repaired, rebuilt, removed, decommissioned, maintained, operated or used contrary to the requirements under this Act. (2) The Minister may (a) order the owner of a work to remove or alter the work; (b) during the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work, order any person to remove or alter the work or to do any other thing with respect to the work, including taking all measures necessary for the safety of navigation; (c) if the owner or the person fails to comply with an order given under paragraph (a) or (b), cause any thing to be done with respect to the work, including the removal of the work, its destruction and the sale, donation or other disposal of the materials contained in the work; and (d) order any person to refrain from proceeding with the construction, placement, alteration, repair, rebuilding, removal or decommissioning of a work.
Costs of removal or disposal
(3) The amount of the costs incurred by the Minister while acting under paragraph (2)(c), after deducting from that amount any sum that may be realized by sale or otherwise, is recoverable with costs in the name of Her Majesty from the owner.
Obligation to notify Minister
12. (1) An owner of a work in, on, over, under, through or across any navigable water that is listed in the schedule shall immediately notify the Minister if the work causes or is likely to cause a serious and imminent danger to navigation.
Duty to take corrective measures
(2) The owner shall, as soon as feasible, take all reasonable measures consistent with public safety and with the safety of navigation to prevent any serious and imminent danger to navigation that is caused or likely to be caused by the work or to counteract, mitigate or remedy
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any adverse effects that result from that danger to navigation or might reasonably be expected to result from it. Removal of works, etc.
13. (1) The Minister may order the owner of a work constructed or placed in, on, over, under, through or across any navigable water that is listed in the schedule to repair, alter or remove it if he or she is satisfied that (a) it interferes more with navigation at the time in question than it did when it was constructed or placed; (b) it is causing or is likely to cause a serious and imminent danger to navigation; or (c) its repair, alteration or removal is in the public interest.
Works
(2) The Minister may, if he or she is satisfied that it is necessary in the circumstances, order the owner to do any other thing with respect to the work.
Owner’s expense
(3) If the owner fails to comply with an order made under subsections (1) or (2), the Minister may cause the order to be carried out at the expense of the owner.
Statutory Instruments Act
14. For greater certainty, approvals issued under section 6, terms and conditions imposed under subsection 9(2) or (3) and orders given under paragraph 11(2)(a), (b) or (d) or subsection 13(1) or (2) are not statutory instruments as defined in subsection 2(1) of the Statutory Instruments Act. OBSTRUCTIONS
Notice and indication of obstruction
15. (1) The person in charge of an obstruction in a navigable water — other than a minor water — listed in the schedule shall (a) immediately give notice of the existence of the obstruction to the Minister, in the form and manner, and including the information, specified by the Minister; and (b) place and, as long as the obstruction is present, maintain, by day, a sufficient signal and, by night, a sufficient light, to indicate the position of the obstruction.
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Failure to signal and light rectifiable by Minister
(2) The Minister may cause the signal and light to be placed and maintained if the person in charge of the obstruction fails to do so.
Removal of obstruction
(3) Unless otherwise ordered by the Minister, the person in charge of the obstruction shall immediately begin its removal and shall carry on the removal diligently to completion.
Failure to remove obstruction rectifiable by Minister
(4) The Minister may cause the obstruction to be removed or destroyed if the person in charge of the obstruction fails to remove the obstruction.
Minister’s powers
16. (1) The Minister may order the person in charge of an obstruction or potential obstruction in a navigable water — other than a minor water — that is listed in the schedule to secure, remove or destroy it in the manner that the Minister considers appropriate if the situation has persisted for more than 24 hours.
Property belonging to Her Majesty
(2) The Minister may order any person to secure, remove or destroy a wreck, vessel, part of a vessel or any thing that is cast ashore, stranded or left on any property belonging to Her Majesty in right of Canada and impedes, for more than 24 hours, the use of that property as may be required for the public purposes of Canada.
Failure to comply with order
(3) If the person to whom an order is given under subsection (1) or (2) fails to comply with the order, the Minister may cause the order to be carried out.
Not a statutory instrument
(4) For greater certainty, an order given under this section is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act.
Moving and sale
17. (1) The Minister may cause an obstruction in a navigable water — other than in a minor water — that is listed in the schedule or the wreck, vessel, part of a vessel or thing referred to in subsection 16(2) to be moved to a place that the Minister considers appropriate and to be sold by auction or otherwise as the Minister considers appropriate. The Minister may apply the proceeds of the sale to make good the expenses incurred by the Minister in
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placing and maintaining any signal or light to indicate the position of the obstruction, wreck, vessel, part of a vessel or thing or in securing, removing, destroying or selling it. Surplus
(2) The Minister shall pay over all or any portion of the surplus of the proceeds of the sale to the person in charge of the obstruction sold or to any other person that is entitled to the proceeds.
Costs constituting debt
18. (1) The amount of the costs incurred by the Minister while acting under subsection 15(2) or (4) or section 16 — whether or not a sale has been held under section 17 — constitutes a debt due to Her Majesty in right of Canada.
Recovery by Her Majesty
(2) Such debts are recoverable from (a) the person in charge of the obstruction at the time the obstruction was occasioned; (b) any person through whose act or fault or through the act or fault of whose servant the obstruction was occasioned or continued; or (c) the person to whom the order referred to in subsection 16(2) is given.
Application of moneys recovered
(3) Any sum recovered under subsection (2) shall be paid into the Consolidated Revenue Fund.
2009, c. 2, s. 335
319. (1) Subsections 19(1) and (2) of the Act are replaced by the following:
Order to remove vessel left anchored
19. (1) If a vessel has been left anchored, moored or adrift in any navigable water — other than in any minor water — that is listed in the schedule so that, in the Minister’s opinion, it obstructs or is likely to obstruct navigation, the Minister may order the registered owner or other owner, managing owner, master, person in charge of the vessel or subsequent purchaser to secure it or remove it to a place that the Minister considers appropriate.
Failure to comply with order
(2) If a person to whom an order is given under subsection (1) fails to comply without delay with the order, the Minister may cause the vessel to be secured or removed to the place that the Minister considers appropriate, and the costs of securing or removing the vessel are recoverable from the person as a debt due to Her Majesty.
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2009, c. 2, s. 335
(2) Subsection 19(3) of the French version of the Act is replaced by the following:
Loi sur les textes réglementaires
(3) Il est entendu que l’ordre donné au titre du présent article n’est pas un texte réglementaire au sens de la Loi sur les textes réglementaires.
2009, c. 2, s. 335
320. Section 20 of the Act is replaced by the following:
Abandoned vessel
20. If any vessel or thing is wrecked, sunk, partially sunk, lying ashore, grounded or abandoned in any navigable water — other than in any minor water — that is listed in the schedule, the Minister may, under the restrictions that he or she considers appropriate, authorize any person to take possession of and remove the vessel, part of the vessel or thing for that person’s own benefit, on that person’s giving to the registered owner or other owner of the vessel or to the owner of the thing, if known, one month’s notice or, if the registered owner or other owner of the vessel or owner of the thing is not known, public notice for the same period in a publication specified by the Minister. DEPOSIT AND DEWATERING
1998, c. 10, s. 189; 2009, c. 2, ss. 336 to 338
321. Sections 22 to 30 of the Act are replaced by the following:
Throwing or depositing stone, etc., prohibited
22. No person shall throw or deposit or cause, suffer or permit to be thrown or deposited any stone, gravel, earth, cinders, ashes or other material or rubbish that is liable to sink to the bottom in any water, any part of which is navigable or flows into any navigable water, where there is not a minimum depth of 36 metres of water at all times, but nothing in this section shall be construed so as to permit the throwing or depositing of any substance in any part of a navigable water if it is prohibited by or under any other federal Act.
Dewatering
23. No person shall dewater any navigable water.
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Exemption by order
24. The Governor in Council may, by order, exempt from any of sections 21 to 23, any rivers, streams or waters, in whole or in part, if it is shown to the satisfaction of the Governor in Council that the exemption would be in the public interest.
Powers of certain persons
25. Sections 21, 22 and 26 do not affect the legal powers, rights or duties of harbour masters, port wardens, the person responsible for the management of the St. Lawrence Seaway or a port authority established under the Canada Marine Act in respect of materials that, under those sections, are not allowed to be deposited in navigable waters.
Dumping places
26. The Minister may designate places in any navigable water that is not within the jurisdiction of any person referred to in section 25, where stone, gravel, earth, cinders, ashes or other material may be deposited even if the minimum depth of water at that place may be less than 36 metres, and the Minister may make rules respecting the deposit of the materials.
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AGREEMENTS AND ARRANGEMENTS Agreements and arrangements
27. The Minister may, with respect to his or her responsibilities under this Act, enter into agreements or arrangements for carrying out the purposes of this Act and authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement. REGULATIONS, ORDERS, INCORPORATION BY REFERENCE AND INTERIM ORDERS REGULATIONS AND ORDERS
Regulations by Governor in Council
28. (1) The Governor in Council may, for the purposes of this Act, make regulations (a) respecting time limits for issuing approvals or for refusing to do so; (b) prescribing fees, or the method of calculating fees, to be paid with the request referred to in section 4, to be paid for the
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Emploi et croi assessment referred to in section 5, to be paid with the application referred to in section 6 and to be paid for any other service, right or privilege provided under this Act and respecting the payment of those fees; (c) respecting the issuing, amendment, suspension and cancellation of approvals under section 6; (d) respecting the water levels and water flow necessary for navigation; (e) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule; (f) respecting the designation of areas contiguous with works that are necessary for the safety of persons and navigation; (g) respecting notification requirements in the case of a change in owner of a work; (h) excluding any thing from the definition “obstruction” in section 2; (i) designating any provision of this Act, of the regulations or of an order as a provision whose contravention may be proceeded with as a violation in accordance with sections 39.1 to 39.26; (j) establishing a penalty, or a range of penalties, in respect of each violation; (k) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established; (l) classifying each violation as a minor violation, a serious violation or a very serious violation; (m) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part; (n) providing for a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner and providing, among
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other things, the circumstances in which the lesser amount may be set out in a notice of violation; (o) prescribing anything that is to be prescribed under this Act; and (p) for carrying out the purposes and provisions of this Act.
Minister’s power
(2) The Minister may make an order (a) designating any works as minor works; (b) designating, as minor waters, any of the navigable waters, in whole or in part, that are listed in the schedule; (c) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any navigable waters — other than any minor waters — that are listed in the schedule; and (d) respecting the construction, placement, alteration, repair, rebuilding, removal, decommissioning, maintenance, operation, safety or use of works in, on, over, under, through or across any minor waters.
Classes
(3) A regulation or order made under this section may establish classes and distinguish among those classes.
Conflict
(4) If there is a conflict between a regulation made under paragraph (1)(e) and an order made under paragraph (2)(c), the regulation prevails.
Exemption from Statutory Instruments Act
(5) An order made under subsection (2) is not a statutory instrument as defined in subsection 2(1) of the Statutory Instruments Act. However, it shall be published in the Canada Gazette within 23 days after the day on which it is made.
Emploi et croi
2011-2012 Definition of “local authority”
29. (1) For the purposes of this section, “local authority” means the government of a municipality, any other government constituted under the laws of a province or a department of a provincial government.
Addition to schedule
(2) The Governor in Council may, by regulation, amend the schedule by adding to it a reference to a navigable water if the Governor in Council is satisfied that the addition (a) is in the national or regional economic interest; (b) is in the public interest; or (c) was requested by a local authority.
Minister’s recommendation
(3) The Minister may recommend the addition of a reference to a navigable water to the schedule at the request of a local authority only if the Minister is satisfied that the local authority meets the criteria specified by the Minister.
Other amendment of schedule
(4) The Governor in Council may, by regulation, amend the schedule by amending or deleting a reference to a navigable water. INCORPORATION BY REFERENCE
Incorporation by reference
30. (1) A regulation or order made under this Act may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
Accessibility
(2) The Minister shall ensure that any document that is incorporated by reference in the regulation or order is accessible.
Defence
(3) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation or order is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.
No registration or publication
(4) For greater certainty, a document that is incorporated by reference in the regulation or order is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
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2004, c. 15, s. 96
322. (1) Subsection 32(1) of the Act is replaced by the following:
Interim orders
32. (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.
2004, c. 15, s. 96
(2) Paragraph 32(2)(c) of the Act is replaced by the following:
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(c) the day on which a regulation made under this Act, that has the same effect as the interim order, comes into force, and 2004, c. 15, s. 96
(3) Subsection 32(5) of the Act is replaced by the following:
Deeming
(5) For the purpose of any provision of this Act other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.
2009, c. 2, s. 340
323. Section 33 of the Act and the headings before it are replaced by the following: ADMINISTRATION AND ENFORCEMENT DESIGNATION
Designation
33. The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.
2009, c. 2, s. 340
324. (1) Subsection 34(1) of the Act is replaced by the following:
Authority to enter
34. (1) A designated person may, for a purpose related to verifying compliance with this Act, enter a place in which they have reasonable grounds to believe that any of the following items are located: (a) a work or anything related to a work; and
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2009, c. 2, s. 340
(2) Subsection 34(2) of the French version of the Act is replaced by the following:
Certificat
(2) La personne désignée présente, sur demande, au responsable du lieu le certificat établi en la forme déterminée par le ministre et attestant sa qualité.
2009, c. 2, s. 340
(3) Paragraph 34(3)(c) of the French version of the Act is replaced by the following: c) ordonner de mettre en marche les machines, le bâtiment ou tout autre moyen de transport, ou de faire fonctionner l’ouvrage ou l’équipement, situés dans le lieu, ou d’arrêter les machines, le bâtiment ou le moyen de transport ou de cesser de faire fonctionner l’ouvrage ou l’équipement;
2009, c. 2, s. 340
325. The portion of section 35 of the French version of the Act before paragraph (a) is replaced by the following:
Obligation d’assistance
35. Le propriétaire ou le responsable du lieu visé au paragraphe 34(1), ainsi que toute personne qui s’y trouve, sont tenus :
2009, c. 2, s. 340
326. (1) The portion of subsection 36(2) of the French version of the Act before paragraph (a) is replaced by the following:
Pouvoir de décerner un mandat
(2) Sur demande ex parte, le juge de paix peut décerner un mandat autorisant, sous réserve des conditions éventuellement fixées, la personne qui y est nommée à entrer dans une maison d’habitation, s’il est convaincu, sur la foi d’une dénonciation sous serment, que sont réunis les éléments suivants :
2009, c. 2, s. 340
(2) Paragraph 36(2)(b) of the Act is replaced by the following: (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and
2009, c. 2, s. 340
327. Subsection 38(1) of the Act is replaced by the following:
Injunction
38. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the
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commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application (a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or (b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation. 328. The Act is amended by adding the following after section 39: ADMINISTRATIVE MONETARY PENALTIES Violations Commission of violation
39.1 (1) Every person who contravenes a provision designated under paragraph 28(1)(i) commits a violation and is liable to a penalty established in accordance with the regulations.
Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Maximum penalty
(3) The maximum penalty for a violation is $5,000, in the case of an individual, and $40,000 in any other case. Proceedings
Notice of violation
Contents of notice
39.11 (1) A designated person may issue a notice of violation and cause it to be provided to a person if the designated person has reasonable grounds to believe that the person has committed a violation. (2) The notice of violation shall (a) name the person believed to have committed the violation; (b) identify the acts or omissions that constitute the alleged violation; (c) set out the penalty for the violation that the person is liable to pay; (d) set out the particulars concerning the time and manner of payment; and
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(e) set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are specified in the notice. Summary of rights
(3) A notice of violation shall summarize, in plain language, the rights and obligations under this section and sections 39.12 to 39.23 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.
Short-form descriptions
(4) The Minister may establish a short-form description of each violation to be used in notices of violation. Penalties
Effect of payment
39.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are specified in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice, (a) the person is deemed to have committed the violation to which the amount paid relates; (b) the Minister shall accept the amount paid as complete satisfaction of the penalty; and (c) the proceedings commenced in respect of the violation under section 39.11 are ended.
Alternatives to payment
(2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are specified in the notice, request a review by the Tribunal of the acts or omissions that constitute the alleged violation or of the amount of the penalty, as the case may be.
Deeming
(3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise the right referred to in subsection (2)
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within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice. Review by Tribunal Review — violation
39.13 (1) After completing a review requested under subsection 39.12(2) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Tribunal shall determine whether the person who is named in the notice committed the violation and, if the Tribunal determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.
Review — penalty
(2) After completing a review requested under subsection 39.12(2) with respect to the amount of the penalty set out in the notice of violation, the Tribunal shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Tribunal determines that it was not, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.
Payment
(3) The person who is provided with a notice of the Tribunal’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are specified in the notice.
Effect of payment
(4) If the person pays the amount of the penalty that is set out in the notice of the Tribunal’s decision within the prescribed time and in the prescribed manner that are specified in the notice, (a) the Tribunal shall accept the amount as complete satisfaction of the penalty; and (b) the proceedings commenced in respect of the violation under section 39.11 are ended.
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39.14 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court: (a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to have the Tribunal review the acts or omissions that constitute the violation or the amount of the penalty, as the case may be; (b) the amount of a penalty set out in the notice of the Tribunal’s decision made under subsection 39.13(1) or (2), beginning on the day specified in the notice; and (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).
Limitation period or prescription
(2) Proceedings to recover such a debt may be commenced no later than five years after the debt becomes payable.
Debt final
(3) The debt is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 39.12 and 39.13.
Certificate of default
39.15 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 39.14(1).
Effect of registration
(2) Registration of the certificate in the Federal Court has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs. Rules of Law About Violations
Violations not offences
39.16 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Due diligence defence
39.17 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
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Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Burden of proof
39.18 If the Tribunal is to determine whether a person who is named in a notice of violation committed any violation that is identified in it, the Tribunal shall do so on a balance of probabilities.
Offences by corporate officers, etc.
39.19 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors and agents or mandataries who directed, authorized, assented to or acquiesced or participated in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.
Vicarious liability — acts of employees, agents and mandataries
39.2 A person is liable for a violation that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Continuing violation
39.21 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
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Other Provisions Evidence
39.22 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Limitation period or prescription
39.23 Proceedings in respect of a violation may be commenced no later than six months after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged violation.
Certification by Minister
39.24 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to a designated
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person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day. Information may be made public
39.25 The Minister may make public the name and business address of a person who is deemed to have committed a violation or who was determined to have committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.
How act or omission may be proceeded with
39.26 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
2009, c. 2, s. 340
329. (1) Subsection 40(1) of the Act is replaced by the following:
Offence
40. (1) Every person is guilty of an offence and is liable on summary conviction to imprisonment for a term of not more than six months or to a fine of not more than $50,000, or to both, if the person (a) contravenes section 3; (b) does not give the notice required under subsection 5(1) or (9) or 12(1) or paragraph 15(1)(a); (c) contravenes subsection 6(5), 9(4), 10(2) or 15(3), section 21, 22, 23 or 35 or subsection 37(1) or (2); (d) contravenes an order given under paragraph 11(2)(a), (b) or (d) or subsection 13(1) or (2), 16(1) or (2) or 19(1); (e) does not take the measures required under subsection 12(2) or paragraph 15(1)(b); (f) contravenes a regulation or order made under section 28; or (g) contravenes an interim order made under section 32.
2009, c. 2, s. 340
(2) Subsection 40(2) of the French version of the Act is replaced by the following:
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Amende
(2) Dans le cas où des matières visées à l’article 22 ont été jetées d’un bâtiment ou déposées par un bâtiment et qu’une déclaration de culpabilité a été obtenue à cet égard, le bâtiment est passible de l’amende imposée et peut être détenu par un gardien de port ou par le chef du service des douanes de tout port jusqu’au paiement de l’amende.
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(3) Section 40 of the Act is amended by adding the following after subsection (3): Officers, etc., of corporations
(4) If a corporation commits an offence under this Act, any officer, director or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to, and guilty of, the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.
Duty to ensure compliance
(5) Every director and officer of a corporation shall take all reasonable care to ensure that the corporation complies with this Act.
2009, c. 2, s. 340
330. The heading “PART V” after section 40 of the Act is repealed. 331. The Act is amended by adding, after section 41, the schedule set out in Schedule 2 to this Act. Transitional Provisions
Approvals
332. (1) Every work in respect of which an approval was granted under the Navigable Waters Protection Act as it read immediately before the coming into force of this Division is deemed to be approved under section 6 of the Navigation Protection Act, except if it is stated in the approval that the work interferes, other than substantially, with navigation, in which case the work is deemed to be validly constructed or placed in accordance with section 9 of the Navigation Protection Act.
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Terms and conditions
(2) Any term or condition imposed on an approval granted under the Navigable Waters Protection Act as it read immediately before the coming into force of this Division remains in effect.
Designated works
(3) Every work, the construction or placement of which was permitted under section 5.1 of the Navigable Waters Protection Act as it read immediately before the coming into force of this Division, is deemed to be validly constructed or placed in accordance with section 10 of the Navigation Protection Act.
Lawful works
(4) A work referred to in subsection 4(1) or (2) or section 8 of the Navigable Waters Protection Act as it read immediately before the coming into force of this Division remains validly constructed or placed under the Navigation Protection Act.
Works — navigable waters
(5) Every work referred to in subsection (1), (3) or (4) that is constructed or placed in, on, over, under, through or across any navigable water other than any navigable water listed in the schedule to the Navigation Protection Act is deemed to be constructed or placed in, on, over, under, through or across a navigable water listed in the schedule.
Opt out
(6) Subsection (5) does not apply to a work on receipt by the Minister of Transport of a notice to that effect. The notice shall be given by the owner, as defined in section 2 of the Navigation Protection Act, no later than five years after the coming into force of this Division.
Request for approval not decided
333. Every request for approval of a work submitted under the Navigable Waters Protection Act as it read immediately before the coming into force of this Division that has not been decided before that coming into force is deemed to be a notice referred to in subsection 5(1) of the Navigation Protection Act.
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Minor Works and Waters (Navigable Waters Protection Act) Order
334. (1) The works established as classes of works in the Minor Works and Waters (Navigable Waters Protection Act) Order are deemed to be minor works designated under paragraph 28(2)(a) of the Navigation Protection Act until an order is made under that paragraph.
Terms and conditions
(2) Every term and condition imposed under paragraph 13(1)(b) of the Navigable Waters Protection Act as it read immediately before the coming into force of this Division with respect to the minor works referred to in subsection (1) is deemed to be made under paragraph 28(2)(c) of the Navigation Protection Act until an order is made under that paragraph.
Minor Works and Waters (Navigable Waters Protection Act) Order
(3) The navigable waters established as classes of navigable waters in the Minor Works and Waters (Navigable Waters Protection Act) Order are deemed to be minor waters designated under paragraph 28(2)(b) of the Navigation Protection Act until an order is made under that paragraph.
Terms and conditions
(4) Every term and condition imposed under paragraph 13(1)(b) of the Navigable Waters Protection Act as it read immediately before the coming into force of this Division with respect to the minor waters referred to in subsection (3) is deemed to be made under paragraph 28(2)(d) of the Navigation Protection Act until an order is made under that paragraph.
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Repeal Repeal
335. The Minor Works and Waters (Navigable Waters Protection Act) Order is repealed. Consequential Amendments
R.S., c. H-1
Harbour Commissions Act 336. Section 33 of the Harbour Commissions Act is replaced by the following:
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R.S., c. N-7 2012, c.19, s. 69
“navigable water” « eaux navigables »
33. Any work undertaken by or on behalf of the Commission affecting the use of any navigable waters is subject to the Navigation Protection Act. National Energy Board Act 337. The definition “navigable water” in section 2 of the National Energy Board Act is replaced by the following: “navigable water” has the same meaning as in section 2 of the Navigation Protection Act;
1990, c. 7, s. 23
338. Subsection 58.3(1) of the Act is replaced by the following:
Exceptions
58.3 (1) No approval under the Navigation Protection Act is required for the construction of any work if leave for its construction is first obtained under section 58.29.
1990, c. 7, s. 27
339. Section 109 of the Act is replaced by the following:
Approval under Navigation Protection Act
109. No approval under the Navigation Protection Act is required for the construction of any work if leave for its construction is first obtained under section 108.
R.S., c. 32 (4th Supp.)
Railway Safety Act 340. The heading before section 5 of the English version of the Railway Safety Act is replaced by the following: RELATIONSHIP TO NAVIGATION PROTECTION ACT 341. Section 5 of the Act is replaced by the following:
Compliance with Navigation Protection Act
5. If a person proposes to construct or alter a railway work in, on, over, under, through or across any navigable water as defined in section 2 of the Navigation Protection Act, the requirements imposed by or under this Act apply in addition to, and not in substitution for, the requirements imposed by or under the Navigation Protection Act.
304 1998, c. 10
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2008, c. 21, s. 26
342. Section 47 of the Canada Marine Act is replaced by the following:
Navigation Protection Act
47. The Navigation Protection Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 62.
2008, c. 21, s. 40
343. Section 73 of the Act is replaced by the following:
Navigation Protection Act
73. The Navigation Protection Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 74.
2008, c. 21, s. 47
344. Section 101 of the Act is replaced by the following:
Navigation Protection Act
101. The Navigation Protection Act does not apply to a work, as defined in section 2 of that Act, that has been exempted by a regulation made under section 98.
2001, c. 29
Transportation Appeal Tribunal of Canada Act
2008, c. 21, s. 65
345. Subsection 2(3) of the Transportation Appeal Tribunal of Canada Act is replaced by the following:
Jurisdiction in respect of other Acts
(3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act, sections 129.01 to 129.19 of the Canada Marine Act and sections 39.1 to 39.26 of the Navigation Protection Act.
2002, c. 18
Canada National Marine Conservation Areas Act
2001, c. 26, s. 322(3)
346. Subsection 16(5) of the Canada National Marine Conservation Areas Act is replaced by the following:
Conflicts
(5) Regulations referred to in subsection (2), (3) or (4) prevail over regulations made under the Fisheries Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the
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2005, c. 37
Highway 30 Completion Bridges Act 347. Section 5 of the Highway 30 Completion Bridges Act is replaced by the following:
Application of other Acts
5. For greater certainty, nothing in this Act limits the application of the Navigation Protection Act or any other Act of Parliament in respect of the construction and maintenance of the bridges and ancillary works authorized by this Act.
2004, c. 15
Related Amendment to the Public Safety Act, 2002 348. Section 94 of the Public Safety Act, 2002 is repealed. Coordinating Amendments
2012, c. 19
349. (1) In this section, “other Act” means the Jobs, Growth and Long-term Prosperity Act. (2) On the first day on which both section 87 of the other Act and section 316 of this Act are in force, (a) section 58.301 of the National Energy Board Act is replaced by the following:
Power lines not works
58.301 Despite the definition “work” in section 2 of the Navigation Protection Act, neither an interprovincial power line in respect of which an order made under section 58.4 is in force nor an international power line is a work to which that Act applies. (b) subsection 58.304(1) of the National Energy Board Act is replaced by the following:
Existing terms and conditions
58.304 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before the coming into force of this section, imposed under section
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58.29 or 108, as that section read from time to time before the coming into force of this section — or imposed by the Minister of Transport under the Navigation Protection Act — apply as if they were terms and conditions set out in the certificate or permit, as the case may be, issued in respect of the power line. (3) If section 87 of the other Act comes into force before section 338 of this Act, then that section 338 is repealed. (4) If section 87 of the other Act comes into force on the same day as section 338 of this Act, then that section 338 is deemed to have come into force before that section 87. (5) On the first day on which both section 91 of the other Act and section 316 of this Act are in force, section 111 of the National Energy Board Act is replaced by the following: Pipeline not work
111. Despite the definition “work” in section 2 of the Navigation Protection Act, a pipeline is not a work to which that Act applies. (6) If section 91 of the other Act comes into force before section 339 of this Act, then that section 339 is repealed. (7) If section 91 of the other Act comes into force on the same day as section 339 of this Act, then that section 339 is deemed to have come into force before that section 91. (8) On the first day on which both section 116 of the other Act and section 316 of this Act are in force, the definition “navigable water” in section 2 of the Canada Oil and Gas Operations Act is replaced by the following:
“navigable water” « eaux navigables »
“navigable water” has the same meaning as in section 2 of the Navigation Protection Act; (9) On the first day on which both section 119 of the other Act and section 316 of this Act are in force,
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(a) section 5.013 of the Canada Oil and Gas Operations Act is replaced by the following: Pipeline not work
5.013 Despite the definition “work” in section 2 of the Navigation Protection Act, a pipeline in respect of which an authorization has been or may be issued under paragraph 5(1)(b) is not a work to which that Act applies. (b) section 5.015 of the Canada Oil and Gas Operations Act is replaced by the following:
Existing terms and conditions
5.015 Terms and conditions imposed at any time before the coming into force of this section in relation to an approval given under the Navigation Protection Act in respect of a pipeline, in respect of which an authorization has been issued under paragraph 5(1)(b), apply as if they were requirements determined by the National Energy Board to be requirements to which the authorization is subject. Coming into Force
Order in council
350. This Division, other than section 349, comes into force on a day to be fixed by order of the Governor in Council. DIVISION 19
R.S., c. G-10
CANADA GRAIN ACT Amendments to the Act
1994, c. 45, s. 1(6)(F)
351. (1) The definitions “overage”, “shortage”, “transfer elevator” and “weighover” in section 2 of the Canada Grain Act are repealed.
1994, c. 45, s. 1(6)(F)
(2) The definition “terminal elevator” in section 2 of the Act is replaced by the following:
“terminal elevator” « installation terminale » ou « silo terminal »
“terminal elevator” means an elevator whose principal uses are the receiving of grain from another elevator and the cleaning, storing and treating of the grain before it is moved forward; (3) Subparagraph (b)(ii) of the definition “lawfully” in section 2 of the Act is replaced by the following:
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(ii) the delivery of grain to a terminal elevator or process elevator or to a consignee at a destination other than an elevator, or 1994, c. 45, s. 4
352. Paragraph 12(g) of the Act is replaced by the following: (g) fixing the allowance to be paid to members of grain standards committees. 353. Subparagraphs 14(1)(e)(i) and (ii) of the Act are replaced by the following: (i) may request that a grain dealer or an operator of an elevator provide it with any sample of grain, grain products or screenings in their possession that the Commission specifies, (ii) wherever appropriate, utilize technical, economic and statistical information and advice from any department or agency of the Government of Canada, and (iii) maintain an efficient and adequately equipped laboratory; 354. Paragraph 20(2)(b) of the Act is repealed. 355. (1) Paragraph 27(1)(a) of the Act is replaced by the following: (a) shall be used as the visual grading standard in the grading of western grain of that grade discharged from a terminal elevator or process elevator; and (2) Paragraph 27(2)(a) of the Act is replaced by the following: (a) shall be used as a visual grading guide in the grading of grain of that grade, other than western grain discharged from a terminal elevator or process elevator; and 356. Section 33 of the Act is replaced by the following:
Transmission of inspection certificate
33. An inspection certificate issued when grain is discharged from a terminal elevator shall be transmitted with the shipping documents relating to the grain.
1994, c. 45, s. 8; 2003, c. 22, par. 224(n)(E)
357. The heading before section 35 and sections 35 to 38 of the Act are repealed.
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358. Section 39 of the Act is replaced by the following: Right of appeal
39. (1) Any person who is dissatisfied with the grade assigned to grain on an official inspection may appeal the decision of the inspector in respect of any characteristics of the grain, by way of an application for reinspection of the grain, to the chief grain inspector for Canada.
Time for appeal
(2) Except with the Commission’s permission, no appeal lies under this section unless, within 15 days after the decision that is the subject of the appeal is made, notice of the appeal is given to the chief grain inspector for Canada.
R.S., c. 37 (4th Supp.), s. 15
359. Section 41 of the Act is replaced by the following:
Duties of chief grain inspector on appeal
41. (1) If an appeal is taken, the chief grain inspector for Canada shall (a) inspect the grain to which the appeal relates or a sample of that grain; (b) review the decision appealed; (c) assign to the grain the grade that he or she considers to be the appropriate grade for the grain; and (d) if a grade is assigned to the grain that is different from the grade previously assigned to it, require all inspection certificates, and all other documents specified by the Commission, relating to the grain to be revised accordingly.
Decision is final
(2) The decision of the chief grain inspector for Canada is final and conclusive and not subject to appeal to or review by any court.
Delegation
(3) The chief grain inspector for Canada may delegate all or part of the duties and functions conferred on him or her under subsection (1). 360. Paragraph 42(c) of the Act is repealed.
1994, c. 45, s. 10; 2001, c. 4, s. 88(E)
361. Subsections 45(1) and (2) of the Act are replaced by the following:
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Issue of licences — elevator operators and grain dealers
45. (1) If a person who proposes to operate an elevator or to carry on business as a grain dealer applies in writing to the Commission for a licence and the Commission is satisfied that the applicant and the elevator, if any, meet the requirements of this Act and any conditions that the Commission may specify, the Commission may issue to the applicant the licence of a class or subclass determined by the Commission to be appropriate to the type of operation of that elevator or the business of that grain dealer.
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362. The Act is amended by adding the following after section 45: Security
45.1 (1) Unless exempted by regulation or by order of the Commission, a licensee shall obtain any prescribed security for the purpose of covering the licensee’s potential obligations for the payment of money or the delivery of grain to holders of cash purchase tickets, elevator receipts or grain receipts issued under this Act and shall maintain that security for as long as they are a licensee.
Proof of security
(2) The licensee shall, on request, provide the Commission with proof of that security.
Agreements
45.2 The Commission may enter into agreements with third parties in respect of any prescribed security.
1994, c. 45, s. 10
363. (1) The portion of subsection 46(1) of the Act before paragraph (a) is replaced by the following:
Refusal to issue elevator licence
46. (1) The Commission may refuse to issue an elevator licence if the applicant has not obtained security as required by subsection 45.1(1) or fails to establish to the satisfaction of the Commission that
1994, c. 45, s. 10
(2) Subsection 46(2) of the Act is replaced by the following:
Refusal to issue grain dealer’s licence
(2) The Commission may refuse to issue a grain dealer’s licence if the applicant has not obtained security as required by subsection 45.1(1).
R.S., c. 37 (4th Supp.), s. 17(1); 1994, c. 45, s. 12;
364. Section 49 of the Act is replaced by the following:
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1998, c. 22, s. 6(3) and par. 25(b)(F) Additional security
49. (1) If the Commission has reason to believe that any security obtained by a licensee under this Act is not sufficient, the Commission may, by order, require the licensee to obtain, within any period that the Commission considers reasonable, any additional security that it considers is sufficient.
Limitation — prescribed percentage
(2) Despite any other provision of this Act, the Commission may prescribe by regulation the percentage of the value of a cash purchase ticket, an elevator receipt or a grain receipt that may be realized or enforced against security obtained by a licensee, and the security may be realized or enforced in relation to the cash purchase ticket, elevator receipt or grain receipt only to the extent of the prescribed percentage.
Interpretation — failure to meet payment obligations
(3) If the failure on the part of a licensee to meet the licensee’s payment obligations is a result of their giving to the producer a cash purchase ticket or other bill of exchange that the bank or other financial institution on which it is drawn subsequently refuses to honour, that failure occurs when the cash purchase ticket or other bill of exchange is given to the producer.
R.S., c. 37 (4th Supp.), s. 20(1)
365. (1) Subsection 54.1(1) of the Act is replaced by the following:
Recovery of charges
54.1 (1) If an elevator receipt issued by the licensee of a terminal elevator has been outstanding for more than one year and any charges accruing under the receipt have accrued for more than one year and are unpaid, the licensee, with the Commission’s written permission, after giving any notice of sale to the last known holder of the receipt that may be specified by the Commission, may, on any terms and conditions that may be specified in writing by the Commission, sell the grain referred to in the receipt or grain of the same kind, grade and quantity to recover the charges.
R.S., c. 37 (4th Supp.), s. 20(1)
(2) Subsection 54.1(3) of the Act is replaced by the following:
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Warning
(3) Each elevator receipt issued by the licensee of a terminal elevator shall bear the following warning:
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“WARNING: If the charges accruing under this receipt have been unpaid for more than one year, the grain may be sold, in which case the holder is entitled to receive, on surrender of this receipt, only the money received for the grain less those charges and the costs of sale. AVERTISSEMENT : En cas de non-paiement, pendant plus d’un an, des droits exigibles aux termes d’un récépissé, le grain peut être vendu, le détenteur du récépissé n’ayant droit par la suite, sur remise de ce document, qu’au produit de la vente, déduction faite de ces droits et des frais exposés pour la vente.” 1998, c. 22, par. 25(d)(F)
366. Subsection 62(4) of the Act is replaced by the following:
Restriction
(4) No order shall be made under subsection (3) unless written notice of the dispute has been received by the Commission within 30 days after the delivery of the grain that is the subject of the dispute to a terminal elevator or process elevator. 367. Paragraph 65(3)(c) of the Act is replaced by the following: (c) deliver to the holder of the surrendered receipt an elevator receipt issued by the operator of a licensed terminal elevator for grain of the same kind, grade and quantity as the grain referred to in the surrendered receipt. 368. (1) The portion of subsection 67(1) of the Act before paragraph (b) is replaced by the following:
Discharge of grain from primary elevator
67. (1) Subject to section 86, the operator of a licensed primary elevator shall without delay discharge into a conveyance referred to in paragraph (b), to the extent of the conveyance’s capacity, the identical grain or grain of the same kind, grade and quantity that any elevator
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receipt issued by the operator requires if the holder of the receipt who is entitled to the delivery of grain referred to in that receipt (a) may lawfully deliver the grain to a terminal elevator or process elevator or to a consignee at a destination other than an elevator; and (2) The portion of subsection 67(1) of the English version of the Act after paragraph (a) is replaced by the following: (b) has caused to be placed at the elevator, to transport the grain, a railway car or other conveyance that is capable of receiving grain discharged out of the elevator and to which the grain may lawfully be delivered. R.S., c. 37 (4th Supp.), s. 21(1); 1994, c. 45, s. 18; 1998, c. 22, par. 25(f)(F)
369. Sections 68.1 to 71 of the Act are replaced by the following:
TERMINAL ELEVATORS Receipt of grain
69. (1) Subject to section 58 and any order made under subsection (2) or section 118, an operator of a licensed terminal elevator shall, at all reasonable hours on each day on which the elevator is open, without discrimination and in the order in which grain arrives, receive into the elevator all grain that is lawfully offered at the elevator, for which there is available storage accommodation of the type required by the person who offered the grain.
Orders respecting receipt of grain
(2) The Commission may, by order, on any conditions that it may specify, authorize or require the operator of a licensed terminal elevator to receive grain that is lawfully offered for storage or transfer at the elevator otherwise than as required by subsection (1).
Weighing on receipt of grain
69.1 (1) Subject to subsection (2), and unless exempted by regulation or by order of the Commission, an operator of a licensed terminal elevator shall weigh grain received into the elevator in a manner authorized by the Commission.
Weighing by third party
(2) Unless exempted by regulation or by order of the Commission, an operator shall cause the grain to be weighed by a third party
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authorized by the Commission and chosen by the operator, if the person who caused the grain to be delivered so requests. Weighing in manner authorized by Commission
(3) The third party shall weigh the grain in a manner authorized by the Commission.
Access
(4) The operator shall provide the third party with access to the operator’s premises to permit the third party to weigh the grain.
Failure to weigh
69.2 If an operator of a licensed terminal elevator does not comply with subsection 69.1(1) or (2), the person who caused the grain to be delivered may, for the purpose of settling any transaction between that person and the operator in relation to the grain, rely on any record or document that states the weight of that grain before he or she caused it to be delivered.
Inspection by operator
70. (1) Subject to subsection (2), and unless exempted by regulation or by order of the Commission, an operator of a licensed terminal elevator shall inspect the grain received into the elevator in a manner authorized by the Commission.
Inspection by third party
(2) Unless exempted by regulation or by order of the Commission, the operator shall cause the grain to be inspected by a third party authorized by the Commission and chosen by the operator, if the person who caused the grain to be delivered so requests.
Third party authorized
(3) The third party shall inspect the grain in a manner authorized by the Commission.
Access
(4) The operator shall provide the third party with access to the operator’s premises to permit the third party to inspect the grain.
Disagreement — application for reinspection
(5) If there is any disagreement following an inspection under this section between the operator and the person who caused the grain to be delivered as to the grain’s grade or the dockage, either of them may, in the prescribed manner and within the prescribed time, apply to the chief grain inspector for Canada for a reinspection of the grain. If an application is made, the operator shall forward all samples of grain taken as part of the inspection, or a prescribed portion of them, to the chief grain inspector for Canada within the prescribed time.
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Reinspection
(6) The chief grain inspector for Canada shall examine the samples of grain, or the portion of them, assign a grade to the grain and determine the dockage. The chief grain inspector for Canada shall provide the operator and the person who caused the grain to be delivered with a copy of his or her decision with respect to the grade and dockage.
Document revised if grade changed
(7) If the grade assigned to the grain is different from the grade previously assigned to it, the chief grain inspector for Canada shall require all inspection certificates, and all other documents specified by the Commission, relating to the grain to be revised accordingly.
Application to entire parcel of grain
(8) The decision of the chief grain inspector for Canada applies to the entire parcel of grain to which the samples relate.
Determination final
(9) The decision of the chief grain inspector for Canada is final and conclusive and not subject to appeal to or review by any court.
Delegation
(10) The chief grain inspector for Canada may delegate all or part of the duties and functions conferred on him or her under this section.
Failure to inspect
70.1 (1) If an operator of a licensed terminal elevator does not comply with subsection 70(1) or (2), the person who caused the grain to be delivered, may apply in writing to the Commission for an order referred to in subsection (4).
Samples
(2) The applicant shall sample the grain in the prescribed manner and include all prescribed samples with his or her application.
Period for making application
(3) The application shall be made to the Commission within 15 days after the day on which the grain is received in the elevator.
Commission’s order
(4) The Commission may, by order, (a) for the purpose of settling any transaction between the applicant and the operator in relation to the grain, declare the grain to be of the highest grade for grain of the kind and class that was delivered; or
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(b) require that the operator deliver, at his or her own cost, to the applicant grain that has the equivalent characteristics as the grain of the kind and class that was delivered and is of the highest grade for that grain in the same quantity as was delivered. Determination of kind and class
(5) The order must include the Commission’s determination, based on the samples provided with the application, of the kind and class of the grain delivered and its determination of the characteristics of the grain that the applicant requests and that the Commission considers necessary.
Copy of order
(6) A copy of the order shall be forwarded in accordance with any rules made under subsection 99(2) to each person affected by the order and to any other person that may be specified in those rules.
Inspection — required by regulation or order
70.2 (1) If required by regulation or by order of the Commission, an operator of a licensed terminal elevator shall cause grain received into the elevator to be weighed or inspected by a third party in the manner specified in the regulation or order or cause it to be officially weighed or officially inspected, or any combination of those weighings and inspections.
Third party
(2) The third party is authorized by the Commission and chosen by the operator.
Official weighing and inspecting before discharge
70.3 (1) Unless exempted by regulation or by order of the Commission, an operator of a licensed terminal elevator shall cause the grain in the elevator — other than grain that is destined for another licensed elevator — to be officially weighed and officially inspected immediately before or during its discharge from the elevator.
Weighing and inspecting before discharge
(2) Unless exempted by regulation or by order of the Commission, an operator of a licensed terminal elevator shall weigh and inspect, in the manner authorized by the Commission, grain in the elevator that is destined for another licensed elevator immediately before or during its discharge from the elevator.
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Weighing and inspecting by third party
(3) Unless exempted by regulation or by order of the Commission, the operator of the licensed terminal elevator discharging the grain shall cause it to be weighed or inspected, or both, by a third party authorized by the Commission and chosen by the operator if the operator of the licensed elevator destined to receive the grain so requests.
Third party authorized
(4) The third party shall weigh or inspect the grain, or do both, as the case may be, in a manner authorized by the Commission.
Access
(5) The operator of the licensed terminal elevator discharging the grain shall provide the third party with access to the operator’s premises to permit the third party to weigh or inspect the grain, or do both, as the case may be.
Accept or refuse to receive grain
70.4 (1) If an operator of a licensed terminal elevator discharging grain does not comply with subsection 70.3(2) or (3), the operator of the licensed elevator destined to receive the grain may refuse to receive the grain.
Grain received
(2) If the operator of the licensed elevator destined to receive the grain agrees to receive it, the operator shall weigh the grain, sample it in the prescribed manner and forward all samples to the Commission.
Decision
(3) The Commission shall examine the samples, assign a grade to the grain and determine the dockage. The Commission shall provide the operator of the licensed terminal elevator discharging the grain and the operator of the licensed elevator that agreed to receive that grain with a copy of its decision with respect to the grade and dockage.
Application to entire parcel of grain
(4) The Commission’s decision with respect to the grade and dockage applies to the entire parcel of grain to which the samples relate.
Period for retaining samples
70.5 An operator of a licensed terminal elevator shall retain for the prescribed period any sample of grain taken as part of an inspection under subsection 70(1) or (2) or section 70.2 or 70.3.
Dockage removed
70.6 Except as may be authorized or required by regulation or by order of the Commission, an operator of a licensed terminal elevator shall
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remove from the grain received into the elevator the dockage that is required to be removed by the inspection certificate. Elevator receipt
71. (1) On receipt of grain into a licensed terminal elevator, the operator of the elevator shall, if the grain has been weighed under subsection 69.1(1) or (2), or inspected under subsection 70(1) or (2) or weighed or inspected — officially or otherwise — under section 70.2, (a) immediately issue an elevator receipt for the grain and any screenings that he or she is required to report; and (b) on surrender of the bill of lading relating to the grain, together with evidence of the payment of the charges accrued on the grain before its receipt into the elevator, deliver the elevator receipt to or on the order of the holder of the bill of lading.
Receipt for grain containing excessive moisture or intermixed with other material
(2) Despite any provision of this Act relating to the delivery of grain of the same kind, grade and quantity as that referred to in an elevator receipt, if the operator of a licensed terminal elevator issues an elevator receipt for grain to which any grade would be assignable but for its excessive moisture or intermixture with another material removable by treatment, that operator, on the drying or treatment of the grain, as the case may be, shall recall the receipt, assign the grain a grade and issue a new elevator receipt for grain of that grade that is adjusted to the grain’s dried quantity or quantity remaining after the treatment.
Warning
(3) The elevator receipt issued for grain referred to in subsection (2) on the receipt of the grain into a licensed terminal elevator shall state that the receipt is subject to recall and adjustment.
Grain owned by licensee
(4) If the operator of a licensed terminal elevator becomes the owner of grain removed from screenings in that elevator, the operator may, with the Commission’s permission, issue an elevator receipt in his or her own name for the grain.
2005, c. 24, s. 2
370. Section 72 of the Act is replaced by the following:
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Specially binning grain restricted
72. The operator of a licensed terminal elevator shall not specially bin any grain except as may be authorized by regulation and in the prescribed manner.
1994, c. 45, s. 19
371. Section 73 of the Act is replaced by the following:
Priority of claims
73. Subject to subsection 77(3), the holder of an elevator receipt issued in respect of grain in a licensed terminal elevator is entitled, in priority to all other claims affecting the grain, to the grain referred to in the receipt or to grain in the elevator of the same kind, grade and quantity as the grain referred to in the receipt. 372. (1) The portion of subsection 74(1) of the Act before paragraph (a) is replaced by the following:
Discharge from elevator
74. (1) Subject to section 86, the operator of a licensed terminal elevator shall without delay discharge into a conveyance referred to in paragraph (b), to the extent of the conveyance’s capacity, the identical grain or grain of the same kind, grade and quantity that any elevator receipt issued by the operator requires if the holder of the receipt who may lawfully deliver grain referred to in that receipt to another elevator or to a consignee at a destination other than an elevator (2) The portion of subsection 74(1) of the English version of the Act after paragraph (b) is replaced by the following: (c) surrenders the elevator receipt and pays the charges accrued under this Act in respect of the grain referred to in the receipt. 373. The portion of section 75 of the Act before paragraph (a) is replaced by the following:
Limitation on receipt and discharge
75. No operator or manager of a licensed terminal elevator shall, except with the Commission’s written permission, 374. (1) The portion of subsection 76(1) of the Act before paragraph (a) is replaced by the following:
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Procedure if grain requires treatment or must be disposed of
76. (1) If any grain in a licensed terminal elevator is found to be infested or contaminated, or to have gone or to be likely to go out of condition or otherwise to require treatment,
2004, c. 25, s. 107(2)(E)
(2) Subsection 76(3) of the English version of the Act is replaced by the following:
Costs of treatment, etc.
(3) If, under a direction given under subsection (1), grain referred to in an elevator receipt indicating special binning issued by the operator of a licensed terminal elevator has been treated, shipped or otherwise disposed of, the costs incurred by the operator of the elevator in complying with the direction are recoverable from the persons having an interest or right in the grain in proportion to their respective interests or rights.
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(3) Subsection 76(4) of the Act is replaced by the following: Operator not relieved of statutory or contractual obligation
(4) Nothing in this section shall be construed as relieving the operator of a licensed terminal elevator from the performance of any obligation imposed on him or her under this Act or any contract under which any grain came into or remains in the operator’s possession. 375. (1) Subsection 77(1) of the Act is replaced by the following:
Compulsory removal of grain
77. (1) The operator of a licensed terminal elevator may, with the Commission’s written permission, on at least 30 days’ notice in writing, in a form and manner prescribed, to the last known holder of an elevator receipt issued by the operator, require the holder to take delivery from the elevator of the grain referred to in the receipt. (2) Subsection 77(2) of the English version of the Act is replaced by the following:
Sale of grain
(2) If the holder of an elevator receipt issued by the operator of a licensed terminal elevator fails to take delivery of the grain referred to in a notice given under subsection (1) within the period for taking delivery set out in it, whether or not the notice has been brought to his or her attention, the operator of the elevator may, on
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Warning
(4) Each elevator receipt issued by the operator of a licensed terminal elevator shall bear the warning set out in subsection 65(4).
R.S., c. 37 (4th Supp.), s. 23; 1994, c. 45, s. 21; 2011, c. 25, s. 26
376. The heading before section 79 and sections 79 and 80 of the Act are repealed.
R.S., c. 37 (4th Supp.), s. 25(1); 1994, c. 45, s. 23
377. Section 82.1 of the Act and the heading before it are repealed.
1998, c. 22, par. 25(h)(F)
378. Subsection 87(1) of the Act is replaced by the following:
Application for railway cars
87. (1) One or more producers of grain, but not more than the number that the Commission may designate by order, may apply in writing to the Commission, in the prescribed form, for a railway car to receive and carry grain to a terminal elevator or process elevator or to a consignee at a destination other than an elevator, if they have grain in sufficient quantity to fill a railway car and if it may be lawfully delivered to a railway company for carriage to those elevators or other consignee. 379. Subsection 88(1) of the Act is amended by striking out “and” after paragraph (a) and by adding the following after that paragraph: (a.1) take samples of the grain, grain products or screenings; and
1988, c. 65, s. 127; 1994, c. 45, s. 29
380. Subsection 90(1) of the Act is replaced by the following:
Seizure and report
90. (1) An inspector may seize any documents or records that he or she has reasonable grounds to believe contain or are evidence that an offence under this Act was committed — and, in any event, shall without delay report to
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the Commission the facts ascertained by him or her — if he or she has reasonable grounds to believe that (a) any offence under this Act was committed; (b) any grain, grain product or screenings in an elevator are infested or contaminated; (c) any equipment in an elevator is in such condition that grain, grain products or screenings cannot safely or accurately be weighed or handled in the elevator; or (d) an elevator is in any condition that causes danger to persons or loss or deterioration of grain, grain products or screenings stored in it.
381. Paragraph 91(1)(c) of the Act is repealed. 1994, c. 45, s. 30
382. (1) The portion of subsection 93(1) of the Act before paragraph (b) is replaced by the following:
Restriction of operations and suspension of licence
93. (1) If, on receiving the report of an inspector under section 90 or on making an investigation under section 91, the Commission has reasonable grounds to believe that a licensee has failed to comply with any condition of a licence or has committed an offence under this Act or that a condition referred to in paragraph 90(1)(b), (c) or (d) exists in a licensed elevator, the Commission may, by order, (a) require that any grain, grain product or screenings in the elevator be weighed and inspected, for the purpose of determining the amount in stock of the grain, grain product or screenings, as the case may be, in the elevator, by the licensee or a person authorized by the Commission and, to permit the weighing and inspection, prohibit, for any period not exceeding 30 days that is specified in the order, the receipt into or removal from the premises of the elevator, or both, of any grain, grain products or screenings; (2) The portion of subsection 93(1) of the French version of the Act after paragraph (a) is replaced by the following:
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Emploi et croi b) dans le cas de toute situation visée à l’un des alinéas 90(1)b) à d) : (i) exiger qu’il soit remédié à la situation selon les modalités qu’elle précise dans l’arrêté, (ii) exiger que le grain, les produits céréaliers ou les criblures se trouvant dans l’installation et mentionnés dans l’arrêté soient stockés, ou qu’il en soit disposé, de la manière qu’elle juge équitable, (iii) interdire, pour une période maximale de trente jours fixée par l’arrêté, tout usage particulier de l’installation ou de son équipement; c) suspendre, à son appréciation, qu’elle exerce ou non les pouvoirs que lui confèrent les alinéas a) et b), la licence en cause pour une période maximale de trente jours fixée par l’arrêté. 383. Subsection 95(1) of the Act is replaced by the following:
Revocation of licence
95. (1) The Commission may, by order, revoke a licence to operate an elevator or a licence to carry on business as a grain dealer, as the case may be, if (a) the licensee has failed or refused to comply with any requirement of an order, in relation to the operation of an elevator, made under subsection 93(1) or paragraph 94(3)(b); (b) the licensee or the manager of a licensed elevator is found guilty of an offence under this Act; (c) the licensee has failed to maintain their security as required by subsection 45.1(1); (d) the licensee has failed to obtain additional security as required by any order made under subsection 49(1); or (e) the licensee has failed to comply with any condition of a licence. 384. Section 97 of the Act is amended by adding “and” after paragraph (a), by striking out “and” at the end of paragraph (b) and by repealing paragraph (c).
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385. Subsection 111(2) of the Act is repealed. 1998, c. 22, par. 25(s)(F)
386. Sections 113 and 114 of the Act are repealed.
R.S., c. 37 (4th Supp.), s. 28(E)
387. Paragraph 115(d) of the Act is replaced by the following: (d) direct that any grade established under this Act be assigned only to grain being officially inspected on discharge from a terminal elevator; 388. (1) Paragraph 116(1)(i) of the Act is replaced by the following: (i) prescribing the procedure to be followed on appeals as to grades of grain;
1994, c. 45, s. 33(4); 2001, c. 4, s. 89(E)
(2) Paragraphs 116(1)(k) and (k.1) of the Act are replaced by the following: (k) respecting the security to be obtained, by way of bond, suretyship, insurance or otherwise, for the purposes of subsection 45.1(1); (k.1) specify the person or class of persons who may realize on or enforce security obtained by a licensee; (k.2) specify conditions related to realizing on or enforcing security obtained by a licensee; (k.3) exempt a licensee from the requirement to obtain security; 389. (1) Paragraph 118(a) of the Act is replaced by the following: (a) subject to any order made by the Governor in Council under section 115, governing the allocation of available railway cars to terminal elevators and among shipping points on any line of railway; (a.1) exempting a licensee from the requirement to obtain security; (a.2) requiring a licensee to obtain, within any period that the Commission considers reasonable, any additional security for the purposes of subsection 49(1) that it considers sufficient;
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(2) Section 118 of the Act is amended by adding the following after paragraph (b): (b.1) requiring an operator of a licensed terminal elevator to cause grain to be weighed or inspected by a third party authorized by the Commission and chosen by the operator or cause it to be officially weighed or officially inspected, or any combination of those, and specifying the manner of weighing or inspecting; (3) Paragraph 118(f) of the Act is replaced by the following: (f) providing for the equitable apportionment, among shippers, of elevator storage space in licensed terminal elevators; Related Amendments 1998, c. 22
An Act to amend the Canada Grain Act and the Agriculture and Agri-food Administrative Monetary Penalties Act and to repeal the Grain Futures Act 390. (1) Subsection 1(1) of An Act to amend the Canada Grain Act and the Agriculture and Agri-Food Administrative Monetary Penalties Act and to repeal the Grain Futures Act, chapter 22 of the Statutes of Canada, 1998, is repealed. (2) Subsection 1(3) of the Act is replaced by the following: (3) Section 2 of the Act is amended by adding the following in alphabetical order:
“penalty” « sanction »
“violation” « violation »
“penalty” means an administrative monetary penalty imposed under the Agriculture and Agri-Food Administrative Monetary Penalties Act for a violation; “violation” means any contravention of this Act or the regulations or any order that may be proceeded with in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Act; 391. Sections 2 to 5 of the Act are replaced by the following:
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1994, c. 45, s. 10
5. Subsection 46(3) of the Act is replaced by the following:
Refusal of licence — convictions
(3) The Commission may refuse to issue a licence to any applicant who, within the 12 months immediately before the application for the licence, has been convicted of an offence under this Act or has been found to have committed a violation if the Commission is satisfied that it would not be in the public interest to issue a licence to the applicant.
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392. Subsections 6(1) and (2) of the Act are repealed. 393. Section 7 of the Act is repealed. 394. Section 10 of the Act is repealed. 395. Section 15 of the Act is replaced by the following: 15. The Act is amended by adding the following after section 68: Interpretation
68.1 For greater certainty, in sections 60 to 68, “licensed primary elevator” means a primary elevator operating under a primary elevator licence referred to in paragraph 42(a). 396. Section 16 of the Act is repealed. 397. Section 18 of the Act is replaced by the following:
1988, c. 65, s. 127; 1994, c. 45, s. 29
18. Section 90 of the Act is replaced by the following:
Seizure and report
90. (1) An inspector may seize any documents or records that he or she has reasonable grounds to believe contain or are evidence that an offence under this Act or a violation was committed — and, in any event, shall without delay report to the Commission the facts ascertained by him or her — if he or she has reasonable grounds to believe that (a) any offence under this Act or any violation was committed; (b) any grain, grain product or screenings in an elevator are infested or contaminated;
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Detention
(2) Documents or records seized under subsection (1) shall not be detained after the expiration of 30 days from the seizure unless before that time proceedings in respect of an offence under this Act or a violation, in respect of which the documents or records contain or are evidence, have been instituted, in which event the documents or records may be detained until the proceedings are finally concluded. 398. Section 19 of the Act is replaced by the following:
1994, c. 45, s. 30
19. Subsection 93(1) of the Act is replaced by the following:
Restriction of operations and suspension of licence
93. (1) If, on receiving the report of an inspector under section 90 or on making an investigation under section 91, the Commission has reasonable grounds to believe that a licensee has failed to comply with any condition of a licence or has committed an offence under this Act or committed a violation or that a condition referred to in paragraph 90(1)(b), (c) or (d) exists in a licensed elevator, the Commission may, by order, (a) require that any grain, grain product or screenings in the elevator be weighed and inspected, for the purpose of determining the amount in stock of the grain, grain product or screenings, as the case may be, in the elevator, by the licensee or a person authorized by the Commission and, to permit the weighing and inspection, prohibit, for any period not exceeding 30 days that is specified in the order, the receipt into or removal from the premises of the elevator, or both, of any grain, grain products or screenings; (b) in the case of a condition referred to in paragraph 90(1)(b), (c) or (d),
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(i) require that the condition be remedied in the manner and within the time that is specified in the order, (ii) require that the grain, grain products or screenings in the elevator that are specified in the order be stored or disposed of in any manner that the Commission considers equitable, and (iii) prohibit, for any period not exceeding 30 days that is specified in the order, any particular use of the elevator or its equipment; and (c) whether or not the Commission exercises any of the powers conferred by paragraphs (a) and (b), in its discretion, suspend the licence to operate the elevator or the licence to carry on business as a grain dealer for any period not exceeding 30 days that is specified in the order. 399. Section 21 of the Act is replaced by the following: 21. Subsection 95(1) of the Act is replaced by the following: Revocation of licence
95. (1) The Commission may, by order, revoke a licence to operate an elevator or to carry on business as a grain dealer, as the case may be, if (a) the licensee has failed or refused to comply with any requirement of an order made under subsection 93(1), in relation to the operation of the elevator or any order made under paragraph 94(3)(b); (b) the licensee or the manager of a licensed elevator is found guilty of an offence under this Act or has committed a violation; (c) the licensee has failed to maintain their security as required by subsection 45.1(1); (d) the licensee has failed to obtain additional security as required by any order made under subsection 49(1); or (e) the licensee has failed to comply with any condition of a licence. 400. Section 22 of the English version of the Act is replaced by the following:
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Emploi et croi 22. Paragraph 97(a) of the Act is replaced by the following: (a) for the payment, by any complainant, licensee or other person to whom the jurisdiction of the Commission extends, of compensation to any person for loss or damage sustained by that person resulting from a violation or a contravention of or failure to comply with any provision of this Act or any regulation, order or licence made or issued under this Act; and 401. Section 23 of the Act is replaced by the following:
R.S., c. 37 (4th Supp.), s. 27; 1988, c. 65, s. 131
23. Sections 107 to 109 of the Act are replaced by the following:
Offence and punishment
107. Every person who contravenes any provision of this Act or of the regulations or any order of the Commission, other than an order for the payment of any money or apportionment of any loss, is guilty of (a) an offence punishable on summary conviction and liable to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both; or (b) an indictable offence and liable to a fine not exceeding $250,000 or to imprisonment for a term not exceeding two years, or to both.
Offence or violation by manager, employee or agent
108. (1) Any manager of an elevator or any other employee or agent or mandatary of the operator or licensee of an elevator, who does any act or thing directed to the commission of an offence under this Act or a violation by the operator or licensee is a party to and guilty of the offence or violation, as the case may be.
Offence or violation by employee or agent
(2) Any employee or agent or mandatary of a licensed grain dealer who does any act or thing directed to the commission of an offence under this Act or a violation by the dealer is a party to and guilty of the offence or violation, as the case may be.
Documentary evidence
109. In any prosecution for an offence under this Act or a violation, a document purporting to have been signed by a commissioner or any
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officer or employee of the Commission in the course of the performance of his or her duties is evidence of the facts stated in the document without proof of the signature or of the official character of the person appearing to have signed the document. 402. Subsections 24(2) and (3) of the Act are repealed. 2001, c. 4
Federal Law–Civil Law Harmonization Act, No. 1 403. Section 174 of the Federal Law–Civil Law Harmonization Act, No. 1 is repealed.
2004, c. 25
Federal Law–Civil Law Harmonization Act, No. 2 404. Section 207 of the Federal Law–Civil Law Harmonization Act, No. 2 is repealed. Transitional Provisions
Transfer elevators
405. As of the day on which subsection 351(1) comes into force, any reference to a transfer elevator is to be read as a reference to a terminal elevator in any order, licence, elevator receipt or other document made or issued under the Canada Grain Act.
Appeals
406. Despite sections 358 and 359, sections 39 to 41 of the Canada Grain Act, as they read immediately before the day on which section 358 comes into force, continue to apply in relation to official inspections made under that Act before that day, and the mandate of the members of the grain appeal tribunals is extended for that purpose and the members continue to receive the allowance and expenses to which they are entitled.
New security
407. Every licensee who has given security under the Canada Grain Act before the coming into force of section 362, shall obtain security as required by subsection 45.1(1), as enacted by that section, within 90 days after the day on which section 362 comes into force.
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Security
408. Security given under the Canada Grain Act before the day on which section 362 comes into force may be retained for the duration of its validity but in no case for no more than 90 days from the day on which that section comes into force and used for any purpose for which it was given.
No transfer from holder to holder
409. An elevator receipt issued by the operator of a licensed transfer elevator in the form prescribed under the Canada Grain Act that has clearly appearing on the face of it the words “Not Negotiable” before the day on which section 385 comes into force is not to be transferred from holder to holder by the endorsement and delivery of the document to the endorsee. Coming into Force
Order in council
410. The provisions of this Division, other than sections 390 to 409, come into force on a day or days to be fixed by the Governor in Council. DIVISION 20
2005, c. 3
INTERNATIONAL INTERESTS IN MOBILE EQUIPMENT (AIRCRAFT EQUIPMENT) ACT
Amendments to the Act 411. Subsection 4(2) of the International Interests in Mobile Equipment (aircraft equipment) Act is replaced by the following:
Exception
(2) Subsection (1) does not apply in respect of Articles 47 to 62 of the Convention and Articles XXVI to XXXVII of the Aircraft Protocol. 412. Section 6 of the Act is replaced by the following:
Inconsistent laws
6. (1) Subject to subsection (2), a provision of this Act or of the regulations, or a provision of the Convention or Aircraft Protocol given
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force of law by section 4, that is inconsistent with any other law prevails over the other law to the extent of the inconsistency. Exception
(2) A provision referred to in any of the following paragraphs (a) to (f) that is inconsistent with a provision of this Act or of the regulations, or with a provision of the Convention or Aircraft Protocol given force of law by section 4, prevails over the provision of this Act, the regulations, the Convention or the Aircraft Protocol to the extent of the inconsistency: (a) a provision of the Controlled Drugs and Substances Act; (b) a provision of Part II.1 or XII.2 or any of sections 487 to 490.01 and 490.1 to 490.9 of the Criminal Code; (c) a provision of the Export and Import Permits Act; (d) a provision of the Special Economic Measures Act; (e) a provision of the United Nations Act; (f) a provision of any regulations made for the purposes of a provision referred to in any of paragraphs (a) to (e). 413. The Act is amended by adding the following after section 9: TRANSITIONAL PROVISION
Article XI of Aircraft Protocol
9.1 Article XI of the Aircraft Protocol does not apply to an insolvency-related event that occurs before the day on which subsection 4(1) comes into force. Consequential Amendments
R.S., c. B-3
Bankruptcy and Insolvency Act
2005, c. 3, s. 11
414. The definition “aircraft objects” in section 2 of the Bankruptcy and Insolvency Act is repealed.
2005, c. 47, s. 43(2)
415. Paragraph 65.1(4)(c) of the Act is repealed.
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2005, c. 3, s. 12, c. 47, ss. 60(1) and (2)(E)
416. Paragraph 69(2)(d) of the Act is repealed.
2005, c. 3, s. 13, c. 47, ss. 61(1) and (2)(E)
417. Paragraph 69.1(2)(d) of the Act is repealed.
2005, c. 47, s. 62(2)
418. (1) The portion of subsection 69.3(2) of the Act before paragraph (a) is replaced by the following:
Secured creditors
(2) Subject to sections 79 and 127 to 135 and subsection 248(1), the bankruptcy of a debtor does not prevent a secured creditor from realizing or otherwise dealing with his or her security in the same manner as he or she would have been entitled to realize or deal with it if this section had not been passed, unless the court otherwise orders, but in so ordering the court shall not postpone the right of the secured creditor to realize or otherwise deal with his or her security, except as follows:
2005, c. 47, s. 62(3)
(2) Subsection 69.3(3) of the Act is repealed.
R.S., c. C-36
Companies’ Creditors Arrangement Act
2005, c. 3, s. 15
2005, c. 47, s. 128 2005, c. 47, s. 131; 2007, c. 36, s. 77
419. The definition “aircraft objects” in subsection 2(1) of the Companies’ Creditors Arrangement Act is repealed. 420. Section 11.07 of the Act is repealed. 421. Paragraph 34(4)(c) of the Act is repealed.
R.S., c. W-11; 1996, c. 6, s. 134
Winding-up and Restructuring Act
2005, c. 3, s. 17
422. The definition “aircraft objects” in subsection 2(1) of the Winding-up and Restructuring Act is repealed.
2005, c. 3, s. 18
423. Section 22.2 of the Act is repealed.
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Order in council
424. Sections 414 to 423 come into force on a day to be fixed by order of the Governor in Council. DIVISION 21
2012, c. 19, s. 52
CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012 425. Subparagraph 5(1)(c)(i) of the French version of the Canadian Environmental Assessment Act, 2012 is replaced by the following: (i) en matière sanitaire et socio-économique, 426. The portion of section 7 of the English version of the Act before paragraph (a) is replaced by the following:
Federal authority
7. A federal authority must not exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a designated project to be carried out in whole or in part unless 427. Paragraph 14(5)(b) of the English version of the Act is replaced by the following: (b) a federal authority has exercised a power or performed a duty or function conferred on it under any Act of Parliament other than this Act that could permit the physical activity to be carried out, in whole or in part. 428. The portion of subsection 53(4) of the Act before paragraph (a) is replaced by the following:
Mitigation measures and follow-up program
(4) The conditions referred to in subsections (1) and (2) must include 429. Sections 63 and 64 of the English version of the Act are replaced by the following:
Termination by responsible authority
63. The responsible authority referred to in any of paragraphs 15(a) to (c) may terminate the environmental assessment of a designated project for which it is the responsible authority if it decides not to exercise any power or
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Emploi et croi perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit the designated project to be carried out in whole or in part and, if the responsible authority is referred to in paragraph 15(c), the environmental assessment of a designated project was not referred to a review panel under section 38.
Termination by Minister
64. The Minister may terminate the environmental assessment by a review panel of a designated project for which the responsible authority is referred to in paragraph 15(c) if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit the designated project to be carried out in whole or in part. 430. The definition “project” in section 66 of the Act is replaced by the following:
“project” « projet »
“project” means a physical activity that is carried out on federal lands or outside Canada in relation to a physical work and is not a designated project. 431. The portion of section 67 of the English version of the Act before paragraph (a) is replaced by the following:
Project carried out on federal lands
67. An authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a project to be carried out, in whole or in part, on federal lands, unless 432. Section 128 of the Act is amended by adding the following after subsection (1):
Exception
(1.1) Paragraph (1)(b) does not apply if the carrying out of the project in whole or in part requires that a federal authority exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act and that power, duty or function was a power, duty or function referred to in subsection 5(1) of the former Act.
Cessation of effect
(1.2) Subsection (1.1) ceases to have effect on January 1, 2014.
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CANADA EMPLOYMENT INSURANCE FINANCING BOARD 1996, c. 23
Employment Insurance Act
2012, c. 19, s. 603(1)
433. (1) Paragraphs 4(2)(a) and (b) of the Employment Insurance Act are replaced by the following: (a) the average for the 12-month period ending on March 31 in the preceding year of the Average Weekly Earnings for each month in that period by (b) the ratio that the average for the 12month period ending on March 31 in that preceding year of the Average Weekly Earnings for each month in that 12-month period bears to the average for the 12-month period ending 12 months prior to March 31 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to March 31 of that preceding year. (2) Paragraphs 4(2)(a) and (b) of the Act are replaced by the following: (a) the average for the 12-month period ending on April 30 in the preceding year of the Average Weekly Earnings for each month in that period by (b) the ratio that the average for the 12month period ending on April 30 in that preceding year of the Average Weekly Earnings for each month in that 12-month period bears to the average for the 12-month period ending 12 months prior to April 30 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to April 30 of that preceding year.
2012, c. 19, s. 603(2)
(3) Subsection 4(3) of the Act is replaced by the following:
2011-2012 Subsequent years
Emploi et croi (3) For years subsequent to the year in which the maximum yearly insurable earnings exceeds $39,000, before rounding down under subsection (4), the maximum yearly insurable earnings is the maximum yearly insurable earnings for the preceding year, before rounding down under that subsection, multiplied by the ratio that the average for the 12-month period ending on March 31 in that preceding year of the Average Weekly Earnings for each month in that 12month period bears to the average for the 12month period ending 12 months prior to March 31 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to March 31 of that preceding year. (4) Subsection 4(3) of the Act is replaced by the following:
Subsequent years
(3) For years subsequent to the year in which the maximum yearly insurable earnings exceeds $39,000, before rounding down under subsection (4), the maximum yearly insurable earnings is the maximum yearly insurable earnings for the preceding year, before rounding down under that subsection, multiplied by the ratio that the average for the 12-month period ending on April 30 in that preceding year of the Average Weekly Earnings for each month in that 12month period bears to the average for the 12month period ending 12 months prior to April 30 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to April 30 of that preceding year.
2008, c. 28, s. 125
434. (1) Section 65.21 of the Act is replaced by the following:
Definition of “actuary”
65.21 In this Part, “actuary” means the Fellow of the Canadian Institute of Actuaries whose services are engaged by the Commission under subsection 28(4) of the Department of Human Resources and Skills Development Act.
(2) Section 65.21 of the Act is replaced by the following:
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Definition of “Board”
65.21 In this Part, “Board” means the Canada Employment Insurance Financing Board established by subsection 3(1) of the Canada Employment Insurance Financing Board Act.
2012, c. 19, s. 609(1)
435. (1) Subsection 66(1) of the Act is replaced by the following:
Annual premium rate setting
66. (1) Subject to subsection (7), the Governor in Council shall, on the joint recommendation of the Minister and the Minister of Finance, set the premium rate for each year in order to generate just enough premium revenue during that year to ensure that at the end of that year the total of the amounts credited to the Employment Insurance Operating Account after December 31, 2008 is equal to the total of the amounts charged to that Account after that date.
2008, c. 28, s. 127; 2010, c. 12, s. 2204(1)
(2) The portion of subsection 66(2) of the Act before paragraph (a) is replaced by the following:
Factors
(2) The Governor in Council shall set the premium rate based on
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(3) The portion of subsection 66(2) of the Act before paragraph (a) is replaced by the following: Factors
(2) Subject to any regulations made under subsections 66.1(2) and 66.2(2), the Board shall set the premium rate based on
2012, c. 19, s. 609(3)
(4) Paragraph 66(2)(b) of the Act is repealed. (5) Subsection 66(2) of the Act is amended by adding the following after paragraph (a): (b) the amount by which the Board’s financial assets exceed its financial liabilities;
2008, c. 28, s. 127; 2010, c. 12, s. 2204(1)
(6) Paragraph 66(2)(f) of the English version of the Act is replaced by the following: (f) any other information that the Governor in Council considers relevant.
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Emploi et croi (7) Paragraph 66(2)(f) of the English version of the Act is replaced by the following: (f) any other information that the Board considers relevant.
2012, c. 19, s. 609(7)
(8) Subsection 66(9) of the Act is replaced by the following:
Time limit
(9) On or before September 14 in a year, the Governor in Council shall set the premium rate for the following year. (9) Subsection 66(9) of the Act is replaced by the following:
Time limit
(9) On or before September 14 in a year, the Board shall set the premium rate for the following year.
2012, c. 19, s. 610(1)
436. (1) The portion of subsection 66.1(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.1 (1) The Minister shall, on or before June 22 in a year, provide the actuary with the following information: (2) The portion of subsection 66.1(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.1 (1) The Minister shall, on or before July 31 in a year, provide the Board with the following information:
2008, c. 28, s. 127; 2010, c. 12, s. 2204(3)
(3) Paragraph 66.1(1)(b) of the Act is replaced by the following: (b) the forecast costs to be paid under paragraphs 77(1)(d), (f) and (g) during the following year, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a); (4) Paragraph 66.1(1)(b) of the Act is replaced by the following: (b) the forecast costs to be paid under paragraphs 77(1)(d) and (g) during the following year, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a);
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2008, c. 28, s. 127; 2010, c. 12, s. 2204(3)
(5) Subsection 66.1(1) of the Act is amended by adding “and” at the end of paragraph (b), by striking out “and” at the end of paragraph (c) and by repealing paragraph (d).
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(6) Subsection 66.1(1) of the Act is amended by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c): (d) any prescribed information. 2008, c. 28, s. 127; 2010, c. 12, s. 2204(4)
(7) Subsection 66.1(2) of the Act is replaced by the following:
Updated information
(2) In addition to the information provided under paragraph (1)(c), the Minister may, on or before July 12 in a year, provide the actuary with an update of the information referred to in that paragraph. (8) Subsection 66.1(2) of the Act is replaced by the following:
Regulations
(2) On the recommendation of the Minister, the Governor in Council may make regulations (a) prescribing information referred to in paragraph (1)(d); and (b) specifying which of the information referred to in subsection (1) is binding on the Board.
2012, c. 19, s. 611(1)
437. (1) The portion of subsection 66.2(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.2 (1) The Minister of Finance shall, on or before June 22 in a year, provide the actuary with the following information: (2) The portion of subsection 66.2(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.2 (1) The Minister of Finance shall, on or before July 31 in a year, provide the Board with the following information:
2008, c. 28, s. 127; 2010, c. 12, s. 2204(5)
(3) Subsection 66.2(1) of the Act is amended by adding “and” at the end of paragraph (a) and by replacing paragraphs (b) to (d) with the following:
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(b) the amounts forecast under subparagraphs 77.1(a)(i) and (ii) and the total estimated under subparagraph 77.1(a)(iii). (4) Paragraph 66.2(1)(b) of the Act is replaced by the following: (b) the amounts forecast under subparagraphs 77.1(1)(a)(i) and (ii) and the total estimated under subparagraph 77.1(1)(a)(iii); (c) the amount of any payment to be made under subsection 77.1(2) or (4) during the year; and (d) any prescribed information. 2008, c. 28, s. 127; 2010, c. 12, s. 2204(6)
(5) Subsection 66.2(2) of the Act is replaced by the following:
Updated information
(2) In addition to the information provided under paragraph (1)(b), the Minister of Finance may, on or before July 12 in a year, provide the actuary with an update of the information referred to in that paragraph.
Information provided to Governor in Council
(3) When a joint recommendation is made under subsection 66(1) in a year, the Minister of Finance shall provide the Governor in Council with the information that was provided to the actuary under subsections (1) and (2). (6) Subsections 66.2(2) and (3) of the Act are replaced by the following:
Regulations
(2) On the recommendation of the Minister of Finance, the Governor in Council may make regulations (a) prescribing information referred to in paragraph (1)(d); and (b) specifying which of the information referred to in subsection (1) is binding on the Board.
2005, c. 30, s. 126; 2008, c. 28, s. 127; 2012, c. 19, s. 612
438. (1) Sections 66.3 to 66.6 of the Act are replaced by the following:
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Actuary’s report
66.3 The actuary shall prepare actuarial forecasts and estimates for the purposes of sections 4, 66 and 69 and shall, on or before July 22 in a year, provide the Commission with a report that sets out
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(a) the forecast premium rate for the following year and a detailed analysis in support of the forecast; (b) the calculations performed for the purposes of sections 4 and 69; (c) the information provided under section 66.1; and (d) the source of the data, the actuarial and economic assumptions and the actuarial methodology used. Report and summary
66.31 (1) The Commission shall, on or before July 31 in a year, provide the Minister and the Minister of Finance with the report referred to in section 66.3 and a summary of that report.
Information provided to Governor in Council
(2) When a joint recommendation is made under subsection 66(1) in a year, the Minister shall provide the Governor in Council with the report and its summary.
Tabling in Parliament
(3) After a premium rate is set under section 66, the Minister shall cause the report and its summary to be laid before each House of Parliament on any of the next 10 days during which that House is sitting.
Rounding percentage rates
66.4 If the calculation of a premium rate under section 66 results in a rate that includes a fraction of one per cent, the resulting percentage is to be rounded to the nearest one hundredth of one per cent or, if the resulting percentage is equidistant from two one-hundredths of one percent, to the higher of them.
Statutory Instruments Act
66.5 The Statutory Instruments Act does not apply in respect of a premium rate set under section 66 or the premiums determined under sections 67 and 68. However, the premium rates must, as soon as possible, be published by the Minister in Part I of the Canada Gazette.
2011-2012 User Fees Act
Emploi et croi 66.6 For greater certainty, the User Fees Act does not apply in respect of the premium rate set under section 66 or the premiums determined under sections 67 and 68. (2) Sections 66.3 to 66.6 of the Act are replaced by the following:
Governor in Council
66.3 (1) On the joint recommendation of the Minister and the Minister of Finance, the Governor in Council may, on or before September 30 in a year, (a) if the Governor in Council considers it to be in the public interest, substitute a premium rate for the following year that is different from the one set by the Board under section 66; or (b) if the Board has not set a premium rate under that section by September 14 in the year, set one for the following year.
Non-application of subsection 66(7)
(2) Subsection 66(7) does not apply to the setting of the premium rate under subsection (1).
Rounding percentage rates
66.4 If the calculation of a premium rate under section 66 or 66.3 results in a rate that includes a fraction of one per cent, the resulting percentage is to be rounded to the nearest one hundredth of one per cent or, if the resulting percentage is equidistant from two one-hundredths of one percent, to the higher of them.
Statutory Instruments Act
66.5 The Statutory Instruments Act does not apply in respect of a premium rate set under section 66 or 66.3 or the premiums determined under sections 67 and 68. However, the premium rates must, as soon as possible, be published by the Board in Part I of the Canada Gazette.
User Fees Act
66.6 For greater certainty, the User Fees Act does not apply in respect of the premium rate set under section 66 or 66.3 or the premiums determined under sections 67 and 68.
2008, c. 28, s. 129
439. (1) Subsection 77(1) of the Act is amended by adding “and” at the end of paragraph (d) and by repealing paragraphs (e) and (f).
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(2) Subsection 77(1) of the Act is amended by adding the following after paragraph (d.1): (e) the costs to the Board of administering the Canada Employment Insurance Financing Board Act; (3) Subsection 77(1) of the Act is amended by striking out “and” at the end of paragraph (d.1) and by adding the following in alphabetical order: (f) the costs to Her Majesty in right of Canada of administering the Canada Employment Insurance Financing Board Act; and 2012, c. 19, s. 614(1)
Forecasts and estimates
440. (1) The portion of subsection 77.1(1) of the Act before paragraph (a) is replaced by the following: 77.1 On or before June 22 in a year, (2) The portion of section 77.1 of the Act before paragraph (a) is replaced by the following:
Forecasts and estimates 2008, c. 28, s. 130; 2010, c. 12, s. 2205; 2012, c. 19, ss. 614(2) to (4)
77.1 (1) On or before July 31 in a year, (3) Subsections 77.1(2) to (6) of the Act are repealed.
(4) Section 77.1 of the Act is amended by adding the following after subsection (1): Payment to Board
(2) A payment in the amount determined under subsection (3) is to be made on or before August 31 in a year to the Board out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, and charged to the Employment Insurance Operating Account if (A + C) > (B + D) where A is the amount forecast under subparagraph (1)(a)(i); B is the amount forecast under subparagraph (1)(a)(ii);
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C is the total estimated under subparagraph (1)(a)(iii); and D is the total estimated under paragraph (1)(b). Amount of payment to Board
(3) For the purpose of subsection (2), the amount of the payment is an amount equal to the amount calculated in accordance with the following formula: (A + C) – (B + D) where A is the amount forecast under subparagraph (1)(a)(i); B is the amount forecast under subparagraph (1)(a)(ii); C is the total estimated under subparagraph (1)(a)(iii); and D is the total estimated under paragraph (1)(b).
Payment by Board
(4) A payment in the amount determined under subsection (5) is to be made on or before August 31 in a year, or at any later date that the Minister of Finance may specify, by the Board to the Consolidated Revenue Fund and credited to the Employment Insurance Operating Account if (A + C) < (B + D) where A is the amount forecast under subparagraph (1)(a)(i); B is the amount forecast under subparagraph (1)(a)(ii); C is the total estimated under subparagraph (1)(a)(iii); and D is the total estimated under paragraph (1)(b).
Amount of payment by Board
(5) For the purpose of subsection (4), the amount of the payment is an amount equal to the lesser of the amount of the Board’s financial assets less its financial liabilities and the amount calculated in accordance with the following formula: (B + D) – (A + C) where
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A is the amount forecast under subparagraph (1)(a)(i); B is the amount forecast under subparagraph (1)(a)(ii); C is the total estimated under subparagraph (1)(a)(iii); and D is the total estimated under paragraph (1)(b). Terms and conditions
(6) Payments under this section must be made in the manner and on the terms and conditions that the Minister of Finance may establish after consulting with the Minister and the Board.
2005, c. 34
Department of Human Resources and Skills Development Act
2008, c. 28, s. 132(2)
441. (1) Subsection 28(4) of the Department of Human Resources and Skills Development Act is replaced by the following:
Actuary — Employment Insurance Act
(4) The Commission shall engage the services of a Fellow of the Canadian Institute of Actuaries who is an employee of the Office of the Superintendent of Financial Institutions to perform the duties under section 66.3 of the Employment Insurance Act. (2) Subsection 28(4) of the Act is replaced by the following:
Calculations
(4) The Commission may request the Canada Employment Insurance Financing Board established under subsection 3(1) of the Canada Employment Insurance Financing Board Act to perform calculations for the purposes of sections 4 and 69 of the Employment Insurance Act in accordance with an agreement between the Commission and that Board.
2008, c. 28, s. 121
Canada Employment Insurance Financing Board Act Amendments to the Act 442. (1) The definition “Board” in section 2 of the Canada Employment Insurance Financing Board Act is replaced by the following:
2011-2012 “Board” « Office »
Emploi et croi “Board” means the Canada Employment Insurance Financing Board established by subsection 3(1) as that subsection read immediately before it was repealed. (2) The definition “Board” in section 2 of the Act is replaced by the following:
“Board” « Office »
“Board” means the Canada Employment Insurance Financing Board established by subsection 3(1). 443. (1) Subsection 3(1) of the Act is repealed. (2) Section 3 of the Act is amended by adding the following before subsection (2):
Board established
3. (1) There is established a corporation to be known as the Canada Employment Insurance Financing Board. 444. Subsection 10(5) of the Act is replaced by the following:
Remuneration of chairperson
(5) The Minister shall fix and pay the remuneration and expenses of the chairperson of the nominating committee. 445. (1) The Act is amended by adding the following after section 36: CLOSING OUT OF AFFAIRS
Disposal of assets
37. (1) The Board is authorized to sell or otherwise dispose of all or substantially all of its assets and do everything necessary for or incidental to closing out its affairs.
Minister’s power
(2) The Minister may require the Board to do anything that in his or her opinion is necessary to sell or otherwise dispose of all or substantially all of its assets, satisfy its debts and liabilities, manage its expenses or otherwise close out its affairs.
Compliance
(3) The Board must do what the Minister requires under subsection (2).
Transfer of records
38. The Board must transfer to the Department of Human Resources and Skills Development the following items, including any electronic versions of them:
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(a) the Board’s books of account and other financial records, as well as any information that the Board collected in order to produce them; (b) copies of the Board’s by-laws and its investment policies, standards and procedures; (c) the spreadsheets and formulas of the forecasting models for the premium rate referred to in section 66 of the Employment Insurance Act; and (d) anything else that the Minister requires. Final reports
39. The Board must submit to the Minister any final reports required by him or her in the form and at the times that he or she specifies. (2) The heading before section 37 and sections 37 to 39 of the Act are repealed. Suspension
Suspension — sections 27, 28 and 30 to 34
446. The operation of sections 27, 28 and 30 to 34 of the Canada Employment Insurance Financing Board Act is suspended.
Suspension — sections 1 and 2, subsections 3(2) to (7) and sections 4 to 26, 29, 35 and 36
447. The operation of sections 1 and 2, subsections 3(2) to (7) and sections 4 to 26, 29, 35 and 36 of the Canada Employment Insurance Financing Board Act is suspended.
End of suspension
448. The suspension of the provisions of the Canada Employment Insurance Financing Board Act ends on a day or days to be fixed by order of the Governor in Council. Transitional Provision
Subsection 10(6)
449. When the Governor in Council makes an order under section 448 that ends the suspension of the operation of subsection 10(6) of the Canada Employment Insurance Financing Board Act, the nominating committee does not, for the purposes of that subsection, have to consult the board of directors until the first seven directors have been appointed by the Governor in Council.
Emploi et croi
2011-2012 2012, c. 19
Jobs, Growth and Long-term Prosperity Act 450. Subsection 610(2) of the Jobs, Growth and Long-term Prosperity Act is amended by replacing the paragraph (b) that it enacts with the following: (b) the forecast costs to be paid under paragraphs 77(1)(d), (d.1), (f) and (g) during each of the following seven years, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a); 451. Subsection 619(3) of the Act is replaced by the following:
Order in council
(3) Subsections 609(2) and (6), 610(2) and 611(2) come into force on a day to be fixed by order of the Governor in Council. Transitional Provisions
Definitions
“Board” « Office »
“Minister” « ministre »
452. The following definitions apply in sections 453 to 460. “Board” has the same meaning as in section 2 of the Canada Employment Insurance Financing Board Act. “Minister” has the same meaning as in section 2 of the Canada Employment Insurance Financing Board Act.
Appointments terminated
453. (1) Members of the Board’s board of directors appointed under subsection 9(1) or (5) of the Canada Employment Insurance Financing Board Act cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Board’s board of directors has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
350 Dissolution
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454. The Board is dissolved.
References
455. Every reference to the Board in a deed, contract, agreement or other document executed by the Board in its own name before the day on which section 454 comes into force is to be read as a reference to Her Majesty in right of Canada as represented by the Minister, unless the context requires otherwise.
Surplus
456. Any surplus of financial assets that remains after the satisfaction of the debts and liabilities of the Board on the day on which section 454 comes into force is to be paid into the Consolidated Revenue Fund and credited to the Employment Insurance Operating Account established under section 70.2 of the Employment Insurance Act.
Unsatisfied debts and liabilities
457. Any debts and liabilities of the Board that remain unsatisfied on the day on which section 454 comes into force become the debts and liabilities of Her Majesty in right of Canada.
Commencement of legal proceedings
458. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Board before the day on which section 454 comes into force may be brought against Her Majesty in right of Canada in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the Board.
Continuation of legal proceedings
459. Any action, suit or other legal proceeding to which the Board is a party that is pending in any court immediately before the day on which section 454 comes into force may be continued by or against Her Majesty in right of Canada in like manner and to the same extent as it could have been continued by or against the Board.
Auditor
460. After the closing out of the Board’s affairs, its accounts and financial transactions are to be audited by the Auditor General of Canada, and a report of the audit is to be made to the Minister.
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Emploi et croi
R.S., c. F-11
Consequential Amendments to the Financial Administration Act
2008, c. 28, s. 134
461. (1) Part I of Schedule III to the Financial Administration Act is amended by striking out the following: Canada Employment Insurance Financing Board Office de financement de l’assurance-emploi du Canada (2) Part I of Schedule III to the Act is amended by adding the following in alphabetical order: Canada Employment Insurance Financing Board Office de financement de l’assurance-emploi du Canada Coordinating Amendments
2012, c. 19
462. (1) In this section, “other Act” means the Jobs, Growth and Long-term Prosperity Act. (2) If section 307 of the other Act comes into force before subsection 436(4) of this Act, then, on the first day on which both that section 307 and subsection 436(3) of this Act are in force, paragraph 66.1(1)(b) of the Employment Insurance Act is replaced by the following: (b) the forecast costs to be paid under paragraphs 77(1)(d), (d.1), (f) and (g) during the following year, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a); (3) On the first day on which both section 307 of the other Act and subsection 436(4) of this Act are in force, paragraph 66.1(1)(b) of the Employment Insurance Act is replaced by the following: (b) the forecast costs to be paid under paragraphs 77(1)(d), (d.1) and (g) during the following year, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a); and
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(4) If section 307 of the other Act comes into force before subsection 439(1) of this Act, then subsection 439(1) of the English version of this Act is replaced by the following: 2008, c. 28, s. 129
439. (1) Subsection 77(1) of the Act is amended by adding “and” at the end of paragraph (d.1) and by repealing paragraphs (e) and (f). (5) If subsection 439(1) of this Act comes into force before section 307 of the other Act, then, on the day on which that section 307 comes into force, subsection 77(1) of the English version of the Employment Insurance Act is amended by striking out “and” at the end of paragraph (d) and by adding “and” at the end of paragraph (d.1). (6) If section 307 of the other Act comes into force on the same day as subsection 439(1) of this Act, then that subsection 439(1) is deemed to have come into force before that section 307 and subsection (5) applies as a consequence. Coming into Force
Order in council
463. (1) Subsections 433(1) and (3), 434(1), 435(1), (2), (4), (6) and (8), 436(1), (4), (5) and (7), 437(1), (3) and (5), 438(1), 439(1), 440(1) and (3), 441(1), 442(1), 443(1) and 445(2), sections 447 and 452 to 460 and subsection 461(1) come into force on a day to be fixed by order of the Governor in Council.
Order in council under section 448
(2) Subsections 439(3), 442(2), 443(2) and 461(2) come into force on the first day on which the Governor in Council makes an order under section 448.
Order in council
(3) Subsection 439(2) comes into force on a day, after the day referred to in subsection (2), to be fixed by order of the Governor in Council.
2012, c. 19
(4) Subsections 433(2) and (4), 434(2), 435(3), (5), (7) and (9), 436(2), (6) and (8), 437(2), (4) and (6), 438(2), 440(2) and (4) and 441(2) come into force on the day on which subsection 609(2) of the Jobs, Growth and Long-term Prosperity Act comes into force.
Emploi et croi
2011-2012 DIVISION 23
PUBLIC SECTOR PENSIONS R.S., c. C-17
Canadian Forces Superannuation Act Amendments to the Act
1999, c. 34, s. 115(1)
“contributor” « contributeur »
464. The portion of the definition “contributor” in subsection 2(1) of the Canadian Forces Superannuation Act before paragraph (b) is replaced by the following: “contributor” means a person who is required by section 5 to contribute to the Canadian Forces Pension Fund, and includes, unless the context otherwise requires, (a) a person who has ceased to be required by this Act to contribute to the Superannuation Account or the Canadian Forces Pension Fund, and
1992, c. 46, s. 33; 1999, c. 34, s. 117; 2003, c. 26, s. 3
465. Section 5 of the Act is replaced by the following:
Contribution rates — 2013 and later
5. (1) A member of the regular force, except a person described in subsection (6), is required to contribute to the Canadian Forces Pension Fund, in respect of every portion of the period beginning on January 1, 2013 by reservation from salary or otherwise, at the contribution rates determined by the Treasury Board in respect of that portion on the joint recommendation of the President of the Treasury Board and the Minister.
Contribution rates — 35 years of service
(2) A person who has to his or her credit, on or after January 1, 2013, a period of pensionable service — or a period of pensionable service and other pensionable service — totalling at least 35 years is not required to contribute under subsection (1) but is required to contribute, by reservation from salary or otherwise, to the Canadian Forces Pension Fund, in respect of the period beginning on the later of January 1, 2013 and the day on which the person has to his or her credit those 35 years, in addition to any other amount required under this Act, at the
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rates determined by the Treasury Board on the joint recommendation of the President of the Treasury Board and the Minister.
Limitation — determination of contribution rate
(3) In determining the contribution rates for the purposes of subsections (1) and (2), the rates must not exceed the rates paid under section 5 of the Public Service Superannuation Act by Group 1 contributors who are described in subsection 12(0.1) of that Act.
Other pensionable service
(4) For the purpose of subsection (2), “other pensionable service” means years of service, other than service credited under a plan established in accordance with Part I.1, giving rise to a superannuation or pension benefit of a kind specified in the regulations that is payable (a) out of the Consolidated Revenue Fund, or out of any account in the accounts of Canada other than the Superannuation Account; or (b) out of the Public Service Pension Fund within the meaning of the Public Service Superannuation Act or the Royal Canadian Mounted Police Pension Fund within the meaning of the Royal Canadian Mounted Police Superannuation Act.
Contributions not required
Exceptions
(5) Despite anything in this Part, no person shall, in respect of any period of his or her service on or after December 15, 1994, make a contribution under this Part in respect of any portion of his or her annual rate of pay that is in excess of the annual rate of pay that is fixed by or determined in the manner prescribed by the regulations. (6) The exceptions are (a) a member who, immediately before March 1, 1960, was a member of the regular force but not a contributor under Part V of the former Act and who has not elected under subsection 18(2) of the Canadian Forces Superannuation Act, chapter C-9 of the Revised Statutes of Canada, 1970, to become a contributor under this Act; and
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Emploi et croi (b) a person on leave of absence from employment outside the regular force who, in respect of current service continues to contribute to or under any superannuation or pension fund or plan established for the benefit of employees of the employer from whose employment the member is absent.
1999, c. 34, s. 118(1)
466. Clause 6(a)(ii)(A) of the Act is replaced by the following: (A) any period during which he or she was required by subsections 5(1) and (1.01), as they read on December 31, 2012, to contribute to the Superannuation Account or the Canadian Forces Pension Fund, and any period during which he or she is required by subsection 5(1) to contribute to the Canadian Forces Pension Fund, and
1999, c. 34, s. 120(1)
467. (1) Subparagraphs 7(1)(c)(iv) and (v) of the Act are replaced by the following: (iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.01), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 120(1)
(2) Subparagraphs 7(1)(d)(iv) and (v) of the Act are replaced by the following:
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(iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.01), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 120(2)
(3) Subparagraphs 7(1)(g)(iv) and (v) of the Act are replaced by the following: (iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.01), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
(4) Section 7 of the Act is amended by adding the following after subsection (1):
2011-2012 Amount to be paid
Emploi et croi (1.1) Despite paragraphs 7(1)(j) and (k), if a contributor has elected under clause 6(b)(ii)(J) or (K) to count as pensionable service a period of service in respect of which he or she was entitled to a transfer value and payment of that transfer value has been effected under section 22, the contributor is required to pay in respect of that period of service an amount determined in the prescribed manner. 468. Subsection 9(1) of the Act is replaced by the following:
Manner of payment
9. (1) Subject to this section, any amount required by subsection 7(1) or (1.1) to be paid by a contributor in respect of any period of service for which he or she has elected to pay shall be paid by him or her into the Superannuation Account, at his or her option, (a) in a lump sum, at the time of making the election; or (b) in instalments, on the terms and computed on the bases as to mortality and interest as are prescribed by the regulations.
1999, c. 34, s. 127
469. Subsection 15(5) of the Act is replaced by the following:
Computation of average annual pay
(5) For the purposes of subparagraphs (1)(a)(ii) and (iii), a period of service during which a person continues to be a member of the regular force and is required to make contributions under subsection 5(2), or was required to make contributions under subsection 5(2), (3) or (4) as it read on December 31, 2012, is deemed to be a period of pensionable service to his or her credit.
1999, c. 34, s. 142(2)
470. Subsection 41(3) of the Act is replaced by the following:
Deemed reenrolment
(3) For the purposes of this Act, a person who, after having ceased to be required by section 5 to contribute to the Superannuation Account or the Canadian Forces Pension Fund, is enrolled in or transferred to the reserve force is on the expiry of any continuous period of fulltime service in the reserve force of one year,
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beginning on or after January 1, 2000, deemed to have become re-enrolled in the regular force at the end of that period. 1999, c. 34, s. 145
471. (1) Paragraph 49.1(2)(b) of the Act is replaced by the following: (b) three members appointed from among persons required to contribute to the Canadian Forces Pension Fund who are nominated for appointment by the Chief of the Defence Staff to represent persons serving in the Canadian Forces;
1999, c. 34, s. 145
(2) Paragraph 49.1(2)(d) of the Act is replaced by the following: (d) five other members appointed by the Minister, four of whom must be from among persons required to contribute to the Canadian Forces Pension Fund and one of whom may be a person required to contribute to any other superannuation or pension account in the accounts of Canada or the Public Service Pension Fund within the meaning of the Public Service Superannuation Act or the Royal Canadian Mounted Police Pension Fund within the meaning of the Royal Canadian Mounted Police Superannuation Act.
2003, c. 26, s. 23
472. Paragraph 50(1)(g) of the Act is replaced by the following: (g) fixing an annual rate of pay for the purposes of subsection 5(5) or prescribing the manner of determining the annual rate of pay;
1992, c. 46, Sch. I
Consequential Amendment to the Special Retirement Arrangements Act
2002, c. 17, s. 29(2)
473. Paragraph 11(3)(b) of the Special Retirement Arrangements Act is replaced by the following: (b) subsection 5(5) of the Canadian Forces Superannuation Act;
2011-2012
Emploi et croi Coordinating Amendments
2003, c. 26
474. (1) In this section, “other Act” means An Act to amend the Canadian Forces Superannuation Act and to make consequential amendments to other Acts, chapter 26 of the Statutes of Canada, 2003. (2) If section 5 of the other Act comes into force before subsections 467(1) to (3) of this Act, then those subsections 467(1) to (3) are repealed. (3) If section 5 of the other Act comes into force on the same day as subsections 467(1) to (3) of this Act, then those subsections 467(1) to (3) are deemed to have come into force before that section 5. (4) If section 5 of the other Act comes into force before subsection 467(4) of this Act, then that subsection 467(4) and section 468 of this Act are repealed. (5) If section 5 of the other Act comes into force on the same day as subsection 467(4) of this Act, then that subsection 467(4) and section 468 of this Act are deemed to have come into force before that section 5. (6) If section 21 of the other Act comes into force before section 470 of this Act, then that section 470 is repealed. (7) If section 21 of the other Act comes into force on the same day as section 470 of this Act, then that section 470 is deemed to have come into force before that section 21.
R.S., c. P-36
Public Service Superannuation Act Amendments to the Act
1999, c. 34, s. 53(2)
“contributor” « contributeur »
475. The portion of the definition “contributor” in subsection 3(1) of the Public Service Superannuation Act before paragraph (b) is replaced by the following: “contributor” means a person required by section 5 to contribute to the Public Service Pension Fund, and, unless the context otherwise requires,
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(a) a person who has ceased to be required by this Act to contribute to the Superannuation Account or the Public Service Pension Fund, and 1999, c. 34, s. 55(1); 2003, c. 22, subpar. 225(z.19)(iv)(E)
476. (1) The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following:
Persons required to contribute
5. (1) Subsections (2) and (3) apply to persons employed in the public service, other than
1999, c. 34, s. 55(2)
(2) Paragraph 5(1)(d) of the Act is repealed.
1999, c. 34, s. 55(4)
(3) Subsections 5(1.1) to (4) of the Act are replaced by the following:
Contribution rates — 2013 and later
(2) A person is required to contribute to the Public Service Pension Fund, in respect of every portion of the period beginning on January 1, 2013, by reservation from salary or otherwise, at the contribution rates determined by the Treasury Board in respect of that portion on the recommendation of the Minister.
Contribution rates — 35 years of service
(3) A person who has to his or her credit, on or after January 1, 2013, a period of pensionable service — or a period of pensionable service and other pensionable service — totalling at least 35 years is not required to contribute under subsection (2) but is required to contribute, by reservation from salary or otherwise, to the Public Service Pension Fund, in respect of the period beginning on the later of January 1, 2013 and the day on which the person has to his or her credit those 35 years, in addition to any other amount required under this Act, at the rates determined by the Treasury Board on the recommendation of the Minister.
Limitation — determination of contribution rates
(4) In determining the contribution rates of Group 1 contributors described in subsection 12(0.1) and of Group 2 contributors described in subsection 12.1(1) for the purposes of subsections (2) and (3), the rates must not result in a total amount of contributions that would exceed 50% of the current service cost of Group 1 or
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Emploi et croi Group 2, as the case may be, for the portion of the period in respect of the benefits payable under Parts I and III.
1999, c. 34, s. 55(4)
(4) The portion of subsection 5(5) of the Act before paragraph (a) is replaced by the following:
Other pensionable service
(5) For the purpose of subsection (3), “other pensionable service” means years of service giving rise to a superannuation or pension benefit of a kind specified in the regulations that is payable
1999, c. 34, s. 55(4)
(5) Subsection 5(6) of the Act is replaced by the following:
Contributions not required
(6) Despite anything in this Part, no person shall, in respect of any period of his or her service on or after December 15, 1994, make a contribution under this Part in respect of any portion of his or her annual rate of salary that is in excess of the annual rate of salary that is fixed by or determined in the manner prescribed by the regulations.
1999, c. 34, s. 59(1)
477. (1) Clause 6(1)(a)(i)(B) of the Act is replaced by the following: (B) any period during which he or she was required by subsections 5(1.1) and (1.2), as they read on December 31, 2012, to contribute to the Superannuation Account or the Public Service Pension Fund,
1999, c. 34, s. 59(2)
(2) Clause 6(1)(a)(ii)(A) of the Act is replaced by the following: (A) any period during which he or she was required by subsections 5(1.1) and (1.2), as they read on December 31, 2012, to contribute to the Superannuation Account or the Public Service Pension Fund and any period during which he or she is required by subsection 5(2) to contribute to the Public Service Pension Fund,
1999, c. 34, s. 59(3)
(3) Clause 6(1)(a)(iii)(A) of the Act is replaced by the following:
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1999, c. 34, s. 59(4); 2003, c. 22, subpar. 225(z.19)(viii) (E)
(4) Clause 6(1)(a)(iii)(D) of the Act is replaced by the following:
(D) any period of service in the public service before becoming a contributor under this Part during which he or she contributed to the Superannuation Account or the Public Service Pension Fund in the manner and at the rates set out in subsections 5(1.1) and (1.2), as they read on December 31, 2012, if that service is service for which he or she might have elected, under this Part or Part I of the Superannuation Act on subsequently becoming a contributor under those Parts, to pay, but for which he or she failed so to elect within the time prescribed for elections, (D.1) any period of service in the public service before becoming a contributor under this Part during which he or she contributed to the Public Service Pension Fund in the manner set out in subsection 5(2) and at the rates determined by the Treasury Board under that subsection if that service is service for which he or she might have elected, under this Part on subsequently becoming a contributor under this Part, to pay, but for which he or she failed so to elect within the time prescribed for elections, and
1999, c. 34, s. 60
478. (1) Subparagraphs 7(1)(e)(iii) and (iv) of the Act are replaced by the following: (iii) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in
2011-2012
Emploi et croi subsection 5(1.1), as it read on December 31, 2003, in respect of that period or portion, (iv) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.2), as it read on December 31, 2012, in respect of that period or portion, and (v) if that period or any portion of it was after 2012, in the manner set out in subsection 5(2) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 60
(2) Subparagraphs 7(1)(f)(iii) and (iv) of the Act are replaced by the following: (iii) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1.1), as it read on December 31, 2003, in respect of that period or portion, (iv) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.2), as it read on December 31, 2012, in respect of that period or portion, and (v) if that period or any portion of it was after 2012, in the manner set out in subsection 5(2) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
479. (1) The definition “deferred annuity” in subsection 10(1) of the Act is replaced by the following: “deferred annuity” « pension différée »
“deferred annuity” means an annuity that becomes payable to the contributor at the time he or she reaches 60 years of age, in the case of a Group 1 contributor described in subsection
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12(0.1), or 65 years of age, in the case of a Group 2 contributor described in subsection 12.1(1); 1999, c. 34, s. 62(1); 2003, c. 22, subpar. 225(z.19)(xi)(E)
(2) Paragraphs (a) and (b) of the definition “cash termination allowance” in subsection 10(1) of the Act are replaced by the following: (a) at the time he or she ceases to contribute to the Public Service Pension Fund, or (b) in the case of a contributor who continues to be employed in the public service after having ceased to contribute to the Public Service Pension Fund under subsection 5(2) or (3), at the time he or she ceases to be employed in the public service, (3) The portion of subsection 10(5) of the Act before paragraph (a) is replaced by the following:
Options
(5) When, under any of sections 12 to 13.001, a contributor is entitled to a benefit specified in that section at his or her option,
2003, c. 22, subpar. 225(z.19)(xi)(E)
(4) Subsections 10(6) to (8) of the Act are replaced by the following:
Revocation of option
(6) When, under any of sections 12 to 13.001, a contributor is entitled to a benefit specified in that section at his or her option, the option may be revoked and a new option exercised by the contributor, under the circumstances and on the terms and conditions that the Governor in Council by regulation prescribes.
Contributor reemployed before payment of return of contributions
(7) If a contributor who is entitled under any of sections 12 to 13.001 to a return of contributions becomes re-employed in the public service and a contributor under this Part before those contributions have been paid to him or her, the period of pensionable service to which those contributions relate (except any such period specified in clause 6(1)(a)(iii)(C) or (E)) shall be counted as pensionable service for the purposes of this Part, and the amount of those contributions shall, in lieu of being paid to him or her, be applied in payment of or on account of the amount required by this Part to be paid by him or her for that service.
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Annuity in respect of locked-in contributions
(8) A contributor who has to his or her credit a period of pensionable service in respect of which no amount can, by virtue of subsection 40(9), be paid to an approved employer is entitled in respect of that service, on ceasing to be employed in the public service, to a benefit specified in whichever of sections 12 to 13.001 that applies to him or her, other than a cash termination allowance or a return of contributions.
1999, c. 34, s. 63; 2003, c. 22, subpar. 225(z.19)(xii)(E)
480. Subsection 11(8) of the Act is replaced by the following:
Computation of average annual salary
(8) For the purposes of subparagraphs (1)(a)(ii) and (iii), any period of service during which a person is employed in the public service and is required to make contributions under subsection 5(3), or was required to make contributions under subsection 5(3), (3.1) or (4) as it read on December 31, 2012, is deemed to be a period of pensionable service to his or her credit.
1996, c. 18, s. 27
481. The heading before section 12 of the Act is replaced by the following: GROUP 1 CONTRIBUTORS WITH LESS THAN TWO YEARS OF PENSIONABLE SERVICE 482. (1) Section 12 of the Act is amended by adding the following before subsection (1):
Group 1 contributors
12. (0.1) For the purposes of this section, a Group 1 contributor is (a) a person employed in the public service who was required to contribute under section 5 on December 31, 2012 and who has continued to be required to contribute under that section without interruption since that date; (b) a person employed in the public service who commenced being so employed before January 1, 2013, who has continued to be so
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employed, without interruption, since that date and who, having been required to contribute under section 5 before January 1, 2013, has before, on or after that date ceased or ceases to be required to do so and since the cessation has not been required to contribute under that section; (c) a person employed in the public service who commenced being so employed before January 1, 2013, who has continued to be so employed, without interruption, since that date, who was not required to contribute under section 5 before that date by reason only of paragraph 5(1)(f) and who is required to contribute under section 5 on or after that date; (d) a person employed in the public service who was required to contribute under section 5 before January 1, 2013, who ceased or ceases to be required to contribute before, on or after that date, who is again required to contribute under that section on or after that date, and who (i) has been employed in the public service without interruption since the cessation, or (ii) immediately before again being required to contribute, was receiving or entitled to receive an annual allowance, a deferred annuity or an immediate annuity under this section or section 13; (e) a person who, having been required to contribute under section 5 before January 1, 2013, has before that date ceased to be required to do so and is receiving or is entitled to receive an annual allowance, a deferred annuity or an immediate annuity under this section or section 13; or (f) a person who, on the day immediately before the day on which he or she ceases to be employed in the public service, is a person described in any of paragraphs (a) to (d), unless he or she has received a return of contributions under subsection (3) or payment of a transfer value to him or her has been effected in accordance with subsection 13.01(2).
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2011-2012 1996, c. 18, s. 28(1)
(2) The portion of subsection 12(1) of the Act before paragraph (a) is replaced by the following:
Group 1 contributors with less than two years of pensionable service
(1) The following provisions are applicable in respect of any contributor described in subsection (2):
1996, c. 18, s. 28(2)
(3) The portion of subsection 12(2) of the Act before paragraph (a) is replaced by the following:
Group 1 contributors to whom subsection (1) applies
(2) For the purposes of subsection (1), a contributor described in this subsection is any Group 1 contributor who
1996, c. 18, s. 28(2); 2003, c. 22, subpar. 225(z.19)(xiii) (E)
(4) Subsection 12(3) of the Act is replaced by the following:
Other Group 1 contributors
(3) A Group 1 contributor, other than one described in subsection (2), who has to his or her credit less than two years of pensionable service, is entitled, on ceasing to be employed in the public service, to a return of contributions. 483. The Act is amended by adding the following after section 12: GROUP 2 CONTRIBUTORS WITH LESS THAN TWO YEARS OF PENSIONABLE SERVICE
Group 2 contributors
12.1 (1) In this section, a Group 2 contributor is any contributor other than a Group 1 contributor described in subsection 12(0.1).
Group 2 contributors with less than two years of pensionable service
(2) The following provisions are applicable in respect of any contributor described in subsection (3): (a) if the contributor ceases to be employed in the public service, having reached 65 years of age, or ceases to be employed in the public service by reason of having become disabled, he or she is entitled, at his or her option, to (i) an immediate annuity, or
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(ii) either a cash termination allowance or a return of contributions, whichever is the greater; (b) if the contributor ceases to be employed in the public service, not having reached 65 years of age, for any reason other than disability, he or she is entitled, at his or her option, to (i) a deferred annuity, (ii) a return of contributions, or (iii) an annual allowance calculated and payable in the manner set out in clause 13.001(1)(c)(ii)(D); and (c) if the contributor becomes disabled, not having reached 65 years of age but having become entitled to a deferred annuity, he or she ceases to be entitled to that deferred annuity and becomes entitled to an immediate annuity. Group 2 contributors to whom subsection (2) applies
(3) For the purposes of subsection (2), a contributor described in this subsection is any Group 2 contributor who (a) having to his or her credit more than 33 years of service giving rise to a superannuation or pension benefit of a kind described in subsection 5(5), has to his or her credit less than two years of pensionable service; or (b) having had to his or her credit more than two years of pensionable service, has, on ceasing to be employed in the public service in order to become a member of the regular force or of the Force, less than two years of pensionable service remaining to his or her credit that he or she is unable to count as pensionable service for the purposes of the Canadian Forces Superannuation Act or the Royal Canadian Mounted Police Superannuation Act.
Other Group 2 contributors
(4) A Group 2 contributor, other than one described in subsection (3), who has to his or her credit less than two years of pensionable service, is entitled, on ceasing to be employed in the public service, to a return of contributions.
2011-2012 Allowance to survivor and children
Emploi et croi (5) On the death of a contributor who, at the time of death, was entitled under subsection (2) to an immediate annuity, a deferred annuity or an annual allowance, the contributor’s survivor and children are entitled to the following allowances, computed on the basis of the product obtained by multiplying the contributor’s average annual salary during the period applicable, as specified in subsection 11(1) or elsewhere in this Part for the purposes of that subsection, by the number of years of pensionable service to his or her credit, 1/100 of the product so obtained being referred to in this subsection as the “basic allowance”: (a) in the case of the survivor, an immediate annual allowance equal to the basic allowance; and (b) in the case of each child, an immediate annual allowance equal to 1/5 of the basic allowance or, if the contributor died without leaving a survivor, the survivor is dead or the survivor is not entitled to receive an allowance under this Part, other than an immediate annual allowance under section 13.1, 2/5 of the basic allowance. However, the total amount of the allowances paid under paragraph (b) shall not exceed 4/5 of the basic allowance or, if the contributor died without leaving a survivor, the survivor is dead or the survivor is not entitled to receive an allowance under this Part, other than an immediate annual allowance under section 13.1, 8/5 of the basic allowance.
Allowance to survivor and children
(6) When, in computing the allowances to which the contributor’s children are entitled under subsection (5), it is determined that there are more than four children of the contributor who are entitled to an allowance, the total amount of the allowances shall be apportioned among the children in the shares that the Minister considers just and proper under the circumstances.
Allowance
(7) Despite subsection (8), on the death of a contributor who at the time of death was a contributor described in paragraph (3)(a), the contributor’s survivor and children are entitled
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to the annual allowances to which they would have been entitled under subsection (5) had the contributor, immediately before his or her death, become entitled under subsection (2) to an immediate annuity, a deferred annuity or an annual allowance. Lump sum payment to survivor and children
(8) On the death of a Group 2 contributor who at the time of death was employed in the public service, having to his or her credit less than two years of pensionable service, the contributor’s survivor and children, if the contributor died leaving a survivor or a child less than 18 years of age, are entitled, jointly, to a death benefit equal to a return of contributions.
Definition of “child”
(9) For the purposes of this section and section 13.001, “child” means a child of the contributor who (a) is less than 18 years of age; or (b) is 18 or more years of age but less than 25 years of age, and is in full-time attendance at a school or university, having been in such attendance substantially without interruption since the child reached 18 years of age or the contributor died, whichever occurred later.
1996, c. 18, s. 29
484. The heading before section 13 of the Act is replaced by the following: GROUP 1 CONTRIBUTORS WITH TWO OR MORE YEARS OF PENSIONABLE SERVICE
1996, c. 18, s. 30(1)
485. (1) The portion of subsection 13(1) of the Act before paragraph (a) is replaced by the following:
Group 1 contributors with two or more years of pensionable service
13. (1) The following provisions are applicable in respect of any Group 1 contributor described in subsection 12(0.1) who has to his or her credit two or more years of pensionable service:
1996, c. 18, s. 30(3); 1999, c. 34, s. 65(4); 2003, c. 22, subpar. 225(z.19)(xiv) (E)
(2) Subsections 13(3) and (4) of the Act are replaced by the following:
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Allowance to survivor and children
(3) On the death of a Group 1 contributor described in subsection 12(0.1) who was employed in the public service at the time of death, having to his or her credit two or more years of pensionable service, the contributor’s survivor and children are entitled to the annual allowances to which they would have been entitled under subsection (2) had the contributor, immediately before his or her death, become entitled under subsection (1) to an immediate annuity or a deferred annuity or an annual allowance payable immediately or on reaching 50 years of age.
Voluntary retirement of Group 1 contributor
(4) Despite anything in this section, a Group 1 contributor described in subsection 12(0.1) who voluntarily retires from the public service, not having been employed in it substantially without interruption for a period of two years immediately before retirement from it, is entitled only to a return of contributions. 486. The Act is amended by adding the following after section 13: GROUP 2 CONTRIBUTORS WITH TWO OR MORE YEARS OF PENSIONABLE SERVICE
Group 2 contributors with two or more years of pensionable service
13.001 (1) The following provisions are applicable in respect of any Group 2 contributor described in subsection 12.1(1) who has to his or her credit two or more years of pensionable service: (a) if the contributor ceases to be employed in the public service, having reached 65 years of age, he or she is entitled to an immediate annuity; (b) if the contributor ceases to be employed in the public service, not having reached 65 years of age, by reason of having become disabled, he or she is entitled to an immediate annuity; (c) if the contributor ceases to be employed in the public service, not having reached 65 years of age, for any reason other than disability, he or she is entitled to
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(i) if at the time he or she ceases to be so employed, he or she has reached 60 years of age and has to his or her credit not less than 30 years of pensionable service, an immediate annuity, or (ii) in any other case, at his or her option, (A) a deferred annuity, (B) if at the time he or she ceases to be so employed, he or she has reached 55 years of age and has to his or her credit not less than 25 years of pensionable service, an annual allowance, payable immediately on his or her exercising his or her option, equal to the amount of the deferred annuity referred to in clause (A) reduced by the product obtained by multiplying 5% of the amount of that annuity by (I) 60 minus his or her age in years, to the nearest 1/10 of a year, at the time he or she exercises his or her option, or (II) 30 minus the number of years, to the nearest 1/10 of a year, of pensionable service to his or her credit, whichever is the greater, (C) if at the time he or she ceases to be so employed, he or she has reached 60 years of age, has been employed in the public service for a period of or for periods totalling at least 10 years and does not voluntarily retire from the public service, an annual allowance, payable immediately on his or her so ceasing to be employed, equal to the amount of the deferred annuity referred to in clause (A) reduced by the product obtained by multiplying (I) 5% of the amount of that annuity by (II) 30 minus the number of years, to the nearest 1/10 of a year, of pensionable service to his or her credit,
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except that in any such case the whole or any part of the reduction provided for by this clause may be waived by the Treasury Board, or (D) an annual allowance, payable (I) immediately on his or her exercising his or her option, in the case of a contributor 55 or more years of age, or (II) on his or her reaching 55 years of age, in the case of a contributor who exercises his or her option when he or she is less than 55 years of age, which allowance shall be equal to the amount of the deferred annuity referred to in clause (A) reduced by the product obtained by multiplying (III) 5% of the amount of that annuity by (IV) 65 minus his or her age in years, to the nearest 1/10 of a year, at the time the allowance becomes payable; and (d) if he or she becomes disabled, not having reached 65 years of age but having become entitled to (i) a deferred annuity, he or she ceases to be entitled to that deferred annuity and becomes entitled to an immediate annuity, or (ii) an annual allowance, he or she ceases to be entitled to that annual allowance and becomes entitled to an immediate annuity, which shall be adjusted in accordance with the regulations to take into account the amount of the annual allowance he or she has received. Allowance to survivor and children
(2) On the death of a contributor who, at the time of death, was entitled under subsection (1) to an immediate annuity or a deferred annuity, or to an annual allowance payable immediately or on reaching 55 years of age, the contributor’s survivor and children are entitled to an annual allowance, respectively, as described in
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paragraphs 12.1(5)(a) and (b) and subject to the limitations set out in subsections 12.1(5) and (6). Allowance to survivor and children
(3) On the death of a Group 2 contributor described in subsection 12.1(1) who was employed in the public service at the time of death, having to his or her credit two or more years of pensionable service, the contributor’s survivor and children are entitled to the annual allowances to which they would have been entitled under subsection (2) had the contributor, immediately before his or her death, become entitled under subsection (1) to an immediate annuity or a deferred annuity or an annual allowance payable immediately or on reaching 55 years of age.
Voluntary retirement of Group 2 contributor
(4) Despite anything in this section, a Group 2 contributor described in subsection 12.1(1) who voluntarily retires from the public service, not having been employed in it substantially without interruption for a period of two years immediately before retirement from it, is entitled only to a return of contributions.
Exceptions
(5) Subsection (4) does not apply to a contributor described in paragraph 10(5)(c) or subsection 10(7) or a contributor who has made an election in respect of any period specified in clause 6(1)(b)(iii)(M) or under subsection 39(6) or under any regulations made under subsection 42(8).
Calculation of period of service
(6) For the purposes of subsection (4), in calculating the period during which a contributor has been employed in the public service, there shall be included any period of service of the contributor (a) as a member of the regular force or as a member of the Force; or (b) with an eligible employer with whom the Minister has entered into an agreement under section 40.2, that the contributor is, in accordance with the agreement, entitled to count as pensionable service for the purposes of this Part, that is within a period of two years immediately before his or her retirement from the public service.
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When annual allowance to be adjusted
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(7) If a contributor described in paragraph (1)(c) who was receiving an annual allowance payable under this Part is subsequently reemployed in the public service, the amount of any annuity or annual allowance to which that contributor may become entitled under this Part on again ceasing to be employed in the public service shall be adjusted in accordance with the regulations to take into account the amount of the annual allowance that he or she has received. GROUP 1 AND GROUP 2 CONTRIBUTORS WITH TWO OR MORE YEARS OF PENSIONABLE SERVICE
1999, c. 34, s. 69
487. Section 19 of the Act is replaced by the following:
Additional amount to be contributed by air traffic controllers
19. Subject to subsection 5(6), every person employed in operational service and required to contribute to the Public Service Pension Fund under subsection 5(2) is, except in the circumstances described in subsection 5(3), required to contribute to the Public Service Pension Fund by reservation from salary or otherwise, in addition to any other amount required under this Act, 2% of his or her salary.
1992, c. 46, s. 12; 1999, c. 34, s. 73; 2003, c. 22, subpar. 225(z.19)(xxiii) (E)
488. Sections 24.2 and 24.3 of the Act are replaced by the following:
Special pension plan
24.2 Any person who is employed in operational service by the Correctional Service of Canada on or after March 18, 1994 and who was required by subsection 5(1.1) or (1.2), as it read on December 31, 2012, to contribute to the Superannuation Account or the Public Service Pension Fund or is required by subsection 5(2) to contribute to the Public Service Pension Fund is entitled, at his or her option on ceasing to be employed in the public service, in respect of the operational service that is pensionable service to his or her credit, to an immediate annuity or
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annual allowance calculated in the manner prescribed by the regulations, in the circumstances and subject to the terms and conditions prescribed by those regulations, in lieu of any benefit to which that person is otherwise entitled under subsection 13(1) or 13.001(1) in respect of that service.
Computation of benefit under subsection 13(1) or 13.001(1)
24.3 If a person is entitled to a benefit under subsection 13(1) or 13.001(1), and section 24.2, the number of years of pensionable service to his or her credit is, for the purpose of computing the benefit to which he or she is entitled under subsection 13(1) or 13.001(1), deemed to be (a) the number of years of pensionable service to his or her credit minus (b) the number of years of pensionable service to his or her credit in respect of which he or she is entitled to a benefit under section 24.2.
1999, c. 34, s. 74
489. Subsection 24.4(1) of the Act is replaced by the following:
Additional amount to be contributed
24.4 (1) Subject to subsections (2) and 5(6), every person who is employed in operational service by the Correctional Service of Canada on or after March 18, 1994 and who is required by subsection 5(2) to contribute to the Public Service Pension Fund is, except in the circumstances described in subsection 5(3), required to contribute to the Public Service Pension Fund by reservation from salary or otherwise, in addition to any other amount required under this Act, any percentage of his or her salary that is determined by the Treasury Board on the recommendation of the Minister, which recommendation is to be based on actuarial advice.
1992, c. 46, s. 12
490. Section 24.5 of the Act is replaced by the following:
References to certain sections
24.5 A reference in subsection 10(6) to a benefit specified at the contributor’s option under section 13 or 13.001 shall be read as including a reference to an immediate annuity or annual allowance at the contributor’s option under section 24.2, and a reference in
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Emploi et croi subsection 13(2) or (3) or 13.001(2) or (3) to the immediate annuity, deferred annuity or annual allowance to which the contributor was entitled under subsection 13(1) or 13.001(1) shall be read as including a reference to the contributor’s entitlement to an immediate annuity or annual allowance under section 24.2.
When annuity or annual allowance to be adjusted
24.6 If a person who was employed in operational service by the Correctional Service of Canada and who is receiving an annual allowance payable under section 24.2 is subsequently re-employed in the public service, the amount of any annuity or annual allowance to which he or she may become entitled under this Part on again ceasing to be employed in the public service shall be adjusted in accordance with regulations made under paragraph 42(1)(x.1) to take into account the amount of any annual allowance that he or she has received.
1999, c. 34, s. 75
491. (1) Paragraph 25(6)(a) of the Act is replaced by the following: (a) an increase in the allowance payable to a child under paragraph 12(4)(b) or 12.1(5)(b); or
1999, c. 34, s. 75
(2) The portion of subsection 25(10) of the Act before paragraph (a) is replaced by the following:
Apportionment of allowance when two survivors
(10) When an annual allowance is payable under paragraph 12(4)(a) or 12.1(5)(a) or subsection 13(2) or 13.001(2) and there are two survivors of the contributor, the total amount of the annual allowance shall be apportioned so that 492. (1) Subsection 26(5) of the Act is replaced by the following:
Saving provision
(5) Nothing in this section prejudices any right that a child of an earlier marriage of the contributor has to an allowance under any of sections 12 to 13.001.
1999, c. 34, s. 76(3)
(2) Paragraph 26(7)(b) of the Act is replaced by the following:
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(b) required by subsection 5(1.1) or (1.2), as it read on December 31, 2012, or by subsection 5(2) to contribute to the Superannuation Account or the Public Service Pension Fund. 1999, c. 34, s. 78(1) Minimum benefits
493. (1) Subsection 27(1) of the Act is replaced by the following: 27. (1) This subsection applies to (a) a contributor who was not required to contribute to the Superannuation Account under subsection 5(1) in the period that began on or after December 20, 1975 and that ended on December 31, 1999; (b) a contributor who was not required to contribute to the Superannuation Account or the Public Service Pension Fund under subsection 5(1.1) or (1.2), as it read on December 31, 2012, in the period that began on or after January 1, 2000 and that ended on December 31, 2012; and (c) a contributor who was not required to contribute to the Public Service Pension Fund under subsection 5(2). If, on the death of such a contributor, there is no person to whom an allowance provided in this Part may be paid, or if the persons to whom that allowance may be paid die or cease to be entitled to that allowance and no other amount may be paid to them under this Part, any amount by which the amount of a return of contributions exceeds the aggregate of all amounts paid to those persons and to the contributor under this Part and the Superannuation Act shall be paid, as a death benefit, to the contributor’s estate or succession or, if less than $1,000, as the Minister may direct.
1999, c. 34, s. 78(2)
(2) The portion of subsection 27(2) of the Act before paragraph (a) is replaced by the following:
Minimum benefits
(2) If, on the death of a contributor who was required to contribute to the Superannuation Account under subsection 5(1) in the period that began on or after December 20, 1975 and that
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Emploi et croi ended on December 31, 1999, a contributor who was required to contribute to the Superannuation Account or the Public Service Pension Fund under subsection 5(1.1) or (1.2), as it read on December 31, 2012, in the period that began on or after January 1, 2000 and that ended on December 31, 2012, or a contributor who was required to contribute to the Public Service Pension Fund under subsection 5(2), there is no person to whom an allowance provided in this Part may be paid, or if the persons to whom that allowance may be paid die or cease to be entitled to that allowance and no other amount may be paid to them under this Part, an amount equal to the amount by which
494. Paragraph 28(a) of the Act is replaced by the following: (a) is less than 60 years of age, in the case of a Group 1 contributor described in subsection 12(0.1), or is less than 65 years of age, in the case of a Group 2 contributor described in subsection 12.1(1), and 1992, c. 46, s. 15; 1999, c. 34, s. 79; 2003, c. 22, subpar. 225(z.19)(xxv) (E)
495. Section 29 of the Act is replaced by the following:
Persons reemployed
29. If a person who is entitled, under any of subsections 12(1), 12.1(2), 13(1) or 13.001(1) or any regulations made for the purposes of section 24.2, to an annuity or an annual allowance is re-employed in the public service and becomes a contributor under this Part, whatever right or claim that he or she may have to the annuity or annual allowance shall be terminated without delay, but the period of service on which the benefit was based, except any period specified in clause 6(1)(a)(iii)(C) or (E), may be counted by that person as pensionable service for the purposes of subsection 6(1), except that if that person, on ceasing to be so reemployed, exercises his or her option under this Part in favour of a return of contributions, or is not entitled under this Part to any benefit other than a return of contributions, the amount so returned shall not include any amount paid into
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the Superannuation Account or the Public Service Pension Fund to his or her credit at any time before the time when he or she became re-employed, but whatever right or claim that, but for this section, he or she would have had to the annuity or annual allowance on ceasing to be so re-employed shall then be restored to him or her.
1999, c. 34, s. 86(1)
496. (1) Subparagraphs 39(2)(b)(iii) and (iv) of the Act are replaced by the following: (iii) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1.1), as it read on December 31, 2003, in respect of that period or portion, (iv) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(1.2), as it read on December 31, 2012, in respect of that period or portion, and (v) if that period or any portion of it was after 2012, in the manner set out in subsection 5(2) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 86(1)
(2) Subparagraphs 39(2)(c)(iii) and (iv) of the Act are replaced by the following: (iii) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1.1), as it read on December 31, 2003, in respect of that period or portion, (iv) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined
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Emploi et croi under subsection 5(1.2), as it read on December 31, 2012, in respect of that period or portion, and (v) if that period or any portion of it was after 2012, in the manner set out in subsection 5(2) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1996, c. 18, s. 33
497. Subsection 40.2(8) of the Act is replaced by the following:
Payment of difference to employee who was not vested
(8) If the amount paid by the Minister to an eligible employer under subsection (3) in respect of an employee is less than the return of contributions to which that employee would otherwise be entitled under any of sections 12 to 13.001, the Minister shall pay to the employee an amount equal to the amount of the difference.
2008, c. 28, s. 158
498. (1) Paragraph 42(1)(v) of the Act is replaced by the following: (v) respecting, for the purposes of paragraphs 13(1)(d) and 13.001(1)(d) and subsections 13(6) and 13.001(7), the method by which the amount of any annuity or annual allowance payable to a contributor described in paragraph 13(1)(a), (c) or (d) or 13.001(1)(a), (c) or (d), as the case may be, shall be adjusted; (2) Subsection 42(1) of the Act is amended by adding the following after paragraph (x): (x.1) specifying, for the purposes of section 24.6, the method by which the amount of any annuity or annual allowance shall be adjusted;
1999, c. 34, s. 92(1)
499. (1) Paragraph 42.1(1)(a) of the Act is replaced by the following: (a) fixing an annual rate of salary for the purposes of subsection 5(6) or prescribing the manner of determining the annual rate of salary;
1999, c. 34, s. 92(2)
(2) Paragraph 42.1(1)(r) of the Act is repealed.
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(3) Subsection 42.1(2) of the Act is replaced by the following:
Retroactive application of regulations
(2) Regulations made under paragraph (1)(a), (f), (g), (h), (i), (m), (q), (s), (u) or (v) may, if they so provide, be retroactive and have effect with respect to any period before they are made.
1999, c. 34, s. 97
500. (1) Clause 46.3(3)(b)(ii)(B) of the Act is replaced by the following:
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(B) for the period beginning on January 1, 2004, at the rate that the Board of Directors of the Corporation may fix from time to time, that Board being subject to the same restrictions in fixing the rate as is the Treasury Board under subsection 5(1.4), as it read on January 1, 2000; (2) Section 46.3 of the Act is amended by adding the following after subsection (7): Period beginning on January 1, 2013
(8) Each plan referred to in paragraph (1)(a) that was approved under subsection (3) is deemed to have included a provision indicating that, despite clause (3)(b)(ii)(B), each member will be required to contribute, by reservation from salary or otherwise, for the period beginning on January 1, 2013, at the rate that the Board of Directors of the Corporation may fix from time to time, which rate must not result in a total amount of contributions that would exceed 50% of the current service cost for the portion of the period in respect of the benefits payable under the plan. Transitional Provision
Retroactive regulations
501. Regulations made under paragraph 42.1(1)(v.2) of the Public Service Superannuation Act in order to implement the provisions enacted by sections 475 to 500 of this Act may, if they so provide, be retroactive and have effect with respect to any period before they are made that begins on or after January 1, 2013.
2011-2012
Emploi et croi Consequential Amendments
R.S., c. G-2
1997, c. 1, s. 33
Garnishment, Attachment and Pension Diversion Act 502. (1) Paragraphs 35.1(1)(b) and (c) of the Garnishment, Attachment and Pension Diversion Act are replaced by the following: (b) is not a recipient but has exercised an option for a deferred annuity under any of sections 12 to 13.001 of the Public Service Superannuation Act or is entitled to do so, and (c) has reached 50 years of age but has not yet reached 60 years of age, if the person has exercised an option under section 12 or 13 of the Public Service Superannuation Act or is entitled to do so, or has reached 55 years of age but has not yet reached 65 years of age, if the person has exercised an option under section 12.1 or 13.001 of that Act or is entitled to do so,
1997, c. 1, s. 33
(2) The portion of subsection 35.1(2) of the Act before paragraph (a) is replaced by the following:
Order
(2) A court to whom an application is made under subsection (1) may make an order deeming the person against whom there is a valid and subsisting financial support order to have exercised an option under any of sections 12 to 13.001 of the Public Service Superannuation Act in favour of an annual allowance payable as of the date of the making of the order under this subsection if the court is satisfied that
1992, c. 46, Sch. I
Special Retirement Arrangements Act
2002, c. 17, s. 29(2)
503. Paragraph 11(3)(a) of the Special Retirement Arrangements Act is replaced by the following: (a) subsection 5(6) of the Public Service Superannuation Act;
384 R.S., c. R-11
C. 31
Jobs and Gr Royal Canadian Mounted Police Superannuation Act Amendments to the Act
1999, c. 34, s. 169(1)
“contributor” « contributeur »
504. The portion of the definition “contributor” in subsection 3(1) of the Royal Canadian Mounted Police Superannuation Act before paragraph (b) is replaced by the following: “contributor” means a person who is required by section 5 to contribute to the Royal Canadian Mounted Police Pension Fund, and includes, unless the context otherwise requires, (a) a person who has ceased to be required by this Act to contribute to the Superannuation Account or the Royal Canadian Mounted Police Pension Fund, and
1999, c. 34, s. 171
505. Section 5 of the Act is replaced by the following:
Contribution rates — 2013 and later
5. (1) A member of the Force is required to contribute to the Royal Canadian Mounted Police Pension Fund, in respect of every portion of the period beginning on January 1, 2013, by reservation from pay or otherwise, at the contribution rates determined by the Treasury Board in respect of that portion on the joint recommendation of the President of the Treasury Board and the Minister.
Contribution rates — 35 years of service
(2) A person who has to his or her credit, on or after January 1, 2013, a period of pensionable service — or a period of pensionable service and other pensionable service — totalling at least 35 years is not required to contribute under subsection (1) but is required to contribute, by reservation from pay or otherwise, to the Royal Canadian Mounted Police Pension Fund, in respect of the period beginning on the later of January 1, 2013 and the day on which the person has to his or her credit those 35 years, in addition to any other amount required under this Act, at the rates determined by the Treasury Board on the joint recommendation of the President of the Treasury Board and the Minister.
2011-2012
Emploi et croi
Limitation — determination of contribution rate
(3) In determining the contribution rates for the purposes of subsections (1) and (2), the rates must not exceed the rates paid under section 5 of the Public Service Superannuation Act by Group 1 contributors described in subsection 12(0.1) of that Act.
Other pensionable service
(4) For the purpose of subsection (2), “other pensionable service” means years of service giving rise to a superannuation or pension benefit of a kind specified in the regulations that is payable (a) out of the Consolidated Revenue Fund, or out of any account in the accounts of Canada other than the Superannuation Account; or (b) out of the Canadian Forces Pension Fund within the meaning of the Canadian Forces Superannuation Act or the Public Service Pension Fund within the meaning of the Public Service Superannuation Act.
Contributions not required
(5) Despite anything in this Part, no person shall, in respect of any period of his or her service on or after December 15, 1994, make a contribution under this Part in respect of any portion of his or her annual rate of pay that is in excess of the annual rate of pay that is fixed by or determined in the manner prescribed by the regulations.
Exception
(6) A member of the Force who is engaged to work on average fewer than a number of hours per week or days per year prescribed in the regulations shall not contribute under this Act.
1999, c. 34, s. 172(1)
506. Clause 6(a)(ii)(A) of the Act is replaced by the following: (A) any period during which he or she was required by subsections 5(1) and (2), as they read on December 31, 2012, to contribute to the Superannuation Account or the Royal Canadian Mounted Police Pension Fund, and any period during which he or she is required by subsection 5(1) to contribute to the Royal Canadian Mounted Police Pension Fund,
C. 31
1999, c. 34, s. 174(1)
507. (1) Subparagraphs 7(1)(d)(iv) and (v) of the Act are replaced by the following:
Jobs and Gr
(iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(2), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 174(1)
(2) Subparagraphs 7(1)(e)(iv) and (v) of the Act are replaced by the following: (iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(2), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
2011-2012
Emploi et croi
1999, c. 34, s. 177
508. Subsection 10(5) of the Act is replaced by the following:
Computation of average annual pay
(5) For the purposes of subparagraphs (1)(a)(ii) and (iii), a period of service during which a person continues to be a member of the Force and is required to make contributions under subsection 5(2), or was required to make contributions under subsection 5(5), (6) or (7) as it read on December 31, 2012, is deemed to be a period of pensionable service to his or her credit.
1999, c. 34, s. 190(1)
509. Subparagraphs 24(1)(b)(iv) and (v) of the Act are replaced by the following: (iv) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (v) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(2), as it read on December 31, 2012, in respect of that period or portion, and (vi) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1999, c. 34, s. 192
510. Paragraphs 25.1(2)(b) and (c) of the Act are replaced by the following: (b) three persons appointed from among persons required to contribute to the Royal Canadian Mounted Police Pension Fund who are nominated for appointment by a body that, in the Minister’s opinion, represents such persons; (c) two persons appointed from among persons required to contribute to the Royal Canadian Mounted Police Pension Fund; and
2009, c. 13, s. 8(1)
511. (1) Paragraph 26.1(1)(a) of the Act is replaced by the following:
C. 31
Jobs and Gr
(a) fixing an annual rate of pay for the purposes of subsection 5(5) or paragraph 10(4)(b) or prescribing the manner of determining the annual rate of pay; 1999, c. 34, s. 194(2)
(2) Paragraph 26.1(1)(c.1) of the Act is replaced by the following: (c.1) prescribing the number of hours per week and the number of days per year for the purposes of subsection 5(6), clauses 6(b)(ii)(F.1), (M) and (N) and paragraph 7(1)(i);
1999, c. 34, s. 195
512. Paragraphs 27(1)(d) and (e) of the Act are replaced by the following: (d) if that period or any portion of it was after 1999 but before January 1, 2004, in the manner and at the rates set out in subsection 5(1), as it read on December 31, 2003, in respect of that period or portion, (e) if that period or any portion of it was after 2003 but before January 1, 2013, in the manner and at the rates determined under subsection 5(2), as it read on December 31, 2012, in respect of that period or portion, and (f) if that period or any portion of it was after 2012, in the manner set out in subsection 5(1) and at the rates determined by the Treasury Board under that subsection, in respect of that period or portion,
1992, c. 46, Sch. I
Consequential Amendment to the Special Retirement Arrangements Act
2002, c. 17, s. 29(2)
513. Paragraph 11(3)(c) of the Special Retirement Arrangements Act is replaced by the following: (c) subsection 5(5) of the Royal Canadian Mounted Police Superannuation Act; or
Emploi et croi
2011-2012 Coming into Force January 1, 2013
514. (1) Subject to subsection (2), this Division comes into force or is deemed to have come into force on January 1, 2013.
Order in council
(2) Subsection 467(4) and section 468 come into force on a day to be fixed by order of the Governor in Council. DIVISION 24
1999, c. 17; 2005, c. 38, s. 35
CANADA REVENUE AGENCY ACT 515. (1) Paragraph 51(1)(d) of the Canada Revenue Agency Act is replaced by the following: (d) after consulting with the President of the Treasury Board, determine and regulate the pay to which persons employed by the Agency are entitled for services rendered, the hours of work and leave of those persons and any related matters; (2) Paragraph 51(1)(h) of the Act is replaced by the following: (h) after consulting with the President of the Treasury Board, determine and regulate the payments that may be made to Agency employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and
2003, c. 22, s. 99
516. Section 58 of the Act is replaced by the following:
Negotiation of collective agreements
58. Before entering into collective bargaining with the bargaining agent for a bargaining unit composed of Agency employees, the Agency must have its negotiating mandate approved by the President of the Treasury Board.
C. 31
Jobs and Growth, 2 SCHEDULE 1 (Section 179)
SCHEDULE (Section 2 and paragraph 28(1)(b)) A territory in the City of Windsor, County of Essex, Province of Ontario, confined within the boundaries described as follows: Commencing at the intersection of the north limit of Broadway Street and the west limit of Ojibway Parkway, being the northwest corner of Part 5 on Plan 12R-3890 deposited in the Land Registry Office for the Land Titles Division of Essex; Thence in a westerly direction along the north limit of Broadway Street as described in PIN 01267-0538 LT, PIN 01267-0539 LT, PIN 01268-0232 LT and PIN 01269-0257 LT, recorded in the Land Registry Office for the Land Titles Division of Essex, to a point in the east limit of Sandwich Street, being the northeast corner of Part 6 on Plan 12R-23977 deposited in the Land Registry Office for the Land Titles Division of Essex; Thence continuing in a westerly direction along the southerly limits of Parts 7, 4, 3, 2 and 1 on Plan 12R-23977 deposited in the Land Registry Office for the Land Titles Division of Essex to the east limit of the Windsor Port Authority property as described in PIN 01590-0011 LT recorded in the Land Registry Office for the Land Titles Division of Essex; Thence in a northerly direction along the east limit of the Windsor Port Authority property as described in PIN 01590-0011 LT recorded in the Land Registry Office for the Land Titles Division of Essex and being the east limit of part of Part 1 and Part 2 on Plan 12R-6460 deposited in the Land Registry Office for the Land Titles Division of Essex; Thence continuing in a northerly direction along the east limit of the Windsor Port Authority property, which follows the west limit of Part 4 on Plan 12R-19751 deposited in the Land Registry Office for the Land Titles Division of Essex to the production westerly of the south limit of McKee Street, being the northwest corner of Part 4 on Plan 12R-19751 deposited in the Land Registry Office for the Land Titles Division of Essex; Thence continuing in a northerly direction to a point, being the southwest corner of the property described in PIN 01553-0362 LT recorded in the Land Registry Office for the Land Titles Division of Essex and being the westerly production of the north limit of McKee Street; Thence continuing in a northerly direction along the east limit of the Windsor Port Authority property, which follows the west limit of the property described in PIN 01553-0362 LT recorded in the Land Registry Office for the Land Titles Division of Essex to the northwest corner of the property described in PIN 01553-0362 LT recorded in the Land Registry Office for the Land Titles Division of Essex; Thence in an easterly direction along an arbitrary line to the northwest corner of Prospect Avenue as described in PIN 01553-0342 LT recorded in the Land Registry Office for the Land Titles Division of Essex;
2011-2012
Emploi et croissance
Thence continuing in an easterly direction along the north limit of Prospect Avenue to the northeast corner of Prospect Avenue as described in PIN 01553-0342 LT recorded in the Land Registry Office for the Land Titles Division of Essex; Thence continuing in an easterly direction along the easterly production of the north limit of Prospect Avenue to the east limit of Sandwich Street to a point which is the northeast corner of the property described in PIN 01553-0378 LT recorded in the Land Registry Office for the Land Titles Division of Essex; Thence in a southerly direction along the east limit of Sandwich Street as described in PIN 01553-0378 LT recorded in the Land Registry Office for the Land Titles Division of Essex to a point in the southerly limit of Ojibway Parkway, being the northwest corner of Part 1 on Plan 12R-15499 deposited in the Land Registry Office for the Land Titles Division of Essex; Thence in a southeasterly and southerly direction along the southwesterly and westerly limit of Ojibway Parkway as described in PIN 01258-0314 LT, PIN 01258-0321 LT, PIN 01258-0295 LT and PIN 01267-0427 LT recorded in the Land Registry Office for the Land Titles Division of Essex to the point of commencement.
C. 31
Jobs and Growth, 2
SCHEDU (Section
SCHED (Section 3, subsections 4(1) and (3), 5(1) and 6(1), section 8, subsection paragraphs 28(1)(e) and 28(2)(b) an
NAVIGABLE
PART
OCEANS AN
Item
Column 1 Name
Column 2 Approximate L
1. Arctic Ocean
80°00′00″ N, 1
2. Pacific Ocean
50°00′00″ N, 1
3. Powell Lake
50°04′59″ N, 1
4. Williston Lake
55°57′55″ N, 1
5. Pitt Lake
49°25′00″ N, 1
6. Harrison Lake
49°26′05″ N, 1
7. Great Bear Lake
65°50′00″ N, 1
8. Kamloops Lake
50°43′59″ N, 1
9. Okanagan Lake
49°45′00″ N, 1
10. Little Shuswap Lake
50°50′59″ N, 1
2011-2012
Emploi et croissance
Item
Column 1 Name
Column 2 Approximate L
11. Shuswap Lake
50°55′59″ N, 1
12. Mara Lake
50°46′59″ N, 1
13. Lake Revelstoke
51°25′09″ N, 1
14. Kinbasket Lake
52°07′59″ N, 1
15. Lower Arrow Lake
49°45′00″ N, 1
16. Upper Arrow Lake
50°34′59″ N, 1
17. Kootenay Lake
49°40′00″ N, 1
18. Great Slave Lake
61°30′00″ N, 1
19. Lake Athabasca
59°00′00″ N, 1
20. Lake Winnipegosis
52°28′59″ N, 9
21. Lake Manitoba
50°25′42″ N, 9
22. Lake Winnipeg
52°07′54″ N, 9
23. Baker Lake
64°10′00″ N, 9
24. Lake of the Woods
49°01′41″ N, 9
C. 31
Jobs and Growth, 2
Item
Column 1 Name
Column 2 Approximate L
25. Eagle Lake
49°40′53″ N, 9
26. Rainy Lake
48°38′12″ N, 9
27. Nipigon Lake
49°50′00″ N, 8
28. Lake Superior
48°19′56″ N, 8
29. Lake St. Clair
42°24′01″ N, 8
30. Lake Huron
44°38′26″ N, 8
31. Lake Erie
42°27′14″ N, 8
32. Nipissing Lake
46°16′02″ N, 7
33. Joseph Lake
45°11′30″ N, 7
34. Little Lake
44°49′06″ N, 7
35. Gloucester Pool
44°50′41″ N, 7
36. Cain Lake
44°54′38″ N, 7
37. Rosseau Lake
45°10′25″ N, 7
38. Muskoka Lake
45°03′12″ N, 7
2011-2012
Emploi et croissance
Item
Column 1 Name
Column 2 Approximate L
39. Timiskaming Lake
47°07′52″ N, 7
40. Sparrow Lake
44°49′06″ N, 7
41. Lake Couchiching
44°39′51″ N, 7
42. Lake Simcoe
44°25′24″ N, 7
43. Vernon Lake
45°19′46″ N, 7
44. Mary Lake
45°14′39″ N, 7
45. Fairy Lake
45°19′43″ N, 7
46. Peninsula Lake
45°20′20″ N, 7
47. Lake of Bays
45°14′04″ N, 7
48. Canal Lake
44°34′02″ N, 7
49. Mitchell Lake
44°34′25″ N, 7
50. Lake Scugog
44°11′00″ N, 7
51. Balsam Lake
44°34′49″ N, 7
52. Cameron Lake
44°33′07″ N, 7
C. 31
Jobs and Growth, 2
Item
Column 1 Name
Column 2 Approximate L
53. Sturgeon Lake
44°28′27″ N, 7
54. Pigeon Lake
44°29′25″ N, 7
55. Little Bald Lake
44°34′28″ N, 7
56. Buckhorn Lake
44°29′04″ N, 7
57. Chemong Lake
44°23′18″ N, 7
58. Big Bald Lake
44°34′35″ N, 7
59. Upper Chemong Lake
44°28′52″ N, 7
60. Lower Buckhorn Lake
44°33′03″ N, 7
61. Katchewanooka Lake
44°27′15″ N, 7
62. Lovesick Lake
44°33′25″ N, 7
63. Clear Lake
44°30′55″ N, 7
64. Fairy Lake
44°32′54″ N, 7
65. Rice Lake
44°11′17″ N, 7
66. Stony Lake
44°33′45″ N, 7
2011-2012
Emploi et croissance
Item
Column 1 Name
Column 2 Approximate L
67. Big Duck Pond
44°33′25″ N, 7
68. Duck Pond
44°33′40″ N, 7
69. Lake Ontario
43°47′43″ N, 7
70. Seymour Lake
44°23′05″ N, 7
71. Colonel By Lake
44°18′29″ N, 7
72. Loon Lake
44°36′41″ N, 7
73. Pollywog Lake
44°36′39″ N, 7
74. Mosquito Lake
44°36′06″ N, 7
75. Benson Lake
44°35′21″ N, 7
76. Dog Lake
44°26′07″ N, 7
77. Upper Rideau Lake
44°40′57″ N, 7
78. Opinicon Lake
44°33′32″ N, 7
79. Cranesnest Lake
44°27′44″ N, 7
80. Indian Lake
44°35′31″ N, 7
C. 31
Jobs and Growth, 2
Item
Column 1 Name
Column 2 Approximate L
81. Newboro Lake
44°37′53″ N, 7
82. Clear Lake
44°36′19″ N, 7
83. Cranberry Lake
44°26′21″ N, 7
84. Sand Lake
44°34′06″ N, 7
85. Little Cranberry Lake
44°28′37″ N, 7
86. Whitefish Lake
44°30′56″ N, 7
87. Lost Lake
44°44′08″ N, 7
88. Long Island Lake
44°44′16″ N, 7
89. Adams Lake
44°48′42″ N, 7
90. Big Rideau Lake
44°46′14″ N, 7
91. Little Lake
44°43′39″ N, 7
92. Lower Rideau Lake
44°51′58″ N, 7
93. Dows Lake
45°23′40″ N, 7
94. Lac des Deux Montagnes
45°26′59″ N, 7
Emploi et croissance
2011-2012
Item
Column 1 Name
Column 2 Approximate L
95. Lac Memphrémagog
45°08′34″ N, 7
96. Lac Saint-Jean
48°35′40″ N, 7
97. Atlantic Ocean
43°00′00″ N, 6
98. Bras d’Or Lake
45°51′36″ N, 6
99. Great Bras d’Or Lake
46°03′24″ N, 6
100. Lake Melville
53°40′55″ N, 5
PART RIVERS AND
Item
Column 1 Name
Column 2 Approximate Downstream Point
1. Yukon River
64°40′57″ N, 141°00′00″ W
2. Mackenzie River
69°20′59″ N, 133°54′10″ W
3. Skeena River
54°01′00″ N, 130°06′12″ W
4. Fraser River
49°06′10″ N, 123°17′59″ W
5. Pitt River
49°13′43″ N, 122°46′03″ W
6. Harrison River
49°13′51″ N, 121°56′43″ W
C. 31
Jobs and Growth, 2
Item
Column 1 Name
Column 2 Approximate Downstream Point
7. Thompson River
50°13′59″ N, 121°34′59″ W
8. South Thompson River
50°40′50″ N, 120°20′18″ W
9. Kootenay River
49°18′56″ N, 117°39′08″ W
10. Columbia River
49°00′00″ N, 117°37′59″ W
11. Bow River
49°56′05″ N, 111°41′19″ W
12. Peace River
59°00′01″ N, 111°24′47″ W
13. Athabasca River
58°40′00″ N, 110°49′59″ W
14. North Saskatchewan River
53°15′00″ N, 105°05′01″ W
15. South Saskatchewan River
53°15′00″ N, 105°05′01″ W
16. Assiniboine River
49°53′08″ N, 97°07′41″ W
17. Red River
50°23′12″ N, 96°47′58″ W
18. Winnipeg River
50°37′54″ N, 96°19′13″ W
19. Rainy River
48°50′20″ N, 94°41′08″ W
20. St. Marys River
46°03′34″ N, 83°56′44″ W
21. Detroit River
42°04′54″ N, 83°07′32″ W
22. St. Clair River
42°36′53″ N, 82°30′59″ W
23. French River
45°56′28″ N, 80°54′05″ W
24. Moose River
51°23′15″ N, 80°21′54″ W
2011-2012
Emploi et croissance
Item
Column 1 Name
Column 2 Approximate Downstream Point
25. Severn River
44°48′13″ N, 79°43′12″ W
26. Grand River
42°51′18″ N, 79°34′40″ W
27. Holland River East Branch
44°10′21″ N, 79°30′54″ W
28. Holland River
44°12′10″ N, 79°30′52″ W
29. Humber River
43°37′55″ N, 79°28′19″ W
30. Welland Canal
43°14′41″ N, 79°12′60″ W
31. North Branch of Muskoka River
45°14′39″ N, 79°15′30″ W
32. 44°28′15″ N, 79°09′48″ W
33. Talbot River / Trent Canal The Canal
45°20′06″ N, 79°08′43″ W
34. Niagara River
43°15′43″ N, 79°04′23″ W
35. Trent Canal
44°34′59″ N, 79°00′34″ W
36. Rosedale River
44°34′13″ N, 78°45′57″ W
37. Scugog River
44°24′06″ N, 78°45′00″ W
38. Fenelon River
44°31′37″ N, 78°43′41″ W
39. Pigeon River
44°21′48″ N, 78°30′54″ W
40. Trent Canal
44°17′57″ N, 78°18′84″ W
41. Otonabee River
44°25′58″ N, 78°16′23″ W
42. Murray Canal
44°02′04″ N, 77°40′29″ W
43. Trent River / Canal
44°05′59″ N, 77°34′18″ W
C. 31
Jobs and Growth, 2
Item
Column 1 Name
Column 2 Approximate Downstream Point
44. Petawawa River
45°54′38″ N, 77°15′30″ W
45. Cataraqui River
44°13′59″ N, 76°28′00″ W
46. River Styx
44°21′17″ N, 76°23′32″ W
47. Stevens Creek
44°36′41″ N, 76°23′16″ W
48. Tay River / Canal
44°52′43″ N, 76°06′46″ W
49. Rideau Canal
45°25′34″ N, 75°41′52″ W
50. Rideau River
45°26′27″ N, 75°41′47″ W
51. Kemptville Creek
45°03′20″ N, 75°39′15″ W
52. Ottawa River
45°33′59″ N, 74°23′11″ W
53. Canal de Beauharnois 45°13′41″ N, 74°10′12″ W
54. Lachine Canal
55. Rivière des Mille-Îles 45°41′46″ N, 73°32′00″ W
56. Rivière des Prairies
45°42′30″ N, 73°28′43″ W
57. Richelieu River
46°02′49″ N, 73°07′11″ W
58. Rivière Saint-Maurice 46°20′58″ N, 72°31′42″ W
59. Saguenay River
48°07′59″ N, 69°43′59″ W
60. Saint John River
45°16′00″ N, 66°04′00″ W
61. Saint Lawrence River 49°40′00″ N, 64°29′59″ W
45°25′50″ N, 73°41′25″ W
2011-2012
Emploi et croissance
Item
Column 1 Name
Column 2 Approximate Downstream Point
62. LaHave River
44°15′59″ N, 64°19′57″ W
C. 31
Jobs and Growth, 2
ANNE (artic
ANN (article 3, paragraphes 4(1) et (3), 5(1) et 6(1), article 8, paragraphes 28(1)e) et 28(2)b) et c) et
EAUX NA
PAR
OCÉANS
Colonne 1 Nom
Colonne 2 Emplacement app
1. Océan Arctique
80°00′00″ N., 140
2. Océan Pacifique
50°00′00″ N., 135
3. Lac Powell
50°04′59″ N., 124
4. Lac Williston
55°57′55″ N., 123
5. Lac Pitt
49°25′00″ N., 122
6. Lac Harrison
49°26′05″ N., 121
7. Grand lac de l’Ours
65°50′00″ N., 120
8. Lac Kamloops
50°43′59″ N., 120
9. Lac Okanagan
49°45′00″ N., 119
Article
Emploi et croissance
2011-2012 Colonne 1 Nom
Colonne 2 Emplacement app
10. Lac Little Shuswap
50°50′59″ N., 119
11. Lac Shuswap
50°55′59″ N., 119
12. Lac Mara
50°46′59″ N., 118
13. Lac Revelstoke
51°25′09″ N., 118
14. Lac Kinbasket
52°07′59″ N., 118
15. Lac Lower Arrow
49°45′00″ N., 118
16. Lac Upper Arrow
50°34′59″ N., 117
17. Lac Kootenay
49°40′00″ N., 116
18. Grand lac des Esclaves
61°30′00″ N., 114
19. Lac Athabasca
59°00′00″ N., 110
20. Lac Winnipegosis
52°28′59″ N., 99°
21. Lac Manitoba
50°25′42″ N., 98°
22. Lac Winnipeg
52°07′54″ N., 97°
23. Lac Baker
64°10′00″ N., 95°
Article
C. 31
Jobs and Growth, 2
Colonne 1 Nom
Colonne 2 Emplacement app
24. Lac des Bois
49°01′41″ N., 94°
25. Lac Eagle
49°40′53″ N., 93°
26. Lac à la Pluie
48°38′12″ N., 93°
27. Lac Nipigon
49°50′00″ N., 88°
28. Lac Supérieur
48°19′56″ N., 87°
29. Lac Sainte-Claire
42°24′01″ N., 82°
30. Lac Huron
44°38′26″ N., 81°
31. Lac Érié
42°27′14″ N., 81°
32. Lac Nipissing
46°16′02″ N., 79°
33. Lac Joseph
45°11′30″ N., 79°
34. Lac Little
44°49′06″ N., 79°
35. Gloucester Pool
44°50′41″ N., 79°
36. Lac Cain
44°54′38″ N., 79°
37. Lac Rosseau
45°10′25″ N., 79°
Article
Emploi et croissance
2011-2012 Colonne 1 Nom
Colonne 2 Emplacement app
38. Lac Muskoka
45°03′12″ N., 79°
39. Lac Timiskaming
47°07′52″ N., 79°
40. Lac Sparrow
44°49′06″ N., 79°
41. Lac Couchiching
44°39′51″ N., 79°
42. Lac Simcoe
44°25′24″ N., 79°
43. Lac Vernon
45°19′46″ N., 79°
44. Lac Mary
45°14′39″ N., 79°
45. Lac Fairy
45°19′43″ N., 79°
46. Lac Peninsula
45°20′20″ N., 79°
47. Lac des Baies
45°14′04″ N., 79°
48. Lac Canal
44°34′02″ N., 79°
49. Lac Mitchell
44°34′25″ N., 78°
50. Lac Scugog
44°11′00″ N., 78°
51. Lac Balsam
44°34′49″ N., 78°
Article
C. 31
Jobs and Growth, 2
Colonne 1 Nom
Colonne 2 Emplacement app
52. Lac Cameron
44°33′07″ N., 78°
53. Lac Sturgeon
44°28′27″ N., 78°
54. Lac Pigeon
44°29′25″ N., 78°
55. Lac Little Bald
44°34′28″ N., 78°
56. Lac Buckhorn
44°29′04″ N., 78°
57. Lac Chemong
44°23′18″ N., 78°
58. Lac Big Bald
44°34′35″ N., 78°
59. Lac Upper Chemong
44°28′52″ N., 78°
60. Lac Lower Buckhorn
44°33′03″ N., 78°
61. Lac Katchewanooka
44°27′15″ N., 78°
62. Lac Lovesick
44°33′25″ N., 78°
63. Lac Clear
44°30′55″ N., 78°
64. Lac Fairy
44°32′54″ N., 78°
65. Lac Rice
44°11′17″ N., 78°
Article
Emploi et croissance
2011-2012
Article
Colonne 1 Nom
Colonne 2 Emplacement app
66. Lac Stony
44°33′45″ N., 78°
67. Big Duck Pond
44°33′25″ N., 78°
68. Duck Pond
44°33′40″ N., 78°
69. Lac Ontario
43°47′43″ N., 77°
70. Lac Seymour
44°23′05″ N., 77°
71. Lac Colonel By
44°18′29″ N., 76°
72. Lac Loon
44°36′41″ N., 76°
73. Lac Pollywog
44°36′39″ N., 76°
74. Lac Mosquito
44°36′06″ N., 76°
75. Lac Benson
44°35′21″ N., 76°
76. Lac Dog
44°26′07″ N., 76°
77. Lac Upper Rideau
44°40′57″ N., 76°
78. Lac Opinicon
44°33′32″ N., 76°
79. Lac Cranesnest
44°27′44″ N., 76°
C. 31
Jobs and Growth, 2
Article
Colonne 1 Nom
Colonne 2 Emplacement app
80. Lac Indian
44°35′31″ N., 76°
81. Lac Newboro
44°37′53″ N., 76°
82. Lac Clear
44°36′19″ N., 76°
83. Lac Cranberry
44°26′21″ N., 76°
84. Lac Sand
44°34′06″ N., 76°
85. Lac Little Cranberry
44°28′37″ N., 76°
86. Lac Whitefish
44°30′56″ N., 76°
87. Lac Lost
44°44′08″ N., 76°
88. Lac Long Island
44°44′16″ N., 76°
89. Lac Adams
44°48′42″ N., 76°
90. Grand Lac Rideau
44°46′14″ N., 76°
91. Lac Little
44°43′39″ N., 76°
92. Lac Lower Rideau
44°51′58″ N., 76°
93. Lac Dows
45°23′40″ N., 75°
Emploi et croissance
2011-2012 Colonne 1 Nom
Colonne 2 Emplacement app
94. Lac des Deux-Montagnes
45°26′59″ N., 73°
95. Lac Memphrémagog
45°08′34″ N., 72°
96. Lac Saint-Jean
48°35′40″ N., 72°
97. Océan Atlantique
43°00′00″ N., 63°
98. Lac Bras-d’Or
45°51′36″ N., 60°
99. Grand Lac Bras-d’Or
46°03′24″ N., 60°
100. Lac Melville
53°40′55″ N., 59°
Article
PAR
RIVIÈRES E
Article 1.
Colonne 1 Nom Fleuve Yukon
Colonne 2 Point en aval approximatif 64°40′57″ N., 141°00′00″ O.
Co Po 60
2. Rivière Mackenzie
69°20′59″ N., 133°54′10″ O.
3. Fleuve Skeena
54°01′00″ N., 130°06′12″ O.
4. Fleuve Fraser
49°06′10″ N., 123°17′59″ O.
5. Rivière Pitt
49°13′43″ N., 122°46′03″ O.
6. Rivière Harrison
49°13′51″ N., 121°56′43″ O.
C. 31
Jobs and Growth, 2
Article 7.
Colonne 1 Nom Rivière Thompson
Colonne 2 Point en aval approximatif 50°13′59″ N., 121°34′59″ O.
Co Po 50
8. Rivière Thompson Sud
50°40′50″ N., 120°20′18″ O.
9. Rivière Kootenay
49°18′56″ N., 117°39′08″ O.
10. Fleuve Columbia
49°00′00″ N., 117°37′59″ O.
11. Rivière Bow
49°56′05″ N., 111°41′19″ O.
12. Rivière de la Paix
59°00′01″ N., 111°24′47″ O.
13. Rivière Athabasca
58°40′00″ N., 110°49′59″ O.
14. Rivière Saskatchewan 53°15′00″ N., 105°05′01″ O. Nord
15. Rivière Saskatchewan 53°15′00″ N., 105°05′01″ O. Sud
16. Rivière Assiniboine
49°53′08″ N., 97°07′41″ O.
17. Rivière Rouge
50°23′12″ N., 96°47′58″ O.
18. Rivière Winnipeg
50°37′54″ N., 96°19′13″ O.
19. Rivière à la Pluie
48°50′20″ N., 94°41′08″ O.
20. Rivière Sainte-Marie
46°03′34″ N., 83°56′44″ O.
21. Rivière Détroit
42°04′54″ N., 83°07′32″ O.
22. Rivière Sainte-Claire
42°36′53″ N., 82°30′59″ O.
23. Rivière des Français
45°56′28″ N., 80°54′05″ O.
24. Rivière Moose
51°23′15″ N., 80°21′54″ O.
25. Rivière Severn
44°48′13″ N., 79°43′12″ O.
26. Rivière La Grande
42°51′18″ N., 79°34′40″ O.
27. Rivière Holland, bras Est 44°10′21″ N., 79°30′54″ O.
28. Rivière Holland
44°12′10″ N., 79°30′52″ O.
2011-2012
Emploi et croissance
Colonne 1 Nom Rivière Humber
Colonne 2 Point en aval approximatif 43°37′55″ N., 79°28′19″ O.
Co Po 43
43°14′41″ N., 79°12′60″ O. 45°14′39″ N., 79°15′30″ O.
42 45
44°28′15″ N., 79°09′48″ O.
33. Canal Welland Rivière Muskoka, bras Nord Rivière Talbot / Canal Trent Le Canal
45°20′06″ N., 79°08′43″ O.
34. Rivière Niagara
43°15′43″ N., 79°04′23″ O.
35. Canal Trent
44°34′59″ N., 79°00′34″ O.
36. Rivière Rosedale
44°34′13″ N., 78°45′57″ O.
37. Rivière Scugog
44°24′06″ N., 78°45′00″ O.
38. Rivière Fenelon
44°31′37″ N., 78°43′41″ O.
39. Rivière Pigeon
44°21′48″ N., 78°30′54″ O.
40. Canal Trent
44°17′57″ N., 78°18′84″ O.
41. 42. 43.
Rivière Otonabee Canal Murray Rivière Trent/Canal
44°25′58″ N., 78°16′23″ O. 44°02′04″ N., 77°40′29″ O. 44°05′59″ N., 77°34′18″ O.
44 44 44
44. Rivière Petawawa
45°54′38″ N., 77°15′30″ O.
45. Rivière Cataraqui
44°13′59″ N., 76°28′00″ O.
46. Rivière Styx
44°21′17″ N., 76°23′32″ O.
47. Ruisseau Stevens
44°36′41″ N., 76°23′16″ O.
48. Rivière Tay/Canal
44°52′43″ N., 76°06′46″ O.
49. Canal Rideau
45°25′34″ N., 75°41′52″ O.
50. Rivière Rideau
45°26′27″ N., 75°41′47″ O.
51. Ruisseau Kemptville
45°03′20″ N., 75°39′15″ O.
52. Rivière des Outaouais
45°33′59″ N., 74°23′11″ O.
53. 54. 55.
Canal de Beauharnois Canal Lachine Rivière des Mille Îles
45°13′41″ N., 74°10′12″ O. 45°25′50″ N., 73°41′25″ O. 45°41′46″ N., 73°32′00″ O.
45 45 45
Article 29. 30. 31. 32.
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Jobs and Growth, 2
Article 56. 57.
Colonne 1 Nom Rivière des Prairies Rivière Richelieu
Colonne 2 Point en aval approximatif 45°42′30″ N., 73°28′43″ O. 46°02′49″ N., 73°07′11″ O.
Co Po 45 45
58. Rivière Saint-Maurice
46°20′58″ N., 72°31′42″ O.
59. Rivière Saguenay
48°07′59″ N., 69°43′59″ O.
60. Rivière Saint John
45°16′00″ N., 66°04′00″ O.
61. Fleuve Saint-Laurent
49°40′00″ N., 64°29′59″ O.
62. Rivière LaHave
44°15′59″ N., 64°19′57″ O.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 25 An Act to amend the Food and Drugs Act (non-corrective contact lenses)
ASSENTED TO 14th DECEMBER, 2012 BILL C-313
SUMMARY This enactment amends the Food and Drugs Act to deem that a noncorrective contact lens is a device for the purposes of the Act. This enactment will ensure that non-corrective contact lenses are subject to the requirements of the Food and Drugs Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 25 An Act to amend the Food and Drugs Act (noncorrective contact lenses)
[Assented to 14th December, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. F-27
FOOD AND DRUGS ACT 1. The Food and Drugs Act is amended by adding the following after section 2:
Non-corrective contact lenses
2.1 For the purposes of this Act, a noncorrective contact lens is deemed to be a device. COMING INTO FORCE
Order in council
2. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 19 An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures
ASSENTED TO 29th JUNE, 2012 BILL C-38
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures”.
SUMMARY Part 1 of this enactment implements certain income tax measures and related measures proposed in the March 29, 2012 budget. Most notably, it (a) expands the list of eligible expenses under the Medical Expense Tax Credit to include blood coagulation monitors and their disposable peripherals; (b) introduces a temporary measure to allow certain family members to open a Registered Disability Savings Plan for an adult individual who might not be able to enter into a contract; (c) extends, for one year, the temporary Mineral Exploration Tax Credit for flow-through share investors; (d) allows corporations to make split and late eligible dividend designations; (e) makes the salary of the Governor General taxable and adjusts that salary; (f) allows a designated partner of a partnership to provide a waiver on behalf of all partners to extend the time limit for issuing a determination in respect of the partnership; (g) amends the penalty applicable to promoters of charitable donation tax shelters who file false registration information or who fail to register a tax shelter prior to selling interests in the tax shelter; (h) introduces a new penalty applicable to tax shelter promoters who fail to respond to a demand to file an information return or who file an information return that contains false or misleading sales information; (i) limits the period for which a tax shelter identification number is valid to one calendar year; (j) modifies the rules for registering certain foreign charitable organizations as qualified donees; (k) amends the rules for determining the extent to which a charity has engaged in political activities; and (l) provides the Minister of National Revenue with the authority to suspend the privileges, with respect to issuing tax receipts, of a registered charity or a registered Canadian amateur athletic association if the charity or association fails to report information that is required to be filed annually in an information return or devotes resources to political activities in excess of the limits set out in the Income Tax Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
Part 1 also implements other selected income tax measures and related measures. Most notably, it (a) amends the Income Tax Act consequential on the implementation of the Marketing Freedom for Grain Farmers Act, including the extension of the tax deferral allowed to farmers in a designated area who produce listed grains and receive deferred cash purchase tickets to all Canadian farmers who produce listed grains and receive deferred cash purchase tickets; (b) provides authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return; and (c) introduces a requirement for commercial tax preparers to file income tax returns electronically. Part 2 amends the Excise Tax Act to implement certain excise tax and goods and services tax/harmonized sales tax (GST/HST) measures proposed in the March 29, 2012 Budget. It expands the list of GST/HST zero-rated medical and assistive devices as well as the list of GST/HST zero-rated non-prescription drugs that are used to treat life-threatening diseases. It also exempts certain pharmacists’ professional services from the GST/HST, other than prescription drug dispensing services that are already zero-rated. It further allows certain literacy organizations to claim a rebate of the GST and the federal component of the HST paid on the acquisition of books to be given away for free by those organizations. It also implements legislative requirements relating to the Government of British Columbia’s decision to exit the harmonized sales tax framework. Additional amendments to that Act and related regulations in respect of foreign-based rental vehicles temporarily imported by Canadian residents provide, in certain circumstances, relief from the GST/HST, the Green Levy on fuel-inefficient vehicles and the automobile air conditioner tax. This Part further amends that Act to ensure that changes to the standardized fuel consumption test method used for the EnerGuide, as announced on February 17, 2012 by the Minister of Natural Resources, do not affect the application of the Green Levy.
Finally, Part 2 amends the Air Travellers Security Charge Act, the Excise Act, 2001 and the Excise Tax Act to provide authority for the Canada Revenue Agency to issue via online notice or regular mail demands to file a return. Part 3 contains certain measures related to responsible resource development. Division 1 of Part 3 enacts the Canadian Environmental Assessment Act, 2012, which establishes a new federal environmental assessment regime. Assessments are conducted in relation to projects, designated by regulations or by the Minister of the Environment, to determine whether they are likely to cause significant adverse environmental effects that fall within the legislative authority of Parliament, or that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that is required for the carrying out of the project. The Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission, the National Energy Board or a review panel established by the Minister are to conduct assessments within applicable time limits. At the end of an assessment, a decision statement is to be issued to the project proponent who is required to comply with the conditions set out in it.
The enactment provides for cooperation between the federal government and other jurisdictions by enabling the delegation of an environmental assessment, the substitution of the process of another jurisdiction for an environmental assessment under the Act and the exclusion of a project from the application of the Act when there is an equivalent assessment by another jurisdiction. The enactment requires that there be opportunities for public participation during an environmental assessment, that participant funding programs and a public registry be established, and that there be follow-up programs in relation to all environmental assessments. It also provides for powers of inspection and fines. Finally, the enactment specifies that federal authorities are not to take certain measures regarding the carrying out of projects on federal lands or outside Canada unless they determine that those projects are not likely to cause significant adverse environmental effects. This Division also makes related amendments to the Environmental Violations Administrative Monetary Penalties Act and consequential amendments to other Acts, and repeals the Canadian Environmental Assessment Act. Division 2 of Part 3 amends the National Energy Board Act to allow the Governor in Council to make the decision about the issuance of certificates for major pipelines. It amends the Act to establish time limits for regulatory reviews under the Act and to enhance the powers of the National Energy Board Chairperson and the Minister responsible for the Act to ensure that those reviews are conducted in a timely manner. It also amends the Act to permit the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters and it establishes an administrative monetary penalty system. Division 3 of Part 3 amends the Canada Oil and Gas Operations Act to authorize the National Energy Board to exercise federal jurisdiction over navigation in respect of pipelines and power lines that cross navigable waters. Division 4 of Part 3 amends the Nuclear Safety and Control Act to extend the maximum allowable term of temporary members of the Canadian Nuclear Safety Commission from six months to three years. It is also amended to allow for a licence to be transferred with the consent of that Commission and it puts in place an administrative monetary penalty system. Division 5 of Part 3 amends the Fisheries Act to focus that Act on the protection of fish that support commercial, recreational or Aboriginal fisheries and to more effectively manage those activities that pose the greatest threats to these fisheries. The amendments provide additional clarity for the authorization of serious harm to fish and of deposits of deleterious substances. The amendments allow the Minister to enter into agreements with provinces and with other bodies, provide for the control and management of aquatic invasive species, clarify and expand the powers of inspectors, and permit the Governor in Council to designate another Minister as the Minister responsible for the administration and enforcement of subsections 36(3) to (6) of the Fisheries Act for the purposes of, and in relation to, subject matters set out by order. Division 6 of Part 3 amends the Canadian Environmental Protection Act, 1999 to provide the Minister of the Environment with the authority to renew disposal at sea permits in prescribed circumstances. It is also amended to change the publication requirements for disposal at sea permits and to provide authority to make regulations respecting time limits for their issuance and renewal. Division 7 of Part 3 amends the Species at Risk Act to allow for the issuance of authorizations with a longer term, to clarify the authority to renew the authorizations and to make compliance with conditions of permits enforceable. The Act is also amended to provide authority to make regulations respecting time limits for the issuance and renewal of permits under the Act. Furthermore, section 77 is amended to ensure that the National Energy Board will be able to issue a certificate when required to do so by the Governor in Council under subsection 54(1) of the National Energy Board Act.
Part 4 enacts and amends several Acts in order to implement various measures. Division 1 of Part 4 amends a number of Acts to eliminate the requirement for the Auditor General of Canada to undertake annual financial audits of certain entities and to assess the performance reports of two agencies. This Division also eliminates other related obligations. Division 2 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Cooperative Credit Associations Act to prohibit the issuance of life annuity-like products. Division 3 of Part 4 provides that PPP Canada Inc. is an agent of Her Majesty for purposes limited to its mandated activities at the federal level, including the provision of advice to federal departments and Crown corporations on public-private partnership projects. Division 4 of Part 4 amends the Northwest Territories Act, the Nunavut Act and the Yukon Act to provide the authority for the Governor in Council to set, on the recommendation of the Minister of Finance, the maximum amount of territorial borrowings and to make regulations in relation to those maximum amounts, including what constitutes borrowing, the relevant entities and the valuation of the borrowings. Division 5 of Part 4 amends the Financial Administration Act to modify, for parent Crown corporations, the period to which their quarterly financial reports relate, so that it is aligned with their financial year, and to include in the place of certain annual tabling requirements related to the business and activities of parent Crown corporations a requirement to make public consolidated quarterly reports on their business and activities. It also amends the Alternative Fuels Act and the Public Service Employment Act to eliminate certain reporting requirements. Division 6 of Part 4 amends the Department of Human Resources and Skills Development Act to establish the Social Security Tribunal and to add provisions authorizing the electronic administration or enforcement of programs, legislation, activities or policies. It also amends the Canada Pension Plan, the Old Age Security Act and the Employment Insurance Act so that appeals from decisions made under those Acts will be heard by the Social Security Tribunal. Finally, it provides for transitional provisions and makes consequential amendments to other Acts. Division 7 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the protection of personal information obtained in the course of administering or enforcing the Canada Pension Plan and the Old Age Security Act and repeals provisions in the Canada Pension Plan and the Old Age Security Act that are substantially the same as those that are added to the Human Resources and Skills Development Act. Division 8 of Part 4 amends the Department of Human Resources and Skills Development Act to add provisions relating to the social insurance registers and Social Insurance Numbers. It also amends the Canada Pension Plan in relation to Social Insurance Numbers and the Employment Insurance Act to repeal certain provisions relating to the social insurance registers and Social Insurance Numbers and to maintain the power to charge the costs of those registers to the Employment Insurance Operating Account. Division 9 of Part 4 amends the Parks Canada Agency Act to provide that the Agency may enter into agreements with other ministers or bodies to assist in the administration and enforcement of legislation in places outside national parks, national historic sites, national marine conservation areas and other protected heritage areas if considerations of geography make it impractical for the other minister or body to administer and enforce that legislation in those places. It also amends that Act to provide that the Chief Executive Officer is to report to the Minister of the Environment under section 31 of that Act every five years. It amends that Act to remove the requirements for annual corporate plans, annual reports and annual audits, and amends that Act, the Canada National Parks Act and the Canada National Marine Conservation Areas Act to provide that that Minister is to review management plans for national parks, national historic
sites, national marine conservation areas and other protected heritage areas at least every 10 years and is to have any amendments to a plan tabled in Parliament. Division 10 of Part 4 amends the Trust and Loan Companies Act, the Bank Act and the Insurance Companies Act in order to allow public sector investment pools that satisfy certain criteria, including pursuing commercial objectives, to directly invest in a Canadian financial institution, subject to approval by the Minister of Finance. Division 11 of Part 4 amends the National Housing Act, the Canada Mortgage and Housing Corporation Act and the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act to enhance the governance and oversight framework of the Canada Mortgage and Housing Corporation. This Division also amends the National Housing Act to establish a registry for institutions that issue covered bonds and for covered bond programs and to provide for the protection of covered bond contracts and covered bond collateral in the event of an issuer’s bankruptcy or insolvency. It also makes amendments to the Trust and Loan Companies Act, the Bank Act, the Insurance Companies Act and the Cooperative Credit Associations Act to prohibit institutions from issuing covered bonds except within the framework established under the National Housing Act. Finally, it includes a coordinating amendment to the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act.
Division 12 of Part 4 implements the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America signed on May 26, 2009. Division 13 of Part 4 amends the Bretton Woods and Related Agreements Act to reflect an increase in Canada’s quota subscription, as related to the ratification of the 2010 Quota and Governance reform resolution of the Board of Governors of the International Monetary Fund, and to align the timing of the annual report under that Act to correspond to that of the annual report under the Official Development Assistance Accountability Act.
Division 14 of Part 4 amends the Canada Health Act so that members of the Royal Canadian Mounted Police are included in the definition of “insured person”. Division 15 of Part 4 amends the Canadian Security Intelligence Service Act to (a) remove the office of the Inspector General; (b) require the Security Intelligence Review Committee to submit to the Minister of Public Safety and Emergency Preparedness a certificate on the Director of the Canadian Security Intelligence Service’s annual report; and (c) increase the information on the Service’s activities to be provided by that Committee to that Minister. Division 16 of Part 4 amends the Currency Act to clarify certain provisions that relate to the calling in and the redemption of coins. Division 17 of Part 4 amends the Federal-Provincial Fiscal Arrangements Act in order to implement the total transfer protection for the 2012-2013 fiscal year and to give effect to certain elements of major transfer renewal that were announced by the Minister of Finance on December 19, 2011. It also makes certain administrative amendments to that Act and to the Canada Health Act.
Division 18 of Part 4 amends the Fisheries Act to authorize the Minister of Fisheries and Oceans to allocate fish for the purpose of financing scientific and fisheries management activities in the context of joint project agreements. Division 19 of Part 4 amends the Food and Drugs Act to give the Minister of Health the power to establish a list that sets out prescription drugs or classes of prescription drugs and to provide that the list may be incorporated by reference. It also gives the Minister the power to issue marketing authorizations that exempt a food, or an advertisement with respect to a food, from certain provisions of the Act. The division also provides that a regulation with respect to a food and a marketing authorization may incorporate by reference any document. It also makes consequential amendments to other Acts.
Division 20 of Part 4 amends the Government Employees Compensation Act to allow prescribed entities to be subrogated to the rights of employees to make claims against third parties. Division 21 of Part 4 amends the International Development Research Centre Act to reduce the maximum number of governors of the Centre to 14, and to consequently change other rules about the number of governors. Division 22 of Part 4 amends Part I of the Canada Labour Code to require the parties to a collective agreement to file a copy of it with the Minister of Labour, subject to the regulations, as a condition for it to come into force. It amends Part III of that Act to require employers that provide benefits to their employees under long-term disability plans to insure those plans, subject to certain exceptions. The Division also amends that Part to create an offence and to increase maximum fines for offences under that Part.
Division 23 of Part 4 repeals the Fair Wages and Hours of Labour Act. Division 24 of Part 4 amends the Old Age Security Act to provide the Minister of Human Resources and Skills Development with the authority to waive the requirement for an application for Old Age Security benefits for many eligible seniors, to gradually increase the age of eligibility for the Old Age Security Pension, the Guaranteed Income Supplement, the Allowance and the Allowance for the Survivor and to allow individuals to voluntarily defer their Old Age Security Pension up to five years past the age of eligibility, in exchange for a higher, actuarially adjusted, pension. Division 25 of Part 4 dissolves the Public Appointments Commission and its secretariat. Division 26 of Part 4 amends the Seeds Act to give the President of the Canadian Food Inspection Agency the power to issue licences to persons authorizing them to perform activities related to controlling or assuring the quality of seeds or seed crops. Division 27 of Part 4 amends the Statutory Instruments Act to remove the distribution requirements for the Canada Gazette. Division 28 of Part 4 amends the Investment Canada Act in order to authorize the Minister of Industry to communicate or disclose certain information relating to investments and to accept security in order to promote compliance with undertakings. Division 29 of Part 4 amends the Customs Act to allow the Minister of Public Safety and Emergency Preparedness to designate a portion of a roadway or other access way that leads to a customs office and that is used by persons arriving in Canada and by persons travelling within Canada as a mixed-traffic corridor. All persons who are travelling in a mixed-traffic corridor must present themselves to a border services officer and state whether they are arriving from a location outside or within Canada.
Division 30 of Part 4 gives retroactive effect to subsections 39(2) and (3) of the Pension Benefits Standards Act, 1985. Division 31 of Part 4 amends the Railway Safety Act to limit the apportionment of costs to a road authority when a grant has been made under section 12 of that Act. Division 32 of Part 4 amends the Canadian International Trade Tribunal Act to replace the two Vice-chairperson positions with two permanent member positions. Division 33 of Part 4 repeals the International Centre for Human Rights and Democratic Development Act and authorizes the closing out of the affairs of the Centre established by that Act. Division 34 of Part 4 amends the Health of Animals Act to allow the Minister of Agriculture and Agri-Food to declare certain areas to be control zones in respect of a disease or toxic substance. The enactment also grants the Minister certain powers, including the power to make regulations prohibiting the movement of persons, animals or things in the control zones for the purpose of eliminating a disease or toxic substance or controlling its spread and the power to impose conditions on the movement of animals or things in those zones. Division 35 of Part 4 amends the Canada School of Public Service Act to abolish the Board of Governors of the Canada School of Public Service and to place certain responsibilities on the Minister designated for the purposes of the Act and on the President of the School. Division 36 of Part 4 amends the Bank Act by adding a preamble to it. Division 37 of Part 4 amends the Corrections and Conditional Release Act to eliminate the requirement of a hearing for certain reviews. Division 38 of Part 4 amends the Coasting Trade Act to add seismic activities to the list of exceptions to the prohibition against foreign ships and non-duty paid ships engaging in the coasting trade. Division 39 of Part 4 amends the Status of the Artist Act to dissolve the Canadian Artists and Producers Professional Relations Tribunal and transfer its powers and duties to the Canada Industrial Relations Board. Division 40 of Part 4 amends the National Round Table on the Environment and the Economy Act to give the Round Table the power to sell or otherwise dispose of its assets and satisfy its debts and liabilities and to give the Minister of the Environment the power to direct the Round Table in respect of the exercise of some of its powers. The Division provides for the repeal of the Act and makes consequential amendments to other acts.
Division 41 of Part 4 amends the Telecommunications Act to change the rules relating to foreign ownership of Canadian carriers eligible to operate as telecommunications common carriers and to permit the recovery of costs associated with the administration and enforcement of the national do not call list. Division 42 of Part 4 amends the Employment Equity Act to remove the requirements that are specific to the Federal Contractors Program for Employment Equity. Division 43 of Part 4 amends the Employment Insurance Act to permit a person’s benefits to be determined by reference to their highest earnings in a given number of weeks, to permit regulations to be made respecting what constitutes suitable employment, to remove the requirement that a consent to deduction be in writing, to provide a limitation period within which certain repayments of overpayments need to be deducted and paid and to clarify the provisions respecting the refund of premiums to self-employed persons. It also amends that Act to modify the Employment Insurance premium rate-setting mechanism, including requiring that the rate be set on a seven-year break-even
basis once the Employment Insurance Operating Account returns to balance. The Division makes consequential amendments to the Canada Employment Insurance Financing Board Act. Division 44 of Part 4 amends the Customs Tariff to make certain imported fuels duty-free and to increase the travellers’ exemption thresholds. Division 45 of Part 4 amends the Canada Marine Act to require provisions of a port authority’s letters patent relating to limits on the authority’s power to borrow money to be recommended by the Minister of Transport and the Minister of Finance before they are approved by the Governor in Council. Division 46 of Part 4 amends the First Nations Land Management Act to implement changes made to the Framework Agreement on First Nation Land Management, including changes relating to the description of land that is to be subject to a land code, and to provide for the coming into force of land codes and the development by First Nations of environmental protection regimes. Division 47 of Part 4 amends the Canada Travelling Exhibitions Indemnification Act to increase the maximum indemnity in respect of individual travelling exhibitions, as well as the maximum indemnity in respect of all travelling exhibitions. Division 48 of Part 4 amends the Canadian Air Transport Security Authority Act to provide that the chief executive officer of the Authority is appointed by the Governor in Council and that an employee may not replace the chief executive officer for more than 90 days without the Governor in Council’s approval. Division 49 of Part 4 amends the First Nations Fiscal and Statistical Management Act to repeal provisions related to the First Nations Statistical Institute and amends that Act and other Acts to remove any reference to that Institute. It authorizes the Minister of Indian Affairs and Northern Development to close out the Institute’s affairs. Division 50 of Part 4 amends the Canadian Forces Members and Veterans Re-establishment and Compensation Act to provide for the payment or reimbursement of fees for career transition services for veterans or their survivors. Division 51 of Part 4 amends the Department of Human Resources and Skills Development Act to add powers, duties and functions that are substantially the same as those conferred by the Department of Social Development Act. It repeals the Department of Social Development Act and, in doing so, eliminates the National Council of Welfare. Division 52 of Part 4 amends the Wage Earner Protection Program Act in order to correct the English version of the definition “eligible wages”. Division 53 of Part 4 repeals the Kyoto Protocol Implementation Act. Division 54 of Part 4 amends the Immigration and Refugee Protection Act and the Budget Implementation Act, 2008 to provide for the termination of certain applications for permanent residence that were made before February 27, 2008. This Division also amends the Immigration and Refugee Protection Act to, among other things, authorize the Minister of Citizenship and Immigration to give instructions establishing and governing classes of permanent residents as part of the economic class and to provide that the User Fees Act does not apply in respect of fees set by those instructions. Furthermore, this Division amends the Immigration and Refugee Protection Act to allow for the retrospective application of certain regulations and certain instructions given by the Minister, if those regulations and instructions so provide, and to authorize regulations to be made respecting requirements imposed on employers in relation to authorizations to work in Canada.
Division 55 of Part 4 enacts the Shared Services Canada Act to establish Shared Services Canada to provide certain administrative services specified by the Governor in Council. The Act provides for the Governor in Council to designate a minister to preside over Shared Services Canada. Division 56 of Part 4 amends the Assisted Human Reproduction Act to respond to the Supreme Court of Canada decision in Reference re Assisted Human Reproduction Act that was rendered in 2010, including by repealing the provisions that were found to be unconstitutional and abolishing the Assisted Human Reproduction Agency of Canada.
TABLE OF PROVISIONS
AN ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON MARCH 29, 2012 AND OTHER MEASURES
SHORT TITLE Jobs, Growth and Long-term Prosperity Act
1. PART 1 AMENDMENTS TO THE INCOME TAX ACT, A RELATED ACT AND THE INCOME TAX REGULATIONS 2–18. PART 2 MEASURES RELATING TO SALES AND EXCISE TAXES 19–51. PART 3 RESPONSIBLE RESOURCE DEVELOPMENT DIVISION 1 ENVIRONMENTAL ASSESSMENT 52.
Enactment of the Canadian Environmental Assessment Act, 2012
AN ACT RESPECTING THE ENVIRONMENTAL ASSESSMENT OF CERTAIN ACTIVITIES AND THE PREVENTION OF SIGNIFICANT ADVERSE ENVIRONMENTAL EFFECTS SHORT TITLE 1.
Canadian Environmental Assessment Act, 2012
2. Definitions
INTERPRETATION
HER MAJESTY 3.
Binding on Her Majesty
i PURPOSES 4.
Purposes ENVIRONMENTAL EFFECTS
5. Environmental effects
6. Proponent
7. Federal authority
8. Proponent’s obligation — description of designated project
9. Posting of description of designated project and public notice on Internet site
10. Screening decision
11. Federal authority’s obligation
12. Posting notice of decision on Internet site
PROHIBITIONS
SCREENING
ENVIRONMENTAL ASSESSMENT REQUIRED 13.
Activities regulated by regulatory body
14. Designation of physical activity as designated project
ENVIRONMENTAL ASSESSMENT OF DESIGNATED PROJECTS RESPONSIBLE AUTHORITY 15.
Responsible authority
16. Cooperation COMMENCEMENT OF ENVIRONMENTAL ASSESSMENT
17. Posting of notice on Internet site
CONSULTATION AND COOPERATION WITH CERTAIN JURISDICTIONS 18.
Responsible authority’s or Minister’s obligations
19. Factors
FACTORS TO BE CONSIDERED
FEDERAL AUTHORITY’S OBLIGATION 20.
Specialist or expert information
ii ENVIRONMENTAL ASSESSMENT BY RESPONSIBLE AUTHORITY General Rules 21.
Application only when no referral to review panel
22. Responsible authority’s obligations
23. Information
24. Public participation
25. Public notice in certain cases — draft report
26. Delegation
27. Responsible authority’s or Minister’s decisions
28. Participation of interested party
29. Recommendations in environmental assessment report
30. Order to reconsider
31. Governor in Council’s decision
32. Minister’s obligation
33. Exceptions
34. Conditions
35. Assessment considered in conformity
36. Responsible authority’s or Minister’s decision
Section 54 of the National Energy Board Act
Substitution
Equivalent Assessment 37.
Exemption ENVIRONMENTAL ASSESSMENT BY A REVIEW PANEL General Rules
38. Referral to review panel
39. Studies and collection of information
40. Agreement to jointly establish review panel
41. Mackenzie Valley Resource Management Act
42. Terms of reference and appointment of members
43. Review panel’s duties
44. Information
45. Power to summon witnesses
46. Public notice
iv 47.
Minister’s decisions
48. Excluded periods
49. Termination
50. Completion of environmental assessment by Agency
51. Minister’s decisions
Rules in Case of Termination
DECISION MAKING 52.
Decisions of decision maker
53. Conditions — environmental effects referred to in subsection 5(1) DECISION STATEMENT
54. Decision statement issued to proponent
55. Posting of decision statement on Internet site
56. Decision statement considered part of licence under Nuclear Safety and Control Act PARTICIPANT FUNDING PROGRAMS
57. Agency’s obligation
58. Responsible authority’s obligation COST RECOVERY
59. Proponent’s obligation to pay costs
60. Services provided during given period
61. Debt due to Her Majesty TERMINATION OF ENVIRONMENTAL ASSESSMENT
62. Termination by responsible authority or Minister
63. Termination by responsible authority referred to in any of paragraphs 15(a) to (c)
64. Termination by Minister CONFIDENTIAL INFORMATION
65. No disclosure DUTIES OF CERTAIN AUTHORITIES IN RELATION TO PROJECTS
66. Definitions
67. Project carried out on federal lands
68. Project outside Canada
69. Referral to Governor in Council
v 70.
Non-application — national emergency or emergency
71. Federal authority’s reporting duty
72. Authority’s reporting duty REGIONAL STUDIES
73. Establishment of committee — region entirely on federal lands
74. Joint establishment of committee — other regions
75. Report to Minister
76. Public notice
77. Application of section 45
CANADIAN ENVIRONMENTAL ASSESSMENT REGISTRY ESTABLISHMENT OF REGISTRY 78.
Canadian Environmental Assessment Registry
79. Establishment and maintenance
INTERNET SITE
PROJECT FILES 80.
Establishment and maintenance GENERAL
81. Categories of available information
82. Protection from civil proceeding or prosecution ADMINISTRATION
83. Regulations — Governor in Council
84. Regulations — Minister
85. Externally produced documents
86. Minister’s powers
87. Non-application — national security
88. Statutory Instruments Act ADMINISTRATION AND ENFORCEMENT DESIGNATION
89. Power to designate POWERS
90. Authority to enter
91. Warrant for dwelling-house
92. Entry on private property
v 93.
Use of force ORDERS
94. Measures required
95. Measures taken by designated person INJUNCTIONS
96. Court’s power PROHIBITIONS AND OFFENCES
97. Obstruction
98. False statements or information
99. Contravention — section 6
100. Contravention — section 98
101. Limitation period
102. Admissibility of evidence
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY 103.
Agency continued
104. Delegation to Agency
105. Agency’s objects
106. Agency’s duties
107. Using government facilities
108. President
109. Executive Vice-president
110. Remuneration
111. Appointment under Public Service Employment Act
112. Head office
113. Contracts, etc., binding on Her Majesty ANNUAL REPORT
114. Annual report to Parliament
115. Definitions
116. President of former Agency
117. Executive Vice-president of former Agency
118. Employment continued
119. References
120. Transfer of rights and obligations
121. Commencement of legal proceedings
TRANSITIONAL PROVISIONS
vi 122.
Continuation of legal proceedings
123. Appropriations
124. Completion of screenings commenced under former Act
125. Completion of comprehensive studies commenced under former Act
126. Completion of assessment by a review panel commenced under former Act
127. Substitution under former Act
128. Non-application of this Act
129. Privileged evidence, documents or things
53–67. DIVISION 2 NATIONAL ENERGY BOARD ACT 68–115. DIVISION 3 CANADA OIL AND GAS OPERATIONS ACT 116–121. DIVISION 4 NUCLEAR SAFETY AND CONTROL ACT 122–131. DIVISION 5 FISHERIES ACT 132–156. DIVISION 6 CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 157–162. DIVISION 7 SPECIES AT RISK ACT 163–169.
vi PART 4 VARIOUS MEASURES DIVISION 1 MEASURES WITH RESPECT TO THE AUDITOR GENERAL OF CANADA 170–204. DIVISION 2 LIFE ANNUITY-LIKE PRODUCTS 205–208. DIVISION 3 PPP CANADA INC. 209–213. DIVISION 4 TERRITORIAL BORROWING LIMITS 214–217. DIVISION 5 REPORTING REQUIREMENTS 218–222. DIVISION 6 SOCIAL SECURITY TRIBUNAL AND SERVICE DELIVERY 223–281. DIVISION 7 CONSOLIDATION OF PRIVACY CODES 282–303. DIVISION 8 SOCIAL INSURANCE NUMBER CARDS 304–314. DIVISION 9 AMENDMENTS RELATING TO THE PARKS CANADA AGENCY 315–325.
ix DIVISION 10 FINANCIAL INSTITUTIONS 326–349. DIVISION 11 CANADA MORTGAGE AND HOUSING CORPORATION 350–367. DIVISION 12 INTEGRATED CROSS-BORDER LAW ENFORCEMENT OPERATIONS ACT 368.
Enactment of Act
AN ACT TO IMPLEMENT A FRAMEWORK AGREEMENT ON INTEGRATED CROSS-BORDER LAW ENFORCEMENT OPERATIONS BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA SHORT TITLE 1.
Integrated Cross-border Law Enforcement Operations Act
INTERPRETATION 2.
Definitions PURPOSE
3. Purpose PRINCIPLES
4. Statement CENTRAL AUTHORITY FOR CANADA
5. Designation
6. Direction and management
7. Appointment of officers from Canada
8. Appointment of officers from United States
9. Suspension or revocation
10. Certificates
11. Recommendation for appointment POWERS OF DESIGNATED OFFICERS
12. Powers — designated officer
x DETENTION OF PERSONS 13.
Persons taken into custody SEIZURE
14. Vessel, etc., seized in Canada
15. Vessel, etc., seized in United States
16. Non-application of certain laws
369–374. DIVISION 13 BRETTON WOODS AND RELATED AGREEMENTS ACT 375–376. DIVISION 14 CANADA HEALTH ACT 377. DIVISION 15 CANADIAN SECURITY INTELLIGENCE SERVICE ACT 378–387. DIVISION 16 CURRENCY ACT 388–389. DIVISION 17 FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT 390–410. DIVISION 18 FISHERIES ACT 411. DIVISION 19 FOOD AND DRUGS ACT 412–419.
x DIVISION 20 GOVERNMENT EMPLOYEES COMPENSATION ACT 420–426. DIVISION 21 INTERNATIONAL DEVELOPMENT RESEARCH CENTRE ACT 427–431. DIVISION 22 CANADA LABOUR CODE 432–440. DIVISION 23 FAIR WAGES AND HOURS OF LABOUR ACT 441–444. DIVISION 24 OLD AGE SECURITY ACT 445–467. DIVISION 25 SALARIES ACT 468–472. DIVISION 26 SEEDS ACT 473–475. DIVISION 27 STATUTORY INSTRUMENTS ACT 476-478. DIVISION 28 INVESTMENT CANADA ACT 479–480. DIVISION 29 CUSTOMS ACT 481–482.
xi DIVISION 30 PENSION BENEFITS STANDARDS ACT, 1985 483. DIVISION 31 RAILWAY SAFETY ACT 484–486. DIVISION 32 CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT 487–489. DIVISION 33 INTERNATIONAL CENTRE FOR HUMAN RIGHTS AND DEMOCRATIC DEVELOPMENT ACT 490–505. DIVISION 34 HEALTH OF ANIMALS ACT 506–515. DIVISION 35 CANADA SCHOOL OF PUBLIC SERVICE ACT 516-524. DIVISION 36 BANK ACT 525. DIVISION 37 CORRECTIONS AND CONDITIONAL RELEASE ACT 526–530. DIVISION 38 COASTING TRADE ACT 531. DIVISION 39 STATUS OF THE ARTIST ACT 532–577.
xi DIVISION 40 NATIONAL ROUND TABLE ON THE ENVIRONMENT AND THE ECONOMY ACT 578–594. DIVISION 41 TELECOMMUNICATIONS ACT 595–601. DIVISION 42 EMPLOYMENT EQUITY ACT 602. DIVISION 43 EMPLOYMENT INSURANCE ACT 603–619. DIVISION 44 CUSTOMS TARIFF 620–625. DIVISION 45 CANADA MARINE ACT 626. DIVISION 46 FIRST NATIONS LAND MANAGEMENT ACT 627–652. DIVISION 47 CANADA TRAVELLING EXHIBITIONS INDEMNIFICATION ACT 653. DIVISION 48 CANADIAN AIR TRANSPORT SECURITY AUTHORITY ACT 654–655. DIVISION 49 FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT 656–681.
xi DIVISION 50 CANADIAN FORCES MEMBERS AND VETERANS REESTABLISHMENT AND COMPENSATION ACT 682–684. DIVISION 51 REPEAL OF THE DEPARTMENT OF SOCIAL DEVELOPMENT ACT 685–696. DIVISION 52 WAGE EARNER PROTECTION PROGRAM ACT 697–698. DIVISION 53 KYOTO PROTOCOL IMPLEMENTATION ACT 699. DIVISION 54 IMMIGRATION AND REFUGEE PROTECTION ACT 700–710. DIVISION 55 SHARED SERVICES CANADA 711.
Enactment of the Shared Services Canada Act
AN ACT TO ESTABLISH SHARED SERVICES CANADA SHORT TITLE 1.
Shared Services Canada Act INTERPRETATION
2. Definitions DESIGNATION OF MINISTER
3. Power of Governor in Council
4. Establishment
5. Minister
6. Governor in Council
ESTABLISHMENT
POWERS, DUTIES AND FUNCTIONS
xv 7.
Minister
8. Governor in Council’s approval
9. Charging for services ORGANIZATION AND HEAD OFFICE
10. President
11. President
12. Remuneration
13. Head office HUMAN RESOURCES
14. Appointment of employees GENERAL
15. Access to Information Act
16. Privacy Act
TRANSITIONAL PROVISIONS DEFINITIONS 17.
Definitions
18. President
19. Transfer of appropriations
20. References
FORMER DEPARTMENT
712. DIVISION 56 ASSISTED HUMAN REPRODUCTION ACT 713–753. SCHEDULE
60-61 ELIZABETH II —————— CHAPTER 19 An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures [Assented to 29th June, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Jobs, Growth and Long-term Prosperity Act. PART 1 AMENDMENTS TO THE INCOME TAX ACT, A RELATED ACT AND THE INCOME TAX REGULATIONS
R.S., c. 1 (5th Supp.)
INCOME TAX ACT 2. (1) Subsection 76(5) of the Income Tax Act is replaced by the following:
Definitions of certain expressions
(5) In subsection (4), the expressions “cash purchase ticket”, “operator”, “primary elevator” and “process elevator” have the meanings assigned by the Canada Grain Act, and “grain” means wheat, oats, barley, rye, flaxseed, rapeseed and canola produced in Canada. (2) Subsection (1) applies in respect of cash purchase tickets and other forms of settlement issued to a taxpayer after December 14, 2011. 3. (1) Paragraph 81(1)(n) of the Act is replaced by the following:
2 Governor General
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Jobs, Growth and L
(n) income from the office of Governor General of Canada, other than salary under the Governor General’s Act; (2) Subsection (1) applies to the 2013 and subsequent taxation years. 4. (1) Paragraph (a) of the definition “eligible dividend” in subsection 89(1) of the Act is replaced by the following: (a) an amount that is equal to the portion of a taxable dividend that is received by a person resident in Canada, paid by a corporation resident in Canada and designated under subsection (14) to be an eligible dividend, and (2) Subsection 89(14) of the Act is replaced by the following:
Dividend designation
(14) A corporation designates a portion of a dividend it pays at any time to be an eligible dividend by notifying in writing at that time each person or partnership to whom the dividend is paid that the portion of the dividend is an eligible dividend.
Late designation
(14.1) If, in the opinion of the Minister, the circumstances are such that it would be just and equitable to permit a designation under subsection (14) to be made before the day that is three years after the day on which the designation was required to be made, the designation is deemed to have been made at the time the designation was required to be made. (3) Subsections (1) and (2) apply to dividends paid after March 28, 2012. 5. (1) Paragraph (a) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act is replaced by the following: (a) that is a Canadian exploration expense incurred by a corporation after March 2012 and before 2014 (including, for greater certainty, an expense that is deemed by subsection 66(12.66) to be incurred before 2014) in conducting mining exploration activity from or above the surface of the
2011-2012
Emploi, croissance e earth for the purpose of determining the existence, location, extent or quality of a mineral resource described in paragraph (a) or (d) of the definition “mineral resource” in subsection 248(1), (2) Paragraphs (c) and (d) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act are replaced by the following: (c) an amount in respect of which is renounced in accordance with subsection 66(12.6) by the corporation to the taxpayer (or a partnership of which the taxpayer is a member) under an agreement described in that subsection and made after March 2012 and before April 2013, and (d) that is not an expense that was renounced under subsection 66(12.6) to the corporation (or a partnership of which the corporation is a member), unless that renunciation was under an agreement described in that subsection and made after March 2012 and before April 2013; (3) Subsections (1) and (2) apply to expenses renounced under a flow-through share agreement made after March 2012. 6. (1) Clause (a)(ii)(B) of the definition “disability savings plan” in subsection 146.4(1) of the Act is replaced by the following: (B) an entity that, at the time the arrangement is entered into, is a qualifying person described in paragraph (a) or (b) of the definition “qualifying person” in relation to the beneficiary, (B.1) if the arrangement is entered into before 2017, a qualifying family member in relation to the beneficiary who, at the time the arrangement is entered into, is a qualifying person in relation to the beneficiary, (B.2) a qualifying family member in relation to the beneficiary who, at the time the arrangement is entered into, is not a qualifying person in relation to the
C. 19
Jobs, Growth and L beneficiary but is a holder of another arrangement that is a registered disability savings plan of the beneficiary, and
(2) The definition “qualifying person” in subsection 146.4(1) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b): (c) other than for the purposes of subparagraph (4)(b)(iv), an individual who is a qualifying family member in relation to the beneficiary if (i) at or before that time, the beneficiary has attained the age of majority and is not a beneficiary under a disability savings plan, (ii) at that time, no entity described in subparagraph (a)(ii) or (iii) is legally authorized to act on behalf of the beneficiary, and (iii) in the issuer’s opinion after reasonable inquiry, the beneficiary’s contractual competence to enter into a disability savings plan at that time is in doubt.
(3) Subsection 146.4(1) of the Act is amended by adding the following in alphabetical order: “qualifying family member” « membre de la famille admissible »
“qualifying family member”, in relation to a beneficiary of a disability savings plan, at any time, means an individual who, at that time, is (a) a legal parent of the beneficiary; or (b) a spouse or common-law partner of the beneficiary who is not living separate and apart from the beneficiary by reason of a breakdown of their marriage or common-law partnership. (4) Section 146.4 of the Act is amended by adding the following after subsection (1.4):
Beneficiary replacing holder
(1.5) Any holder of a disability savings plan who is a qualifying person in relation to the beneficiary under the plan solely because of
2011-2012
Emploi, croissance e paragraph (c) of the definition “qualifying person” in subsection (1) ceases to be a holder of the plan and the beneficiary becomes the holder of the plan if (a) the beneficiary is determined to be contractually competent by a competent tribunal or other authority under the laws of a province or, in the issuer’s opinion after reasonable inquiry, the beneficiary’s contractual competence to enter into a disability savings plan is no longer in doubt; and (b) the beneficiary notifies the issuer that the beneficiary chooses to become the holder of the plan.
Entity replacing holder
(1.6) If an entity described in subparagraph (a)(ii) or (iii) of the definition “qualifying person” in subsection (1) is appointed in respect of a beneficiary of a disability savings plan and a holder of the plan is a qualifying person solely because of paragraph (c) of that definition, (a) the entity shall notify the issuer without delay of the entity’s appointment; (b) the holder of the plan ceases to be a holder of the plan; and (c) the entity becomes the holder of the plan.
Rules applicable in case of dispute
(1.7) If a dispute arises as a result of an issuer’s acceptance of a qualifying family member who is a qualifying person solely because of paragraph (c) of the definition “qualifying person” in subsection (1) as a holder of a disability savings plan, from the time the dispute arises until the time that the dispute is resolved or an entity becomes the holder of the plan under subsection (1.5) or (1.6), the holder of the plan shall use their best efforts to avoid any reduction in the fair market value of the property held by the plan trust, having regard to the reasonable needs of the beneficiary under the plan.
(5) Subsection 146.4(13) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):
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(e) if the issuer enters into the plan with a qualifying family member who is a qualifying person solely because of paragraph (c) of the definition “qualifying person” in subsection (1), (i) so notify the beneficiary under the plan without delay in writing and include in the notification information setting out the circumstances in which the holder of the plan may be replaced under subsection (1.5) or (1.6), and (ii) collect and use any information provided by the holder of the plan that is relevant to the administration and operation of the plan. (6) Section 146.4 of the Act is amended by adding the following after subsection (13): Issuer’s liability
(14) If, after reasonable inquiry, an issuer of a disability savings plan is of the opinion that an individual’s contractual competence to enter into a disability savings plan is in doubt, no action lies against the issuer for entering into a plan, under which the individual is the beneficiary, with a qualifying family member who is a qualifying person in relation to the beneficiary solely because of paragraph (c) of the definition “qualifying person” in subsection (1). 7. (1) The definition “charitable purposes” in subsection 149.1(1) of the Act is replaced by the following:
“charitable purposes” « fins de bienfaisance »
“charitable purposes” includes the disbursement of funds to a qualified donee, other than a gift the making of which is a political activity;
(2) Subparagraph (a)(v) of the definition “qualified donee” in subsection 149.1(1) of the Act is replaced by the following: (v) a foreign organization that has applied to the Minister for registration under subsection (26), (3) Subsection 149.1(1) of the Act is amended by adding the following in alphabetical order:
2011-2012 “political activity” « activité politique »
Emploi, croissance e “political activity” includes the making of a gift to a qualified donee if it can reasonably be considered that a purpose of the gift is to support the political activities of the qualified donee; (4) Paragraphs 149.1(6)(b) and (c) of the Act are replaced by the following: (b) it disburses income to qualified donees, other than income disbursed by way of a gift the making of which is a political activity, if the total amount of the charitable organization’s income that is disbursed to qualified donees in a taxation year does not exceed 50% of its income for the year; or (c) it disburses income to a registered charity that the Minister has designated in writing as a charity associated with it, other than income disbursed by way of a gift the making of which is a political activity.
(5) Subsection 149.1(10) of the Act is replaced by the following: Deemed charitable activity
(10) An amount paid by a charitable organization to a qualified donee that is not paid out of the income of the charitable organization is deemed to be a devotion of a resource of the charitable organization to a charitable activity carried on by it, unless the amount paid is a gift the making of which is a political activity. (6) Section 149.1 of the Act is amended by adding the following after subsection (25):
Foreign charitable organizations
(26) For the purposes of subparagraph (a)(v) of the definition “qualified donee” in subsection (1), the Minister may register, in consultation with the Minister of Finance, a foreign organization for a 24-month period that includes the time at which Her Majesty in right of Canada has made a gift to the foreign organization, if (a) the foreign organization is a charitable organization that is not resident in Canada; and (b) the Minister is satisfied that the foreign organization is
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(i) carrying on relief activities in response to a disaster, (ii) providing urgent humanitarian aid, or (iii) carrying on activities in the national interest of Canada. (7) Subsections (2) and (6) come into force on the later of the day on which this Act receives royal assent and January 1, 2013, except that subparagraph (a)(v) of the definition “qualified donee” in subsection 149.1(1) of the Act, as enacted by subsection (2), and subsection 149.1(26) of the Act, as enacted by subsection (6), do not apply in respect of registrations of charitable organizations outside Canada made before the later of those days.
8. Subsection 150(2) of the Act is replaced by the following: Demands for returns
(2) Every person, whether or not the person is liable to pay tax under this Part for a taxation year and whether or not a return has been filed under subsection (1) or (3), shall, on demand sent by the Minister, file, within such reasonable time stipulated in the demand, with the Minister in prescribed form and containing prescribed information a return of the income for the taxation year designated in the demand.
9. (1) Section 150.1 of the Act is amended by adding the following after subsection (2.1): Definition of “tax preparer”
(2.2) In this section and subsection 162(7.3), “tax preparer”, for a calendar year, means a person or partnership who, in the year, accepts consideration to prepare more than 10 returns of income of corporations or more than 10 returns of income of individuals (other than trusts), but does not include an employee who prepares returns of income in the course of performing their duties of employment.
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Electronic filing — tax preparer
(2.3) A tax preparer shall file any return of income prepared by the tax preparer for consideration by way of electronic filing, except that 10 of the returns of corporations and 10 of the returns of individuals may be filed other than by way of electronic filing.
Exceptions
(2.4) Subsection (2.3) does not apply to a tax preparer for a calendar year in respect of a return of income (a) of a type for which the tax preparer has applied to the Minister for authority to file by way of electronic filing for the year and for which that authority has not been granted because the tax preparer does not meet the criteria referred to in subsection (2); (b) of a corporation described in any of paragraphs 205.1(2)(a) to (c) of the Income Tax Regulations; or (c) of a type that the Minister does not accept by way of electronic filing.
(2) Subsection (1) applies in respect of returns of income for the 2012 and subsequent taxation years that are filed after 2012. 10. Section 152 of the Act is amended by adding the following after subsection (1.8): Waiver of determination limitation period
(1.9) A waiver in respect of the period during which the Minister may make a determination under subsection (1.4) in respect of a partnership for a fiscal period may be made by one member of the partnership if that member is (a) designated for that purpose in the information return made under section 229 of the Income Tax Regulations for the fiscal period; or (b) otherwise expressly authorized by the partnership to so act. 11. Subsection 161(5) of the Act is repealed.
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12. (1) Paragraph 162(2)(b) of the English version of the Act is replaced by the following: (b) to whom a demand for a return for the year has been sent under subsection 150(2), and (2) Section 162 of the Act is amended by adding the following after subsection (7.2): Failure to file in appropriate manner — tax preparer
(7.3) Every tax preparer who fails to file a return of income as required by subsection 150.1(2.3) is liable to a penalty equal to (a) $25 for each such failure in respect of a return of an individual; and (b) $100 for each such failure in respect of a return of a corporation. (3) Subsection 162(8.1) of the Act is replaced by the following:
Rules — partnership liable to a penalty
(8.1) If a partnership is liable to a penalty under any of subsections (5) to (7.1), (7.3), (8) and (10), then sections 152, 158 to 160.1, 161 and 164 to 167 and Division J apply, with any modifications that the circumstances require, to the penalty as if the partnership were a corporation. (4) Subsections (2) and (3) come into force, or are deemed to have come into force, on January 1, 2013. 13. (1) Subsection 188.2(2) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (d): (e) in the case of a registered charity that is a charitable foundation, if the foundation devotes resources to political activities that are not considered under subsection 149.1(6.1) to be devoted to charitable purposes; (f) in the case of a registered charity that is a charitable organization, if the organization devotes resources to political activities that are not considered under subsection 149.1(6.2) to be devoted to charitable activities; or
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Emploi, croissance e (g) in the case of a registered Canadian amateur athletic association, if the association devotes resources to political activities that are not considered under subsection 149.1(6.201) to be devoted to its exclusive purpose and exclusive function.
(2) Section 188.2 of the Act is amended by adding the following after subsection (2): Suspension – failure to report
(2.1) If a registered charity or a registered Canadian amateur athletic association fails to report information that is required to be included in a return filed under subsection 149.1(14), the Minister may give notice by registered mail to the charity or association that its authority to issue an official receipt referred to in Part XXXV of the Income Tax Regulations is suspended from the day that is seven days after the day on which the notice is mailed until such time as the Minister notifies the charity or association that the Minister has received the required information in prescribed form.
(3) The portion of subsection 188.2(3) of the Act before paragraph (a) is replaced by the following: Effect of suspension
(3) If the Minister has issued a notice to a qualified donee under any of subsections (1) to (2.1), subject to subsection (4), (4) Subsection 188.2(4) of the Act is replaced by the following:
Application for postponement
(4) If a notice of objection to a suspension under any of subsections (1) to (2.1) has been filed by a qualified donee, the qualified donee may file an application to the Tax Court of Canada for a postponement of that portion of the period of suspension that has not elapsed until the time determined by the Court. 14. Paragraph 227(10)(b) of the Act is replaced by the following:
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(b) subsection 237.1(7.4) or (7.5) by a person or partnership, 15. (1) Subsection 237.1(4) of the Act is replaced by the following: Sales prohibited
(4) A person may, at any time, whether as a principal or an agent, sell or issue, or accept consideration in respect of, a tax shelter only if (a) the Minister has issued before that time an identification number for the tax shelter; and (b) that time is before 2014. (2) Paragraph 237.1(4)(b) of the Act, as enacted by subsection (1), is replaced by the following: (b) that time is during the calendar year designated by the Minister as being applicable to the identification number. (3) Paragraph 237.1(7.4)(b) of the Act is replaced by the following: (b) 25% of the greater of (i) the total of all amounts each of which is the consideration received or receivable from a person in respect of the tax shelter before the correct information is filed with the Minister or the identification number is issued, as the case may be, and (ii) the total of all amounts each of which is an amount stated or represented to be the value of property that a particular person who acquires or otherwise invests in the tax shelter could donate to a qualified donee, if the tax shelter is a gifting arrangement and consideration has been received or is receivable from the particular person in respect of the tax shelter before the correct information is filed with the Minister or the identification number is issued, as the case may be.
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Emploi, croissance e (4) Section 237.1 of the Act is amended by adding the following after subsection (7.4):
Penalty
(7.5) Every person who is required under subsection (7) to file an information return and who fails to comply with a demand under section 233 to file the return, or to report in the return information required under paragraph (7)(a) or (b), is liable to a penalty equal to 25% of the greater of (a) the total of all amounts each of which is the consideration received or receivable by the person in respect of the tax shelter from a particular person in respect of whom information required under paragraph (7)(a) or (b) had not been reported at or before the time that the demand was issued or the return was filed, as the case may be, and (b) if the tax shelter is a gifting arrangement, the total of all amounts each of which is an amount stated or represented to be the value of property that the particular person could donate to a qualified donee. (5) Subsection (1) is deemed to have come into force on March 29, 2012. (6) Subsection (2) applies in respect of any tax shelter for which an application for an identification number has been made after March 28, 2012. (7) Subsection (3) applies in respect of any application for an identification number made, any sale or issuance of a tax shelter made and any consideration in respect of a tax shelter accepted, on or after the day on which this Act receives royal assent.
(8) Subsection (4) applies in respect of any demand made, and any information return filed, on or after the day on which this Act receives royal assent.
14 R.S., c. G-9
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1990, c. 5, s. 1
16. Subsection 4(1) of the Governor General’s Act is replaced by the following:
Salary
4. (1) There shall be payable to the Governor General for the 12-month period beginning on January 1, 2013 a salary of $270,602.
1990, c. 5, s. 2
17. (1) The portion of subsection 4.1(1) of the Act before paragraph (a) is replaced by the following:
Annual adjustment of salary
4.1 (1) For the 12-month period beginning on January 1, 2014 and for each 12-month period after that, the Governor General’s salary shall be the amount obtained by multiplying
1994, c. 18, s. 8
(2) Subsections 4.1(4) and (5) of the Act are repealed.
C.R.C., c. 945
INCOME TAX REGULATIONS 18. (1) Section 5700 of the Income Tax Regulations is amended by adding the following after paragraph (s): (s.1) blood coagulation monitor, including disposable peripherals, for use by an individual who requires anti-coagulation therapy; (2) Subsection (1) applies to expenses incurred after 2011. PART 2 MEASURES RELATING TO SALES AND EXCISE TAXES
R.S., c. E-15
EXCISE TAX ACT
2006, c. 4, s. 127(1)
19. Subsection 79(4) of the Excise Tax Act is replaced by the following:
Demand for return
(4) The Minister may, on demand sent by the Minister, require a person to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand.
2011-2012 2009, c. 32, s. 2(4)
Emploi, croissance e 20. (1) Paragraph (b) of the definition “harmonization date” in subsection 123(1) of the Act is replaced by the following: (b) July 1, 2010 in the case of Ontario, and (2) Subsection (1) comes into force, or is deemed to have come into force, on April 1, 2013, except that for the purposes of subsection 256.21(7) of the Act paragraph (b) of the definition “harmonization date” in subsection 123(1) of the Act, as enacted by subsection (1), is to be read before July 2, 2014 as follows: (b) July 1, 2010 in the case of Ontario or British Columbia, and
1997, c.10, s. 198(1)
21. (1) Subsections 212.1(2) to (4) of the Act are replaced by the following:
Tax in participating province
(2) Subject to this Part, every person that is liable under the Customs Act to pay duty on imported goods, or would be so liable if the goods were subject to duty, shall pay to Her Majesty in right of Canada, in addition to the tax imposed by section 212, a tax on the goods calculated at the tax rate for a participating province on the value of the goods if (a) the goods are prescribed goods imported at a place in the participating province; or (b) the goods are not prescribed for the purposes of paragraph (a) and the person is resident in the participating province.
Exception
(3) Paragraph (2)(b) does not apply to goods that are accounted for as commercial goods under section 32 of the Customs Act, specified motor vehicles or a mobile home or a floating home that has been used or occupied in Canada by any individual.
Application in offshore areas
(4) Paragraph (2)(b) does not apply to goods imported by or on behalf of a person that is resident in the Nova Scotia offshore area or the Newfoundland offshore area unless the goods are imported for consumption, use or supply in
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the course of an offshore activity or the person is also resident in a participating province that is not an offshore area. (2) Subsection (1) applies to goods imported on or after June 1, 2012. 22. (1) Subsection 259.1(1) of the Act is amended by adding the following in alphabetical order: “specified property” « bien déterminé »
“specified property” means (a) a printed book or an update of such a book; (b) an audio recording all or substantially all of which is a spoken reading of a printed book; or (c) a bound or unbound printed version of scripture of any religion.
1997, c. 10, s. 69.1(1)
(2) Subsection 259.1(2) of the Act is replaced by the following:
Rebate for printed books, etc.
(2) The Minister shall, subject to subsection (3), pay a rebate to a person that is, on the last day of a claim period of the person or of the person’s fiscal year that includes that claim period, a specified person equal to the amount of tax under subsection 165(1) or section 212 that became payable in the claim period by the person in respect of the acquisition or importation of specified property if (a) in the case of a specified person described in paragraph (f) of the definition “specified person” in subsection (1), the person acquires or imports the specified property otherwise than for the purpose of supply by way of sale for consideration; and (b) in any other case, the person acquires or imports the specified property otherwise than for the purpose of supply by way of sale. (3) Subsections (1) and (2) apply to acquisitions and importations of property in respect of which tax becomes payable after March 29, 2012.
2009, c. 32, s. 32(1)
23. (1) Section 261.2 of the Act is replaced by the following:
2011-2012 Rebate in respect of goods imported at a place in a province
Emploi, croissance e 261.2 If a person that is resident in a particular participating province pays tax under subsection 212.1(2) in respect of property described in paragraph 212.1(2)(b) that the person imports at a place in another province for consumption or use exclusively in any province (other than the particular participating province) and if prescribed conditions are satisfied, the Minister shall, subject to section 261.4, pay a rebate to the person equal to the amount determined in prescribed manner. (2) Subsection (1) applies to property imported on or after June 1, 2012.
1990, c. 45, s. 12(1)
24. Section 282 of the Act is replaced by the following:
Demand for return
282. The Minister may, on demand sent by the Minister, require any person to file, within any reasonable time stipulated in the demand, a return under this Part for any period or transaction designated in the demand. 25. (1) Schedule I to the Act is amended by adding the following before section 6: 1. The following definitions apply in this Schedule. “commercial goods” has the same meaning as in subsection 212.1(1) of the Act. “qualifying data” means fuel consumption data, in respect of automobiles described in the portion of subsection 6(1) before paragraph (a), that is (a) if the fuel consumption data under the EnerGuide mark is based on a test method composed of two — but not five — test cycles, data published by the Government of Canada under the EnerGuide mark in respect of those automobiles; or (b) in any other case, data in respect of those automobiles based on a test method composed of only two test cycles and published by the Government of Canada, as specified by the Minister of National Revenue, on the basis of information adjusted and provided by the Minister of Natural Resources.
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“qualifying vehicle” means a vehicle (other than a racing car described in heading No. 87.03 of the List of Tariff Provisions set out in the schedule to the Customs Tariff) registered under the laws of a foreign jurisdiction relating to the registration of motor vehicles that (a) is described in any of heading No. 87.02, subheading Nos. 8703.21 to 8703.90, 8704.21, 8704.31, 8704.90 and 8711.20 to 8711.90 and tariff item Nos. 8716.39.30 and 8716.39.90 of that List; (b) is described in subheading No. 8704.22 or 8704.32 of that List and has a gross vehicle weight rating (as defined in subsection 2(1) of the Motor Vehicle Safety Regulations) not exceeding 10 tonnes; or (c) is described in tariff item No. 8716.10.00 of that List and is a vehicle for camping.
(2) Subsection (1) comes into force, or is deemed to have come into force, on June 1, 2012 or, if this Act receives royal assent before June 1, 2012, on the day on which this Act receives royal assent (in this subsection referred to as “royal assent day”), except that (a) if royal assent day is before June 1, 2012, section 1 of Schedule I to the Act, as enacted by subsection (1), is to be read, before June 1, 2012, without reference to the definitions “commercial goods” and “qualifying vehicle”; and (b) if royal assent day is after June 1, 2012, section 1 of Schedule I to the Act, as enacted by subsection (1), is to be read, before royal assent day, without reference to the definition “qualifying data”. 2007, c. 29, s. 44(1)
26. The descriptions of A and B in subsection 6(2) of Schedule I to the Act are replaced by the following: A is the city fuel consumption rating (based on the number of litres of fuel, other than E85, per 100 kilometres) for automobiles of the same model with the same attributes as the automobile, as determined by reference to
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Emploi, croissance e qualifying data, or, if no rating can be so determined that would apply to the automobile, by reference to the best available data, which may include the city fuel consumption rating for the most similar model and attributes; and B is the highway fuel consumption rating (based on the number of litres of fuel, other than E85, per 100 kilometres) for automobiles of the same model with the same attributes as the automobile, as determined by reference to qualifying data, or, if no rating can be so determined that would apply to the automobile, by reference to the best available data, which may include the highway fuel consumption rating for the most similar model and attributes.
27. (1) Section 8 of Schedule I to the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c): (d) that is included as permanently installed equipment in an automobile, station wagon, van or truck if the automobile, station wagon, van or truck (i) is a qualifying vehicle, (ii) is imported temporarily by an individual resident in Canada and not accounted for as a commercial good under section 32 of the Customs Act, (iii) was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the automobile, station wagon, van or truck is provided for a period of less than 180 days, and (iv) is exported within 30 days after the importation.
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(2) Subsection (1) applies to any air conditioner that is included as permanently installed equipment in an automobile, station wagon, van or truck imported into Canada on or after June 1, 2012. 1993, c. 27, s. 146(1)
28. (1) The portion of section 10 of Schedule I to the Act before paragraph (a) is replaced by the following: 10. Section 6 does not apply to an automobile described in that section that is
1993, c. 27, s. 146(1)
(2) Paragraphs 10(a) to (c) of Schedule I to the French version of the Act are replaced by the following: a) vendue dans des conditions qui feraient de la vente une fourniture détaxée pour l’application de la partie IX de la Loi; b) achetée ou importée pour servir à la police ou combattre l’incendie; c) achetée, pour son usage personnel ou officiel, par une personne exempte d’impôts et de taxes visée à l’article 34 de la convention figurant à l’annexe I de la Loi sur les missions étrangères et les organisations internationales ou à l’article 49 de la convention figurant à l’annexe II de cette loi; (3) Section 10 of Schedule I to the Act is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c): (d) a qualifying vehicle if the automobile (i) is imported temporarily by an individual resident in Canada and not accounted for as a commercial good under section 32 of the Customs Act, (ii) was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the automobile is provided for a period of less than 180 days, and
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Emploi, croissance e (iii) is exported within 30 days after the importation.
(4) Subsections (1) and (2) come into force, or are deemed to have come into force, on June 1, 2012. (5) Subsection (3) applies to any automobile imported into Canada on or after June 1, 2012. 29. (1) Part II of Schedule V to the Act is amended by adding the following after section 7.2: 7.3 A supply of a service (other than a service described in section 4 of Part I of Schedule VI) rendered in the practice of the profession of pharmacy by a particular individual who is entitled under the laws of a province to practise that profession if the service is rendered within a pharmacist-patient relationship between the particular individual and another individual and is provided for the promotion of the health of the other individual or for the prevention or treatment of a disease, disorder or dysfunction of the other individual. (2) Subsection (1) applies to any supply made after March 29, 2012. 30. (1) Section 10 of Part II of Schedule V to the Act is amended by striking out “or” at the end of paragraph (a), by adding “or” at the end of paragraph (b) and by adding the following after paragraph (b): (c) a person that is entitled under the laws of a province to practise the profession of pharmacy and is authorized under the laws of the province to order such a service, if the order is made within a pharmacist-patient relationship. (2) Subsection (1) applies to any supply made after March 29, 2012. 31. (1) Paragraph 2(e) of Part I of Schedule VI to the Act is amended by adding the following after subparagraph (vi):
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(vi.1) Isosorbide-5-mononitrate, (2) Subsection (1) applies to any supply made (a) after March 29, 2012; or (b) on or before March 29, 2012 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply. 1997, c. 10, s. 121(2)
32. (1) The definition “medical practitioner” in section 1 of Part II of Schedule VI to the Act is repealed. (2) Section 1 of Part II of Schedule VI to the Act is amended by adding the following in alphabetical order: “specified professional” means (a) a person that is entitled under the laws of a province to practise the profession of medicine, physiotherapy or occupational therapy, or (b) a registered nurse. (3) Subsections (1) and (2) apply to any supply made after March 29, 2012.
1997, c. 10, s. 122(1)
33. (1) Sections 3 and 4 of Part II of Schedule VI to the Act are replaced by the following: 3. A supply of a heart-monitoring device if the device is supplied on the written order of a specified professional for use by a consumer with heart disease who is named in the order. 4. A supply of a hospital bed, if the bed is supplied to the operator of a health care facility (as defined in section 1 of Part II of Schedule V) or on the written order of a specified professional for use by an incapacitated individual named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
1997, c. 10, s. 124(1)
34. (1) Section 5.1 of Part II of Schedule VI to the Act is replaced by the following:
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Emploi, croissance e 5.1 A supply of an aerosol chamber or a metered dose inhaler for use in the treatment of asthma if the chamber or inhaler is supplied on the written order of a specified professional for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
1997, c. 10, s. 125(1)
35. (1) Section 7 of Part II of Schedule VI to the Act is replaced by the following: 7. A supply of a device that is designed to convert sound to light signals if the device is supplied on the written order of a specified professional for use by a consumer with a hearing impairment who is named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
2000, c. 30, s. 124(1)
36. (1) Section 9 of Part II of Schedule VI to the Act is replaced by the following: 9. A supply of eyeglasses or contact lenses if the eyeglasses or contact lenses are, or are to be, supplied under the authority of a prescription prepared, or an assessment record produced, by a person for the treatment or correction of a defect of vision of a consumer named in the prescription or assessment record and the person is entitled under the laws of the province in which the person practises to prescribe eyeglasses or contact lenses, or to produce an assessment record to be used for the dispensing of eyeglasses or contact lenses, for the treatment or correction of the defect of vision of the consumer. (2) Subsection (1) applies to any supply made (a) after March 29, 2012; or (b) on or before March 29, 2012 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply.
2008, c. 28, s. 90(1)
37. (1) Section 14.1 of Part II of Schedule VI to the Act is replaced by the following:
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14.1 A supply of a chair that is specially designed for use by an individual with a disability if the chair is supplied on the written order of a specified professional for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012. 1997, c. 10, s. 129(1)
38. (1) Sections 21.1 and 21.2 of Part II of Schedule VI to the Act are replaced by the following: 21.1 A supply of an extremity pump, intermittent pressure pump or similar device for use in the treatment of lymphedema if the pump or device is supplied on the written order of a specified professional for use by a consumer named in the order. 21.2 A supply of a catheter for subcutaneous injections if the catheter is supplied on the written order of a specified professional for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
1997, c. 10, s. 130(1)
39. (1) Section 23 of Part II of Schedule VI to the Act is replaced by the following: 23. A supply of an orthotic or orthopaedic device that is made to order for an individual or is supplied on the written order of a specified professional for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
1997, c. 10, s. 132(1)
40. (1) Section 24.1 of Part II of Schedule VI to the Act is replaced by the following: 24.1 A supply of footwear that is specially designed for use by an individual who has a crippled or deformed foot or other similar disability, if the footwear is supplied on the written order of a specified professional. (2) Subsection (1) applies to any supply made after March 29, 2012.
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2011-2012 1997, c. 10, s. 134(1)
41. (1) Section 30 of Part II of Schedule VI to the Act is replaced by the following: 29.1 A supply of (a) a blood coagulation monitor or meter specially designed for use by an individual requiring blood coagulation monitoring or metering; or (b) blood coagulation testing strips or reagents compatible with a blood coagulation monitor or meter referred to in paragraph (a). 30. A supply of any article that is specially designed for the use of blind individuals if the article is supplied for use by a blind individual to or by the Canadian National Institute for the Blind or any other bona fide institution or association for blind individuals or on the order or certificate of a specified professional. (2) Subsection (1) applies to any supply made after March 29, 2012.
1997, c. 10, s. 136(1)
42. (1) Sections 35 and 36 of Part II of Schedule VI to the Act are replaced by the following: 35. A supply of a graduated compression stocking, an anti-embolic stocking or similar article if the stocking or article is supplied on the written order of a specified professional for use by a consumer named in the order. 36. A supply of clothing that is specially designed for use by an individual with a disability if the clothing is supplied on the written order of a specified professional for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after March 29, 2012.
2008, c. 28, s. 93(1)
43. (1) Section 41 of Part II of Schedule VI to the Act is replaced by the following: 41. A supply of a device that is specially designed for neuromuscular stimulation therapy or standing therapy, if supplied on the written order of a specified professional for use by a consumer with paralysis or a severe mobility impairment who is named in the order.
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(2) Subsection (1) applies to any supply made after March 29, 2012. 2009, c. 32, s. 44(1)
44. (1) Item 4 of Schedule VIII to the Act is repealed. (2) Subsection (1) applies (a) in respect of any supply (other than a supply deemed to have been made under section 172.1 of the Act) made after March 31, 2013; (b) for the purposes of applying section 172.1 of the Act in respect of a fiscal year of a person that begins after March 31, 2013; (c) for the purposes of calculating, under clause 173(1)(d)(vi)(B) of the Act, tax in respect of taxation years of an individual ending after 2013; (d) for the purposes of applying section 174 of the Act in respect of an allowance paid by a person after March 31, 2013; (e) for the purpose of calculating, under subsection 218.1(1.2) of the Act, tax for a specified year (as defined in section 217 of the Act) of a person that begins after March 31, 2013; (f) in respect of goods imported (i) after March 31, 2013, or (ii) before April 1, 2013 if those goods are, after March 31, 2013, accounted for under subsection 32(1), paragraph 32(2)(a) or subsection 32(5) of the Customs Act or released in the circumstances set out in paragraph 32(2)(b) of that Act; (g) in respect of property that is brought into, or removed from, a province after March 31, 2013; (h) in respect of property that is brought into a province before April 1, 2013 by a carrier if the property is delivered in the province to a consignee after March 31, 2013;
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Emploi, croissance e (i) for the purposes of determining the amount for a province that, under subsection 225.2(2) of the Act, is required to be added to, or may be deducted from, the net tax for a reporting period of a financial institution that begins after March 31, 2013; and (j) for the purposes of the description of C in paragraph (a) of the definition “provincial pension rebate amount” in subsection 261.01(1) of the Act in respect of a claim period of a pension entity that begins after March 31, 2013.
2002, c. 9, s. 5
AIR TRAVELLERS SECURITY CHARGE ACT 45. Section 26 of the Air Travellers Security Charge Act is replaced by the following:
Demand for return
26. The Minister may, on demand sent by the Minister, require a designated air carrier to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand.
2002, c. 22
EXCISE ACT, 2001 46. Section 169 of the Excise Act, 2001 is replaced by the following:
Demand for return
SOR/91-30; SOR/2002-277, s. 8
169. The Minister may, on demand sent by the Minister, require any person to file, within any reasonable time stipulated in the demand, a return under this Act for any period designated in the demand. VALUE OF IMPORTED GOODS (GST/HST) REGULATIONS 47. (1) Subsection 2(1) of the Value of Imported Goods (GST/HST) Regulations is amended by adding the following in alphabetical order: “qualifying vehicle” has the same meaning as in section 2 of the Non-Taxable Imported Goods (GST/HST) Regulations; (véhicule admissible)
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(2) Subsection 2(2) of the Regulations is replaced by the following: (2) For the purposes of these Regulations, the number of months or weeks in a period is the number of months or weeks, as the case may be, included, in whole or in part, in the period, the first day of the first such month or week, as the case may be, being the first day of the period. (3) Subsections (1) and (2) come into force, or are deemed to have come into force, on June 1, 2012. 48. (1) The Regulations are amended by adding the following after section 14: 15. For the purpose of subsection 215(2) of the Act, the value of a qualifying vehicle that is imported temporarily by an individual resident in Canada and not accounted for as a commercial good (as defined in subsection 212.1(1) of the Act) under section 32 of the Customs Act, that is exported within 30 days after the importation and that was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the qualifying vehicle is provided for a period of less than 180 days is determined by the formula (A × B) + C where A is (a) if the qualifying vehicle is described in any of subheading Nos. 8703.21 to 8703.90 and 8711.20 to 8711.90 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, (i) in the case of a truck, sport utility vehicle, minivan or van, $300, (ii) in the case of a motorhome or similar vehicle, $1,000, and (iii) in any other case, $200, and (b) in any other case, $300;
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Emploi, croissance e B is the number of weeks during which the qualifying vehicle remains in Canada; and C is the remaining duties payable in respect of the qualifying vehicle.
(2) Subsection (1) applies to any qualifying vehicle imported on or after June 1, 2012.
SOR/91-31; SOR/2002-277, s. 11
NON-TAXABLE IMPORTED GOODS (GST/ HST) REGULATIONS 49. (1) Section 2 of the Non-Taxable Imported Goods (GST/HST) Regulations is amended by adding the following in alphabetical order: “qualifying vehicle” means a vehicle (other than a racing car described in heading No. 87.03 of the List of Tariff Provisions set out in the schedule to the Customs Tariff) registered under the laws of a foreign jurisdiction relating to the registration of motor vehicles that (a) is described in any of heading No. 87.02, subheading Nos. 8703.21 to 8703.90, 8704.21, 8704.31, 8704.90 and 8711.20 to 8711.90 and tariff item Nos. 8716.39.30 and 8716.39.90 of that List, (b) is described in subheading No. 8704.22 or 8704.32 of that List and has a gross vehicle weight rating (as defined in subsection 2(1) of the Motor Vehicle Safety Regulations) not exceeding 10 tonnes, or (c) is described in tariff item No. 8716.10.00 of that List and is a vehicle for camping. (véhicule admissible) (2) Subsection (1) comes into force, or is deemed to have come into force, on June 1, 2012. 50. (1) Section 3 of the Regulations is amended by striking out “and” at the end of paragraph (k), by adding “and” at the end of paragraph (l) and by adding the following after paragraph (l):
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(m) a qualifying vehicle that is imported temporarily by an individual resident in Canada and not accounted for as a commercial good (as defined in subsection 212.1(1) of the Act) under section 32 of the Customs Act if (i) the qualifying vehicle was last supplied in the course of a vehicle rental business to the individual by way of lease, licence or similar arrangement under which continuous possession or use of the qualifying vehicle is provided for a period of less than 180 days, (ii) immediately before the importation, the individual was outside Canada for an uninterrupted period of at least 48 hours, and (iii) the qualifying vehicle is exported within 30 days after the importation. (2) Subsection (1) applies to any qualifying vehicle imported on or after June 1, 2012.
SOR/2010-151
NEW HARMONIZED VALUE-ADDED TAX SYSTEM REGULATIONS, NO. 2 51. (1) The New Harmonized Value-added Tax System Regulations, No. 2 are amended by adding the following after section 6: DIVISION 1.1 TAX ON IMPORTATION OF GOODS
Prescribed goods — paragraph 212.1(2)(a)
6.1 For the purpose of paragraph 212.1(2)(a) of the Act, goods the value of which is determined for the purposes of Division III of Part IX of the Act under section 15 of the Value of Imported Goods (GST/HST) Regulations are prescribed. (2) Subsection (1) applies to goods imported on or after June 1, 2012.
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RESPONSIBLE RESOURCE DEVELOPMENT DIVISION 1 ENVIRONMENTAL ASSESSMENT Enactment of the Canadian Environmental Assessment Act, 2012 Enactment
52. The Canadian Environmental Assessment Act, 2012, whose Schedules 1 to 3 are set out in the schedule to this Act, is enacted as follows: An Act respecting the environmental assessment of certain activities and the prevention of significant adverse environmental effects SHORT TITLE
Short title
1. This Act may be cited as the Canadian Environmental Assessment Act, 2012. INTERPRETATION
Definitions
“Agency” « Agence »
“assessment by a review panel” « examen par une commission »
“Canadian Nuclear Safety Commission” « Commission canadienne de sûreté nucléaire »
“designated project” « projet désigné »
2. (1) The following definitions apply in this Act. “Agency” means the Canadian Environmental Assessment Agency continued under section 103. “assessment by a review panel” means an environmental assessment that is conducted by a review panel. “Canadian Nuclear Safety Commission” means the Canadian Nuclear Safety Commission established by section 8 of the Nuclear Safety and Control Act. “designated project” means one or more physical activities that (a) are carried out in Canada or on federal lands; (b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and
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(c) are linked to the same federal authority as specified in those regulations or that order. It includes any physical activity that is incidental to those physical activities. “environment” « environnement »
“environment” means the components of the Earth, and includes (a) land, water and air, including all layers of the atmosphere; (b) all organic and inorganic matter and living organisms; and (c) the interacting natural systems that include components referred to in paragraphs (a) and (b).
“environmental assessment” « évaluation environnementale »
“environmental effects” « effets environnementaux »
“federal authority” « autorité fédérale »
“environmental assessment” means an assessment of the environmental effects of a designated project that is conducted in accordance with this Act. “environmental effects” means the environmental effects described in section 5.
“federal authority” means (a) a Minister of the Crown in right of Canada; (b) an agency of the Government of Canada or a parent Crown corporation, as defined in subsection 83(1) of the Financial Administration Act, or any other body established by or under an Act of Parliament that is ultimately accountable through a Minister of the Crown in right of Canada to Parliament for the conduct of its affairs; (c) any department or departmental corporation that is set out in Schedule I or II to the Financial Administration Act; and (d) any other body that is set out in Schedule 1. It does not include the Executive Council of — or a minister, department, agency or body of the government of — Yukon, the Northwest Territories or Nunavut, a council of the band within the meaning of the Indian Act, Export Development Canada or the Canada Pension Plan Investment Board. It also does not include
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a Crown corporation that is a wholly-owned subsidiary, as defined in subsection 83(1) of the Financial Administration Act, a harbour commission established under the Harbour Commissions Act or a not-for-profit corporation that enters into an agreement under subsection 80(5) of the Canada Marine Act, that is not set out in Schedule 1. “federal lands” « territoire domanial »
“federal lands” means (a) lands that belong to Her Majesty in right of Canada, or that Her Majesty in right of Canada has the power to dispose of, and all waters on and airspace above those lands, other than lands under the administration and control of the Commissioner of Yukon, the Northwest Territories or Nunavut; (b) the following lands and areas: (i) the internal waters of Canada, in any area of the sea not within a province, (ii) the territorial sea of Canada, in any area of the sea not within a province, (iii) the exclusive economic zone of Canada, and (iv) the continental shelf of Canada; and (c) reserves, surrendered lands and any other lands that are set apart for the use and benefit of a band and that are subject to the Indian Act, and all waters on and airspace above those reserves or lands.
“follow-up program” « programme de suivi »
“follow-up program” means a program for (a) verifying the accuracy of the environmental assessment of a designated project; and (b) determining the effectiveness of any mitigation measures.
“interested party” « partie intéressée »
“interested party”, with respect to a designated project, means any person who is determined, under subsection (2), to be an “interested party”.
“Internet site” « site Internet »
“Internet site” means the Internet site that is established under section 79.
“jurisdiction” « instance »
“jurisdiction” means (a) a federal authority;
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(b) any agency or body that is established under an Act of Parliament and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project; (c) the government of a province; (d) any agency or body that is established under an Act of the legislature of a province and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project; (e) any body that is established under a land claims agreement referred to in section 35 of the Constitution Act, 1982 and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project; (f) a governing body that is established under legislation that relates to the self-government of Indians and that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project; (g) a government of a foreign state or of a subdivision of a foreign state, or any institution of such a government; and (h) an international organization of states or any institution of such an organization. “Minister” « ministre »
“mitigation measures” « mesures d’atténuation »
“Minister” means the Minister of the Environment. “mitigation measures” means measures for the elimination, reduction or control of the adverse environmental effects of a designated project, and includes restitution for any damage to the environment caused by those effects through replacement, restoration, compensation or any other means.
“National Energy Board” « Office national de l’énergie »
“National Energy Board” means the National Energy Board established by section 3 of the National Energy Board Act.
“prescribed” Version anglaise seulement
“prescribed” means prescribed by the regulations.
“proponent” « promoteur »
“proponent” means the person, body, federal authority or government that proposes the carrying out of a designated project.
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“Registry” « registre »
“responsible authority” « autorité responsable »
“review panel” « commission »
“sustainable development” « développement durable »
Interested party
“record” includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape and machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy of it. “Registry” means the Canadian Environmental Assessment Registry established under section 78. “responsible authority” means the authority that is referred to in section 15 with respect to a designated project that is subject to an environmental assessment. “review panel” means a review panel established under subsection 42(1) or under an agreement or arrangement entered into under subsection 40(1) or (2) or by document referred to in subsection 41(2). “sustainable development” means development that meets the needs of the present, without compromising the ability of future generations to meet their own needs. (2) One of the following entities determines, with respect to a designated project, that a person is an interested party if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise: (a) in the case of a designated project for which the responsible authority is referred to in paragraph 15(b), that responsible authority; or (b) in the case of a designated project in relation to which the environmental assessment has been referred to a review panel under section 38, that review panel. HER MAJESTY
Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province. PURPOSES
Purposes
4. (1) The purposes of this Act are
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(a) to protect the components of the environment that are within the legislative authority of Parliament from significant adverse environmental effects caused by a designated project; (b) to ensure that designated projects that require the exercise of a power or performance of a duty or function by a federal authority under any Act of Parliament other than this Act to be carried out, are considered in a careful and precautionary manner to avoid significant adverse environmental effects; (c) to promote cooperation and coordinated action between federal and provincial governments with respect to environmental assessments; (d) to promote communication and cooperation with aboriginal peoples with respect to environmental assessments; (e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment; (f) to ensure that an environmental assessment is completed in a timely manner; (g) to ensure that projects, as defined in section 66, that are to be carried out on federal lands, or those that are outside Canada and that are to be carried out or financially supported by a federal authority, are considered in a careful and precautionary manner to avoid significant adverse environmental effects; (h) to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy; and (i) to encourage the study of the cumulative effects of physical activities in a region and the consideration of those study results in environmental assessments.
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(2) The Government of Canada, the Minister, the Agency, federal authorities and responsible authorities, in the administration of this Act, must exercise their powers in a manner that protects the environment and human health and applies the precautionary principle. ENVIRONMENTAL EFFECTS
Environmental effects
5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are (a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament: (i) fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection 34(1) of that Act, (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act, (iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and (iv) any other component of the environment that is set out in Schedule 2; (b) a change that may be caused to the environment that would occur (i) on federal lands, (ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or (iii) outside Canada; and (c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
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Exercise of power or performance of duty or function by federal authority
(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account:
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(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and (b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on (i) health and socio-economic conditions, (ii) physical and cultural heritage, or (iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. Schedule 2
(3) The Governor in Council may, by order, amend Schedule 2 to add or remove a component of the environment. PROHIBITIONS
Proponent
6. The proponent of a designated project must not do any act or thing in connection with the carrying out of the designated project, in whole or in part, if that act or thing may cause an environmental effect referred to in subsection 5(1) unless
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Emploi, croissance e (a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or (b) the proponent complies with the conditions included in the decision statement that is issued under subsection 31(3) or section 54 to the proponent with respect to that designated project.
Federal authority
7. A federal authority must not exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit a designated project to be carried out in whole or in part unless (a) the Agency makes a decision under paragraph 10(b) that no environmental assessment of the designated project is required and posts that decision on the Internet site; or (b) the decision statement with respect to the designated project that is issued under subsection 31(3) or section 54 to the proponent of the designated project indicates that the designated project is not likely to cause significant adverse environmental effects or that the significant adverse environmental effects that it is likely to cause are justified in the circumstances. SCREENING
Proponent’s obligation — description of designated project
8. (1) The proponent of a designated project — other than one that is subject to an environmental assessment under section 13 or subsection 14(1) — must provide the Agency with a description of the designated project that includes the information prescribed by regulations made under paragraph 84(b).
Additional information
(2) If the Agency is of the opinion, after receiving the description of the designated project from the proponent, that a decision cannot be made under paragraph 10(b) because the description is incomplete or does not contain sufficient details, the Agency may, within 10 days after receiving it, require the proponent to provide an amended description that includes the information and details that the Agency specifies.
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Posting of description of designated project and public notice on Internet site
9. When the Agency is satisfied that the description of the designated project includes all of the required information, it must post the following on the Internet site:
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(a) a summary of the description; (b) an indication of how a copy of the description may be obtained; and (c) a notice that indicates that the designated project is the subject of a screening, invites the public to provide comments respecting the designated project within 20 days after the posting of the notice and indicates the address for filing those comments. Screening decision
10. Within 45 days after the posting of the notice on the Internet site, the Agency must (a) conduct the screening, which must include a consideration of the following factors: (i) the description of the designated project provided by the proponent, (ii) the possibility that the carrying out of the designated project may cause adverse environmental effects, (iii) any comments received from the public within 20 days after the posting of the notice, and (iv) the results of any relevant study conducted by a committee established under section 73 or 74; and (b) on completion of the screening, decide if an environmental assessment of the designated project is required.
Federal authority’s obligation
11. Every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to a screening must, on request, make that information or knowledge available to the Agency within the specified period.
Posting notice of decision on Internet site
12. The Agency must post a notice of its decision made under paragraph 10(b) on the Internet site.
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ENVIRONMENTAL ASSESSMENT REQUIRED Activities regulated by regulatory body
13. A designated project for which the responsible authority is referred to in any of paragraphs 15(a) to (c) is subject to an environmental assessment.
Designation of physical activity as designated project
14. (1) A designated project that includes a physical activity designated under subsection (2) is subject to an environmental assessment.
Minister’s power to designate
(2) The Minister may, by order, designate a physical activity that is not prescribed by regulations made under paragraph 84(a) if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation.
Minister’s power to require that information be provided
(3) The Minister may require any person to provide information with respect to any physical activity that can be designated under subsection (2).
Federal authority
(4) The Minister must specify in the order made under subsection (2) for each designated physical activity one of the following federal authorities to which the physical activity is linked: (a) the Canadian Nuclear Safety Commission; (b) the National Energy Board; (c) any federal authority that performs regulatory functions, that may hold public hearings and that is specified in regulations made under paragraph 83(b); or (d) the Agency.
Limitation
(5) The Minister must not make the designation referred to in subsection (2) if (a) the carrying out of the physical activity has begun and, as a result, the environment has been altered; or (b) a federal authority has exercised a power or performed a duty or function conferred on it under any Act of Parliament other than this Act that would permit the physical activity to be carried out, in whole or in part.
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Posting of notice of order on Internet site
(6) The Agency must post on the Internet site a notice of any order made under subsection (2).
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ENVIRONMENTAL ASSESSMENT OF DESIGNATED PROJECTS RESPONSIBLE AUTHORITY Responsible authority
15. For the purposes of this Act, the responsible authority with respect to a designated project that is subject to an environmental assessment is (a) the Canadian Nuclear Safety Commission, in the case of a designated project that includes activities that are regulated under the Nuclear Safety and Control Act and that are linked to the Canadian Nuclear Safety Commission as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); (b) the National Energy Board, in the case of a designated project that includes activities that are regulated under the National Energy Board Act or the Canada Oil and Gas Operations Act and that are linked to the National Energy Board as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); (c) the federal authority that performs regulatory functions, that may hold public hearings and that is prescribed by regulations made under paragraph 83(b), in the case of a designated project that includes activities that are linked to that federal authority as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); or (d) the Agency, in the case of a designated project that includes activities that are linked to the Agency as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2).
Cooperation
16. If two designated projects are closely related and the responsible authority with respect to each of them is different, each responsible authority must cooperate with the other with respect to the exercise of their
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Emploi, croissance e respective powers and the performance of their respective duties and functions under this Act in relation to the projects. COMMENCEMENT OF ENVIRONMENTAL ASSESSMENT
Posting of notice on Internet site
17. The responsible authority with respect to a designated project must ensure that a notice of the commencement of the environmental assessment of a designated project is posted on the Internet site. CONSULTATION AND COOPERATION WITH CERTAIN JURISDICTIONS
Responsible authority’s or Minister’s obligations
18. The responsible authority with respect to a designated project — or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 — must offer to consult and cooperate with respect to the environmental assessment of the designated project with any jurisdiction referred to in paragraphs (c) to (h) of the definition “jurisdiction” in subsection 2(1) if that jurisdiction has powers, duties or functions in relation to an assessment of the environmental effects of the designated project. FACTORS TO BE CONSIDERED
Factors
19. (1) The environmental assessment of a designated project must take into account the following factors: (a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out; (b) the significance of the effects referred to in paragraph (a); (c) comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the
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National Energy Board Act, any interested party — that are received in accordance with this Act; (d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project; (e) the requirements of the follow-up program in respect of the designated project; (f) the purpose of the designated project; (g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means; (h) any change to the designated project that may be caused by the environment; (i) the results of any relevant study conducted by a committee established under section 73 or 74; and (j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account. Scope of factors
(2) The scope of the factors to be taken into account under paragraphs (1)(a), (b), (d), (e), (g), (h) and (j) is determined by (a) the responsible authority; or (b) the Minister, if the environmental assessment is referred to a review panel.
Community knowledge and Aboriginal traditional knowledge
(3) The environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge. FEDERAL AUTHORITY’S OBLIGATION
Specialist or expert information
20. Every federal authority that is in possession of specialist or expert information or knowledge with respect to a designated project that is subject to an environmental assessment must, on request, make that information or knowledge available, within the specified period, to (a) the responsible authority;
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2011-2012 (b) the review panel;
(c) a government, an agency or body, or a jurisdiction that conducts an assessment of the designated project under a substituted process authorized by section 32; and (d) a jurisdiction that conducts an assessment, in the case of a designated project that is exempted under subsection 37(1).
ENVIRONMENTAL ASSESSMENT BY RESPONSIBLE AUTHORITY General Rules Application only when no referral to review panel
21. Sections 22 to 27 cease to apply to a designated project if it is referred by the Minister to a review panel under section 38.
Responsible authority’s obligations
22. The responsible authority with respect to a designated project must ensure that (a) an environmental assessment of the designated project is conducted; and (b) a report is prepared with respect to that environmental assessment.
Information
23. (1) The responsible authority may, when conducting the environmental assessment of a designated project and preparing the report with respect to the environmental assessment of the designated project, use any information that is available to it.
Studies and collection of information
(2) However, if the responsible authority is of the opinion that there is not sufficient information available to it for the purpose of conducting the environmental assessment or preparing the report with respect to the environmental assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the responsible authority, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.
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Public participation
24. Subject to section 28, the responsible authority must ensure that the public is provided with an opportunity to participate in the environmental assessment of a designated project.
Public notice in certain cases — draft report
25. (1) When the responsible authority is the Agency, it must ensure that a draft report with respect to the environmental assessment of a designated project is prepared, and must ensure that the following are posted on the Internet site:
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(a) a copy of the draft report or an indication of how a copy may be obtained; and (b) a notice that invites the public to provide comments on the draft report within the period specified and provides the address for filing those comments. Final report submitted to Minister
(2) After taking into account any comments received from the public, the Agency must finalize the report with respect to the environmental assessment of the designated project and submit it to the Minister.
Delegation
26. (1) The responsible authority with respect to a designated project may delegate to any person, body or jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) the carrying out of any part of the environmental assessment of the designated project and the preparation of the report with respect to the environmental assessment of the designated project, but must not delegate the duty to make decisions under subsection 27(1).
For greater certainty
(2) For greater certainty, the responsible authority must not make decisions under subsection 27(1) unless it is satisfied that any delegated duty or function has been performed in accordance with this Act.
Responsible authority’s or Minister’s decisions
27. (1) The responsible authority or, when the Agency is the responsible authority, the Minister, after taking into account the report with respect to the environmental assessment of the designated project, must make decisions under subsection 52(1).
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Time limit for Minister’s decisions
(2) The Minister’s decisions must be made no later than 365 days after the day on which the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site.
Extension of time limit by Minister
(3) The Minister may extend that time limit by any further period — up to a maximum of three months — that is necessary to permit the Agency to cooperate with a jurisdiction referred to in section 18 with respect to the environmental assessment of the designated project or to take into account circumstances that are specific to the project.
Extension of time limit by Governor in Council
(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3).
Posting notice of extension on Internet site
(5) The Agency must post on the Internet site a notice of any extension granted under subsection (3) or (4).
Excluded period
(6) If, under subsection 23(2), the Agency requires the proponent of a designated project to collect information or undertake a study with respect to the designated project, then the period that is taken by the proponent, in the Agency’s opinion, to comply with the requirement is not included in the calculation of the time limit within which the Minister’s decisions must be made.
Non application — section 54 of the National Energy Board Act
(7) Subsection (1) does not apply if the carrying out of the designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act. Section 54 of the National Energy Board Act
Participation of interested party
28. If the carrying out of a designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that any interested party is provided with an opportunity to participate in the environmental assessment of the designated project.
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Recommendations in environmental assessment report
29. (1) If the carrying out of a designated project requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, the responsible authority with respect to the designated project must ensure that the report concerning the environmental assessment of the designated project sets out
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(a) its recommendation with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, taking into account the implementation of any mitigation measures that it set out in the report; and (b) its recommendation with respect to the follow-up program that is to be implemented in respect of the designated project. Submission of report to Minister
(2) The responsible authority submits its report to the Minister within the meaning of section 2 of the National Energy Board Act at the same time as it submits the report referred to in subsection 52(1) of that Act.
Report is final and conclusive
(3) Subject to sections 30 and 31, the report with respect to the environmental assessment is final and conclusive.
Order to reconsider
30. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment under section 29, the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration.
Factors and time limit
(2) The order may direct the responsible authority to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the responsible authority must complete its reconsideration.
Responsible authority’s obligation
(3) The responsible authority must, before the expiry of the time limit specified in the order, if one was specified, reconsider any recommendation specified in the order and prepare and submit to the Minister within the meaning of section 2 of the National Energy Board Act a report on its reconsideration.
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Emploi, croissance e (4) In the reconsideration report, the responsible authority must (a) if the order refers to the recommendation referred to in paragraph 29(1)(a) (i) confirm the recommendation or set out a different one with respect to the decision that may be made under paragraph 31(1)(a) in relation to the designated project, and (ii) confirm, modify or replace the mitigation measures set out in the report with respect to the environmental assessment; and (b) if the order refers to the recommendation referred to in paragraph 29(1)(b), confirm the recommendation or set out a different one with respect to the follow-up program that is to be implemented in respect of the designated project.
Report is final and conclusive
(5) Subject to section 31, the responsible authority reconsideration report is final and conclusive.
Reconsideration of report under this section
(6) After the responsible authority has submitted its report under subsection (3), the Governor in Council may, by order made under section 53 of the National Energy Board Act, refer any of the responsible authority’s recommendations set out in the report back to the responsible authority for reconsideration. If it does so, subsections (2) to (5) apply. However, in subparagraph (4)(a)(ii), the reference to the mitigation measures set out in the report with respect to the environmental assessment is to be read as a reference to the mitigation measures set out in the reconsideration report.
Governor in Council’s decision
31. (1) After the responsible authority with respect to a designated project has submitted its report with respect to the environmental assessment or its reconsideration report under section 29 or 30, the Governor in Council may, by order made under subsection 54(1) of the National Energy Board Act (a) decide, taking into account the implementation of any mitigation measures specified in the report with respect to the environmental assessment or in the reconsideration report, if there is one, that the designated project
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(i) is not likely to cause significant adverse environmental effects, (ii) is likely to cause significant adverse environmental effects that can be justified in the circumstances, or (iii) is likely to cause significant adverse environmental effects that cannot be justified in the circumstances; and (b) direct the responsible authority to issue a decision statement to the proponent of the designated project that (i) informs the proponent of the decision made under paragraph (a) with respect to the designated project and, (ii) if the decision is referred to in subparagraph (a)(i) or (ii), sets out conditions — which are the implementation of the mitigation measures and the follow-up program set out in the report with respect to the environmental assessment or the reconsideration report, if there is one — that must be complied with by the proponent in relation to the designated project. Certain conditions subject to exercise of power or performance of duty or function
(2) The conditions that are included in the decision statement regarding the environmental effects referred to in subsection 5(2), that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority and that would permit the designated project to be carried out, in whole or in part, take effect only if the federal authority exercises the power or performs the duty or function.
Responsible authority’s obligation
(3) The responsible authority must issue to the proponent of the designated project the decision statement that is required in accordance with the order relating to the designated project within seven days after the day on which that order is made.
Posting of decision statement on Internet site
(4) The responsible authority must ensure that the decision statement is posted on the Internet site.
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2011-2012 Decision statement considered part of certificate
(5) The decision statement issued in relation to the designated project under subsection (3) is considered to be a part of the certificate issued in accordance with the order made under section 54 of the National Energy Board Act in relation to the designated project. Substitution
Minister’s obligation
32. (1) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province — or any agency or body that is established under an Act of the legislature of a province — that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister must, on request of the province, approve the substitution of that process for an environmental assessment.
Minister’s power
(2) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by any jurisdiction referred to in paragraph (e) or (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister may approve the substitution of that process for the environmental assessment.
Manner of approval
(3) An approval must be in writing and may be given in respect of a designated project or a class of designated projects.
Posting of notice of approval on Internet site
(4) The Agency must post a notice of the approval on the Internet site.
Exceptions
33. The Minister must not approve the substitution of a process in relation to a designated project (a) for which the responsible authority is referred to in paragraph 15(a) or (b); or (b) in relation to which the environmental assessment has been referred by the Minister to a review panel under section 38.
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Conditions
34. (1) The Minister may only approve a substitution if he or she is satisfied that
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(a) the process to be substituted will include a consideration of the factors set out in subsection 19(1); (b) the public will be given an opportunity to participate in the assessment; (c) the public will have access to records in relation to the assessment to enable their meaningful participation; (d) at the end of the assessment, a report will be submitted to the responsible authority; (e) the report will be made available to the public; and (f) any other conditions that the Minister establishes are or will be met. Approval
(2) The Minister may also approve the substitution of a process that has already been completed for an environmental assessment if he or she is satisfied that the conditions under subsection (1) have been met.
Availability
(3) The conditions referred to in paragraph (1)(f) must be made available to the public.
Assessment considered in conformity
35. If the Minister approves the substitution of a process under section 32, the assessment that results from the substitution is considered to be an environmental assessment under this Act and to satisfy any requirements of this Act and the regulations in respect of an environmental assessment.
Responsible authority’s or Minister’s decision
36. After taking into account the report with respect to the environmental assessment of the designated project that is received by the responsible authority at the end of the assessment under the process authorized by section 32, the responsible authority or, when the Agency is the responsible authority, the Minister must make decisions under subsection 52(1). Equivalent Assessment
Exemption
37. (1) When the Minister must, under subsection 32(1), on request, approve the substitution of a process that is followed by the government of a province or any agency or body that is established under an Act of the
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Emploi, croissance e legislature of a province for an environmental assessment of a designated project, the Governor in Council may, by order and on the Minister’s recommendation, exempt the designated project from the application of this Act, if the Governor in Council is satisfied that (a) after the completion of the assessment process, the government or the agency or body determines whether, taking into account the implementation of any mitigation measures that it considers appropriate, the designated project is likely to cause significant adverse environmental effects; (b) the government or the agency or body ensures the implementation of the mitigation measures that are taken into account in making the determination and the implementation of a follow-up program; and (c) any other conditions that the Minister establishes are or will be met.
Availability
(2) The conditions referred to in paragraph (1)(c) must be made available to the public.
Posting of notice of order on Internet site
(3) The Agency must post a notice of any order made under subsection (1) on the Internet site. ENVIRONMENTAL ASSESSMENT BY A REVIEW PANEL General Rules
Referral to review panel
38. (1) Subject to subsection (6), within 60 days after the notice of the commencement of the environmental assessment of a designated project is posted on the Internet site, the Minister may, if he or she is of the opinion that it is in the public interest, refer the environmental assessment to a review panel.
Public interest
(2) The Minister’s determination regarding whether the referral of the environmental assessment of the designated project to a review panel is in the public interest must include a consideration of the following factors: (a) whether the designated project may cause significant adverse environmental effects;
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(b) public concerns related to the significant adverse environmental effects that the designated project may cause; and (c) opportunities for cooperation with any jurisdiction that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project or any part of it. Time limits
(3) If the Minister refers the environmental assessment of the designated project to a review panel, the Minister must establish the following time limits — which combined are not to exceed 24 months — within which (a) the review panel is to be established after the referral; (b) the review panel must submit the report with respect to the environmental assessment of the designated project to the Minister; and (c) the Minister must, after receiving the review panel’s report, issue a decision statement under section 54 in relation to the designated project.
Modified time limits
(4) Subject to section 54, the Minister may, as required, modify those time limits.
Posting of notices on Internet site
(5) The Agency must post on the Internet site a notice of any decision made by the Minister to refer the environmental assessment of the designated project to a review panel, and a notice of any time limits that the Minister establishes in relation to the designated project and any changes that he or she may make to those time limits.
Exception
(6) The Minister must not refer to a review panel the environmental assessment of a designated project for which the responsible authority is referred to in paragraph 15(a) or (b).
Studies and collection of information
39. When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Agency may, from the day on which the referral is made and until the day on which the panel is established, require the proponent of the designated project to collect any information or undertake any
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Emploi, croissance e studies that, in the opinion of the Agency, are necessary for the environmental assessment by the review panel.
Agreement to jointly establish review panel
40. (1) When the Minister refers the environmental assessment of a designated project to a review panel under section 38, he or she may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to the assessment of the environmental effects of the designated project, respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.
Other jurisdiction
(2) When the Minister refers the environmental assessment of a designated project to a review panel under section 38, the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of the definition “jurisdiction” in subsection 2(1) that has powers, duties or functions in relation to an assessment of the environmental effects of the designated project respecting the joint establishment of a review panel and the manner in which the environmental assessment of the designated project is to be conducted by that panel.
Posting on Internet site
(3) Any agreement or arrangement referred to in subsection (1) or (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.
Mackenzie Valley Resource Management Act
41. (1) When a proposal is referred to the Minister under paragraph 130(1)(c) of the Mackenzie Valley Resource Management Act, the Minister must refer the proposal to a review panel.
Document establishing review panel
(2) When the Minister is required to refer the proposal to a review panel, he or she and the Mackenzie Valley Environmental Impact Review Board must, in writing, jointly establish a review panel and prescribe the manner of its examination of the impact of the proposal on the environment.
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If no agreement
(3) Despite subsection (2), if, in respect of a proposal referred to in subsection 138.1(1) of the Mackenzie Valley Resource Management Act, no agreement is entered into under that subsection within the period fixed by the regulations referred to in subsection 138.1(4) of that Act, an assessment by a review panel of the proposal must be conducted.
Coordination with environmental impact review
(4) The Minister must to the extent possible ensure that any assessment of the proposal required by subsection (3) is coordinated with any environmental impact review of the proposal under the Mackenzie Valley Resource Management Act.
Consultations
(5) Before making decisions under section 47 in relation to the proposal referred to in subsection (4), the Minister must take into account any report concerning the proposal that is issued under subsection 134(2) of the Mackenzie Valley Resource Management Act and must consult the persons and bodies to whom the report is submitted or distributed under subsection 134(3) of that Act.
Posting on Internet site
(6) Any document establishing a review panel under subsection (2) must be posted on the Internet site before the commencement of the hearings conducted by the jointly established review panel.
Terms of reference and appointment of members
42. (1) Subject to subsection (2), if the environmental assessment of a designated project is referred to a review panel, the Minister must establish the panel’s terms of reference and appoint as a member one or more persons who are unbiased and free from any conflict of interest relative to the designated project and who have knowledge or experience relevant to its anticipated environmental effects.
Provisions of agreement
(2) When there is an agreement or arrangement to jointly establish a review panel under subsection 40(1) or (2), or when there is a document jointly establishing a review panel under subsection 41(2), the agreement, arrangement or document must provide that the environmental assessment of the designated project includes a consideration of the factors set out in subsection 19(1) and is conducted in accordance with any additional requirements and procedures set out in it and provide that
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Emploi, croissance e (a) the Minister must establish — or approve — the review panel’s terms of reference; (b) subject to section 54, the Minister establishes or approves the period within which the panel must submit its report with respect to the environmental assessment of the designated project and may, at any time, modify the terms of reference in order to extend the period; (c) the Minister must appoint — or approve the appointment of — the chairperson or appoint a co-chairperson and must appoint at least one other member of the review panel; and (d) the members of the panel are to be unbiased and free from any conflict of interest relative to the designated project and are to have knowledge or experience relevant to its anticipated environmental effects.
Establishment of roster
(3) The Minister must establish a roster of persons who may be appointed as members of a review panel established under subsection (1) or under an agreement, arrangement or document referred to in subsection (2).
Review panel’s duties
43. (1) A review panel must, in accordance with its terms of reference, (a) conduct an environmental assessment of the designated project; (b) ensure that the information that it uses when conducting the environmental assessment is made available to the public; (c) hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment; (d) prepare a report with respect to the environmental assessment that sets out (i) the review panel’s rationale, conclusions and recommendations, including any mitigation measures and follow-up program, and (ii) a summary of any comments received from the public, including interested parties;
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(e) submit the report with respect to the environmental assessment to the Minister; and (f) on the Minister’s request, clarify any of the conclusions and recommendations set out in its report with respect to the environmental assessment. Time limit
(2) Subject to section 54, when a review panel is not jointly established under an agreement, arrangement or document referred to in subsection 42(2), the Minister must, in the terms of reference, set out the period within which the panel must submit the report with respect to the environmental assessment of the designated project to the Minister and may, at any time, modify the terms of reference in order to extend the period.
Information
44. (1) A review panel may, when conducting the environmental assessment of a designated project and preparing the report with respect to the environmental assessment of the designated project, use any information that is available to it.
Studies and collection of information
(2) However, if the review panel is of the opinion that there is not sufficient information available for the purpose of conducting the environmental assessment or preparing the report with respect to the environmental assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the review panel, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.
Power to summon witnesses
45. (1) A review panel has the power to summon any person to appear as a witness before it and to order the witness to (a) give evidence, orally or in writing; and (b) produce any records and things that the panel considers necessary for conducting its environmental assessment of the designated project.
Enforcement powers
(2) A review panel has the same power to enforce the attendance of witnesses and to compel them to give evidence and produce records and other things as is vested in a court of record.
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Hearings to be public
(3) A hearing by a review panel must be public unless the panel is satisfied after representations made by a witness that specific, direct and substantial harm would be caused to the witness or specific harm would be caused to the environment by the disclosure of the evidence, records or other things that the witness is ordered to give or produce under subsection (1).
Non-disclosure
(4) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific, direct and substantial harm to a witness, the evidence, records or things are privileged and must not, without the witness’s authorization, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.
Non-disclosure
(5) If a review panel is satisfied that the disclosure of evidence, records or other things would cause specific harm to the environment, the evidence, records or things are privileged and must not, without the review panel’s authorization, knowingly be or be permitted to be communicated, disclosed or made available by any person who has obtained the evidence, records or other things under this Act.
Enforcement of summonses and orders
(6) Any summons issued or order made by a review panel under subsection (1) must, for the purposes of enforcement, be made a summons or order of the Federal Court by following the usual practice and procedure.
Immunity
(7) No action or other proceeding lies or is to be commenced against a member of a review panel for or in respect of anything done or omitted to be done during the course of and for the purposes of the assessment by the review panel.
Public notice
46. On receiving a report with respect to the environmental assessment of the designated project by a review panel, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report, and must advise the public that it is available.
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Minister’s decisions
47. (1) The Minister, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).
Studies and collection of information
(2) The Minister may, before making decisions referred to in subsection 52(1), require the proponent of the designated project to collect any information or undertake any studies that, in the opinion of the Minister, are necessary for the Minister to make decisions.
Excluded periods
48. If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of a designated project to collect information or undertake a study with respect to the designated project, then
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(a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39 is not included in the calculation of the period referred to in paragraph 38(3)(a); (b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) or 42(2)(b) or subsection 43(2); and (c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2) is not included in the calculation of the period referred to in paragraph 38(3)(c). Rules in Case of Termination Termination
49. (1) The Minister must terminate the assessment by a review panel of a designated project if the review panel fails to submit its report within the specified period including any extension of time limits.
Power to terminate
(2) The Minister may terminate the assessment by a review panel of a designated project if he or she is of the opinion that the review panel will not be able to submit its report within the specified period including any extension of time limits.
2011-2012 Preliminary consultations
Emploi, croissance e (3) However, before the Minister exercises the power referred to in subsection (2) with respect to a review panel that is jointly established under one of the following agreements, arrangements or documents, he or she must (a) in the case of an agreement or arrangement referred to in subsection 40(1), consult the jurisdiction with which the agreement or arrangement was entered into; (b) in the case of an agreement or arrangement referred to in subsection 40(2), obtain the approval of the Minister of Foreign Affairs and consult the jurisdiction with which the agreement or arrangement was entered into; and (c) in the case of a document referred to in subsection 41(2), consult the Mackenzie Valley Environmental Impact Review Board.
Completion of environmental assessment by Agency
50. When the assessment by a review panel of a designated project is terminated under section 49, the Agency must, in accordance with directives provided by the Minister, complete the environmental assessment of the designated project and prepare a report and submit it to the Minister.
Minister’s decisions
51. The Minister, after taking into account the report with respect to the environmental assessment of the designated project that was submitted by the Agency, must make decisions under subsection 52(1). DECISION MAKING
Decisions of decision maker
52. (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project (a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and (b) is likely to cause significant adverse environmental effects referred to in subsection 5(2).
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Referral if significant adverse environmental effects
(2) If the decision maker decides that the designated project is likely to cause significant adverse environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the Governor in Council the matter of whether those effects are justified in the circumstances.
Referral through Minister
(3) If the decision maker is a responsible authority referred to in any of paragraphs 15(a) to (c), the referral to the Governor in Council is made through the Minister responsible before Parliament for the responsible authority.
Governor in Council’s decision
(4) When a matter has been referred to the Governor in Council, the Governor in Council may decide
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(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or (b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances. Conditions — environmental effects referred to in subsection 5(1)
53. (1) If the decision maker decides under paragraph 52(1)(a) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(1), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.
Conditions — environmental effects referred to in subsection 5(2)
(2) If the decision maker decides under paragraph 52(1)(b) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(2), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions — that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or
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Emploi, croissance e function by a federal authority that would permit a designated project to be carried out, in whole or in part — in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.
Conditions subject to exercise of power or performance of duty or function
(3) The conditions referred to in subsection (2) take effect only if the federal authority exercises the power or performs the duty or function.
Mitigation measures and follow-up program
(4) The conditions referred to in subsections (1) and (2) are (a) the implementation of the mitigation measures that were taken into account in making the decisions under subsection 52(1); and (b) the implementation of a follow-up program. DECISION STATEMENT
Decision statement issued to proponent
54. (1) The decision maker must issue a decision statement to the proponent of a designated project that (a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b) in relation to the designated project and, if a matter was referred to the Governor in Council, of the decision made under subsection 52(4) in relation to the designated project; and (b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.
Time limit of decision statement
(2) When the decision maker has made a decision under paragraphs 52(1)(a) and (b) in relation to the designated project for the purpose of section 47, the decision maker must issue the decision statement no later than 24 months after the day on which the environmental assessment of the designated project was referred to a review panel under section 38.
Extension of time limit by Minister
(3) The decision maker may extend that time limit by any further period – up to a maximum of three months – that is necessary to permit cooperation with any jurisdiction with respect to
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the environmental assessment of the designated project or to take into account circumstances that are specific to the project. Extension of time limit by Governor in Council
(4) The Governor in Council may, on the recommendation of the Minister, extend the time limit extended under subsection (3).
Posting notice of extension on Internet site
(5) The Agency must post a notice of any extension granted under subsection (3) or (4) on the Internet site.
Excluded period
(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the designated project to collect information or undertake a study with respect to the designated project, the calculation of the time limit within which the decision maker must issue the decision statement does not include: (a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39; (b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and (c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).
Posting of decision statement on Internet site
55. The responsible authority referred to in any of paragraphs 15(a) to (c) must ensure that any decision statement that it issues under section 54 is posted on the Internet site, and the Agency must post on the Internet site any decision statement that the Minister issues under that section.
Decision statement considered part of licence under Nuclear Safety and Control Act
56. (1) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(a) is considered to be a part of the licence issued under section 24 of the Nuclear Safety and Control Act in relation to the designated project.
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Emploi, croissance e (2) A decision statement issued in relation to a designated project by the responsible authority referred to in paragraph 15(b) is considered to be a part of (a) the certificate, order, permit or licence issued, the leave or exemption granted or the direction or approval given under the National Energy Board Act in relation to the designated project; or (b) the authorization or licence issued, the approval granted or the leave given under the Canada Oil and Gas Operations Act in relation to the designated project. PARTICIPANT FUNDING PROGRAMS
Agency’s obligation
57. The Agency must establish a participant funding program to facilitate the participation of the public in the environmental assessment of designated projects that have been referred to a review panel under section 38.
Responsible authority’s obligation
58. (1) A responsible authority must establish a participant funding program to facilitate the participation of the public in the environmental assessment of any designated project, for which it is the responsible authority, that meets the following conditions: (a) it includes physical activities that are designated by regulations made under paragraph 84(e) or that are part of a class of activities designated by those regulations; and (b) the environmental assessment of the designated project was not referred to a review panel under section 38.
Exception
(2) The obligation does not apply with respect to any designated project for which the Minister has approved a substitution under section 32. COST RECOVERY
Proponent’s obligation to pay costs
59. (1) For the Agency to recover its costs in relation to the environmental assessment of a designated project, the proponent of the designated project must pay to the Agency (a) if the environmental assessment is conducted by the Agency, any costs that the Agency incurs for prescribed services pro66
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vided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities in relation to the environmental assessment; and (b) if the environmental assessment is referred to a review panel under section 38, any costs that the review panel and the Agency incur for prescribed services provided by a third party in the course of the environmental assessment and any prescribed amounts that are related to the exercise of its responsibilities or to those of the members of the review panel, in relation to the environmental assessment. User Fees Act
(2) The User Fees Act does not apply to the costs and amounts referred to in subsection (1) that are fixed at the time of the coming into force of this Act.
Services provided during given period
60. For the purposes of section 59, the services or responsibilities are limited to those provided or exercised during the period that begins when the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site under section 17 and that ends when the decision statement is issued to the proponent under section 54.
Debt due to Her Majesty
61. The costs and amounts that the proponent must pay under section 59 constitute a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction. TERMINATION OF ENVIRONMENTAL ASSESSMENT
Termination by responsible authority or Minister
62. The responsible authority with respect to a designated project — or the Minister if the environmental assessment of the designated project has been referred to a review panel under section 38 — may terminate the environmental assessment if the proponent advises the responsible authority or the Minister in writing that the proponent does not intend to carry out the designated project.
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63. The responsible authority referred to in any of paragraphs 15(a) to (c) may terminate the environmental assessment of a designated project for which it is the responsible authority if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part and, if the responsible authority is referred to in paragraph 15(c), the environmental assessment of a designated project was not referred to a review panel under section 38.
Termination by Minister
64. The Minister may terminate the environmental assessment by a review panel of a designated project for which the responsible authority is referred to in paragraph 15(c) if it decides not to exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that would permit the designated project to be carried out in whole or in part. CONFIDENTIAL INFORMATION
No disclosure
65. Despite any other provision of this Act, no confidence of the Queen’s Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies is to be disclosed or made available under this Act to any person. DUTIES OF CERTAIN AUTHORITIES IN RELATION TO PROJECTS
Definitions
“authority” « autorité »
66. The following definitions apply in sections 5 and 67 to 72. “authority” means (a) a federal authority; and (b) any other body that is set out in Schedule 3.
“project” « projet »
Project carried out on federal lands
“project” means a physical activity that is carried out in relation to a physical work and is not a designated project. 67. An authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it
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under any Act of Parliament other than this Act that would permit a project to be carried out, in whole or in part, on federal lands, unless (a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or (b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3). Project outside Canada
68. A federal authority must not carry out a project outside Canada, or provide financial assistance to any person for the purpose of enabling, in whole or in part, a project to be carried out outside Canada, unless (a) the federal authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or (b) the federal authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3).
Referral to Governor in Council
69. (1) If the authority determines that the carrying out of a project on federal lands or outside Canada is likely to cause significant adverse environmental effects, the authority may refer to the Governor in Council the matter of whether those effects are justified in the circumstances.
Referral through Minister
(2) When the determination is made by an authority other than a federal Minister, then the referral to the Governor in Council is made through the Minister responsible before Parliament for that authority.
Governor in Council’s decision
(3) When a matter has been referred to the Governor in Council, the Governor in Council must decide whether the significant adverse environmental effects are justified in the circumstances and must inform the authority of its decision.
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Emploi, croissance e 70. Sections 67 and 68 do not apply to an authority in respect of a project (a) in relation to which there are matters of national security; (b) that is to be carried out in response to a national emergency for which special temporary measures are being taken under the Emergencies Act; or (c) that is to be carried out in response to an emergency, and carrying out of the project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
Federal authority’s reporting duty
71. (1) The federal authority must, at the end of each fiscal year, report on its activities under sections 67 to 69 during the previous fiscal year.
Tabling in Parliament
(2) The information on its activities must be laid before each House of Parliament during the fiscal year after the fiscal year to which the information relates.
Authority’s reporting duty
72. (1) The authority referred to in paragraph (b) of the definition “authority” in section 66 must, each year, report on its activities during the previous year under sections 67 and 69.
Availability
(2) The authority must make the information on its activities available to the public. REGIONAL STUDIES
Establishment of committee — region entirely on federal lands
73. (1) The Minister may establish a committee to conduct a study of the effects of existing or future physical activities carried out in a region that is entirely on federal lands.
Mandate and appointment of members
(2) If the Minister establishes a committee, he or she must establish its terms of reference and appoint as a member of the committee one or more persons.
Joint establishment of committee — other regions
74. (1) If the Minister is of the opinion that it is appropriate to conduct a study of the effects of existing or future physical activities carried out in a region that is composed in part of federal lands or in a region that is entirely outside federal lands,
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(a) the Minister may enter into an agreement or arrangement with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted; and (b) the Minister and the Minister of Foreign Affairs may enter into an agreement or arrangement with any jurisdiction referred to in paragraph (g) or (h) of that definition respecting the joint establishment of a committee to conduct the study and the manner in which the study is to be conducted. Mandate and appointment of members
(2) If an agreement or arrangement referred to in subsection (1) is entered into, the Minister must establish — or approve — the committee’s terms of reference and appoint one or more persons as a member of the committee — or approve their appointment.
Report to Minister
75. On completion of the study that it conducts, the committee established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b) must provide a report to the Minister.
Public notice
76. On receiving the committee’s report, the Minister must make the report available to the public in any manner he or she considers appropriate to facilitate public access to the report and must advise the public that it is available.
Application of section 45
77. Section 45 applies, with any necessary modifications, to a committee referred to in section 75 and, for the purpose of applying section 45 to a committee, a reference in that section to a review panel is a reference to a committee. CANADIAN ENVIRONMENTAL ASSESSMENT REGISTRY ESTABLISHMENT OF REGISTRY
Canadian Environmental Assessment Registry
78. (1) For the purpose of facilitating public access to records relating to environmental assessments and providing notice in a timely manner of those assessments, there is to be a
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Right of access
(2) The Registry must be operated in a manner that ensures convenient public access to it. That right of access to the Registry is in addition to any right of access provided under any other Act of Parliament.
Copy
(3) For the purpose of facilitating public access to records included in the Registry, the responsible authority must ensure that a copy of any of those records is provided in a timely manner on request. INTERNET SITE
Establishment and maintenance
79. (1) The Agency must establish and maintain an Internet site that is available to the public.
Contents — responsible authority
(2) The responsible authority with respect to a designated project must ensure that the following records and information, relating to the environmental assessment of the designated project that it conducts, are posted on the Internet site: (a) any public notice that is issued by the responsible authority to request participation of the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, of any interested party — in the environmental assessment; (b) a description of the factors to be taken into account in the environmental assessment and of the scope of those factors or an indication of how such a description may be obtained; (c) the report with respect to the environmental assessment that is taken into account by the responsible authority or the Minister for the purpose of making decisions under section 27 or 36, or a summary of the report and an indication of how a copy of the report may be obtained; (d) the report with respect to the environmental assessment or the reconsideration report that is taken into account by the
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Governor in Council for the purpose of making a decision under section 31, or a summary of that report and an indication of how a copy of that report may be obtained; (e) notice of the responsible authority’s decision to terminate the environmental assessment under section 62 or 63; (f) any other information that the responsible authority considers appropriate, including information in the form of a list of relevant records and an indication of how a copy of them may be obtained; and (g) any other record or information prescribed by regulations made under paragraph 84(f). Contents — Agency
(3) The Agency must ensure that, in the case of an assessment conducted by a review panel or an environmental assessment completed under section 50, the following records or information are posted on the Internet site: (a) the review panel’s terms of reference; (b) any public notice that is issued by the review panel to request public participation in an environmental assessment; (c) the report with respect to the environmental assessment that is taken into account by the Minister for the purpose of making decisions under section 47 or 51, or a summary of the report and an indication of how a copy of the report may be obtained; (d) notice of the termination of an assessment conducted by the review panel under section 49; (e) notice of the Minister’s decision to terminate an environmental assessment under section 62 or 64; (f) any other information that the Agency considers appropriate, including information in the form of a list of relevant documents and an indication of how a copy of them may be obtained; and (g) any other record or information prescribed by regulations made under paragraph 84(f).
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(4) The Agency must determine (a) what the form of the Internet site is to be and how it is to be kept; (b) what information must be contained in any record required to be posted on the Internet site under this Act; and (c) when information may be removed from the Internet site. PROJECT FILES
Establishment and maintenance
80. (1) In respect of every designated project for which a screening or an environmental assessment is conducted, a project file must be established and maintained (a) by the Agency when there is a screening of the designated project, during the screening; and (b) by the responsible authority from the commencement of the environmental assessment until any follow-up program in respect of the designated project is completed.
Contents of project file
(2) A project file must contain all records produced, collected or received for the purpose of conducting the screening and the environmental assessment of the designated project, including (a) all records posted on the Internet site; (b) the description of the designated project; (c) any report relating to the environmental assessment; (d) any comments that are received from the public in relation to the screening and the environmental assessment; (e) any records relating to the design or implementation of any follow-up program; and (f) any records relating to mitigation measures to be implemented. GENERAL
Categories of available information
81. (1) Despite any other provision of this Act, the Registry must contain a record, part of a record or information only if
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(a) it has otherwise been made publicly available; or (b) the responsible authority, in the case of a record under its control, or the Minister, in the case of a record under the Agency’s control, (i) determines that it would have been disclosed to the public in accordance with the Access to Information Act if a request had been made in respect of that record under that Act at the time the record came under the control of the responsible authority or the Agency, including any record that would be disclosed in the public interest under subsection 20(6) of that Act, or (ii) believes on reasonable grounds that it would be in the public interest to disclose it because it is required for the public to participate effectively in the environmental assessment — other than any record the disclosure of which would be prohibited under section 20 of the Access to Information Act. Applicability of sections 27, 28 and 44 of Access to Information Act
(2) Sections 27, 28 and 44 of the Access to Information Act apply to any information described in subsection 27(1) of that Act that the Agency or a responsible authority intends to be included in the Registry with any necessary modifications, including the following: (a) the information is deemed to be a record that the head of a government institution intends to disclose; and (b) any reference to the person who requested access must be disregarded.
Protection from civil proceeding or prosecution
82. Despite any other Act of Parliament, no civil or criminal proceedings lie against a responsible authority, the Agency or the Minister, or against any person acting on behalf of, or under the direction of, any one of them and no proceedings lie against the Crown, the Agency or any responsible authority, for the disclosure in good faith of any record or any part of a record under this Act or for any consequences that flow from that disclosure or for the failure
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ADMINISTRATION Regulations — Governor in Council
83. The Governor in Council may make regulations (a) amending Schedule 1 or 3 by adding or deleting a body or a class of bodies; (b) prescribing, for the purposes of paragraph 15(c), the federal authority that performs regulatory functions and that may hold public hearings; (c) exempting any class of proponents or class of designated projects from the application of section 59; (d) varying or excluding any requirement set out in this Act or the regulations as it applies to physical activities to be carried out (i) on reserves, surrendered lands or other lands that are vested in Her Majesty and subject to the Indian Act, (ii) on lands covered by land claim agreements referred to in section 35 of the Constitution Act, 1982, (iii) under international agreements or arrangements entered into by the Government of Canada, or (iv) in relation to which there are matters of national security; (e) prescribing anything that, by this Act, is to be prescribed; (f) prescribing the way in which anything that is required or authorized by this Act to be prescribed is to be determined; and (g) generally, for carrying out the purposes and provisions of this Act.
Regulations — Minister
84. The Minister may make regulations
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(a) for the purpose of the definition “designated project” in subsection 2(1), designating a physical activity or class of physical activities and specifying for each designated physical activity or class of physical activities one of the following federal authorities to which the physical activity is linked: (i) the Canadian Nuclear Safety Commission, (ii) the National Energy Board, (iii) any federal authority that performs regulatory functions, that may hold public hearings and that is prescribed in regulations made under paragraph 83(b), or (iv) the Agency; (b) prescribing the information that must be contained in a description of a designated project; (c) respecting the procedures, requirements and time periods relating to environmental assessments, including the manner of designing a follow-up program; (d) respecting a participant funding program established under section 57 or established under section 58 by the responsible authority referred to in paragraph 15(d); (e) designating, for the purposes of section 58, a physical activity or class of physical activities; (f) respecting the Registry, including the identification of records or information to be posted on the Internet site and the establishment and maintenance of project files referred to in section 80; and (g) respecting the charging of fees for providing copies of documents contained in the Registry. Externally produced documents
85. (1) A regulation made under this Act may incorporate by reference documents that are produced by a person or body other than the Agency, including a federal authority referred to in any of paragraphs (a) to (d) of the definition “federal authority” in subsection 2(1).
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Ambulatory incorporation by reference
(2) A document may be incorporated by reference either as it exists on a particular date or as amended from time to time.
Accessibility of incorporated document
(3) The Minister must ensure that any document incorporated by reference in a regulation is accessible.
No registration or publication
(4) For greater certainty, a document that is incorporated by reference into a regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Minister’s powers
86. (1) For the purposes of this Act, the Minister may (a) issue guidelines and codes of practice respecting the application of this Act and, without limiting the generality of the foregoing, establish criteria to determine whether a designated project, taking into account the implementation of any appropriate mitigation measures, is likely to cause significant adverse environmental effects or whether such effects are justified in the circumstances; (b) establish research and advisory bodies in the area of environmental assessment; (c) enter into agreements or arrangements with any jurisdiction referred to in paragraphs (a) to (f) of the definition “jurisdiction” in subsection 2(1) respecting assessments of environmental effects; (d) enter into agreements or arrangements with any jurisdiction for the purposes of coordination, consultation, exchange of information and the determination of factors to be considered in relation to the assessment of the environmental effects of designated projects of common interest; (e) establish criteria for the appointment of members of review panels; and (f) establish criteria for the appointment of members of committees established under section 73 or 74.
Power to enter into international agreements
(2) The Minister and the Minister of Foreign Affairs may enter into agreements or arrangements with any jurisdiction referred to in paragraphs (g) and (h) of the definition “jurisdiction” in subsection 2(1) respecting
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assessments of environmental effects, including, without limiting the generality of the foregoing, for the purposes of implementing the provisions of any international agreement or arrangement to which the Government of Canada is a party respecting the assessment of environmental effects. Opportunity for public to comment
(3) The Minister must provide reasonable public notice of and a reasonable opportunity for anyone to comment on draft guidelines, codes of practice, agreements, arrangements or criteria under this section.
Availability to public
(4) Any guidelines, codes of practice, agreements, arrangements or criteria must be made available to the public.
Nonapplication — national security
87. (1) The Governor in Council may, by order, exclude a designated project from the application of this Act if, in the Governor in Council’s opinion, the designated project is one in relation to which there are matters of national security.
Nonapplication — national emergency or emergency
(2) The Minister may, by order, exclude a designated project from the application of this Act if, in the Minister’s opinion, the designated project is one to be carried out in response to (a) a national emergency for which special temporary measures are being taken under the Emergencies Act; or (b) an emergency, and carrying out the designated project without delay is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
Posting of notice of order on Internet site
(3) The Agency must post on the Internet site a notice of any order made under subsection (2).
Statutory Instruments Act
88. An order made under subsection 14(2), 37(1), 87(1) or (2), 125(7) or 128(2) is not a statutory instrument for the purposes of the Statutory Instruments Act.
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ADMINISTRATION AND ENFORCEMENT DESIGNATION Power to designate
89. (1) The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.
Certificate
(2) The Minister must provide every person designated under subsection (1) with a certificate of designation. That person must, if so requested, produce the certificate to the occupant or person in charge of a place referred to in subsection 90(1). POWERS
Authority to enter
90. (1) A person who is designated to verify compliance or prevent non-compliance with this Act or orders made under section 94 may, for those purposes, enter a place in which they have reasonable grounds to believe a designated project is being carried out or a record or anything relating to a designated project is located.
Powers on entry
(2) The designated person may, for those purposes, (a) examine anything in the place; (b) use any means of communication in the place or cause it to be used; (c) use any computer system in the place, or cause it to be used, to examine data contained in or available to it; (d) prepare a document, or cause one to be prepared, based on the data; (e) use any copying equipment in the place, or cause it to be used; (f) remove anything from the place for examination or copying; (g) take photographs and make recordings or sketches; (h) order the owner or person in charge of the place or a person at the place to establish their identity to the designated person’s satisfaction or to stop or start an activity;
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(i) order the owner or a person having possession, care or control of anything in the place to not move it, or to restrict its movement, for as long as, in the designated person’s opinion, is necessary; (j) direct any person to put any machinery, vehicle or equipment in the place into operation or to cease operating it; and (k) prohibit or limit access to all or part of the place.
Duty to assist
(3) The owner or person in charge of the place and every person in the place must give all assistance that is reasonably required to enable the designated person to exercise a power or perform a duty or function under this section and must provide any documents, data or information that are reasonably required for that purpose.
Warrant for dwelling-house
91. (1) If the place is a dwelling-house, the designated person must not enter it without the occupant’s consent except under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) On ex parte application, a justice may issue a warrant authorizing a designated person who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that (a) the dwelling-house is a place referred to in subsection 90(1); (b) entry to the dwelling-house is necessary for any of the purposes of that subsection; and (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
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92. (1) For the purpose of gaining entry to a place referred to in subsection 90(1), a designated person may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.
Person accompanying designated person
(2) A person may, at the designated person’s request, accompany the designated person to assist them to gain entry to the place referred to in subsection 90(1) and is not liable for doing so.
Use of force
93. In executing a warrant to enter a dwelling-house, a designated person must not use force unless the use of force has been specifically authorized in the warrant and the designated person is accompanied by a peace officer. ORDERS
Measures required
94. (1) If a person designated to verify compliance with this Act believes on reasonable grounds that there is a contravention of this Act, they may, among other things, order a person to (a) stop doing something that is in contravention of this Act or cause it to be stopped; or (b) take any measure that is necessary in order to comply with this Act or to mitigate the effects of non-compliance.
Notice
(2) The order must be provided in the form of a written notice and must include (a) a statement of the reasons for the order; and (b) the time and manner in which the order must be carried out.
Duty to comply with order
(3) Any person to whom an order is given under subsection (1) must comply with the order given.
Measures taken by designated person
95. If a person does not comply with an order made under subsection 94(1) within the time specified, the designated person may, on their own initiative and at that person’s expense, carry out the measure required.
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Court’s power
96. (1) If, on the Minister’s application, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence under section 99, the court may issue an injunction ordering the person who is named in the application to (a) refrain from doing an act that, in the court’s opinion, may constitute or be directed toward the commission of the offence; or (b) do an act that, in the opinion of the court, may prevent the commission of the offence.
Notice
(2) At least 48 hours before the injunction is issued, notice of the application must be given to persons named in the application, unless the urgency of the situation is such that the delay involved in giving the notice would not be in the public interest. PROHIBITIONS AND OFFENCES
Obstruction
97. It is prohibited to obstruct or hinder a designated person who is exercising their powers or performing their duties and functions under this Act.
False statements or information
98. It is prohibited to knowingly make a false or misleading statement or knowingly provide false or misleading information in connection with any matter under this Act to any person who is exercising their powers or performing their duties and functions under this Act.
Contravention — section 6
99. (1) Any proponent who contravenes section 6 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.
Contravention — subsection 94(3)
(2) A person who contravenes subsection 94(3) is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $200,000 and, for any subsequent offence, to a fine of not more than $400,000.
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Contravention — section 97
(3) Any person who contravenes section 97 is guilty of an offence punishable on summary conviction and is liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $300,000.
Continuing offences
(4) If an offence under subsection (1) or (2) is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Due diligence defence
(5) A person must not be found guilty of an offence under subsection (1), (2) or (3) if they establish that they exercised due diligence to prevent the commission of the offence.
Contravention — section 98
100. Any person who contravenes section 98 is guilty of an offence punishable on summary conviction and is liable to a fine of not more than $300,000.
Limitation period
101. Proceedings by way of summary conviction in respect of an offence under this Act may be instituted at any time within two years after the day on which the Minister becomes aware of the acts or omissions that constitute the alleged offence.
Admissibility of evidence
102. (1) In proceedings for an offence under this Act, a statement, certificate, report or other document of the Minister, the responsible authority or the designated person that is purported to have been signed by that person or authority is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the matters asserted in it.
Copies and extracts
(2) In proceedings for an offence under this Act, a copy of or an extract from any document that is made by the Minister, the responsible authority or the designated person that appears to have been certified under the signature of that person or authority as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.
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Presumed date of issue
(3) A document referred to in this section is, in the absence of evidence to the contrary, presumed to have been issued on the date that it bears.
Notice
(4) No document referred to in this section may be received in evidence unless the party intending to produce it has provided reasonable notice of that intention to the party against whom it is intended to be produced together with a copy of the document.
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103. (1) The Canadian Environmental Assessment Agency is continued and must advise and assist the Minister in exercising the powers and performing the duties and functions conferred on him or her by this Act.
Minister’s responsibility
(2) The Minister is responsible for the Agency.
Delegation to Agency
104. (1) The Minister may, subject to any terms and conditions that the Minister specifies, delegate to an officer or employee of the Agency any of the powers, duties and functions that the Minister is authorized to exercise or perform under this Act.
Restriction
(2) However, the Minister is not authorized to delegate a power to make regulations nor a power to delegate under subsection (1).
Agency’s objects
105. The Agency’s objects are (a) to conduct or administer environmental assessments and administer any other requirements and procedures established by this Act and the regulations; (b) to promote uniformity and harmonization in relation to the assessment of environmental effects across Canada at all levels of government; (c) to promote or conduct research in matters of environmental assessment and to encourage the development of environmental assessment techniques and practices, including testing programs, alone or in cooperation with other agencies or organizations;
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Agency’s duties
106. (1) In carrying out its objects, the Agency must (a) provide support for review panels and any committees established under section 73 or under an agreement or arrangement entered into under paragraph 74(1)(a) or (b); (b) provide, on the Minister’s request, administrative support for any research and advisory body established under paragraph 86(1)(b); and (c) provide information or training to facilitate the application of this Act.
Agency’s powers
(2) In carrying out its objects, the Agency may (a) undertake studies or activities or conduct research relating to environmental assessment; (b) advise persons and organizations on matters relating to the assessment of environmental effects; and (c) negotiate agreements or arrangements referred to in paragraph 86(1)(c) or (d) on the Minister’s behalf.
Using government facilities
107. In exercising its powers and performing its duties and functions under this Act, the Agency must, when appropriate, make use of the services and facilities of departments, boards and agencies of the Government of Canada.
President
108. (1) The Governor in Council appoints an officer to be the President of the Agency, to hold office during pleasure, who is, for the purposes of this Act, a deputy of the Minister.
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President — chief executive officer
(2) The President is the Agency’s chief executive officer, and may exercise all of the Minister’s powers under this Act as authorized by the Minister.
Acting President — Executive Vicepresident
(3) Subject to subsection (5), in the event of the absence or incapacity of the President or a vacancy in that office, the Executive Vicepresident acts as, and exercises the powers of, the President in the interim.
Acting President — other person
(4) Subject to subsection (5), the Minister may appoint a person other than the Executive Vice-president to act as the President in the interim.
Governor in Council’s approval required
(5) The Executive Vice-president, or a person appointed under subsection (4), must not act as the President for a period exceeding 90 days without the Governor in Council’s approval.
Executive Vicepresident
109. (1) The Governor in Council may appoint an officer to be the Executive Vicepresident of the Agency and to hold office during pleasure.
Powers, duties and functions
(2) The Executive Vice-president must exercise any powers and perform any duties and functions that the President may assign.
Remuneration
110. The President and the Executive Vicepresident are to be paid any remuneration that the Governor in Council may fix.
Appointment under Public Service Employment Act
111. The employees who are necessary to carry out the Agency’s work are to be appointed in accordance with the Public Service Employment Act.
Head office
112. The head office of the Agency is to be in the National Capital Region as described in the schedule to the National Capital Act.
Contracts, etc., binding on Her Majesty
113. (1) Every contract, memorandum of understanding and arrangement entered into by the Agency in its own name is binding on Her Majesty in right of Canada to the same extent as it is binding on the Agency.
Legal proceedings
(2) Actions, suits or other legal proceedings in respect of any right or obligation acquired or incurred by the Agency, whether in its own name or in the name of Her Majesty in right of Canada, may be brought or taken by or against
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Annual report to Parliament
114. (1) The Minister must, at the end of each fiscal year, prepare a report on the Agency’s activities and the administration and implementation of this Act during the previous fiscal year.
Tabling in Parliament
(2) The Minister must, during the fiscal year after the fiscal year for which the report is prepared, cause the report to be laid before each House of Parliament. TRANSITIONAL PROVISIONS
Definitions
115. The following definitions apply in this section and sections 116 to 129.
“former Act” « ancienne loi »
“former Act” means the Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992.
“former Agency” « ancienne Agence »
“former Agency” means the Canadian Environmental Assessment Agency established by section 61 of the former Act.
President of former Agency
116. The person who holds the office of President of the former Agency immediately before the day on which this Act comes into force continues in office as the President of the Agency until the expiry or revocation of the appointment.
Executive Vicepresident of former Agency
117. The person who holds the office of Executive Vice-president of the former Agency immediately before the day on which this Act comes into force continues in office as the Executive Vice-president of the Agency until the expiry or revocation of the appointment.
Employment continued
118. (1) Nothing in this Act is to be construed to affect the status of an employee who, immediately before the day on which this Act comes into force, occupied a position in the former Agency, except that the employee is to, on that day, occupy their position in the Agency.
Definition of “employee”
(2) For the purposes of this section, “employee” has the same meaning as in subsection 2(1) of the Public Service Employment Act.
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References
119. Every reference to the former Agency in any deed, contract, agreement or other document executed by the former Agency in its own name is, unless the context otherwise requires, to be read as a reference to the Agency.
Transfer of rights and obligations
120. All rights and property of the former Agency and of Her Majesty in right of Canada that are under the administration and control of the former Agency and all obligations of the former Agency are transferred to the Agency.
Commencement of legal proceedings
121. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the former Agency may be brought against the Agency in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the former Agency.
Continuation of legal proceedings
122. Any action, suit or other legal proceeding to which the former Agency is party that is pending in any court immediately before the day on which this Act comes into force may be continued by or against the Agency in like manner and to the same extent as it could have been continued by or against the former Agency.
Appropriations
123. Any amount appropriated, for the fiscal year in which this Act comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the former Agency and that, on the day on which this Act comes into force, is unexpended is considered, on that day, to be an amount appropriated for defraying the charges and expenses of the Agency.
Completion of screenings commenced under former Act
124. (1) Subject to subsections (3) to (5), any screening of a project commenced under the former Act before the day on which this Act comes into force must, if the project is a designated project, be continued and completed as if the former Act had not been repealed.
Minister’s power
(2) The Minister may, only on the day on which this Act comes into force, exercise the power conferred by subsection 14(2) with respect to a physical activity that is included in a project that was the subject of a screening commenced under the former Act before the day
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Emploi, croissance e on which this Act comes into force, and that is not completed on that day and that is not, on that day, a designated project.
Time limit
(3) The responsible authority with respect to the project to which subsection (1) applies must take a course of action under section 20 of the former Act no later than 365 days after the day on which this Act comes into force.
Exclusion
(4) If the responsible authority under subsection 18(2) of the former Act requires the proponent of the project to collect information or undertake a study with respect to the project, the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the 365-day time limit.
Project requiring assessment by review panel
(5) If, during the screening or once the screening is completed, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.
Completion of comprehensive studies commenced under former Act
125. (1) Subject to subsections (2) to (6), any comprehensive study of a project commenced under the former Act before the day on which this Act comes into force is continued and completed as if the former Act had not been repealed.
Establishing Timelines for Comprehensive Studies Regulations
(2) The Establishing Timelines for Comprehensive Studies Regulations are deemed to have come into force on July 12, 2010 with respect to a comprehensive study to which subsection (1) applies.
Six-month time limit
(3) With respect to any comprehensive study commenced before July 12, 2010 to which subsection (1) applies with respect to a project for which the responsible authority is not the Canadian Nuclear Safety Commission, the responsible authority must ensure that the Minister and the Agency are provided with the
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comprehensive study report no later than six months after the day on which this Act comes into force. Six-month time limit
(4) With respect to any comprehensive study to which subsection (1) applies and which was commenced before July 12, 2010 by a port authority established under section 8 of the Canada Marine Act, the port authority must ensure that the comprehensive study report is provided to the Minister of Transport and the Agency no later than six months after the day on which this Act comes into force.
Excluded periods
(5) If, under the former Act, the responsible authority or the port authority requires the proponent to collect information or undertake a study with respect to the project, then (a) the period that is taken by the proponent, in the opinion of the responsible authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (3); and (b) the period that is taken by the proponent, in the opinion of the port authority, to comply with the requirement, is not included in the calculation of the six-month time limit referred to in subsection (4).
Project requiring assessment by review panel
(6) If, during the comprehensive study, the Minister is of the opinion that the project must be referred to a review panel, the environmental assessment of the project is continued under the process established under this Act. The project is considered to be a designated project and the Minister must refer the environmental assessment of the project to a review panel under section 38.
Minister’s powers
(7) The Minister may, by order, exclude any comprehensive study of a project from the application of subsection (1) and provide that the environmental assessment of the project is continued under the process established under this Act. In such a case, the project is considered to be a designated project and, despite subsection 27(2), when the Minister must make decisions under section 27 with respect to the designated project, he or she must specify in the
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Emploi, croissance e order the time limit for the decisions to be made. Subsections 27(3), (4) and (6) apply with respect to the time limit.
Posting of notice of order on Internet site
(8) The Agency must post a notice of any order made under subsection (7) on the Internet site.
Completion of assessment by a review panel commenced under former Act
126. (1) Despite subsection 38(6) and subject to subsections (2) to (6), any assessment by a review panel, in respect of a project, commenced under the process established under the former Act before the day on which this Act comes into force is continued under the process established under this Act as if the environmental assessment had been referred by the Minister to a review panel under section 38. The project is considered to be a designated project for the purposes of this Act and Part 3 of the Jobs, Growth and Long-term Prosperity Act, and (a) if, before that day, a review panel was established under section 33 of the former Act, in respect of the project, that review panel is considered to have been established — and its members are considered to have been appointed — under subsection 42(1) of this Act; (b) if, before that day, an agreement or arrangement was entered into under subsection 40(2) of the former Act, in respect of the project, that agreement or arrangement is considered to have been entered into under section 40 of this Act; and (c) if, before that day, a review panel was established by an agreement or arrangement entered into under subsection 40(2) of the former Act or by document referred to in subsection 40(2.1) of the former Act, in respect of the project, it is considered to have been established by — and its members are considered to have been appointed under — an agreement or arrangement entered into under section 40 of this Act or by document referred to in subsection 41(2) of this Act.
Time limit for issuing decision statement under section 54
(2) The Minister must establish the time limit within which, from the day on which this Act comes into force, the decision statement that is
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required under section 54 in respect of the project must be issued. Subsection 54(3) applies with respect to the time limit. Other time limits
(3) The Minister must, in respect of the project, also establish any of the time limits set out in paragraphs 38(3)(a) to (c) — which combined are not to exceed the time limit referred to in subsection (2) — that are necessary, depending on whether, on the day on which this Act comes into force, the review panel has or has not been established or the report with respect to the environmental assessment of the project has or has not been submitted to the Minister.
Certain time limits established jointly
(4) In respect of a project to which paragraph (1)(b) applies and for which the responsible authority is referred to in paragraph 15(a) or (b), the Minister jointly establishes the time limits under subsections (2) and (3) with the responsible authority with respect to the project.
Posting time limits on Internet site
(5) The Agency must post on the Internet site a notice of any time limits established under subsection (2) or (3) in respect of the project.
Excluded periods
(6) If the Agency, the review panel or the Minister, under section 39 or subsection 44(2) or 47(2), respectively, requires the proponent of the project to collect information or undertake a study with respect to the designated project, the following periods are not included in the calculation of the time limit within which the Minister must issue the decision statement in respect of the project nor in the calculation of any of the time limits that are established under subsection (3): (a) the period that is taken by the proponent, in the opinion of the Agency, to comply with the requirement under section 39; (b) the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2); and (c) the period that is taken by the proponent, in the opinion of the Minister, to comply with the requirement under subsection 47(2).
Substitution under former Act
127. The environmental assessment of a project commenced under the former Act before the day on which this Act comes into force for
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Emploi, croissance e which the Minister has, before that date, approved the substitution of a process under section 43 of the former Act is continued and completed as if the former Act had not been repealed.
Non-application of this Act
128. (1) This Act does not apply to a project, as defined in the former Act, that is a designated project as defined in this Act, if one of the following conditions applies: (a) the proponent of the project has, before the day on which this Act comes into force, initiated the construction of the project; (b) it was determined by the Agency or a federal authority under the former Act that an environmental assessment of the project was likely not required; (c) the responsible authority has taken a course of action under paragraph 20(1)(a) or (b) or subsection 37(1) of the former Act in relation to the project; or (d) an order issued under subsection (2) applies to the project.
Minister’s powers
(2) On the day on which this Act comes into force, the Minister may, by order, exclude from the application of this Act a project, as defined in the former Act, that is a designated project under this Act, if the Minister is of the opinion that the project was not subject to the former Act and that another jurisdiction that has powers, duties or functions in relation to the assessment of the environmental effects of the project has commenced that assessment.
Posting of notice of order on Internet site
(3) The Agency must post a notice of any order made under subsection (2) on the Internet site.
Privileged evidence, documents or things
129. The evidence, documents or things that, before the day on which this Act comes into force, are privileged under subsection 35(4) or (4.1) of the former Act are considered to be privileged under subsection 45(4) or (5), respectively, of this Act.
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2009, c. 14, s. 126
Related Amendments to the Environmental Violations Administrative Monetary Penalties Act
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53. (1) The definition “Environmental Act” in section 2 of the Environmental Violations Administrative Monetary Penalties Act is replaced by the following: “Environmental Act” « loi environnementale »
“Environmental Act” means the Antarctic Environmental Protection Act, the Canada National Marine Conservation Areas Act, the Canada National Parks Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994, the Saguenay-St. Lawrence Marine Park Act or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
(2) Paragraph (a) of the definition “Minister” in section 2 of the Act is replaced by the following: (a) with respect to violations that relate to the Antarctic Environmental Protection Act, the Canada Water Act, the Canada Wildlife Act, the Canadian Environmental Assessment Act, 2012, the Canadian Environmental Protection Act, 1999, the International River Improvements Act, the Migratory Birds Convention Act, 1994 or the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, the Minister of the Environment; and
54. Section 5 of the Act is amended by adding the following after subsection (3):
2011-2012 Restriction — Canadian Environmental Assessment Act, 2012
Emploi, croissance e (3.1) With respect to the Canadian Environmental Assessment Act, 2012, only a contravention or a failure to comply arising out of section 6, subsection 94(3) or section 97 or 98 of that Act may be designated under paragraph (1)(a). Consequential Amendments
R.S., c. A-1 1992, c. 37, s. 76
Access to Information Act 55. Schedule II to the Access to Information Act is amended by striking out the reference to Canadian Environmental Assessment Act Loi canadienne sur l’évaluation environnementale and the corresponding reference to “subsection 35(4)”. 56. Schedule II to the Act is amended by adding, in alphabetical order, a reference to Canadian Environmental Assessment Act, 2012 Loi canadienne sur l’évaluation environnementale (2012) and a corresponding reference to “subsections 45(4) and (5)”.
R.S., c. E-20; 2001, c. 33, s. 2(F)
Export Development Act
2001, c. 33, s. 12
57. Section 24.1 of the Export Development Act is replaced by the following:
Canadian Environmental Assessment Act, 2012
24.1 Section 68 of the Canadian Environmental Assessment Act, 2012 does not apply when the Minister or the Minister of Finance exercises a power or performs a duty or function under this Act or any regulation made under it, or exercises a power of authorization or approval with respect to the Corporation under any other Act of Parliament or any regulation made under it.
96 1999, c. 24
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First Nations Land Management Act 58. Section 41 of the First Nations Land Management Act is repealed.
2002, c. 29
Species at Risk Act 59. (1) Subsection 79(1) of the Species at Risk Act is replaced by the following:
Notification of Minister
79. (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted, and every authority who makes a determination under paragraph 67(a) or (b) of the Canadian Environmental Assessment Act, 2012 in relation to a project, must, without delay, notify the competent minister or ministers in writing of the project if it is likely to affect a listed wildlife species or its critical habitat. (2) Subsection 79(3) of the Act is replaced by the following:
Definitions
“person” « personne »
“project” « projet »
(3) The following definitions apply in this section. “person” includes an association, an organization, a federal authority as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012, and any body that is set out in Schedule 3 to that Act. “project” means (a) a designated project as defined in subsection 2(1) of the Canadian Environmental Assessment Act, 2012 or a project as defined in section 66 of that Act; (b) a project as defined in subsection 2(1) of the Yukon Environmental and Socio-economic Assessment Act; or (c) a development as defined in subsection 111(1) of the Mackenzie Valley Resource Management Act.
2011-2012 2003, c. 20
Emploi, croissance e Antarctic Environmental Protection Act 60. Section 6 of the Antarctic Environmental Protection Act is repealed.
2005, c. 48
First Nations Oil and Gas and Moneys Management Act 61. Subsection 2(2) of the First Nations Oil and Gas and Moneys Management Act is replaced by the following:
Expressions in Canadian Environmental Assessment Act, 2012
(2) In this Act, “environment” and “environmental effects” have the same meaning as in subsection 2(1) of the Canadian Environmental Assessment Act, 2012. 62. Subsection 63(3) of the Act is replaced by the following:
Comparable standards
(3) The requirements of any regulations made under subsection (1) must be generally comparable with those applicable in similar circumstances under the Canadian Environmental Assessment Act, 2012.
2005, c. 53
First Nations Commercial and Industrial Development Act 63. Paragraph 3(2)(n) of the First Nations Commercial and Industrial Development Act is replaced by the following: (n) require that an assessment of the environmental effects of the undertakings be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such an assessment; Coordinating Amendments
This Act
64. On the first day on which both sections 52 and 141 of this Act are in force, subparagraph 5(1)(a)(i) of the Canadian Environmental Assessment Act, 2012 is replaced by the following: (i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,
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Bill S-8
65. If Bill S-8, introduced in the 1st session of the 41st Parliament and entitled the Safe Drinking Water for First Nations Act, receives royal assent, then, on the first day on which both paragraph 5(1)(r) of that Act and section 52 of this Act are in force, that paragraph 5(1)(r) is replaced by the following:
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(r) require that an assessment of the environmental effects of drinking water systems or waste water systems be undertaken in circumstances where the Canadian Environmental Assessment Act, 2012 does not apply, and establish a procedure to be followed in such assessments. Repeal Repeal
66. The Canadian Environmental Assessment Act, chapter 37 of the Statutes of Canada, 1992, is repealed. Coming into Force
Order in council
67. Sections 52 to 63 and 66 come into force on a day to be fixed by order of the Governor in Council. DIVISION 2
R.S., c. N-7
NATIONAL ENERGY BOARD ACT Amendments to the Act 68. The heading before section 2 of the French version of the National Energy Board Act is replaced by the following: DÉFINITIONS ET INTERPRÉTATION 69. Section 2 of the Act is amended by adding the following in alphabetical order:
“navigable water” « eaux navigables »
“navigable water” has the same meaning as in section 2 of the Navigable Waters Protection Act;
“penalty” « pénalité »
“penalty” means an administrative monetary penalty imposed under this Act for a violation; 70. Subsection 4(2) of the Act is repealed.
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Emploi, croissance e
1990, c. 7, s. 4(1)
71. (1) Subsection 6(1) of the English version of the Act is replaced by the following:
Chairperson and Vice-chairperson
6. (1) The Governor in Council shall designate one of the members to be Chairperson of the Board and another of the members to be Vice-chairperson of the Board. (2) Subsection 6(2) of the Act is replaced by the following:
Chairperson’s duties
(2) The Chairperson is the chief executive officer of the Board. The Chairperson apportions work among the members and, if the Board sits in a panel, assigns members to the panel and a member to preside over it. The Chairperson also has supervision over and direction of the work of the Board’s staff.
Directives regarding timeliness
(2.1) To ensure that an application before the Board is dealt with in a timely manner, the Chairperson may issue directives to the members authorized to deal with the application regarding the manner in which they are to do so.
Measures to meet time limit
(2.2) If the Chairperson is of the opinion that a time limit imposed under any of sections 52, 58 and 58.16 is not likely to be met in respect of an application, the Chairperson may take any measure that the Chairperson considers appropriate to ensure that the time limit is met, including (a) removing any or all members of the panel authorized to deal with the application; (b) authorizing one or more members to deal with the application; (c) increasing or decreasing the number of members dealing with the application; and (d) specifying the manner in which section 55.2 is to be applied in respect of the application.
Clarification
(2.3) For greater certainty, the power referred to in subsection (2.2) includes the power to designate a single member, including the Chairperson, as the sole member who is authorized to deal with the application.
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Effects of measure
(2.4) If the composition of the panel dealing with an application is changed as a result of any measure taken under subsection (2.2),
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(a) evidence and representations received by the Board in relation to the application before the taking of the measure are considered to have been received after the taking of the measure; and (b) the Board is bound by every decision made by the Board in relation to the application before the taking of the measure unless the Board elects to review, vary or rescind it. Inconsistencies
(2.5) In the event of any inconsistency between any directive issued under subsection (2.1) or measure taken under subsection (2.2) and any rule made under section 8, the directive or measure prevails to the extent of the inconsistency.
1990, c. 7, s. 4(2)
(3) Subsections 6(3) and (4) of the English version of the Act are replaced by the following:
Vicechairperson’s duties
(3) If the Chairperson is absent or unable to act or if the office is vacant, the Vicechairperson has all the Chairperson’s powers and functions.
Acting Chairperson
(4) The Board may authorize one or more of its members to act as Chairperson for the time being in the event that the Chairperson and Vice-chairperson are absent or unable to act or if the offices are vacant. 72. Section 7 of the Act is amended by adding the following after subsection (2):
Exception
(2.1) Despite subsection (2), if the number of members authorized to deal with an application as a result of any measure taken by the Chairperson under subsection 6(2.2) is less than three, the number of members authorized by the Chairperson to deal with the application constitutes a quorum of the Board. 73. Section 8 of the Act is amended by adding “and” at the end of paragraph (b) and by repealing paragraph (c).
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Emploi, croissance e 74. Section 11 of the Act is amended by adding the following after subsection (3):
Expeditious proceedings
(4) Subject to subsections 6(2.1) and (2.2), all applications and proceedings before the Board are to be dealt with as expeditiously as the circumstances and considerations of fairness permit, but, in any case, within the time limit provided for under this Act, if there is one.
1990, c. 7, s. 6
75. Section 14 of the Act is replaced by the following:
Authorization regarding Board’s powers, duties and functions
14. (1) The Chairperson may authorize one or more members, either jointly or severally, to exercise any of the Board’s powers or to perform any of the Board’s duties and functions under this Act, except those under subsection 45(3), sections 46, 47, 48, 52 to 54, 56, 58, 58.11, 58.14, 58.16, 58.32, 58.35, 58.37 and 129 and under Parts IV, VI, VII and IX.
Presumption
(2) Any power exercised or any duty or function performed by a member or members under the authorization is considered to have been exercised or performed by the Board.
1990, c. 7, s. 7
76. Subsection 15(1) of the Act is replaced by the following:
Powers of members authorized to report
15. (1) The Chairperson may authorize one or more of the members to report to the Board on any question or matter arising in connection with the business of or any application or proceeding before the Board, and the member or members so authorized have all the powers of the Board for the purpose of taking evidence or acquiring the necessary information for the purpose of making the report and the recommendations contained in it as to the decision or order of the Board to be made on the question or matter.
1990, c. 7, s. 8
77. Section 16 of the Act is replaced by the following:
Incapacity of single member
16. (1) If a member who is conducting a hearing under an authorization under section 14 or 15 becomes incapacitated, resigns or dies during the hearing or after the conclusion of the hearing but before making a decision or report, the Chairperson may authorize another member
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(a) to continue the hearing and to make a decision or report to the Board, if the incapacity, resignation or death occurs during the hearing; or (b) to examine all the evidence presented at the hearing and to make a decision, or report to the Board, based on the evidence, if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given or a report to the Board is made. Incapacity of member of quorum
(2) If a hearing is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after the conclusion of it but before a decision is given, (a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the decision, if the incapacity, resignation or death occurs during the hearing; or (b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before a decision is given, the remaining members may, if unanimous, give a decision as if the incapacitated or deceased member, or the member who resigned, were present and participating in the decision.
Incapacity of member — Part III certificate
(3) If a hearing in relation to an application for a certificate under Part III is being conducted by three members and one member becomes incapacitated, resigns or dies during the hearing or after its conclusion but before the report that is required to be prepared under subsection 52(1) is finalized, (a) the Chairperson may authorize another member to replace the incapacitated or deceased member, or the member who resigned, for the rest of the hearing and to participate in the finalizing of the report, if the incapacity, resignation or death occurs during the hearing; or (b) if the incapacity, resignation or death occurs after the conclusion of the hearing but before the report is finalized, the remaining
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Emploi, croissance e members may, if unanimous, finalize the report as if the incapacitated or deceased member, or the member who resigned, were present and participating in its finalization.
Effects of authorization
(4) If a member is authorized under paragraph (2)(a) or (3)(a) to replace a member, (a) evidence and representations received by the Board in the course of the hearing before the replacement are considered to have been received after the replacement; and (b) the Board is bound by every decision made by the Board in the course of the hearing before the replacement unless the Board elects to review, vary or rescind a decision.
Chairperson’s powers
(5) Nothing in subsections (1) to (3) precludes the Chairperson from taking a measure under subsection 6(2.2).
Member ceasing to hold office
(6) A person who resigns or otherwise ceases to hold office as a member may, if authorized to do so by the Chairperson and on any terms and conditions that the Chairperson prescribes, continue to inquire into, hear and conclude any proceeding to which that person was assigned while that person was a member and the person shall for that purpose be considered to continue to be a member. 78. Section 19 of the Act is amended by adding the following after subsection (1):
Non-application
(1.1) Subsection (1) does not apply in respect of an application for a certificate under Part III. 79. Section 20 of the Act is renumbered as subsection 20(1) and is amended by adding the following:
Non-application
(2) Subsection (1) does not apply in respect of an application for a certificate under Part III. 80. Section 22 of the Act is amended by adding the following after subsection (3):
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Report not decision or order
(4) For greater certainty, for the purpose of this section, no report submitted by the Board under section 52 or 53 — or under section 29 or 30 of the Canadian Environmental Assessment Act, 2012 — and no part of any such report, is a decision or order of the Board.
1990, c. 7, s. 12
81. Subsections 24(1) and (2) of the Act are replaced by the following:
Public hearings
24. (1) Subject to subsection (2), hearings before the Board with respect to the issuance, revocation or suspension of certificates or for leave to abandon the operation of a pipeline shall be public.
Exception
(2) A public hearing need not be held where the Board, on the application or with the consent of the holder, revokes or suspends
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(a) a certificate issued in respect of an international or interprovincial power line, regardless of whether the power line has been brought into commercial operation under that certificate; or (b) a certificate issued in respect of a pipeline, if the pipeline has not been brought into commercial operation under that certificate. 82. Subsection 48(3) of the Act is replaced by the following: Offence
(3) Every person who contravenes an order made under subsection (1) or (1.1) or a regulation made under subsection (2) is guilty of an offence and liable (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(4) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence referred to in subsection (3).
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1990, c. 7, ss. 18 and 19; 1996, c. 10, s. 238
83. Sections 52 to 54 of the Act are replaced by the following:
Report
52. (1) If the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare and submit to the Minister, and make public, a report setting out (a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and (b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.
Factors to consider
(2) In making its recommendation, the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to the following: (a) the availability of oil, gas or any other commodity to the pipeline; (b) the existence of markets, actual or potential; (c) the economic feasibility of the pipeline; (d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and (e) any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.
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Environmental assessment
(3) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the report must also set out the Board’s environmental assessment prepared under that Act in respect of that project.
Time limit
(4) The report must be submitted to the Minister within the time limit specified by the Chairperson. The specified time limit must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.
Excluded period
(5) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.
Public notice of excluded period
(6) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (5) as soon as each of them is known.
Extension
(7) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.
Minister’s directives
(8) To ensure that the report is prepared and submitted in a timely manner, the Minister may, by order, issue a directive to the Chairperson that requires the Chairperson to
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(a) specify under subsection (4) a time limit that is the same as the one specified by the Minister in the order; (b) issue a directive under subsection 6(2.1), or take any measure under subsection 6(2.2), that is set out in the order; or (c) issue a directive under subsection 6(2.1) that addresses a matter set out in the order. Order binding
(9) Orders made under subsection (7) are binding on the Board and those made under subsection (8) are binding on the Chairperson.
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Publication
(10) A copy of each order made under subsection (8) must be published in the Canada Gazette within 15 days after it is made.
Report is final and conclusive
(11) Subject to sections 53 and 54, the Board’s report is final and conclusive.
Order to reconsider
53. (1) After the Board has submitted its report under section 52, the Governor in Council may, by order, refer the recommendation, or any of the terms and conditions, set out in the report back to the Board for reconsideration.
Factors and time limit
(2) The order may direct the Board to conduct the reconsideration taking into account any factor specified in the order and it may specify a time limit within which the Board shall complete its reconsideration.
Order binding
(3) The order is binding on the Board.
Publication
(4) A copy of the order must be published in the Canada Gazette within 15 days after it is made.
Obligation of Board
(5) The Board shall, before the expiry of the time limit specified in the order, if one was specified, reconsider its recommendation or any term or condition referred back to it, as the case may be, and prepare and submit to the Minister a report on its reconsideration.
Contents of report
(6) In the reconsideration report, the Board shall (a) if its recommendation was referred back, either confirm the recommendation or set out a different recommendation; and (b) if a term or condition was referred back, confirm the term or condition, state that it no longer supports it or replace it with another one.
Terms and conditions
(7) Regardless of what the Board sets out in the reconsideration report, the Board shall also set out in the report all the terms and conditions, that it considers necessary or desirable in the public interest, to which the certificate would be subject if the Governor in Council were to direct the Board to issue the certificate.
Report is final and conclusive
(8) Subject to section 54, the Board’s reconsideration report is final and conclusive.
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Reconsideration of report under this section
(9) After the Board has submitted its report under subsection (5), the Governor in Council may, by order, refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. If it does so, subsections (2) to (8) apply.
Order regarding issuance or nonissuance
54. (1) After the Board has submitted its report under section 52 or 53, the Governor in Council may, by order,
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(a) direct the Board to issue a certificate in respect of the pipeline or any part of it and to make the certificate subject to the terms and conditions set out in the report; or (b) direct the Board to dismiss the application for a certificate. Reasons
(2) The order must set out the reasons for making the order.
Time limit
(3) The order must be made within three months after the Board’s report under section 52 is submitted to the Minister. The Governor in Council may, on the recommendation of the Minister, by order, extend that time limit by any additional period or periods of time. If the Governor in Council makes an order under subsection 53(1) or (9), the period that is taken by the Board to complete its reconsideration and to report to the Minister is not to be included in the calculation of the time limit.
Order is final and conclusive
(4) Every order made under subsection (1) or (3) is final and conclusive and is binding on the Board.
Obligation of Board
(5) The Board shall comply with the order made under subsection (1) within seven days after the day on which it is made.
Publication
(6) A copy of the order made under subsection (1) must be published in the Canada Gazette within 15 days after it is made.
Application for judicial review
55. (1) Judicial review by the Federal Court of Appeal with respect to any order made under subsection 54(1) is commenced by making an application for leave to the Court.
Application
(2) The following rules govern an application under subsection (1):
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Emploi, croissance e (a) the application must be filed in the Registry of the Federal Court of Appeal (“the Court”) within 15 days after the day on which the order is published in the Canada Gazette; (b) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice; and (c) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance.
Continuation of jurisdiction and obligation
55.1 (1) A failure by the Board to comply with subsection 52(1) or 53(5) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to submit the report, and anything done by it in relation to the application remains valid.
Governor in Council’s powers
(2) Despite subsection 54(3), the Governor in Council may make an order under subsection 54(1) after the expiry of the time limit for doing so.
Representations
55.2 On an application for a certificate, the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive. 84. Section 58 of the Act is amended by adding the following after subsection (3):
Time limit
(4) If an application for an order under subsection (1) is made, the Board shall, within the time limit specified by the Chairperson, either make an order under that subsection or dismiss the application.
Maximum time limit and obligation to make it public
(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the opinion of the Board, provided a complete application. The Board shall make the time limit public.
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Environmental assessment
(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit,
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(a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and (b) comply with subsections 27(1) and 54(1) of that Act with respect to that assessment. Excluded period — applicant
(7) If the Board requires the applicant to provide information or undertake a study with respect to the pipeline or anything referred to in paragraph (1)(b) to which the application relates and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.
Public notice of excluded period
(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.
Excluded period — Governor in Council
(9) If the Board has referred a matter to the Governor in Council under subsection 52(2) of the Canadian Environmental Assessment Act, 2012, the period that begins on the day on which the reference is made and ends on the day on which the Governor in Council makes a decision in relation to the matter is not included in the calculation of the time limit.
Extension
(10) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommendation of the Minister, by order, further extend the time limit by any additional period or periods of time.
Continuation of jurisdiction and obligation
(11) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make the order or to dismiss the application, and anything done by it in relation to the application remains valid.
1990, c. 7, s. 23
85. (1) Subsection 58.16(2) of the Act is replaced by the following:
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Emploi, croissance e (2) In deciding whether to issue a certificate, the Board shall have regard to all considerations that appear to it to be directly related to the line and relevant. (2) Section 58.16 of the Act is amended by adding the following after subsection (3):
Time limit
(4) The Board shall, within the time limit specified by the Chairperson, (a) decide that the certificate should be issued and recommend to the Minister that the Governor in Council approve the issuance of the certificate; or (b) decide that no certificate is to be issued and dismiss the application in respect of the line.
Maximum time limit and obligation to make it public
(5) The time limit specified by the Chairperson must be no longer than 15 months after the day on which the applicant has, in the Board’s opinion, provided a complete application. The Board shall make the time limit public.
Environmental assessment
(6) If the application relates to a designated project within the meaning of section 2 of the Canadian Environmental Assessment Act, 2012, the Board shall also, within the time limit, (a) prepare a report, as required by paragraph 22(b) of that Act, with respect to its environmental assessment of the designated project; and (b) comply with subsection 27(1) of that Act with respect to that assessment.
Excluded period
(7) If the Board requires the applicant to provide information or undertake a study with respect to the line and the Board, with the Chairperson’s approval, states publicly that this subsection applies, the period that is taken by the applicant to comply with the requirement is not included in the calculation of the time limit.
Public notice of excluded period
(8) The Board shall make public the dates of the beginning and ending of the period referred to in subsection (7) as soon as each of them is known.
Extension
(9) The Minister may, by order, extend the time limit by a maximum of three months. The Governor in Council may, on the recommenda112
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tion of the Minister, by order, further extend the time limit by any additional period or periods of time. Time limit — Governor in Council
(10) If the Board makes the recommendation referred to in paragraph (4)(a), the Governor in Council may, within three months after the making of that recommendation, either approve the issuance of the certificate or refuse to approve its issuance. The Governor in Council may extend the time limit for doing so for any additional period or periods of time.
Obligation of Board
(11) If the Governor in Council approves the issuance of the certificate, the Board shall, within seven days after the day on which the approval was given, issue the certificate and comply with subsection 54(1) of the Canadian Environmental Assessment Act, 2012.
Continuation of jurisdiction and obligation
(12) A failure by the Board to comply with subsection (4) within the required time limit does not affect its jurisdiction to deal with the application or its obligation to make a decision as to whether a certificate should be issued or to dismiss the application, and anything done by it in relation to the application remains valid.
Governor in Council’s power
(13) Despite subsection (10), the Governor in Council may approve the issuance of the certificate or refuse to approve its issuance after the expiry of the time limit for doing so.
1990, c. 7, s. 23
86. Section 58.27 of the Act is replaced by the following:
Application of certain provisions
58.27 (1) Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 114 and 115, apply in respect of international and interprovincial power lines referred to in section 58.24 as if each reference in any of those provisions to (a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line; (b) a “pipeline” or “line” were a reference to the international or interprovincial power line; and (c) “hydrocarbons” were a reference to electricity.
2011-2012 Application of section 45 — navigable waters
Emploi, croissance e (2) If a deviation, change or alteration is required to be made to a portion of an international power line by the holder of a permit or certificate issued in respect of the power line and the deviation, change or alteration passes in, on, over, under, through or across a navigable water, section 45 also applies to that portion of the power line as if each reference in that section to (a) a “company” were a reference to the holder of the permit or certificate; and (b) a “pipeline” were a reference to the international power line.
Application of certain provisions
58.271 Sections 32 to 45 and 48 and Part V, except sections 74, 76 to 78, 108 to 111.3, 114 and 115, apply in respect of international power lines in respect of which a certificate was issued, or an order made under subsection 58(2), before June 1, 1990 as if each reference in any of those provisions to (a) a “company” were a reference to the applicant for or holder of the certificate issued in respect of the line; (b) a “pipeline” or “line” were a reference to the international power line; and (c) “hydrocarbons” were a reference to electricity.
1990, c. 7, s. 23; 1996, c. 10, ss. 239 and 240
87. Sections 58.28 to 58.3 of the Act are replaced by the following:
Construction — facility
58.28 (1) Subject to subsection (4), no person shall construct an international or interprovincial power line that passes on, over, along or under a facility unless a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and (a) the permit or certificate contains a term or condition relating to that facility; (b) the person has been granted leave under subsection (2); or (c) the person is constructing the power line in circumstances specified in an order or regulation made under subsection (4).
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Authority to grant leave
(2) The Board may, by order, on application, grant a person leave to construct an international or interprovincial power line that passes on, over, along or under a facility. It may require from the applicant any plans, profiles and other information that it considers necessary to consider the application.
Terms and conditions
(3) The leave may be granted in whole or in part and be subject to terms and conditions.
Circumstances
(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).
Leave in emergency cases
(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if it is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the person’s intention to proceed with the proposed work.
Construction or operation — navigable water
58.29 No person shall construct or operate an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water unless a permit referred to in section 58.11 or a certificate has been issued in respect of the power line.
Effects on navigation
58.3 In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to issue a certificate or permit, make an order, give a direction or grant a leave, approval or exemption in respect of an interprovincial power line in respect of which an order made under section 58.4 is in force — or an international power line — that passes in, on, over, under, through or across a navigable water.
Power lines not works
58.301 Despite the definition “work” in section 2 of the Navigable Waters Protection Act, neither an interprovincial power line in respect of which an order made under section 58.4 is in force nor an international power line is a work to which that Act applies.
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Emploi, croissance e 58.302 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of interprovincial power lines in respect of which orders made under section 58.4 are in force — or sections or parts of international power lines — that pass in, on, over, under, through or across a navigable water, including regulations respecting (a) their design, construction or operation; (b) the making of deviations, changes or alterations to them; (c) their diversion or relocation; (d) the safety and security of their operation; and (e) the abandonment of their operation.
Offence
(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.
Application
58.303 (1) Sections 58.28, 58.31 and 58.32 apply only in respect of (a) international power lines in respect of which an election is filed under section 58.23; (b) those portions of international power lines that are within a province in which no provincial regulatory agency is designated under section 58.17; (c) international power lines where the facility in question is within the legislative authority of Parliament; and (d) interprovincial power lines in respect of which an order made under section 58.4 is in force.
Application of section 58.31 — navigable waters
(2) Section 58.31 also applies in respect of the portion of an international power line for which a permit or certificate is in force that passes in, on, over, under, through or across a navigable water.
Application of section 58.32 — navigable waters
(3) Section 58.32 also applies in respect of an international power line for which a permit or certificate is in force if the Board is of the opinion that the diversion or relocation of the power line in, on, over, under, through or across
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a navigable water is necessary to facilitate the construction, reconstruction or relocation of a facility. Existing terms and conditions
58.304 (1) Terms and conditions in respect of any international or interprovincial power line that were, at any time before the coming into force of this section, imposed under section 58.29 or 108, as that section read from time to time before the coming into force of this section — or imposed by the Minister of Transport under the Navigable Waters Protection Act — apply as if they were terms and conditions set out in the certificate or permit, as the case may be, issued in respect of the power line.
Construction without leave
(2) If, at any time before the coming into force of this section, the Minister of Transport had provided, under section 58.3 or 108, as that section read from time to time before the coming into force of this section, that leave under that section 58.3 or 108, as the case may be, was not necessary because the power line was to be constructed in accordance with certain orders, regulations, plans and specifications, no person shall construct the power line otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.
Construction without leave
(3) If, at any time before the coming into force of this section, the Board had provided, under section 58.33 or 108, as that section read from time to time before the coming into force of this section, that leave under section 58.29 or 108, as the case may be, as that section read from time to time before the coming into force of this section, was not necessary because the power line was to be constructed in accordance with certain orders or regulations, no person shall construct the power line otherwise than in accordance with those orders or regulations or as specified by the Board.
Offence and punishment
58.305 (1) Every person who contravenes subsection 58.28(1), section 58.29 or subsection 58.304(2) or (3) is guilty of an offence and is liable (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
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Emploi, croissance e (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.
1990, c. 7, s. 23
88. Paragraph 58.33(c) of the Act is replaced by the following: (c) the circumstances in which or conditions under which leave from the Board under section 58.31 is not necessary.
1996, c. 10, s. 243.1
89. (1) Paragraph 71(2)(b) of the Act is replaced by the following: (b) a company that has been issued a certificate under Part III authorizing the transmission of a commodity other than oil.
1996, c. 10, s. 243.1
(2) The portion of subsection 71(3) of the Act before paragraph (a) is replaced by the following:
Extension of facilities
(3) The Board may, if it considers it necessary or desirable to do so in the public interest, require a company operating a pipeline for the transmission of hydrocarbons, or for the transmission of any other commodity authorized by a certificate issued under Part III, to provide adequate and suitable facilities for 90. Subsection 77(4) of the Act is replaced by the following:
Exceptions
(4) Subsections (1) to (3) do not apply to any of the following: (a) in the case of a pipeline:
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(i) anything done under leave obtained under subsection 108(2) or (5) in respect of the pipeline, (ii) any section or part of the pipeline that passes on, over, along or under a utility, as defined in subsection 108(6), if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the certificate or order contains a term or condition relating to that utility, (iii) any section or part of the pipeline that passes in, on, over, under, through or across a navigable water if a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and (iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and (b) in the case of a power line to which this section applies by reason of section 58.38: (i) anything done under leave obtained under subsection 58.28(2) or (5) in respect of the power line, (ii) in the case of a power line that is an interprovincial power line in respect of which an order made under section 58.4 is in force, (A) any section or part of the power line that passes on, over, along or under a facility if a certificate has been issued in respect of the power line and the certificate contains a term or condition relating to that facility, or (B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a certificate has been issued in respect of the power line, (iii) in the case of a power line that is an international power line,
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Emploi, croissance e (A) any section or part of the power line that passes on, over, along or under a facility if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the permit or certificate contains a term or condition relating to that facility, or (B) any section or part of the power line that passes in, on, over, under, through or across a navigable water if a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line, and (iv) anything done under any leave obtained under section 108 at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.
1990, c. 7, s. 26(2) and s. 27; 1996, c. 10, s. 244; 2001, c. 4, s. 105; 2004, c. 25, s. 161
91. Sections 108 to 111 of the Act are replaced by the following:
Construction — utility
108. (1) Subject to subsection (4), no company shall construct a pipeline that passes on, over, along or under a utility unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline, and (a) the certificate or order contains a term or condition relating to that utility; (b) the company has been granted leave under subsection (2); or (c) the company is constructing the pipeline in circumstances specified in an order or regulation made under subsection (4).
Authority to grant leave
(2) The Board may, by order, on application, grant a company leave to construct a pipeline that passes on, over, along or under a utility. It may require from the applicant any plans, profiles and other information that it considers necessary to deal with the application.
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Terms and conditions
(3) The leave may be granted in whole or in part and be subject to terms and conditions.
Circumstances
(4) The Board may make orders or regulations specifying circumstances for the purposes of paragraph (1)(c).
Leave in emergency cases
(5) The Board may grant leave under subsection (2) after construction of the proposed work has commenced if is satisfied that the work was urgently required and, before the commencement of construction, it was notified of the company’s intention to proceed with the proposed work.
Definition of “utility”
(6) In this section, “utility” means a highway, an irrigation ditch, a publicly owned or operated drainage system, sewer or dike, an underground telegraph or telephone line or a line for the transmission of hydrocarbons, electricity or any other substance.
Construction or operation — navigable water
109. No person shall construct or operate a pipeline that passes in, on, over, under through or across a navigable water unless a certificate has been issued, or an order has been made under section 58, in respect of the pipeline.
Effects of recommendation on navigation
110. (1) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that the issuance of a certificate in respect of a pipeline that passes in, on, over, under, through or across a navigable water might have on navigation, including safety of navigation, when making its recommendation in a report prepared under subsection 52(1).
Effects of decision on navigation
(2) In addition to any other factor that it considers appropriate, the Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to make an order, give a direction or grant a leave, approval or exemption in respect of a pipeline that passes in, on, over, under, through or across a navigable water.
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Pipeline not work
111. Despite the definition “work” in section 2 of the Navigable Waters Protection Act, a pipeline is not a work to which that Act applies.
Regulations
111.1 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across a navigable water, including regulations respecting (a) their design, construction or operation; (b) the making of deviations, changes or alterations to them; (c) their diversion or relocation; (d) the safety and security of their operation; and (e) the abandonment of their operation.
Offence
(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction.
Existing terms and conditions
111.2 (1) Terms and conditions in respect of a pipeline that were, at any time before the coming into force of this section, imposed under section 108, as that section read from time to time before the coming into force of this section, are considered to be terms and conditions set out in the certificate issued, or order made under section 58, as the case may be, in respect of the pipeline.
Construction without leave
(2) If, at any time before the coming into force of this section, the Minister of Transport or the Board had provided, under section 108, as that section read from time to time before the coming into force of this section, that leave under that section was not necessary because the pipeline was to be constructed in accordance with certain orders, regulations, plans and specifications, no company shall construct the pipeline otherwise than in accordance with those orders, regulations, plans and specifications or as specified by the Board.
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Offence and punishment
111.3 (1) Every person who contravenes subsection 108(1), section 109 or subsection 111.2(2) is guilty of an offence and is liable
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(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both. Application of subsections 121(2) to (5)
(2) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, in respect of an offence under this section.
If pipeline affixed to any real property or immovables
111.4 (1) Despite this Act or any other general or Special Act or law to the contrary, if any section or part of a pipeline passes on, over, along or under a utility, as defined in subsection 108(6) — or passes in, on, over or under a navigable water — and that section or part of the pipeline has been affixed to any real property or immovable in any of the circumstances referred to in subsection (2), (a) that section or part of the pipeline remains subject to the rights of the company and remains the property of the company as fully as it was before being so affixed and does not become part of the real property or immovable of any person other than the company unless otherwise agreed by the company in writing and unless notice of the agreement in writing has been filed with the Secretary; and (b) subject to the provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on that section or part of the pipeline.
Circumstances
(2) The following are the circumstances for the purposes of subsection (1): (a) in the case of the pipeline: (i) leave has been obtained under subsection 108(2) or (5) in respect of the pipeline,
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Emploi, croissance e (ii) the certificate issued, or the order made under section 58, in respect of the pipeline contains a term or condition relating to the utility, (iii) the pipeline has been constructed in circumstances specified in an order or regulation made under subsection 108(4), (iv) a certificate has been issued, or an order has been made under section 58, in respect of the pipeline and the pipeline passes in, on, over or under a navigable water, and (v) leave has been obtained under section 108 in respect of the pipeline at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection; and (b) in the case of the power line to which this section applies by reason of section 58.27, (i) leave has been obtained under subsection 58.28(2) or (5) in respect of the power line, (ii) the permit referred to in section 58.11, or the certificate, issued in respect of the power line contains a term or condition relating to that utility, (iii) the power line has been constructed in circumstances specified in an order or regulation made under subsection 58.28(4), (iv) a permit referred to in section 58.11, or a certificate, has been issued in respect of the power line and the power line passes in, on, over or under a navigable water, and (v) leave has been obtained under section 108 in respect of the power line at any time before the coming into force of this subsection, as that section read from time to time before the coming into force of this subsection.
1990, c. 7, s. 28
92. (1) Paragraph 112(5)(c) of the Act is replaced by the following:
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(c) the circumstances in which or conditions under which leave under subsection (1) or (2) is not necessary. (2) Section 112 of the Act is amended by adding the following after subsection (7): Offence
(8) Every person who contravenes subsection (1) or (2), a direction made under subsection (4) or an order or regulation made under subsection (5) is guilty of an offence and liable (a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or (b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Application of subsections 121(2) to (5)
(9) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (8).
1990, c. 7, s. 32
93. Section 118 of the Act is replaced by the following:
Criteria
118. On an application for a licence to export oil or gas, the Board shall satisfy itself that the quantity of oil or gas to be exported does not exceed the surplus remaining after due allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada.
1990, c. 7, s. 34
94. (1) The portion of subsection 119.06(2) of the Act before paragraph (a) is replaced by the following:
Criteria
(2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to
1990, c. 7, s. 34
(2) Paragraph 119.06(2)(b) of the Act is repealed.
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95. Subsections 119.08(1) and (2) of the Act are replaced by the following:
Issuance
119.08 (1) The Board may, subject to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
Criteria
(2) In deciding whether to issue a licence, the Board shall have regard to (a) the effect of the exportation of the electricity on provinces other than from which the electricity is to be exported; (b) whether the applicant has (i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and (ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and (c) any considerations that may be specified in the regulations. 96. Section 119.094 of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c): (d) specifying considerations to which the Board shall have regard in deciding whether to issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
2001, c. 28, s. 59
97. The portion of section 120.5 of the Act before paragraph (a) is replaced by the following:
Where no declaration made
120.5 The Board may, despite its not being satisfied in accordance with section 118, issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as
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were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if
98. The Act is amended by adding the following after section 133: PART IX ADMINISTRATIVE MONETARY PENALTIES BOARD’S POWERS Regulations
134. (1) The Board may, with the approval of the Governor in Council, make regulations (a) designating as a violation that may be proceeded with in accordance with this Act (i) the contravention of any specified provision of this Act or of any of its regulations, (ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or (iii) the failure to comply with any term or condition of (A) any certificate, licence or permit or of any specified class of certificate, licence or permit, or (B) any leave or exemption granted under this Act or of any specified class of leave or exemption granted under this Act; (b) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and (c) respecting the service of documents required or authorized under section 139, 144 or 147, including the manner and proof of service and the circumstances under which documents are considered to be served.
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(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation must not be more than twenty-five thousand dollars, in the case of an individual, and one hundred thousand dollars in the case of any other person. 135. The Board may (a) establish the form of notices of violation; (b) designate persons or classes of persons who are authorized to issue notices of violation; (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and (d) designate persons or classes of persons to conduct reviews under section 147. VIOLATIONS
Commission of violation
136. (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 134(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Liability of directors, officers, etc.
137. If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Proof of violation
138. In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Act.
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Issuance and service of notice of violation
139. (1) If a person designated under paragraph 135(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
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(2) The notice of violation must (a) name the person that is believed to have committed the violation; (b) set out the relevant facts surrounding the violation; (c) set out the amount of the penalty for the violation; (d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised; (e) inform the person of the manner of paying the penalty set out in the notice; and (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice. RULES ABOUT VIOLATIONS
Certain defences not available
140. (1) A person named in a notice of violation does not have a defence by reason that the person (a) exercised due diligence to prevent the commission of the violation; or (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Continuing violation
141. A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
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142. (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Limitation or prescription period
143. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises. REVIEWS
Right to request review
144. A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.
Correction or cancellation of notice of violation
145. At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 135(b) may cancel the notice of violation or correct an error in it.
Review
146. (1) On receipt of a request made under section 144, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 135(d).
Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 135(d).
Object of review
147. (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Determination
(2) The Board or the person conducting the review shall render a determination in writing and cause the person who requested the review to be served with a copy of the determination and the reasons for it.
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Correction of penalty
(3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.
Responsibility
(4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.
Determination final
(5) Despite subsection 21(1), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Federal Court
(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the Board.
Burden of proof
148. If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
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RESPONSIBILITY Payment
149. If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Failure to act
150. A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty. RECOVERY OF PENALTIES
Debts to Her Majesty
151. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Limitation period
(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.
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152. (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 151(1).
Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs. GENERAL
Admissibility of documents
153. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 139(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Publication
154. The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Terminology — Chairman
99. The English version of the Act is amended by replacing “Chairman” with “Chairperson” in the following provisions: (a) subsection 4(1); (b) subsection 15(1); (c) subsections 92(3) and (5); and (d) subsection 93(2). Transitional Provisions
Definitions
100. The following definitions apply in this section and sections 101 to 109.
“Board” « Office »
“Board” means the National Energy Board established by section 3 of the other Act.
“Chairperson” Version anglaise seulement
“Chairperson” means the Chairperson of the National Energy Board.
“commencement day” « entrée en vigueur »
“designated project” « projet désigné »
“commencement day” means the day on which this section and sections 68 to 85, 89, 90, 92 to 97, 99 and 101 to 114 come into force. “designated project” means a project that is considered to be a designated project under subsection 126(1) of the Canadian Environmental Assessment Act, 2012.
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“Minister responsible for the other Act” « ministre responsable de l’autre loi »
“Minister responsible for the other Act” means the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council as the Minister for the purposes of the other Act.
“other Act” « autre loi »
“other Act” means the National Energy Board Act.
Application of subsections 6(2) and (2.1) and 11(4) and section 16
101. Subsections 6(2) and (2.1) of the other Act, as enacted by subsection 71(2), subsection 11(4) of the other Act, as enacted by section 74, and section 16 of the other Act, as amended by section 77, also apply in respect of proceedings that were before the Board immediately before the commencement day and that continue after that day.
Section 52 application — no agreement
102. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and no agreement had been entered into with the Board under section 40 of the Canadian Environmental Assessment Act before that day in respect of the pipeline to which the application relates, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.
Section 52 application — substitution
103. If an application for a certificate under section 52 of the other Act was before the Board immediately before the commencement day and no final decision in respect of the application had been made before that day and, before that day, the Board’s process for assessing environmental effects had been approved as a substitute under subsection 43(1) of the Canadian Environmental Assessment Act, sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though the application had been made on that day.
Section 52 application — review panel
104. (1) Subsections (2) to (9) apply in respect of an application for a certificate under section 52 of the other Act if
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Sections 52 to 55.2
(2) Subject to subsection (3) and (5) to (9), sections 52 to 55.2 of the other Act, as enacted by section 83, apply in respect of the application, as though it had been made on the commencement day.
Subsection 52(3)
(3) Unless subsection (8) or (9) applies, the reference in subsection 52(3) of the other Act, as enacted by section 83, to the Board is to be read as a reference to the review panel.
Canadian Environmental Assessment Act, 2012
(4) For the purposes of the environmental assessment under the Canadian Environmental Assessment Act, 2012 of the designated project to which the application relates, (a) sections 47 and 48 of that Act are to be read as follows:
Governor in Council’s decision
47. (1) The Governor in Council, after taking into account the review panel’s report with respect to the environmental assessment, must make decisions under subsection 52(1).
Studies and collection of information
(2) Before making decisions referred to in subsection 52(1), the Governor in Council may, by order, direct the National Energy Board to require the proponent of the designated project to collect any information or undertake any studies that, in the Governor in Council’s opinion, are necessary for the Governor in Council to make decisions.
Publication
(3) A copy of the order must be published in the Canada Gazette within 15 days after it is made.
Excluded periods
48. (1) If the review panel under subsection 44(2) requires the proponent of the designated project to collect information or undertake a study with respect to the designated project and the review panel, with the approval of the
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Chairperson of the National Energy Board, states publicly that this subsection applies, the period that is taken by the proponent, in the opinion of the review panel, to comply with the requirement under subsection 44(2) is not included in the calculation of the period referred to in paragraph 38(3)(b) that is established under subsection 126(4). Excluded periods
(2) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the requirement is not included in the calculation of the period referred to in paragraph 38(3)(c) that is established under subsection 126(4). (b) section 54 of that Act is to be read as follows:
Decision statement
54. (1) The National Energy Board must issue a decision statement to the proponent of a designated project that (a) informs the proponent of the designated project of the decisions made under paragraphs 52(1)(a) and (b), and under subsection 52(4), if that subsection applies, in relation to the designated project; and (b) includes any conditions that are established under section 53 in relation to the designated project and that must be complied with by the proponent.
Extension of time limit
(2) The Governor in Council may extend the time limits established under subsection 126(4) by any further period.
Public notice of extension
(3) The National Energy Board must make public any extension granted under subsection (2).
Excluded period
(4) If the National Energy Board, acting under an order made under subsection 47(2), requires a proponent of the designated project to collect information or undertake a study with respect to the designated project, the period that is taken by the proponent, in the opinion of the National Energy Board, to comply with the
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Time limit
(5) The time limit established under subsection 126(4) of the Canadian Environmental Assessment Act, 2012 for the submission of the review panel’s report with respect to the environmental assessment of the designated project to which the application relates is to be considered, despite the period of 15 months referred to in subsection 52(4) of the other Act, as enacted by section 83, to be the time limit specified by the Chairperson under that subsection 52(4).
Extension
(6) If a time limit is extended under subsection 52(7) of the other Act, as enacted by section 83, the same extension is considered to have been made under subsection 54(2) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b).
Extension
(7) If a time limit is extended under subsection 54(4) of the Canadian Environmental Assessment Act, 2012, as that subsection reads by reason of paragraph (4)(b), the same extension is considered to have been made under subsection 52(7) of the other Act, as enacted by section 83.
Exercise of Chairperson’s powers
(8) If a time limit is considered by virtue of subsection (5) to have been specified by the Chairperson under subsection 52(4) of the other Act, as enacted by section 83, and the Minister of the Environment and the Chairperson are of the opinion that the time limit is not likely to be met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). If any of those powers are exercised, (a) for greater certainty, subsections 6(2.3) to (2.5), as enacted by that subsection 71(2), apply; and (b) the Minister of the Environment is considered to have terminated, under subsection 49(2) of the Canadian Environmental Assessment Act, 2012, the review
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panel’s environmental assessment of the designated project to which the application relates. Exercise of Minister’s powers
(9) If the review panel’s environmental assessment of the designated project to which the application relates is terminated by the Minister of the Environment under subsection 49(1) or (2) of the Canadian Environmental Assessment Act, 2012, or is considered to have been terminated under subsection (8), (a) despite section 50 of that Act, the Board shall complete the environmental assessment of the designated project and prepare a report with respect to the environmental assessment; and (b) section 51 of that Act is to be read as follows in respect of that designated project:
Governor in Council’s decision
51. The Governor in Council, after taking into account the report with respect to the environmental assessment of the designated project, must make decisions under subsection 52(1).
Application before Board — section 58
105. Subsections 58(4) to (11) of the other Act, as enacted by section 84, apply in respect of each application for an order under section 58 of the other Act that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.
Application before Board — section 58.16
106. Subsections 58.16(4) to (13) of the other Act, as enacted by subsection 85(2), apply in respect of each application to which subsection 58.16(1) of the other Act applies that was before the Board immediately before the commencement day and in respect of which no final decision had been made before that day, as though the application had been made on that day.
Time limit
107. (1) Within 14 days after the commencement day, in respect of each application to which any of sections 102, 103, 105 and 106 applies that the Chairperson considers to have been complete before that day, specify a time limit for the Board to comply
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Clarification
(2) The time limit specified under subsection (1) may be longer than the 15-month period referred to in subsection 52(4), 58(5) or 58.16(4) of the other Act, as the case may be, as enacted, respectively, by sections 83 and 84 and subsection 85(2), if the Chairperson considers it appropriate in the circumstances, but it must be no longer than 15 months after the commencement day.
Chairperson’s powers
(3) To ensure that a time limit specified under subsection (1) is met, the Chairperson may exercise any of the Chairperson’s powers under subsection 6(2.2) of the other Act, as enacted by subsection 71(2). For greater certainty, subsections 6(2.3) to (2.5) of the other Act, as enacted by that subsection 71(2), apply if any of those powers are exercised.
Chairman
108. The person who holds the office of Chairman of the Board immediately before the commencement day continues in office as the Chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Chairperson.
Vice-Chairman
109. The person who holds the office of Vice-Chairman of the Board immediately before the commencement day continues in office as the Vice-chairperson of the Board until the earlier of the expiry of the person’s term as a member of the Board and the designation of another member of the Board as its Vice-chairperson. Related and Consequential Amendments
R.S., c. F-7; 2002, c. 8, s. 14
Federal Courts Act 110. Subsection 28(1) of the Federal Courts Act is amended by adding the following after paragraph (f):
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(g) the Governor in Council, when the Governor in Council makes an order under subsection 54(1) of the National Energy Board Act; R.S., c. F-11 2006, c. 9, s. 270
R.S., c. N-26
Financial Administration Act 111. Part III of Schedule VI to the English version of the Financial Administration Act in column II is amended by replacing the reference to “Chairman” opposite the reference to the “National Energy Board” in Column I with a reference to “Chairperson”. Northern Pipeline Act 112. Subsection 7(1) of the Northern Pipeline Act is replaced by the following:
Designated officer‘s powers
7. (1) The designated officer may, in respect of the pipeline, exercise and perform any of the powers, duties and functions of the Board under the National Energy Board Act, except those under Part II, sections 47 to 54, 56 and 58, Part IV, section 74, and Parts VI, VIII and IX of that Act, that may be delegated to him or her by order of the Board. 113. Subsection 21(2) of the Act is replaced by the following:
Certificate considered to be issued by Board
(2) A certificate of public convenience and necessity declared to be issued by subsection (1) is considered to be a certificate issued under section 52 of the National Energy Board Act on April 13, 1978.
1990, c. 7
An Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof 114. Section 46 of the An Act to amend the National Energy Board Act and to repeal certain enactments in consequence thereof is repealed. Coming into Force
Order in council
115. (1) Sections 68 to 85, 89, 90, 92 to 97 and 99 to 114 come into force on a day to be fixed by order of the Governor in Council.
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(2) Sections 86 to 88, 91 and 98 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 3
R.S., c. O-7; 1992, c. 35, s. 2
CANADA OIL AND GAS OPERATIONS ACT Amendments to the Act 116. Section 2 of the Canada Oil and Gas Operations Act is amended by adding the following in alphabetical order:
“navigable water” « eaux navigables »
“navigable water” has the same meaning as in section 2 of the Navigable Waters Protection Act; 117. Section 2.1 of the Act is amended by adding the following after paragraph (b): (b.1) the safety of navigation in navigable waters; 118. Section 4.1 of the Act is renumbered as subsection 4.1(1) and is amended by adding the following:
Navigable waters
(2) The person to whom the power to issue an authorization under paragraph 5(1)(b) is delegated may exercise that power in relation to a section or part of a pipeline that passes in, on, over, under, through or across a navigable water only after having consulted the National Energy Board. 119. The Act is amended by adding the following after section 5.01: NAVIGABLE WATERS
Construction or operation
5.011 No person shall construct or operate a pipeline that passes in, on, over, under, through or across a navigable water unless an authorization to construct or operate, as the case may be, the pipeline has been issued under paragraph 5(1)(b).
Effects on navigation
5.012 In addition to any other factor that it considers appropriate, the National Energy Board shall take into account the effects that its decision might have on navigation, including safety of navigation, when deciding whether to
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issue an authorization under paragraph 5(1)(b) in respect of a pipeline that passes in, on, over, under, through or across a navigable water. Pipeline not work
5.013 Despite the definition “work” in section 2 of the Navigable Waters Protection Act, a pipeline in respect of which an authorization has been or may be issued under paragraph 5(1)(b) is not a work to which that Act applies.
Regulations
5.014 (1) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister of Indian Affairs and Northern Development and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across any navigable water in any area in respect of which the Minister of Indian Affairs and Northern Development has administrative responsibility for natural resources, including regulations respecting the design, construction, operation and abandonment of those pipelines and the issuance of authorizations under paragraph 5(1)(b) in respect of their construction or operation.
Regulations
(2) The Governor in Council may, for purposes related to navigation, on the joint recommendation of the Minister of Natural Resources and the Minister of Transport, make regulations respecting sections or parts of pipelines that pass in, on, over, under, through or across any navigable waters in any area in respect of which the Minister of Natural Resources has administrative responsibility for natural resources, including regulations respecting the design, construction, operation and abandonment of those pipelines and the issuance of authorizations under paragraph 5(1)(b) in respect of their construction or operation.
Existing terms and conditions
5.015 Terms and conditions imposed at any time before the coming into force of this section in relation to an approval given under the Navigable Waters Protection Act in respect of a pipeline, in respect of which an authorization has been issued under paragraph 5(1)(b), apply as if they were requirements determined by the National Energy Board to be requirements to which the authorization is subject.
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120. Subsection 5.4(1) of the English version of the Act is amended by replacing “Chairman of the National Energy Board” with “Chairperson of the National Energy Board”. Coming into Force Order in council
121. Sections 116 to 119 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 4
1997, c. 9
NUCLEAR SAFETY AND CONTROL ACT Amendments to the Act 122. Section 2 of the Nuclear Safety and Control Act is amended by adding the following in alphabetical order:
“penalty” « pénalité »
“penalty” means an administrative monetary penalty imposed under this Act for a violation. 123. Subsection 10(6) of the Act is replaced by the following:
Temporary members
(6) Each temporary member holds office during good behaviour for a term not exceeding three years. 124. (1) The portion of subsection 24(2) of the Act before paragraph (a) is replaced by the following:
Application
(2) The Commission may issue, renew, suspend in whole or in part, amend, revoke or replace a licence, or authorize its transfer, on receipt of an application
(2) The portion of subsection 24(4) of the Act before paragraph (a) is replaced by the following: Conditions for issuance, etc.
(4) No licence shall be issued, renewed, amended or replaced — and no authorization to transfer one given — unless, in the opinion of
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the Commission, the applicant or, in the case of an application for an authorization to transfer the licence, the transferee (3) Subsection 24(8) of the Act is repealed. 125. (1) Paragraph 37(2)(d) of the Act is replaced by the following: (d) renew, suspend in whole or in part, amend, revoke or replace — or authorize the transfer of — a licence referred to in paragraph (c) on receipt of an application referred to in subsection 24(2); (2) Subsection 37(4) of the Act is replaced by the following: Notice
(4) A designated officer who refuses to issue, renew, suspend, amend, revoke or replace a licence, or authorize its transfer, shall notify the applicant of the refusal.
(3) Paragraph 37(5)(a) of the Act is replaced by the following: (a) a refusal by the designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
126. Paragraph 39(1)(b) of the Act is replaced by the following: (a.1) the applicant, before refusing to authorize the transfer under paragraph 37(2)(d); (b) the licensee, before renewing, suspending, amending, revoking or replacing a licence or authorizing its transfer, under paragraph 37(2)(d), or before refusing to take any of those actions; and
127. (1) Subsection 40(1) of the Act is amended by adding the following after paragraph (a): (a.1) the applicant, before refusing to authorize its transfer under section 24;
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128. (1) Paragraphs 43(1)(a) of the Act is replaced by the following: (a) a refusal of a designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(2) Subsection 43(1) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after that paragraph: (c.1) an authorization granted by a designated officer to transfer a licence; or (3) Paragraphs 43(2)(a) and (b) of the Act are replaced by the following: (a) the applicant, a decision of the Commission not to issue a licence or authorize its transfer; (b) the licensee, a decision of the Commission not to renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(4) Paragraph 43(4)(a) of the Act is replaced by the following: (a) a decision not to issue, renew, amend, revoke, replace a licence or authorize its transfer, confirm the decision or issue, renew, amend, revoke or replace the licence or authorize its transfer;
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129. (1) Subsection 44(1) of the Act is amended by adding the following after paragraph (u): (u.1) designating as a violation that may be proceeded with in accordance with this Act (i) the contravention of any specified provision of this Act or of any of its regulations, (ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or (iii) the failure to comply with any term or condition of a licence, or any term or condition of any specified class of licences; (u.2) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation; (u.3) respecting the service of documents required or authorized under section 65.05, 65.1 or 65.13, including the manner and proof of service and the circumstances under which documents are deemed to be served;
(2) Section 44 of the Act is amended by adding the following after subsection (12): Restriction — amount of penalty
(13) The amount that may be determined under any regulations made under paragraph (1)(u.2) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person. 130. The Act is amended by adding the following after section 65:
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Emploi, croissance e ADMINISTRATIVE MONETARY PENALTIES COMMISSION’S POWERS
Powers
65.01 The Commission may (a) establish the form of notices of violation; (b) designate inspectors, or designated officers, who are authorized to issue notices of violation; (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and (d) designate designated officers to conduct reviews under section 65.13. VIOLATIONS
Commission of violation
65.02 (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 44(1)(u.1) commits a violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations.
Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Liability of directors, officers, etc.
65.03 If a corporation commits a violation, any director, officer, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to an administrative monetary penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Proof of violation
65.04 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Act.
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Issuance and service of notice of violation
65.05 (1) If a person designated under paragraph 65.01(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
Contents
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(2) The notice of violation must (a) name the person that is believed to have committed the violation; (b) set out the relevant facts surrounding the violation; (c) set out the amount of the penalty for the violation; (d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised; (e) inform the person of the manner of paying the penalty set out in the notice; and (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice. RULES ABOUT VIOLATIONS
Certain defences not available
65.06 (1) A person named in a notice of violation does not have a defence by reason that the person (a) exercised due diligence to prevent the commission of the violation; or (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Continuing violation
65.07 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
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65.08 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Limitation or prescription period
65.09 No notice of violation in respect of a violation shall be issued more than two years after the day on which the subject matter of the violation arises. REVIEWS
Right to request review
65.1 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Commission allows, make a request to the Commission for a review of the amount of the penalty or the facts of the violation, or both.
Correction or cancellation of notice of violation
65.11 At any time before a request for a review in respect of a notice of violation is received by the Commission, a person designated under paragraph 65.01(b) may cancel the notice of violation or correct an error in it.
Review
65.12 (1) On receipt of a request made under section 65.1, the Commission shall conduct the review or cause the review to be conducted by a designated officer.
Restriction
(2) If the notice of violation was issued by a designated officer, the Commission shall conduct the review.
Review by designated officer
65.13 (1) If a review is conducted by a designated officer, the designated officer shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Determination
(2) The designated officer shall render his or her determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
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Correction of penalty
(3) If the designated officer determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the designated officer shall correct the amount of the penalty.
Responsibility
(4) If the designated officer determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Request for review by Commission
(5) A person on whom a copy of a determination of a review is served may, within 30 days after the day on which it is served, or within any longer period that the Commission allows, make a request to the Commission for a review by the Commission of the amount of the penalty or the facts of the violation, or both.
Review by Commission
65.14 (1) If a review is conducted by the Commission, the Commission shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Determination
(2) The Commission shall render its determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
Correction of penalty
(3) If the Commission determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Commission shall correct the amount of the penalty.
Responsibility
(4) If the Commission determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Determination final
(5) Despite subsection 43(3), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Burden of proof
65.15 If the facts of a violation are reviewed under section 65.13 or 65.14, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
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RESPONSIBILITY Payment
65.16 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Failure to act
65.17 A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty. RECOVERY OF PENALTIES
Debts to Her Majesty
65.18 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Limitation or prescription period
(2) No proceedings to recover the debt shall be instituted more than five years after the day on which the debt becomes payable.
Certificate
65.19 (1) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection 65.18(1).
Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs. GENERAL
Admissibility of documents
65.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 65.05(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Publication
65.21 The Commission may make public the nature of a violation, the name of the person who committed it and the amount of the penalty. Coming into Force
Order in council
131. Sections 122, 129 and 130 come into force on a day to be fixed by order of the Governor in Council.
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R.S., c. F-14
FISHERIES ACT Amendments to the Act 132. The heading before section 2 of the French version of the Fisheries Act is replaced by the following: DÉFINITIONS ET INTERPRÉTATION 133. (1) The definition “obstruction” in subsection 2(1) of the Act is replaced by the following:
“obstruction” « obstacle »
“obstruction” means any slide, dam or other thing impeding wholly or partially the free passage of fish; (2) Section 2 of the Act is amended by adding the following in alphabetical order:
“analyst” « analyste »
“analyst” means a person who is designated under subsection 38(1) to perform the functions of an analyst; (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Aboriginal” « autochtone »
“commercial” « commerciale »
“fish habitat” « habitat »
“fishway” « passe migratoire »
“recreational” « récréative »
“Aboriginal”, in relation to a fishery, means that fish is harvested by an Aboriginal organization or any of its members for the purpose of using the fish as food or for subsistence or for social or ceremonial purposes; “commercial”, in relation to a fishery, means that fish is harvested under the authority of a licence for the purpose of sale, trade or barter; “fish habitat” means spawning grounds and any other areas, including nursery, rearing, food supply and migration areas, on which fish depend directly or indirectly in order to carry out their life processes; “fishway” means any device, work or other thing that provides for the free passage of fish, including a canal, a fish pump, a fish ladder, a fish elevator and a fish lock; “recreational”, in relation to a fishery, means that fish is harvested under the authority of a licence for personal use of the fish or for sport;
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(4) Section 2 of the Act is renumbered as subsection 2(1) and is amended by adding the following: Serious harm to fish
(2) For the purposes of this Act, serious harm to fish is the death of fish or any permanent alteration to, or destruction of, fish habitat. 134. The Act is amended by adding the following after section 4: AGREEMENTS, PROGRAMS AND PROJECTS
Minister may enter into agreements
4.1 (1) The Minister may enter into an agreement with a province to further the purposes of this Act, including an agreement with respect to one or more of the following: (a) facilitating cooperation between the parties to the agreement, including facilitating joint action in areas of common interest, reducing overlap between their respective programs and otherwise harmonizing those programs; (b) facilitating enhanced communication between the parties, including the exchange of scientific and other information; and (c) facilitating public consultation or the entry into arrangements with third-party stakeholders.
Contents of agreement
(2) An agreement may establish (a) the roles, powers and functions of the parties; (b) programs and projects; (c) principles and objectives of the parties’ respective programs and projects; (d) standards, guidelines and codes of practice to be followed by the parties in the administration of their respective programs and projects; (e) processes for policy development, operational planning and communication between the parties, including the exchange of scientific and other information; (f) the administrative structures that will be used to carry out the agreement’s objectives;
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(g) the power of the parties to create committees and public panels and to conduct public consultations; and (h) the circumstances and manner in which the province is to provide information on the administration and enforcement of a provision of its laws that the agreement provides is equivalent in effect to a provision of the regulations. Regulations
(3) The Governor in Council may make regulations establishing the conditions under which the Minister may enter into or renew an agreement, including procedures for entering into or renewing the agreement.
Agreements to be published
(4) The Minister shall publish an agreement in the manner that he or she considers appropriate.
Declaration of equivalent provisions
4.2 (1) If an agreement entered into under section 4.1 provides that there is in force a provision under the laws of the province that is equivalent in effect to a provision of the regulations, the Governor in Council may, by order, declare that certain provisions of this Act or of the regulations do not apply in the province with respect to the subject matter of the provision under the laws of the province.
Non-application of provisions
(2) Except with respect to Her Majesty in right of Canada, the provisions of this Act or of the regulations that are set out in the order do not apply within that province with respect to the subject matter of the provision under the laws of the province.
Revocation
(3) The Governor in Council may revoke the order if the Governor in Council is satisfied that the provision under the laws of the province is no longer equivalent in effect to the provision of the regulations or is not being adequately administered or enforced.
Notice to province
(4) The Governor in Council may revoke the order only if the Minister has given notice of the proposed revocation to the province.
Order ceases to have effect
(5) The order ceases to have effect either when it is revoked by the Governor in Council or when the agreement to which the order relates terminates or is terminated.
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4.3 The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration of sections 4.1 and 4.2 in that fiscal year.
Objectives
4.4 (1) The Minister may implement programs and projects for the purposes of this Act and, to facilitate the implementation of a program or project, may (a) make grants and contributions; (b) make loans; (c) make recoverable expenditures on behalf of any person or body, or any federal or provincial minister, department or agency; and (d) guarantee the repayment of any financial obligation, or provide loan insurance or credit insurance in respect of such an obligation.
Regulations
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Finance, make regulations respecting such grants, contributions, loans, guarantees and insurance.
Agreements, etc.
(3) In exercising powers and performing functions under subsection (1), the Minister may (a) enter into agreements — including an agreement under section 4.1 — or arrangements or transactions with any person or body, or any federal or provincial minister, department or agency; and (b) with the approval of the Minister of Finance, requisition amounts in respect of such an agreement, arrangement or transaction to be paid out of the Consolidated Revenue Fund. 135. The Act is amended by adding the following after section 5: FACTORS TO BE TAKEN INTO ACCOUNT
Factors
6. Before recommending to the Governor in Council that a regulation be made in respect of section 35 or under paragraph 37(3)(c) or
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43(1)(i.01) or subsection 43(5), and before exercising any power under subsection 20(2) or (3) or 21(1), paragraph 35(2)(b) or (c) or subsection 35(3), or under subsection 37(2) with regard to an offence under subsection 40(1) or with regard to harm to fish, the Minister shall consider the following factors: (a) the contribution of the relevant fish to the ongoing productivity of commercial, recreational or Aboriginal fisheries; (b) fisheries management objectives; (c) whether there are measures and standards to avoid, mitigate or offset serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or that support such a fishery; and (d) the public interest.
Purpose
6.1 The purpose of section 6, and of the provisions set out in that section, is to provide for the sustainability and ongoing productivity of commercial, recreational and Aboriginal fisheries. 136. The heading before section 20 and sections 20 to 22 of the Act are replaced by the following: FISHWAYS
Studies, analyses, samplings and evaluations
20. (1) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to fish shall, on the Minister’s request and within the period specified by the Minister, conduct studies, analyses, samplings and evaluations, and provide the Minister with any document or other information relating to them, to the obstruction or thing or to the fish or fish habitat that is affected or is likely to be affected by the obstruction or thing.
Minister’s request
(2) If the Minister considers that doing so is necessary to ensure the free passage of fish or to prevent harm to fish, the owner or person who has the charge, management or control of an obstruction or any other thing that is harmful to
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fish shall, on the Minister’s request, within the period specified by the Minister and in accordance with any specifications of the Minister, (a) remove the obstruction or thing; (b) construct a fishway; (c) implement a system of catching fish before the obstruction or thing, transporting them beyond it and releasing them back into the water; (d) install a fish stop or a diverter; (e) install a fish guard, a screen, a covering, netting or any other device to prevent the passage of fish into any water intake, ditch, channel or canal; (f) maintain the flow of water that the Minister considers sufficient to permit the free passage of fish; or (g) permit the escape, into the water below the obstruction or thing, at all times of the quantity of water that the Minister considers sufficient for the safety of fish or for the flooding of fish habitat to an appropriate depth. Modification, repair and maintenance
(3) On the Minister’s request, the owner or person referred to in subsection (2) shall (a) make any provision that the Minister considers necessary for the free passage of fish or to prevent harm to fish during the construction, implementation, installation, modification or repair of anything mentioned in that subsection; (b) operate and maintain that thing in a good and effective condition and in accordance with any specifications of the Minister; and (c) modify or repair it in accordance with any specifications of the Minister.
Obstruction of free passage of fish
(4) No person shall (a) obstruct more than two-thirds of the width of any river or stream or more than one-third of the width of the main channel at low tide of any tidal stream;
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(b) use or place any kind of net or other fishing apparatus, logs or any material of any kind in the unobstructed part of a river, stream or tidal stream referred to in paragraph (a); (c) damage or obstruct any fishway constructed or used to enable fish to pass over or around any obstruction; (d) damage or obstruct any fishway, fish stop or diverter constructed or installed on the Minister’s request; (e) stop or hinder fish from entering or passing through any fishway, or from surmounting any obstacle or leap; (f) damage, remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request; or (g) fish in any manner within 23 m downstream from the lower entrance to any fishway, obstruction or leap.
Exception — removal for repairs
(5) Despite paragraph (4)(f), a person may remove or authorize the removal of any fish guard, screen, covering, netting or other device installed on the Minister’s request if the removal is required for modification, repair or maintenance.
Devices to prevent escape of fish
21. (1) The Minister may authorize the installation and maintenance of fish guards, screens, coverings, netting or other devices in waters to prevent fish held for breeding from escaping or for any other purpose that the Minister considers to be in the public interest.
Removal
(2) No person shall damage, remove or authorize the removal of such a fish guard, screen, covering, netting or other device, unless they are authorized to do so by the Minister.
1991, c. 1, s. 7
137. Sections 26 and 27 of the Act are repealed. 138. Section 30 of the Act is repealed.
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Killing of fish
32. (1) No person shall kill fish by any means other than fishing.
Exception
(2) No person contravenes subsection (1) if the killing of fish (a) is done as a result of carrying on a prescribed work, undertaking or activity in or around any prescribed Canadian fisheries waters and is done in accordance with any prescribed conditions; (b) is done in accordance with the regulations; (c) is authorized by the Minister and is done in accordance with the conditions established by the Minister; (d) is authorized by a prescribed person or entity and is done in accordance with the prescribed conditions; or (e) is done as a result of doing anything that is authorized, otherwise permitted or required under this Act.
Failure to comply with conditions
(3) Every person who fails to comply with a condition imposed under any of paragraphs (2)(a) to (d) that applies to them is guilty of an offence punishable on summary conviction and liable, for a first offence, to a fine of not more than $100,000 and, for any subsequent offence, to a fine of not more than $100,000 or to imprisonment for a term of not more than six months, or to both. (2) Section 32 of the Act is repealed. 140. The heading before section 34 of the Act is replaced by the following: FISHERIES PROTECTION AND POLLUTION PREVENTION 141. The definition “fish habitat” in subsection 34(1) of the Act is repealed. 142. (1) Section 35 of the Act is replaced by the following:
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Alteration, disruption or destruction of fish habitat
35. (1) No person shall carry on any work, undertaking or activity that results in the harmful alteration or disruption, or the destruction, of fish habitat.
Exception
(2) A person may carry on a work, undertaking or activity without contravening subsection (1) if
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(a) the work, undertaking or activity is a prescribed work, undertaking or activity, or is carried on in or around prescribed Canadian fisheries waters, and the work, undertaking or activity is carried on in accordance with the prescribed conditions; (b) the carrying on of the work, undertaking or activity is authorized by the Minister and the work, undertaking or activity is carried on in accordance with the conditions established by the Minister; (c) the carrying on of the work, undertaking or activity is authorized by a prescribed person or entity and the work, undertaking or activity is carried on in accordance with the prescribed conditions; (d) the harmful alteration or disruption, or the destruction, of fish habitat is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or (e) the work, undertaking or activity is carried on in accordance with the regulations.
(2) Subsection 35(1) of the Act is replaced by the following: Serious harm to fish
35. (1) No person shall carry on any work, undertaking or activity that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery. (3) Paragraph 35(2)(d) of the Act is replaced by the following: (d) the serious harm is produced as a result of doing anything that is authorized, otherwise permitted or required under this Act; or
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Emploi, croissance e (4) Section 35 of the Act is amended by adding the following after subsection (2):
Regulations
(3) The Minister may, for the purposes of paragraph (2)(a), make regulations prescribing anything that is authorized to be prescribed.
Statutory Instruments Act
(4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act. 143. (1) Subsection 36(4) of the Act is amended by deleting “or” at the end of paragraph (a) and by replacing paragraph (b) with the following: (b) a deleterious substance of a class and under conditions — which may include conditions with respect to quantity or concentration — authorized under regulations made under subsection (5) applicable to that water or place or to any work or undertaking or class of works or undertakings; or (c) a deleterious substance the deposit of which is authorized by regulations made under subsection (5.2) and that is deposited in accordance with those regulations. (2) Subsection 36(6) of the Act is replaced with the following:
Regulations — Governor in Council
(5.1) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s regulation-making power under subsection (5.2).
Regulations — Minister
(5.2) If regulations have been made under subsection (5.1), the Minister may make regulations (a) authorizing the deposit of deleterious substances specified in the regulations, or substances falling within a class of deleterious substances specified in the regulations; (b) authorizing the deposit of deleterious substances into waters or places falling within a class of waters or places; (c) authorizing the deposit of deleterious substances resulting from a work, undertaking or activity falling within a class of works, undertakings or activities;
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(d) establishing conditions, which may include conditions with respect to quantity or concentration, for the deposit of deleterious substances referred to in paragraphs (a) to (c); and (e) establishing, for the purposes of paragraphs (a) to (c), classes of (i) deleterious substances, (ii) waters and places, and (iii) works, undertakings and activities. Directions by the Minister
(6) A person authorized to deposit a deleterious substance by or under regulations made under subsection (5) or (5.2) shall, when directed by the Minister, despite any regulations made under paragraph (5)(e) or (5.2)(d) or any conditions set out in an authorization made under paragraph (5)(f), conduct any sampling, analyses, tests, measurements or monitoring, install or operate any equipment or comply with any procedures, and report any information, that is required by the Minister in order to determine whether the person is depositing the deleterious substance in the manner authorized. 144. (1) Subsections 37(1) and (2) of the Act are replaced by the following:
Minister may require plans and specifications
37. (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in the alteration, disruption or destruction of fish habitat, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine
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Emploi, croissance e (a) whether the work, undertaking or activity results or is likely to result in any alteration, disruption or destruction of fish habitat that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects.
Powers of Minister
(2) If, after reviewing any material or information provided under subsection (1) and affording the persons who provided it a reasonable opportunity to make representations, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, the Minister or the person designated by the Minister may, by order, subject to regulations made under paragraph (3)(b), or, if there are no such regulations in force, with the approval of the Governor in Council, (a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or (b) restrict the carrying on of the work, undertaking or activity. The Minister or the designated person may also, with the approval of the Governor in Council in any case, direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances. (2) Subsections 37(1) and (2) of the Act are replaced by the following:
Minister may require plans and specifications
37. (1) If a person carries on or proposes to carry on any work, undertaking or activity that results or is likely to result in serious harm to fish that are part of a commercial, recreational
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or Aboriginal fishery, or to fish that support such a fishery, or in the deposit of a deleterious substance in water frequented by fish or in any place under any conditions where that deleterious substance or any other deleterious substance that results from the deposit of that deleterious substance may enter any such waters, the person shall, on the request of the Minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any plans, specifications, studies, procedures, schedules, analyses, samples, evaluations and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity, that will enable the Minister to determine (a) whether the work, undertaking or activity results or is likely to result in any serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that constitutes or would constitute an offence under subsection 40(1) and what measures, if any, would prevent that result or mitigate its effects; or (b) whether there is or is likely to be a deposit of a deleterious substance by reason of the work, undertaking or activity that constitutes or would constitute an offence under subsection 40(2) and what measures, if any, would prevent that deposit or mitigate its effects. Ecologically significant areas
(1.1) If a person proposes to carry on any work, undertaking or activity in any ecologically significant area, the person shall, on the request of the minister — or without request in the manner and circumstances prescribed by regulations made under paragraph (3)(a) — provide the Minister with any prescribed material and other information relating to the work, undertaking or activity, or to the water, place or fish habitat that is or is likely to be affected by the work, undertaking or activity.
Powers of Minister
(2) If, after reviewing any material or information provided under subsection (1) or (1.1) and affording the persons who provided it a reasonable opportunity to make representa2011-2012
Emploi, croissance e tions, the Minister or a person designated by the Minister is of the opinion that an offence under subsection 40(1) or (2) is being or is likely to be committed, or that the work, undertaking or activity results or is likely to result in harm to fish in an ecologically significant area, the Minister or the designated person may, by order, subject to regulations made under paragraph (3)(b), (a) require any modifications or additions to the work, undertaking or activity or any modifications to any plans, specifications, procedures or schedules relating to it that the Minister or the designated person considers necessary in the circumstances, or (b) restrict the carrying on of the work, undertaking or activity. The Minister or the designated person may also direct the closing of the work or undertaking or the ending of the activity for any period that the Minister or the designated person considers necessary in the circumstances. (3) The portion of subsection 37(3) of the French version of the Act before paragraph (a) is replaced by the following:
Règlements
(3) Le gouverneur en conseil peut, par règlement : (4) Paragraph 37(3)(a) of the Act is replaced by the following: (a) prescribing the manner and circumstances in which any information or material shall be provided to the Minister without request under subsection (1) or (1.1); (5) Paragraph 37(3)(b) of the French version of the Act is replaced by the following: b) prévoir les cas où le ministre ou son délégué peut prendre l’arrêté visé au paragraphe (2), ainsi que les modalités de fond et de forme applicables; (6) Subsection 37(3) of the Act is amended by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
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(c) defining “ecologically significant area” for the purposes of subsection (1.1). R.S., c. 31 (1st Supp.), s. 34; 2001, c. 26, s. 300
145. (1) Subsections 38(1) to (10) of the Act are replaced by the following:
Power to designate
38. (1) The Minister may designate persons or classes of persons as inspectors or analysts for the purposes of the administration and enforcement of this Act.
Certificate to be produced
(2) The Minister shall provide every inspector with a certificate of designation and on entering any place or premises referred to in subsection (3) an inspector shall, if so required, show the certificate to the person in charge.
Authority to enter
(3) An inspector may, for a purpose related to verifying compliance with this Act, enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the inspector believes on reasonable grounds that (a) there is anything that is detrimental to fish habitat; or (b) there has been carried on, is being carried on or is likely to be carried on any work, undertaking or activity resulting or likely to result in (i) the alteration or disruption of fish habitat, or (ii) the deposit of a substance in water frequented by fish or in any place under any conditions where the substance or any other substance that results from the deposit of the substance may enter any such water.
Powers on entry
(3.1) The inspector may, for a purpose related to verifying compliance with this Act, examine any substance or product in the place or premises, take samples of it and conduct tests and measurements.
2011-2012 Duty to notify — alteration, disruption, destruction
Emploi, croissance e (4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of a harmful alteration or disruption or a destruction of fish habitat that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time (a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the alteration, disruption or destruction of fish habitat or the danger of the alteration, disruption or destruction; or (b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to notify — deleterious substance
(5) If there occurs a deposit of a deleterious substance in water frequented by fish that is not authorized under this Act, or if there is a serious and imminent danger of such an occurrence, and detriment to fish habitat or fish or to the use by humans of fish results or may reasonably be expected to result from the occurrence, then every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations if the person at any material time (a) owns or has the charge, management or control of (i) the deleterious substance, or (ii) the work, undertaking or activity that resulted in the deposit or the danger of the deposit; or (b) causes or contributes to the occurrence or the danger of the occurrence.
Duty to take corrective measures
(6) Any person described in paragraph (4)(a) or (b) or (5)(a) or (b) shall, as soon as feasible, take all reasonable measures consistent with public safety and with the conservation and protection of fish and fish habitat to prevent the occurrence or to counteract, mitigate or remedy any adverse effects that result from the occurrence or might reasonably be expected to result from it.
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Report
(7) As soon as feasible after the occurrence or after learning of the danger of the occurrence, the person shall provide an inspector, fishery officer or an authority prescribed by the regulations with a written report on the occurrence or danger of the occurrence.
Corrective measures
(7.1) If an inspector or fishery officer, whether or not they have been notified under subsection (4) or (5) or provided with a report under subsection (7), is satisfied on reasonable grounds that immediate action is necessary in order to take any measures referred to in subsection (6), the inspector or officer may, subject to subsection (7.2), take any of those measures at the expense of any person described in paragraph (4)(a) or (b) or (5)(a) or (b) or direct such a person to take them at that person’s expense.
Inconsistency
(7.2) Any direction of an inspector or fishery officer under this section that is inconsistent with any direction under the Canada Shipping Act, 2001 is void to the extent of the inconsistency.
Access to property
(8) For the purposes of subsections (4) to (7.1), any inspector or other person may enter and have access through any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwellingplace — and may take all reasonable measures in order to ensure that those subsections are complied with. However, nothing in this subsection relieves any person from liability at law for illegal or negligent acts or omissions or for loss or damage caused to others by the entry, access or measure.
Regulations
(9) The Governor in Council may make regulations prescribing
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(a) the authority for the purposes of subsection (4) or (5), the manner in which the notification under those subsections is to be made, the information to be contained in the notification and the circumstances in which no notification need be made;
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Emploi, croissance e (b) the authority for the purposes of subsection (7), the manner in which the report under that subsection is to be made, the information to be contained in the report and the circumstances in which no report need be made; (c) the manner in which inspectors and fishery officers may take any measures or give any directions under subsection (7.1) and the conditions to which those measures are subject; (d) the manner and circumstances in which any measures taken or directions given under subsection (7.1) may be reviewed, rescinded or varied; and (e) any other matters necessary for or incidental to carrying out the purposes and provisions of this section.
Assistance to inspectors
(10) The owner or person in charge of any place or premises entered by an inspector under subsection (3) and every person found there shall give the inspector all reasonable assistance to enable the inspector to carry out their duties and functions under this section and shall provide the inspector with any information with respect to verifying compliance with this Act that the inspector requires. (2) Subparagraph 38(3)(b)(i) of the Act is replaced by the following: (i) serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, (3) The portion of subsection 38(4) of the Act before paragraph (b) is replaced by the following:
Duty to notify — serious harm to fish
(4) Every person shall without delay notify an inspector, a fishery officer or an authority prescribed by the regulations of an occurrence that results in serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery, that is not authorized under this Act, or of a serious and imminent danger of such an occurrence, if the person at any material time
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(a) owns or has the charge, management or control of the work, undertaking or activity that resulted in the occurrence or the danger of the occurrence; or (4) Paragraph 38(4)(b) of the French version of the Act is replaced by the following: b) celle qui est à l’origine des dommages, ou y contribue. 146. The Act is amended by adding the following after section 38: Search
39. (1) A fishery officer or inspector who has a warrant issued under subsection (2) in which the officer or inspector is named may enter any place or premises, including a vehicle or vessel — other than a private dwelling-place or any part of any place or premises, including a vehicle or vessel, used as a permanent or temporary private dwelling-place — in which the officer or inspector has reasonable grounds to believe that an offence under subsection 40(1), (2) or (3) is being or has been committed and search the place, premises, vehicle or vessel for evidence of the offence.
Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing any fishery officer or inspector named in the warrant to enter and search any place or premises referred to in subsection (1), subject to any conditions that are specified in the warrant, if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in the place or premises (a) anything on or in respect of which an offence under subsection 40(1), (2) or (3) is being or has been committed; or (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence under subsection 40(1), (2) or (3).
Use of force
(3) In executing a warrant issued under subsection (2), an inspector named in the warrant may use force only if they are accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
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When warrant not necessary
(4) A fishery officer or inspector may exercise the powers of entry and search referred to in subsection (1) without a warrant issued under subsection (2) if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be practical to obtain the warrant.
Exigent circumstances
(5) For the purposes of subsection (4), exigent circumstances include circumstances in which the delay necessary to obtain a warrant would result in danger to human life or safety or the loss or destruction of evidence.
1991, c. 1, s. 10(1)
147. (1) The portion of subsection 40(1) of the English version of the Act before paragraph (a) is replaced by the following:
Offence and punishment
40. (1) Every person who contravenes subsection 35(1) is guilty of an offence and liable
1991, c. 1, s. 10(1)
(2) Paragraphs 40(1)(a) and (b) of the Act are replaced by the following: (a) on conviction on indictment, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both, (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and (iii) in the case of a corporation that the court has determined to be a small revenue corporation,
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(b) on summary conviction, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both, (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and (B) for a second or subsequent offence, to a fine of not less than $200,000 and not more than $8,000,000, and (iii) in the case of a corporation that the court has determined to be a small revenue corporation, (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000. 1991, c. 1, s. 10(1)
(3) The portion of subsection 40(2) of the English version of the Act before paragraph (a) is replaced by the following:
Offence and punishment
(2) Every person who contravenes subsection 36(1) or (3) is guilty of an offence and liable
1991, c. 1, s. 10(1)
(4) Paragraphs 40(2)(a) and (b) of the Act are replaced by the following: (a) on conviction on indictment,
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Emploi, croissance e (i) in the case of an individual, (A) for a first offence, to a fine of not less than $15,000 and not more than $1,000,000, and (B) for a second or subsequent offence, to a fine of not less than $30,000 and not more than $2,000,000, or to imprisonment for a term not exceeding three years, or to both, (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $500,000 and not more than $6,000,000, and (B) for a second or subsequent offence, to a fine of not less than $1,000,000 and not more than $12,000,000, and (iii) in the case of a corporation that the court has determined to be a small revenue corporation, (A) for a first offence, to a fine of not less than $75,000 and not more than $4,000,000, and (B) for a second or subsequent offence, to a fine of not less than $150,000 and not more than $8,000,000; or (b) on summary conviction, (i) in the case of an individual, (A) for a first offence, to a fine of not less than $5,000 and not more than $300,000, and (B) for a second or subsequent offence, to a fine of not less than $10,000 and not more than $600,000, or to imprisonment for a term not exceeding six months, or to both, (ii) in the case of a person, other than an individual or a corporation referred to in subparagraph (iii), (A) for a first offence, to a fine of not less than $100,000 and not more than $4,000,000, and
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(iii) in the case of a corporation that the court has determined to be a small revenue corporation, (A) for a first offence, to a fine of not less than $25,000 and not more than $2,000,000, and (B) for a second or subsequent offence, to a fine of not less than $50,000 and not more than $4,000,000. (5) Section 40 of the Act is amended by adding the following after subsection (2): Small revenue corporation status
(2.1) For the purpose of subsections (1) and (2), a court may determine a corporation to be a small revenue corporation if the court is satisfied that the corporation’s gross revenues for the 12 months immediately before the day on which the subject matter of the proceedings arose — or, if it arose on more than one day, for the 12 months immediately before the first day on which the subject matter of the proceedings arose — were not more than $5,000,000.
Relief from minimum fine
(2.2) The court may impose a fine that is less than the minimum amount provided for in subsection (1) or (2) if it is satisfied, on the basis of evidence submitted to the court, that the minimum fine would cause undue financial hardship. The court shall provide reasons if it imposes a fine that is less than the minimum amount provided for in either of those subsections. (6) Paragraph 40(3)(a) of the Act is replaced by the following: (a) in carrying on a work, undertaking or activity, fails to comply with a prescribed condition of an authorization under paragraph 35(2)(a) or (c), with a condition established by the Minister under paragraph 35(2)(b), or with a condition set out in the regulations or established under any other authorization issued under this Act,
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Emploi, croissance e (a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) within a reasonable time after the request is made, (7) Paragraph 40(3)(a.1) of the Act is replaced by the following: (a.1) fails to provide any material or information as requested by the Minister under subsection 37(1) or (1.1) within a reasonable time after the request is made, (8) Paragraphs 40(3)(c) to (f) of the Act are replaced by the following: (c) fails to provide notification that he or she is required to provide under subsection 38(4) or (5), (d) carries on any work, undertaking or activity described in subsection 37(1) (i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1), (ii) otherwise than in accordance with any such material or information as required to be modified by any order of the Minister under paragraph 37(2)(a), or (iii) contrary to any order made by the Minister under subsection 37(2), (e) fails to take any reasonable measures that he or she is required to take under subsection 38(6) or fails to take those measures in the required manner, (f) fails to provide a report that he or she is required to provide under subsection 38(7), or (g) fails to comply with the whole or any part of a direction of an inspector or a fishery officer under subsection 38(7.1), (9) The portion of paragraph 40(3)(d) of the Act before subparagraph (ii) is replaced by the following: (d) carries on any work, undertaking or activity described in subsection 37(1) or (1.1)
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(i) otherwise than in accordance with any material or information relating to the work, undertaking or activity that he or she provides to the Minister under subsection 37(1) or (1.1), (10) Subsection 40(3) of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” and the end of paragraph (g) and adding the following after paragraph (g): (h) fails to comply with a request of the Minister made under section 20, 1991, c. 1, s. 11.1
148. Subsection 42.1(1) of the Act is replaced by the following:
Annual report
42.1 (1) The Minister shall, as soon as feasible after the end of each fiscal year, prepare and cause to be laid before each house of Parliament a report on the administration and enforcement of the provisions of this Act relating to fisheries protection and pollution prevention for that year. 149. (1) Section 43 of the Act is amended by adding the following after paragraph (i): (i.1) for the purposes of paragraphs 32(2)(a) and 35(2)(a), prescribing anything that is authorized to be prescribed; (i.2) respecting applications for the authorizations referred to in paragraph 32(2)(c) or (d) or 35(2)(b) or (c); (i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 32(2)(d) or 35(2)(c) may grant the authorization; (i.4) respecting time limits for issuing authorizations referred to in paragraph 32(2)(c) or (d) or 35(2)(b) or (c), or for refusing to do so; (2) Paragraphs 43(1)(i.1) to (i.4) of the Act are replaced by the following: (i.01) excluding fisheries from the definitions “Aboriginal”, “commercial” and “recreational”;
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Emploi, croissance e (i.1) for the purposes of paragraph 35(2)(a), prescribing anything that is authorized to be prescribed; (i.2) respecting applications for the authorizations referred to in paragraph 35(2)(b) or (c); (i.3) prescribing the conditions under which and requirements subject to which persons or entities referred to in paragraph 35(2)(c) may grant the authorization; (i.4) respecting time limits for issuing authorizations referred to in paragraph 35(2)(b) or (c), or for refusing to do so; (3) Section 43 of the Act is amended by deleting “and” at the end of paragraph (l) and by adding the following after paragraph (m): (n) establishing a list of aquatic invasive species; (o) respecting the control of aquatic invasive species, including regulations (i) respecting the prevention of the spread of such species, (ii) respecting the possession of members of such species, and their import, export and transport, (iii) respecting the release of members of such species into Canadian fisheries waters, (iv) respecting the handling of members of such species, or (v) requiring any person to keep any record, book or other document containing any information relevant to the control of such species, and respecting where, how and how long they are to be kept; and (p) prescribing anything that is required or authorized by this Act to be prescribed. (4) Section 43 of the Act is renumbered as subsection 43(1) and is amended by adding the following:
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Regulations — Governor in Council
(2) The Governor in Council may make regulations establishing conditions for the exercise of the Minister’s power to make regulations under subsection (3).
Amendments to list of aquatic invasive species
(3) The Minister may, by regulation, add species to the list of aquatic invasive species established by regulations made under paragraph (1)(n) or remove species from that list, and vary the places to which regulations made under paragraph (1)(o) apply.
Statutory Instruments Act
(4) Regulations made under subsection (3) are exempt from section 3 of the Statutory Instruments Act.
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(5) Section 43 of the Act is amended by adding the following after subsection (4): Regulations exempting certain Canadian fisheries waters
(5) The Governor in Council may make regulations exempting any Canadian fisheries waters from the application of sections 20, 21 and 35 and subsection 38(4). 150. The Act is amended by adding the following after section 43:
Recommendation
43.1 Orders and regulations under subsections 4.2(1) and (3), 34(2), 36(5) and (5.1), 37(3) and 38(9) and section 43 are made on the recommendation of the Minister or, if they are made for the purposes of and in relation to the subject matters set out in an order made under section 43.2, on the recommendation of the minister designated under that section.
Designation
43.2 (1) The Governor in Council may, on the recommendation of the Minister and any other federal minister, by order, designate that other minister as the minister responsible for the administration and enforcement of subsections 36(3) to (6) for the purposes and in relation to the subject-matters set out in the order.
Designated minister’s powers, duties and functions
(2) The order may set out any powers, duties or functions of the Minister under this Act that the designated minister may exercise or perform — or any provisions of this Act in which a reference to the Minister is a reference to the designated minister — for the purposes of administering and enforcing subsections 36(3) to (6).
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1991, c. 1, s. 18
151. Subsection 63(1) of the Act is replaced by the following:
False statements
63. (1) No person shall make a false or misleading statement, whether orally or in writing, to an inspector, a fishery officer, a fishery guardian, any authority designated by a fishery officer or a fishery guardian or any authority prescribed under paragraph 38(9)(a) or (b) who is carrying out duties or functions under this Act.
1991, c. 1, s. 19
152. The heading before section 66 and sections 66 and 67 of the Act are repealed.
1991, c. 1, s. 21
153. Section 69 of the Act is repealed.
1991, c. 1, s. 26
154. Section 82 of the Act is replaced by the following:
Limitation period
82. A proceeding by way of summary conviction in respect of an offence under this Act may not be commenced later than five years after the day on which the offence was committed. 155. The Act is amended by adding the following after section 88: INCORPORATION BY REFERENCE
Externally produced material
89. (1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister, including by a government, a government agency or an international body.
Jointly produced material
(2) A regulation made under this Act may incorporate by reference material produced jointly by the Minister and a government or government agency for the purpose of harmonizing the regulation with other laws.
Internally produced standards
(3) A regulation made under this Act may incorporate by reference technical or explanatory material produced by the Minister, such as specifications, test methods, procedures, construction standards, operational standards, safety standards and performance standards of a technical nature.
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Incorporation as amended from time to time
(4) Material may be incorporated by reference as it exists on a particular date or as it is amended from time to time.
Transmission and publication
(5) For greater certainty, a document that is incorporated by reference in a regulation is not required to be transmitted for registration or publication in the Canada Gazette by reason only that it is incorporated by reference.
Interpretation
(6) Subsections (1) to (5) do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Defence
90. A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in a regulation is relevant unless, at the time of the alleged contravention, it was accessible as required by section 91 or was accessible to the person.
Accessibility of incorporated documents
91. The Minister shall ensure that any document that is incorporated by reference under subsection 89(1) is accessible.
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Coming into Force Order in council
156. Section 132, subsections 133(1), (3) and (4), sections 135 to 138, subsection 139(2), sections 140 and 141, subsections 142(2) to (4), 144(2) to (6), 145(2) to (4) and 147(1) to (5), (7), (9) and (10), section 148, subsections 149(2) and (5) and sections 152 and 153 come into force on a day to be fixed by order of the Governor in Council. DIVISION 6
1999, c. 33
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 Amendments to the Act 157. (1) Subsection 127(1) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Permit
127. (1) The Minister may, on application, issue a permit authorizing the loading for disposal and disposal of waste or other matter and, subject to the regulations, renew it no more than four times.
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(2) The portion of subsection 127(2) of the English version of the Act before paragraph (a) is replaced by the following: Application
(2) The application must (3) Subsection 127(3) of the Act is replaced by the following:
Factors for consideration
(3) Before issuing a permit under subsection (1) or renewing it, the Minister shall comply with Schedule 6 and shall take into account any factors that the Minister considers necessary. 158. Subsection 129(2) of the Act is replaced by the following:
Duration of permit
(2) A Canadian permit shall specify that it is valid for a particular date or dates or for a particular period that shall not exceed one year. For greater certainty, this subsection applies to each renewal of a permit issued under subsection 127(1). 159. (1) Subsection 133(1) of the Act is replaced by the following:
Publication
133. (1) When issuing a Canadian permit or varying any of its conditions, the Minister shall publish the text of the permit or the varied condition, as the case may be, in the Environmental Registry. (2) Subsection 133(1) of the Act is replaced by the following:
Publication
133. (1) When issuing a Canadian permit or varying any of its conditions or renewing a permit issued under subsection 127(1), the Minister shall publish the text of the permit, the varied condition or the renewed permit, as the case may be, in the Environmental Registry. (3) Paragraph 133(2)(b) of the Act is replaced by the following: (b) in every other case, at least seven days before the effective date of the permit or of the variation of its conditions. (4) Paragraph 133(2)(b) of the Act is replaced by the following: (b) in every other case, at least seven days before the effective date of the permit, the variation of its conditions or its renewal.
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160. (1) Subsection 134(1) of the Act is amended by striking out “or” at the end of paragraph (a) and by adding the following after that paragraph: (a.1) renews or refuses to renew a permit issued under subsection 127(1); or (2) The portion of subsection 134(2) of the Act before paragraph (b) is replaced by the following: Time for filing notice of objection
(2) The notice of objection shall be filed within seven days after (a) the date the text of the Canadian permit is published in the Environmental Registry; or (3) Paragraph 134(2)(a) of the Act is replaced by the following: (a) the date the text of the Canadian permit or the permit renewed under subsection 127(1), as the case may be, is published in the Environmental Registry; or (4) Paragraph 134(2)(b) of the English version of the Act is replaced by the following: (b) the date the person receives a notice from the Minister that the Canadian permit has been refused, suspended or revoked, that its conditions have been varied or that the renewal of a permit issued under subsection 127(1) has been refused. 161. (1) Subsection 135(1) of the Act is amended by adding the following after paragraph (b): (b.1) respecting time limits for issuing permits under subsection 127(1) or for refusing to issue them, specifying the circumstances under which any of those time limits do not apply and authorizing the Minister to extend any of those time limits or to decide that a time limit does not apply when the Minister considers that it is appropriate to do so; (2) Subsection 135(1) of the Act is amended by adding the following before paragraph (c):
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2011-2012
(b.2) respecting the renewal of permits under subsection 127(1), including regulations respecting time limits for renewing them or for refusing to renew them, specifying the circumstances under which any of those time limits do not apply and authorizing the Minister to extend any of those time limits or to decide that a time limit does not apply when the Minister considers that it is appropriate to do so; 2005, c. 23 s. 26
(3) Paragraph 135(3)(a) of the Act is replaced by the following: (a) prescribing the form of an application for a Canadian permit or for the renewal of a permit issued under subsection 127(1);
2005, c. 23 s. 26
(4) Paragraph 135(3)(b) of the English version of the Act is replaced by the following: (b) specifying the information required to be contained in or to accompany an application referred to in paragraph (a); Coming into Force
Order in council
162. Sections 157 and 158 and subsections 159(2) and (4), 160(1), (3) and (4) and 161(2) and (3) come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 7
2002, c. 29
SPECIES AT RISK ACT 163. (1) Section 73 of the Species at Risk Act is amended by adding the following after subsection (6):
Date of expiry
(6.1) The agreement or permit must set out the date of its expiry. (2) Subsection 73(9) of the Act is repealed. (3) Section 73 of the Act is amended by adding the following after subsection (10):
Time limits
(11) The regulations may include provisions (a) respecting time limits for issuing or renewing permits, or for refusing to do so;
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(b) specifying the circumstances under which any of those time limits does not apply; and (c) authorizing the competent minister to extend any of those time limits or to decide that a time limit does not apply, when the competent minister considers that it is appropriate to do so. 164. Paragraph 74(a) of the Act is replaced by the following: (a) before it is entered into, issued or made, the competent minister is of the opinion that the requirements of subsections 73(2) to (6.1) are met; and 165. Section 77 of the Act is amended by adding the following after subsection (1): Non-application
(1.1) Subsection (1) does not apply to the National Energy Board when it issues a certificate under an order made under subsection 54(1) of the National Energy Board Act. 166. Paragraph 78(1)(a) of the Act is replaced by the following: (a) before it is entered into, issued or made, the provincial or territorial minister determines that the requirements of subsections 73(2), (3), (6) and (6.1) are met; 167. The Act is amended by adding the following after section 78:
Clarification — renewals
78.1 For greater certainty, a reference in any of sections 73 to 78 to the entering into, issuing, making or approving of any agreement, permit, licence, order or other similar document or authorization, includes renewing it, and a reference in any of those sections or in paragraph 97(1)(c) to any such document or authorization includes one that has been renewed. 168. (1) Subsection 97(1) of the Act is replaced by the following:
Offences
97. (1) Every person commits an offence who
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Emploi, croissance e (a) contravenes subsection 32(1) or (2), section 33, subsection 36(1), 58(1), 60(1) or 61(1) or section 91 or 92; (b) contravenes a prescribed provision of a regulation or an emergency order; (c) fails to comply with a term or condition of a permit issued under subsection 73(1); or (d) fails to comply with an alternative measures agreement that the person has entered into under this Act.
Penalty
(1.1) Every person who commits an offence under subsection (1) is liable (a) on conviction on indictment, (i) in the case of a corporation, other than a non-profit corporation, to a fine of not more than $1,000,000, (ii) in the case of a non-profit corporation, to a fine of not more than $250,000, and (iii) in the case of any other person, to a fine of not more than $250,000 or to imprisonment for a term of not more than five years, or to both; or (b) on summary conviction, (i) in the case of a corporation, other than a non-profit corporation, to a fine of not more than $300,000, (ii) in the case of a non-profit corporation, to a fine of not more than $50,000, and (iii) in the case of any other person, to a fine of not more than $50,000 or to imprisonment for a term of not more than one year, or to both.
Exception
(1.2) Paragraph (1)(c) does not apply in respect of the failure to comply with any term or condition of any agreement, permit, licence, order or other similar document referred to in section 74 or subsection 78(1). (2) Subsection 97(3) of the Act is replaced by the following:
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Subsequent offence
(3) For a second or subsequent conviction, the amount of the fine may, despite subsection (1.1), be double the amount set out in that subsection.
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(3) Subsection 97(7) of the Act is replaced by the following: Definition of “non-profit corporation”
(7) For the purposes of subsection (1.1), “non-profit corporation” means a corporation, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member or shareholder of the corporation. 169. Paragraph 126(d) of the Act is replaced by the following: (d) all agreements entered into or renewed under section 73, all permits issued or renewed under that section and all agreements and permits amended under section 75 or exempted under section 76; PART 4 VARIOUS MEASURES DIVISION 1 MEASURES WITH RESPECT TO THE AUDITOR GENERAL OF CANADA
R.S., c. C-13
Canadian Centre for Occupational Health and Safety Act 170. Section 25 of the Canadian Centre for Occupational Health and Safety Act and the heading before it are repealed. 171. Subsection 26(1) of the Act is replaced by the following:
Annual report
26. (1) Within four months after the end of each year, the Council shall submit to the Minister a report on the activities of the Centre for that year, including a summary of the disposition of briefs and other written representations considered by the Centre as required by subsection 6(2) and the financial statements of the Centre.
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R.S., c. C-52
Currency Act
2005, c. 30, s. 114
172. Subsection 21(2) of the Currency Act is amended by adding “and” at the end of paragraph (d), by striking out “and” at the end of paragraph (e) and by repealing paragraph (f).
2005, c. 30, s. 115
173. Subsection 22(2) of the Act is repealed.
R.S., c. N-21
Natural Sciences and Engineering Research Council Act 174. Section 17 of the Natural Sciences and Engineering Research Council Act and the heading before it are repealed. 175. Subsection 18(1) of the Act is replaced by the following:
Annual report
18. (1) The President shall, within four months after the end of each fiscal year, submit to the Minister a report on the activities of the Council for that fiscal year, including the financial statements of the Council.
R.S., c. N-26
Northern Pipeline Act 176. The heading before section 13 of the Northern Pipeline Act is replaced by the following: ANNUAL REPORT 177. Sections 13 and 14 of the Act are replaced by the following:
Annual report
14. The Minister shall, on or before December 31 next following the end of each fiscal year, prepare a report on the operations of the Agency for that fiscal year and the Minister shall cause the report to be laid before each House of Parliament on that date or, if a House is not then sitting, on any of the first 15 days that it is sitting after that date.
R.S., c. S-12
Social Sciences and Humanities Research Council Act 178. Section 19 of the Social Sciences and Humanities Research Council Act and the heading before it are repealed.
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179. Subsection 20(1) of the Act is replaced by the following: Annual report
1989, c. 3
20. (1) The President shall, within four months after the end of each fiscal year, submit to the Minister a report on the activities of the Council for that fiscal year, including the financial statements of the Council. Canadian Transportation Accident Investigation and Safety Board Act 180. Subsection 13(2) of the Canadian Transportation Accident Investigation and Safety Board Act is repealed.
1991, c. 6
Canadian Polar Commission Act 181. Section 20 of the Canadian Polar Commission Act and the heading before it are repealed. 182. Subsection 21(1) of the Act is replaced by the following:
Annual report
1993, c. 31
21. (1) Within the first four months after the commencement of each fiscal year, the Chairperson shall submit to the Minister a report on the activities of the Commission for the preceding fiscal year, including the financial statements of the Commission, and the Commission shall make the annual report available for public scrutiny at the offices of the Commission. National Round Table on the Environment and the Economy Act 183. Section 22 of the National Round Table on the Environment and the Economy Act is repealed. 184. Subsection 23(1) of the Act is replaced by the following:
Annual report
23. (1) Within four months after the end of each fiscal year, the Chairperson shall submit to the Minister a report on the activities of the Round Table during that fiscal year, including the financial statements of the Round Table.
2011-2012 1994, c. 43
Emploi, croissance e Yukon Surface Rights Board Act 185. Subsection 23(5) of the Yukon Surface Rights Board Act is repealed.
1997, c. 6
Canadian Food Inspection Agency Act 186. Paragraphs 23(2)(a) and (b) of the Canadian Food Inspection Agency Act are replaced by the following: (a) the financial statements of the Agency; (b) information about the Agency’s performance with respect to the objectives established in the corporate business plan; and 187. The heading before section 31 of the Act is replaced by the following: ACCOUNTING 188. Section 32 of the Act is repealed.
1999, c. 17; 2005, c. 38, s. 35
Canada Revenue Agency Act 189. Section 87 of the Canada Revenue Agency Act is replaced by the following:
Audits
87. The Auditor General of Canada is the auditor for the Agency and must (a) annually audit and provide an opinion to the Agency and the Minister on the financial statements of the Agency; and (b) provide the Minister, the Commissioner and the Board with copies of reports of audits carried out under this section.
190. Paragraph 88(2)(b) of the Act is replaced by the following: (b) information about the Agency’s performance with respect to the objectives established in the corporate business plan; 2000, c. 6
Canadian Institutes of Health Research Act 191. Section 31 of the Canadian Institutes of Health Research Act is repealed.
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192. Subsection 32(1) of the Act is replaced by the following: Annual report
32. (1) The Governing Council shall, within four months after the end of each fiscal year, submit to the Minister a report on the operations and activities of the CIHR in that fiscal year and its strategic directions and goals, and shall include the CIHR’s financial statements. Transitional Provisions
Canadian Centre for Occupational Health and Safety Act
193. The obligations under sections 25 and 26 of the Canadian Centre for Occupational Health and Safety Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
Currency Act
194. The obligations under subsections 21(2) and 22(2) of the Currency Act, as those subsections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
Natural Sciences and Engineering Research Council Act
195. The obligations under sections 17 and 18 of the Natural Sciences and Engineering Research Council Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
Northern Pipeline Act
196. The obligations under sections 13 and 14 of the Northern Pipeline Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
Social Sciences and Humanities Research Council Act
197. The obligations under sections 19 and 20 of the Social Sciences and Humanities Research Council Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
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Canadian Transportation Accident Investigation and Safety Board Act
198. The obligation under subsection 13(2) of the Canadian Transportation Accident Investigation and Safety Board Act, as that subsection read immediately before the day on which this Act receives royal assent, continues to apply in respect of the fiscal year beginning on April 1, 2011 but does not apply in respect of any subsequent fiscal year.
Canadian Polar Commission Act
199. The obligations under sections 20 and 21 of the Canadian Polar Commission Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
National Round Table on the Environment and the Economy Act
200. The obligations under sections 22 and 23 of the National Round Table on the Environment and the Economy Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2011 but do not apply in respect of any subsequent fiscal year.
Yukon Surface Rights Board Act
201. The obligation under subsection 23(5) of the Yukon Surface Rights Board Act, as that subsection read immediately before the day on which this Act receives royal assent, continues to apply in respect of the fiscal year beginning on April 1, 2011 but does not apply in respect of any subsequent fiscal year.
Canadian Food Inspection Agency Act
202. The obligations under sections 23 and 32 of the Canadian Food Inspection Agency Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2011 but do not apply in respect of any subsequent fiscal year.
Canada Revenue Agency Act
203. The obligations under sections 87 and 88 of the Canada Revenue Agency Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
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Canadian Institutes of Health Research Act
204. The obligations under sections 31 and 32 of the Canadian Institutes of Health Research Act, as those sections read immediately before the day on which this Act receives royal assent, continue to apply in respect of the fiscal year beginning on April 1, 2012 but do not apply in respect of any subsequent fiscal year.
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DIVISION 2 LIFE ANNUITY-LIKE PRODUCTS 1991, c. 45
Trust and Loan Companies Act 205. Subsection 416(6) of the Trust and Loan Companies Act is replaced by the following:
Definition of “business of insurance”
(6) In this section, “business of insurance” includes (a) the issuance of any annuity if the liability in respect of the annuity is contingent on the death of a person; and (b) the issuance of any debt obligation, any of whose terms and conditions are established on the basis of mortality considerations, under which the issuer is obliged to make periodic payments.
1991, c. 46
Bank Act 206. Subsection 416(6) of the Bank Act is replaced by the following:
Definition of “business of insurance”
(6) In this section, “business of insurance” includes (a) the issuance of any annuity if the liability in respect of the annuity is contingent on the death of a person; and (b) the issuance of any debt obligation, any of whose terms and conditions are established on the basis of mortality considerations, under which the issuer is obliged to make periodic payments.
1999, c. 28, s. 35(1)
207. Subsection 549(5) of the Act is replaced by the following:
Definition of “business of insurance”
(5) In this section, “business of insurance” includes
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(a) the issuance of any annuity if the liability in respect of the annuity is contingent on the death of a person; and (b) the issuance of any debt obligation, any of whose terms and conditions are established on the basis of mortality considerations, under which the issuer is obliged to make periodic payments. 1991, c. 48
Cooperative Credit Associations Act 208. Subsection 381(6) of the Cooperative Credit Associations Act is replaced by the following:
Definition of “business of insurance”
(6) In this section, “business of insurance” includes (a) the issuance of any annuity if the liability in respect of the annuity is contingent on the death of a person; and (b) the issuance of any debt obligation, any of whose terms and conditions are established on the basis of mortality considerations, under which the issuer is obliged to make periodic payments. DIVISION 3 PPP CANADA INC.
Definitions
209. For the purposes of this Division, “appropriate Minister”, “Crown corporation” and “department” have the same meanings as in section 2 of the Financial Administration Act.
Status of PPP Canada Inc.
210. Except as provided in this Division, PPP Canada Inc., incorporated under the Canada Business Corporations Act, is not an agent of Her Majesty in right of Canada.
Agent for certain activities
211. PPP Canada Inc. is an agent of Her Majesty in right of Canada in relation to the following activities: (a) assessing public-private partnership opportunities for departments and Crown corporations in accordance with criteria established by the Treasury Board;
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(b) advising departments and Crown corporations on the implementation of publicprivate partnership projects; and (c) acting as a source of expertise and advice for departments and Crown corporations on public-private partnership issues. Her Majesty not liable
212. Her Majesty in right of Canada is not liable for any obligation or liability incurred by PPP Canada Inc. in relation to any activity other than an activity referred to in section 211.
Restrictions
213. Neither PPP Canada Inc. nor its shareholders or directors are authorized, without the Governor in Council’s prior approval given on the recommendation of the appropriate Minister and the Treasury Board, (a) to apply for continuance in another jurisdiction; or (b) to apply for articles that would add to, or otherwise make a material change in, the objects or purposes for which PPP Canada Inc. was incorporated, or the restrictions on the businesses or activities that PPP Canada Inc. may carry on, as set out in its articles of incorporation. DIVISION 4 TERRITORIAL BORROWING LIMITS
R.S., c. N-27
Northwest Territories Act 214. (1) Subsection 20(2) of the Northwest Territories Act is replaced by the following:
Restriction
(2) The aggregate of all borrowings shall not exceed the maximum amount set under subsection (4). (2) Section 20 of the Act is amended by adding the following after subsection (3):
Maximum amount — borrowings
(4) The Governor in Council may, on the recommendation of the Minister of Finance, set the maximum amount of the aggregate of all borrowings.
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(5) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations respecting borrowings for the purposes of subsections (2) and (4), including regulations respecting (a) what constitutes, or is deemed to constitute, borrowing; (b) the entities, or classes of entities, whose borrowings shall be taken into account; and (c) the manner in which the value of a borrowing is determined.
1993, c. 28
Nunavut Act 215. (1) Subsection 27(2) of the Nunavut Act is replaced by the following:
Restriction
(2) The aggregate of all borrowings must not exceed the maximum amount set under subsection (4). (2) Section 27 of the Act is amended by adding the following after subsection (3):
Maximum amount — borrowings
(4) The Governor in Council may, on the recommendation of the Minister of Finance, set the maximum amount of the aggregate of all borrowings.
Regulations
(5) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations respecting borrowings for the purposes of subsections (2) and (4), including regulations respecting (a) what constitutes, or is deemed to constitute, borrowing; (b) the entities, or classes of entities, whose borrowings must be taken into account; and (c) the manner in which the value of a borrowing is determined.
2002, c. 7
Yukon Act 216. (1) Subsection 23(2) of the Yukon Act is replaced by the following:
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Restriction
(2) The aggregate of all borrowings must not exceed the maximum amount set under subsection (4).
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(2) Section 23 of the Act is amended by adding the following after subsection (3): Maximum amount — borrowings
(4) The Governor in Council may, on the recommendation of the Minister of Finance, set the maximum amount of the aggregate of all borrowings.
Regulations
(5) The Governor in Council may, on the recommendation of the Minister of Finance, make regulations respecting borrowings for the purposes of subsections (2) and (4), including regulations respecting (a) what constitutes, or is deemed to constitute, borrowing; (b) the entities, or classes of entities, whose borrowings must be taken into account; and (c) the manner in which the value of a borrowing is determined. Coming into Force
Order in council
217. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 5 REPORTING REQUIREMENTS
R.S., c. F-11
Financial Administration Act
2003, c. 22, ss. 8 and 239
218. Section 12.4 of the Financial Administration Act is repealed.
2009, c. 31, s. 60
219. (1) Subsection 131.1(1) of the Act is replaced by the following:
Quarterly financial reports
131.1 (1) Each parent Crown corporation shall, in respect of itself and its wholly-owned subsidiaries, if any, cause to be prepared, in the form and manner provided for by the Treasury Board, a quarterly financial report for each of the first three quarters of each financial year of the parent Crown corporation.
2011-2012 2009, c. 31, s. 60
Emploi, croissance e (2) Paragraphs 131.1(2)(a) and (b) of the Act are replaced by the following: (a) a financial statement for the quarter and for the period from the start of the financial year to the end of that quarter; (b) comparative financial information for the preceding financial year; and
2009, c. 31, s. 60
(3) Subsection 131.1(3) of the English version of the Act is replaced by the following:
Report to be made public
(3) The parent Crown corporation shall cause the report to be made public within 60 days after the end of the quarter to which the report relates.
1991, c. 24, s. 44
220. Sections 151 and 152 of the Act are replaced by the following:
Consolidated quarterly reports
151. (1) The President of the Treasury Board shall, as soon as feasible after the end of each fiscal quarter of each fiscal year, make public a consolidated quarterly report on the business and activities of all parent Crown corporations, based on the quarterly financial reports that have been made public under subsection 131.1(3), and the annual reports of those corporations that were laid before Parliament under subsection 150(1), in that fiscal quarter.
Contents
(2) The consolidated quarterly report shall include (a) a list naming all Crown corporations; (b) the names of all or any corporations of which any shares are held by, on behalf of or in trust for the Crown or a Crown corporation, as the President of the Treasury Board considers appropriate; (c) financial data in respect of the parent Crown corporations, including their aggregate borrowings; (d) information indicating, in respect of the summaries and annual reports that were to be laid before each House of Parliament under this Part during the fiscal quarter to which the consolidated quarterly report relates, the time at, before or within which they were to be laid and the time that they were in fact laid before that House;
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(e) a list naming any parent Crown corporation that does not make public a report as required by subsection 131.1(3), if the 60-day period to do so ends in the fiscal quarter to which the consolidated quarterly report relates; and (f) any other information that the President of the Treasury Board may require. 1995, c. 20
Alternative Fuels Act 221. Section 8 of the Alternative Fuels Act is repealed.
2003, c. 22, ss. 12 and 13
Public Service Employment Act 222. Section 28 of the Public Service Employment Act and the heading before it are repealed. DIVISION 6 SOCIAL SECURITY TRIBUNAL AND SERVICE DELIVERY
2005, c. 34
Department of Human Resources and Skills Development Act 223. Section 2 of the Department of Human Resources and Skills Development Act is amended by adding the following in alphabetical order:
“Tribunal” « Tribunal » 2005, c. 34, par. 82(1)(b)(E) and ss. 83(3) and (11)
“Tribunal” means the Social Security Tribunal established under section 44. 224. Part 6 of the Act is replaced by the following: PART 5 SOCIAL SECURITY TRIBUNAL ESTABLISHMENT AND ADMINISTRATION
Establishment of Tribunal
44. (1) There is established a tribunal to be known as the Social Security Tribunal, consisting of a General Division and an Appeal Division.
General Division
(2) The General Division consists of the Income Security Section and the Employment Insurance Section.
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Composition
45. (1) The Tribunal consists of not more than 74 full-time members to be appointed by the Governor in Council.
Chairperson and Vicechairpersons
(2) The Governor in Council designates one of the full-time members to hold office as the Chairperson and three full-time members to hold office as Vice-chairpersons, one of whom is responsible for the Appeal Division, one of whom is responsible for the Income Security Section and one of whom is responsible for the Employment Insurance Section.
Part-time members
(3) In addition, the Tribunal consists of any number of part-time members, to be appointed by the Governor in Council if, in the Governor in Council’s opinion, the workload of the Tribunal so requires, so long as the combined time devoted to their functions and duties does not exceed the combined time that would be devoted by 11 full-time members.
Mandate
(4) Each full-time member of the Tribunal is to be appointed for a term of not more than five years, and each part-time member is to be appointed for a term of not more than two years. A member may be reappointed for one or more additional terms.
Tenure
(5) Each member of the Tribunal holds office during good behaviour and may be removed for cause by the Governor in Council at any time.
Vicechairpersons
46. (1) Each Vice-chairperson exercises any powers and performs any duties and functions that the Chairperson may assign.
Members
(2) Each member exercises any powers and performs any duties and functions that the Vicechairperson who is responsible for the Division or Section for which they hear matters may assign.
Assignment
(3) Subject to section 47, the Chairperson may assign members to hear matters in the Appeal Division, the Income Security Section or the Employment Insurance Section.
Employment Insurance Section
47. The Minister must consult a committee composed of the Chairperson of the Tribunal and the commissioners referred to in paragraphs 20(2)(c) and (d) before recommending to the Governor in Council any person to be appointed as a member of the Tribunal who may hear matters in the Employment Insurance Section.
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Full-time occupation
48. (1) Each full-time member of the Tribunal must devote the whole of their time to the performance of their duties under this Act.
Part-time members
(2) A part-time member of the Tribunal must not accept or hold any office or employment inconsistent with their duties under this Act.
Remuneration
49. (1) Each member of the Tribunal is paid the remuneration fixed by the Governor in Council.
Expenses — fulltime members
(2) Each full-time member of the Tribunal is entitled to be paid reasonable travel and living expenses incurred by them while absent from their ordinary place of work in the course of performing their duties under this Act.
Expenses — part-time members
(3) Each part-time member of the Tribunal is entitled to be paid reasonable travel and living expenses incurred by them while absent from their ordinary place of residence in the course of performing their duties under this Act.
Federal public administration
(4) Members of the Tribunal are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.
Not employed in public service
(5) Unless the Governor in Council otherwise orders in a class of cases, members of the Tribunal are deemed not to be employed in the public service for the purposes of the Public Service Superannuation Act.
Immunity
50. No civil proceedings lie against any member of the Tribunal for anything done or said in good faith in the exercise or purported exercise of a power or in the performance or purported performance of a duty or function of the Tribunal.
Absence — Chairperson
51. (1) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Vice-chairperson of the Appeal Division acts as Chairperson and may exercise all the powers and perform all the duties and functions of the Chairperson.
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Absence — other
(2) If subsection (1) does not apply owing to the absence or incapacity of the Vice-chairperson of the Appeal Division, or if the office of Vice-chairperson of the Appeal Division is vacant, the Minister may authorize another Vice-chairperson to act as Chairperson and that Vice-chairperson may exercise all the powers and perform all the duties and functions of the Chairperson.
Absence — Vice-chairperson
(3) In the event of the absence or incapacity of a Vice-chairperson or if the office of a Vicechairperson is vacant, the Chairperson may authorize a member to act, on any terms and conditions that the Chairperson may specify, as Vice-chairperson for the time being. ORGANIZATION OF TRIBUNAL Appeal to Tribunal — General Division
Appeal — time limit
52. (1) An appeal of a decision must be brought to the General Division in the prescribed form and manner and within, (a) in the case of a decision made under the Employment Insurance Act, 30 days after the day on which it is communicated to the appellant; and (b) in any other case, 90 days after the day on which the decision is communicated to the appellant.
Extension
(2) The General Division may allow further time within which an appeal may be brought, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the appellant.
Dismissal
53. (1) The General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success.
Decision
(2) The General Division must give written reasons for its decision and send copies to the appellant and the Minister or the Commission, as the case may be, and any other party.
Appeal
(3) The appellant may appeal the decision to the Appeal Division.
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Decision
54. (1) The General Division may dismiss the appeal or confirm, rescind or vary a decision of the Minister or the Commission in whole or in part or give the decision that the Minister or the Commission should have given.
Reasons
(2) The General Division must give written reasons for its decision and send copies to the appellant and the Minister or the Commission, as the case may be, and any other party.
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Appeal Division Appeal
55. Any decision of the General Division may be appealed to the Appeal Division by any person who is the subject of the decision and any other prescribed person.
Leave
56. (1) An appeal to the Appeal Division may only be brought if leave to appeal is granted.
Exception
(2) Despite subsection (1), no leave is necessary in the case of an appeal brought under subsection 53(3).
Appeal — time limit
57. (1) An application for leave to appeal must be made to the Appeal Division in the prescribed form and manner and within, (a) in the case of a decision made by the Employment Insurance Section, 30 days after the day on which it is communicated to the appellant; and (b) in the case of a decision made by the Income Security Section, 90 days after the day on which the decision is communicated to the appellant.
Extension
Grounds of appeal
(2) The Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant. 58. (1) The only grounds of appeal are that (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
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(b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Criteria
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
Decision
(3) The Appeal Division must either grant or refuse leave to appeal.
Reasons
(4) The Appeal Division must give written reasons for its decision to grant or refuse leave and send copies to the appellant and any other party.
Leave granted
(5) If leave to appeal is granted, the application for leave to appeal becomes the notice of appeal and is deemed to have been filed on the day on which the application for leave to appeal was filed.
Decision
59. (1) The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate or confirm, rescind or vary the decision of the General Division in whole or in part.
Reasons
(2) The Appeal Division must give written reasons for its decision and send copies to the appellant and any other party. General
Head office
60. (1) The head office of the Tribunal is in the National Capital Region described in the schedule to the National Capital Act or at any other place within Canada that may be designated by the Governor in Council.
Residence
(2) The Chairperson and the Vice-chairpersons must reside within the distance from the place referred to in subsection (1) that is determined by the Governor in Council.
Tribunal sittings
61. Every application to the Tribunal is to be heard before a single member.
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Tribunal hearings
62. All or part of a Tribunal hearing may be held in private if the Tribunal is of the opinion that the circumstances of the case so require.
Expenses and allowances
63. The Chairperson may in any particular case for special reasons reimburse any party required to attend a hearing for travel or living expenses or pay to them any other allowance, including compensation for lost remuneration, as are fixed by the Minister.
Powers of tribunal
64. (1) The Tribunal may decide any question of law or fact that is necessary for the disposition of any application made under this Act.
Canada Pension Plan
(2) Despite subsection (1), in the case of an application relating to the Canada Pension Plan, the Tribunal may only decide questions of law or fact as to
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(a) whether any benefit is payable to a person or its amount; (b) whether any person is eligible for a division of unadjusted pensionable earnings or its amount; and (c) whether any person is eligible for an assignment of a contributor’s retirement pension or its amount. Employment Insurance Act
(3) If a question specified in section 90 of the Employment Insurance Act arises in the consideration of an application, it must be determined by an authorized officer of the Canada Revenue Agency, as provided by that section.
Canada Pension Plan
65. If, in the Minister’s opinion, a person in addition to the appellant may be directly affected by the decision of the Tribunal relating to any of the following appeals, the Minister must notify the Tribunal of all such persons, and the Tribunal must add as a party to the appeal any such person who is not already a party to it: (a) an appeal in respect of a survivor’s pension payable to the survivor of a deceased contributor within the meaning of the Canada Pension Plan;
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Emploi, croissance e (b) an appeal in respect of a division of unadjusted pensionable earnings under section 55, 55.1 or 55.2 of the Canada Pension Plan; or (c) an appeal in respect of an assignment of a contributor’s retirement pension under section 65.1 of the Canada Pension Plan.
Amendment of decision
66. (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if (a) in the case of a decision relating to the Employment Insurance Act, new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact; or (b) in any other case, a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
Time limit
(2) An application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to the appellant.
Limit
(3) Each person who is the subject of a decision may make only one application to rescind or amend that decision.
Division
(4) A decision is rescinded or amended by the same Division that made it.
Time limits
67. The Chairperson or a Vice-Chairperson may in any particular case for special reasons extend the time within which the Tribunal is required by regulation to make a decision under subsections 54(1), 58(3) and 59(1).
Decision final
68. The decision of the Tribunal on any application made under this Act is final and, except for judicial review under the Federal Courts Act, is not subject to appeal to or review by any court. REGULATIONS
Governor in Council
69. The Governor in Council may make regulations respecting the manner in which the Tribunal may conduct its business, including regulations respecting
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(a) the procedure to be followed on appeals to the Tribunal; (b) the circumstances under which information is deemed to have been communicated or received; (c) the time within which the Tribunal must make a decision under subsections 54(1), 58(3) and 59(1); (d) any special reasons for the purposes of section 63; (e) the power to exclude any person from a hearing when oral evidence concerning a circumstance of sexual or other harassment is being given; and (f) anything that, by this Part, is to be prescribed by regulation. Regulations — electronic documents and electronic information
70. (1) The Governor in Council may, for the purposes of this Part, make regulations referred to in paragraphs 73(1)(c), (d) and (f).
Regulations — definitions
(2) The Governor in Council may, for the purposes of regulations made under subsection (1), make regulations defining “electronic”, “electronic document”, “electronic information”, “electronic signature” and “technology”.
Incorporation by reference
(3) Subsections 73(2) to (5) apply to regulations made under this section. PART 6 ELECTRONIC ADMINISTRATION OR ENFORCEMENT
Powers
71. (1) Subject to the regulations, the Minister may administer or enforce electronically the Canada Pension Plan, the Old Age Security Act, the Employment Insurance Act and any program which is supported by grants or contributions under section 7, and the Commission may administer or enforce electronically the Employment Insurance Act, including for the purposes of (a) creating, communicating, making available, collecting, receiving, storing, or managing or otherwise dealing with documents or information;
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(b) providing any services, benefits or other assistance; (c) providing notifications; (d) verifying the identity of a person or entity; (e) entering into agreements or arrangements; and (f) making, receiving or verifying an electronic signature.
Restriction
(2) The Minister and the Commission must not require persons or entities to apply electronically for, or receive electronically, services, benefits or other assistance except for classes of persons or entities and those services, benefits or other assistance that are prescribed by the regulations.
Electronic manner of filing documents
72. (1) Unless another manner of filing a document or information is expressly required by a provision of the Canada Pension Plan, the Old Age Security Act or the Employment Insurance Act or any of their regulations, or a term or condition of any program which is supported by grants or contributions under section 7, the filing of an electronic version of the document or information is to be considered as the filing of a document or information in accordance with the provision or the term or condition.
Power to prescribe form or manner of filing
(2) A provision of the Canada Pension Plan, the Old Age Security Act or the Employment Insurance Act or any of their regulations, or a term or condition of any program which is supported by grants or contributions under section 7, that provides for a power to issue, prescribe or in any other manner establish a form or to establish the manner of filing a document or information includes the power to do so with respect to an electronic document or information.
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Written documents or information
(3) A requirement under a provision of the Canada Pension Plan, the Old Age Security Act or the Employment Insurance Act or any of their regulations, or a term or condition of any program which is supported by grants or contributions under section 7, that a document be in writing or information be provided in writing is satisfied by an electronic document or information if the electronic document or information
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(a) is readable or perceivable so as to be usable for subsequent reference; (b) is in a format that does not prevent it from being retained by the recipient; and (c) meets the prescribed requirements, if any.
Signatures
(4) A requirement under a provision of the Canada Pension Plan, the Old Age Security Act or the Employment Insurance Act or any of their regulations, or a term or condition of any program which is supported by grants or contributions under section 7, for a signature is satisfied by an electronic signature if the electronic signature (a) is reliable for the purposes for which it is required; (b) is reliably linked with the electronic document in respect of which the signature is required; and (c) meets the prescribed requirements, if any.
Meaning of “filing”
(5) In this section, “filing” includes all manner of transmitting, regardless of how it is designated.
Regulations
73. (1) The Governor in Council may make regulations (a) providing for circumstances in which subsection 71(1) does not apply; (b) defining, enlarging or restricting the meaning of any word or expression used but not defined in this Part;
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Emploi, croissance e (c) respecting the creation, communication, making available, collection, reception, storage or management of, or any other method of dealing with, electronic documents or electronic information, and their admissibility in any proceedings, including establishing (i) criteria for the reliability of electronic documents, electronic information or electronic signatures, (ii) the date and hour when an electronic document or electronic information is considered to be sent or received and the place where it is considered to be sent or received, (iii) the technology to be used and process to be followed for making, receiving or verifying an electronic signature, and (iv) whether an electronic document must be signed with an electronic signature; (d) establishing criteria for the validity of an agreement or arrangement entered into electronically; (e) respecting terms and conditions for providing or receiving electronically services, benefits or other assistance, including the payment of amounts electronically; (f) respecting the technology to be used and the process to be followed for verifying electronically the identity of any person or entity; (g) respecting the establishment and operation of electronic systems or any other technology to be used in the administration or enforcement of the Canada Pension Plan, the Old Age Security Act and the Employment Insurance Act and any program which is supported by grants or contributions under section 7 and respecting the manner in which and the extent to which any provision of those Acts or their regulations or any term or condition of those programs applies to the electronic systems; and (h) prescribing anything that by this Part is to be prescribed.
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Incorporation by reference
(2) A regulation made under this section may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
Accessibility
(3) The Minister shall ensure that any document that is incorporated by reference in the regulation is accessible.
Defence
(4) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (3) or it was otherwise accessible to the person.
No registration or publication
(5) For greater certainty, a document that is incorporated by reference in the regulation is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
R.S., c. C-8
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Canada Pension Plan
1995, c. 33, s. 25
225. The definitions “Pension Appeals Board” and “Review Tribunal” in subsection 2(1) of the Canada Pension Plan are repealed.
2007, c. 11, s. 1
226. Section 4.1 of the Act is replaced by the following:
Minister’s power
4.1 The Minister of National Revenue may use electronic means to create, communicate, make available, collect, receive, store or otherwise deal with documents or information under this Act.
2009, c. 31, s. 30(1)
227. (1) Subsection 38(1) of the Act is replaced by the following:
Refund of overpayment
38. (1) If an overpayment has been made by an employee on account of the employee’s contribution under this Act for a year, the Minister must, if application in writing is made to the Minister by the employee not later than four years — or, in the case of an employee who, in respect of a disability pension, is notified after September 1, 2010 of a decision under subsection 60(7) or 81(2), a decision
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Emploi, croissance e under subsection 82(11) or 83(11) as those subsections read immediately before their repeal or a decision under section 54 or 59 of the Department of Human Resources and Skills Development Act, 10 years — after the end of the year, refund to the employee the amount of the overpayment.
2009, c. 31, s. 30(2)
(2) Subsection 38(3) of the Act is replaced by the following:
Refund of excess — employee
(3) Despite anything in this Part, if an employee applies to the Minister and satisfies the Minister that, for any year, the amount deducted from the employee’s remuneration exceeds the contribution for the year required of the employee under subsection 8(1), the Minister may refund the amount of the excess. The application must be made within four years — or, in the case of an employee who, in respect of a disability pension, is notified after September 1, 2010 of a decision under subsection 60(7) or 81(2), a decision under subsection 82(11) or 83(11) as those subsections read immediately before their repeal or a decision under section 54 or 59 of the Department of Human Resources and Skills Development Act, 10 years — after the end of the year.
2010, c. 25, s. 70
(3) Paragraph 38(4)(b) of the Act is replaced by the following: (b) must make such a refund after sending the notice of assessment, if application is made in writing by the contributor not later than four years — or, in the case of a contributor who, in respect of a disability pension, is notified after September 1, 2010 of a decision under subsection 60(7) or 81(2), a decision under subsection 82(11) or 83(11) as those subsections read immediately before their repeal or a decision under section 54 or 59 of the Department of Human Resources and Skills Development Act, 10 years — after the end of the year. 228. Section 81 of the Act is amended by adding the following after subsection (2):
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Rescission or amendment of decision
(3) The Minister may, on new facts, rescind or amend a decision made by him or her under this Act.
R.S., c. 30 (2nd Supp.), ss. 45(1) and 46(1); 1990, c. 8, s. 46; 1991, c. 44, s. 22(2); 1995, c. 33, ss. 35(2), (3), 36(2), 37 and 38; 1997, c. 40, s. 85.1; 2000, c. 12, ss. 60 and 61 and par. 64(k) and (l); 2002, c. 8, s. 121 and par. 182(1)(f); 2010, c. 12, ss. 1668 and 1669
229. Sections 82 to 86.1 of the Act are replaced by the following:
Appeal to Social Security Tribunal
82. A party who is dissatisfied with a decision of the Minister made under section 81, including a decision in relation to further time to make a request, or, subject to the regulations, any person on their behalf, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act.
Stay of benefits pending judicial review
83. If a decision is made by the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act in respect of a benefit, the Minister may stay payment of the benefit until the latest of
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(a) the expiry of the period allowed for making an application for leave to appeal to the Appeal Division of that Tribunal, (b) the expiry of the period allowed for making an application under the Federal Courts Act for judicial review of the decision, and (c) if Her Majesty has made an application under the Federal Courts Act for judicial review of the decision, the month in which all proceedings in relation to the judicial review have been completed.
2011-2012 R.S., c. 30 (2nd Supp.), s. 49
Emploi, croissance e 230. (1) Paragraph 89(1)(c) of the Act is replaced by the following: (c) setting out the circumstances in which the Minister may allow a longer period to make a request under subsection 81(1) or (1.1);
2007, c. 11. s. 5(1)
(2) Paragraphs 89(1)(l.1) and (l.2) of the Act are repealed.
2007, c. 11, s. 5(2)
(3) Subsection 89(3) of the Act is repealed. 231. Subsection 96(2) of the Act is replaced by the following:
Application of sections 81 and 82
(2) Sections 81 and 82 apply with any modifications that the circumstances require to any request made under subsection (1) as though it were an application for a benefit. 232. Subsection 97(4) of the Act is replaced by the following:
Notice of rectification to be given
(4) Whenever any reduction is made in the amount of the unadjusted pensionable earnings of a contributor shown to their account in the Record of Earnings, whether under subsection (3) or otherwise, and it appears from the Record of Earnings that before the making of the reduction the contributor had been informed under section 96 of the amount of the earnings shown to their account in the Record of Earnings, the Minister must notify the contributor in prescribed manner of his or her action and if the contributor is not satisfied with the amount of the reduction so made, they may request that such action be reconsidered by the Minister and sections 81 and 82 apply with any modifications that the circumstances require to that request as though it were an application for a benefit.
2007, c. 11, s. 10(1)
233. (1) Paragraphs 101(1)(d.2) and (d.3) of the Act are repealed.
2007, c. 11, s. 10(2)
(2) Subsection 101(2) of the Act is repealed.
1995, c. 33, s. 46(2)
234. (1) Subsection 108(2.1) of the Act is repealed.
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(2) Subsection 108(3) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d): (e) the costs of administering Part 5 of the Department of Human Resources and Skills Development Act in respect of appeals respecting this Act. R.S., c. O-9
Old Age Security Act
1995, c. 33, s. 1(2)
235. The definition “Review Tribunal” in section 2 of the Old Age Security Act is repealed.
1995, c. 33, s. 16; 1997, c. 40, s. 101; 2000, c. 12, par. 207(1)(k); 2002, c. 8, par. 182(1)(z.5)
236. (1) Subsections 28(1) and (2) of the Act are replaced by the following:
Appeal — benefits
28. (1) A person who is dissatisfied with a decision of the Minister made under section 27.1, including a decision in relation to further time to make a request, or, subject to the regulations, any person on their behalf, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act.
Reference as to income
(2) If, on an appeal to the Social Security Tribunal, it is a ground of the appeal that the decision made by the Minister as to the income or income from a particular source or sources of an applicant or beneficiary or of the spouse or common-law partner of the applicant or beneficiary was incorrectly made, the appeal on that ground must, in accordance with the regulations, be referred for decision to the Tax Court of Canada, whose decision, subject only to variation by that Court in accordance with any decision on an appeal under the Tax Court of Canada Act relevant to the appeal to the Social Security Tribunal, is final and binding for all purposes of the appeal to the Social Security Tribunal except in accordance with the Federal Courts Act.
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Emploi, croissance e
1995, c. 33, s. 16
(2) The portion of subsection 28(3) of the English version of the Act before paragraph (a) is replaced by the following:
Stay of benefits pending judicial review
(3) If a decision is made by the Social Security Tribunal in respect of a benefit, the Minister may stay payment of the benefit until the later of 237. (1) Section 34 of the Act is amended by adding the following after paragraph (m): (m.1) setting out the circumstances in which the Minister may allow a longer period to make a request under subsection 27.1(1) or (1.1);
2007, c. 11, s. 26(2)
(2) Section 34 of the Act is amended by adding “and” at the end of paragraph (p) and by repealing paragraphs (r) and (s).
2007, c. 11, s. 27
238. Section 34.1 of the Act is repealed.
2007, c. 11, s. 35
239. Section 46.1 of the Act is repealed.
1996, c. 23
Employment Insurance Act 240. The definitions “board of referees” and “umpire” in subsection 2(1) of the Employment Insurance Act are repealed. 241. Subsection 24(2) of the Act is replaced by the following:
No appeal
(2) A special or general direction of the Commission approving or disapproving a work sharing agreement for the purposes of subsection (1) is not subject to review under section 112. 242. Subsection 25(2) of the Act is replaced by the following:
No appeal
(2) A decision of the Commission about the referral of a claimant to a course, program or other employment activity mentioned in subsection (1) is not subject to review under section 112. 243. Subsections 52(1) and (2) of the Act are replaced by the following:
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Reconsideration of claim
52. (1) Despite section 111, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable.
Decision
(2) If the Commission decides that a person has received money by way of benefits for which the person was not qualified or to which the person was not entitled, or has not received money for which the person was qualified and to which the person was entitled, the Commission must calculate the amount of the money and notify the claimant of its decision.
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244. Section 64 of the Act is replaced by the following: No appeal
64. A decision of the Commission made in relation to employment benefits or support measures, other than a decision under section 65.1, is not subject to review under section 112. 245. Subsection 77(1) of the Act is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f): (g) the costs of administering Part 5 of the Department of Human Resources and Skills Development Act in respect of appeals respecting this Act. 246. The Act is amended by adding the following after section 90:
Determination of questions
90.1 If a question specified in section 90 arises in the consideration of a claim for benefits, a ruling must be made by an authorized officer of the Canada Revenue Agency, as set out in that section.
1999, c. 31, s. 81(F); 2002, c. 8, s. 135 and par. 182(1)(o); 2005, c. 38, subpar. 138(g)(viii)
247. The heading “BOARD OF REFEREES” before section 111 and sections 111 to 123 of the Act are replaced by the following:
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Emploi, croissance e ADMINISTRATIVE REVIEW
Rescission or amendment of decision
111. The Commission may rescind or amend a decision given in any particular claim for benefits if new facts are presented or if it is satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact.
Reconsideration — Commission
112. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may make a request to the Commission in the prescribed form and manner for a reconsideration of that decision at any time within (a) 30 days after the day on which a decision is communicated to them; or (b) any further time that the Commission may allow.
Reconsideration
(2) The Commission must reconsider its decision if a request is made under subsection (1).
Regulations
(3) The Governor in Council may make regulations setting out the circumstances in which the Commission may allow a longer period to make a request under subsection (1).
Appeal to Social Security Tribunal
113. A party who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act.
Payment of benefit pending appeal
114. (1) If a claim for benefits is allowed by the General Division of the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act, benefits are payable in accordance with the decision of the Tribunal even though an appeal is pending, and any benefits paid under this section after the Tribunal’s decision are to be treated as having been duly paid and are not recoverable from the claimant, even if the final determination of the question is adverse to the claimant.
216 Exception
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(2) Subsection (1) does not apply (a) if the appeal to the Appeal Division of the Social Security Tribunal was brought within 21 days after the day on which the decision of the General Division of the Social Security Tribunal was given and on the ground that the claimant ought to be disentitled under section 36; and (b) in any other case that the Commission may, with the approval of the Governor in Council, prescribe by regulation.
Regulations
115. The Commission may, with the approval of the Governor in Council, make regulations prescribing the procedure to be followed in the reconsideration of decisions under section 112. 248. Subsection 125(15) of the Act is repealed. 249. Section 129 of the Act is replaced by the following:
Privilege
129. When an employer, claimant or other person gives the Commission written, oral or documentary evidence required for the proper determination of the entitlement of a claimant to benefits, the giving of the evidence is an occasion of qualified privilege. 250. Section 143 of the Act and the heading before it are repealed. Transitional Provisions Interpretation and General
Definitions
251. The following definitions apply in sections 252 to 270.
“board of referees” « conseil arbitral »
“board of referees” means a board of referees established under Part VI of the Employment Insurance Act, as it read immediately before the coming into force of section 247.
“Pension Appeals Board” « Commission d’appel des pensions »
“Pension Appeals Board” means the Pension Appeals Board established under section 83 of the Canada Pension Plan, as it read immediately before the coming into force of section 229.
2011-2012 “Review Tribunal” « tribunal de révision »
“Social Security Tribunal” « Tribunal de la sécurité sociale »
“umpire” « juge-arbitre »
Information
Emploi, croissance e “Review Tribunal” means a Review Tribunal established under section 82 of the Canada Pension Plan, as it read immediately before the coming into force of section 229. “Social Security Tribunal” means the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act. “umpire” means an umpire appointed under Part VI of the Employment Insurance Act, as it read immediately before the coming into force of section 247.
252. The Pension Appeals Board, a Review Tribunal, a board of referees or an umpire must transfer to the Social Security Tribunal any information under their control that either relates to an application of which that Tribunal is seized or that the Governor in Council has, by regulation, prescribed. Canada Pension Plan
Review Tribunal
253. (1) The members of a Review Tribunal referred to in subsection 255(1) continue to hold office until the earlier of the end of the term for which they were appointed and April 1, 2014.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Review Tribunal, other than the Commissioner of Review Tribunals and the Deputy Commissioner of Review Tribunals, has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Earlier date
(3) For the purposes of subsection (1), the Governor in Council may, by order, fix a day earlier than April 1, 2014.
Pension Appeals Board
254. (1) The members of the Pension Appeals Board continue to hold office until April 1, 2014.
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No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Pension Appeals Board has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Appeals — Review Tribunal
255. (1) A Review Tribunal remains seized of any appeal filed and heard before April 1, 2013 under subsection 82(1) of the Canada Pension Plan, as it read immediately before the coming into force of section 229.
Time limit
(2) A Review Tribunal must make its decision no later than March 31, 2014 or, if an order is made under subsection 253(3), the day before the day fixed by that order.
Failure to decide
(3) The General Division of the Social Security Tribunal becomes seized of any appeal referred to in subsection (1) if no decision is made by the day referred to in subsection (2). The appeal is deemed to be an appeal filed with the General Division of the Social Security Tribunal on April 1, 2014 or, if an order is made under subsection 253(3), the day fixed by that order.
Appeals — Social Security Tribunal
(4) A person who is dissatisfied with a decision made under subsection (1) may appeal the decision to the Appeal Division of the Social Security Tribunal.
Appeals — Pension Appeals Board
256. An appeal from a decision of a Review Tribunal that could have been appealed to the Pension Appeals Board, but for the repeal of subsection 83(1) of the Canada Pension Plan by section 229, may be brought to the Appeal Division of the Social Security Tribunal.
Appeals — Social Security Tribunal
257. Any appeal filed before April 1, 2013 under subsection 82(1) of the Canada Pension Plan, as it read immediately before the coming into force of section 229, is deemed
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Emploi, croissance e to have been filed with the General Division of the Social Security Tribunal on April 1, 2013, if section 255 does not apply to it.
Appeals — Pension Appeals Board
258. (1) The Pension Appeals Board remains seized of any appeal filed and heard before April 1, 2013 under subsection 83(1) of the Canada Pension Plan, as it read immediately before the coming into force of section 229.
Time limit
(2) The Pension Appeals Board must make its decision no later than March 31, 2014.
Failure to decide
(3) The Appeal Division of the Social Security Tribunal becomes seized of any appeal referred to in subsection (1) if no decision has been made by the day referred to in subsection (2). The Appeal Division of the Social Security Tribunal is deemed to have granted leave to appeal on April 1, 2014.
Appeals — Social Security Tribunal
259. The Appeal Division of the Social Security Tribunal is deemed to have granted leave to appeal on April 1, 2013 with respect to any application for leave to appeal filed before April 1, 2013 under subsection 83(1) of the Canada Pension Plan, as it read immediately before the coming into force of section 229, if leave to appeal to the Pension Appeals Board has been granted but that Board has not yet heard that appeal.
Leave to appeal — Social Security Tribunal
260. Any application for leave to appeal filed before April 1, 2013 under subsection 83(1) of the Canada Pension Plan, as it read immediately before the coming into force of section 229, is deemed to be an application for leave to appeal filed with the Appeal Division of the Social Security Tribunal on April 1, 2013, if no decision has been rendered with respect to leave to appeal.
Request for reconsideration
261. (1) If no decision has been made before April 1, 2013, in respect of a request made under subsection 84(2) of the Canada Pension Plan, as it read immediately before
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the coming into force of section 229, it is deemed to be an application made on April 1, 2013 under section 66 of the Department of Human Resources and Skills Development Act and is deemed to relate to a decision made, as the case may be, by (a) the General Division of the Social Security Tribunal, in the case of a decision made by a Review Tribunal; or (b) the Appeal Division of the Social Security Tribunal, in the case of a decision made by the Pension Appeals Board.
Deeming
(2) An application made under section 66 of the Department of Human Resources and Skills Development Act after March 31, 2013 is deemed to relate to a decision made, as the case may be, by (a) the General Division of the Social Security Tribunal, in the case of a decision made by a Review Tribunal; or (b) the Appeal Division of the Social Security Tribunal, in the case of a decision made by the Pension Appeals Board.
Continued application
262. The provisions of the Canada Pension Plan and the Old Age Security Act repealed by this Act, and their related regulations, continue to apply to appeals of which a Review Tribunal or the Pension Appeals Board remains seized under this Act, with any necessary adaptations. Employment Insurance Act
Board of referees — chairpersons
263. (1) The chairpersons of a board of referees referred to in subsection 265(1) continue to hold office until the earlier of the end of the term for which they were appointed and November 1, 2013.
Board of referees — members
(2) Persons on panels referred to in subsection 111(3) of the Employment Insurance Act, as it read immediately before the coming into force of section 247, continue to hold
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Emploi, croissance e office until the earlier of the end of the term for which they were appointed and November 1, 2013.
No compensation
(3) Despite the provisions of any contract, agreement or order, no person either appointed to hold office as chairperson of a board of referees or referred to in subsection (2) has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Earlier date
(4) For the purposes of subsections (1) and (2), the Governor in Council may, by order, fix a day earlier than November 1, 2013.
Umpires
264. (1) Umpires continue to hold office until April 1, 2014.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as umpire has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Appeals — board of referees
265. (1) The board of referees remains seized of any appeal filed and not decided before April 1, 2013 under subsection 114(1) of the Employment Insurance Act, as it read immediately before the coming into force of section 247.
Time limit
(2) The board of referees must make its decision no later than October 31, 2013 or, if an order is made under subsection 263(4), the day before the day fixed by that order.
Failure to decide
(3) The General Division of the Social Security Tribunal becomes seized of any appeal referred to in subsection (1) if no decision has been made by the day referred to in subsection (2). The appeal is deemed to be an appeal filed with the General Division
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of the Social Security Tribunal on November 1, 2013 or, if an order is made under subsection 263(4), the day fixed by that order. Appeals — Social Security Tribunal
(4) A person who is dissatisfied with a decision made under subsection (1) may appeal the decision to the Appeal Division of the Social Security Tribunal.
Appeals — umpire
266. An appeal from a decision of a board of referees that could have been appealed to an umpire, but for the repeal of subsection 115(1) of the Employment Insurance Act by section 247, may be appealed to the Appeal Division of the Social Security Tribunal.
Appeals — umpire
267. (1) An umpire remains seized of any appeal filed and heard before April 1, 2013 under subsection 115(1) of the Employment Insurance Act, as it read immediately before the coming into force of section 247.
Time limit
(2) An umpire must make his or her decision no later than March 31, 2014.
Failure to decide
(3) The Appeal Division of the Social Security Tribunal becomes seized of any appeal referred to in subsection (1) if no decision has been made by the day referred to in subsection (2). The Appeal Division of the Social Security Tribunal is deemed to have granted leave to appeal on April 1, 2014.
Appeals — Social Security Tribunal
268. The Appeal Division of the Social Security Tribunal is deemed to have granted leave to appeal on April 1, 2013 with respect to any appeal filed and not heard before April 1, 2013 under subsection 115(1) of the Employment Insurance Act, as it read immediately before the coming into force of section 247.
Request for reconsideration
269. (1) If no decision has been made before April 1, 2013 in respect of a request made under section 120 of the Employment Insurance Act as it read immediately before the coming into force of section 247, it is deemed to be an application made on April 1, 2013 under section 66 of the Department of
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Emploi, croissance e Human Resources and Skills Development Act and is deemed to relate to a decision made, as the case may be, by (a) the General Division of the Social Security Tribunal, in the case of a decision made by a board of referees; or (b) the Appeal Division of the Social Security Tribunal, in the case of a decision made by an umpire.
Deeming
(2) An application made under section 66 of the Department of Human Resources and Skills Development Act after March 31, 2013 is deemed to relate to a decision made, as the case may be, by (a) the General Division of the Social Security Tribunal, in the case of a decision made by a board of referees; or (b) the Appeal Division of the Social Security Tribunal, in the case of a decision made by an umpire.
Continued application
270. The provisions of the Employment Insurance Act repealed by this Act, and their related regulations, continue to apply to appeals of which the board of referees or an umpire remains seized under this Act, with any necessary adaptations. Consequential Amendments
R.S., c. A-1
Access to Information Act 271. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Pension Appeals Board Commission d’appel des pensions
R.S., c. F-7; 2002, c. 8, s.14
Federal Courts Act
1990, c. 8, s. 8
272. (1) Paragraph 28(1)(d) of the Federal Courts Act is repealed.
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(2) Subsection 28(1) of the Act is amended by adding the following after paragraph (f): (g) the Appeal Division of the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act, unless the decision is made under subsection 57(2) or section 58 of that Act or relates to an appeal brought under subsection 53(3) of that Act or an appeal respecting a decision relating to further time to make a request under subsection 52(2) of that Act, section 81 of the Canada Pension Plan, section 27.1 of the Old Age Security Act or section 112 of the Employment Insurance Act;
1990, c. 8, s. 8; 1996, c. 23, par. 187(c)
(3) Paragraph 28(1)(m) of the Act is repealed.
R.S., c. L-1
Labour Adjustment Benefits Act
1996, c. 23, s. 177
273. (1) The definition “board of referees” in subsection 2(1) of the Labour Adjustment Benefits Act is repealed. (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“Social Security Tribunal” « Tribunal de la sécurité sociale »
“Social Security Tribunal” means the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act;
1996, c. 23, par. 187(f)
274. Subsections 13(6) and (7) of the Act are replaced by the following:
Reference to Social Security Tribunal
(6) The Commission may at any time within 14 days after receiving an application under subsection (1) refer the application or a question arising from it to the General Division of the Social Security Tribunal for a decision on it.
Proceedings before Social Security Tribunal
(7) If an application or question is referred to the General Division of the Social Security Tribunal under subsection (6), the Tribunal must conduct its proceedings in respect of that
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application or question in accordance with the procedure for appeals under the Department of Human Resources and Skills Development Act. 1996, c. 23, par. 187(f)
275. Subsections 31(2) and (3) of the Act are replaced by the following:
Appeal of Commission decision
(2) Any person may, at any time within 30 days after the day a decision of the Commission under this Act, other than subsection 14(2) or (3), is communicated to him or her, or within any further time that the Commission may in any particular case for special reason allow, appeal to the Social Security Tribunal.
R.S., c. P-21
Privacy Act 276. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Pension Appeals Board Commission d’appel des pensions
R.S., c. 1 (5th Supp.)
Income Tax Act 277. (1) Subparagraph 56(1)(l)(ii) of the Income Tax Act is replaced by the following: (ii) reimbursement of costs incurred in relation to a decision of the Canada Employment Insurance Commission under the Employment Insurance Act or to an appeal of such a decision to the Social Security Tribunal, (2) Subsection (1) applies in respect of (a) appeals to the Social Security Tribunal filed, and decisions made by the Canada Employment Insurance Commission, after March 2013; and (b) appeals for which leave has been granted under section 267 or 268.
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278. (1) Subparagraph 60(o)(ii) of the Act is replaced by the following: (ii) a decision of the Canada Employment Insurance Commission under the Employment Insurance Act or to an appeal of such a decision to the Social Security Tribunal, (2) Subsection (1) applies in respect of (a) appeals to the Social Security Tribunal filed, and decisions made by the Canada Employment Insurance Commission, after March 2013; and (b) appeals for which leave has been granted under section 267 or 268.
1991, c. 30
Public Sector Compensation Act 279. Schedule I to the Public Sector Compensation Act is amended by striking out the following under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”: Office of the Umpire Bureau du juge-arbitre Pension Appeals Board Commission d’appel des pensions 280. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”: Social Security Tribunal Tribunal de la sécurité sociale Coming into Force
April 1, 2013
281. (1) Sections 225 and 227 to 229, subsection 230(1), sections 231, 232, 235 and 236, subsection 237(1) and sections 240 to 244, 246 to 249 and 279 come into force on April 1, 2013.
April 1, 2014
(2) Sections 271 and 276 come into force on April 1, 2014.
May 1, 2014
(3) Subsections 272(1) and (3) come into force on May 1, 2014.
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CONSOLIDATION OF PRIVACY CODES 2005, c. 34
Department of Human Resources and Skills Development Act 282. (1) The definition “programme” in subsection 30(1) of the French version of the Department of Human Resources and Skills Development Act is replaced by the following:
« programme » “program”
« programme » Sauf au paragraphe (2), s’entend de tout programme dont la mise en oeuvre ou l’exécution relèvent du ministre ou de la Commission; y sont assimilées les lois, politiques ou activités dont la mise en oeuvre ou l’exécution relèvent de l’un ou de l’autre. (2) Subsection 30(2) of the French version of the Act is replaced by the following:
Précision
(2) Pour l’application de la présente partie, toute mention du ministre vaut mention du ministre du Travail pour ce qui est des programmes, des lois, des politiques ou des activités dont la mise en oeuvre ou l’exécution relèvent de lui. (3) Subsection 30(3) of the Act is repealed. 283. Sections 32 and 33 of the Act are replaced by the following:
Protection of information
32. Information is privileged and shall not be made available unless (a) it is authorized under subsection 28.2(5) or by this Part, or by an agreement under section 105 or paragraph 107(1)(a) of the Canada Pension Plan or paragraph 40(1)(a) of the Old Age Security Act; or (b) it may be made available under any of paragraphs 33.1(a) to (c) of the Old Age Security Act.
Availability of information — individuals and representatives
33. (1) In addition to an individual’s right of access under section 12 of the Privacy Act, and subject to the exemptions and exclusions
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provided in that Act, information may be made available to the individual or their representative on their request in writing to the Minister. Availability of information — individuals, representatives and members of Parliament
(2) On the conditions that the Minister considers advisable, and subject to the exemptions and exclusions provided in the Privacy Act, if the information is relevant to the making of an application or the receipt of a benefit or other assistance by the individual under a program, to a division of unadjusted pensionable earnings or an assignment of a retirement pension that affects the individual or to any other matter that affects the individual under a program, it may be made available to (a) the individual; (b) the individual’s representative; or (c) a member of Parliament who is inquiring on behalf of the individual.
284. Section 35 of the Act is replaced by the following: Availability of information — federal institutions
35. (1) Information may be made available to a minister or a public officer of a prescribed federal institution for the administration or enforcement of a prescribed federal or provincial law or activity if the Minister considers it advisable and the information is made available subject to conditions that are agreed on by the Minister and the federal institution.
Secondary release of information
(2) Information obtained under subsection (1) shall not be made available to any other person or body unless the Minister considers it advisable, the information is made available for the same purpose and it is subject to conditions that are agreed on by the Minister and the federal institution. 285. Subsection 36(1) of the Act is replaced by the following:
Availability of information — provincial authorities
36. (1) Information may be made available to the government of a province, or to a public body created under the law of a province, for the administration or enforcement of a federal law or activity or of a provincial law or prescribed
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Emploi, croissance e provincial activity, if the Minister considers it advisable and the information is made available subject to conditions that are agreed on by the Minister and the government or body.
286. The Act is amended by adding the following after section 36: Information relative to Social Insurance Numbers
36.1 Despite any other Act or law, the minister or other authority charged with the administration or enforcement of an Act under which Social Insurance Numbers may be assigned and the Minister may exchange the information contained in any applications for such numbers and the numbers so assigned, and may make available any of that information or those numbers in any manner that may be authorized by that Act.
Availability of information — certain persons or bodies
36.2 (1) If the Minister considers it advisable, information may, for the purpose of the administration or enforcement of a federal law or activity or of a provincial law or prescribed provincial activity, be made available to any person or body — other than one to whom it could be made available under subsection 28.2(5) or any of sections 34 to 36.1 — on the conditions set out in an agreement between the Minister and the person or body.
Secondary release of information
(2) Information obtained under subsection (1) shall not be made available to any other person or body unless the Minister considers it advisable, the information is made available for the same purpose and it is subject to conditions that are agreed on by the Minister and the person or body that obtained the information. 287. Subsection 37(1) of the Act is replaced by the following:
Public interest
37. (1) Despite sections 33 to 36.2, information may be made available if the Minister is of the opinion that the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure or that disclosure would clearly benefit the individual to whom the information relates. 288. The portion of section 38 of the Act before paragraph (a) is replaced by the following:
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Research or statistical purposes
38. Information may be made available for research or statistical purposes to any person or body, including a person or body referred to in section 35, 36 or 36.2 of this Act or in section 105 of the Canada Pension Plan, if
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289. Paragraph 39(1)(c) of the Act is replaced by the following: (c) the results of the policy analysis, research or evaluation will be made available only in accordance with the provisions of this Part, section 105 of the Canada Pension Plan, and any agreements under which the information was obtained; 290. Subsection 42(1) of the Act is replaced by the following: Offence
42. (1) Every person or body commits an offence if they knowingly make available information that is privileged under this Part, or knowingly use or allow such information to be used, otherwise than in accordance with this Part or subsection 28.2(5) or (6), or a condition or agreement referred to (a) in subsection 33(2) or any of sections 35, 36, 36.2 and 38 of this Act; (b) in section 104.1 or 105 of the Canada Pension Plan; or (c) in section 39 of the Old Age Security Act. 291. Section 43 of the Act is amended by striking out “and” at the end of paragraph (a) and by replacing paragraph (b) with the following: (b) federal institutions, for the purposes of subsection 35(1), to which the information referred to in that subsection may be made available, and the federal or provincial laws or activities for whose administration or enforcement the information may be made available; and (c) provincial activities, for the purposes of subsections 36(1) and 36.2(1), in respect of which the information referred to in those subsections may be made available.
2011-2012 R.S., c. C-8 1997, c. 40, s. 88
Emploi, croissance e Canada Pension Plan 292. The heading before section 104 of the Canada Pension Plan is replaced by the following: AVAILABILITY OF INFORMATION
1997, c. 40, s. 88
293. (1) The portion of subsection 104(1) of the Act before the definition “administration” is replaced by the following:
Definitions
104. (1) The following definitions apply in this section and sections 104.1 and 105.
2005, c. 35, s. 45
(2) Subsection 104(3) of the Act is repealed.
1997, c. 40, s. 88; 2000, c. 34, par. 94(b)(F); 2005, c. 35, ss. 46 to 48, 49(F), 50 to 52 and subpar. 66(a)(iii), c. 38, subpar. 138(c)(vi) and (vii); 2007, c. 11, s. 11
294. Sections 104.01 to 104.11 of the Act are replaced by the following:
Availability of information within federal institutions
104.1 (1) Despite any other Act or law, any information obtained by a public officer of the Canada Revenue Agency, the Department of Finance, the Department of Public Works and Government Services or the Department of Citizenship and Immigration for the purpose of the administration of this Act may be made available to a public officer of the Department of Human Resources and Skills Development, the Canada Revenue Agency, the Department of Finance, the Department of Public Works and Government Services, the Department of Citizenship and Immigration or the Office of the Superintendent of Financial Institutions for the purpose of the administration of this Act.
Secondary release of information
(2) Information obtained under this section shall not be made available to any other person or body unless the information is made available only for the same purpose and on any conditions that the Minister may specify.
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295. The Act is amended by adding the following after section 105: OATHS, AFFIDAVITS, DECLARATIONS AND AFFIRMATIONS R.S., c. O-9 2010, c. 22, s. 3
Old Age Security Act 296. Paragraph 5(3)(b) of the Old Age Security Act is replaced by the following: (b) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Human Resources and Skills Development Act.
2010, c. 22, s. 7(3)
297. Subparagraph 19(6)(f)(ii) of the Act is replaced by the following: (ii) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Human Resources and Skills Development Act.
2010, c. 22, s. 8(1)
298. Subparagraph 21(9)(d)(ii) of the Act is replaced by the following: (ii) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Human Resources and Skills Development Act.
2011-2012 1997, c. 40, s. 102; 2000, c. 12, par. 207(1)(l), c. 34, par. 94(h)(F); 2001, c. 27, s. 267; 2003, c. 22, s. 178; 2005, c. 35, ss. 55 to 58, 59(F), 60 to 62 and par. 66(e), c. 38, par. 138(o), c. 49, s. 7; 2007, c. 11, s. 25; 2010, c. 22, s. 11
Emploi, croissance e 299. The heading before section 33 and sections 33 to 33.13 of the Act are replaced by the following:
AVAILABILITY OF INFORMATION Definitions
33. (1) The following definitions apply in this section and sections 33.1 and 39.
“administration” « mise en oeuvre »
“administration” includes the development, operation, evaluation and enforcement of policies and programs.
“federal institution” « institution fédérale »
“federal institution” means a department or any other body referred to in Schedule I, I.1, II or III to the Financial Administration Act.
“public officer” « fonctionnaire public »
“public officer” means an officer or employee of a federal institution, or a prescribed individual or a member of a prescribed class of individuals.
Interpretation
(2) The definition of a word or expression in subsection (1) does not affect its interpretation in any other provision of this Act.
Information obtained under other Acts
33.1 Despite any other Act or law, (a) the Minister of National Revenue or any person that he or she designates may make available to the Minister, or to a public officer of the Department of Human Resources and Skills Development that is designated by the Minister, a report providing information that is available to the Minister of National Revenue, if the information is necessary for the administration of this Act; (b) the Minister of Citizenship and Immigration and officers and employees of the Department of Citizenship and Immigration may make available to the Minister, or to a public officer of the Department of Human
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Resources and Skills Development, any information that was obtained in the administration of the Citizenship Act or the Immigration and Refugee Protection Act, if the information is necessary for the administration of this Act; and (c) the Commissioner of Corrections or staff members of the Correctional Service of Canada may make available to the Minister or a public officer of the Department of Human Resources and Skills Development any personal information that was obtained in the administration of the Corrections and Conditional Release Act, if the information is necessary for the administration of this Act.
Consequential Amendments R.S., c. A-1 2005, c. 35, s. 43
Access to Information Act 300. Schedule II to the Access to Information Act is amended by striking out the reference to Canada Pension Plan Régime de pensions du Canada and the corresponding reference to “subsection 104.01(1)”.
2005, c. 35, s. 44
301. Schedule II to the Act is amended by striking out the reference to Old Age Security Act Loi sur la sécurité de la vieillesse and the corresponding reference to “subsection 33.01(1)”.
R.S., c. 1 (5th Supp.)
Income Tax Act 302. Subparagraph 241(4)(e)(viii) of the Income Tax Act is replaced by the following: (viii) paragraph 33.1(a) of the Old Age Security Act,
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Coming into Force Order in council
303. Sections 282 to 302 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 8 SOCIAL INSURANCE NUMBER CARDS
2005, c. 34
Department of Human Resources and Skills Development Act 304. The Department of Human Resources and Skills Development Act is amended by adding the following after section 28: SOCIAL INSURANCE NUMBER
Registration
28.1 (1) Any person who is employed in insurable employment as defined in the Employment Insurance Act or who is a self-employed person in respect of whom Part VII.1 of that Act applies must be registered with the Commission.
Register
(2) The Commission shall maintain a register containing the names of the persons referred to in subsection (1) and any other information that it determines is necessary to accurately identify them.
Social Insurance Number
(3) The Commission shall assign to each person registered with it a number that is suitable for use as a file number or account number or for data processing purposes, and that number is the person’s Social Insurance Number for any purpose for which a Social Insurance Number is required.
Social Insurance Number card
(4) The Commission may issue to each person registered with it a card containing the person’s name and Social Insurance Number.
Social Insurance Register
28.2 (1) The Commission may maintain a Social Insurance Register containing (a) the names of persons registered in the registry referred to in section 28.1; (b) the names of persons to whom a Social Insurance Number has been assigned under the Canada Pension Plan; and
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(c) the names of persons for whom an application has been made to the Commission for a Social Insurance Number. Additional information
(2) The Social Insurance Register may, subject to any regulations that the Governor in Council may make in that regard, contain any other information in addition to the names and Social Insurance Numbers of persons that is necessary to accurately identify all persons who are registered.
Issuing number and card
(3) When a Social Insurance Number is assigned to a person by the Commission in the course of maintaining the registers mentioned in this section and section 28.1, the Commission may issue a Social Insurance Number card to that person and that number is the person’s Social Insurance Number for all purposes for which a Social Insurance Number is required.
Regulations
(4) The Commission may, with the approval of the Governor in Council, make regulations respecting (a) the registration of persons under this section and section 28.1, including applications for that registration; (b) the assignment and use of Social Insurance Numbers; (c) the issuance, custody, production and use of Social Insurance Number cards; (d) periods of validity, and the extension of those periods, of Social Insurance Numbers and Social Insurance Number cards; and (e) the replacement of Social Insurance Number cards that have been lost, destroyed or defaced.
Availability of information — social insurance registers
(5) The Commission may make available any information contained in the registers maintained under this section and section 28.1 that the Commission considers necessary for the accurate identification of persons and for the effective use by those persons of Social Insurance Numbers to any persons that the Commission thinks appropriate to accomplish that purpose.
Secondary release of information
(6) Information obtained under subsection (5) shall not be made available to a person or body unless the Commission considers it
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advisable, the information is made available for the same purpose and it is subject to conditions agreed on by the Commission and the person who obtained the information. Agreements still in force
(7) Subsection (6) does not apply to information made available in accordance with an agreement entered into by the Commission before the coming into force of this section.
New Social Insurance Number
(8) A person who has been assigned a Social Insurance Number may subsequently be assigned a new Social Insurance Number, in accordance with and subject to any regulations that the Commission may make, if (a) the number first assigned has been assigned to another person; (b) wrongful use by another person of the number first assigned has created a situation in which the person to whom the number was first assigned is or may be caused embarrassment or hardship; or (c) there are other special or unusual circumstances that would make the issuance of a new number desirable.
Voiding
(9) When a new Social Insurance Number is assigned to a person, any number previously assigned to that person becomes void.
More than one number assigned
(10) If a person has inadvertently been assigned more than one Social Insurance Number, the Commission shall determine which number is the official number and shall void the others.
Change of name
28.3 When the name of a person to whom a Social Insurance Number has been assigned changes because of marriage or otherwise, the person shall inform the Commission of their new name within 60 days after the day on which the change of name becomes effective, unless they have already so informed another authority empowered to receive that information.
Prohibitions
28.4 (1) No person (a) shall, knowing that they already have a Social Insurance Number, make an application to be again assigned a Social Insurance Number, whether the person gives information that is the same as or different from that
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contained in their previous application on which the Social Insurance Number had been assigned; (b) shall, with intent to defraud or deceive any person, present, loan or use a Social Insurance Number or Social Insurance Number card; (c) shall, without the authority of the Commission, manufacture a Social Insurance Number card or a substantially similar card, or duplicate a Social Insurance Number card, except by making a paper photocopy for record purposes only; or (d) shall, without the authority of the Commission, sell a Social Insurance Number, a Social Insurance Number card or a substantially similar card. Offence and punishment
(2) Every person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine of not more than $1,000 or to imprisonment for a term of not more than one year, or to both.
R.S., c. C-8
Canada Pension Plan 305. Subsections 98(4) to (6) of the Canada Pension Plan are replaced by the following:
Assignment of Number
(4) The Minister shall, on application by an individual to whom a Social Insurance Number has not earlier been assigned, cause a Social Insurance Number to be assigned to the individual and a Social Insurance Number Card may be issued to the individual.
Employer to maintain record of Social Insurance Number
(5) Every employer who employs an employee in pensionable employment shall, in the case of an employee to whom subsection (2) applies, within 30 days after the day on which the employee reaches 18 years of age or becomes employed in pensionable employment, whichever is the later, require the employee to inform the employer of their Social Insurance Number, and the employer shall maintain a record of the Social Insurance Number of each employee.
2011-2012 Employee to provide Social Insurance Number
Emploi, croissance e (6) Every employee who is required under subsection (5) to inform the employer of their Social Insurance Number shall do so within 30 days after the day on which they are required to do so by the employer. 306. Subsection 99(2) of the Act is replaced by the following:
Change of name
(2) When the name of an individual to whom a Social Insurance Number has been assigned changes, by reason of marriage or otherwise, the individual shall inform the Minister of their new name, unless they have already so informed another authority empowered to receive that information, (a) if the individual is employed in pensionable employment, within 60 days after the day on which the change of name becomes effective; or (b) if the individual is not employed in pensionable employment but later becomes so employed, or is required to make a contribution under this Act in respect of their self-employed earnings, within 60 days after the day on which the individual becomes so employed or after the first day on or before which they are required under section 33 to pay any amount as or on account of the contribution required to be made by them in respect of those earnings, as the case may be.
1996, c. 23
Employment Insurance Act 307. Subsection 77(1) of the Employment Insurance Act is amended by adding the following after paragraph (d): (d.1) the costs of administering sections 28.1 and 28.2 of the Department of Human Resources and Skills Development Act; 308. Sections 138 to 141 of the Act are replaced by the following:
Obligation
138. Every person employed in insurable employment, and every self-employed person in respect of whom Part VII.1 applies, must have a Social Insurance Number that has been assigned to that person under an Act of Parliament.
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Change of name
139. When the name of a person to whom a Social Insurance Number has been assigned changes because of marriage or otherwise, the person shall inform the Commission of their new name within 60 days after the day on which the change of name becomes effective, unless they have already so informed another authority empowered to receive that information.
Regulations
140. For the purposes of sections 138 and 139, the Commission may, with the approval of the Governor in Council, make regulations respecting
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(a) applications for a Social Insurance Number; (b) the assignment and use of Social Insurance Numbers; (c) requirements that must be met by persons who have been assigned Social Insurance Numbers; and (d) requirements that must be met by employers. Consequential Amendments R.S., c. C-24
Canadian Wheat Board Act
1998, c. 17, s. 28(E)
309. Subsections 67(3) and (4) of the Canadian Wheat Board Act are replaced by the following:
Assignment of Number
(3) The Corporation shall, on application by a producer, other than a corporation, to whom a Social Insurance Number has not earlier been assigned, cause a Social Insurance Number to be assigned to that producer.
Change of name
(4) When, at any time, the name of a producer to whom a Social Insurance Number has been assigned changes, by reason of marriage or otherwise, that producer shall inform the Corporation within 60 days after the day on which the change of name becomes effective, unless the producer has already so informed another authority empowered to receive that information.
2011-2012 1991, c. 22
Emploi, croissance e Farm Income Protection Act 310. Subsections 10(2) and (3) of the Farm Income Protection Act are replaced by the following:
Assignment of number
(2) The Minister shall, on application by a producer to whom a Social Insurance Number has not been assigned, cause a Social Insurance Number to be assigned to the producer.
Change of name
(3) When, at any time, the name of a producer participating directly or indirectly as part of a corporation or other entity in a program under an agreement and to whom a Social Insurance Number has been assigned changes, by reason of marriage or otherwise, that producer shall inform the Minister of their new name within 60 days after the day on which the change of name becomes effective, unless the producer has already so informed another authority empowered to receive that information.
2001, c. 27
Immigration and Refugee Protection Act 311. Section 90 of the Immigration and Refugee Protection Act and the heading before it are replaced by the following: Social Insurance Numbers
Minister directs special numbers to be issued
90. The Minister may direct the Canada Employment Insurance Commission to assign to persons, other than Canadian citizens or permanent residents, Social Insurance Numbers identifying those persons as persons who may be required under this Act to obtain authorization to work in Canada.
2005, c. 47, s. 1
Wage Earner Protection Program Act
2005, c. 47, s. 140(2)
312. Section 27 of the Wage Earner Protection Program Act is replaced by the following:
Information must be made available to Minister
27. Personal information relating to an applicant that is collected or obtained by the Canada Employment Insurance Commission must, if requested by the Minister, be made
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available to the Minister to determine the applicant’s eligibility to receive a payment under this Act. Coordinating Amendment 2011, c. 25, Part 2
313. Section 309 of this Act is repealed if the day on which this Act receives royal assent is after August 1, 2012. Coming into Force
Order in council
314. Sections 304 to 312 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 9 AMENDMENTS RELATING TO THE PARKS CANADA AGENCY
1998, c. 31
Parks Canada Agency Act 315. The Parks Canada Agency Act is amended by adding the following after section 6:
Other Acts and regulations
6.1 (1) If considerations of geography make it impractical for the body or minister responsible for administering and enforcing an Act listed in Part 3 of the schedule — or any regulation made under that Act — or any regulation listed in Part 4 of the schedule to do so in a part of Canada, the Agency may enter into an agreement with that body or minister under which the Agency may assist that body or minister in the administration and enforcement of the Act or regulation in that part of Canada.
Park wardens
(2) For the purposes of an agreement entered into under subsection (1), persons designated as park wardens under section 18 of the Canada National Parks Act may, with the Chief Executive Officer’s approval, (a) be designated under the Acts listed in Part 3 of the schedule to exercise powers set out in the designation in relation to the administration and enforcement of those Acts and any regulations made under them; and
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Emploi, croissance e (b) be designated under the Acts under which the regulations listed in Part 4 of the schedule are made to exercise powers set out in the designation in relation to the administration and enforcement of those regulations.
Meaning of “part of Canada”
(3) In this section, “part of Canada” means a part of Canada that is outside national parks, national historic sites, national marine conservation areas and other protected heritage areas.
316. Section 7 of the Act is renumbered as subsection 7(1) and is amended by adding the following: Additions to or deletions from schedule
(2) For the purposes of section 6.1, the Governor in Council may, by order, add to or delete from the schedule any Act of Parliament or regulation made under an Act of Parliament, or part of such an Act or regulation, that relates to the environment. 317. The portion of subsection 21(3) of the Act before paragraph (a) is replaced by the following:
Payments out of New Parks and Historic Sites Account
(3) Despite any other Act of Parliament, amounts may be paid out of the New Parks and Historic Sites Account for the following purposes:
2002, c. 18, s. 39.
318. Section 31 of the Act is replaced by the following:
Report — heritage areas and programs
31. At least every five years, the Chief Executive Officer shall provide the Minister with a report, to be tabled in each House of Parliament, on the state of national parks, national historic sites, national marine conservation areas and other protected heritage areas and heritage protection programs, and on the Agency’s performance in carrying out its responsibilities under section 6. 319. Subsection 32(2) of the Act is replaced by the following:
Review of management plans by Minister
(2) The Minister shall review the management plan for each national historic site or other protected heritage area at least every 10 years and shall cause any amendments to the plan to be tabled in each House of Parliament.
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320. Sections 33 and 34 of the Act are repealed. 321. Section 36 of the Act and the heading before it are repealed. 322. The schedule to the Act is amended by replacing the references after the heading “SCHEDULE” with the following: (Sections 6, 6.1 and 7) 323. The schedule to the Act is amended by adding the following after Part 2: PART 3 ACTS PART 4 REGULATIONS 2000, c. 32
Canada National Parks Act 324. Subsection 11(2) of the Canada National Parks Act is replaced by the following:
Review of management plans by Minister
(2) The Minister shall review the management plan for each park at least every 10 years and shall cause any amendments to the plan to be tabled in each House of Parliament.
2002, c. 18
Canada National Marine Conservation Areas Act 325. Subsection 9(2) of the Canada National Marine Conservation Areas Act is replaced by the following:
Review of management plans by Minister
(2) The Minister shall review the management plan for each marine conservation area at least every 10 years and shall cause any amendments to the plan to be tabled in each House of Parliament. DIVISION 10 FINANCIAL INSTITUTIONS
1991, c. 45
Trust and Loan Companies Act 326. Section 164 of the Trust and Loan Companies Act is amended by adding the following after paragraph (f):
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(f.1) a person who is an officer, director, employee or agent of — or any other person nominated by or acting on behalf of — an eligible agent within the meaning of section 374.1; 1994, c. 47, s. 205
327. Section 374.1 of the Act is replaced by the following:
Definitions
374.1 The following definitions apply in this Part.
“agent” « mandataire »
“agent” means (a) in relation to Her Majesty in right of Canada or of a province, any agent of Her Majesty in either of those rights, and includes a municipal or public body empowered to perform a function of government in Canada or any entity empowered to perform a function or duty on behalf of Her Majesty in either of those rights, but does not include (i) an official or entity performing a function or duty in connection with the administration or management of the estate or property of a natural person, (ii) an official or entity performing a function or duty in connection with the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons, or moneys derived from such a fund, or (iii) the trustee of any trust for the administration of a fund to which Her Majesty in either of those rights contributes and of which an official or entity that is an agent of Her Majesty in either of those rights is a trustee; and (b) in relation to the government of a foreign country or any political subdivision thereof, a person empowered to perform a function or duty on behalf of the government of the foreign country or political subdivision, other than a function or duty in connection with the administration or management of the estate or property of a natural person.
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“eligible agent” « mandataire admissible »
“eligible agent” means an agent or agency of Her Majesty in right of Canada or of a province or an agent or agency of a government of a foreign country or any political subdivision of a foreign country
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(a) whose mandate is publicly available; (b) that controls the assets of an investment fund in a manner intended to maximize longterm risk-adjusted returns and that fund is (i) one to which, as the case may be, Her Majesty in right of Canada or of a province or the government of a foreign country or political subdivision contributes, or (ii) established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons; and (c) whose decisions with respect to the assets of the fund referred to in paragraph (b) are not influenced in any significant way by, as the case may be, Her Majesty in right of Canada or of the province or the government of the foreign country or the political subdivision.
Associates
374.2 (1) For the purpose of determining ownership of a company by an eligible agent, where two persons, at least one of whom is an eligible agent, are associated with each other, those persons are deemed to be a single eligible agent who beneficially owns the aggregate number of shares of the company beneficially owned by them.
Associates
(2) For the purposes of subsection (1), a person is associated with another person if (a) each person is an agent or agency of Her Majesty in right of Canada; (b) each person is an agent or agency of Her Majesty in right of the same province; (c) each person is an agent or agency of a government of the same foreign country or a political subdivision of the same foreign country;
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(d) one person is Her Majesty in right of Canada and the other person is an agent or agency of Her Majesty in that right; (e) one person is Her Majesty in right of a province and the other person is an agent or agency of Her Majesty in right of that province; or (f) one person is a government of a foreign country or any political subdivision of a foreign country and the other person is its agent or agency.
328. Section 396 of the Act is amended by adding the following after subsection (2): Exception
(3) Despite subsection (1), a company may, with the Minister’s approval, record in its securities register the issue of any share of the company to an eligible agent.
Ministerial approval
(4) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 388(1)(a) to (g). 329. Section 399 of the Act is amended by adding the following after subsection (4):
Exception — eligible agent
1991, c. 46
(5) Subsection (2) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 396(3). Bank Act 330. Section 160 of the Bank Act is amended by adding the following after paragraph (f): (f.1) a person who is an officer, director, employee or agent of — or any other person nominated by or acting on behalf of — an eligible agent within the meaning of subsection 370(1);
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331. Subsection 370(1) of the Act is amended by adding the following in alphabetical order: “eligible agent” « mandataire admissible »
“eligible agent” means an agent or agency of Her Majesty in right of Canada or of a province or an agent or agency of a government of a foreign country or any political subdivision of a foreign country (a) whose mandate is publicly available; (b) that controls the assets of an investment fund in a manner intended to maximize longterm risk-adjusted returns and that fund is (i) one to which, as the case may be, Her Majesty in right of Canada or of a province or the government of a foreign country or political subdivision contributes, or (ii) established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons; and (c) whose decisions with respect to the assets of the fund referred to in paragraph (b) are not influenced in any significant way by, as the case may be, Her Majesty in right of Canada or of the province or the government of the foreign country or the political subdivision.
332. The Act is amended by adding the following after section 371: Associates
371.1 (1) Despite section 371, for the purpose of determining ownership of a bank by an eligible agent, where two persons, at least one of whom is an eligible agent, are associated with each other, those persons are deemed to be a single eligible agent who beneficially owns the aggregate number of shares of the bank beneficially owned by them.
Associates
(2) For the purposes of subsection (1), a person is associated with another person if (a) each person is an agent or agency of Her Majesty in right of Canada;
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Emploi, croissance e (b) each person is an agent or agency of Her Majesty in right of the same province; (c) each person is an agent or agency of a government of the same foreign country or a political subdivision of the same foreign country; (d) one person is Her Majesty in right of Canada and the other person is an agent or agency of Her Majesty in that right; (e) one person is Her Majesty in right of a province and the other person is an agent or agency of Her Majesty in right of that province; or (f) one person is a government of a foreign country or any political subdivision of a foreign country and the other person is its agent or agency. 333. Section 401.2 of the Act is amended by adding the following after subsection (2):
Exception
(3) Despite subsection (1), a bank may, with the Minister’s approval, record in its securities register the issue of any share of the bank to an eligible agent.
Ministerial approval
(4) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 396(1)(a) to (h). 334. Section 401.3 of the Act is amended by adding the following after subsection (2):
Exception — eligible agent
(3) Subsection (1) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 401.2(3). 335. Section 750 of the Act is amended by adding the following after paragraph (f): (f.1) a person who is an officer, director, employee or agent of — or any other person nominated by or acting on behalf of — an eligible agent within the meaning of subsection 370(1);
2001, c. 9, s. 183
336. Section 873 of the Act is replaced by the following:
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Sections 370 to 371.1 apply
873. Sections 370 to 371.1 apply in respect of bank holding companies, except that references to “bank” in sections 371 and 371.1 are to be read as references to “bank holding company”.
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337. Section 913 of the Act is amended by adding the following after subsection (2): Exception
(3) Despite subsection (1), a bank holding company may, with the Minister’s approval, record in its securities register the issue of any share of the bank holding company to an eligible agent.
Ministerial approval
(4) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 906(1)(a) to (g). 338. Section 914 of the Act is amended by adding the following after subsection (2):
Exception — eligible agent
1991, c. 47
(3) Subsection (1) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 913(3). Insurance Companies Act 339. Subsection 168(1) of the Insurance Companies Act is amended by adding the following after paragraph (f): (f.1) a person who is an officer, director, employee or agent of — or any other person nominated by or acting on behalf of — an eligible agent within the meaning of section 406.1;
1994, c. 47, s. 122
340. Section 406.1 of the Act is replaced by the following:
Definitions
406.1 The following definitions apply in this Part.
“agent” « mandataire »
“agent” means (a) in relation to Her Majesty in right of Canada or of a province, any agent of Her Majesty in either of those rights, and includes a municipal or public body empowered to perform a function of government in Canada
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Emploi, croissance e or any entity empowered to perform a function or duty on behalf of Her Majesty in either of those rights but does not include (i) an official or entity performing a function or duty in connection with the administration or management of the estate or property of a natural person, (ii) an official or entity performing a function or duty in connection with the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons, or moneys derived from such a fund, or (iii) the trustee of any trust for the administration of a fund to which Her Majesty in either of those rights contributes and of which an official or entity that is an agent of Her Majesty in either of those rights is a trustee; and (b) in relation to the government of a foreign country or any political subdivision thereof, a person empowered to perform a function or duty on behalf of the government of the foreign country or political subdivision, other than a function or duty in connection with the administration or management of the estate or property of a natural person.
“eligible agent” « mandataire admissible »
“eligible agent” means an agent or agency of Her Majesty in right of Canada or of a province or an agent or agency of a government of a foreign country or any political subdivision of a foreign country (a) whose mandate is publicly available; (b) that controls the assets of an investment fund in a manner intended to maximize longterm risk-adjusted returns and that fund is (i) one to which, as the case may be, Her Majesty in right of Canada or of a province or the government of a foreign country or political subdivision contributes, or (ii) established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons; and
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(c) whose decisions with respect to the assets of the fund referred to in paragraph (b) are not influenced in any significant way by, as the case may be, Her Majesty in right of Canada or of the province or the government of the foreign country or the political subdivision.
Associates
406.2 (1) For the purpose of determining ownership of a company by an eligible agent, where two persons, at least one of whom is an eligible agent, are associated with each other, those persons are deemed to be a single eligible agent who beneficially owns the aggregate number of shares of the company beneficially owned by them.
Associates
(2) For the purposes of subsection (1), a person is associated with another person if (a) each person is an agent or agency of Her Majesty in right of Canada; (b) each person is an agent or agency of Her Majesty in right of the same province; (c) each person is an agent or agency of a government of the same foreign country or a political subdivision of the same foreign country; (d) one person is Her Majesty in right of Canada and the other person is an agent or agency of Her Majesty in that right; (e) one person is Her Majesty in right of a province and the other person is an agent or agency of Her Majesty in right of that province; or (f) one person is a government of a foreign country or any political subdivision of a foreign country and the other person is its agent or agency. 341. Section 428 of the Act is amended by adding the following after subsection (2):
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Exception
(3) Despite subsection (1), a company may, with the Minister’s approval, record in its securities register the issue of any share of the company to an eligible agent.
Ministerial approval
(4) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 420(1)(a) to (h). 342. Section 430 of the Act is amended by adding the following after subsection (4):
Exception — eligible agent
(5) Subsection (2) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 428(3).
2001, c. 9, s. 415(1)
343. Subsection 432(1) of the English version of the Act is replaced by the following:
Disposition of shareholdings
432. (1) If, with respect to any company, a person contravenes subsection 407(1), (4), (9), (11) or (15) or section 407.03, 407.1 or 407.2 or fails to comply with an undertaking referred to in subsection 416(2) or with any term or condition imposed under section 421, the Minister may, if the Minister considers it in the public interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order. 344. Section 797 of the Act is amended by adding the following after paragraph (f): (f.1) a person who is an officer, director, employee or agent of — or any other person nominated by or acting on behalf of — an eligible agent within the meaning of section 406.1;
2001, c. 9, s. 465
345. Section 926 of the Act is replaced by the following:
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Sections 406.1 and 406.2 apply
926. Sections 406.1 and 406.2 apply in respect of insurance holding companies, except that references to “company” in that section 406.2 are to be read as references to “insurance holding company”.
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346. Section 954 of the Act is amended by adding the following after subsection (2): Exception
(3) Despite subsection (1), an insurance holding company may, with the Minister’s approval, record in its securities register the issue of any share of the insurance holding company to an eligible agent.
Ministerial approval
(4) The Minister, in determining whether to grant the approval referred to in subsection (3), shall take into account all matters that he or she considers relevant, including those set out in paragraphs 947(1)(a) to (g). 347. Section 955 of the Act is renumbered as subsection 955(1) and is amended by adding the following:
Exception — eligible agent
(2) Subsection (1) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 954(3). Coordinating Amendments
2010, c. 12
348. (1) In this section, “other Act” means the Jobs and Economic Growth Act. (2) On the first day on which both subsection 401.3(3) of the Bank Act, as enacted by section 2072 of the other Act, and subsection 401.3(3) of the Bank Act, as enacted by section 334 of this Act, are in force, subsection 401.3(3) of the Bank Act, as enacted by section 334 of this Act, is renumbered as subsection 401.3(4) and is repositioned accordingly if required.
2012, c. 5
349. (1) In this section, “other Act” means the Financial System Review Act. (2) If section 157 of the other Act comes into force before section 347 of this Act, then (a) that section 347 is deemed never to have come into force and is repealed; and
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Emploi, croissance e (b) section 955 of the Insurance Companies Act is amended by adding the following after subsection (2):
Exception — eligible agent
(3) Subsection (1) does not apply in respect of the exercise of voting rights attached to any share referred to in subsection 954(3). (3) If section 347 of this Act comes into force before section 157 of the other Act, then that section 157 is replaced by the following: 157. Section 955 is amended by adding the following after subsection (2):
Exception
(3) Subsection (1) does not apply to a foreign institution that is controlled by the government of a foreign country or any political subdivision of a foreign country, or by any agent or agency of a foreign government, if the shares referred to in subsection (1) are beneficially owned by the foreign institution or by an entity controlled by the foreign institution. (4) If section 157 of the other Act comes into force on the same day as section 347 of this Act, then that section 157 is deemed to have come into force before that section 347 and subsection (2) applies as a consequence. DIVISION 11 CANADA MORTGAGE AND HOUSING CORPORATION
R.S., c. N-11
National Housing Act
R.S., c. 25 (4th Supp.), s. 1(3)
350. The definition “regulation” in section 2 of the National Housing Act is repealed.
1999, c. 27, s. 3
351. Section 7 of the Act is replaced by the following:
Definitions
7. The following definitions apply in this Part.
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“Chairperson of the Canada Deposit Insurance Corporation” « président de la Société d’assurancedépôts du Canada »
“Chairperson of the Canada Deposit Insurance Corporation” means the Chairperson of the Canada Deposit Insurance Corporation appointed under section 6 of the Canada Deposit Insurance Corporation Act.
“Commissioner of the Financial Consumer Agency of Canada” « commissaire de l’Agence de la consommation en matière financière du Canada »
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“Commissioner of the Financial Consumer Agency of Canada” means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act.
“Governor of the Bank of Canada” « gouverneur de la Banque du Canada »
“Governor of the Bank of Canada” means the Governor of the Bank of Canada appointed under section 6 of the Bank of Canada Act.
“housing loan” « prêt à l’habitation »
“housing loan” means a loan that (a) relates to a housing project; (b) is secured at least in part by security on or affecting a housing project or by an agreement relating to the use, occupancy or disposal of a housing project; (c) is made for the purpose of acquiring a financial interest in a person who, directly or indirectly, owns, leases or operates a housing project; or (d) is made for the purpose of refinancing a debt that the Corporation is of the opinion relates to a housing project or to a financial interest referred to in paragraph (c).
“Superintendent” « surintendant »
Objects
“Superintendent” means the Superintendent of Financial Institutions appointed under section 5 of the Office of the Superintendent of Financial Institutions Act.
7.1 The Corporation has the following objects in carrying on any activities under this Part or Part I.1: (a) to promote the efficient functioning and competitiveness of the housing finance market;
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Emploi, croissance e (b) to promote and contribute to the stability of the financial system, including the housing market; and (c) to have due regard to the Corporation’s exposure to loss.
1999, c. 27, s. 3
352. Section 14 of the Act is replaced by the following:
Guarantee
14. (1) The Corporation may — with the Minister of Finance’s approval and on any terms or conditions that are specified by him or her — guarantee payment of any or all of the principal or interest, or both, in respect of securities issued on the basis of housing loans. The terms and conditions may, among others, relate to the amount and price of the guarantee, the characteristics of the securities to be guaranteed and the manner in which the securities are to be issued.
Regulations — Governor in Council
(2) The Governor in Council may, on the Minister of Finance’s recommendation, make regulations respecting the characteristics of those who may issue or sell the securities.
Regulations — Minister of Finance
(3) The Minister of Finance may make regulations respecting the characteristics of the housing loans.
Compensation
(4) The Minister of Finance may fix a fee to be paid by the Corporation to the Receiver General to compensate Her Majesty for Her exposure to the risks arising from a guarantee referred to in subsection (1). That Minister shall notify the Corporation in writing of the fee. 353. The Act is amended by adding the following after section 14:
Prohibition
14.1 It is prohibited for the Corporation to guarantee payment of any or all of the principal or interest, or both, in respect of a covered bond as defined in section 21.5.
1999, c. 27, s. 3
354. Section 15 of the Act is replaced by the following:
Maximum total
15. (1) Despite anything in this Act other than subsection (2), the total of the outstanding guaranteed amounts of principal for all issues of securities in respect of which guarantees that
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have been given under section 14 are in force may not exceed the total amount provided for in section 11. Maximum total — other Acts
(2) The total of the outstanding guaranteed amounts of principal may not exceed the amount authorized by Parliament under an appropriation Act or other Act of Parliament. 355. The portion of section 19 of the Act before paragraph (a) is replaced by the following:
Terms and conditions
19. Subject to any regulations made under this Part, the Corporation may 356. The Act is amended by adding the following after section 21.4: PART I.1 COVERED BONDS DEFINITIONS
Definitions
“affiliate” « groupe »
21.5 The following definitions apply in this Part. “affiliate” means an affiliate as defined in section 2 of the Bank Act.
“covered bond” « obligation sécurisée »
“covered bond” means, except in paragraph 21.53(b), a debt obligation in relation to which the principal and interest owing are guaranteed to be paid from the loans or other assets held by a guarantor entity.
“covered bond collateral” « garantie d’obligations sécurisées »
“covered bond collateral” means the loans or other assets that secure the payment of principal, interest and any other amounts owing in relation to the covered bonds that are issued under a registered program.
“derivatives agreement” « contrat dérivé »
“guarantor entity” « societé garante »
“derivatives agreement” means a financial agreement whose obligations are derived from, referenced to, or based on, one or more underlying reference items. “guarantor entity” means an entity that is created and organized for the principal purpose of holding loans or other assets as the covered bond collateral for a registered program with the intention of legally isolating those loans or other assets from the registered issuer.
2011-2012 “registered issuer” « émetteur inscrit »
“registered program” « programme inscrit »
“registry” « registre »
Emploi, croissance e “registered issuer” means an institution that is registered in the registry under section 21.53. “registered program” means a program that is registered in the registry under section 21.55. “registry” means the registry established under section 21.51.
ESTABLISHMENT OF LEGAL FRAMEWORK Registry
21.51 (1) The Corporation must establish and maintain a registry containing (a) the names and business addresses of registered issuers; (b) a list of registered programs and information relating to those programs, including the name of each essential service provider to the guarantor entity; (c) a list of registered issuers whose right to issue covered bonds is suspended under subsection 21.62(1) and the reasons for the suspension; (d) any other information that, in the Corporation’s opinion, is necessary; and (e) any prescribed information.
Accessible to public
(2) The Corporation must make the registry accessible to the public through the Internet and by any other means that it considers appropriate.
Application for registration of issuers
21.52 (1) Any of the following institutions may apply for registration as a registered issuer: (a) a federal financial institution as defined in section 2 of the Bank Act; and (b) a cooperative credit society that is incorporated and regulated by or under an Act of the legislature of a province.
Requirements
(2) The applicant must provide the Corporation, in the time, manner and form required by the Corporation, with the required fees and any information that, in the Corporation’s opinion, is required for the purposes of the registration.
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Registration of issuers
21.53 The Corporation may register an institution in the registry if
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(a) in the Corporation’s opinion, all of the requirements under this Part have been met; and (b) the institution gives an undertaking to not issue any debt obligation that is commonly known as a covered bond except under a registered program. Application for registration of program
21.54 (1) A registered issuer may apply for registration of a program under which covered bonds are to be issued.
Requirements
(2) The registered issuer must provide the Corporation, in the time, manner and form required by the Corporation, with the required fees and the information referred to in subsection (3).
Contents of program
(3) An application must contain a complete description of the program, including the following information: (a) the name of the entity that will act as the guarantor entity and the type of entity; (b) a description of the loans or other assets to be held as the covered bond collateral and their value; (c) the minimum and maximum ratio required under the program of the value of the covered bonds to be issued to the value of the loans or other assets to be held as covered bond collateral; (d) a description of the contractual relationships between the registered issuer and the entity that will act as the guarantor entity; (e) the names of all essential service providers to the entity that will act as the guarantor entity, a description of the services to be provided and, if a registered issuer or one of its affiliates is acting as a service provider, the circumstances in which it must be replaced; (f) the names of any parties to a derivatives agreement with the entity that will act as the guarantor entity; and (g) any other information that, in the Corporation’s opinion, is required.
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Registration of programs
21.55 The Corporation may register the program in the registry if, in the Corporation’s opinion, all of the requirements under this Part have been met.
Application — issuer or program
21.56 (1) The Corporation must notify the applicant in writing of its decision with respect to the application to register the applicant or the program.
Withdrawal of application
(2) An applicant may withdraw the application for registration by so notifying the Corporation in writing at any time before the day on which the applicant receives notice of the Corporation’s decision.
Deregistration of program
21.57 (1) The Corporation may deregister a registered program on the request of the registered issuer only if there are no covered bonds outstanding under the program.
Deregistration of issuer
(2) The Corporation may deregister a registered issuer on the request of the issuer only if the issuer has no registered programs.
Conditions and restrictions
21.58 The Corporation may, at any time, establish conditions or restrictions applicable to registered issuers and registered programs.
Fees
21.59 (1) The Corporation may establish fees for registration applications under subsection 21.52(1) and subsection 21.54(1) as well as other fees to be paid by registered issuers.
Limitation
(2) The fees must be established, in accordance with any regulations, to be commensurate with the costs incurred by the Corporation in exercising its powers and performing its duties and functions under this Part.
Eligible assets
21.6 (1) Only the following assets may be held as covered bond collateral: (a) loans made on the security of residential property that is located in Canada and consists of not more than four residential units; or (b) any prescribed assets.
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Substitute assets
(2) Despite subsection (1), covered bond collateral may include securities that are issued by the Government of Canada and any prescribed assets.
Maximum ratio
(3) Unless regulations have been made under paragraph 21.66(g), the value of the assets described in subsection (2) must not exceed 10 per cent of the total value of the loans or other assets held as covered bond collateral.
Exceptions
(4) Despite subsections (1) and (2), the following loans must not be held as covered bond collateral:
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(a) a loan made on the security of residential property if the loan is insured by the Corporation; (b) a loan made on the security of residential property if the loan is insured by the Canada Guaranty Mortgage Insurance Company, the Genworth Financial Mortgage Insurance Company Canada, the PMI Mortgage Insurance Company Canada or any successor to any of those companies; and (c) a loan made on the security of residential property if the amount of the loan, together with the amount then outstanding of any mortgage or hypothecary loan having an equal or prior claim against the property, exceeds 80 per cent of the value of the property at the time of the loan. Confidentiality
21.61 (1) Subject to any other provision of this Part or Part I, any information that is collected by the Corporation under this Part is confidential and must be treated accordingly.
Use of information
(2) Information that is collected by the Corporation under this Part must be used by the Corporation only for the purpose for which it is collected.
Suspension
21.62 (1) The Corporation may suspend the right of a registered issuer to issue further covered bonds under a registered program.
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(2) In the case where the Corporation decides to suspend that right, it must provide the registered issuer with a written notice of and the reasons for the intended suspension, no later than 30 days before the day on which the suspension is to take effect.
Copies to regulator
(3) The Corporation must provide a copy of the notice and reasons to, (a) in the case of a federal financial institution as defined in section 2 of the Bank Act, the Superintendent of Financial Institutions appointed under subsection 5(1) of the Office of the Superintendent of Financial Institutions Act; and (b) in the case of a cooperative credit society incorporated and regulated by or under an Act of the legislature of a province, the body that regulates that society.
Revoking suspension
(4) The sion and, registered revocation
Corporation may revoke a suspenin that case, must provide the issuer with written notice of the of the suspension.
BANKRUPTCY AND INSOLVENCY PROTECTION Covered bonds
21.63 Nothing in any law of Canada or a province relating to bankruptcy or insolvency, or any order of a court made in relation to a reorganization, arrangement or receivership involving bankruptcy or insolvency, prevents or prohibits the following actions from being taken in accordance with the provisions of contracts relating to covered bonds that are issued under a registered program: (a) the making of any payments, including a payment to a registered issuer; (b) the netting or setting off or compensation of obligations; (c) any dealing with covered bond collateral, including (i) the sale or foreclosure or, in Quebec, the surrender of covered bond collateral, and
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(ii) the setting off or compensation of covered bond collateral or the application of the proceeds or value of covered bond collateral; and (d) the termination of those contracts. Transfer not voidable and not subject to remedies
21.64 Despite anything in any law of Canada or a province relating to bankruptcy or insolvency, or any order of a court made in relation to a reorganization, arrangement or receivership involving bankruptcy or insolvency, the transfer of loans or other assets to a guarantor entity — to be held as covered bond collateral — by a registered issuer, any of its affiliates or any prescribed entity (a) is effective against every person; (b) is not voidable or, in Quebec, annullable; (c) is not subject to any other remedies available to creditors of the registered issuer; and (d) does not constitute a fraudulent conveyance, unjust preference or other reviewable transaction.
Non-application
21.65 Sections 21.63 and 21.64 do not apply to contracts relating to covered bonds that are issued under a registered program, nor to the transfer of loans or other assets to a guarantor entity to be held as covered bond collateral for those covered bonds, if those covered bonds are issued by a registered issuer during the period in which its right to issue covered bonds has been suspended under section 21.62. REGULATIONS
Regulations
21.66 The Minister of Finance may make regulations for carrying out the purposes and provisions of this Part, including regulations (a) excluding, from the definition “covered bond”, certain debt obligations; (b) excluding, from the definition “covered bond collateral”, certain payments from the guarantor entity to the registered issuer; (c) establishing requirements that an institution, or a program under which covered bonds are to be issued, must meet to be registered in the registry;
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Emploi, croissance e (d) respecting applications made under section 21.52 or 21.54; (e) respecting cost recovery for the purposes of section 21.59; (f) establishing additional requirements with respect to the loans referred to in paragraph 21.6(1)(a); (g) respecting the circumstances in which guarantor entities may hold the assets described in subsection 21.6(2) and, according to each circumstance, the maximum ratio of the value of those assets relative to the total value of the loans or other assets being held as covered bond collateral; and (h) prescribing anything that is to be prescribed under this Part.
2011, c. 15
Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act 357. Section 23 of the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act is amended by replacing the subsection 8.1(1) that it enacts with the following:
Regulations — Minister of Finance
8.1 (1) The Minister of Finance may, after consulting the Governor of the Bank of Canada and the Superintendent, make regulations respecting classes of housing loans and the criteria to be met by loans in each of those classes in order for the Corporation to be able to provide insurance against risks relating to those loans. 358. Section 24 of the Act is amended by replacing the section 21.1 that it enacts with the following:
Obligation to retain information, books and records
21.1 (1) The Corporation shall keep and retain books and records, and retain information, in respect of its activities under this Part and Part I.1, including any books, records or information that are prescribed by regulation.
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Obligation to provide information or copies
(2) At the request of the Minister of Finance, the Corporation shall, without delay, provide that Minister with any information or copies of any books or records that it is required to retain.
Power to disclose
(3) The Minister of Finance may disclose to the Superintendent, the Governor of the Bank of Canada, the Chairperson of the Canada Deposit Insurance Corporation and the Commissioner of the Financial Consumer Agency of Canada any information or copies of any books or records received under subsection (2).
Public information
(4) The Corporation shall make available to the public the books, records and information that are prescribed by regulation.
Regulations
(5) The Governor in Council may, on the Minister of Finance’s recommendation, make regulations respecting the manner in which books and records are to be kept and retained, the manner in which information is to be retained and the manner in which books, records and information are to be made available to the public.
Examination or inquiry
21.2 (1) The Superintendent, from time to time but at least once in each calendar year, shall make or cause to be made any examination or inquiry that the Superintendent considers to be necessary or expedient to determine whether the Corporation is carrying on any or all of its activities under this Part and Part I.1 in a safe and sound manner, including whether it is carrying on those activities with due regard to its exposure to loss.
Access to records
(2) For the purposes of the examination or inquiry, the Superintendent or a person acting under his or her direction
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(a) has a right of access to any books or records that are held by or on behalf of the Corporation in respect of its activities; and (b) may require the Corporation’s directors, officers and auditors to provide information and explanations to the Superintendent, to the extent that they are reasonably able to do so, in respect of the Corporation’s activities.
2011-2012 Report to Corporation and Ministers
Emploi, croissance e (3) The Superintendent shall report the results of the examination or inquiry, including any recommendations, to (a) the Corporation’s board of directors; and (b) the Minister and the Minister of Finance.
Proposal in corporate plan
(4) The Corporation’s corporate plan that is required under section 122 of the Financial Administration Act must contain a proposal indicating how the Corporation will address the recommendations.
Obligation to provide information or copies
(5) At the request of the Superintendent, the Corporation shall, without delay, provide him or her with any information or copies of any books or records that it is required to retain in respect of its activities under this Part and Part I.1.
Confidentiality
(6) Subject to any other provision of this Act, all information in respect of the Corporation’s activities under this Part and Part I.1, including regarding a person dealing with the Corporation, that is obtained by the Superintendent or a person acting under his or her direction is confidential and shall be treated accordingly.
Power to disclose
(7) The Superintendent may disclose any information or copies of any books or records that are received under this Part or Part I.1 to (a) the Minister and the Minister of Finance; (b) the Governor of the Bank of Canada; (c) the Chairperson of the Canada Deposit Insurance Corporation; and (d) the Commissioner of the Financial Consumer Agency of Canada.
Superintendent to ascertain expenses
21.3 (1) The Superintendent shall, before December 31 in each year, ascertain the total amount of expenses incurred during the preceding fiscal year in connection with the administration of section 21.2.
Obligation to pay
(2) The Corporation shall pay the amount within 30 days after the day on which the Superintendent notifies it in writing of the amount.
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Fiscal year
(3) For the purpose of subsection (1), the fiscal year is the period beginning on April 1 in one year and ending on March 31 in the next year.
Regulations
21.4 The Governor in Council may, on the Minister of Finance’s recommendation, make regulations respecting the Corporation’s activities under this Part, including regulations
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(a) respecting the conditions and limitations to which those activities are subject; (b) respecting the terms and conditions on which and manner in which the Corporation may exercise its powers under this Part; and (c) prescribing anything that is to be prescribed by this Part. Coming into force
359. Despite section 26 of the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act, sections 22 to 24 of that Act come into force on the day on which this Act receives royal assent.
R.S., c. C-7
Canada Mortgage and Housing Corporation Act
1999, c. 27, s. 25(1); 2006, c. 9, par. 233(a)(E) Board of Directors
360. Subsection 6(1) of the Canada Mortgage and Housing Corporation Act is replaced by the following: 6. (1) The Board of Directors shall consist of (a) the Chairperson; (b) the President; (c) the Minister’s Deputy Minister; (d) the Deputy Minister of Finance; and (e) eight other directors.
Exception
(1.1) Subsections (4) to (6) do not apply to the directors referred to in paragraphs (1)(c) and (d).
Alternate director
(1.2) A director referred to in paragraph (1)(c) or (d) may designate an alternate to attend in the director’s absence at any meeting of the Board of Directors.
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2011-2012 1991, c. 45
Trust and Loan Companies Act 361. The Trust and Loan Companies Act is amended by adding the following after section 415:
Prohibition
415.1 (1) It is prohibited for a company to issue a debt obligation in relation to which the amounts of principal and interest owing are guaranteed to be paid from loans or other assets held by an entity that is created and organized for the principal purpose of holding those loans or other assets and with the intention of legally isolating those loans or other assets from the company, unless (a) the debt obligation is a covered bond as defined in section 21.5 of the National Housing Act; (b) the company is a registered issuer as defined in section 21.5 of that Act other than one whose right to issue covered bonds has been suspended; and (c) the debt obligation is issued under a registered program as defined in section 21.5 of that Act.
Exception
(2) The Governor in Council may make regulations exempting any type of debt obligation from the application of subsection (1).
1991, c. 46
Bank Act 362. The Bank Act is amended by adding the following after section 415:
Prohibition
415.1 (1) It is prohibited for a bank to issue a debt obligation in relation to which the amounts of principal and interest owing are guaranteed to be paid from loans or other assets held by an entity that is created and organized for the principal purpose of holding those loans or other assets and with the intention of legally isolating those loans or other assets from the bank, unless (a) the debt obligation is a covered bond as defined in section 21.5 of the National Housing Act;
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(b) the bank is a registered issuer as defined in section 21.5 of that Act other than one whose right to issue covered bonds has been suspended; and (c) the debt obligation is issued under a registered program as defined in section 21.5 of that Act. Exception
(2) The Governor in Council may make regulations exempting any type of debt obligation from the application of subsection (1).
1991, c. 47
Insurance Companies Act 363. The Insurance Companies Act is amended by adding the following after section 468:
Prohibition
468.1 (1) It is prohibited for a company to issue a debt obligation in relation to which the amounts of principal and interest owing are guaranteed to be paid from loans or other assets held by an entity that is created and organized for the principal purpose of holding those loans or other assets and with the intention of legally isolating those loans or other assets from the company, unless (a) the debt obligation is a covered bond as defined in section 21.5 of the National Housing Act; (b) the company is a registered issuer as defined in section 21.5 of that Act other than one whose right to issue covered bonds has been suspended; and (c) the debt obligation is issued under a registered program as defined in section 21.5 of that Act.
Exception
(2) The Governor in Council may make regulations exempting any type of debt obligation from the application of subsection (1).
1991, c. 48
Cooperative Credit Associations Act 364. The Cooperative Credit Associations Act is amended by adding the following after section 380:
Prohibition
380.1 (1) It is prohibited for an association to issue a debt obligation in relation to which the amounts of principal and interest owing are guaranteed to be paid from loans or other assets
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Emploi, croissance e held by an entity that is created and organized for the principal purpose of holding those loans or other assets and with the intention of legally isolating those loans or other assets from the association, unless (a) the debt obligation is a covered bond as defined in section 21.5 of the National Housing Act; (b) the association is a registered issuer as defined in section 21.5 of that Act other than one whose right to issue covered bonds has been suspended; and (c) the debt obligation is issued under a registered program as defined in section 21.5 of that Act.
Exception
(2) The Governor in Council may make regulations exempting any type of debt obligation from the application of subsection (1). Transitional Provision
Guarantees made before section 352 comes into force
365. A guarantee made by the Canada Mortgage and Housing Corporation under section 14 of the National Housing Act before the day on which section 352 of this Act comes into force does not require the Minister’s approval. Coordinating Amendment
2011, c. 15
366. On the first day on which both Part 7 of the Supporting Vulnerable Seniors and Strengthening Canada’s Economy Act and subsection 21.6(4) of the National Housing Act, as enacted by section 356, are in force, the National Housing Act is amended by replacing that subsection 21.6(4) with the following:
Exceptions
(4) Despite subsections (1) and (2), the following loans must not be held as covered bond collateral: (a) a loan made on the security of residential property if the loan is insured by the Corporation; (b) a loan made on the security of residential property if the loan is insured and that insurance is protected under the Protection of Residential Mortgage or Hypothecary Insurance Act; and
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(c) a loan made on the security of residential property if the amount of the loan, together with the amount then outstanding of any mortgage or hypothecary loan having an equal or prior claim against the property, exceeds 80 per cent of the value of the property at the time of the loan. Coming into Force January 1, 2013 or royal assent
367. (1) Sections 352 and 354 come into force on the later of January 1, 2013 and the day on which this Act receives royal assent.
Order in council
(2) Paragraph 21.52(1)(b) of the National Housing Act, as enacted by section 356, comes into force on a day to be fixed by order of the Governor in Council.
Order in council
(3) Sections 361 to 364 come into force on a day to be fixed by order of the Governor in Council. DIVISION 12 INTEGRATED CROSS-BORDER LAW ENFORCEMENT OPERATIONS ACT Enactment of Act
Enactment
368. The Integrated Cross-border Law Enforcement Operations Act is enacted as follows: An Act to implement a Framework Agreement on Integrated Cross-Border Law Enforment Operations between the Government of Canada and the Government of the United States of America SHORT TITLE
Short title
1. This Act may be cited as the Integrated Cross-border Law Enforcement Operations Act. INTERPRETATION
Definitions
“Agreement” « accord »
2. The following definitions apply in this Act. “Agreement” means the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the
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Government of Canada and the Government of the United States of America signed on May 26, 2009. “designated officer” « agent désigné »
“designated officer” means an individual appointed as a cross-border maritime law enforcement officer by (a) the Central Authority for Canada under subsection 7(1) or 8(1); and (b) the person designated as the Central Authority for the United States for the application of the Agreement.
“integrated cross-border operation” « opération transfrontalière intégrée »
“integrated cross-border operation” means the deployment of a vessel crewed jointly by designated officers from Canada and the United States for cross-border law enforcement purposes in undisputed areas of the sea or internal waters along the international boundary between Canada and the United States. PURPOSE
Purpose
3. The purpose of this Act is to implement the Agreement, the objectives of which are to provide additional means to prevent, detect and suppress criminal offences and violations of the law in undisputed areas of the sea or internal waters along the international boundary between Canada and the United States and to facilitate the investigation and prosecution of such offences and violations. PRINCIPLES
Statement
4. It is recognized and declared that (a) Canada and the United States have a common interest in the security of the undisputed areas of the sea or internal waters along the international boundary between Canada and the United States; (b) integrated cross-border operations must (i) respect the sovereignty of Canada and the United States, (ii) be conducted in accordance with the rule of law, and (iii) be conducted as directed by a designated officer from the host country; and
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(c) in Canada, integrated cross-border operations must be conducted in a manner respecting the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms.
CENTRAL AUTHORITY FOR CANADA Designation
5. For the purposes of implementing the Agreement, the Central Authority for Canada is the Commissioner of the Royal Canadian Mounted Police or his or her delegate.
Direction and management
6. The Central Authority for Canada has, in cooperation with the person designated as the Central Authority for the United States for the purposes of implementing the Agreement, responsibility for the direction and management of integrated cross-border operations.
Appointment of officers from Canada
7. (1) The Central Authority for Canada may appoint as a cross-border maritime law enforcement officer an individual who is (a) a member of the Royal Canadian Mounted Police; (b) a police officer appointed or employed under the law of a province; or (c) a pilot, co-pilot, observer or other member of the crew of an aircraft that is operated by the Royal Canadian Mounted Police or a police service established under the law of a province and that is used to provide aerial support in an integrated cross-border operation.
Criterion for appointment
(2) An individual may be appointed under subsection (1) only if they have satisfactorily completed the required training, approved by the Central Authority for Canada, for appointment as a designated officer.
Appointment of officers from United States
8. (1) The Central Authority for Canada may appoint as a cross-border maritime law enforcement officer an individual who is (a) a commissioned, warrant or petty officer of the United States Coast Guard;
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Emploi, croissance e (b) a police officer or other law enforcement officer appointed or employed under the law of the United States or of a state of the United States; or (c) a pilot, co-pilot, observer or other member of the crew of an aircraft that is operated by the United States Coast Guard or a police service, or other law enforcement agency of the United States or of a state of the United States, and that is used to provide aerial support in an integrated cross-border operation.
Criteria for appointment
(2) An individual may be appointed under subsection (1) only if (a) they have been recommended for appointment by the person designated as the Central Authority for the United States for the application of the Agreement; and (b) they have satisfactorily completed the required training, approved by the Central Authority for Canada, for appointment as a designated officer.
Suspension or revocation
9. The Central Authority for Canada may suspend or revoke the appointment of any designated officer.
Certificates
10. (1) The Central Authority for Canada may issue a certificate to any designated officer stating that the person to whom it is issued is a designated officer for the purposes of this Act.
Evidence of appointment or designation
(2) Any document purporting to be a certificate referred to in subsection (1) is evidence in all courts and in all proceedings of the facts stated in it.
Recommendation for appointment
11. The Central Authority for Canada may recommend, to the person designated as the Central Authority for the United States for the purposes of implementing the Agreement, that an individual described in paragraph 7(1)(a), (b) or (c) be appointed as a cross-border maritime law enforcement officer in the United States.
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POWERS OF DESIGNATED OFFICERS Powers — designated officer
12. Every designated officer has the same power to enforce an Act of Parliament as a member of the Royal Canadian Mounted Police when (a) participating in an integrated cross-border operation; or (b) engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation. DETENTION OF PERSONS
Persons taken into custody
13. (1) The laws of Canada apply to any person detained or taken into custody within Canada in the course of an integrated crossborder operation.
Removal from Canada
(2) No person referred to in subsection (1) may be removed from Canada, except in accordance with the laws of Canada. SEIZURE
Vessel, etc., seized in Canada
14. (1) The laws of Canada apply to any vessel or other thing seized within Canada in the course of an integrated cross-border operation.
Removal from Canada
(2) Subject to subsection (3), no vessel or other thing referred to in subsection (1) may be removed from Canada, except in accordance with the laws of Canada.
Exception
(3) A vessel or other thing referred to in subsection (1) may be removed from Canada in situations of operational or geographical necessity, including situations in which (a) before delivering the vessel or thing to the place where it is to be delivered in Canada, designated officers are required to participate in a continuing integrated crossborder operation or respond to an emergency in the waters of the United States; (b) due to poor weather or mechanical difficulties with a vessel operated by designated officers, it is necessary to transit through the waters of the United States in order to reach the nearest port; or
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Emploi, croissance e (c) the navigable shipping channels between the location in Canada where the vessel or thing was seized and the place where the vessel or thing is to be delivered in Canada pass through the waters of the United States.
Vessel, etc., seized in United States
15. A vessel or other thing seized in the United States in the course of an integrated cross-border operation remains in the custody and control of the American designated officer if it is brought into Canada in situations of operational or geographical necessity, including situations in which (a) before delivering the vessel or thing to the place where it is to be delivered in the United States, designated officers are required to participate in a continuing integrated cross-border operation or respond to an emergency in the waters of Canada; (b) due to poor weather or mechanical difficulties with a vessel operated by designated officers, it is necessary to transit through the waters of Canada in order to reach the nearest port; or (c) the navigable shipping channels between the location in the United States where the vessel or thing was seized and the place where the vessel or thing is to be delivered in the United States pass through the waters of Canada.
Non-application of certain laws
16. No Act of Parliament relating to the import or export of goods applies to the import or export of a vessel or other thing by a designated officer in the circumstances described in subsection 14(3) or section 15.
R.S., c. R-10
Amendments to the Royal Canadian Mounted Police Act 369. The Royal Canadian Mounted Police Act is amended by adding the following after section 45.47: INTEGRATED CROSS-BORDER LAW ENFORCEMENT OPERATIONS ACT
Definitions
45.48 The following definitions apply in sections 45.49 to 45.51.
278 “Central Authority” « autorité centrale »
“designated officer” « agent désigné »
“integrated cross-border operation” « opération transfrontalière intégrée » Complaints by public
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“Central Authority” means the Central Authority for Canada, as designated under section 5 of the Integrated Cross-border Law Enforcement Operations Act. “designated officer” has the same meaning as in section 2 of the Integrated Cross-border Law Enforcement Operations Act. “integrated cross-border operation” has the same meaning as in section 2 of the Integrated Cross-border Law Enforcement Operations Act.
45.49 (1) Any member of the public who has a complaint concerning the conduct of a designated officer in the performance of any duty or function in the course of an integrated cross-border operation may, whether or not that member of the public is affected by the subject matter of the complaint, make a complaint to (a) the Commission; (b) any member, as defined in subsection 2(1) or other person appointed or employed under the authority of this Act; or (c) the provincial authority in the province in which the subject matter of the complaint arose that is responsible for the receipt and investigation of complaints by the public against police.
Acknowledgment of complaint
(2) Every complaint under subsection (1) shall be acknowledged in writing.
Notification — Central Authority and Commission
(3) The Central Authority shall be notified of every complaint made under subsection (1), and the Commission shall be notified of every complaint made under paragraph (1)(b) or (c).
Notification — designated officer
(4) On being notified of the complaint, the Central Authority shall notify, in writing, the designated officer whose conduct is the subject matter of the complaint of its substance unless, in the Central Authority’s opinion, to do so might adversely affect or hinder any investigation that is being or may be carried out in respect of the complaint.
Application of certain sections
45.5 (1) Sections 45.36 to 45.47 apply in respect of a complaint made under subsection 45.49(1), with the following modifications:
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Emploi, croissance e (a) a reference to the Commissioner is a reference to the Central Authority; (b) a reference to a member or other person whose conduct is the subject matter of the complaint is a reference to a designated officer whose conduct is the subject matter of the complaint; (c) a reference to subsection 45.35(1) is a reference to subsection 45.49(1); (d) a reference, other than in paragraph 45.41(2)(b), to the Force is a reference to the person or persons designated for that purpose by the Central Authority; and (e) the reference in paragraph 45.41(2)(b) to the Force is a reference to the Central Authority.
Joint investigation
(2) An investigation under paragraph 45.42(3)(c) may be carried out jointly with a body designated by the Commission Chairman.
Reports
(3) Reports referred to in section 45.4 and subsection 45.46(3) shall also be sent to the minister responsible for policing in the province where the conduct that is the subject matter of the complaint took place.
Annual report
45.51 The Commission Chairman shall send the report referred to in section 45.34 to the minister responsible for policing in each province where integrated cross-border operations took place during that year. 370. The Act is amended by adding the following after section 50:
Exception
50.1 Paragraph 50(a) does not apply to a designated officer as defined in section 45.48 who was appointed under subsection 8(1) of the Integrated Cross-border Law Enforcement Operations Act. Consequential Amendments
R.S., c. C-46
Criminal Code 371. The definition “peace officer” in section 2 of the Criminal Code is amended by adding the following after paragraph (c):
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(c.1) a designated officer as defined in section 2 of the Integrated Cross-border Law Enforcement Operations Act, when (i) participating in an integrated crossborder operation, as defined in section 2 of that Act, or (ii) engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation;
R.S., c. 1 (2nd Supp.)
Customs Act
2001, c. 25, s. 10(2)
372. Paragraphs 11(6)(a) and (b) of the Customs Act are replaced by the following: (a) holds an authorization issued by the Minister under subsection 11.1(1) to present himself or herself in a prescribed alternative manner and who presents himself or herself in the manner authorized for that person; or (b) is a member of a prescribed class of persons authorized by regulations made under subsection 11.1(3) to present himself or herself in a prescribed alternative manner and who presents himself or herself in the manner authorized for that class.
2001, c. 25, s. 11
373. Paragraph 11.1(3)(a) of the Act is replaced by the following: (a) prescribing classes of persons who are, and classes of persons who may be, authorized to present themselves in alternative manners; Coming into Force
Order in council
374. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 13
R.S., c. B-7
BRETTON WOODS AND RELATED AGREEMENTS ACT
1998, c. 21, s. 127
375. Section 7 of the Bretton Woods and Related Agreements Act is replaced by the following:
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Payment to International Monetary Fund
7. The Minister of Finance may provide for payment out of the Consolidated Revenue Fund to the International Monetary Fund in the manner and at the times provided for by the Agreement set out in Schedule I of a sum or sums of money, not exceeding in the whole an amount equivalent to the subscriptions required from or permitted to be made by Canada, namely, eleven billion, twenty-three million, nine hundred thousand Special Drawing Rights.
1993, c. 34, s. 11
376. Section 13 of the Act is replaced by the following:
Annual report
13. The Minister of Finance shall cause to be laid before Parliament, on or before September 30 next following the end of each calendar year or, if Parliament is not then sitting, on any of the first thirty days next thereafter that either House of Parliament is sitting, a report containing a general summary of operations under this Act and details of all those operations that directly affect Canada, including the resources and lending of the World Bank Group, the funds subscribed or contributed by Canada, borrowings in Canada and procurement of Canadian goods and services. DIVISION 14
R.S., c. C-6
CANADA HEALTH ACT 377. Paragraph (b) of the definition “insured person” in section 2 of the Canada Health Act is repealed. DIVISION 15
R.S., c. C-23
CANADIAN SECURITY INTELLIGENCE SERVICE ACT Amendments to the Act 378. The definition “Inspector General” in section 2 of the Canadian Security Intelligence Service Act is repealed. 379. Section 6 of the Act is amended by adding the following after subsection (3):
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Periodic reports by Director
(4) The Director shall, in relation to every 12-month period or any lesser period that is specified by the Minister, submit to the Minister, at any times that the Minister specifies, reports with respect to the Service’s operational activities during that period, and shall cause the Review Committee to be given a copy of each such report.
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380. The heading before section 30 and sections 30 to 33 of the Act are repealed. 381. (1) Subparagraph 38(a)(i) of the Act is repealed. (2) Section 38 of the Act is renumbered as subsection 38(1) and is amended by adding the following: Review Committee’s other functions
(2) As soon as the circumstances permit after receiving a copy of a report referred to in subsection 6(4), the Review Committee shall submit to the Minister a certificate stating the extent to which it is satisfied with the report and whether any of the Service’s operational activities described in the report, in its opinion, (a) is not authorized by or under this Act or contravenes any directions issued by the Minister under subsection 6(2); or (b) involves an unreasonable or unnecessary exercise by the Service of any of its powers. 382. Paragraph 39(2)(a) of the Act is replaced by the following: (a) to have access to any information under the control of the Service that relates to the performance of the duties and functions of the Committee and to receive from the Director and employees such information, reports and explanations as the Committee deems necessary for the performance of its duties and functions; and 383. (1) Paragraphs 40(a) and (b) of the Act are replaced by the following: (a) direct the Service to conduct a review of the Service’s specific activities and provide the Committee with a report on the review; or
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Emploi, croissance e (b) if it considers that a review by the Service would be inappropriate, conduct such a review itself. (2) Section 40 of the Act is renumbered as subsection 40(1) and is amended by adding the following:
Report of findings
(2) On completion of a review conducted under subsection (1), the Review Committee shall provide the Minister and the Director with the following: (a) in the case of a review conducted by the Service, the Service’s report to the Committee along with any recommendations that the Committee considers appropriate; and (b) in the case of a review conducted by the Committee, its own report, which is to contain the findings of the review and any recommendations that the Committee considers appropriate. 384. Section 54 of the Act is replaced by the following:
Minister’s briefings
54. (1) At least once a year, and at any other time at the Minister’s request, the Review Committee, or a person engaged by it and designated by it for the purposes of this section, shall meet the Minister and brief him or her on any matter that relates to the performance by the Service of its duties and functions.
Special reports
(2) The Review Committee may, on request by the Minister or at any other time, furnish the Minister with a special report concerning any matter that relates to the performance of its duties and functions. Consequential Amendments
R.S., c. A-1
Access to Information Act
SOR/86-137, s.1(1)
385. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Office of the Inspector General of the Canadian Security Intelligence Service Bureau de l’Inspecteur général du service canadien du renseignement de sécurité
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R.S., c. O-5; 2001, c. 41, s. 25
Security of Information Act
2001, c. 41, s. 30
386. The schedule to the Security of Information Act is amended by striking out the following: Office of the Inspector General of the Canadian Security Intelligence Service Bureau de l’Inspecteur général du Service canadien du renseignement de sécurité
R.S., c. P-21
Privacy Act
SOR/86-136, s. 1(1)
387. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Office of the Inspector General of the Canadian Security Intelligence Service Bureau de l’Inspecteur général du service canadien du renseignement de sécurité DIVISION 16
R.S., c. C-52
CURRENCY ACT 388. Subsection 8(4) of the Currency Act is repealed.
R.S., c. 35 (3rd Supp.), s. 19; 1999, c. 4, s. 13(F)
389. Section 9 of the Act is replaced by the following:
Calling in of coins
9. (1) The Governor in Council may, by order, call in coins of any date and denomination.
Effect of call in
(2) A coin that has been called in is not current.
Redemption of coins
9.01 (1) The Governor in Council may make regulations for the redemption by the Minister of coins of the currency of Canada that are or that have at any time been current in Canada.
Payments for redemption of coins
(2) Payments for the redemption of coins, including related costs, shall be made out of the Consolidated Revenue Fund on the authorization of the Minister.
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Emploi, croissance e DIVISION 17
R.S., c. F-8; 1995, c. 17, s. 45(1)
FEDERAL-PROVINCIAL FISCAL ARRANGEMENTS ACT Amendments to the Act 390. Section 3.12 of the Federal-Provincial Fiscal Arrangements Act is amended by adding the following after subsection (2):
Additional fiscal equalization payment — 2012-2013 fiscal year
(3) An additional fiscal equalization payment may be paid for the fiscal year beginning on April 1, 2012 equal to, (a) for Quebec, $362,127,000; (b) for Nova Scotia, $13,471,000; (c) for New Brunswick, $102,767,000; and (d) for Manitoba, $201,295,000.
1991, c. 51. s. 4; 1995, c. 17, s. 48, ss. 49(1), (3) and (4) and ss. 50 and 51; 1999, c. 26, s. 3(1), ss. 4 to 8 and 9(F), c. 31, ss. 238(1)(F), (2), (3)(F) and (4); 2000, c. 14, ss. 13 to 15, c. 35, s. 5(1) and s. 6; 2003, c. 15, ss. 3.1 to 5, 6(F) and 7; 2004, c. 4, ss. 3 to 7; 2005, c. 7, s. 3, c. 35, subpar. 67(c)(i) to (iii)
2005, c. 30, s. 29
391. Part V of the Act is repealed.
392. The heading “CANADA HEALTH TRANSFER, CANADA SOCIAL TRANSFER, HEALTH REFORM TRANSFER, WAIT TIMES REDUCTION TRANSFER AND EARLY LEARNING AND CHILD CARE TRANSFER” of Part V.1 of the Act is replaced by the following:
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CANADA HEALTH TRANSFER, CANADA SOCIAL TRANSFER AND WAIT TIMES REDUCTION TRANSFER
2005, c. 11, s. 3(1)
393. Paragraph 24.1(1)(a) of the Act is amended by striking out “and” at the end of subparagraph (iii) and by replacing subparagraph (iv) with the following: (iv) the product obtained by multiplying the cash contribution for the immediately preceding year by 1.06, rounded to the nearest thousand, for each fiscal year in the period beginning on April 1, 2006 and ending on March 31, 2017, and (v) for each fiscal year beginning after March 31, 2017, the product, rounded to the nearest thousand, obtained by multiplying the cash contribution for the immediately preceding fiscal year by the greater of 1.03, and (1 + A) where A is the average of the annual rates of growth of the nominal gross domestic product of Canada, as determined by the Minister, for the calendar year that ends during the fiscal year in question and for the two previous calendar years; and
2003, c. 15, s. 8; 2009, c. 2, s. 388
394. The portion of subsection 24.2(1) of the Act before the formula is replaced by the following:
Provincial share — fiscal years 2004-2005 to 2013-2014
24.2 (1) The cash contribution established under paragraph 24.1(1)(a) that may be provided to a province for each fiscal year in the period beginning on April 1, 2004 and ending on March 31, 2014 is the amount determined by the formula
2007, c. 29, s. 66
395. The portion of section 24.21 of the Act before paragraph (a) is replaced by the following:
Provincial share — fiscal year 2014-2015 and later
24.21 The cash contribution established under paragraph 24.1(1)(a) that may be provided to a province for each fiscal year beginning after
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March 31, 2014 is the amount determined by multiplying the total of the cash contributions to be provided to all the provinces for that fiscal year by the quotient obtained by dividing
2003, c. 15, s. 8
396. Paragraph 24.3(1)(b) of the Act is replaced by the following: (b) maintaining the national standard, set out in section 25.1, that no period of minimum residency be required or allowed with respect to social assistance; and
2007, c. 29, s. 68(1)
397. Subparagraph 24.4(1)(a)(vii) of the Act is replaced by the following: (vii) the product obtained by multiplying the cash contribution for the immediately preceding fiscal year by 1.03, rounded to the nearest thousand, for each fiscal year beginning after March 31, 2009.
2003, c. 15, s. 8; 2005, c. 11, s. 4
398. Section 24.6 of the Act and the heading before it are repealed. 399. Section 24.701 of the Act is amended by adding the following after subsection (1):
Prevention of transfer declines — fiscal year 2014-2015 and later
(1.1) The Minister may pay to a province an additional cash payment for each fiscal year beginning after March 31, 2014 equal to the amount by which (a) the cash contribution established under paragraph 24.1(1)(a) to be provided to that province for the fiscal year beginning on April 1, 2013, as determined by the Minister between September 1, 2013 and October 12, 2013, exceeds (b) the cash contribution established under paragraph 24.1(1)(a) to be provided to that province for each of those fiscal years as calculated under this Act as it reads on the day on which this subsection comes into force.
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2005, c. 30, s. 28
400. Section 24.71 of the Act and the heading before it are repealed.
2003, c.15, s. 8
401. The portion of section 25 of the Act before paragraph (b) is replaced by the following:
Reduction or withholding — Canada Health Transfer and Canada Social Transfer
25. The cash contribution that may be provided to a province under section 24.2, 24.21, 24.5 or 24.51 is to be reduced or withheld for the purposes of giving effect to
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(a) any order made by the Governor in Council in respect of the province under section 15 or 16 of the Canada Health Act or, in the case of a cash contribution under section 24.5 or 24.51, section 25.3 or 25.4 of this Act; or 2003, c. 15, s. 8
402. (1) The portion of subsection 25.1(1) of the Act before paragraph (a) is replaced by the following:
Criteria for eligibility — Canada Social Transfer
25.1 In order that a province may qualify for a full cash contribution under sections 24.5 and 24.51 for a fiscal year, the laws of the province must not
2003, c.15, s. 8
(2) Subsection 25.1(2) of the Act is repealed.
2003, c.15, s. 8
403. Paragraphs 25.3(1)(a) and (b) of the Act are replaced by the following: (a) direct that any cash contribution under section 24.5 or 24.51 to that province for a fiscal year be reduced, in respect of each noncompliance, by an amount that the Governor in Council considers to be appropriate, having regard to the gravity of the noncompliance; or (b) if the Governor in Council considers it appropriate, direct that the whole of any cash contribution under section 24.5 or 24.51 to that province for a fiscal year be withheld.
2003, c.15, s. 8
404. Section 25.7 of the Act is replaced by the following:
References in other Acts
25.7 Every reference to “Canada Health and Social Transfer” in any other Act of Parliament is to be read as a reference to “Canada Health Transfer and the Canada Social Transfer”.
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1995, c. 17, s. 55
405. Sections 28 to 30 of the Act are replaced by the following:
Recovery
28. The amount of additional tax abatement applicable in respect of a province in a fiscal year, as determined by the Minister under section 27, must be recovered out of any moneys payable to the province under this Act or as a debt due to the Government of Canada by the province.
Over-recovery
29. If the Minister determines that he or she has over-recovered any amount recoverable from a province under this Part, he or she must, within the prescribed time and in the prescribed manner, pay that province an amount equal to the over-recovery.
Under-recovery
29.1 If the Minister determines that he or she has under-recovered any amount recoverable from a province under this Part, he or she must recover an amount equal to the under-recovery either (a) within the prescribed time and in the prescribed manner, from any amount payable under this Act to that province, or (b) from that province as a debt due to Her Majesty in right of Canada.
Payment out of C.R.F.
30. The amounts authorized under this Part to be paid by the Minister must be paid out of the Consolidated Revenue Fund at such times and in such manner as may be prescribed.
2009, c. 2, s. 391
406. Paragraph 40(a.1) of the Act is replaced by the following: (a.1) respecting the information that must be prepared and submitted by the Chief Statistician of Canada for the purposes of Parts I, I.1 and V.1;
R.S., c. C-6
1999, c. 26, s. 11
Consequential Amendments to the Canada Health Act 407. The definition “cash contribution” in section 2 of the Canada Health Act is replaced by the following:
290 “cash contribution” « contribution pécuniaire »
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“cash contribution” means the cash contribution in respect of the Canada Health Transfer that may be provided to a province under sections 24.2 and 24.21 of the Federal-Provincial Fiscal Arrangements Act;
1995, c. 17, s. 36
408. Section 5 of the Act is replaced by the following:
Cash contribution
5. Subject to this Act, as part of the Canada Health Transfer, a full cash contribution is payable by Canada to each province for each fiscal year.
1995, c. 17, s. 37
409. Paragraph 13(b) of the English version of the Act is replaced by the following: (b) shall give recognition to the Canada Health Transfer in any public documents, or in any advertising or promotional material, relating to insured health services and extended health care services in the province.
1995, c. 17, s. 40(1)
410. Paragraph 22(1)(d) of the English version of the Act is replaced by the following: (d) prescribing the manner in which recognition to the Canada Health Transfer is required to be given under paragraph 13(b). DIVISION 18
R.S., c. F-14
FISHERIES ACT 411. The Fisheries Act is amended by adding the following after section 9: FISH ALLOCATION FOR FINANCING PURPOSES
Allocation of fish
10. (1) For the proper management and control of fisheries and the conservation and protection of fish, the Minister may determine a quantity of fish or of fishing gear and equipment that may be allocated for the purpose of financing scientific and fisheries management activities that are described in a joint project agreement entered into with any person or body, or any federal or provincial minister, department or agency.
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Emploi, croissance e (2) The Minister may specify, in a licence issued under this Act, a quantity of fish or of fishing gear and equipment allocated for the purpose of financing those activities. DIVISION 19
R.S., c. F-27
FOOD AND DRUGS ACT Amendments to the Act
2005, c. 42, s.1
412. Subsection 4(2) of the Food and Drugs Act is replaced by the following:
Exemption
(2) A food does not have a poisonous or harmful substance in or on it for the purposes of paragraph (1)(a) — or is not adulterated for the purposes of paragraph (1)(d) — by reason only that it has in or on it a pest control product as defined in subsection 2(1) of the Pest Control Products Act, or any of its components or derivatives, if the amount of the pest control product or the components or derivatives in or on the food being sold does not exceed the maximum residue limit specified under section 9 or 10 of that Act. 413. The Act is amended by adding the following after section 29: POWER OF THE MINISTER
List
29.1 (1) Subject to the regulations, the Minister may establish a list that sets out prescription drugs, classes of prescription drugs or both.
Statutory Instruments Act
(2) The list is not a regulation within the meaning of the Statutory Instruments Act. INCORPORATION BY REFERENCE
Incorporation by reference
29.2 (1) A regulation made under this Act may incorporate by reference the list established under subsection 29.1(1), either as it exists on a particular date or as it is amended from time to time.
Accessibility of incorporated list
(2) The Minister shall ensure that the list that is incorporated by reference in the regulation is accessible.
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Defence
(3) A person is not liable to be found guilty of an offence for any contravention in respect of which the list that is incorporated by reference in the regulation is relevant unless, at the time of the alleged contravention, the list was accessible as required by subsection (2) or it was otherwise accessible to the person.
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414. (1) Subsection 30(1) of the Act is amended by adding the following after paragraph (h): (h.1) respecting the establishment by the Minister of the list referred to in subsection 29.1(1), including amendments to it; 2005, c. 42, s. 2
(2) Paragraph 30(1)(r) of the Act is replaced by the following: (r) respecting marketing authorizations, including establishing the eligibility criteria for submitting an application for such authorizations or for amending such authorizations. 415. Section 30 of the Act is amended by adding the following after subsection (1):
Classes
(1.1) A regulation made under this Act may establish classes and distinguish among those classes.
2005, c. 42, s. 3.
416. Section 30.2 of the Act and the heading before it are replaced by the following: MARKETING AUTHORIZATIONS
Marketing authorization — representation
30.2 (1) Subject to regulations made under paragraph 30(1)(r), the Minister may issue a marketing authorization that exempts — if the conditions, if any, to which the marketing authorization is subject are met — an advertisement, or a representation on a label, with respect to a food from the application, in whole or in part, of subsection 3(1) or (2) or any provision of the regulations specified in the marketing authorization.
Condition
(2) The marketing authorization may be subject to any condition that the Minister considers appropriate.
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Marketing authorization — food
30.3 (1) Subject to regulations made under paragraph 30(1)(r), the Minister may issue a marketing authorization that exempts — if the conditions to which the marketing authorization is subject are met — a food from the application, in whole or in part, of paragraph 4(1)(a) or (d) or section 6 or 6.1 or any provision of the regulations specified in the marketing authorization.
Condition — amount
(2) The marketing authorization may be subject to any condition relating to the amount of any substance that may or must be in or on the food, including (a) the maximum residue limit of an agricultural chemical and its components or derivatives, singly or in any combination; (b) the maximum residue limit of a veterinary drug and its metabolites, singly or in any combination; (c) the maximum level of use for a food additive; and (d) the minimum or maximum level, or both, of a vitamin, a mineral nutrient or an amino acid.
Other conditions
(3) The marketing authorization may be subject to any other condition that the Minister considers appropriate.
Classes
30.4 A marketing authorization may establish classes and distinguish among those classes. INCORPORATION BY REFERENCE
Incorporation by reference
30.5 (1) A regulation made under this Act with respect to a food and a marketing authorization may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
Accessibility of incorporated documents
(2) The Minister shall ensure that any document that is incorporated by reference in the regulation or marketing authorization is accessible.
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Defence
(3) A person is not liable to be found guilty of an offence for any contravention in respect of which a document that is incorporated by reference in the regulation or marketing authorization is relevant unless, at the time of the alleged contravention, the document was accessible as required by subsection (2) or it was otherwise accessible to the person.
No registration or publication
(4) For greater certainty, a document that is incorporated by reference in the regulation or marketing authorization is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
Existing power not limited
30.6 For greater certainty, an express power in this Act to incorporate a document by reference does not limit the power that otherwise exists to incorporate a document by reference in a regulation made under this Act.
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Transitional Provisions Interim marketing authorization
417. (1) An interim marketing authorization that is issued under subsection 30.2(1) of the Food and Drugs Act and in effect immediately before the day on which section 416 comes into force continues to have effect until the earliest of (a) the day on which the Minister of Health publishes a notice cancelling the interim marketing authorization in the Canada Gazette; (b) the day on which a marketing authorization — or any part of it — that is issued under subsection 30.3(1) of the Food and Drugs Act, as enacted by section 416, has the same effect as the interim marketing authorization; and (c) two years after the day on which the interim marketing authorization is published in the Canada Gazette.
Exemption from Statutory Instruments Act
(2) A notice cancelling an interim marketing authorization is exempt from sections 3, 5 and 11 of the Statutory Instruments Act.
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R.S., c. E-15
Consequential Amendment to the Excise Tax Act
2008, c. 28, s. 86(1)
418. Paragraph 2(b) of Part I of Schedule VI to the Excise Tax Act is replaced by the following: (b) a drug that is set out on the list established under subsection 29.1(1) of the Food and Drugs Act or that belongs to a class of drugs set out on that list, other than a drug or mixture of drugs that may, under that Act or the Food and Drug Regulations, be sold to a consumer without a prescription, Coming into Force
Order in council
419. Sections 412 to 416 and 418 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 20
R.S., c. G-5
GOVERNMENT EMPLOYEES COMPENSATION ACT Amendments to the Act 420. Paragraphs (b) to (d) of the definition “employee” in section 2 of the English version of the Government Employees Compensation Act are replaced by the following: (b) any member, officer or employee of any department, corporation or other body that is established to perform a function or duty on the Government of Canada’s behalf who is declared by the Minister with the approval of the Governor in Council to be an employee for the purposes of this Act, (c) any person who, for the purpose of obtaining employment in any department, corporation or other body that is established to perform a function or duty on the Government of Canada’s behalf, is taking a training course that is approved by the Minister for that person, (d) any person who is employed by any department, corporation or other body that is established to perform a function or duty on the Government of Canada’s behalf, who is on leave of absence without pay and, for the
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purpose of increasing the skills used in the performance of their duties, is taking a training course that is approved by the Minister for that purpose, and 1999, c. 35, s. 12
421. Section 9 of the Act is replaced by the following:
Election of claims
9. (1) If an accident happens to an employee in the course of their employment under any circumstances that entitle the employee or their dependants to an action against a third party, the employee or their dependants, if they are entitled to compensation under this Act, may claim compensation under it or may make a claim against the third party.
Election is final
(2) The election made by the employee or their dependants is final.
Application — prescribed corporation or other body
9.1 (1) Subsections (2) to (4) apply to employees who are employed by a corporation or other body that is prescribed under paragraph 13(1)(b).
Entitlement to difference as compensation
(2) If a claim is made against the third party and less is recovered and collected, either on a settlement approved by the employer or under a judgment of a court of competent jurisdiction, than the amount of compensation to which the employee or their dependants who made the claim are entitled under this Act, the difference between the amount so recovered and collected and the amount of that compensation shall be paid as compensation to the employee or their dependants.
Subrogation
(3) If the employee or their dependants elect to claim compensation under this Act, the employer shall be subrogated to the rights of the employee or their dependants and may, subject to the Agreement implemented by the Civil International Space Station Agreement Implementation Act, maintain an action, against the third party, in its own name or in the name of the employee or their dependants.
Portion of excess payable to employee
(4) If an action is brought under subsection (3) and the amount recovered and collected exceeds the amount of compensation to which the employee or their dependants are entitled under this Act, the employer may pay to the employee or their dependants any portion of the
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Application — other employers
9.2 (1) Subsections (2) to (4) apply to employees who are not employed by a corporation or other body that is prescribed under paragraph 13(1)(b).
Entitlement to difference as compensation
(2) If a claim is made against the third party and less is recovered and collected, either on a settlement approved by the Minister or under a judgment of a court of competent jurisdiction, than the amount of compensation to which the employee or their dependants who made the claim are entitled under this Act, the difference between the amount so recovered and collected and the amount of that compensation shall be paid as compensation to the employee or their dependants.
Subrogation
(3) If the employee or their dependants elect to claim compensation under this Act, Her Majesty shall be subrogated to the rights of the employee or their dependants and may, subject to the Agreement implemented by the Civil International Space Station Agreement Implementation Act, maintain an action in the name of the employee or their dependants or of Her Majesty against the third party and any sum recovered shall be paid into the Consolidated Revenue Fund.
Portion of excess payable to employee
(4) If an action is brought under subsection (3) and the amount recovered and collected exceeds the amount of compensation to which the employee or their dependants are entitled under this Act, there may be paid out of the Consolidated Revenue Fund to the employee or their dependants any portion of the excess that the Minister with the approval of the Treasury Board considers necessary, but if after that payment has been made the employee becomes entitled to an additional amount of compensation in respect of the same accident, the amount paid under this subsection may be deducted from the additional compensation.
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422. The Act is amended by adding the following after section 12: Acts or omissions by corporation or other body
12.1 No action lies against Her Majesty for anything done or omitted to be done under this Act by a corporation or other body referred to in subsection 9.1(1). 423. Section 13 of the Act is replaced by the following:
Regulations
13. (1) Subject to the Governor in Council’s approval, the Minister may make regulations for carrying out the purposes and provisions of this Act, including regulations (a) determining the place where an employee is usually employed; and (b) prescribing corporations or other bodies for the purposes of section 9.1.
Extended application of section 9.2
(2) If a corporation or other body is prescribed under paragraph (1)(b), section 9.2 continues to apply in cases where the notice of election referred to in section 11 is given before the day on which the regulation comes into force.
Extended application of section 9.1
(3) If a regulation is made under paragraph (1)(b) by virtue of which a corporation or other body ceases to be prescribed, section 9.1 continues to apply in cases where the notice of election referred to in section 11 is given before the day on which the regulation comes into force. 424. The portion of section 14 of the English version of the Act before paragraph (a) is replaced by the following:
Employer contribution
14. The Minister may require any corporation or other body, whose employees are subject to this Act, Transitional Provision
Notice given before coming into force
425. The Government Employees Compensation Act, as it read immediately before the day on which this section comes into force, applies in cases where the notice of election referred to in section 11 of that Act is given before that day.
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Order in council
426. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 21
R.S., c. I-19
INTERNATIONAL DEVELOPMENT RESEARCH CENTRE ACT
2010, c. 12, 1747
427. Section 3 of the International Development Research Centre Act is replaced by the following:
Centre established
3. A corporation is established, to be called the International Development Research Centre, consisting of a Board of Governors that is composed of a Chairperson, the President and not more than 12 other governors.
2010, c. 12, par. 1753(b)(E)
428. Subsection 8(1) of the English version of the Act is replaced by the following:
Temporary substitute governor
8. (1) The Governor in Council may, on any terms and conditions that the Governor in Council prescribes, appoint a temporary substitute governor if a governor, other than the Chairperson or President, is unable to perform the duties of his or her office.
2010, c. 12, s. 1750(1) and (2)(E)
429. (1) Subsections 10(1) to (3) of the Act are replaced by the following:
Majority of governors
10. (1) The Chairperson, the Vice-chairperson and at least six other governors must be Canadian citizens.
Qualification
(2) At least eight of the governors must have experience in the field of international development or experience or training in the natural or social sciences or technology.
Parliamentary governors
(3) Two of the governors who are Canadian citizens, other than the Chairperson and the Vice-chairperson, may be appointed from among the members of the Senate or the House of Commons. (2) Subsection 10(4) of the English version of the Act is replaced by the following:
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Salary and expenses
(4) A member appointed under subsection (3) shall not be paid remuneration but is eligible for expenses and, if he or she is a member of the House of Commons, is not, by reason of being the holder of the office or place in respect of which those expenses are payable, rendered incapable of being elected, or of sitting or voting, as a member of that House.
2010, c. 12, par. 1753(c)(E)
430. (1) Subsection 11(1) of the Act is replaced by the following:
Executive committee
11. (1) There shall be an executive committee of the Board consisting of the Chairperson, the President and at least three other governors annually elected from the Board by the governors in such a manner that a majority of the members of the committee are Canadian citizens.
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(2) Subsection 11(5) of the Act is replaced by the following: Quorum
(5) Three members of the executive committee, at least two of whom are Canadian citizens, constitute a quorum. 431. Subsection 16(3) of the Act is replaced by the following:
Quorum
(3) Seven governors, at least four of whom are Canadian citizens, constitute a quorum of the Board. However, the proceedings of any meeting of the Board that is attended by more than seven governors are not valid unless a majority of those governors are Canadian citizens. DIVISION 22
R.S., c. L-2
CANADA LABOUR CODE Amendments to the Act
1998, c. 26, s. 51(2)
432. (1) Paragraphs 111(e) and (f) of the Canada Labour Code are replaced by the following: (e) prescribing the form and content of a notice under section 71 and prescribing any additional information and documents that are to be furnished with such a notice;
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Emploi, croissance e (f) prescribing the form and content of a notice under section 87.2 and prescribing any additional information and documents that are to be furnished with such a notice; (2) Paragraph 111(i) of the Act is replaced by the following: (i) prescribing the form and content of any written request to the Minister under subsection 57(2) or (4) and prescribing any additional information and documents that are to be furnished with such a request; (3) Section 111 of the Act is amended by striking out “and” at the end of paragraph (k) and by adding the following after paragraph (l): (m) prescribing the form and manner in which a copy of a collective agreement shall be filed with the Minister under subsection 115(1) and prescribing any additional information and documents that are to be filed with it; (n) prescribing the information and documents that the Minister shall provide to the parties to a collective agreement after the Minister has received a copy of the collective agreement; (o) prescribing the circumstances in which, and the conditions under which, the parties to a collective agreement are exempted from filing a copy of the collective agreement with the Minister; and (p) prescribing the circumstances in which, and the conditions under which, a collective agreement may come into force even if no party has filed a copy of it with the Minister. 433. Section 115 of the Act is replaced by the following:
Collective agreement to be filed
115. (1) Subject to the regulations made under paragraph 111(o), each party to a collective agreement shall, immediately after it is entered into, renewed or revised, file one copy of the collective agreement with the Minister.
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Coming into force conditional on filing
(2) Subject to the regulations made under paragraph 111(p), the collective agreement may come into force only if at least one party has filed a copy of it with the Minister.
Coming into force of provisions
(3) Once the copy is filed with the Minister, the provisions of the collective agreement come into force on the day or days on which they would have come into force were it not for the requirement under subsection (2), even if those days precede the day on which it is filed.
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434. The Act is amended by adding the following after section 239.1: DIVISION XIII.2 LONG-TERM DISABILITY PLANS Employer’s obligation
239.2 (1) Every employer that provides benefits to its employees under a long-term disability plan must insure the plan with an entity that is licensed to provide insurance under the laws of a province.
Exception
(2) However, an employer may provide those benefits under a long-term disability plan that is not insured, in the circumstances and subject to the conditions provided for in the regulations.
Regulations
239.3 The Governor in Council may make regulations respecting long-term disability plans, including regulations (a) specifying what constitutes a long-term disability plan; and (b) specifying the circumstances and conditions referred to in subsection 239.2(2). 435. Subsection 249(2) of the Act is amended by adding the following after paragraph (c): (c.1) require any employer that provides benefits to its employees under a long-term disability plan that must be insured in accordance with subsection 239.2(1) to furnish proof that the plan is insured in accordance with that subsection;
R.S., c. 9 (1st Supp.), s. 19(1)
436. (1) The portion of subsection 256(1) of the Act before paragraph (b) is replaced by the following:
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256. (1) Every person is guilty of an offence who (a) contravenes any provision of this Part or the regulations, other than a provision of Division IX, subsection 239.1(2), 239.2(1) or 252(2) or any regulation made under section 227 or paragraph 264(a),
R.S., c. 9 (1st Supp.), s. 19(1)
(2) The portion of subsection 256(1) of the English version of the Act after paragraph (c) is repealed. (3) Subsection 256(2) of the Act is replaced by the following:
Punishment
(1.1) Every person who is guilty of an offence under subsection (1) is liable on summary conviction (a) in the case of an employer that is a corporation, (i) for a first offence, to a fine of not more than $50,000, (ii) for a second offence, to a fine of not more than $100,000, and (iii) for each subsequent offence, to a fine of not more than $250,000; and (b) in all other cases, (i) for a first offence, to a fine of not more than $10,000, (ii) for a second offence, to a fine of not more than $20,000, and (iii) for each subsequent offence, to a fine of not more than $50,000.
Second or subsequent offence
(1.2) For the purposes of subsection (1.1), in determining whether a person convicted of an offence has committed a second or subsequent offence, an earlier offence may be taken into account only if the person was convicted of the earlier offence within the five-year period immediately before the day on which the person is convicted of the offence for which sentence is being imposed.
Offences — employers
(2) Every employer that contravenes any provision of Division IX, subsection 239.1(2) or 239.2(1) or any regulation made under section
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227 is guilty of an offence punishable on summary conviction and liable to a fine of not more than $250,000. R.S., c. 9 (1st Supp.), s. 19(2)
(4) The portion of subsection 256(3) of the French version of the Act before paragraph (a) is replaced by the following:
Autre infraction
(3) Commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de mille dollars pour chacun des jours au cours desquels se continue l’infraction l’employeur qui : (5) Paragraph 256(3)(a) of the Act is replaced by the following: (a) fails to keep any record that by subsection 252(2) or any regulation made under paragraph 264(a) the employer is required to keep, or
R.S., c. 9 (1st Supp.), s. 19(2)
(6) The portion of subsection 256(3) of the English version of the Act after paragraph (b) is replaced by the following: is guilty of an offence and liable on summary conviction to a fine of not more than $1,000 for each day during which the refusal or failure continues.
R.S., c. 9 (1st Supp.), s. 20
437. Section 259 of the Act is replaced by the following:
Failure to comply with order
259. An employer that fails to comply with an order of a convicting court made under section 258 is guilty of an offence punishable on summary conviction and liable to a fine of not more than $1,000 for each day during which the failure continues. Transitional Provisions
Existing claims
438. If, before the coming into force of section 239.2 of the Canada Labour Code, as enacted by section 434, an employer provides benefits to its employees under a long-term disability plan that is not insured with an entity that is licensed to provide insurance under the laws of a province and either benefits are being paid to one of those employees under that plan or an application for the payment of benefits under that plan
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has been submitted by one of those employees, that employer, on the coming into force of that section 239.2, is not required to insure that plan in accordance with that section 239.2 and may continue to provide benefits under that plan but only to the employee who is being paid benefits or to the employee who submitted an application for the payment of benefits. Limitation — second or subsequent offences
439. Despite subsection 256(1.2) of the Canada Labour Code, as enacted by section 436, in determining whether a person has committed a second or subsequent offence for the purposes of subsection 256(1.1) of that Act as enacted by that section, an earlier offence may be taken into account only if the person is convicted of the earlier offence on or after the day on which that section comes into force. Coming into Force
Sections 432 and 433
440. (1) Sections 432 and 433 come into force on a day to be fixed by order of the Governor in Council.
Sections 434 to 439
(2) Sections 434 to 439 come into force on a day to be fixed by order of the Governor in Council. DIVISION 23
R.S., c. L-4
FAIR WAGES AND HOURS OF LABOUR ACT Repeal
Repeal of R.S., c. L-4
441. The Fair Wages and Hours of Labour Act is repealed. Transitional Provision
Rights and obligations not affected
442. The repeal of the Fair Wages and Hours of Labour Act does not affect any rights or obligations acquired or incurred under a contract or agreement to which that Act applied.
1958, c. 23
Consequential Amendment to the CampobelloLubec Bridge Act 443. Section 6 of the Campobello-Lubec Bridge Act is repealed.
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Order in council
444. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 24 OLD AGE SECURITY ACT
R.S., c. O-9
Amendments to the Act 445. The heading before section 2 of the French version of the Old Age Security Act is replaced by the following: DÉFINITIONS ET INTERPRÉTATION 446. The Act is amended by adding the following after section 2: Amount of full pension
2.1 (1) In this Act, a reference to the amount of a full monthly pension means the amount of a full monthly pension that has not been increased under subsection 7.1(1) or (2).
Monthly pension
(2) The terms “pensioner’s monthly pension” in subsections 12(5) and 22(2) and “pension” in subsection 12(5.1) mean, respectively, a pensioner’s monthly pension and a pension that have not been increased under subsection 7.1(1) or (2). 447. The Act is amended by adding the following before the heading “Part I”:
References to “sixty years”
2.2 (1) In this Act, a reference to the age of “sixty years” or “60 years” is to be read for the applicable period set out in column 1 of the table to this subsection as a reference to the corresponding age in column 2. TABLE
Column 1
Column 2
Period
Age
From April 1, 2023 to 60 years and one June 30, 2023 month From July 1, 2023 to 60 years and two September 30, 2023 months From October 1, 2023 60 years and three to December 31, 2023 months
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Column 2 Age
From January 1, 2024 60 years and four to March 31, 2024 months From April 1, 2024 to 60 years and five June 30, 2024 months From July 1, 2024 to 60 years and six September 30, 2024 months From October 1, 2024 60 years and seven to December 31, 2024 months From January 1, 2025 60 years and eight to March 31, 2025 months From April 1, 2025 to 60 years and nine June 30, 2025 months From July 1, 2025 to 60 years and 10 September 30, 2025 months From October 1, 2025 60 years and 11 to December 31, 2025 months From January 1, 2026 61 years to March 31, 2026 From April 1, 2026 to 61 years and one June 30, 2026 month From July 1, 2026 to 61 years and two September 30, 2026 months From October 1, 2026 61 years and three to December 31, 2026 months From January 1, 2027 61 years and four to March 31, 2027 months From April 1, 2027 to 61 years and five June 30, 2027 months From July 1, 2027 to 61 years and six September 30, 2027 months From October 1, 2027 61 years and seven to December 31, 2027 months From January 1, 2028 61 years and eight to March 31, 2028 months From April 1, 2028 to 61 years and nine June 30, 2028 months From July 1, 2028 to 61 years and 10 September 30, 2028 months
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From October 1, 2028 61 years and 11 to December 31, 2028 months After December 31, 2028
References to “sixty-five years”
62 years
(2) In this Act, a reference to the age of “sixty-five years” or “65 years” is to be read for the applicable period set out in column 1 of the table to this subsection as a reference to the corresponding age in column 2. TABLE
Column 1
Column 2
Period
Age
From April 1, 2023 to 65 years and one June 30, 2023 month From July 1, 2023 to 65 years and two September 30, 2023 months From October 1, 2023 65 years and three to December 31, 2023 months From January 1, 2024 65 years and four to March 31, 2024 months From April 1, 2024 to 65 years and five June 30, 2024 months From July 1, 2024 to 65 years and six September 30, 2024 months From October 1, 2024 65 years and seven to December 31, 2024 months From January 1, 2025 65 years and eight to March 31, 2025 months From April 1, 2025 to 65 years and nine June 30, 2025 months From July 1, 2025 to 65 years and 10 September 30, 2025 months From October 1, 2025 65 years and 11 to December 31, 2025 months From January 1, 2026 66 years to March 31, 2026
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Column 2 Age
From April 1, 2026 to 66 years and one June 30, 2026 month From July 1, 2026 to 66 years and two September 30, 2026 months From October 1, 2026 66 years and three to December 31, 2026 months From January 1, 2027 66 years and four to March 31, 2027 months From April 1, 2027 to 66 years and five June 30, 2027 months From July 1, 2027 to 66 years and six September 30, 2027 months From October 1, 2027 66 years and seven to December 31, 2027 months From January 1, 2028 66 years and eight to March 31, 2028 months From April 1, 2028 to 66 years and nine June 30, 2028 months From July 1, 2028 to 66 years and 10 September 30, 2028 months From October 1, 2028 66 years and 11 to December 31, 2028 months After December 31, 2028
References to “seventy years”
67 years
(3) In this Act, a reference to the age of “seventy years” or “70 years” is to be read for the applicable period set out in column 1 of the table to this subsection as a reference to the corresponding age in column 2. TABLE
Column 1
Column 2
Period
Age
From April 1, 2028 to 70 years and one June 30, 2028 month From July 1, 2028 to 70 years and two September 30, 2028 months
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From October 1, 2028 70 years and three to December 31, 2028 months From January 1, 2029 70 years and four to March 31, 2029 months From April 1, 2029 to 70 years and five June 30, 2029 months From July 1, 2029 to 70 years and six September 30, 2029 months From October 1, 2029 70 years and seven to December 31, 2029 months From January 1, 2030 70 years and eight to March 31, 2030 months From April 1, 2030 to 70 years and nine June 30, 2030 months From July 1, 2030 to 70 years and 10 September 30, 2030 months From October 1, 2030 70 years and 11 to December 31, 2030 months From January 1, 2031 71 years to March 31, 2031 From April 1, 2031 to 71 years and one June 30, 2031 month From July 1, 2031 to 71 years and two September 30, 2031 months From October 1, 2031 71 years and three to December 31, 2031 months From January 1, 2032 71 years and four to March 31, 2032 months From April 1, 2032 to 71 years and five June 30, 2032 months From July 1, 2032 to 71 years and six September 30, 2032 months From October 1, 2032 71 years and seven to December 31, 2032 months From January 1, 2033 71 years and eight to March 31, 2033 months From April 1, 2033 to 71 years and nine June 30, 2033 months
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Column 1
Column 2
Period
Age
From July 1, 2033 to 71 years and 10 September 30, 2033 months From October 1, 2033 71 years and 11 to December 31, 2033 months After December 31, 2033
72 years
448. Subsection 3(3) of the Act is replaced by the following: Amount of partial pension
(3) Subject to subsection 7.1(3), the amount of a partial monthly pension, for any month, shall bear the same relation to the full monthly pension for that month as the aggregate period that the applicant has resided in Canada after attaining 18 years of age and before the day on which the application is approved, determined in accordance with subsection (4), bears to 40 years. 449. The Act is amended by adding the following after section 4:
Presumption
4.1 If the Minister intends to waive the requirement for an application in respect of a person under subsection 5(4) and the information available to the Minister under this Act with respect to that person includes the prescribed information, the person is presumed, in the absence of evidence to the contrary, to have met the requirements of (a) subparagraph 3(1)(b)(iii) or (c)(iii) or paragraph 3(2)(b); or (b) paragraph 4(1)(a) or (b). 450. Section 5 of the Act is amended by adding the following after subsection (3):
Waiver of application
(4) The Minister may, on the day on which a person attains 65 years of age, waive the requirement referred to in subsection (1) for an application if the Minister is satisfied, based on information that is available to him or her under
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this Act, that the person is qualified under subsection 3(1) or (2) for the payment of a pension. Notice of intent
(5) If the Minister intends to waive the requirement for an application in respect of a person, the Minister shall notify the person in writing of that intention and provide them with the information on which the Minister intends to rely to approve the payment of a pension.
Inaccuracies
(6) The person shall, before the day on which they attain 65 years of age, file with the Minister a statement in which the person corrects any inaccuracies in the information provided by the Minister under subsection (5).
Declining waiver
(7) The person may, before the day on which they attain 65 years of age, decline a waiver of the requirement for an application by notifying the Minister in writing of their decision to do so.
Cancellation of waiver
(8) Even if the requirement for an application is intended to be waived in respect of a person under subsection (4), the Minister may, before the day on which the person attains 65 years of age, require that the person make an application for payment of a pension and, in that case, the Minister shall notify the person in writing of that requirement. 451. The Act is amended by adding the following after section 7:
Voluntary deferral — full monthly pension
7.1 (1) If a person applies for their pension after they become qualified to receive a full monthly pension, the amount of that pension, as calculated in accordance with section 7, is increased by 0.6% for each month in the period that begins in the month after the month in which the person becomes qualified for that pension and that ends in the month in which the person’s application is approved.
Voluntary deferral — partial monthly pension
(2) If a person applies for their pension after they become qualified to receive a partial monthly pension, the amount of that pension, as it is calculated in accordance with subsection 3(3) at the time that they become qualified for that pension, is increased by 0.6% for each month in the period that begins in the month after that time and that ends in the month in which the person’s application is approved.
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(3) A person who is qualified to receive a monthly pension shall, unless they decide otherwise, receive the greatest of the following amounts: (a) the amount of the full monthly pension as it is increased under subsection (1), if the person is qualified to receive a full monthly pension, (b) the amount of the partial monthly pension as it is increased under subsection (2), and (c) the amount of the partial monthly pension as it is calculated under subsection 3(3) at the time that the person’s application is approved.
Limitation
(4) Despite subsections (1) and (2), the amount of a pension is not increased for any month (a) before July 2013; (b) after the month in which the person attains 70 years of age; or (c) in which the person’s pension would not be paid by virtue of subsection 5(3), or would be suspended under subsection 9(1) or (3), if the person were a pensioner.
1995, c. 33, s. 3(1)
452. Subsection 8(2) of the French version of the Act is replaced by the following:
Exception
(2) Toutefois, si le demandeur a déjà atteint l’âge de soixante-cinq ans au moment de la réception de la demande, l’effet de l’agrément peut être rétroactif à la date fixée par règlement, celle-ci ne pouvant être antérieure au jour où il atteint cet âge ni précéder de plus d’un an le jour de réception de la demande. 453. The Act is amended by adding the following after section 9.2:
Request to cancel pension
9.3 (1) A pensioner may, in the prescribed manner and within the prescribed time after payment of a pension has commenced, request cancellation of that pension.
Effect of cancellation
(2) If the request is granted and the amount of any pension and related supplement and allowance is repaid within the prescribed time, (a) the application for that pension is deemed never to have been made; and
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(b) the pension is deemed for the purposes of this Act not to have been payable during the period in question.
1995, c. 33, s. 5; 1998, c. 21, par. 119(2)(b)(E)
454. (1) Subsection 11(2) of the Act is replaced by the following:
Requirement for application
(2) Subject to subsections (3.1) and (4), no supplement may be paid to a pensioner for a month in any payment period unless an application for payment of a supplement has been made by the pensioner and payment of the supplement for months in that year has been approved under this Part. (2) Section 11 of the Act is amended by adding the following after subsection (3):
Waiver of application
(3.1) The Minister may, in respect of a person, waive the requirement referred to in subsection (2) for an application for payment of a supplement for any month or months in a payment period if, on the day on which the person attains 65 years of age, the Minister is satisfied, based on information available to him or her under this Act, that the person is qualified under this section for the payment of a supplement.
Notice of intent
(3.2) If the Minister intends to waive the requirement for an application in respect of a person under subsection (3.1), the Minister shall notify the person in writing of that intention and provide them with the information on which the Minister intends to rely to approve the payment of a supplement.
Inaccuracies
(3.3) The person shall, before the day on which they attain 65 years of age, file with the Minister a statement in which the person corrects any inaccuracies in the information provided by the Minister under subsection (3.2).
Declining waiver
(3.4) The person may, before the day on which they attain 65 years of age, decline a waiver of the requirement for an application by notifying the Minister in writing of their decision to do so.
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Cancellation of waiver
(3.5) Even if the requirement for an application is intended to be waived in respect of a person under subsection (3.1), the Minister may, before the day on which the person attains 65 years of age, require that the person make an application for payment of a supplement and, in that case, the Minister shall notify the person in writing of that requirement.
1995, c. 33, s. 5; 1998, c. 21, par. 119(1)(a)
(3) Subsection 11(5) of the French version of the Act is replaced by the following:
Avis
(5) Lorsque le ministre accorde la dispense prévue au paragraphe (4) et que la présentation d’une demande est par la suite requise pour le versement d’un supplément pour un ou plusieurs mois ultérieurs de la même période de paiement, il est tenu, au moins quinze jours avant le mois ultérieur — ou le premier des mois ultérieurs — en question, d’aviser par écrit le pensionné de la nécessité de présenter une demande.
1995, c. 33, s. 6
455. The portion of subsection 14(1.1) of the Act before paragraph (a) is replaced by the following:
Minister may estimate income
(1.1) If the requirement for an application for payment of a supplement for any month has been waived under subsection 11(3.1) or (4), the Minister may, on the basis of the information available to him or her, 456. Section 15 of the Act is amended by adding the following after subsection (2.2):
Notice of intent
(2.3) If the Minister intends to waive the requirement for an application in respect of a person under subsection 11(3.1) and the person has a spouse or common-law partner, the Minister shall notify the spouse or commonlaw partner in writing of that intention and provide the spouse or common-law partner with the information regarding them on which the Minister intends to rely to approve the payment of a supplement.
Inaccuracies
(2.4) The person’s spouse or common-law partner shall, before the day on which the person attains 65 years of age, file with the Minister a statement in which the spouse or
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common-law partner corrects any inaccuracies in the information provided by the Minister under subsection (2.3). 1995, c 33, s. 8
457. Subsection 16(1) of the Act is replaced by the following:
Consideration of application or waiver
16. (1) The Minister shall, without delay after receiving an application for payment of a supplement under subsection 11(2) or after waiving the requirement for an application for payment of a supplement under subsection 11(3.1) or (4), as the case may be, consider whether the applicant is entitled to be paid a supplement, and may approve payment of a supplement and fix its amount, or may determine that no supplement may be paid. 458. The Act is amended by adding the following after section 18: CESSATION OF PAYMENT
Request that supplement cease to be payable
18.1 If a pensioner makes a request to the Minister in writing that their supplement cease to be payable, it shall cease to be payable on the last day of the month in which the Minister approves the request and shall not resume until the later of the month after the month in which the Minister receives a new application for the supplement and the month chosen by the pensioner in the application. CANCELLATION OF PAYMENT
Request to cancel supplement
18.2 (1) A pensioner may, in the prescribed manner and within the prescribed time after payment of a supplement has commenced, request cancellation of that supplement.
Effect of cancellation
(2) If the request is granted and the amount of any supplement and related allowance is repaid within the prescribed time, (a) the application for that supplement is deemed never to have been made; and (b) the supplement is deemed for the purposes of this Act not to have been payable during the period in question.
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459. (1) Subsection 19(4) of the Act is replaced by the following:
Presumption
(3.1) If the Minister intends to waive the requirement for an application in respect of a person under subsection (4.02) and the information available to the Minister under this Act with respect to that person includes the prescribed information, the person is presumed, in the absence of evidence to the contrary, to have met the requirements of (a) paragraph (1)(c); or (b) paragraph (2)(a) or (b).
Annual application
(4) Subject to subsections (4.02) and (4.1), no allowance may be paid under this section to a pensioner’s spouse or common-law partner in any payment period unless a joint application of the pensioner and the spouse or common-law partner, or an application described in section 30, has been made for payment of an allowance in respect of that payment period and payment of the allowance has been approved under this Part. (2) Section 19 of the Act is amended by adding the following after subsection (4.01):
Waiver of application
(4.02) The Minister may, in respect of a person, waive the requirement referred to in subsection (4) for an application for an allowance for any month or months in a payment period if the Minister is satisfied, based on information available to him or her under this Act, that the person is qualified under this section for the payment of an allowance.
Timing of waiver
(4.03) The Minister may only waive the requirement referred to in subsection (4) in respect of a person (a) on the day on which the pensioner’s spouse or common-law partner attains 60 years of age; or (b) on the day on which the pensioner attains 65 years of age if, on that day, the spouse or common-law partner is at least 60 years of age.
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Notice of intent
(4.04) If the Minister intends to waive the requirement for an application in respect of a person under subsection (4.02), the Minister shall notify the person in writing of that intention and provide them with the information on which the Minister intends to rely to approve the payment of an allowance.
Inaccuracies
(4.05) The person shall, before the day referred to in paragraph (4.03)(a) or (b), file with the Minister a statement in which the person corrects any inaccuracies in the information provided by the Minister under subsection (4.04).
Declining waiver
(4.06) The person may, before the day referred to in paragraph (4.03)(a) or (b), decline the waiver of the requirement for an application by notifying the Minister in writing of their decision to do so.
Cancellation of waiver
(4.07) Even if the requirement for an application has been waived in respect of a person under subsection (4.02), the Minister may, before the day referred to in paragraph (4.03)(a) or (b), require that the person make an application for payment of an allowance and, in that case, the Minister shall notify the person in writing of that requirement.
1995, c. 33, s. 11(1); 1998, c. 21, par. 119(1)(f); 2000, c. 12, par. 208(1)(b) and 209(j)(E)
460. Subsection 21(4) of the Act is replaced by the following:
Presumption
(3.1) If the Minister intends to waive the requirement for an application in respect of a survivor under subsection (4.1) and the information available to the Minister under this Act with respect to the survivor includes the prescribed information, the survivor is presumed, in the absence of evidence to the contrary, to have met the requirements of
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(a) paragraph (1)(b); or (b) paragraph (2)(a) or (b). Annual application
(4) Subject to subsections (4.1), (5) and (5.1), no allowance may be paid to a survivor under this section in any payment period unless the survivor has made an application for an
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Waiver of application
(4.1) The Minister may, in respect of a survivor, waive the requirement referred to in subsection (4) for an application for payment of an allowance for any month or months in a payment period if, on the day on which the survivor attains 60 years of age, the Minister is satisfied, based on information available to him or her under this Act, that the survivor is qualified under this section for the payment of an allowance.
Notice of intent
(4.2) If the Minister intends to waive the requirement for an application in respect of a survivor under subsection (4.1), the Minister shall notify the survivor in writing of that intention and provide them with the information on which the Minister intends to rely to approve the payment of an allowance.
Inaccuracies
(4.3) The survivor shall, before the day on which they attain 60 years of age, file with the Minister a statement in which the survivor corrects any inaccuracies in the information provided by the Minister under subsection (4.2).
Declining waiver
(4.4) The survivor may, before the day on which they attain 60 years of age, decline a waiver of the requirement for an application by notifying the Minister in writing of their decision to do so.
Cancellation of waiver
(4.5) Even if the requirement for an application is intended to be waived in respect of a survivor under subsection (4.1), the Minister may, before the day on which the survivor attains 60 years of age, require that the survivor make an application for payment of an allowance and, in that case, the Minister shall notify the survivor in writing of that requirement.
2000, c. 12, par. 209(p)(E)
461. Subsection 23(2) of the French version of the Act is replaced by the following:
Exception
(2) Toutefois, si le demandeur a déjà atteint l’âge de soixante ans au moment de la réception de la demande, l’effet de l’agrément peut être rétroactif à la date fixée par règlement, celle-ci
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ne pouvant être antérieure au jour où il atteint cet âge ni précéder de plus d’un an le jour de réception de la demande. 1995, c. 33, s. 14; 2000, c. 12, par. 209(p)(E)
462. Subsection 24(1) of the Act is replaced by the following:
Consideration of application or waiver
24. (1) The Minister shall, without delay after receiving an application for an allowance under subsection 19(4) or 21(4) or after waiving the requirement for an application for an allowance under subsection 19(4.02) or (4.1) or 21(4.1) or (5.1), as the case may be, consider whether the applicant is entitled to be paid an allowance, and may approve payment of an allowance and fix the amount of benefits that may be paid, or may determine that no allowance may be paid. 463. The Act is amended by adding the following after section 26: CESSATION OF PAYMENT
Request that allowance cease to be payable
26.01 If a person makes a request to the Minister in writing that their allowance cease to be payable, it shall cease to be payable on the last day of the month in which the Minister approves the request and shall not resume until the later of the month after the month in which the Minister receives a new application for the allowance and the month chosen by the person in the application. CANCELLATION OF PAYMENT
Request to cancel allowance
26.02 (1) A person may, in the prescribed manner and within the prescribed time after payment of an allowance has commenced, request cancellation of that allowance.
Effect of cancellation
(2) If the request is granted and the amount of the allowance is repaid within the prescribed time, (a) the application for that allowance is deemed never to have been made; and (b) the allowance is deemed for the purposes of this Act not to have been payable during the period in question. 464. The Act is amended by adding the following after section 26.1:
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Inviting persons to apply
26.2 The Minister may invite persons to make an application for benefits under this Act and may, for that purpose, collect personal information and make available or use personal information available to him or her under this Act.
1997, c. 40, s. 102; 2000, c. 12, par. 207(1)(l); 2001, c. 27, s. 267; 2005, c. 35, par. 66(e)
465. Paragraphs 33.11(a) and (b) of the Act are replaced by the following:
(a) the Minister of National Revenue or any person that he or she designates may make available to the Minister, or to a public officer of the Department of Human Resources and Skills Development that is designated by the Minister, a report providing information that is available to the Minister of National Revenue, if the information is necessary for the administration of this Act; (b) the Minister of Citizenship and Immigration and officers and employees of the Department of Citizenship and Immigration may make available to the Minister, or to a public officer of the Department of Human Resources and Skills Development, any information that was obtained in the administration of the Citizenship Act or the Immigration and Refugee Protection Act, if the information is necessary for the administration of this Act; 466. Subsection 44.1(1) of the Act is amended by adding the following after paragraph (a): (a.1) knowingly failed to correct any inaccuracies in the information provided by the Minister as required by subsection 5(6), 11(3.3), 15(2.4), 19(4.05) or 21(4.3);
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Order in council
467. (1) The provisions of this Division, other than sections 445 to 448, 451, 452, 461, 464 and 465, come into force on a day or days to be fixed by order of the Governor in Council.
July 1, 2013
(2) Sections 446, 448 and 451 come into force on July 1, 2013. DIVISION 25
R.S., c. S-3
SALARIES ACT Amendment to the Act
2006, c. 9, s. 227
468. The heading before section 1.1 and sections 1.1 and 1.2 of the Salaries Act are repealed. Consequential Amendments
R.S., c. A-1 SOR/2006-70, s. 1
R.S., c. F-11 SOR/2006-68, s. 1
Access to Information Act 469. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Public Appointments Commission Secretariat Secrétariat de la Commission des nominations publiques Financial Administration Act 470. Schedule I.1 to the Financial Administration Act is amended by striking out, in column I, the reference to Public Appointments Commission Secretariat Secrétariat de la Commission des nominations publiques and the corresponding reference in column II to “Prime Minister”.
SOR/2006-69, s. 1
471. Schedule IV to the Act is amended by striking out the following: Public Appointments Commission Secretariat Secrétariat de la Commission des nominations publiques
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2011-2012 R.S., c. P-21
SOR/2006-71, s. 1
Privacy Act 472. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Public Appointments Commission Secretariat Secrétariat de la Commission des nominations publiques DIVISION 26
R.S., c. S-8
SEEDS ACT Amendments to the Act 473. (1) Subsection 4(1) of the Seeds Act is amended by adding the following after paragraph (b): (b.1) respecting licences referred to in section 4.2, including their issuance, the conditions to which they may be subject and their amendment, suspension or revocation; (2) Subsection 4(1) of the Act is amended by adding the following after paragraph (j): (j.1) requiring persons to whom the Act or regulations apply to prepare and maintain records and to provide them or make them available to the President of the Canadian Food Inspection Agency or an inspector and respecting the information in those records and the manner in which they are to be prepared, maintained and provided or made available; 474. The Act is amended by adding the following after section 4.1: LICENCE
Issuance of licence
4.2 (1) The President of the Canadian Food Inspection Agency may, subject to the regulations, issue a licence authorizing any person to perform any activity specified in the licence that is related to controlling or assuring the quality of seeds or seed crops, including the sampling, testing, grading or labelling of seeds.
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Conditions
(2) The President may, subject to the regulations, make the licence subject to any condition that he or she considers appropriate.
Not transferable Amendment
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(3) The licence is not transferable. (4) The President may, subject to the regulations, amend, suspend or revoke the licence. Coordinating Amendments
2011, c. 25
475. (1) In this section, “other Act” means the Marketing Freedom for Grain Farmers Act. (2) If section 38 of the other Act comes into force before subsection 473(1) of this Act, then that subsection 473(1) is replaced by the following: 473. (1) Subsection 4(1) of the Seeds Act is amended by adding the following after paragraph (b): (b.1) respecting licences referred to in section 4.1, including their issuance, the conditions to which they may be subject and their amendment, suspension or revocation; (3) If section 38 of the other Act comes into force on the same day as subsection 473(1) of this Act, then that section 38 is deemed to have come into force before that subsection 473(1) and subsection (2) applies as a consequence. (4) If section 38 of the other Act comes into force before section 474 of this Act, then that section 474 is replaced by the following: 474. The Act is amended by adding the following after section 4: LICENCE
Issuance of licence
4.1 (1) The President of the Canadian Food Inspection Agency may, subject to the regulations, issue a licence authorizing any person to perform any activity specified in the licence that
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Conditions
Not transferable Amendment
(2) The President may, subject to the regulations, make the licence subject to any condition that he or she considers appropriate. (3) The licence is not transferable. (4) The President may, subject to the regulations, amend, suspend or revoke the licence. (5) If section 38 of the other Act comes into force on the same day as section 474 of this Act, then that section 38 is deemed to have come into force before that section 474 and subsection (4) applies as a consequence. DIVISION 27
R.S., c. S-22
STATUTORY INSTRUMENTS ACT Amendments to the Act 476. Section 13 of the Statutory Instruments Act and the heading before it are repealed.
2000, c. 5, s. 59
477. Paragraph 16(3)(b) of the Act is replaced by the following: (b) if a regulation is included in a copy of a revision of regulations purporting to be published by the Queen’s Printer, that regulation is deemed to have been published in the Canada Gazette. Coming into Force
Order in council
478. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 28
R.S., c. 28 (1st Supp.)
INVESTMENT CANADA ACT 479. Section 19 of the Investment Canada Act is renumbered as subsection 19(1) and is amended by adding the following:
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Security
(2) Her Majesty in right of Canada may accept any security for payment in respect of any penalty that may be imposed under paragraph 40(2)(d).
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480. (1) Subparagraph 36(4)(e)(ii) of the Act is replaced by the following: (ii) any notice sent under subsection 21(1) or (9), 22(2) or (4) or 23(1) or (3), or (2) Subsection 36(4) of the Act is amended by adding the following after paragraph (e): (e.1) information contained in reasons given by the Minister for sending a notice under subsection 23(1); (3) Subsection 36(4) of the Act is amended by striking out “or” at the end of paragraph (f), by adding “or” at the end of paragraph (g) and by adding the following after paragraph (g): (h) information relating to the acceptance of security under subsection 19(2). 2009, c. 2 s. 457(6)
(4) Subsection 36(4.1) of the Act is replaced by the following:
Information referred to in paragraph (4)(e.1), (g) or (h)
(4.1) The Minister shall inform the Canadian or non-Canadian before communicating or disclosing any financial, commercial, scientific or technical information under paragraph (4) (e.1), (g) or (h), and the Minister shall not communicate or disclose the information if they satisfy the Minister, without delay, that the communication or disclosure would prejudice them. DIVISION 29
R.S., c. 1 (2nd Supp.)
CUSTOMS ACT 481. The Customs Act is amended by adding the following after section 11.5:
Designation of mixed-traffic corridor
11.6 (1) If the Minister considers that it is necessary in the public interest, he or she may designate as a mixed-traffic corridor a portion of a roadway or other access way that
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Amendment, etc., of designation
(2) The Minister may amend, cancel or reinstate at any time a designation made under this section.
Person travelling in mixed-traffic corridor
11.7 Every person who is travelling in a mixed-traffic corridor shall present themselves to an officer at the nearest customs office and state whether they are arriving from a location outside or within Canada. 482. The Act is amended by adding the following after section 99.4:
Powers of officer — mixedtraffic corridor
99.5 If an officer has reasonable grounds to suspect that a person, having stated under section 11.7 that they arrived from a location within Canada, did in fact arrive from a location outside Canada, the officer may (a) question the person; and (b) examine any goods carried by the person, cause any package or container of the goods to be opened and take samples of the goods in reasonable amounts. DIVISION 30
R.S., c. 32 (2nd Supp.)
PENSION BENEFITS STANDARDS ACT, 1985
2010, c. 12, s. 1820(12)
483. Subsections 39(2) and (3) of the Pension Benefits Standards Act, 1985 are deemed to have come into force on July 27, 2004. DIVISION 31
R.S., c. 32 (4th Supp.)
RAILWAY SAFETY ACT Amendments to the Act 484. (1) Section 16 of the Railway Safety Act is amended by adding the following after subsection (4):
Limitation
(4.1) However, if a grant has been made under section 12 in respect of the railway work, and the proponent of the railway work, or any
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beneficiary of it, is a road authority, the maximum amount of the construction and alteration costs of the railway work that the Agency may, under subsection (4), apportion to the road authority is 12.5% of those costs or, if a higher percentage is prescribed, that higher percentage. (2) Section 16 of the Act is amended by adding the following after subsection (5): Regulations – exemption
(5.1) The Governor in Council may make regulations exempting any railway work, or any person or railway company, from the application of subsection (4.1).
Clarification
(5.2) A regulation made under subsection (5.1) may exempt a group or class of persons or railway companies, or a kind of railway work.
1999, c. 9, s. 36
485. Subsection 50(1) of the Act is replaced by the following:
Publication of proposed regulations
50. (1) Subject to subsection (2), a copy of each regulation that is proposed to be made under subsection 7(1), section 7.1, subsection 16(5.1) or section 18, 24, 37, 47 or 47.1 shall be published in the Canada Gazette at least 90 days before its proposed effective date, and interested persons shall be given a reasonable opportunity within those 90 days to make representations to the Minister with respect to the regulation. Coming into Force
April 1, 2013
486. This Division comes into force on April 1, 2013. DIVISION 32
R.S., c. 47 (4th Supp.)
CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT Amendments to the Act
2010, c. 12, s. 1695
487. Subsection 3(1) of the Canadian International Trade Tribunal Act is replaced by the following:
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Tribunal established
3. (1) There is established a tribunal, to be known as the Canadian International Trade Tribunal, consisting, subject to subsection (2), of a Chairperson and not more than six other permanent members to be appointed by the Governor in Council.
1999, c. 12, s. 55(E)
488. Subsection 8(1) of the Act is replaced by the following:
Absence, etc., of Chairperson
8. (1) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Minister may authorize a permanent member to act as Chairperson but no person is authorized to act as Chairperson for a period exceeding 60 days without the approval of the Governor in Council. A permanent member so authorized has and may exercise and perform all the powers, duties and functions of the Chairperson. Coming into Force
February 1, 2014
489. This Division comes into force on February 1, 2014. DIVISION 33
R.S., c. 54 (4th Supp.)
INTERNATIONAL CENTRE FOR HUMAN RIGHTS AND DEMOCRATIC DEVELOPMENT ACT Amendment to the Act 490. Subsection 31(1) of the International Centre for Human Rights and Democratic Development Act is replaced by the following:
Annual report to Parliament
31. (1) The Chairman shall, within four months after the end of each fiscal year, transmit to the Minister a report containing the Centre’s financial statements for that fiscal year and the Auditor General’s report on them. Interpretation
Definitions
491. In this Division, “Board”, “Centre”, “Chairman”, “director”, “Minister” and “President” have the same meanings as in subsection 2(1) of the International Centre for Human Rights and Democratic Development Act.
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Application
492. Sections 493 to 495 apply despite any provision of the International Centre for Human Rights and Democratic Development Act.
Number of directors
493. (1) The Board may consist of fewer than 13 directors.
No appointment by Board
(2) The Board is not permitted to appoint directors under subsection 10(2) of the International Centre for Human Rights and Democratic Development Act.
Quorum
(3) Five directors constitute a quorum at any meeting of the Board.
No compensation
(4) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a director, other than the President, has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Disposal of assets
494. (1) The Centre is authorized to sell or otherwise dispose of all or substantially all of its assets and do everything necessary for or incidental to closing out its affairs.
Debts and liabilities
(2) The Centre must apply any proceeds from the disposal of its assets in satisfaction of its debts and liabilities.
Directions
(3) The Minister may give directions to the Centre to do anything that in his or her opinion is necessary (a) in respect of the exercise of its powers under subsection 5(1) of the International Centre for Human Rights and Democratic Development Act; and (b) to sell or otherwise dispose of all or substantially all of its assets, satisfy its debts and liabilities, manage its expenses or otherwise close out its affairs.
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Directions binding
(4) The Centre must comply with the directions.
Transfer of records
495. The President must transfer to the Department of Foreign Affairs and International Trade the following items, including any electronic versions of them: (a) the books of account and other financial records, as well as any information that the Centre collected in order to produce them; and (b) any studies that the Centre has under its control, and any other information that it has collected through research. Transitional Provisions
References
496. Every reference to the Centre in a deed, contract or other document executed by the Centre in its own name is to be read, unless the context otherwise requires, as a reference to Her Majesty in right of Canada.
Surplus
497. (1) Any surplus that remains after the satisfaction of the Centre’s debts and liabilities belongs to Her Majesty in right of Canada.
Unsatisfied debts and liabilities
(2) Any of the Centre’s debts and liabilities that remain unsatisfied on the day on which this subsection comes into force become the debts and liabilities of Her Majesty in right of Canada.
Commencement of legal proceedings
498. (1) Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Centre may be brought against Her Majesty in right of Canada in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the Centre.
Continuation of legal proceedings
(2) Any action, suit or other legal proceeding to which the Centre is a party that is pending in a court on the coming into force of this subsection may be continued by or against Her Majesty in right of Canada in
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the same manner and to the same extent as it could have been continued by or against the Centre. Auditor
499. After the closing out of the Centre’s affairs, its accounts and financial transactions shall be audited by the Auditor General of Canada, and a report of the audit shall be made to the Minister.
Report to Parliament
500. The Minister shall prepare a report, containing the Centre’s financial statements and the Auditor General’s report, within four months after this section comes into force, and shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the day on which the report is completed. Consequential Amendments
R.S., c. A-1 SOR\90-325, s. 1
R.S., c. P-21
SOR\90-326, s. 1
Access to Information Act 501. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: International Centre for Human Rights and Democratic Development Centre international des droits de la personne et du développement démocratique Privacy Act 502. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: International Centre for Human Rights and Democratic Development Centre international des droits de la personne et du développement démocratique
R.S., c. P-36 R.S., c. 54 (4th Supp.), s. 32
Public Service Superannuation Act 503. Part I of Schedule I to the Public Service Superannuation Act is amended by striking out the following:
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International Centre for Human Rights and Democratic Development Centre international des droits de la personne et du développement démocratique Repeal Repeal of R.S., c. 54 (4th Supp.)
504. The International Centre for Human Rights and Democratic Development Act is repealed. Coming into Force
Order in council
505. Sections 496 to 504 come into force on a day to be fixed by order of the Governor in Council. DIVISION 34
1990, c. 21
HEALTH OF ANIMALS ACT Amendments to the Act 506. The heading before section 22 of the Health of Animals Act is replaced by the following: INFECTED PLACES AND CONTROL ZONES 507. Subsection 25(1) of the Act is replaced by the following:
Prohibition — infected place
25. (1) No person shall, without a licence issued by an inspector or officer, remove from or take into an infected place any animal or thing. 508. Sections 26 to 28 of the Act are replaced by the following:
Declaration that place no longer infected
26. A place, or any part of a place, that has been constituted to be an infected place by the delivery of a declaration under section 22 or 23 ceases to be an infected place when an inspector or officer declares in writing that (a) the disease or toxic substance described in the declaration (i) does not exist in, or will not spread from, the place or the part of the place, or (ii) is not injurious to the health of persons or animals; or
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(b) the infected place is located in an area that the Minister has declared to be a primary control zone in respect of that disease or toxic substance. Primary control zone
27. (1) If the Minister believes that a disease or toxic substance exists in an area, he or she may, by order, declare the area to be a primary control zone, in which case the Minister shall describe the zone and identify the disease or toxic substance.
Designated animal or thing
(2) The Minister may, by order, designate any animal or thing that is capable of being affected or contaminated by the disease or toxic substance in respect of which the primary control zone is declared.
Prohibition — primary control zone
(3) No person shall remove from, move within or take into the primary control zone a designated animal or thing except in accordance with a permit issued by the Minister.
Secondary control zone
27.1 (1) If the Minister makes an order under subsection 27(1), he or she may — for the purpose of preventing the spread of the disease or toxic substance identified in the order or monitoring that disease or toxic substance — by order, declare any area that he or she considers necessary to be a secondary control zone, in which case the Minister shall describe the zone.
Disease outside Canada
(2) If the Minister believes that a disease or toxic substance exists in an area outside Canada, he or she may — for the purpose of preventing the spread of that disease or toxic substance into Canada or monitoring that disease or toxic substance — by order, declare any area in Canada that he or she considers necessary to be a secondary control zone, in which case the Minister shall describe the zone and identify that disease or toxic substance.
Designated animal or thing
(3) The Minister may, by order, designate any animal or thing that is capable of being affected or contaminated by the disease or toxic substance in respect of which the secondary control zone referred to in subsection (2) is declared.
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Conditions
(4) The Minister may, by order, prohibit or impose conditions on — including requiring a permit for — removing from, moving within or taking into a secondary control zone a designated animal or thing.
Compliance
(5) Any person to whom an order made under subsection (4) applies shall comply with it.
Permits
27.2 A permit referred to in subsection 27(3) or 27.1(4) may be issued as a general permit to owners or persons having the possession, care or control of a designated animal or thing.
Order amended
27.3 The Minister may, by order, amend or revoke an order made under subsection 27(1) or (2) or one made under any of subsections 27.1(1) to (4).
Measures
27.4 The Minister may take all reasonable measures that are consistent with public safety to remedy any dangerous condition or mitigate any danger to life, health, property or the environment that results, or may reasonably be expected to result, from the existence of a disease or toxic substance in a primary control zone.
Regulations
27.5 The Minister may make regulations prohibiting or regulating the movement of persons or designated animals or things from, within or into a primary or secondary control zone for the purpose of controlling or eliminating a disease or toxic substance, in respect of which the primary control zone or a secondary control zone referred to in subsection 27.1(2) was declared, or preventing its spread.
Treatment or disposal
27.6 (1) The Minister may, in respect of a designated animal or thing that is or has been in a primary or secondary control zone, (a) treat that animal or thing or require its owner or the person having the possession, care or control of it to treat it or to have it treated if the Minister considers that the treatment will be effective in eliminating the disease or toxic substance or preventing its spread; or
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(b) dispose of that animal or thing or require its owner or the person having the possession, care or control of it to dispose of it.
Return animal or thing
(2) If an inspector or officer believes on reasonable grounds that a designated animal or thing has been removed from, moved within or taken into a primary control zone in contravention of subsection 27(3) — or a secondary control zone in contravention of an order made under subsection 27.1(4) — the inspector or officer may, whether or not that animal or thing is seized, move it to any place or require its owner or the person having the possession, care or control of it to move it to any place.
Notice
(3) A requirement under subsection (1) or (2) shall be communicated by the personal delivery of a notice to the owner or person having the possession, care or control of the animal or thing, or by sending the notice to the owner or person. The notice shall specify the period within which and the manner in which the requirement is to be met.
Statutory Instruments Act
28. (1) The Statutory Instruments Act does not apply in respect of a declaration under section 22, 23 or 26, an order made under subsection 27(1) or (2), any of subsections 27.1(1) to (4) or section 27.3 or a permit referred to in subsection 27(3) or 27.1(4) that is issued as a general permit.
Accessibility
(2) The Minister shall take any steps that may be reasonable in the circumstances to make the order or general permit accessible to persons likely to be affected by it. 509. Section 33 of the Act is replaced by the following:
Inspectors and officers may exercise Minister’s powers
33. (1) An inspector or officer may, subject to any restrictions or limitations specified by the Minister, exercise any of the powers and perform any of the duties or functions of the
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Minister’s power — section 27.3
(2) An inspector or officer may, subject to any restrictions or limitations specified by the Minister, exercise the Minister’s powers under section 27.3 only in respect of orders made under subsections 27(2) and 27.1(3) and (4).
1997, c. 6, s. 70
510. Section 53 of the Act is replaced by the following:
Compensation for costs of treatment
53. The Minister may order compensation to be paid from the Consolidated Revenue Fund to a person for costs incurred with respect to treatment required under paragraph 27.6(1)(a) or subsection 48(2), and the amount of compensation shall be the costs reasonably incurred by the person, as determined by the Minister. 511. (1) Subsection 61(1) of the Act is replaced by the following:
Fees, charges and costs related to measures
61. (1) Her Majesty may recover from any person mentioned in subsection (2) any prescribed fees or charges and any costs incurred by Her Majesty in relation to taking any measures under section 27.4. (2) Subsection 61(2) of the English version of the Act is replaced by the following:
Persons liable
(2) The fees, charges and costs are recoverable from any persons who through their fault or negligence, or that of others for whom in law they are responsible, caused or contributed to the causation of the existence or spread of the disease or toxic substance in respect of which a primary control zone was declared. 512. (1) Paragraph 64(1)(h) of the French version of the Act is replaced by the following: h) régir ou interdire le déplacement, au Canada, soit d’animaux, de leurs produits, sous-produits et aliments, de vecteurs, d’agents causant des maladies ainsi que de fourrage, soit d’autres choses se rapportant aux animaux et susceptibles d’être contaminées par une maladie ou une substance toxique;
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(2) Subsection 64(1) of the Act is amended by adding the following after paragraph (z.3): (z.3.1) requiring persons to provide information to the Minister or any other person authorized by the Minister, in the form and manner that the Minister or other person, as the case may be, directs, on the movement of animals or things to which this Act or the regulations apply; 513. The portion of subsection 65(1) of the French version of the Act before paragraph (a) is replaced by the following: Infraction
65. (1) Quiconque contrevient aux dispositions de la présente loi — à l’exception de l’article 15 — ou des règlements ou refuse ou néglige d’accomplir une obligation imposée sous le régime de la présente loi commet une infraction et encourt, sur déclaration de culpabilité : 514. The portion of section 66 of the Act before paragraph (a) is replaced by the following:
Failure to comply with notices
66. Every person who fails to comply with a notice delivered to them under section 18, 25, 27.6, 37, 43 or 48 or the regulations is guilty of
Coming into Force January 1, 2013 or royal assent
515. This Division comes into force on January 1, 2013 or, if it is later, on the day on which this Act receives royal assent. DIVISION 35
1991, c. 16; 2003, c. 22, s. 22
CANADA SCHOOL OF PUBLIC SERVICE ACT Amendments to the Act
2003, c. 22, s. 23(2); 2010, c. 12, s. 1671
516. The definitions “Board” and “public sector” in section 2 of the Canada School of Public Service Act are repealed. 517. The Act is amended by adding the following after section 3:
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Minister responsible
3.1 The Minister is responsible for and has the overall direction of the School.
2003, c. 22, ss. 27 and 29 and par. 225(i)(E); 2010, c. 12, ss. 1672 and 1673
518. The heading before section 7 and sections 7 to 12 of the Act are repealed.
2003, c. 22, ss. 30 and 132.1
519. Section 13 of the Act is replaced by the following:
Appointment
13. (1) The Governor in Council shall appoint an officer, to be called the President of the School, to hold office for a term not exceeding five years, and the President has the rank and status of a deputy minister.
Chief executive officer
(2) The President is the School’s chief executive officer and has the management and control of it.
Exercise of powers
(3) In exercising his or her powers of management and control, the President shall take into consideration the policies of the Government of Canada as well as the policies with respect to learning, training and developmental needs and priorities that are established by the Treasury Board under paragraph 11.1(1)(f) of the Financial Administration Act.
Acting President
(4) In the event of a vacancy in the office of President, the Minister may appoint a senior officer of the School to act as President, but the term of such an appointment shall not exceed 90 days except with the Governor in Council’s approval.
2003, c. 22, s. 32
520. Section 17 of the Act and the heading before it are repealed.
2003, c. 22, s. 32
521. The portion of subsection 18(1) of the Act before paragraph (a) is replaced by the following:
Setting amount of fees
18. (1) The President may, with the Treasury Board’s approval, prescribe the fees or the manner of determining the fees
2003, c. 22, s. 34
522. Subsections 19(1) to (3) of the Act are replaced by the following:
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Annual report
19. (1) The Minister shall, as soon as feasible after the end of each fiscal year but no later than the end of the calendar year in which that fiscal year ends, cause to be laid before each House of Parliament a report of the operations of the School for that fiscal year.
Reports required by Treasury Board
(2) The obligation imposed by subsection (1) may be satisfied by the tabling of any reports of the School’s operations required by the Treasury Board that contain the information required by that subsection.
Review and report
(3) The President shall, before December 1, 2006 and within every five years after that date, cause a review and report to be made of the School’s activities and organization.
R.S., c. F-11
Consequential Amendments to the Financial Administration Act
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523. Part II of Schedule VI to the Financial Administration Act is amended by adding, in alphabetical order, in column I, a reference to Canada School of Public Service École de la fonction publique du Canada and a corresponding reference in column II to “President”. 2006, c. 9, s. 270
524. Part III of Schedule VI to the Act is amended by striking out, in column I, the reference to Canada School of Public Service École de la fonction publique du Canada and the corresponding reference in column II to “President”. DIVISION 36
1991, c. 46
BANK ACT 525. The Bank Act is amended by adding the following before the enacting clause:
Preamble
Whereas a strong and efficient banking sector is essential to economic growth and prosperity; Whereas a legislative framework that enables banks to compete effectively and be resilient in a rapidly evolving marketplace, taking into
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DIVISION 37 1992, c. 20
CORRECTIONS AND CONDITIONAL RELEASE ACT Amendments to the Act
1995, c. 42, s. 38
526. Subsection 124(4) of the Corrections and Conditional Release Act is replaced by the following:
Review
(4) If the Board exercises its power under subsection (3), it shall, within the period prescribed by the regulations, review its decision and either confirm or cancel it. 527. Paragraph 140(1)(d) of the Act is replaced by the following: (d) a review following a cancellation of parole; and Transitional Provision
Hearings
528. Paragraph 140(1)(d) of the Corrections and Conditional Release Act, as enacted by section 527, applies only in respect of a review of the case of an offender begun on or after the day on which this section comes into force. Coordinating Amendments
2012, c. 1
529. (1) In this section, “other Act” means the Safe Streets and Communities Act. (2) On the first day on which both subsection 89(4) of the other Act and section 527 of this Act are in force, the portion of
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subsection 135(5) of the English version of the Corrections and Conditional Release Act before paragraph (a) is replaced by the following: Review by Board — sentence of two years or more
(5) The Board shall, on the referral to it of the case of an offender who is serving a sentence of two years or more, review the case and — within the period prescribed by the regulations unless, at the offender’s request, the review is adjourned by the Board or is postponed by a member of the Board or by a person designated by the Chairperson by name or position — (3) On the first day on which both subsection 89(5) of the other Act and section 527 of this Act are in force, subsection 135(6.4) of the Corrections and Conditional Release Act is replaced by the following:
Review
(6.4) If the Board exercises its power under subsection (6.3), it shall, within the period prescribed by the regulations, review its decision and either confirm or cancel it. Coming into Force
Order in council
530. Sections 526 to 528 come into force on a day to be fixed by order of the Governor in Council. DIVISION 38
1992, c. 31
COASTING TRADE ACT 531. Subsection 3(2) of the Coasting Trade Act is amended by adding the following after paragraph (c): (c.1) engaged in seismic activities in waters above the continental shelf of Canada that are in relation to the exploration for mineral or non-living natural resources of the continental shelf of Canada;
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Emploi, croissance e DIVISION 39
1992, c. 33
STATUS OF THE ARTIST ACT Amendments to the Act 532. (1) The definition “Tribunal” in section 5 of the Status of the Artist Act is repealed. (2) Paragraph (b) of the definition “party” in section 5 of the Act is replaced by the following: (b) in respect of a complaint made to the Board, the complainant or the person or organization that is the object of the complaint; (3) Section 5 of the Act is amended by adding the following in alphabetical order:
“Board” « Conseil »
1998, c. 26, s. 83
“Board” means the Canada Industrial Relations Board established by section 9 of the Canada Labour Code. 533. Paragraph 9(3)(b) of the Act is replaced by the following: (b) employees, within the meaning of Part I of the Canada Labour Code, including those determined to be employees by the Board, and members of a bargaining unit that is certified by the Board.
1995, c. 11, ss. 39 and 40; 2003, c. 22, s. 221(E) and par. 225(z.25)(E)
534. The headings before section 10 and sections 10 to 15 of the Act are replaced by the following: CANADA INDUSTRIAL RELATIONS BOARD 535. (1) The portion of section 16 of the Act before paragraph (a) is replaced by the following:
Regulations
16. The Board may make any regulations that it considers conducive to the performance of its duties under this Part, and in particular regulations providing for (2) Paragraph 16(a) of the English version of the Act is replaced by the following: (a) the practice and procedure before the Board, including the assessment and awarding of costs;
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(3) Paragraphs 16(d) to (h) of the English version of the Act are replaced by the following: (d) the period for submission by an artists’ association of a new application for certification, if the Board previously refused to certify the association in respect of the same or substantially the same sector; (e) the period for submission of an application for revocation of the certification of an artists’ association, if the Board previously refused an application for revocation in respect of the same sector; (f) the forms to be used in any proceeding that may come before the Board; (g) the periods in which and the circumstances under which the Board may exercise its powers under section 20; (h) the period and form in which evidence and information may be presented to the Board in connection with any proceeding before it; (4) Paragraphs 16(k) and (l) of the English version of the Act are replaced by the following: (k) the circumstances in which the Board may receive evidence in order to establish whether any artists wish to be represented by a particular artists’ association, and the circumstances in which that evidence may not be made public; and (l) the delegation to any person of the Board’s powers and duties, other than the power to delegate or to make regulations, and that person’s obligations with respect to those powers and duties. 536. (1) The portion of section 17 of the Act before paragraph (a) is replaced by the following: Board’s powers
17. The Board may, in relation to any proceeding before it under this Part, (2) Paragraph 17(a) of the English version of the Act is replaced by the following:
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Emploi, croissance e (a) on application or of its own motion, summon and enforce the attendance of any person whose testimony is necessary, in the Board’s opinion, and compel the person to give oral or written evidence on oath and to produce any documents or things that the Board considers necessary for the full investigation and consideration of any matter within its jurisdiction; (3) Paragraph 17(d) of the English version of the Act is replaced by the following: (d) examine any evidence that is submitted to the Board respecting the membership of any artist in an artists’ association that is seeking certification; (4) Paragraphs 17(g) to (i) of the English version of the Act are replaced by the following: (g) require a producer or an artists’ association to post in appropriate places and keep posted a notice concerning any matter relating to the proceeding that the Board considers necessary to bring to the attention of artists; (h) order, at any time before the conclusion of the proceeding, that (i) a representation vote or an additional representation vote be taken among artists affected by the proceeding, whether or not a representation vote is provided for elsewhere in this Part, if the Board considers that the vote would assist it to decide any question that has arisen or is likely to arise in the proceeding, and (ii) the ballots cast in that representation vote be sealed in ballot boxes and counted only as directed by the Board; (i) authorize any person to do anything that the Board may do under paragraphs (a) to (h), and to report to the Board on it; 537. The portion of section 18 of the Act before paragraph (a) is replaced by the following:
Criteria for application by Board
18. The Board shall take into account
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2002, c. 8, par. 182(1)(z.12)
538. Sections 19 to 21 of the Act are replaced by the following:
Informal proceedings
19. (1) In any proceeding before it under this Part, the Board
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(a) shall proceed as informally and expeditiously as the circumstances and considerations of fairness permit; (b) is not bound by legal or technical rules of evidence; and (c) may receive and decide on any evidence adduced that the Board believes to be credible. Consultation
(2) In order to ensure that the purpose of this Part is achieved, the members of the Board may consult with other members or the Board’s staff in respect of any matter before it.
Right to appear
(3) Any interested person may intervene in a proceeding before the Board with its permission, and anyone appearing before the Board may be represented by counsel or an agent or mandatary.
Notice of facts
(4) The Board may take notice of facts that may be judicially noticed and, subject to subsection (5), of any other generally recognized facts and any information that is within its specialized knowledge.
Notification of intention
(5) The Board shall notify the parties and any intervenor in the proceeding before it of its intention to take notice of any facts or information, other than facts that may be judicially noticed, and afford them an opportunity to make representations in that regard.
Report on evidence
(6) The Chairperson of the Board may direct any member to receive evidence relating to a matter before the Board, to make a report on it to the Board, and to provide a copy of the report to all parties and any intervenor in the proceeding.
Conclusions
(7) After granting all parties and intervenors an opportunity to make representations on any report made under subsection (6), the Board may make a determination on the basis of the report or hold any further hearings that it considers necessary in the circumstances.
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Review of determination or order
20. (1) The Board may uphold, rescind or amend any determination or order made by it under this Part, and may rehear any application before making a decision.
Interim decision
(2) When it is necessary to decide one or more issues in order to dispose finally of an application or complaint the Board may, if it is satisfied that it can do so without prejudice to the rights of any party or intervenor in the proceeding, decide or make an order respecting one or more of those issues, and reserve its jurisdiction to decide the remaining issues. Review and Enforcement of Determinations and Orders
Determination or order — no review by court
21. (1) Subject to this Part, every determination or order of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
No review by certiorari, etc.
(2) Except as permitted by subsection (1), no determination, order or proceeding made or carried on, or purporting to be made or carried on, by the Board under this Part shall be questioned, reviewed, prohibited or restrained on any ground, including the ground that the Board did not have jurisdiction or exceeded or lost its jurisdiction, or be made the subject of any proceeding in or any process of any court on any such ground, whether by way of injunction, certiorari, prohibition, quo warranto, revision, evocation or otherwise. 539. Subsections 22(1) and (2) of the Act are replaced by the following:
Filing in Federal Court
22. (1) On application in writing by any party or of its own motion, the Board shall file a copy of a determination or order, exclusive of the reasons for it, in the Federal Court unless, in the Board’s opinion, there is no indication of failure or likelihood of failure to comply with it, or there is no useful purpose to be served by filing it.
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Registration
(2) If the Board specifies in writing that it is filing a copy of a determination or order under subsection (1), the Federal Court shall accept it for filing and shall register it without further application or other proceeding.
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540. Subsection 24(2) of the Act is replaced by the following: Filing membership list
(2) In addition to any other information that the Board may require, an association of producers shall file its membership list with the Board, keep the list up to date and send a copy of it to every certified artists’ association to which it has issued, or from which it has received, a notice to bargain under section 31. 541. Sections 25 to 27 of the Act are replaced by the following:
Application
25. (1) An artists’ association may, if duly authorized by its members, apply to the Board in writing for certification in respect of one or more sectors (a) at any time, in respect of a sector for which no artists’ association is certified and no other application for certification is pending before the Board; (b) in the three months immediately before the date that the certification or a renewed certification is to expire, if at least one scale agreement is in force in respect of the sector; or (c) after one year, or any shorter period that the Board fixes on application, after the date of the certification or of a renewed certification, if no scale agreement is in force in respect of the sector.
Accompanying documents
(2) An application for certification must include the membership list of the artists’ association, a certified copy of its by-laws and any other information required by the Board.
Public notice of application
(3) The Board shall give public notice of any application for certification in respect of any sector without delay, indicating any period in which another application may be made by any other artists’ association, despite subsection (1), for certification in respect of that sector or any part of it.
2011-2012 When application may not be made
Emploi, croissance e (4) No application for certification in respect of a sector may be made, except with the Board’s consent, after the expiry of the period indicated in any public notice given under subsection (3). Determination of Sector and Representativeness of an Association
Determination of sector
26. (1) After the application period referred to in subsection 25(3) has expired, the Board shall determine the sector or sectors that are suitable for bargaining, taking into account (a) the common interests of the artists in respect of whom the application was made; (b) the history of professional relations among those artists, their associations and producers concerning bargaining, scale agreements and any other agreements respecting the terms of engagement of artists; and (c) any geographic and linguistic criteria that the Board considers relevant.
Right to intervene
(2) Despite subsection 19(3), only the artists in respect of whom the application was made, artists’ associations and producers may intervene as of right on the issue of determining the sector that is suitable for bargaining.
Notice of determination
(3) The Board shall give the artists’ association concerned and any intervenors notice of its determination under subsection (1) without delay, and that determination is deemed to be interlocutory, despite section 21.
Association’s representativity
27. (1) After determining the sector under subsection 26(1), the Board shall determine the representativity of the artists’ association, as of the date of filing of the application for certification or as of any other date that the Board considers appropriate.
Right to intervene
(2) Despite subsection 19(3), only artists in respect of whom the application was made and artists’ associations may intervene as of right on the issue of determining the representativity of an artists’ association. 542. (1) Subsection 28(1) of the Act is replaced by the following:
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Certification
28. (1) If the Board is satisfied that an artists’ association that has applied for certification in respect of a sector is the most representative of artists in that sector, the Board shall certify the association.
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(2) Subsection 28(2) of the English version of the Act is replaced by the following: Certification period
(2) Certification is valid for a period of three years after the date that the Board issues the certificate and, subject to subsection (3), is automatically renewed for additional three year periods. (3) Subsection 28(3) of the French version of the Act is replaced by the following:
Prorogation
(3) Le dépôt, dans les trois mois précédant l’expiration de l’accréditation ou de son renouvellement, d’une demande d’annulation ou d’une autre demande d’accréditation visant le même ou sensiblement le même secteur emporte prorogation de l’accréditation jusqu’à ce que le Conseil statue sur la demande, le renouvellement ne prenant effet, en cas de rejet de celle-ci, qu’à la date de la décision. (4) Subsection 28(4) of the Act is replaced by the following:
Register
(4) The Board shall keep a register of all issued certificates and of their dates of issue. 543. (1) The portion of subsection 29(1) of the Act before paragraph (a) is replaced by the following:
Application for revocation
29. (1) An artist in a sector may apply to the Board for an order revoking an association’s certification in respect of that sector
(2) Subparagraphs 29(1)(b)(i) and (ii) of the Act are replaced by the following:
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Emploi, croissance e (i) in the three months immediately before the date that the association’s certification or a renewed certification is to expire, if at least one scale agreement is in force in respect of the sector, or (ii) after one year, or any shorter period that the Board fixes on application, after the date of the certification or of a renewed certification of the association, if no scale agreement is in force. (3) Subsections 29(2) to (4) of the Act are replaced by the following:
Stay of proceedings
(2) The Board may stay any proceedings for revocation of the certification of an artists’ association under paragraph (1)(a) if the association adopts by-laws that meet the requirements of subsection 23(2) within any period that the Board may specify.
Date of revocation
(3) Revocation of certification is effective as of the date of the Board’s determination to revoke it or, if an association fails to adopt bylaws within a period specified by the Board under subsection (2), on the expiry of that period.
Effect of revocation
(4) Any scale agreement for a sector in respect of which the certification of an artists’ association has been revoked ceases to have effect as of the date of revocation or as of any later date that the Board may specify. 544. Subsection 30(2) of the Act is replaced by the following:
Board to determine questions
(2) On application by an artists’ association affected by a merger, amalgamation or transfer of jurisdiction, the Board shall determine the rights, privileges and duties that the association has acquired under this Part or under a scale agreement as a result of the transaction. 545. (1) Subsection 33(1) of the Act is replaced by the following:
Effect of scale agreements
33. (1) For the term set out in it, a scale agreement binds the parties to it and every artist in the sector engaged by the producer, and neither party may terminate the agreement without the Board’s approval, except when a notice to bargain is issued under subsection 31(3).
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(2) Subsection 33(5) of the Act is replaced by the following: Application
(5) The Board shall assess what is more favourable to the artist under subsection (4) in relation to each right or benefit and shall compare the elements of each right or benefit under the scale agreement with the elements of each under the contract. 546. Section 34 of the Act is replaced by the following:
Board may change termination date
34. On the joint application of the parties, the Board may change the termination date of a scale agreement in order to establish a common termination date for two or more scale agreements that bind the producer or the artists’ association. 547. Subsection 37(2) of the Act is replaced by the following:
No review by certiorari, etc.
(2) No order shall be made or proceeding taken in any court, by way of injunction, certiorari, prohibition, quo warranto, revision, evocation or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any proceedings under this Part. 548. Subsection 39(1) of the Act is replaced by the following:
Powers of arbitrator and arbitration board
39. (1) An arbitrator or arbitration board has, in relation to any proceeding before the arbitrator or the board, the powers conferred on the Board under paragraphs 17(a) to (c) and the power to determine whether any matter referred to the arbitrator or the board is arbitrable. 549. Subsection 40(1) of the English version of the Act is replaced by the following:
Procedure
40. (1) The arbitrator or arbitration board shall decide the procedure for hearings, and the parties shall be given the opportunity to present evidence and make submissions and may be represented by counsel or an agent or mandatary. 550. Section 41 of the Act is replaced by the following:
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Questions may be referred to Board
41. (1) An arbitrator or arbitration board shall refer to the Board for hearing and determination any question that arises in a matter before it as to the existence of a scale agreement, the identification of the parties to it or the application of the agreement to a particular sector or artist.
Arbitration proceeding not suspended
(2) Referral of a question to the Board under subsection (1) does not suspend the proceeding before the arbitrator or arbitration board, unless the Board so orders or the arbitrator or arbitration board decides that the nature of the question warrants suspension of the proceeding. 551. (1) Subsection 47(1) of the Act is replaced by the following:
Declaration — association’s pressure tactics unlawful
47. (1) If a producer alleges that an artists’ association has authorized or applied pressure tactics, or that artists have participated, are participating or are likely to participate in pressure tactics, as a result of which an artist was, is or would be in contravention of this Part, the producer may apply to the Board for a declaration that the pressure tactics are unlawful. (2) The portion of subsection 47(2) of the Act before paragraph (a) is replaced by the following:
Declaration and prohibition of pressure tactics
(2) If an application is made under subsection (1), the Board may, after affording the artists and the artists’ association an opportunity to be heard, declare the pressure tactics to be unlawful and, if the producer so requests, make an order
552. The portion of section 48 of the Act before paragraph (a) is replaced by the following: Declaration — producer’s pressure tactics unlawful
48. If an artists’ association applies to the Board alleging that a producer has authorized or applied pressure tactics in contravention of this Part, or is about to do so, the Board may, after affording the producer an opportunity to be
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heard, declare the pressure tactics to be unlawful and, if the association so requests, make an order
553. Section 49 of the Act is replaced by the following: Order’s terms and duration
49. (1) An order that is made under section 47 or 48 shall be on any terms that the Board considers necessary and sufficient to meet the circumstances of the case and, subject to subsection (2), shall have effect for the period indicated in the order.
Application for supplementary order
(2) If anyone affected by an order made under section 47 or 48 applies to the Board and gives notice of the application to the parties named in the order, the Board may, by supplementary order, continue or modify the order for any period that is indicated in the supplementary order, or may revoke the order. 554. Paragraph 50(f) of the Act is replaced by the following: (f) bargain for the purpose of entering into a scale agreement, or enter into a scale agreement, with an artists’ association in respect of a sector, if the producer knows or, in the Board’s opinion, ought to know that another artists’ association is certified in respect of that sector. 555. Paragraphs 51(a) and (b) of the Act are replaced by the following: (a) bargain for the purpose of entering into a scale agreement, or enter into a scale agreement with a producer in respect of a sector, if the association or person knows or, in the Board’s opinion, ought to know that another artists’ association is certified in respect of that sector; (b) bargain for the purposes of entering into a scale agreement, or enter into a scale agreement in respect of a sector, with a producer that the association knows or, in the Board’s opinion, ought to know is repre2011-2012
Emploi, croissance e sented by an association of producers that has filed its membership list under subsection 24(2); 556. (1) The portion of subsection 53(1) of the Act before paragraph (a) is replaced by the following:
Complaints to Board
53. (1) Any person or organization may make a complaint in writing to the Board that
(2) Subsection 53(2) of the Act is replaced by the following: Time for making complaint
(2) The complaint shall be made to the Board within six months after the day on which the complainant knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint. (3) The portion of subsection 53(3) of the Act before paragraph (a) is replaced by the following:
Inadmissible complaints
(3) The Board shall hear the complaint unless the Board is of the opinion that it (4) Paragraph 53(3)(b) of the English version of the Act is replaced by the following: (b) is not within the Board’s jurisdiction, or could be referred by the complainant to an arbitrator or arbitration board, under a scale agreement. (5) Subsection 53(4) of the Act is replaced by the following:
Board’s duty and power
(4) If the Board is of the opinion that the complaint must be heard, it may appoint a member who was never seized of the matter, or a member of the Board’s staff, to assist the parties to settle it and, if the matter is not settled within a period that the Board considers reasonable in the circumstances, or if the Board decides not to appoint a person to assist the parties to settle it, the Board shall hear and determine the complaint.
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557. (1) The portion of subsection 54(1) of the Act before paragraph (a) is replaced by the following: Board may make orders
54. (1) If the Board determines that a party to a complaint failed to comply with section 32, 35, 50, 51 or 52, the Board may order the party to comply with or to cease contravening that section and may (2) Paragraphs 54(1)(a) and (b) of the English version of the Act are replaced by the following: (a) in respect of a failure to comply with paragraph 32(b), order a producer to pay the artist compensation not exceeding the amount of remuneration that would, but for that failure, have been paid to the artist, in the Board’s opinion, under the scale agreement or the artist’s contract; (b) in respect of a failure to comply with section 35, require an artists’ association to pursue the rights and remedies of any artist affected by that failure, or to assist the artist to pursue any rights and remedies that, in the Board’s opinion, it was the duty of the association to pursue; (3) Subparagraphs 54(1)(c)(ii) and (iii) of the English version of the Act are replaced by the following: (ii) to pay to any artist affected by that failure compensation not exceeding the amount of remuneration that would, but for that failure, have been paid to that artist, in the Board’s opinion, under the scale agreement or the contract, and (iii) to rescind any disciplinary action taken against any artist affected by that failure, and pay the artist compensation not exceeding the amount, in the Board’s opinion, of any financial or other penalty provided for in the scale agreement or the contract and imposed on the artist by the producer; (4) Paragraph 54(1)(d) of the English version of the Act is replaced by the following:
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Emploi, croissance e (d) in respect of a failure to comply with paragraph 50(d), order a producer to rescind any action taken against any artist affected by that failure, and pay the artist compensation not exceeding the amount, in the Board’s opinion, of any financial or other penalty provided for in the scale agreement or the contract and imposed on the artist by the producer; (5) Paragraph 54(1)(f) of the English version of the Act is replaced by the following: (f) in respect of a failure to comply with paragraph 51(d), (e), (f) or (g), order an artists’ association to rescind any disciplinary action taken against any artist affected by that failure, and pay the artist compensation not exceeding the amount, in the Board’s opinion, of the artist’s actual loss or of any financial or other penalty. (6) Subsection 54(2) of the Act is replaced by the following:
Other orders
(2) In order to ensure that the purpose of this Part is achieved, the Board may, in addition to or in lieu of any other order authorized under subsection (1), order a producer or an artists’ association to do or refrain from doing anything that it is equitable to require of them, so as to counteract or remedy the contravention of or non-compliance with a provision referred to in that subsection.
1995, c. 11, s. 41
558. Section 56 of the English version of the Act is replaced by the following:
Regulations
56. On the Minister’s recommendation after consultation with the Minister of Canadian Heritage, the Governor in Council may make regulations prescribing anything that may be prescribed under any provision of this Part, and any other regulations that the Governor in Council considers necessary to carry out the provisions of this Part, other than regulations that may be made by the Board under section 16. 559. Paragraph 57(3)(d) of the Act is replaced by the following:
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(d) refuses to answer any proper question put to them under paragraph 17(a) by the Board or one of its members or by an arbitrator or an arbitration board 560. Section 59 of the Act is replaced by the following: Board’s consent before prosecution
59. No prosecution may be instituted in respect of an offence under this Part without the consent in writing of the Board. 561. Subsection 60(1) of the Act is replaced by the following:
Documents as evidence
60. (1) Any document purporting to contain or to be a copy of a determination of the Board and to be signed by one of its members is admissible in evidence in any court without proof of the signature or official character of the member or any further proof. 562. Section 61 of the Act and the heading before it are repealed.
1995, c. 11, s. 42
563. Sections 64 to 67 of the Act are replaced by the following:
Witness fees and expenses
64. A person who is summoned by the Board and attends as a witness in any proceeding taken under this Part is entitled to be paid the allowance for expenses and the witness fees that are in force with respect to witnesses in civil suits in the superior court of the province in which the proceeding is taken.
Persons not required to give evidence
65. No member or employee of the Board or any person appointed by it or the Minister under this Part is required to give evidence in any civil action, suit or other proceeding, respecting information obtained in the discharge of his or her duties under this Part. Transitional Provisions
Definitions
“Board” « Conseil »
564. The following definitions apply in sections 565 to 570. “Board” means the Canada Industrial Relations Board established by section 9 of the Canada Labour Code.
2011-2012 “Tribunal” « Tribunal »
Emploi, croissance e “Tribunal” means the Canadian Artists and Producers Professional Relations Tribunal established by subsection 10(1) of the Status of the Artist Act, as that Act read immediately before the coming into force of this section.
Appointments terminated
565. (1) Members of the Tribunal cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Tribunal has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
Continuation of proceedings
566. Every proceeding commenced under the Status of the Artist Act before the coming into force of this section is to be taken up and continued under and in conformity with that Act, as it is amended by this Act.
Review of Tribunal’s determination or order
567. The Board may uphold, rescind or amend any determination or order made by the Tribunal.
Powers and duties
568. (1) Any power or duty that is vested in or is exercisable by the Tribunal under a contract, lease, licence, deed, agreement or other document is vested in or is exercisable by the Board.
References
(2) Every reference to the Tribunal in any contract, lease, licence, deed, agreement or other document executed by the Tribunal in its own name shall, unless the context otherwise requires, be read as a reference to the Board.
Commencement of legal proceedings
569. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Tribunal may be brought against the Board in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the Tribunal.
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Continuation of legal proceedings
570. Any action, suit or other legal proceeding to which the Tribunal is a party that is pending in any court immediately before the day on which this section comes into force may be continued by or against the Board in the same manner and to the same extent as it could have been continued by or against the Tribunal.
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Consequential Amendments R.S., c. A-1
Access to Information Act
1992, c. 33, s. 68
571. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Canadian Artists and Producers Professional Relations Tribunal Tribunal canadien des relations professionnelles artistes-producteurs
R.S., c. F-7; 2002, c. 8, s. 14
Federal Courts Act
1992, c. 33, s. 69; 1993, c. 34, s. 70(2)
572. Paragraph 28(1)(p) of the Federal Courts Act is repealed.
R.S., c. F-11
Financial Administration Act
SOR/94-272, s. 1; SOR/98-564
573. Schedule I.1 to the Financial Administration Act is amended by striking out, in column I, the reference to Canadian Artists and Producers Professional Relations Tribunal Tribunal canadien des relations professionnelles artistes-producteurs and the corresponding reference in column II to “Minister of Labour”.
2003, c. 22, s. 11
574. Schedule IV to the Act is amended by striking out the following: Canadian Artists and Producers Professional Relations Tribunal Tribunal canadien des relations professionnelles artistes-producteurs
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2011-2012 2006, c. 9, s. 270
575. Part III of Schedule VI to the Act is amended by striking out, in column I, the reference to Canadian Artists and Producers Professional Relations Tribunal Tribunal canadien des relations professionnelles artistes-producteurs and the corresponding reference in column II to “Chairperson”.
R.S., c. P-21
1992, c. 33, s. 70
Privacy Act 576. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Canadian Artists and Producers Professional Relations Tribunal Tribunal canadien des relations professionnelles artistes-producteurs Coming into Force
Order in council
577. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 40
1993, c. 31
NATIONAL ROUND TABLE ON THE ENVIRONMENT AND THE ECONOMY ACT Amendment to the Act 578. The National Round Table on the Environment and the Economy Act is amended by adding the following after section 5:
Disposal of assets
5.1 (1) The Round Table is authorized to sell or otherwise dispose of all or substantially all of its assets and to do everything necessary for or incidental to the closing out of its affairs.
Debts and liabilities
(2) The Round Table shall apply any proceeds from the disposal of its assets in satisfaction of its debts and liabilities.
Directions
5.2 (1) The Minister may give directions to the Round Table to do anything that in his or her opinion is necessary
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(a) in respect of the exercise of its powers under section 5; and (b) to sell or otherwise dispose of all or substantially all of its assets, satisfy its debts and liabilities, manage its expenses or otherwise close out its affairs. Directions binding
(2) The Round Table shall, despite any other provision of this Act, comply with the directions. Transitional Provisions
Definition of “Round Table”
579. For the purpose of sections 580 to 585, “Round Table” means the National Round Table on the Environment and the Economy established by section 3 of the National Round Table on the Environment and the Economy Act.
Appointments terminated
580. (1) Members of the Round Table appointed under subsection 6(1) or (2) of the National Round Table on the Environment and the Economy Act cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the Round Table has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
References
581. Every reference to the Round Table in a deed, contract, agreement or other document executed by the Round Table in its own name is to be read as a reference to Her Majesty in right of Canada, unless the context requires otherwise.
Surplus
582. Any surplus that remains after the satisfaction of the debts and liabilities of the Round Table on the day on which section 593 comes into force belongs to Her Majesty in right of Canada.
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Unsatisfied debts and liabilities
583. Any debts and liabilities of the Round Table that remain unsatisfied on the day on which section 593 comes into force become the debts and liabilities of Her Majesty in right of Canada.
Commencement of legal proceedings
584. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Round Table may be brought against Her Majesty in right of Canada in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the Round Table.
Continuation of legal proceedings
585. Any action, suit or other legal proceeding to which the Round Table is a party that is pending in any court immediately before the day on which section 593 comes into force may be continued by or against Her Majesty in right of Canada in like manner and to the same extent as it could have been continued by or against the Round Table. Consequential Amendments
R.S., c. A-1 1993, c. 31, s. 24
R.S., c. F-11
Access to Information Act 586. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie Financial Administration Act
1993, c. 31, s. 25
587. Schedule II to the Financial Administration Act is amended by striking out the following: National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie
2003, c. 22, s. 11
588. Schedule V to the Act is amended by striking out the following:
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National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie 2006, c. 9, s. 270
589. Part III of Schedule VI to the Act is amended by striking out, in column I, the reference to National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie and the corresponding reference in column II to “President”.
R.S., c. P-21
1993, c. 31, s. 26
R.S., c. P-36 1993, c. 31, s. 27
1991, c. 30
Privacy Act 590. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie Public Service Superannuation Act 591. Part I of Schedule I to the Public Service Superannuation Act is amended by striking out the following: National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie Public Sector Compensation Act 592. Schedule I to the Public Sector Compensation Act is amended by striking out the following under the heading “OTHER PORTIONS OF THE PUBLIC SERVICE”: National Round Table on the Environment and the Economy Table ronde nationale sur l’environnement et l’économie
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2011-2012 Repeal Repeal
593. The National Round Table on the Environment and the Economy Act, chapter 31 of the Statutes of Canada, 1993, is repealed. Coming into Force
Order in council
594. Sections 579 to 593 come into force on a day to be fixed by order of the Governor in Council. DIVISION 41
1993, c. 38
TELECOMMUNICATIONS ACT Amendments to the Act
2010, c. 12, s. 2184(1)
595. (1) Subsections 16(1) to (3) of the Telecommunications Act are replaced by the following:
Definitions
16. (1) The following definitions apply in this section.
“entity” « entité »
“entity” means a corporation, partnership, trust or joint venture.
“joint venture” « coentreprise »
“joint venture” means an association of two or more entities, if the relationship among those associated entities does not, under the laws in Canada, constitute a corporation, a partnership or a trust and if all the undivided ownership interests in the assets of the Canadian carrier or in the voting interests of the Canadian carrier are or will be owned by all the entities that are so associated.
“voting interest” « intérêt avec droit de vote »
“voting interest”, with respect to (a) a corporation with share capital, means a voting share; (b) a corporation without share capital, means an ownership interest in the assets of the corporation that entitles the owner to rights similar to those enjoyed by the owner of a voting share; and (c) a partnership, trust or joint venture, means an ownership interest in the assets of the partnership, trust or joint venture that entitles the owner to receive a share of the profits and to share in the assets on dissolution.
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Eligibility
(2) A Canadian carrier is eligible to operate as a telecommunications common carrier if
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(a) it is an entity incorporated, organized or continued under the laws of Canada or a province and is Canadian-owned and controlled; (b) it owns or operates only a transmission facility that is referred to in subsection (5); or (c) it has annual revenues from the provision of telecommunications services in Canada that represent less than 10% of the total annual revenues, as determined by the Commission, from the provision of telecommunications services in Canada.
Canadian ownership and control
(3) For the purposes of paragraph (2)(a), an entity is Canadian-owned and controlled if (a) in the case of a corporation, not less than 80% of the members of the board of directors are individual Canadians; (b) Canadians beneficially own, directly or indirectly, in the aggregate and otherwise than by way of security only, not less than 80% of the entity’s voting interests; and (c) the entity is not otherwise controlled by persons that are not Canadians.
(2) Subsection 16(4) of the French version of the Act is replaced by the following: Interdiction
(4) Il est interdit à l’entreprise canadienne d’agir comme entreprise de télécommunication si elle n’y est pas admise aux termes du présent article.
2010, c. 12, s. 2184(2)
(3) The portion of subsection 16(5) of the Act before paragraph (a) is replaced by the following:
Exemption
(5) Paragraph (2)(a) and subsection (4) do not apply in respect of the ownership or operation of (4) Section 16 of the Act is amended by adding the following after subsection (5):
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Exception
(6) A Canadian carrier that is eligible to operate under paragraph (2)(c) remains eligible to operate even if it has annual revenues from the provision of telecommunications services in Canada that represent 10% or more of the total annual revenues from the provision of telecommunications services in Canada as long as the increase in its annual revenues from the provision of telecommunications services in Canada to 10% or more of the total annual revenues from the provision of telecommunications services in Canada did not result from the acquisition of control of another Canadian carrier or from the acquisition of assets used by another Canadian carrier to provide telecommunications services.
Acquisition
(7) A Canadian carrier to which subsection (6) applies is not authorized to acquire control of a Canadian carrier or acquire assets used by another Canadian carrier to provide telecommunications services.
Notice
(8) A Canadian carrier that is eligible to operate under paragraph (2)(c) shall notify the Commission when it acquires control of another Canadian carrier or acquires assets used by another Canadian carrier to provide telecommunications services.
Affiliates
(9) For the purposes of determining annual revenues from the provision of telecommunications services in Canada under this section, the annual revenues of a Canadian carrier include the annual revenues from the provision of telecommunications services in Canada of its affiliates as defined in subsection 35(3). 596. Section 41.2 of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after that paragraph: (c) conduct investigations to determine whether there has been a contravention of any order made under that section. 597. The Act is amended by adding the following after section 41.2:
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Fees
41.21 (1) The Commission may make regulations prescribing fees, and respecting their calculation and payment, to be paid by any person who acquires information from the databases or the information, administrative or operational systems referred to in section 41.2 for the purpose of recovering all or a portion of the costs that the Commission determines to be attributable to its responsibilities under that section and that are not recovered under any regulation made under section 68.
Debt due to Her Majesty
(2) Fees required to be paid under this section constitute a debt due to Her Majesty in right of Canada and may be recovered in a court of competent jurisdiction.
Prepublication of regulations
(3) The Commission shall publish any regulations that it proposes to make under subsection (1) and shall give interested persons a reasonable opportunity to make representations to the Commission with respect to the proposed regulations.
Modification after publication
(4) Proposed regulations that are modified after publication need not be published again under subsection (3).
2005, c. 50, s. 1
598. Subsection 41.3(1) of the Act is replaced by the following:
Delegation of powers
41.3 (1) The Commission may, in writing and on specified terms, delegate to any person, including any body created by the Commission for that purpose, any of its powers under section 41.2 and the power to collect fees that it prescribes under subsection 41.21(1).
2005, c. 50, s. 1
599. Subsection 41.4(2) of the Act is repealed.
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600. The Act is amended by adding the following after section 41.4: Financial Administration Act does not apply
41.41 (1) Despite the Financial Administration Act, money collected by a delegate is deemed not to be public money.
2011-2012 Exception — fees
Emploi, croissance e (2) However, any fees that are prescribed under subsection 41.21(1) and collected by the delegate are public money when they are paid to the Receiver General. Coordinating Amendments
2010, c. 23
601. (1) In this section, “other Act” means An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radiotelevision and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act, chapter 23 of the Statutes of Canada, 2010.
(2) If section 90 of the other Act comes into force before section 596 of this Act, then sections 596 to 600 of this Act are repealed. (3) If section 90 of the other Act comes into force on the same day as section 596 of this Act, then sections 596 to 600 of this Act are deemed to have come into force before that section 90. DIVISION 42 1995, c. 44
EMPLOYMENT EQUITY ACT 602. Subsection 42(2) of the Employment Equity Act is replaced by the following:
Federal Contractors Program
(2) The Minister is responsible for the administration of the Federal Contractors Program for Employment Equity. DIVISION 43
1996, c. 23
EMPLOYMENT INSURANCE ACT Amendments to the Act
2001, c. 5, s. 3(1)
603. (1) Paragraphs 4(2)(a) and (b) of the Employment Insurance Act are replaced by the following:
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(a) the average for the 12-month period ending on April 30 in the preceding year of the Average Weekly Earnings for each month in that period by (b) the ratio that the average for the 12month period ending on April 30 in that preceding year of the Average Weekly Earnings for each month in that 12-month period bears to the average for the 12-month period ending 12 months prior to April 30 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to April 30 of that preceding year.
2001, c. 5, s. 3(1)
(2) Subsection 4(3) of the Act is replaced by the following:
Subsequent years
(3) For years subsequent to the year in which the maximum yearly insurable earnings exceeds $39,000, before rounding down under subsection (4), the maximum yearly insurable earnings is the maximum yearly insurable earnings for the preceding year, before rounding down under that subsection, multiplied by the ratio that the average for the 12-month period ending on April 30 in that preceding year of the Average Weekly Earnings for each month in that 12month period bears to the average for the 12month period ending 12 months prior to April 30 of that preceding year of the Average Weekly Earnings for each month in that 12-month period ending 12 months prior to April 30 of that preceding year. 604. Subsections 14(2) to (4.1) of the Act are replaced by the following:
Weekly insurable earnings
(2) A claimant’s weekly insurable earnings are their insurable earnings in the calculation period divided by the number of weeks determined in accordance with the following table by reference to the applicable regional rate of unemployment.
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2011-2012 TABLE
Insurable earnings
Regional Rate of Unemployment
Number of Weeks
not more than 6%
more than 6% but not more than 7%
more than 7% but not more than 8%
more than 8% but not more than 9%
more than 9% but not more than 10%
more than 10% but not more than 11%
more than 11% but not more than 12%
more than 12% but not more than 13%
more than 13%
(3) Insurable earnings in the calculation period are equal to the total of the following amounts established and calculated in accordance with the regulations: (a) the claimant’s insurable earnings during the calculation period including those from insurable employment that has not ended but not including any insurable earnings paid or payable to the claimant by reason of lay-off or separation from employment in the qualifying period; and (b) the insurable earnings paid or payable to the claimant, during the qualifying period, by reason of lay-off or separation from employment.
Calculation period
(4) The calculation period of a claimant is the number of weeks, whether consecutive or not, determined in accordance with the table set out in subsection (2) by reference to the applicable regional rate of unemployment, in the claimant’s qualifying period for which he or she received the highest insurable earnings.
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2001, c. 34, s. 41(E)
605. Subsections 27(2) and (3) of the Act are replaced by the following:
Employment not suitable
(2) For the purposes of this section, employment is not suitable employment for a claimant if it arises in consequence of a stoppage of work attributable to a labour dispute.
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606. Subsection 42(3) of the Act is replaced by the following: Exception — payment to other governments
(3) If the Government of Canada, a provincial or municipal government or any other prescribed authority pays a person an advance or assistance or a welfare payment for a week that would not be paid if unemployment benefits were paid for that week, and unemployment benefits subsequently become payable to that person for that week, the Commission may, subject to the regulations, deduct from those or any subsequent benefits and pay to the government or the prescribed authority an amount equal to the amount of the advance, assistance or welfare payment paid, if the person had, on or before receiving the advance, assistance or welfare payment, consented to the deduction and payment by the Commission.
607. The Act is amended by adding the following after section 46: Limitation
46.01 No amount is payable under section 45, or deductible under subsection 46(1), as a repayment of an overpayment of benefits if more than 36 months have elapsed since the layoff or separation from the employment in relation to which the earnings are paid or payable and, in the opinion of the Commission, the administrative costs of determining the repayment would likely equal or exceed the amount of the repayment. 608. (1) Section 54 of the Act is amended by adding the following after paragraph (k):
2011-2012
Emploi, croissance e (k.1) establishing criteria for defining or determining what constitutes suitable employment for different categories of claimants for the purposes of any provision of this Act; (k.2) establishing criteria for defining or determining what constitutes reasonable and customary efforts for the purposes of subsection 50(8); (2) Clause 54(z)(i)(A) of the Act is replaced by the following: (A) weeks are to be considered as weeks for which a claimant has insurable earnings during a calculation period, including the number of those weeks to be considered in that period, and (3) Subparagraph 54(z)(ii) of the Act is replaced by the following: (ii) for allocating insurable earnings to a calculation period, for example by including them in that period or excluding them from that period;
2008, c. 28, s. 127; 2010, c. 12, s. 2204(1)
609. (1) Subsection 66(1) of the Act is replaced by the following:
Annual premium rate setting
66. (1) Subject to subsection (7) and section 66.3, the Board shall set the premium rate for each year in order to generate just enough premium revenue during that year to ensure that at the end of that year the total of the amounts credited to the Employment Insurance Operating Account after December 31, 2008 is equal to the total of the amounts charged to that Account after that date. (2) Subsection 66(1) of the Act, as enacted by subsection (1), is replaced by the following:
Annual premium rate setting
66. (1) Subject to subsection (7) and section 66.3, the Board shall set the premium rate for each year in order to generate just enough premium revenue to ensure that, at the end of the seven-year period that begins at the beginning of that year, the total of the amounts credited to the Employment Insurance Operat374
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ing Account after December 31, 2008 is equal to the total of the amounts charged to that Account after that date. 2008, c. 28, s. 127; 2010, c. 12, s. 2204(1)
(3) Paragraphs 66(2)(b) and (c) of the Act are replaced by the following: (b) the amount by which the Board’s financial assets exceed its financial liabilities;
2008, c. 28, s. 127; 2010, c. 12, s. 2204(1)
(4) Paragraph 66(2)(e) of the Act is replaced by the following: (e) any changes, announced by the Minister on or before July 31 in a year, to payments to be made under paragraph 77(1)(a), (b) or (c) during the following year; and
2008, c. 28, s. 127; 2010, c. 12, s. 2204(2)
(5) Subsections 66(4) to (7) of the Act are replaced by the following:
Difference year to year
(7) The premium rate may not be increased or decreased by more than five one-hundredths of one per cent (0.05%) from one year to the next. (6) Section 66 of the Act is amended by adding the following after subsection (7):
Non-application
(7.1) Despite subsection (7), the premium rate may be decreased by more than five onehundredths of one per cent (0.05%) from the year in which this subsection comes into force to the next year.
2008, c. 28, s. 127
(7) Subsection 66(9) of the Act is replaced by the following:
Time limit
(9) On or before September 14 in a year, the Board shall set the premium rate for the following year.
2008, c. 28, s. 127; 2010, c. 12, s. 2204(3)
610. (1) The portion of subsection 66.1(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.1 (1) The Minister shall, on or before July 31 in a year, provide the Board with the following information:
2011-2012 2008, c. 28, s. 127; 2010, c. 12, s. 2204(3)
Emploi, croissance e (2) Paragraphs 66.1(1)(a) and (b) of the Act are replaced by the following: (a) if the Minister has made an announcement referred to in paragraph 66(2)(e), the forecast change in the amount of the payments to be made during each of the following seven years under paragraph 77(1)(a), (b) or (c), as the case may be; (b) the forecast costs to be paid under paragraphs 77(1)(d) and (f) during each of the following seven years, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (a);
2008, c. 28, s. 127
611. (1) The portion of subsection 66.2(1) of the Act before paragraph (a) is replaced by the following:
Information provided
66.2 (1) The Minister of Finance shall, on or before July 31 in a year, provide the Board with the following information:
2008, c. 28, s. 127
(2) Paragraph 66.2(1)(a) of the Act is replaced by the following: (a) the most current available forecast values of the economic variables that are relevant to the determination under section 66 of a premium rate for the following year;
2008, c. 28, s. 127
612. (1) The portion of subsection 66.3(1) of the Act before paragraph (a) is replaced by the following:
Governor in Council
66.3 (1) On the joint recommendation of the Minister and the Minister of Finance, the Governor in Council may, on or before September 30 in a year,
2008, c. 28, s. 127
(2) Paragraph 66.3(1)(b) of the Act is replaced by the following: (b) if the Board has not set a premium rate under that section by September 14 in the year, set one for the following year.
2008, c. 28, s. 128
613. Section 70.1 of the Act is repealed.
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2008, c. 28, s. 130; 2010, c. 12, s. 2205
614. (1) The portion of subsection 77.1(1) of the Act before paragraph (a) is replaced by the following:
Forecasts and estimates
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77.1 (1) On or before July 31 in a year,
2008, c. 28, s. 130; 2010, c. 12, s. 2205
(2) The portion of subsection 77.1(2) of the Act before the formula is replaced by the following:
Payment to Board
(2) A payment in the amount determined under subsection (3) is to be made on or before August 31 in a year to the Board out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, and charged to the Employment Insurance Operating Account if
2008, c. 28, s. 130; 2010, c. 12, s. 2205
(3) The portion of subsection 77.1(4) of the Act before the formula is replaced by the following:
Payment by Board
(4) A payment in the amount determined under subsection (5) is to be made on or before August 31 in a year, or at any later date that the Minister of Finance may specify, by the Board to the Consolidated Revenue Fund and credited to the Employment Insurance Operating Account if
2008, c. 28, s. 130; 2010, c. 12, s. 2205
(4) The portion of subsection 77.1(5) of the Act before the formula is replaced by the following:
Amount of payment by Board
(5) For the purpose of subsection (4), the amount of the payment is an amount equal to the lesser of the amount of the Board’s financial assets less its financial liabilities and the amount calculated in accordance with the following formula: 615. (1) Section 96 of the Act is amended by adding the following after subsection (4):
No refund
(4.1) No refund shall be made to a person under subsection (4) if the person is also a selfemployed person to whom Part VII.1 applies and the person’s total earnings from insurable employment and from self-employment calculated in accordance with that Part are more than $2,000 in a year.
Emploi, croissance e
2011-2012
(2) Subsection 96(5) of the Act is replaced by the following: Refund — insurable earnings over $2,000
(5) If a person who is not a self-employed person to whom Part VII.1 applies has insurable earnings of more than $2,000 in a year, but the insurable earnings minus the aggregate of all deducted amounts mentioned in subsection (4) are less than $2,000, the Minister shall refund to the person an amount calculated in accordance with the following formula if that amount is more than $1: $2,000 – (IE – P) where IE is the person’s insurable earnings in the year; and P is the aggregate of all deducted amounts mentioned in subsection (4).
Refund — combined earnings over $2,000
(5.1) If a person has insurable earnings and is also a self-employed person to whom Part VII.1 applies and the person’s total earnings from insurable employment and from self-employment calculated under that Part are more than $2,000 in a year, but the total earnings minus the aggregate of all deducted amounts mentioned in subsection (4) and the premiums payable under section 152.21 are less than $2,000, the Minister shall refund to the person the lesser of the following amounts if that amount is more than $1: (a) the aggregate of all deducted amounts mentioned in subsection (4), and (b) the amount calculated in accordance with the following formula $2,000 – (TE –TP) where TE
is the person’s total earnings from insurable employment and from selfemployment calculated under Part VII.1; and
TP
is the aggregate of all deducted amounts mentioned in subsection (4) and the premiums payable under section 152.21.
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Transitional Provision Transitional
616. Section 14 of the Employment Insurance Act, as amended by section 604, applies only to claimants whose benefit period is established on or after April 7, 2013.
2008, c. 28, s. 121
Consequential Amendments to the Canada Employment Insurance Financing Board Act 617. Paragraph 4(b) of the Canada Employment Insurance Financing Board Act is repealed. 618. (1) The portion of subsection 14(3) of the Act before paragraph (a) is replaced by the following:
Duties
(3) The chief actuary shall prepare actuarial forecasts and estimates for the purposes of section 66 of the Employment Insurance Act and shall, on or before August 31 in each year, provide the board of directors with (2) Paragraph 14(3)(b) of the Act is replaced by the following: (b) the forecast fair market value at the end of the following year of the Board’s financial assets less its financial liabilities; Coming into Force
April 7, 2013
619. (1) Section 604 and subsections 608(2) and (3) come into force on April 7, 2013.
Order in council
(2) Sections 605 and 607 come into force on a day to be fixed by order of the Governor in Council.
January 1
(3) Subsections 609(2) and (6), 610(2) and 611(2) come into force on January 1 of the first year for which the Canada Employment Insurance Financing Board reports that, by the end of that year, according to its chief actuary’s projections, the total of the amounts credited to the Employment Insurance Operating Account after December 31,
2011-2012
Emploi, croissance e 2008, will be equal to or greater than the total of the amounts charged to that Account after that date. DIVISION 44
1997, c. 36
CUSTOMS TARIFF Amendments to the Act 620. The Description of Goods of tariff item No. 2710.19.91 in the List of Tariff Provisions set out in the schedule to the Customs Tariff is amended by striking out the reference to “; Oils and preparations thereof, having a viscosity of 7.44 mm2/sec. or more at 37.8° C”. 621. The Description of Goods of tariff item No. 2710.20.10 in the List of Tariff Provisions set out in the schedule to the Act is amended by striking out the reference to “; Oils and preparations thereof, having a viscosity of 7.44 mm 2 /sec. or more at 37.8° C”. 622. The Description of Goods of tariff item No. 9804.10.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to “four hundred dollars” with a reference to “eight hundred dollars”. 623. The Description of Goods of tariff item No. 9804.20.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to “seven hundred and fifty dollars” with a reference to “eight hundred dollars”. 624. The Description of Goods of tariff item No. 9804.40.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to “fifty dollars” with a reference to “two hundred dollars”. Coming into Force
March 30, 2012
625. (1) Sections 620 and 621 are deemed to have come into force on March 30, 2012.
June 1, 2012
(2) Sections 622 to 624 come into force on June 1, 2012.
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Jobs, Growth and L DIVISION 45
1998, c. 10
CANADA MARINE ACT 626. Subsection 8(5) of the Canada Marine Act is replaced by the following:
When Governor in Council approval required
(5) Any provisions of letters patent relating to limits on a port authority’s power to borrow money on its credit for port purposes shall be approved by the Governor in Council, on the recommendation of the Minister and the Minister of Finance, before the letters patent are issued. DIVISION 46
1999, c. 24
FIRST NATIONS LAND MANAGEMENT ACT 627. Subsection 2(1) of the First Nations Land Management Act is amended by adding the following in alphabetical order:
“Surveyor General” « arpenteur général »
“Surveyor General” has the same meaning as in subsection 2(1) of the Canada Lands Surveys Act. 628. Paragraph 6(1)(a) of the Act is replaced by the following: (a) a description of the land that is to be subject to the land code that the Surveyor General may prepare or cause to be prepared or any other description that is, in the Surveyor General’s opinion, sufficient to identify those lands; 629. The Act is amended by adding the following after section 6:
Survey not mandatory
6.1 If the Surveyor General prepares or causes to be prepared a description of lands under paragraph 6(1)(a), the Surveyor General may, if he or she considers it appropriate, survey or have those lands surveyed in accordance with the Canada Lands Surveys Act. 630. (1) The portion of subsection 7(1) of the Act before paragraph (a) is replaced by the following:
2011-2012 Excluded land
Emploi, croissance e 7. (1) Despite subsection 6(1), a portion of a reserve may be excluded from the application of a land code if (2) Subsection 7(3) of the Act is repealed. 631. The Act is amended by adding the following after section 7:
Exclusion — boundaries of reserve uncertain
7.1 (1) Despite subsection 6(1), land may be excluded from the application of a land code if it is uncertain whether the land is located within the boundaries of the reserve.
Land subject to lease, other interest or right
(2) If the exclusion of the land would have the effect of placing the administration of a lease, other interest or a right in that land in more than one land management regime, then all the land that is subject to that lease, other interest or right shall be excluded from the application of the land code.
Limitation — effects of exclusion
(3) The exclusion of the land does not preclude the First Nation or Her Majesty from asserting in an action, a lawsuit or other proceeding that the land is part of the reserve.
Inclusion of previously excluded land
7.2 A First Nation shall amend the description of First Nation land in its land code to include a portion of a reserve excluded under subsection 7(1) or land excluded under subsection 7.1(1) if the First Nation and the Minister agree that the condition that justified the exclusion no longer exists, and the individual agreement shall be amended accordingly. 632. Subsection 13(1) of the Act is replaced by the following:
Copy and declaration
13. (1) If a First Nation votes to approve a land code and an individual agreement, its council shall, after the conclusion of the vote, send to the verifier (a) without delay, a copy of the approved code and a declaration that the code and agreement were approved in accordance with section 12; and (b) as soon as the circumstances permit, a copy of the individual agreement signed by the First Nation and the Minister.
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633. The portion of subsection 14(1) of the English version of the Act before paragraph (a) is replaced by the following: Certification
14. (1) The verifier shall, after receiving the documents referred to in subsection 13(1), certify the validity of the land code unless the verifier, after giving the First Nation and the Minister a reasonable opportunity to make submissions on the matter but within 10 days after the conclusion of the vote, is of the opinion that 634. Subsection 15(1) of the Act is replaced by the following:
Coming into force
15. (1) Subject to subsection (1.1), a land code comes into force and has the force of law on the day on which it is certified or on any other later date that may be specified in or under the land code, and judicial notice shall be taken of the land code in any proceedings from the date of the coming into force of that land code.
Limitation
(1.1) A land code is not to come into force before the day on which the individual agreement is signed by the First Nation and the Minister. 635. Section 21 of the Act is replaced by the following:
Environmental protection regime
21. (1) After the coming into force of a land code, a First Nation shall, to the extent provided in the Framework Agreement, develop and implement through First Nation laws an environmental protection regime. The regime must be developed in accordance with the terms and conditions set out in the Framework Agreement.
Minimum standards
(2) The standards of environmental protection established by First Nation laws and the punishments imposed for failure to meet those standards must be at least equivalent in their effect to any standards established and punishments imposed by the laws of the province in which the First Nation land is situated.
Environmental assessment regime
(3) First Nation laws respecting environmental assessment must, to the extent provided in the Framework Agreement, establish, in accordance with that Agreement, an environmental assessment regime that is applicable to all
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projects carried out on First Nation land that are approved, regulated, funded or undertaken by the First Nation. 636. Section 45 of the Act is replaced by the following: Addition of band name
45. (1) The Governor in Council may, by order, add the name of a band to the schedule if he or she is satisfied that the signing of the Framework Agreement on the band’s behalf has been duly authorized and that the Framework Agreement has been signed.
Coming-intoforce date of land code
(2) The Minister may, by order, add to the schedule the date on which a land code comes into force with respect to First Nation lands.
Deletion of band name
(3) The Governor in Council may, by order, delete from the schedule the name of a First Nation and the date on which a land code comes into force with respect to the First Nation’s lands, if that First Nation is no longer subject to this Act under the terms of a land claims agreement or a self-government agreement. 637. The portion of the schedule to the Act before section 1 is replaced by the following: SCHEDULE (Sections 2 and 45) NAMES OF FIRST NATIONS AND COMING-INTO-FORCE DATES OF LAND CODES
Item
Column 1 First Nation that has signed the Framework Agreement
Column 2 Land code coming-intoforce date
638. Item numbers 1 to 58 of the schedule to the Act are repositioned vertically under the heading “Item” of that schedule and the corresponding First Nations’ names are repositioned vertically under column 1 of that schedule.
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639. Item 3 of the schedule to the Act is amended by adding the following in column 2: Item 3.
Column 2 Land code coming-into-force date November 1, 2000
640. Item 7 of the schedule to the Act is amended by adding the following in column 2: Item 7.
Column 2 Land code coming-into-force date January 1, 2000
641. Items 9 to 11 of the schedule to the Act are amended by adding the following in column 2: Item 9. 10. 11.
Column 2 Land code coming-into-force date August 1, 2002 July 1, 2003 January 1, 2000
642. Item 13 of the schedule to the Act is amended by adding the following in column 2: Item 13.
Column 2 Land code coming-into-force date January 1, 2000
643. Items 17 to 23 of the schedule to the Act are amended by adding the following in column 2:
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Item 17. 18. 19. 20. 21. 22. 23.
Column 2 Land code coming-into-force date January 1, 2004 February 1, 2005 August 1, 2009 March 1, 2009 October 1, 2011 August 1, 2003 May 1, 2004
644. Item 25 of the schedule to the Act is amended by adding the following in column 2: Item 25.
Column 2 Land code coming-into-force date May 29, 2007
645. Items 28 to 30 of the schedule to the Act are amended by adding the following in column 2: Item 28. 29. 30.
Column 2 Land code coming-into-force date September 1, 2005 June 6, 2007 September 30, 2004
646. Item 34 of the schedule to the Act is repealed. 647. Items 35 to 39 of the schedule to the Act are amended by adding the following in column 2: Item 35. 36. 37. 38. 39.
Column 2 Land code coming-into-force date November 25, 2005 May 20, 2003 January 8, 2007 February 1, 2007 February 1, 2010
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648. Items 41 to 46 of the schedule to the Act are amended by adding the following in column 2: Item 41. 42. 43. 44. 45. 46.
Column 2 Land code coming-into-force date October 1, 2010 January 1, 2010 February 26, 2009 September 1, 2009 July 29, 2008 August 21, 2008
649. Items 48 and 49 of the schedule to the Act are amended by adding the following in column 2: Item 48. 49.
Column 2 Land code coming-into-force date December 7, 2009 September 6, 2010
650. Item 52 of the schedule to the Act is amended by adding the following in column 2: Item 52.
Column 2 Land code coming-into-force date August 1, 2011
651. Item 58 of the schedule to the Act is amended by adding the following in column 2: Item 58.
Replacement — initial capitals
Column 2 Land code coming-into-force date August 5, 2010
652. The English version of the Act is amended by replacing “first nation” or “first nations” with “First Nation” or “First Nations”, respectively, in the following provisions:
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(a) the definitions “council”, “eligible voter”, “first nation”, “first nation land”, “first nation law”, “first nation member”, “Framework Agreement”, “individual agreement”, “interest”, “land code”, “licence” and “right” in subsection 2(1); (b) section 5; (c) the portion of subsection 6(1) before paragraph (a); (d) paragraphs 6(1)(b) to (l); (e) subsections 6(2) and (3); (f) paragraph 7(1)(d); (g) sections 8 to 12; (h) subsections 14(2) and (3); (i) subsection 15(2); (j) sections 16 to 20; (k) sections 22 to 34; and (l) sections 38 to 44. DIVISION 47 1999, c. 29
CANADA TRAVELLING EXHIBITIONS INDEMNIFICATION ACT 653. Paragraphs 3(3)(a) and (b) of the Canada Travelling Exhibitions Indemnification Act are replaced by the following: (a) $600,000,000, or any other amount that is provided by an appropriation Act or other Act of Parliament, in respect of each travelling exhibition; and (b) $3,000,000,000, or any other amount that is provided by an appropriation Act or other Act of Parliament, at any given time in respect of all travelling exhibitions. DIVISION 48
2002, c. 9, s. 2
CANADIAN AIR TRANSPORT SECURITY AUTHORITY ACT 654. Section 17 of the Canadian Air Transport Security Authority Act is replaced by the following:
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Appointment and tenure
17. The chief executive officer of the Authority is to be appointed by the Governor in Council to hold office during pleasure for any term that the Governor in Council considers appropriate.
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655. Section 19 of the Act is replaced by the following: Incapacity or vacancy
19. In the event of the absence or incapacity of, or a vacancy in the office of, the chief executive officer, the board may appoint an employee of the Authority to exercise the powers and perform the duties and functions of the chief executive officer, but the employee has no authority to act as chief executive officer for a period exceeding 90 days without the approval of the Governor in Council. DIVISION 49
2005, c. 9
FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT Amendments to the Act 656. The long title of the First Nations Fiscal and Statistical Management Act is replaced by the following: An Act to provide for real property taxation powers of first nations, to create a First Nations Tax Commission, First Nations Financial Management Board and First Nations Finance Authority and to make consequential amendments to other Acts
657. (1) The sixth paragraph of the preamble to the Act is repealed. (2) The ninth paragraph of the preamble to the Act is replaced by the following: Whereas, by 1999, first nations and the Government of Canada recognized the benefits of establishing statutory institutions as part of a comprehensive fiscal management system; 658. Section 1 of the Act is replaced by the following:
2011-2012 Short title
Emploi, croissance e 1. This Act may be cited as the First Nations Fiscal Management Act. 659. (1) The definition “First Nations Statistical Institute” in subsection 2(1) of the Act is repealed. (2) The definition “first nation” in subsection 2(1) of the Act is replaced by the following:
“first nation” « première nation »
“first nation” means a band named in the schedule. 660. Part 5 of the Act is repealed. 661. (1) Subsection 132(1) of the Act is replaced by the following:
Conflict of interest
132. (1) No person who is appointed to, or is employed by, a commission, board or authority established under this Act shall be appointed to, or be employed by, any other commission, board or authority established under this Act. (2) Subsection 132(2) of the English version of the Act is replaced by the following:
Conflict of interest
(2) No person referred to in subsection (1) shall accept or hold any office or employment that is inconsistent with that person’s duties or take part in any matter involving the commission, board or authority in which that person has an interest.
2006, c. 9, s. 8
(3) Subsection 132(3) of the Act is replaced by the following:
Conflict of interest
(3) All persons appointed to a commission or board established under this Act shall comply with the Conflict of Interest Act as though they were public office holders as defined in that Act.
662. Sections 133 and 134 of the Act are replaced by the following: Liability of Her Majesty
133. (1) No person has a right to receive any compensation, damages, indemnity or other relief from Her Majesty in right of Canada in
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respect of any claim against the First Nations Tax Commission, First Nations Financial Management Board or First Nations Finance Authority arising from its exercise of, or its failure to exercise, any of the powers or functions of that Commission, Board or Authority, as the case may be, including any claim against the First Nations Tax Commission as an agent of Her Majesty in right of Canada. Insurance required
(2) The First Nations Tax Commission, First Nations Financial Management Board and First Nations Finance Authority shall maintain in good standing at all times the insurance coverage required by any regulations made under paragraph 140(b).
No appropriation
134. No payment to the First Nations Tax Commission, First Nations Financial Management Board or First Nations Finance Authority may be made under an appropriation by Parliament authorized under an Act of Parliament to enable the Commission, Board or Authority to satisfy any claim referred to in subsection 133(1). 663. Section 136 of the Act is replaced by the following:
Limit of liability
136. No civil proceedings lie against a commissioner or employee of the First Nations Tax Commission, or any director or employee of the First Nations Financial Management Board, for anything done, or omitted to be done, in the exercise or purported exercise in good faith of any power, or in the performance or purported performance in good faith of any duty, of that person in accordance with this Act. 664. Subsection 139(1) of the Act is replaced by the following:
Official languages
139. (1) For greater certainty, the provisions of the Official Languages Act applicable to federal institutions apply to the First Nations Tax Commission. 665. Paragraph 140(b) of the Act is replaced by the following: (b) prescribing the insurance coverage required to be maintained by the First Nations Tax Commission, First Nations Financial
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Emploi, croissance e Management Board and First Nations Finance Authority in respect of liabilities referred to in subsection 133(1). 666. Section 146 of the Act is replaced by the following:
Review and evaluation
146. Within seven years after the day on which this Act receives royal assent, the Minister, after consultation with the First Nations Tax Commission, First Nations Financial Management Board and First Nations Finance Authority, shall review the provisions and operation of this Act and the operations of those institutions, and submit a report to each House of Parliament on that review, including any changes that the Minister recommends relating to the evolution of the mandate and the operation of those institutions. Transitional Provisions
Definition
667. In sections 668 to 673, “Institute” means the First Nations Statistical Institute.
Appointments terminated
668. (1) Directors of the Institute, including the Chairperson and Vice-Chairperson, cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a director of the Institute, including as the Chairperson or Vice-Chairperson, has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
References
669. Every reference to the Institute in a deed, contract or other document executed by the Institute in its own name is to be read, unless the context otherwise requires, as a reference to Her Majesty in right of Canada.
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Minister authorized
670. The Minister of Indian Affairs and Northern Development is authorized to sell or otherwise dispose of all of the Institute’s assets and to do everything necessary for or incidental to closing out the Institute’s affairs.
Surplus
671. (1) Any surplus that remains after the satisfaction of the Institute’s debts and liabilities and the winding-up charges, costs and expenses belongs to Her Majesty in right of Canada.
Unsatisfied debts and liabilities
(2) Any of the Institute’s debts and liabilities that remain unsatisfied on the day on which the Institute is dissolved become the debts and liabilities of Her Majesty in right of Canada.
Exception
(3) Despite subsection (2), Her Majesty in right of Canada is not liable in respect of any claim against the Institute arising from its exercise of, or its failure to exercise, any of its powers or functions.
Commencement of legal proceedings
672. (1) Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Minister of Indian Affairs and Northern Development in closing out the Institute’s affairs may be brought against Her Majesty in right of Canada in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the Institute.
Continuation of legal proceedings
(2) Any action, suit or other legal proceeding to which the Institute is a party — other than an action, suit or legal proceeding in respect of any claim against the Institute arising from its exercise of, or failure to exercise, any of its powers or functions — that is pending in a court on the coming into force of this subsection may be continued by or against Her Majesty in right of Canada in the same manner and to the same extent as it could have been continued by or against the Institute.
Limit of liability
673. No civil proceedings lie against a former director or employee of the Institute for anything done, or omitted to be done, in the exercise or purported exercise in good
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faith of any power, or in the performance or purported performance in good faith of any duty, of that person in accordance with the First Nations Fiscal Management Act, as that Act read immediately before the coming into force of section 660. Consequential Amendments R.S., c. A-1
Access to Information Act
2005, c. 9, s. 147
674. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: First Nations Statistical Institute Institut de la statistique des premières nations
2005, c. 9, s. 148
675. Schedule II to the Act is amended by striking out the reference to First Nations Fiscal and Statistical Management Act Loi sur la gestion financière et statistique des premières nations and the corresponding reference to “section 108”.
R.S., c. F-11 2005, c. 9, s. 149
R.S., c. I-5
Financial Administration Act 676. Part I of Schedule III to the Financial Administration Act is amended by striking out the following: First Nations Statistical Institute Institut de la statistique des premières nations Indian Act
2005, c. 9, s. 150
677. The portion of subsection 87(1) of the Indian Act before paragraph (a) is replaced by the following:
Property exempt from taxation
87. (1) Notwithstanding any other Act of Parliament or any Act of the legislature of a province, but subject to section 83 and section 5 of the First Nations Fiscal Management Act, the following property is exempt from taxation:
2005, c. 9, s. 151
678. Section 88 of the Act is replaced by the following:
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General provincial laws applicable to Indians
88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.
R.S., c. P-21
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Privacy Act
2005, c. 9, s. 152
679. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: First Nations Statistical Institute Institut de la statistique des premières nations
2004, c. 17
Westbank First Nation Self-Government Act
2005, c. 9, s. 153
680. The portion of section 8.1 of the Westbank First Nation Self-Government Act before paragraph (a) is replaced by the following:
First Nations Fiscal Management Act
8.1 Notwithstanding any provision of this Act or the Agreement, for the purpose of enabling the Westbank First Nation to benefit from the provisions of the First Nations Fiscal Management Act or obtain the services of any body established under that Act, the Governor in Council may make any regulations that the Governor in Council considers necessary, including regulations Coming into Force
Order in council
681. This Division comes into force on a day to be fixed by order of the Governor in Council.
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Emploi, croissance e DIVISION 50
2005, c. 21
CANADIAN FORCES MEMBERS AND VETERANS RE-ESTABLISHMENT AND COMPENSATION ACT Amendments to the Act
2011, c. 12, ss. 3 to 5
682. Sections 3 to 5 of the Canadian Forces Members and Veterans Re-establishment and Compensation Act are replaced by the following:
Eligibility — veterans and survivors
3. The Minister may, on application, pay or reimburse fees in respect of the provision of prescribed career transition services to a veteran or their survivor if the veteran or survivor meets the prescribed eligibility criteria.
2011, c. 12, s. 17(1)
683. (1) Paragraph 94(a) of the Act is replaced by the following: (a) respecting the time and manner of making an application under this Act for rehabilitation services, vocational assistance, compensation or payment or reimbursement of fees in respect of career transition services, and respecting the information that is required to accompany the application;
2011, c. 12, s. 17(2)
(2) Paragraph 94(e) of the Act is replaced by the following: (d.1) setting out, for the purposes of section 3, criteria in respect of the eligibility of providers of career transition services and of those services; (d.2) providing for the payment or reimbursement of fees in respect of the provision of career transition services, including a maximum amount of fees that may be paid or reimbursed, under section 3; (e) respecting the provision of information or documents to the Minister by any person who applies for or is in receipt of rehabilitation services, vocational assistance, an earnings loss benefit, a Canadian Forces income support benefit, a permanent impairment allowance, a clothing allowance or a payment or reimbursement of fees in respect of career transition services under this Act, and
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authorizing delivery of payment of payment or information
the Minister to suspend the services or assistance, the benefit or allowance or reimbursement of fees until or documents are provided;
the the the the
Coming into Force Order in council
684. This Division comes into force on a day to be fixed by order of the Governor in Council. DIVISION 51
2005, c. 35
REPEAL OF THE DEPARTMENT OF SOCIAL DEVELOPMENT ACT Repeal
Repeal
685. The Department of Social Development Act, chapter 35 of the Statutes of Canada, 2005, is repealed. National Council of Welfare
National Council of Welfare
686. (1) Members of the National Council of Welfare cease to hold office on the coming into force of this subsection.
Former members not entitled to relief
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the National Council of Welfare has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by the operation of this Division.
2005, c. 34
Related Amendment to the Department of Human Resources and Skills Development Act 687. Sections 5 to 8 of the Department of Human Resources and Skills Development Act are replaced by the following:
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Powers, duties and functions
5. (1) The Minister’s powers, duties and functions extend to and include all matters relating to human resources and skills development in Canada or the social development of Canada over which Parliament has jurisdiction and which are not by law assigned to any other Minister, department, board or agency of the Government of Canada.
Exercise of powers
(2) The Minister shall exercise the powers and perform the duties and functions (a) relating to human resources and skills development with a view to improving the standard of living and quality of life of all Canadians by promoting a highly skilled and mobile workforce and an efficient and inclusive labour market; and (b) relating to social development with a view to promoting social well-being and income security.
Powers
6. In exercising the powers and performing the duties and functions assigned to the Minister under this or any other Act, the Minister may (a) subject to the Statistics Act, collect, analyse, interpret, publish and distribute information relating to human resources and skills development or to social development; and (b) cooperate with provincial authorities with a view to coordinating efforts for human resources and skills development or for social development.
Programs
7. The Minister may, in exercising the powers and performing the duties and functions assigned by this Act, establish and implement programs designed to support projects or other activities that contribute to the development of the human resources of Canada and the skills of Canadians, or that contribute to the social development of Canada, and the Minister may make grants and contributions in support of the programs.
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R.S., c. F-11
Financial Administration Act
2005, c. 35, s. 54
688. Schedule I to the Financial Administration Act is amended by striking out the following: Department of Social Development Ministère du Développement social
2006, c. 9, s. 270
689. Part I of Schedule VI to the Act is amended by striking out the following: Department of Social Development Ministère du Développement social
R.S., c. S-3
Salaries Act
2005, c. 35, s. 65
690. Paragraph 4(2)(z.3) of the Salaries Act is repealed.
2005, c. 16, s. 20(1)
691. Paragraph 4.1(3)(z.21) of the Act is repealed.
R.S., c. 1 (5th Supp.)
Income Tax Act 692. Subparagraph 241(4)(d)(x) of the Income Tax Act is replaced by the following: (x) to an official of the Canada Employment Insurance Commission or the Department of Human Resources and Skills Development, solely for the purpose of the administration or enforcement of the Employment Insurance Act, an employment program of the Government of Canada or the evaluation or formation of policy for that Act or program,
1991, c. 30 2005, c. 35, s. 64
Public Sector Compensation Act 693. Schedule I to the Public Sector Compensation Act is amended by striking out the following under the heading “DEPARTMENTS”: Department of Social Development Ministère du Développement social
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Terminology Changes Replacement of “Minister of Social Development”
694. Unless the context requires otherwise, “Minister of Social Development” is replaced by “Minister of Human Resources and Skills Development” in any other Act of Parliament, and more particularly in the following: (a) in the Canada Pension Plan, (i) the definition “province providing a comprehensive pension plan” in subsection 3(1), (ii) subsections 3(2) and (3), (iii) subsection 4(3), (iv) subsections 26.1(1) and (2), (v) section 27, (vi) paragraph 27.2(1)(a), (vii) the definition “Minister” in subsection 42(1), (viii) the definition “Minister” in section 91, and (ix) subsection 117(1); (b) section 3 of the Energy Costs Assistance Measures Act; (c) in the Family Orders and Agreements Enforcement Assistance Act, (i) paragraph (a) of the definition “information bank director” in section 2, and (ii) the portion of section 6 before paragraph (a); (d) in the Federal-Provincial Fiscal Arrangements Act, (i) subsection 13(3), (ii) the definition “Minister” in section 18, (iii) section 23.1, (iv) subsection 24.3(2), (v) the definition “Minister” in section 24.9, (vi) section 25.8, and (vii) paragraph 40(f);
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(e) subsection 122.64(1) of the Income Tax Act; and (f) in the Old Age Security Act, (i) the definition “Minister” in section 2, and (ii) section 46.
Replacement of “Department of Social Development”
695. (1) Unless the context requires otherwise, “Department of Social Development” is replaced by “Department of Human Resources and Skills Development” in any other Act of Parliament, and more particularly in the following: (a) in the Canada Pension Plan, (i) paragraph 66(3)(d), and (ii) subsection 103(3); (b) paragraph 81(d) of the Canadian Forces Members and Veterans Re-establishment and Compensation Act; (c) paragraph 6.7(d) of the Department of Veterans Affairs Act; (d) in the Family Orders and Agreements Enforcement Assistance Act, (i) paragraphs 6(a) and (b), and (ii) section 15; (e) paragraph 122.64(2)(b) of the Income Tax Act; (f) paragraph 109.2(d) of the Pension Act; and (g) paragraph 30(2)(c) of the War Veterans Allowance Act.
Replacement — English version
(2) Every reference to “Department of Social Development” is replaced by a reference to “Department of Human Resources and Skills Development” in the English version of paragraph (a) of the definition “information bank director” in section 2 of the Family Orders and Agreements Enforcement Assistance Act.
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Emploi, croissance e Coming into Force
Order in council
696. Sections 685 to 695 come into force on a day or days to be fixed by order of the Governor in Council. DIVISION 52
2005, c. 47, s. 1
WAGE EARNER PROTECTION PROGRAM ACT Amendment to the Act
2011, c. 24, s. 163
697. Subparagraph (a)(i) of the definition “eligible wages” in subsection 2(1) of the English version of the Wage Earner Protection Program Act is replaced by the following: (i) the six-month period ending on the date of the bankruptcy or the first day on which there was a receiver in relation to the former employer, and Coming into Force
December 15, 2011
698. This Division is deemed to have come into force on December 15, 2011. DIVISION 53
2007, c. 30
KYOTO PROTOCOL IMPLEMENTATION ACT
Repeal
699. The Kyoto Protocol Implementation Act, chapter 30 of the Statutes of Canada, 2007, is repealed. DIVISION 54
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT Amendments to the Act 700. Subsection 2(2) of the Immigration and Refugee Protection Act is replaced by the following:
Act includes regulations and instructions
(2) Unless otherwise indicated, references in this Act to “this Act” include regulations made under it and instructions given under subsection 14.1(1). 701. Section 4 of the Act is amended by adding the following after subsection (2):
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(2.1) In making regulations under paragraphs 32(d.1) to (d.3), the Governor in Council may confer powers and duties on the Minister of Human Resources and Skills Development.
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702. Section 5 of the Act is amended by adding the following after subsection (1): Application
(1.1) Regulations made under this Act that apply in respect of sponsorship applications or applications for permanent or temporary resident visas, permanent or temporary resident status or work or study permits may, if they so provide, apply in respect of any such applications that are pending on the day on which the regulations are made, other than (a) applications to become a permanent resident made in Canada by protected persons; and (b) applications for permanent resident visas made by persons referred to in subsection 99(2) and sponsorship applications made in respect of those applications. 703. The Act is amended by adding the following after section 14: Minister’s Instructions
Economic immigration
14.1 (1) For the purpose of supporting the attainment of economic goals established by the Government of Canada, the Minister may give instructions establishing a class of permanent residents as part of the economic class referred to in subsection 12(2) and, in respect of the class that is established, governing any matter referred to in paragraphs 14(2)(a) to (g), 26(a), (b), (d) and (e) and 32(d) and the fees for processing applications for permanent resident visas or for permanent resident status and providing for cases in which those fees may be waived.
Limitation
(2) Despite any instruction given by the Minister under paragraph 87.3(3)(c), no more than 2,750 applications in a class established under subsection (1) may be processed in any year.
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Application of regulations
(3) Subject to subsection (4), regulations that apply to all classes prescribed under subsection 14(2) that are part of the economic class referred to in subsection 12(2) apply to a class established under subsection (1).
Exception
(4) The Minister may specify in an instruction that regulations made under subsection 14(2), paragraph 26(a), (b), (d) or (e) or 32(d) or section 89 do not apply to a class established under subsection (1).
Non-application of regulations
(5) For greater certainty, regulations that apply to only one class prescribed under subsection 14(2) that is part of the economic class referred to in subsection 12(2) — or to only certain classes that are part of that economic class — do not apply to a class established under subsection (1). However, an instruction given under that subsection may specify otherwise.
Non-application of instructions
(6) The instructions do not apply in respect of a class prescribed by the regulations.
Compliance with instructions
(7) An officer must comply with the instructions before processing an application and when processing one.
Amendments to instructions
(8) An instruction that amends another instruction may, if it so provides, apply in respect of applications in a class established by the original instruction that are pending on the day on which the amending instruction takes effect.
Effective period — limitation
(9) An instruction given under subsection (1) has effect for the period specified in the instruction, which is not to exceed five years starting on the day on which the instruction first takes effect. No amendment to or renewal of an instruction may extend the five-year period.
Pending applications
(10) Despite subsection (9), the Minister may direct officers to process, after the end of the effective period of an instruction, applications in a class established by the instruction that were made during the period in which the instruction had effect.
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User Fees Act
(11) The User Fees Act does not apply in respect of the fees referred to in subsection (1).
Publication
(12) Instructions must be published in the Canada Gazette.
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704. Subsection 27(2) of the Act is replaced by the following: Conditions
(2) A permanent resident must comply with any conditions imposed under the regulations or under instructions given under subsection 14.1(1). 705. Section 32 of the Act is amended by adding the following after paragraph (d): (d.1) in relation to the authorization of a foreign national to work in Canada — including in relation to a work permit — the requirements that may or must be imposed on the employer in question, or that may or must be varied or cancelled; (d.2) the power to inspect, for the purpose of verifying compliance with the requirements imposed on an employer in relation to the work permit of a foreign national that authorizes the foreign national to work in Canada temporarily; (d.3) the consequences of a failure to comply with the requirements referred to in paragraph (d.2);
2008, c. 28, s. 118
706. (1) Subsection 87.3(1) of the Act is replaced by the following:
Application
87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to sponsorship applications made by persons referred to in subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada.
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2008, c. 28, s. 118
(2) The portion of subsection 87.3(3) of the French version of the Act before paragraph (b) is replaced by the following:
Instructions
(3) Pour l’application du paragraphe (2), le ministre peut donner des instructions sur le traitement des demandes, notamment des instructions : a) prévoyant les groupes de demandes à l’égard desquels s’appliquent les instructions; (3) Subsection 87.3(3) of the Act is amended by adding the following after paragraph (a): (a.1) establishing conditions, by category or otherwise, that must be met before or during the processing of an application or request;
2008, c. 28, s. 118
(4) Paragraphs 87.3(3)(b) to (d) of the French version of the Act are replaced by the following: b) prévoyant l’ordre de traitement des demandes, notamment par groupe; c) précisant le nombre de demandes à traiter par an, notamment par groupe; d) régissant la disposition des demandes dont celles faites de nouveau. (5) Section 87.3 of the Act is amended by adding the following after subsection (3):
Application
(3.1) An instruction may, if it so provides, apply in respect of pending applications or requests that are made before the day on which the instruction takes effect.
Clarification
(3.2) For greater certainty, an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by category or otherwise, to be processed in any year be set at zero. 707. The Act is amended by adding the following after section 87.3: Federal Skilled Workers
Application made before February 27, 2008
87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been
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established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class. Application
(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
Effect
(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.
Fees returned
(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.
No recourse or indemnity
(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1). 708. Section 92 of the Act is amended by adding the following after subsection (1):
Incorporated material — instructions
2008, c. 28
(1.1) An instruction given by the Minister under this Act may incorporate by reference any material, regardless of its source. Amendment to the Budget Implementation Act, 2008 709. Section 120 of the Budget Implementation Act, 2008 is repealed. Coordinating Amendments
Bill C-31
710. (1) Subsections (2) and (3) apply if Bill C-31, introduced in the 1st session of the 41st Parliament and entitled the Protecting Canada’s Immigration System Act (referred to as “the other Act” in this section), receives royal assent.
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(2) On the first day on which both section 29 of the other Act and section 706 of this Act are in force, subsection 87.3(1) of the Immigration and Refugee Protection Act is replaced by the following: Application
87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), to sponsorship applications made under subsection 13(1), to applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada, to applications for work or study permits and to requests under subsection 25(1) made by foreign nationals outside Canada. (3) On the first day on which both section 30 of the other Act and section 703 of this Act are in force, subsection 14.1(4) of the Immigration and Refugee Protection Act is replaced by the following:
Exception
(4) The Minister may specify in an instruction that regulations made under subsection 14(2), paragraph 26(a), (b), (d) or (e) or 32(d) or subsection 89(1) do not apply to a class established under subsection (1). DIVISION 55 SHARED SERVICES CANADA Shared Services Canada Act
Enactment of Act
711. The Shared Services Canada Act is enacted as follows: An Act to establish Shared Services Canada
Preamble
Recognizing that the Government of Canada wishes to standardize and consolidate, within a single shared services entity, certain administrative services that support government institutions; and
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doing so will enable those services to be provided more effectively and will support the efficient use of public money; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Shared Services Canada Act. INTERPRETATION
Definitions
2. The following definitions apply in this Act.
“Crown corporation” « société d’État »
“Crown corporation” has the same meaning as in subsection 83(1) of the Financial Administration Act.
“department” « ministère »
“department” has the same meaning as in section 2 of the Financial Administration Act.
“President” « président »
“President” means the President of Shared Services Canada appointed under subsection 10(1). DESIGNATION OF MINISTER
Power of Governor in Council
3. The Governor in Council may designate a member of the Queen’s Privy Council for Canada to be the Minister for the purposes of this Act. ESTABLISHMENT
Establishment
4. A department is established, called Shared Services Canada, for the purpose of assisting the Minister in providing the services specified under section 6.
Minister
5. The Minister presides over Shared Services Canada and has the management and direction of it. POWERS, DUTIES AND FUNCTIONS
Governor in Council
6. The Governor in Council may specify (a) the services that the Minister must provide through Shared Services Canada; (b) the services that the Minister may provide through Shared Services Canada;
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Emploi, croissance e (c) the departments that must obtain a service that is specified under paragraph (a) exclusively from the Minister through Shared Services Canada and that are not permitted to meet their requirement for that service internally; (d) the departments and Crown corporations to which the Minister is permitted to provide services through Shared Services Canada; (e) the departments and Crown corporations to which the Minister is not permitted to provide services through Shared Services Canada; and (f) terms and conditions respecting the provision of the specified services.
Minister
7. The Minister may, for the purpose of providing services under this Act, exercise any of the powers, duties or functions that are set out in paragraph 6(a), (b), (c) or (g) of the Department of Public Works and Government Services Act in respect of departments and Crown corporations to which those services are provided.
Governor in Council’s approval
8. The Minister may — with the Governor in Council’s approval, given on a general or a specific basis — provide the services that are specified under paragraph 6(a) or (b) through Shared Services Canada to any person, organization or government, including a foreign government.
Charging for services
9. The Minister may, subject to any regulations that the Treasury Board makes for the purposes of this section, charge for the services that are provided under this Act. ORGANIZATION AND HEAD OFFICE
President
10. (1) The Governor in Council is to appoint a President of Shared Services Canada to hold office during pleasure.
Executive Vicepresident
(2) The Governor in Council may appoint an Executive Vice-president of Shared Services Canada to hold office during pleasure.
President
11. (1) The President is the deputy head of Shared Services Canada.
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Executive Vicepresident
(2) The Executive Vice-president is to act as President if that office is vacant or if the President is absent or incapacitated.
Remuneration
12. The President and the Executive Vicepresident are to be paid the remuneration that is fixed by the Governor in Council.
Head office
13. The head office of Shared Services Canada is to be in the National Capital Region that is described in the schedule to the National Capital Act.
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HUMAN RESOURCES Appointment of employees
14. The employees that are necessary for the conduct of Shared Services Canada’s work are to be appointed in accordance with the Public Service Employment Act. GENERAL
Access to Information Act
15. For greater certainty, for the purposes of the Access to Information Act, the records of other government institutions as defined in that Act or of other organizations that are, on behalf of those institutions or organizations, contained in or carried on Shared Services Canada’s information technology systems are not under the control of Shared Services Canada.
Privacy Act
16. For greater certainty, for the purposes of the Privacy Act, personal information that is collected by other government institutions as defined in that Act or by other organizations and that is, on behalf of those institutions or organizations, contained in or carried on Shared Services Canada’s information technology systems is not under the control of Shared Services Canada. TRANSITIONAL PROVISIONS DEFINITIONS
Definitions
“former department” « ancien ministère »
17. The following definitions apply in sections 18 to 20. “former department” means the portion of the federal public administration known as Shared Services Canada.
2011-2012 “new department” « nouveau ministère »
Emploi, croissance e “new department” means Shared Services Canada as established by section 4. FORMER DEPARTMENT
President
18. (1) The person occupying the position of President of the former department on the day on which this section comes into force becomes President of the new department on that day and is deemed to have been appointed under subsection 10(1).
Employees
(2) Nothing in this Act is to be construed as affecting the status of an employee who, immediately before the coming into force of this section, occupied a position in the former department, except that the employee is, on the coming into force of this section, to occupy that position in the new department.
Definition of “employee”
(3) In subsection (2), “employee” has the same meaning as in subsection 2(1) of the Public Service Employment Act.
Transfer of appropriations
19. (1) Any amount that is appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the federal public administration’s charges and expenses for the former department that is unexpended on the day on which this section comes into force is deemed, on that day, to be an amount appropriated for defraying the federal public administration’s charges and expenses for the new department.
Transfer of powers, duties and functions
(2) If a power, duty or function is vested in or exercisable by the former department’s President or an employee of the former department under any Act, order, rule or regulation, or any contract, lease, licence or other document, that power, duty or function is vested in or is exercisable by the new department’s President or an employee of the new department.
References
20. (1) A reference to the former department in any of the following is deemed to be a reference to the new department: (a) Schedule I to the Access to Information Act under the heading “OTHER GOVERNMENT INSTITUTIONS”;
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(b) the schedule to the Privacy Act; (c) any order of the Governor in Council made under subsection 3.2(2) of the Access to Information Act; (d) any order of the Governor in Council made under subsection 3.1(2) of the Privacy Act; (e) any order of the Governor in Council made under the definition “department” in subsection 2(1) of the Public Service Employment Act; and (f) Schedules I.1, IV and VI to the Financial Administration Act. Deputy head
(2) The designation of a person as deputy head of the former department in any of the following is deemed to be a designation of the President of the new department as deputy head of that department: (a) any order of the Governor in Council made under paragraph 29(e) of the Canadian Security Intelligence Service Act; and (b) any order of the Governor in Council made under the definition “deputy head” in subsection 2(1) of the Public Service Employment Act.
1996, c. 16
Consequential Amendment to the Department of Public Works and Government Services Act
2007, c. 29, s. 153
712. Section 9.1 of the Department of Public Works and Government Services Act is replaced by the following:
Exception
9.1 Section 9 does not apply to (a) a department within the meaning of paragraph (c) of the definition “department” in section 2 of the Financial Administration Act; or (b) the department that is established under section 4 of the Shared Services Canada Act.
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Emploi, croissance e DIVISION 56
2004, c. 2
ASSISTED HUMAN REPRODUCTION ACT Amendments to the Act 713. (1) The definitions “assisted reproduction procedure”, “consent”, “controlled activity”, “health reporting information” and “licence” in section 3 of the Assisted Human Reproduction Act are repealed. (2) The definition “Agency” in section 3 of the Act is repealed. 714. The Act is amended by adding the following after section 4:
Non-application
4.1 The Human Pathogens and Toxins Act does not apply in respect of sperm, ova and in vitro embryos to be used for the purpose of assisted human reproduction. 715. The Act is amended by adding the following after section 4.1:
Non-application
4.2 The Food and Drugs Act does not apply in respect of sperm and ova to be used for the purpose of assisted human reproduction. 716. The Act is amended by adding the following after section 9:
Purpose
10. (1) The purpose of this section is to reduce the risks to human health and safety arising from the use of sperm or ova for the purpose of assisted human reproduction, including the risk of the transmission of disease.
Distribution, etc. of gametes
(2) Subject to subsection (3), no person shall distribute, make use of or import any of the following for the purpose of assisted human reproduction: (a) sperm that has been obtained from a donor and that is meant for the use of a female person other than a spouse, commonlaw partner or sexual partner of the donor; (b) an ovum that has been obtained from a donor and that is meant for the use of a female person other than the donor or the spouse, common-law partner or sexual partner of the donor; or
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(c) an ovum that has been obtained from a donor and that is meant for the donor’s use as a surrogate mother. Exception
(3) Subsection (2) does not apply if (a) tests have been conducted in respect of the sperm or ovum in accordance with the regulations, and the sperm or ovum has been obtained, prepared, preserved, quarantined, identified, labelled and stored and its quality assessed in accordance with the regulations; and (b) the donor of the sperm or ovum has been screened and tested, and the donor’s suitability has been assessed, in accordance with the regulations.
Testing, etc. in respect of gametes
(4) No person shall, except in accordance with the regulations, engage in any activity described in paragraph (3)(a) or (b) in respect of any of the following with the intention of distributing or making use of it for the purpose of assisted human reproduction: (a) sperm described in paragraph (2)(a); (b) an ovum described in paragraph (2)(b); or (c) an ovum described in paragraph (2)(c).
Definition of “common-law partner”
(5) In this section, “common-law partner”, in relation to an individual, means a person who is cohabiting with the individual in a conjugal relationship at the relevant time, having so cohabited for a period of at least one year. 717. Section 10 of the Act and the heading before it are repealed. 718. Section 11 of the Act is repealed. 719. (1) The portion of subsection 12(1) of the Act before paragraph (a) is replaced by the following:
Reimbursement of expenditures
12. (1) No person shall, except in accordance with the regulations, (2) Paragraph 12(3)(b) of the Act is replaced by the following:
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Emploi, croissance e (b) the reimbursement is made in accordance with the regulations.
2004, c. 11, s. 53
720. Sections 13 to 19 of the Act are repealed. 721. Subsection 20(2) of the Act is repealed.
2010, c. 12, s. 1656
722. The heading before section 21 and sections 21 to 39 of the Act are repealed. 723. The heading before section 40 of the Act is replaced by the following: ADMINISTRATION AND ENFORCEMENT 724. Sections 40 to 43 of the Act are repealed. 725. (1) Subsection 44(1) of the Act is replaced by the following:
Taking measures
44. (1) If the Minister has reasonable grounds to believe that this Act has been, or is likely to be, contravened, the Minister may take, or order any person to take, all reasonable measures that the Minister considers necessary to mitigate the effects of the contravention or to prevent the contravention. (2) Subsections 44(2) to (4) of the Act are replaced by the following:
Personal liability
(4) No person who takes measures under this section, or who takes measures specified in an order made under this section, is personally liable either civilly or criminally in respect of any act or omission in the course of taking those measures unless it is established that the person acted in bad faith.
Exception
(5) Subsection (4) does not apply to a person who has committed a contravention of this Act.
Statutory Instruments Act
(6) For greater certainty, orders made under this section are not statutory instruments within the meaning of the Statutory Instruments Act. 726. The heading before section 45 of the Act is repealed. 727. Section 46 of the Act is replaced by the following:
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Designation of inspectors
46. (1) The Minister may designate persons or classes of persons employed by the government of Canada or of a province as inspectors for the purposes of the administration and enforcement of this Act.
Certificates to be produced
(2) An inspector shall be given a certificate in a form established by the Minister attesting to the inspector’s designation and, on entering any place or conveyance under subsection 47(1), the inspector shall, if so required, produce the certificate to the person in charge of that place or conveyance.
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728. (1) Subsection 47(1) of the Act is replaced by the following: Entry by inspectors
47. (1) Subject to section 48, an inspector may, for a purpose related to verifying compliance or preventing non-compliance with any of sections 8, 10 and 12, enter any place or conveyance in which the inspector has reasonable grounds to believe that there is any activity, material or information in respect of which any of those sections applies. (2) The portion of subsection 47(2) of the Act before paragraph (b) is replaced by the following:
Inspection
(2) An inspector entering a place or conveyance may, for a purpose set out in subsection (1), (a) examine any material or information that is relevant to that purpose; (3) The portion of subsection 47(3) of the Act before paragraph (b) is replaced by the following:
Examination of information
(3) In carrying out an inspection, an inspector may, for a purpose set out in subsection (1), (a) examine and make copies of or extracts from any books, documents or other records that the inspector believes on reasonable grounds contain information that is relevant to that purpose; (4) Paragraph 47(3)(c) of the Act is replaced by the following:
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Emploi, croissance e (c) use or cause to be used any computer system to examine information relevant to that purpose that is contained in or available to the computer system; 729. Paragraph 48(2)(b) of the Act is replaced by the following: (b) entry to the dwelling-house is necessary for a purpose related to verifying compliance or preventing non-compliance with any of sections 8, 10 and 12, and 730. Subsection 51(1) of the Act is replaced by the following:
Application for restoration
51. (1) A person from whom material or information is seized may, within 60 days after the date of the seizure, apply to a provincial court judge within whose jurisdiction the seizure was made for an order of restoration, if the person sends to the Minister notice of their intention to do so. 731. Subsection 52(3) of the Act is replaced by the following:
Disposal
(3) Subject to section 54, an inspector may dispose of material or information forfeited to Her Majesty in any manner that the designated officer, as defined in the regulations, directs. 732. Sections 54 and 55 of the Act are replaced by the following:
Maintaining viable gametes and embryos
54. The designated officer, as defined in the regulations, shall make reasonable efforts to preserve any viable sperm, ovum or in vitro embryo that is seized under this Act or the Criminal Code. Any further measures shall be consistent with the consent of the donor or, if the consent cannot be obtained, shall be in accordance with the regulations.
Designation of analysts
55. The Minister may designate any person as an analyst for the purpose of the administration and enforcement of this Act. 733. Sections 58 and 59 of the Act are replaced by the following:
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Agreements for enforcement
58. The Minister may enter into agreements with any department or agency of the government of Canada or of a province or with any law enforcement agency with respect to the administration and enforcement of this Act.
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734. The portion of section 60 of the Act before paragraph (a) is replaced by the following: Offence and punishment
60. A person who contravenes any of sections 5 to 7 and 9 is guilty of an offence and 735. The portion of section 61 of the Act before paragraph (a) is replaced by the following:
Offence and punishment
61. A person who contravenes any provision of this Act — other than any of sections 5 to 7 and 9 — or of the regulations or an order made under subsection 44(1) is guilty of an offence and 736. Section 64 of the Act is replaced by the following:
Notice to interested authorities
64. The Minister may notify any interested authority, such as a professional licensing or disciplinary body established under the laws of Canada or a province, of the identity of a person who is charged with an offence under this Act or who there are reasonable grounds to believe may have acted in breach of any professional code of conduct. 737. (1) Paragraphs 65(1)(c) to (e) of the Act are replaced by the following: (c) respecting the tests to be conducted in respect of sperm and ova described in any of paragraphs 10(2)(a) to (c), and the obtaining, preparation, preservation, quarantining, identification, labelling and storage of, and the assessment of the quality of, the sperm and ova; (d) respecting the testing and screening of, and the assessment of the suitability of, donors described in paragraph 10(3)(b); (d.1) respecting the disposition of sperm and ova described in any of paragraphs 10(2)(a) to (c);
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Emploi, croissance e (d.2) respecting the tracing of sperm and ova described in any of paragraphs 10(2)(a) to (c), including regulations that require (i) measures to be taken to identify persons who have distributed, made use of or imported the sperm or ova for the purpose of assisted human reproduction, or who are storing any of them for that purpose, (ii) the communication of information to the persons referred to in subparagraph (i), to the donors of the sperm and ova and to the persons who have undergone assisted human reproduction procedures in which the sperm or ova were used, (iii) measures to be taken to determine the nature, cause and extent of the risks to human health and safety, and (iv) measures to be taken in respect of the sperm and ova to reduce those risks; (d.3) respecting the reporting to the Minister of information with respect to an activity described in section 10; (e) respecting the reimbursement of expenditures for the purposes of subsection 12(1), including providing for the expenditures that may be reimbursed; (2) Paragraphs 65(1)(f) to (m) of the Act are repealed. (3) Paragraphs 65(1)(n) to (q) of the Act are replaced by the following: (n) respecting the creation and maintenance of records by any person who (i) engages in an activity for which written consent is required under section 8, (ii) engages in an activity described in section 10, or (iii) makes a reimbursement under section 12; (4) Paragraphs 65(1)(r) to (w) of the Act are replaced by the following: (r) authorizing the Minister, in the manner set out in the regulations, to require any person described in paragraph (n) to provide
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to the Minister any records that the person is required by the regulations to create or maintain, and any additional information related to the activity described in subparagraph (n)(i), (ii) or (iii), and requiring that person to provide to the Minister those records and that information within the time and in the manner set out in the regulations; (5) Paragraph 65(1)(y) of the English version of the Act is replaced by the following: (y) for the purposes of subsection 51(1), prescribing the information to be contained in the notice and the time and manner of sending it; (6) Paragraphs 65(1)(z) to (z.2) of the Act are replaced by the following: (z) respecting the further measures referred to in section 54; (z.1) respecting the giving of consent for the purposes of section 54; (z.2) defining “designated officer” for the purposes of subsection 52(3) and section 54; (z.3) exempting any person from the application of section 10, conditionally or unconditionally, in the circumstances provided for in the regulations; and (z.4) exempting from the application of subsection 12(2), conditionally or unconditionally, in the circumstances provided for in the regulations, any person who reimburses expenditures referred to in the regulations. 738. The heading before section 68 and sections 68 to 71 of the Act are repealed. 739. Section 76 of the Act and the heading before it are repealed. Coming into Force of a Provision of the Assisted Human Reproduction Act Royal assent
740. Despite section 78 of the Assisted Human Reproduction Act, section 44 of that Act, as amended by section 725 of this Act, comes into force on the day on which this Act receives royal assent.
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Emploi, croissance e Transitional Provisions
Definitions
“Agency” « Agence »
741. The following definitions apply in sections 742 to 745. “Agency” means the Assisted Human Reproduction Agency of Canada established by subsection 21(1) of the Assisted Human Reproduction Act.
“Her Majesty” « Sa Majesté »
“Her Majesty” means Her Majesty in right of Canada.
Appointments terminated
742. (1) The members of the board of directors of the Agency cease to hold office on the coming into force of this subsection.
No compensation
(2) Despite the provisions of any contract, agreement or order, no person appointed to hold office as a member of the board of directors of the Agency, other than the President, has any right to claim or receive any compensation, damages, indemnity or other form of relief from Her Majesty in right of Canada or from any employee or agent of Her Majesty for ceasing to hold that office or for the abolition of that office by operation of this Division.
Employees of Agency
743. Any employee of the Agency who has been advised that they will be laid off in accordance with subsection 64(1) of the Public Service Employment Act is, for the purpose of any workforce adjustment measure taken with respect to them, transferred to the Department of Health on the day on which section 722 comes into force.
Rights and obligations transferred
744. (1) All rights and property held by or in the name of or in trust for the Agency and all obligations and liabilities of the Agency are deemed to be rights, property, obligations and liabilities of Her Majesty.
References
(2) Every reference to the Agency in any deed, contract or other document executed by the Agency in its own name is, unless the context otherwise requires, to be read as a reference to Her Majesty.
Closing out affairs
(3) The Minister of Health may do and perform all acts and things necessary for and incidental to closing out the affairs of the Agency.
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Commencement of legal proceedings
745. (1) Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the Agency, or by the Minister of Health in closing out the affairs of the Agency, may be brought against Her Majesty in any court that would have had jurisdiction if the action, suit or proceeding had been brought against the Agency.
Continuation of legal proceedings
(2) Any action, suit or other legal proceeding to which the Agency is party pending in any court on the coming into force of this section may be continued by or against Her Majesty in the same manner and to the same extent as it could have been continued by or against the Agency.
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Consequential Amendments R.S., c. A-1
Access to Information Act
2004, c. 2, s. 72
746. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée
2004, c. 2, s. 73
747. Schedule II to the Act is amended by striking out the reference to Assisted Human Reproduction Act Loi sur la procréation assistée and by striking out the corresponding reference to “subsection 18(2)”.
R.S., c. F-11
Financial Administration Act
2004, c. 2, s. 74
748. (1) Schedule II to the Financial Administration Act is amended by striking out the following: Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée
SOR/2006-262, s. 1
(2) Schedule IV to the Act is amended by striking out the following under the heading “PORTIONS OF THE CORE PUBLIC ADMINISTRATION”:
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Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée SOR/2008-18, s. 1
(3) Part III of Schedule VI to the Act is amended by striking out, in column I, the reference to Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée and by striking out the corresponding reference in column II to “President”.
R.S., c. P-21
2004, c. 2, s. 75
R.S., c. P-36 2004, c. 22, s. 77
2004, c. 11
Privacy Act 749. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée Public Service Superannuation Act 750. Part I of Schedule I to the Public Service Superannuation Act is amended by striking out the following: Assisted Human Reproduction Agency of Canada Agence canadienne de contrôle de la procréation assistée Library and Archives of Canada Act 751. Section 53 of the Library and Archives of Canada Act is repealed.
424 2009, c. 24
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Human Pathogens and Toxins Act 752. Section 4 of the Human Pathogens and Toxins Act is amended by adding “or” at the end of paragraph (a) by striking out “or” at the end of paragraph (b) and by repealing paragraph (c). Coming into Force
Order in council
753. (1) Sections 715 and 716, or any provision enacted by section 716, come into force on a day or days to be fixed by order of the Governor in Council.
Order in council
(2) Subsection 713(2) and sections 721 to 723, 726 and 741 to 751 come into force on a day to be fixed by order of the Governor in Council.
Emploi, croissance et pros
2011-2012 SCHEDULE (Section 52)
SCHEDULE 1 (Subsection 2(1) and paragraph 83(a)) FEDERAL AUTHORITIES 1. Port authority as defined in subsection 2(1) of the Canada Marine Act. 2. Board as defined in section 2 of the Canada-Newfoundland Atlantic Accord Implementation Act. 3. Board as defined in section 2 of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act. SCHEDULE 2 (Subparagraph 5(1)(a)(iv) and subsection 5(3)) COMPONENTS OF THE ENVIRONMENT SCHEDULE 3 (Section 66 and paragraph 83(a)) BODIES 1. Designated airport authority as defined in subsection 2(1) of the Airport Transfer (Miscellaneous Matters) Act.
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C-23 First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-23 An Act to implement the Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, the Agreement on the Environment between Canada and the Hashemite Kingdom of Jordan and the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan
AS PASSED BY THE HOUSE OF COMMONS JUNE 11, 2012
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to implement the Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, the Agreement on the Environment between Canada and the Hashemite Kingdom of Jordan and the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan”.
SUMMARY This enactment implements the Free Trade Agreement and the related agreements on the environment and labour cooperation entered into between Canada and the Hashemite Kingdom of Jordan and signed at Amman on June 28, 2009. The general provisions of the enactment specify that no recourse may be taken on the basis of the provisions of Part 1 of the enactment or any order made under that Part, or the provisions of the Free Trade Agreement or the related agreements themselves, without the consent of the Attorney General of Canada. Part 1 of the enactment approves the Free Trade Agreement and the related agreements and provides for the payment by Canada of its share of the expenditures associated with the operation of the institutional aspects of the Free Trade Agreement and the power of the Governor in Council to make orders for carrying out the provisions of the enactment. Part 2 of the enactment amends existing laws in order to bring them into conformity with Canada’s obligations under the Free Trade Agreement and the related agreement on labour cooperation.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO IMPLEMENT THE FREE TRADE AGREEMENT BETWEEN CANADA AND THE HASHEMITE KINGDOM OF JORDAN, THE AGREEMENT ON THE ENVIRONMENT BETWEEN CANADA AND THE HASHEMITE KINGDOM OF JORDAN AND THE AGREEMENT ON LABOUR COOPERATION BETWEEN CANADA AND THE HASHEMITE KINGDOM OF JORDAN SHORT TITLE 1.
Canada–Jordan Economic Growth and Prosperity Act
INTERPRETATION 2.
Definitions
3. Interpretation consistent with agreements
4. Non-application of Act or Agreement to water
5. Construction HER MAJESTY
6. Binding on Her Majesty
7. Purpose
PURPOSE
CAUSES OF ACTION 8.
Causes of action under Part 1 PART 1
IMPLEMENTATION OF THE AGREEMENT AND THE RELATED AGREEMENTS APPROVAL 9.
Agreements approved ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
10. Canadian representative on Joint Commission
11. Payment of expenditures
i PANELS, COMMITTEES, SUBCOMMITTEES, WORKING GROUPS AND EXPERT GROUPS 12.
Powers of Minister
13. Administrative support
14. Payment of costs ORDERS
15. Orders re Article 14-13 PART 2 RELATED AMENDMENTS
16–21.
Canadian International Trade Tribunal Act
22–23.
Crown Liability and Proceedings Act
24–31.
Customs Act
32–40.
Customs Tariff
41. 42–43.
Department of Human Resources and Skills Development Act Financial Administration Act PART 3
COORDINATING AMENDMENTS AND COMING INTO FORCE COORDINATING AMENDMENTS 44.
Bill C-13
45. SOR/2011-191 COMING INTO FORCE
46. Order in council
SCHEDULE 1 SCHEDULE 2 SCHEDULE 3 SCHEDULE 4 SCHEDULE 5
1st Session, 41st Parliament, 60-61 Elizabeth II, 2011-2012
HOUSE OF COMMONS OF CANADA
BILL C-23 An Act to implement the Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, the Agreement on the Environment between Canada and the Hashemite Kingdom of Jordan and the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Canada– Jordan Economic Growth and Prosperity Act. 5 INTERPRETATION
Definitions
“Agreement” « Accord »
“federal law” « texte législatif fédéral »
2. The definitions in this section apply in this Act. “Agreement” means the Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009. 10 “federal law” means the whole or any portion of an Act of Parliament or a regulation, order or other instrument issued, made or established in the exercise of a power conferred by or under an Act of Parliament. 15
“Joint Commission” « Commission mixte »
“Joint Commission” means the Joint Commission established under Article 13-1 of the Agreement.
“Minister” « ministre »
“Minister” means the Minister for International Trade. 20
2 “related agreement” « accord connexe »
Canada–Jordan Economi “related agreement” means (a) the Agreement on the Environment between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009; or (b) the Agreement on Labour Cooperation 5 between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009.
Interpretation consistent with agreements
3. For greater certainty, this Act and any federal law that implements a provision of the Agreement or a related agreement or fulfils an 10 obligation of the Government of Canada under the Agreement or a related agreement is to be interpreted in a manner consistent with the Agreement or related agreement, as the case may be. 15
Non-application of Act or Agreement to water
4. For greater certainty, nothing in this Act or the Agreement applies to natural surface or ground water in liquid, gaseous or solid state.
Construction
5. For greater certainty, nothing in this Act, by specific mention or omission, is to be 20 construed to affect in any manner the right of Parliament to enact legislation to implement any provision of the Agreement or a related agreement or fulfil any of the obligations of the Government of Canada under the Agree- 25 ment or a related agreement. HER MAJESTY
Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada. PURPOSE
Purpose
7. The purpose of this Act is to implement the Agreement and the related agreements, the 30 objectives of which, as elaborated more specifically through their provisions, are to (a) establish a free trade area in accordance with the Agreement;
(b) promote, through the expansion of recip- 35 rocal trade, the harmonious development of the economic relations between Canada and the Hashemite Kingdom of Jordan in order to foster, in both countries, the advancement of economic activity; 40
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Croissance économique et pr (c) contribute, by the removal of barriers to trade, to the harmonious development and expansion of world trade; (d) enhance and enforce environmental laws and regulations and strengthen cooperation 5 on environmental matters; (e) protect, enhance and enforce basic workers’ rights, strengthen cooperation on labour matters and build on the respective international commitments of Canada and the 10 Hashemite Kingdom of Jordan on labour matters; and (f) promote sustainable development.
CAUSES OF ACTION Causes of action under Part 1
8. (1) No person has any cause of action and no proceedings of any kind shall be taken 15 without the consent of the Attorney General of Canada to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part 1 or an order made under that Part. 20
Causes of action under the Agreement or a related agreement
(2) Subject to Part Three and Annex 4 of the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009, no person has any cause of action and no proceedings of any kind 25 shall be taken without the consent of the Attorney General of Canada to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement or a related agreement. 30 PART 1 IMPLEMENTATION OF THE AGREEMENT AND THE RELATED AGREEMENTS APPROVAL
Agreements approved
9. The Agreement and the related agreements are approved.
Canada–Jordan Economi ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Canadian representative on Joint Commission
10. The Minister is the principal representative of Canada on the Joint Commission.
Payment of expenditures
11. The Government of Canada shall pay its appropriate share of the aggregate of any expenditures incurred by or on behalf of the 5 Joint Commission. PANELS, COMMITTEES, SUBCOMMITTEES, WORKING GROUPS AND EXPERT GROUPS
Powers of Minister
12. (1) The Minister may (a) appoint representatives of Canada to any committee, subcommittee or working group referred to in paragraph 6 of Article 13-1 of 10 the Agreement; (b) appoint a panelist in accordance with Article 14-8 of the Agreement; and
(c) propose candidates to serve as the chair of a panel in accordance with that Article 15 14-8. Powers of Minister of the Environment
(2) The Minister of the Environment may (a) appoint representatives of Canada to the committee referred to in Article 15 of the Agreement on the Environment between 20 Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009; (b) appoint a panelist in accordance with Annex I to that Agreement; and (c) propose candidates to serve as the 25 chairperson of a panel, or select the chairperson, in accordance with that Annex.
Powers of the Minister of Labour
(3) The Minister of Labour may (a) appoint representatives of Canada to any committee, working group or expert group 30 referred to in Article 7 of the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009;
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Croissance économique et pr (b) appoint a panelist in accordance with Annex 3 to that Agreement; and (c) propose candidates to serve as the chairperson of a panel, or select the chairperson, in accordance with that Annex. 5
Administrative support
13. The Minister shall designate an agency, division or branch of the Government of Canada to facilitate the operation of Chapter 14 of the Agreement and to provide administrative assistance to panels established under that Chapter. 10
Payment of costs
14. The Government of Canada shall, under the Agreement and the related agreements, pay the costs or its appropriate share of the costs of (a) the remuneration and expenses payable to members of panels, committees, subcommit- 15 tees, working groups and expert groups, to independent experts and to the assistants of panel members; and (b) the general expenses incurred by panels, committees, subcommittees, working groups 20 and expert groups. ORDERS
Orders re Article 14-13
15. (1) The Governor in Council may, for the purpose of suspending benefits in accordance with Article 14-13 of the Agreement, by 25 order, do any one or more of the following: (a) suspend rights or privileges granted by Canada to the Hashemite Kingdom of Jordan or to goods of the Hashemite Kingdom of Jordan under the Agreement or any federal law; 30 (b) modify or suspend the application of any federal law with respect to the Hashemite Kingdom of Jordan or to goods of the Hashemite Kingdom of Jordan; (c) extend the application of any federal law 35 to the Hashemite Kingdom of Jordan or to goods of the Hashemite Kingdom of Jordan; and (d) take any other measure that the Governor in Council considers necessary. 40
Period of order
(2) Unless repealed, an order made under subsection (1) has effect for the period specified in the order.
Canada–Jordan Economi
PART 2 RELATED AMENDMENTS R.S., c. 47 (4th Supp.)
CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT
2010, c. 4, s. 16(2)
16. Subsection 2(5) of the Canadian International Trade Tribunal Act is replaced by the following:
Definition of “Jordan Tariff”
(4.3) In this Act, “Jordan Tariff” means the rates of customs duty referred to in section 52.4 5 of the Customs Tariff.
Goods imported from certain countries
(5) For the purposes of this Act, goods are imported from one of the following countries if they are shipped directly to Canada from that country, within the meaning of sections 17 and 10 18 of the Customs Tariff: a NAFTA country an EFTA state Chile Colombia
Costa Rica Jordan Peru 17. The Act is amended by adding the following after section 19.017: 20 Definition of “principal cause”
19.018 (1) In this section, “principal cause” means, in respect of a serious injury or threat of a serious injury, an important cause that is no less important than any other cause of the serious injury or threat. 25
Emergency measures — Jordan
(2) The Tribunal shall inquire into and report to the Governor in Council on the question whether goods that are entitled to the benefit of the Jordan Tariff are, as a result of that entitlement, being imported in such increased 30 quantities, in absolute terms, and under such conditions as to alone constitute a principal cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods, if the Governor in Council, 35 on the recommendation of the Minister, refers the question to it for inquiry and report.
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Terms of reference
(3) The Tribunal shall conduct an inquiry under subsection (2) and prepare its report in accordance with the terms of reference established by the Governor in Council or the Minister, as the case may be. 5
Tabling of report
(4) The Minister shall cause a copy of each report submitted to the Governor in Council or the Minister to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is so 10 submitted.
Notice of report
(5) The Tribunal shall cause notice of the submission of a report to be published in the Canada Gazette.
2010, c. 4, s. 19
18. Section 21.1 of the Act is replaced by 15 the following:
Definition of “complaint”
21.1 In sections 23 to 30, “complaint” means a written complaint filed with the Tribunal under any of subsections 23(1) to (1.094) and, for the purposes of those sections, a complaint is 20 properly documented if the Tribunal is satisfied that it contains or is accompanied by the information required by section 23. 19. Section 23 of the Act is amended by adding the following after subsection (1.093): 25
Filing of complaint — Jordan Tariff
(1.094) Any domestic producer of goods that are like or directly competitive with any goods being imported into Canada and that are entitled to the Jordan Tariff, or any person or association acting on behalf of such a domestic producer, 30 may file a written complaint with the Tribunal alleging that, as a result of that entitlement, the imported goods are being imported in such increased quantities in absolute terms and under such conditions as to alone constitute a cause of 35 serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods. 20. Paragraph 26(1)(a) of the Act is amended by striking out “or” at the end of 40 subparagraph (i.93) and by adding the following after that subparagraph: (i.94) in the case of a complaint filed under subsection 23(1.094), the goods that are entitled to the Jordan Tariff are, as a 45
Canada–Jordan Economi result of that entitlement, being imported in such increased quantities in absolute terms and under such conditions as to alone constitute a cause of serious injury, or threat of serious injury, to domestic 5 producers of like or directly competitive goods, or 21. Subsection 27(1) of the Act is amended by striking out “or” at the end of paragraph (a.93) and by adding the following after that 10 paragraph: (a.94) in the case of a complaint filed under subsection 23(1.094), the goods that are entitled to the Jordan Tariff are, as a result of that entitlement, being imported in such 15 increased quantities in absolute terms and under such conditions as to alone constitute a principal cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods; or 20
R.S., c. C-50; 1990, c. 8, s. 21
CROWN LIABILITY AND PROCEEDINGS ACT
2009, c. 16, s. 25(3)
22. Paragraphs (a) to (d) of the definition “appropriate party” in section 20.1 of the Crown Liability and Proceedings Act are replaced by the following: (a) the Commission for Environmental Co- 25 operation established under Article 8 of the North American Agreement on Environmental Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Govern- 30 ment of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 48 of that Agreement, (b) the Canada–Chile Commission for En- 35 vironmental Cooperation established under Article 8 of the Agreement on Environmental Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 40
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Croissance économique et pr 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement, (c) the Commission for Labor Cooperation established under Article 8 of the North 5 American Agreement on Labor Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on 10 September 14, 1993, as amended from time to time in accordance with Article 52 of that Agreement, (d) the Canada–Chile Commission for Labour Cooperation established under Article 8 15 of the Agreement on Labour Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance 20 with Article 47 of that Agreement, or
2009, c. 16, s. 30; 2010, c. 4, s. 24
R.S., c. 1 (2nd Supp.)
23. The schedule to the Act is replaced by the schedule set out in Schedule 1 to this Act. CUSTOMS ACT
1997, c. 36, s. 147(1); 2001, c. 28, s. 26(2); 2009, c. 6, s. 23(2), c. 16, s. 31(2); 2010, c. 4, s. 25(2)
24. (1) The definitions “preferential tariff treatment under CCFTA”, “preferential tar- 25 iff treatment under CCOFTA”, “preferential tariff treatment under CCRFTA”, “preferential tariff treatment under CEFTA”, “preferential tariff treatment under CIFTA”, “preferential tariff treatment under CPFTA” 30 and “preferential tariff treatment under NAFTA” in subsection 2(1) of the Customs Act are repealed.
2010, c. 4, s. 25(1)
(2) The definitions “free trade agreement” and “free trade partner” in subsection 2(1) of 35 the Act are replaced by the following:
“free trade agreement” « accord de libre-échange »
“free trade agreement” means an agreement set out in column 2 of Part 1 of the schedule;
10 “free trade partner” « partenaire de libre-échange »
Canada–Jordan Economi “free trade partner” means a country or territory set out in column 1 of Part 1 of the schedule; (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: 5
“CJFTA” « ALÉCJ »
“CJFTA” has the same meaning as “Agreement” in section 2 of the Canada–Jordan Economic Growth and Prosperity Act;
“Jordan” « Jordanie »
“Jordan” has the same meaning as in subsection 2(1) of the Customs Tariff; 10
“preferential tariff treatment” « traitement tarifaire préférentiel »
“preferential tariff treatment” means, in respect of goods, entitlement to whichever tariff set out in column 3 of Part 1 of the schedule is applicable in the circumstances;
1997, c. 14, s. 35(4); 2001, c. 28, s. 26(3); 2009, c. 6, s. 23(3), c. 16, s. 31(3) and par. 56(10)(a); 2010, c. 4, s. 25(3) 1988, c. 65, s. 69
(4) Subsection 2(1.2) of the Act is repealed. 15
25. Paragraph 35.1(4)(c) of the French version of the Act is replaced by the following: c) exempter des personnes ou des marchandises, individuellement ou par catégorie, de 20 l’application du paragraphe (1), sous réserve des éventuelles conditions prévues par le règlement.
1997, c. 36, s. 162
26. Subsection 42.2(1) of the French version of the Act is replaced by the following: 25
Déclaration de l’origine
42.2 (1) Dès l’achèvement de la vérification de l’origine en application de l’alinéa 42.1(1)a), l’agent désigné, en application du paragraphe 42.1(1), fournit à l’exportateur ou au producteur des marchandises en cause une déclaration 30 établissant si celles-ci sont admissibles, au titre du Tarif des douanes, au traitement tarifaire préférentiel demandé.
2010, c. 4, s. 26
27. Section 42.4 of the Act and the heading before it are replaced by the following: 35
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Croissance économique et pr Denial or Withdrawal of Benefit of Preferential Tariff Treatment Under Certain Free Trade Agreements
Definition of “identical goods”
42.4 (1) In this section, “identical goods” has the meaning assigned to that expression by the provision, set out in column 2 of Part 2 of the schedule, of an agreement set out in column 1. 5
Denial or withdrawal of benefit — specified countries
(2) Notwithstanding section 24 of the Customs Tariff, the Minister may, subject to any prescribed conditions, deny or withdraw preferential tariff treatment under an agreement set out in column 1 of Part 2 of the schedule in 10 respect of goods for which that treatment is claimed if the exporter or producer of the goods has made false representations that identical goods exported or produced by that exporter or producer and for which that treatment was 15 claimed were eligible for that treatment.
2010, c. 4, s. 27
28. Paragraph 43.1(1)(b) of the Act is replaced by the following: (b) in the case of goods exported from a country or territory set out in column 1 of 20 Part 3 of the schedule, any matter, other than those referred to in paragraphs (a) and (c), concerning those goods that is set out in the provision set out in column 2; and
2010, c. 4, s. 28
29. Paragraph 74(1)(c.11) of the Act is 25 replaced by the following: (c.11) the goods were imported from Israel or another CIFTA beneficiary or from a country or territory set out in column 1 of Part 4 of the schedule but no claim for preferential tariff 30 treatment under CIFTA or an agreement set out in column 2, as the case may be, was made in respect of those goods at the time they were accounted for under subsection 32(1), (3) or (5); 35
Canada–Jordan Economi
12 1993, c. 44, s. 108(1); 1997, c. 14, s. 47(1); 2001, c. 28, s. 30; 2009, c. 6, s. 29, c. 16, ss. 35 and 56(13); 2010, c. 4, s. 29
30. Subsections 164(1.1) to (1.5) of the Act are replaced by the following:
Regulations
(1.1) The Governor in Council may, on the recommendation of the Minister, make regulations for the purpose of the uniform interpreta- 5 tion, application and administration of a chapter or provision, set out in column 2 of Part 5 of the schedule, of an agreement set out in column 1 and any other matters that may be agreed on from time to time by the parties to that 10 agreement. 31. Schedules I to IV to the Act are replaced by the schedule set out in Schedule 2 to this Act. CUSTOMS TARIFF
1997, c. 36
32. Subsection 2(1) of the Customs Tariff is 15 amended by adding the following in alphabetical order: “Canada–Jordan Free Trade Agreement” « Accord de libre-échange CanadaJordanie »
“Jordan” « Jordanie »
“Canada–Jordan Free Trade Agreement” has the same meaning as “Agreement” in section 2 of the Canada–Jordan Economic Growth and 20 Prosperity Act. “Jordan” means the land territory, the air space and the internal waters and territorial sea over which the Hashemite Kingdom of Jordan 25 exercises sovereignty.
2010, c. 4, s. 31
33. Section 5 of the Act is replaced by the following:
Goods imported from certain countries
5. For the purposes of this Act, goods are imported from one of the following countries if they are shipped directly to Canada from that 30 country: a NAFTA country Chile Colombia Costa Rica
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Switzerland 2010, c. 4, s. 32
34. Paragraph 14(2)(c) of the Act is replaced by the following: (c) by way of compensation for any action taken under any of the following provisions: 10 (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2), (v) subsection 70(2),
(vi) subsection 71(2), (vii) subsection 71.01(1), (viii) subsection 71.1(2), (ix) subsection 71.5(1), (x) subsection 71.6(1),
(xi) subsection 72(1), (xii) subsection 75(1), (xiii) subsection 76(1), (xiv) subsection 76.1(1), (xv) subsection 5(3), (3.2) or (4.1) of the 25 Export and Import Permits Act. 2010, c. 4, s. 34
35. Section 27 of the Act is replaced by the following:
Abbreviations
27. The following abbreviations, as defined below, apply in the List of Tariff Provisions and 30 the “F” Staging List.
“AUT” « TAU »
“AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement 35 Tariff.
14 “COLT” « TCOL »
“CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
“JT” « TJ »
“LDCT” « TPMD »
“MT” « TM »
“MUST” « TMÉU »
“NT” « TN »
“NZT” « TNZ »
“PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
Canada–Jordan Economi “COLT” refers to the Colombia Tariff. “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff.
“JT” refers to the Jordan Tariff. “LDCT” refers to the Least Developed Country Tariff. “MT” refers to the Mexico Tariff. “MUST” refers to the Mexico–United States 10 Tariff. “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PT” refers to the Peru Tariff. “SLT” refers to the Switzerland–Liechtenstein 15 Tariff. “UST” refers to the United States Tariff. 36. The Act is amended by adding the following after section 52.3: Jordan Tariff
Application of JT
52.4 (1) Subject to section 24, goods that 20 originate in Jordan are entitled to the Jordan Tariff rates of customs duty.
“A” final rate
(2) If “A” is set out in the column entitled “Preferential Tariff” in the List of Tariff Provisions following the abbreviation “JT” in 25
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“F” staging for JT
(3) If “F” is set out in the column entitled “Preferential Tariff” in the List of Tariff 5 Provisions following the abbreviation “JT” in relation to goods entitled to the Jordan Tariff, the Jordan Tariff rate of customs duty that applies to those goods is the initial rate, reduced as provided in the “F” Staging List. 10
Rounding of specific rates
(4) If a reduction under subsection (3) results in a specific rate of customs duty that includes a fraction of one tenth of a cent, the rate shall be rounded down to the nearest one tenth of a cent.
Rounding of amounts
(5) If a reduction under subsection (3) results 15 in a rate of customs duty that includes a fraction of one per cent other than 0.5, the resulting percentage shall be rounded down to the nearest percentage that divides evenly by 0.5.
Elimination of rates of less than two per cent
(6) If a reduction under subsection (3) results 20 in a rate of customs duty that is a percentage of less than two per cent, the rate shall be further reduced to “Free” immediately. 37. The Act is amended by adding the following after section 71.5: 25 Bilateral Emergency Measures — Jordan
Order by Governor in Council
71.6 (1) Subject to subsections (2) and (3), if at any time it appears to the satisfaction of the Governor in Council, as a result of an inquiry made by the Canadian International Trade Tribunal under subsection 19.018(2) of the 30 Canadian International Trade Tribunal Act or further to a complaint filed under subsection 23(1.094) of that Act, that goods that are entitled to the Jordan Tariff are, as a result of that entitlement, being imported in such in- 35 creased quantities in absolute terms and under such conditions as to alone constitute a principal cause of serious injury, or a threat of serious injury, to domestic producers of like or directly competitive goods, the Governor in Council 40 may, on the recommendation of the Minister, by order
Canada–Jordan Economi (a) suspend, during the period that the order is in effect, any reduction of the rate of customs duty with respect to those goods that would otherwise be made after that time by virtue of section 52.4; 5 (b) in respect of goods on which a customs duty is imposed on a seasonal basis, make those goods subject to a temporary duty, in addition to any other duty specified in this Act or in any other Act of Parliament relating 10 to customs, at a rate set out in the order, but that rate, when added to the rate of customs duty set out in the List of Tariff Provisions that is in effect in respect of those goods at that time, may not exceed the Most-Fa- 15 voured-Nation Tariff rate of customs duty that was in effect in respect of those goods immediately before the coming into force of this subsection; and (c) in respect of goods other than goods 20 referred to in paragraph (b), make those goods subject to a temporary duty, in addition to any other duty specified in this Act or in any other Act of Parliament relating to customs, at a rate set out in the order, but 25 that rate, when added to the rate of customs duty specified in the Jordan Tariff that is in effect in respect of those goods at that time, may not exceed the lesser of (i) the Most-Favoured-Nation Tariff rate 30 of customs duty that is in effect in respect of those goods immediately before the coming into force of this subsection, and (ii) the Most-Favoured-Nation Tariff rate of customs duty that was in effect in 35 respect of those goods at the time the order is made.
Terms and conditions
(2) An order under subsection (1) (a) may not be made more than twice during the period beginning on the coming into force 40 of this subsection and ending on the date that is 10 years after the coming into force of this subsection in respect of goods of a particular kind and, if made during that period, remains in effect for the period, not exceeding three 45 years, specified in the order; and
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Application of measures a second time
(3) A measure referred to in an order made under subsection (1) may be applied a second time if the period that has elapsed since the initial application of the measure ended is equal 10 to at least two years.
Rate of duty when order ceases to have effect
(4) If an order made under subsection (1) ceases to have effect in a particular calendar year, the rate of customs duty applicable to the goods after the order ceases to have effect is the 15 rate of customs duty that is applicable in accordance with section 52.4.
Definition of “principal cause”
(5) In this section, “principal cause” means, in respect of a serious injury or threat of serious injury, an important cause that is not less 20 important than any other cause of the serious injury or threat.
Reference to customs duty in effect
(6) For the purposes of paragraph (1)(b), the Most-Favoured Nation Tariff rate of customs duty in effect in respect of a fresh fruit or 25 vegetable is, (a) in respect of a fresh vegetable, the rate of customs duty applicable to that vegetable set out in the applicable tariff item referred to in Supplementary Note 2(b) in Chapter 7 of the 30 List of Tariff Provisions; and (b) in respect of a fresh fruit, the rate of customs duty applicable to that fruit set out in the applicable tariff item referred to in Supplementary Note 4(b) in Chapter 8 of 35 the List of Tariff Provisions.
2010, c. 4, s. 40
38. Section 79 of the Act is replaced by the following:
Goods in transit
79. An order made under any of the following provisions may provide that goods that are 40 in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1);
Canada–Jordan Economi
18 (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2);
(g) subsection 71.01(1);
(h) subsection 71.1(2); (i) subsection 71.5(1); (j) subsection 71.6(1); (k) subsection 72(1); (l) subsection 75(1);
(m) subsection 76(1); (n) subsection 76.1(1). 2010, c. 4, s. 41
39. Paragraphs 133(j) and (j.1) of the Act are replaced by the following: (j) for the purpose of tariff item No. 15 9971.00.00, prescribing conditions under which goods that have been exported to one of the following countries for repair or alteration may be imported: a NAFTA country
Chile Colombia Costa Rica Iceland Israel or another CIFTA beneficiary
Jordan Liechtenstein Norway Peru Switzerland
(j.1) for the purpose of tariff item No. 9992.00.00, prescribing conditions under which goods that have been exported to one of the following countries for repair or alteration may be imported: 35 a NAFTA country Chile Colombia
Croissance économique et pr
2011-2012 Costa Rica
Israel or another CIFTA beneficiary Jordan Peru 40. (1) The List of Tariff Provisions set 5 out in the schedule to the Act is amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “PT”, a reference to “JT:”; (b) adding in the column “Preferential 10 Tariff / Final Rate”, above the reference to “PT”, a reference to “JT:”; (c) adding in the column “Preferential Tariff / Initial Rate” a reference to “Free” after the abbreviation “JT”, and adding in 15 the column “Preferential Tariff / Final Rate” a reference to “Free (A)” after the abbreviation “JT”, for all tariff items except those tariff items set out in Schedule 3 to this Act; and 20 (d) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final rate” a reference to “N/A” after the abbreviation “JT” for the tariff items set out in Schedule 3 to this Act. 25
(2) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by (a) replacing the reference beginning with 30 “All the foregoing,” and ending with “in that country.” with a reference to “All the foregoing, regardless of the country of origin or tariff treatment, returned to Canada after having been exported to 35 one of the countries listed below for repair or alteration in that country.”; and (b) adding the following before Note 1:
Countries: Chile
Canada–Jordan Economi
20 Colombia Costa Rica Iceland
Israel or another CIFTA beneficiary Jordan
Liechtenstein Mexico Norway Peru Switzerland
United States (3) The Description of Goods of tariff item No. 9992.00.00 in the List of Tariff Provisions set out in the schedule to the Act is replaced by the following: 15 Goods, regardless of the country of origin or tariff treatment, other than the goods of tariff item No. 9971.00.00, returned to Canada after having been exported to one of the countries listed below for repair or alteration in that 20 country. Countries: Chile Colombia Costa Rica
Israel or another CIFTA beneficiary Jordan Mexico Peru United States 2005, c. 34
DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT ACT
2009, c. 16, s. 51; 2010, c. 4, s. 43
41. The schedule to the Department of Human Resources and Skills Development Act is replaced by the schedule set out in Schedule 4 to this Act.
2011-2012 R.S., c. F-11
Croissance économique et pr FINANCIAL ADMINISTRATION ACT 42. The Financial Administration Act is amended by adding the following after section 89.6: Implementation of Other Free Trade Agreements
Directive
89.7 (1) Despite subsections 85(1) to (1.2), the Governor in Council may give a directive 5 under subsection 89(1) to any parent Crown corporation for the purpose of implementing any provision of a free trade agreement set out in Schedule VII that pertains to that Crown corporation. 10
Regulations
(2) The Governor in Council may, on the recommendation of the Treasury Board and the appropriate Minister made at the request of a Crown corporation, make any regulations in relation to that corporation that the Governor in 15 Council considers necessary for the purpose of implementing any provision of a free trade agreement set out in Schedule VII that pertains to that corporation. 43. The Act is amended by adding, after 20 Schedule VI, the Schedule VII set out in Schedule 5 to this Act. PART 3 COORDINATING AMENDMENTS AND COMING INTO FORCE COORDINATING AMENDMENTS
Bill C-13
44. (1) Subsections (2) to (20) apply if Bill C-13, introduced in the 1st session of the 41st Parliament and entitled the Keeping Cana- 25 da’s Economy and Jobs Growing Act (in this section referred to as the “other Act”), receives royal assent. (2) If section 33 of this Act comes into force before section 111 of the other Act, then 30 that section 111 is deemed never to have come into force and is repealed.
Canada–Jordan Economi
(3) If section 111 of the other Act comes into force on the same day as section 33 of this Act, then that section 111 is deemed to have come into force before that section 33. (4) On the first day on which both 5 subsection 113(2) of the other Act and section 34 of this Act are in force, paragraph 14(2)(c) of the Customs Tariff is replaced by the following: (c) by way of compensation for any action 10 taken under any of the following provisions: (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2),
(v) subsection 70(2), (vi) subsection 71(2), (vii) subsection 71.01(1), (viii) subsection 71.1(2), (ix) subsection 71.5(1),
(x) subsection 71.6(1), (xi) subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act. (5) On the first day on which both section 116 of the other Act and section 35 of this Act 25 are in force, section 27 of the Customs Tariff is replaced by the following: Abbreviations
“AUT” « TAU »
27. The following abbreviations, as defined below, apply in the schedule. “AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement Tariff.
“COLT” « TCOL »
“COLT” refers to the Colombia Tariff.
2011-2012 “CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
“JT” « TJ »
Croissance économique et pr “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff. “JT” refers to the Jordan Tariff.
“LDCT” « TPMD »
“LDCT” refers to the Least Developed Country Tariff.
“MFN” « NPF »
“MFN” refers to the Most-Favoured-Nation Tariff.
“MT” « TM »
“MUST” « TMÉU »
“NT” « TN »
“NZT” « TNZ »
“PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
“MT” refers to the Mexico Tariff.
“MUST” refers to the Mexico–United States Tariff. “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PT” refers to the Peru Tariff.
“SLT” refers to the Switzerland–Liechtenstein Tariff. “UST” refers to the United States Tariff. (6) On the first day on which both section 129 of the other Act and section 38 of this Act 20 are in force, section 79 of the Customs Tariff is replaced by the following:
Goods in transit
79. An order made under any of the following provisions may provide that goods that are in transit to Canada at the time the order comes 25 into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1);
Canada–Jordan Economi
24 (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2);
(g) subsection 71.01(1);
(h) subsection 71.1(2); (i) subsection 71.5(1); (j) subsection 71.6(1). (7) If section 39 of this Act comes into force before section 134 of the other Act, then 10 that section 134 is deemed never to have come into force and is repealed. (8) If section 134 of the other Act comes into force on the same day as section 39 of this Act, then that section 134 is deemed to 15 have come into force before that section 39. (9) On the first day on which both section 137 of the other Act and subsection 40(1) of this Act are in force, the List of Countries and Applicable Tariff Treatments set out in 20 the schedule to the Customs Tariff is amended by adding, in the column “Tariff Treatment / Other”, a reference to “JT” opposite the reference to “Jordan”. (10) If subsection 138(1) of the other Act 25 comes into force before subsection 40(2) of this Act, then that subsection 40(2) is replaced by the following: (2) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions 30 set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (11) If subsection 40(2) of this Act comes into force before subsection 138(1) of the 35 other Act, then that subsection 138(1) is deemed never to have come into force and is repealed.
(12) If subsection 138(1) of the other Act comes into force on the same day as 40 subsection 40(2) of this Act, then that
2011-2012
Croissance économique et pr subsection 40(2) is deemed to have come into force before that subsection 138(1) and subsection (11) applies as a consequence. (13) If subsection 40(3) of this Act comes into force before subsection 138(3) of the 5 other Act, then that subsection 138(3) is deemed never to have come into force and is repealed.
(14) If subsection 138(3) of the other Act comes into force on the same day as 10 subsection 40(3) of this Act, then that subsection 138(3) is deemed to have come into force before that subsection 40(3). (15) If section 140 of the other Act comes into force before paragraph 40(1)(d) of this 15 Act, then Schedule 3 to this Act is amended by deleting tariff item No. 9929.00.00.
(16) If section 140 of the other Act comes into force on the same day as paragraph 40(1)(d) of this Act, then that paragraph 20 40(1)(d) is deemed to have come into force before that section 140. (17) If subsection 40(1) of this Act comes into force before section 143 of the other Act, then, on the day on which that section 143 25 comes into force, the tariff provisions that are added by that section 143 to the List of Tariff Provisions set out in the schedule to the Customs Tariff are amended by (a) adding in the column “Preferential 30 Tariff / Initial Rate”, above the reference to “PT”, a reference to “JT: Free”; and (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “PT”, a reference to “JT: Free (A)”. 35 (18) If section 143 of the other Act comes into force on the same day as subsection 40(1) of this Act, then that section 143 is deemed to have come into force before that subsection 40(1). 40 (19) If subsection 40(1) of this Act comes into force before section 146 of the other Act, then, on the day on which that section 146 comes into force, the tariff provisions that are
Canada–Jordan Economi added by that section 146 to the List of Tariff Provisions set out in the schedule to the Customs Tariff are amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference 5 to “PT”, a reference to “JT: Free”; and (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “PT”, a reference to “JT: Free (A)”.
(20) If section 146 of the other Act comes 10 into force on the same day as subsection 40(1) of this Act, then that section 146 is deemed to have come into force before that subsection 40(1). SOR/2011-191
45. (1) In this section, “Order” means the 15 Order Amending the Schedule to the Customs Tariff (Harmonized System Conversion, 2012), SOR/2011-191. (2) If section 1 of the Order comes into force before subsection 40(1) of this Act, then 20 Schedule 3 to this Act is amended by deleting tariff item Nos. 0209.00.22, 0209.00.24, 0401.30.20, 0407.00.12 and 0407.00.19. (3) If section 1 of the Order comes into force on the same day as subsection 40(1) of 25 this Act, then that subsection 40(1) is deemed to have come into force before that section 1. (4) If section 5 of the Order comes into force before subsection 40(1) of this Act, then Schedule 3 to this Act is amended by adding, 30 in numerical order, tariff item Nos. 0209.90.20, 0209.90.40, 0401.40.20, 0 4 0 1 . 5 0 . 2 0 , 0 4 0 7 . 11 . 1 2 , 0 4 0 7 . 11 . 9 2 , 0407.21.20 and 0407.90.12. (5) If subsection 40(1) of this Act comes 35 into force before section 5 of the Order, then, on the day on which that section 5 comes into force, the tariff provisions that are added by that section 5 to the List of Tariff Provisions set out in the schedule to the Customs Tariff 40 are amended by
2011-2012
Croissance économique et pr (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “PT”, a reference to “JT:”; (b) adding in the column “Preferential Tariff / Final Rate”, above the reference 5 to “PT”, a reference to “JT:”; (c) adding in the column “Preferential Tariff / Initial Rate” a reference to “Free” after the abbreviation “JT”, and adding in the column “Preferential Tariff / Final 10 Rate” a reference to “Free (A)” after the abbreviation “JT”, for all tariff items except tariff item Nos. 0209.90.20, 0209.90.40, 0401.40.20, 0401.50.20, 0407.11.12, 0407.11.92, 0407.21.20 and 15 0407.90.12; and (d) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final Rate” a reference to “N/A” after the abbreviation “JT” for tariff item 20 Nos. 0209.90.20, 0209.90.40, 0401.40.20, 0401.50.20, 0407.11.12, 0407.11.92, 0407.21.20 and 0407.90.12.
(6) If section 5 of the Order comes into force on the same day as subsection 40(1) of 25 this Act, then that section 5 is deemed to have come into force before that subsection 40(1) and subsection (4) applies as a consequence. COMING INTO FORCE Order in council
46. This Act, other than sections 44 and 45, comes into force on a day to be fixed by 30 order of the Governor in Council.
Canada–Jordan Economic Grow SCHEDULE 1 (Section 23) SCHEDULE (Section 20.1) PART 1 ENVIRONMENTAL COOPERATION TREATIES
The Agreement on Environmental Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement. The North American Agreement on Environmental Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 48 of that Agreement. PART 2 LABOUR COOPERATION TREATIES The Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009, as amended from time to time in accordance with Article 22 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Colombia, signed on November 21, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Peru, signed on May 29, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement. The North American Agreement on Labor Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 52 of that Agreement.
2011-2012
Croissance économique et prospérit SCHEDULE 2 (Section 31)
SCHEDULE (Subsection 2(1), section 42.4, paragraphs 43.1(1)(b) and 74(1)(c.11) and subsection 164(1.1)) PART 1 Column 1 Country or Territory
Column 2 Agreement
Column 3 Tariff
Chile
CCFTA
Chile Tariff rates of customs duty under the Customs Tariff
Colombia
CCOFTA
Colombia Tariff rates of customs duty under the Customs Tariff
Costa Rica
CCRFTA
Costa Rica Tariff rates of customs duty under the Customs Tariff
EFTA State
CEFTA
Iceland Tariff, Norway Tariff or Switzerland– Liechtenstein Tariff rates of customs duty under the Customs Tariff
Israel or another CIFTA beneficiary
CIFTA
Canada–Israel Agreement Tariff rates of customs duty under the Customs Tariff
Jordan
CJFTA
NAFTA country
NAFTA
Jordan Tariff rates of customs duty under the Customs Tariff United States Tariff, Mexico Tariff or Mexico–United States Tariff rates of customs duty under the Customs Tariff
Peru
CPFTA
Peru Tariff rates of customs duty under the Customs Tariff
PART 2 Column 1 Agreement
Column 2 Provision
CCFTA CCOFTA CCRFTA CJFTA CPFTA
Article Article Article Article Article
E-14 423 V.14 5-11 423
Canada–Jordan Economic Grow
Column 1 Agreement NAFTA
Column 2 Provision Article 514 PART 3
Column 1 Country or Territory
Column 2 Provision
Chile
paragraph CCFTA paragraph CCOFTA paragraph paragraph CCRFTA
Colombia Costa Rica
1 of Article E-09 of 1 of Article 419 of 1 of Article V.9 or 10 of Article IX.2 of
EFTA State
Article 28(2) of Annex C of CEFTA
Jordan
paragraph 10 of Article 6-2 of CJFTA
NAFTA country
paragraph 1 of Article 509 of NAFTA
Peru
paragraph 1 of Article 419 of CPFTA PART 4
Column 1 Country or Territory
Column 2 Agreement
Colombia Costa Rica EFTA State Jordan Peru
CCOFTA CCRFTA CEFTA CJFTA CPFTA PART 5
Column 1 Agreement
Column 2 Chapter or Provision
CCFTA CCOFTA CCRFTA CEFTA CJFTA CPFTA NAFTA
Chapters C and E Chapter Four Chapters III and V Chapter II and Annex C Chapter Five Chapter Four Chapters Three and Five
2011-2012
Croissance économique et prospérit
SCHEDU (Subsectio 0105.11.22 0105.94.92 0105.99.12 0207.11.92 0207.12.92 0207.13.92 0207.13.93 0207.14.22 0207.14.92 0207.14.93 0207.24.12 0207.24.92 0207.25.12 0207.25.92 0207.26.20 0207.26.30 0207.27.12 0207.27.92 0207.27.93 0209.00.22 0209.00.24 0210.99.12 0210.99.13 0210.99.15 0210.99.16 0401.10.20 0401.20.20 0401.30.20 0402.10.20 0402.21.12 0402.21.22 0402.29.12 0402.29.22 0402.91.20 0402.99.20 0403.10.20 0403.90.12 0403.90.92 0404.10.22 0404.90.20 0405.10.20 0405.20.20 0405.90.20 0406.10.20 0406.20.12 0406.20.92 0406.30.20 0406.40.20 0406.90.12 0406.90.22 0406.90.32 0406.90.42
0406.90.52 0406.90.62 0406.90.72 0406.90.82 0406.90.92 0406.90.94 0406.90.96 0406.90.99 0407.00.12 0407.00.19 0408.11.20 0408.19.20 0408.91.20 0408.99.20 1517.90.22 1601.00.22 1601.00.32 1602.20.22 1602.20.32 1602.31.13 1602.31.14 1602.31.94 1602.31.95 1602.32.13 1602.32.14 1602.32.94 1602.32.95 1806.20.22 1806.90.12 1901.20.12 1901.20.22 1901.90.32 1901.90.34 1901.90.52 1901.90.54 2105.00.92 2106.90.32 2106.90.34 2106.90.52 2106.90.94 2202.90.43 2309.90.32 3502.11.20 3502.19.20 3504.00.11 3504.00.12 3504.00.90 9801.20.00 9826.10.00 9826.20.00 9826.30.00 9826.40.00
9897.00.00 9898.00.00 9899.00.00 9904.00.00 9929.00.00 9938.00.00 9987.00.00 9990.00.00
Canada–Jordan Economic Grow
ANNE (paragrap 0105.11.22 0105.94.92 0105.99.12 0207.11.92 0207.12.92 0207.13.92 0207.13.93 0207.14.22 0207.14.92 0207.14.93 0207.24.12 0207.24.92 0207.25.12 0207.25.92 0207.26.20 0207.26.30 0207.27.12 0207.27.92 0207.27.93 0209.00.22 0209.00.24 0210.99.12 0210.99.13 0210.99.15 0210.99.16 0401.10.20 0401.20.20 0401.30.20 0402.10.20 0402.21.12 0402.21.22 0402.29.12 0402.29.22 0402.91.20 0402.99.20 0403.10.20 0403.90.12 0403.90.92 0404.10.22 0404.90.20 0405.10.20 0405.20.20 0405.90.20 0406.10.20 0406.20.12 0406.20.92 0406.30.20 0406.40.20 0406.90.12 0406.90.22 0406.90.32 0406.90.42
0406.90.52 0406.90.62 0406.90.72 0406.90.82 0406.90.92 0406.90.94 0406.90.96 0406.90.99 0407.00.12 0407.00.19 0408.11.20 0408.19.20 0408.91.20 0408.99.20 1517.90.22 1601.00.22 1601.00.32 1602.20.22 1602.20.32 1602.31.13 1602.31.14 1602.31.94 1602.31.95 1602.32.13 1602.32.14 1602.32.94 1602.32.95 1806.20.22 1806.90.12 1901.20.12 1901.20.22 1901.90.32 1901.90.34 1901.90.52 1901.90.54 2105.00.92 2106.90.32 2106.90.34 2106.90.52 2106.90.94 2202.90.43 2309.90.32 3502.11.20 3502.19.20 3504.00.11 3504.00.12 3504.00.90 9801.20.00 9826.10.00 9826.20.00 9826.30.00 9826.40.00
9897.00.00 9898.00.00 9899.00.00 9904.00.00 9929.00.00 9938.00.00 9987.00.00 9990.00.00
2011-2012
Croissance économique et prospérit SCHEDULE 4 (Section 41) SCHEDULE (Subsections 19.1(1) and (2)) TREATIES
The Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009, as amended from time to time in accordance with Article 22 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Colombia, signed on November 21, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Peru, signed on May 29, 2008, as amended from time to time in accordance with Article 30 of that Agreement.
Canada–Jordan Economic Grow SCHEDULE 5 (Section 43) SCHEDULE VII (Section 89.7)
Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
|
First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 24 An Act respecting food commodities, including their inspection, their safety, their labelling and advertising, their import, export and interprovincial trade, the establishment of standards for them, the registration or licensing of persons who perform certain activities related to them, the establishment of standards governing establishments where those activities are performed and the registration of establishments where those activities are performed
ASSENTED TO 22nd NOVEMBER, 2012 BILL S-11
SUMMARY This enactment modernizes the regulatory system for food commodities.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT RESPECTING FOOD COMMODITIES, INCLUDING THEIR INSPECTION, THEIR SAFETY, THEIR LABELLING AND ADVERTISING, THEIR IMPORT, EXPORT AND INTERPROVINCIAL TRADE, THE ESTABLISHMENT OF STANDARDS FOR THEM, THE REGISTRATION OR LICENSING OF PERSONS WHO PERFORM CERTAIN ACTIVITIES RELATED TO THEM, THE ESTABLISHMENT OF STANDARDS GOVERNING ESTABLISHMENTS WHERE THOSE ACTIVITIES ARE PERFORMED AND THE REGISTRATION OF ESTABLISHMENTS WHERE THOSE ACTIVITIES ARE PERFORMED
SHORT TITLE 1.
Safe Food for Canadians Act INTERPRETATION
2. Definitions
3. Act binding on Her Majesty
HER MAJESTY
PROHIBITIONS 4.
Importing
5. Recall order — Canadian Food Inspection Agency Act
6. Deception, erroneous impression, etc.
7. Tampering
8. Threats
9. Communicating false or misleading information
10. Sending, conveying, importing or exporting in accordance with regulations
11. Selling, advertising or possessing
12. Possession of commodity that meets requirements of regulations
13. Conduct of prescribed activity in accordance with the regulations
14. Use of inspection mark or grade name
15. False or misleading information
i 16.
Obstruction
17. Falsifying or altering, etc., required documents
18. Possessing or using documents that resemble official documents
19. Personal use REGISTRATIONS AND LICENCES
20. Persons
21. Establishments
22. Amendment, suspension, cancellation and renewal ADMINISTRATION AND ENFORCEMENT CERTIFICATE
23. Certificate to be produced INSPECTION
24. Authority to enter a place
25. Seizure of thing
26. Dwelling-house
27. Production of documents, information or samples DEALING WITH SEIZED THINGS
28. Removing, altering and interfering
29. Powers of inspector
30. Release of seized thing
31. Application for return OTHER MEASURES
32. Removal or destruction of unlawful imports
33. Injunction FORFEITURE
34. Unclaimed seized things
35. Consent — seized thing
36. Violation or offence
37. Forfeiture on application of inspector ANALYSIS
38. Analysis and examination
39. Offences
OFFENCES
ii 40.
Continuing offence
41. Limitation period
42. Venue
43. Admissibility of documents as evidence
44. Proof — person
45. Proof — establishment GENERAL DISCLOSURE OF INFORMATION
46. Disclosure to public
47. Disclosure — risk or recall EXPORT CERTIFICATES
48. Export certificates
49. Disposition of samples
SAMPLES
INTELLECTUAL PROPERTY 50.
Inspection marks and grade names REGULATIONS
51. Governor in Council INCORPORATION BY REFERENCE
52. Incorporation by reference
53. Accessibility
54. Defence
55. No registration or publication INTERIM ORDERS
56. Interim orders COSTS
57. Recovery LIMITATION ON LIABILITY
58. Her Majesty not liable
59. No liability
iv BOARD OF ARBITRATION Composition 60.
Board of Arbitration continued
61. Tenure
62. Absence or incapacity of members
63. Duties of Chairperson
Chairperson
Remuneration and Expenses 64.
Remuneration and expenses Staff
65. Staff and facilities Role
66. Role
67. Regulations
Regulations
REVIEW 68.
Review TRANSITIONAL PROVISIONS
69. Definitions
70. Chairperson
71. Other members
72. Pending proceedings
73. Licences, permits, registrations and authorizations
74. Seized things
75. Regulations REPEALS
76. Fish Inspection Act
77. Meat Inspection Act
78. Canada Agricultural Products Act RELATED AND CONSEQUENTIAL AMENDMENTS
79. Competition Act
v 80-85.
Consumer Packaging and Labelling Act
86. Federal Courts Act
87. Feeds Act
88. Fertilizers Act
89-91. 92.
Seeds Act Customs Act
93-94.
Health of Animals Act
95. Plant Protection Act
96. Contraventions Act
97-102.
Agriculture and Agri-Food Administrative Monetary Penalties Act
103-105.
Canadian Food Inspection Agency Act
106. Pest Control Products Act
107-108.
Canada Border Services Agency Act COORDINATING AMENDMENTS
109. 1998, c. 22
110. Bill C-38
111. Order in council
COMING INTO FORCE
60-61 ELIZABETH II —————— CHAPTER 24 An Act respecting food commodities, including their inspection, their safety, their labelling and advertising, their import, export and interprovincial trade, the establishment of standards for them, the registration or licensing of persons who perform certain activities related to them, the establishment of standards governing establishments where those activities are performed and the registration of establishments where those activities are performed
[Assented to 22nd November, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Safe Food for Canadians Act. INTERPRETATION
Definitions
“advertisement” « publicité »
“Agency” « Agence »
“analyst” « analyste »
2. The following definitions apply in this Act. “advertisement” includes a representation by any means for the purpose of promoting directly or indirectly the sale of a food commodity. “Agency” means the Canadian Food Inspection Agency established by section 3 of the Canadian Food Inspection Agency Act. “analyst” means a person designated as an analyst under subsection 13(3) of the Canadian Food Inspection Agency Act for the purposes of this Act.
2 “conveyance” « véhicule »
“document” « document »
“establishment” « établissement »
“food commodity” « produit alimentaire »
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“conveyance” means a vessel, aircraft, train, motor vehicle, trailer or other means of transportation, including a cargo container. “document” means anything on which information that is capable of being understood by a person, or read by a computer or other device, is recorded or marked. “establishment” means any place, including a conveyance, where a food commodity is manufactured, prepared, stored, packaged or labelled. “food commodity” means (a) any food as defined in section 2 of the Food and Drugs Act; (b) any animal or plant, or any of its parts, from which food referred to in paragraph (a) may be derived; or (c) anything prescribed to be a food commodity.
“grade name” « nom de catégorie »
“grade name” means a prescribed name, mark or designation of a food commodity.
“inspection mark” « sceau d’inspection »
“inspection mark” means a prescribed mark, stamp, seal, product legend, word or design or any combination of those things.
“inspector” « inspecteur »
“item to which this Act applies” « chose visée par la présente loi »
“inspector” means a person designated under subsection 13(3) of the Canadian Food Inspection Agency Act or paragraph 9(2)(b) of the Canada Border Services Agency Act as an inspector for the purposes of this Act. “item to which this Act applies” means (a) a food commodity; (b) anything used in an activity regulated under this Act; and (c) a document that is related to a food commodity or to any activity regulated under this Act.
“label” « étiquette »
“Minister” « ministre »
“label” includes a legend, word or mark that is or is to be applied or attached to or included in, or that accompanies or is to accompany, a food commodity or a package. “Minister” means the Minister of Agriculture and Agri-Food.
2011-2012 “package” « emballage »
“person” « personne »
“personal information” « renseignements personnels »
“prepare” « conditionnement »
“prescribed” Version anglaise seulement
“sell” « vente »
“Tribunal” « Commission »
“violation” « violation »
Salubrité des alim “package” means an inner or outer receptacle or covering used or to be used in connection with a food commodity and includes a wrapper or confining band. “person” has the same meaning as in section 2 of the Criminal Code. “personal information” has the same meaning as in section 3 of the Privacy Act. “prepare”, in respect of a food commodity, includes to process, treat, preserve, handle, test, grade, code or slaughter it or to do any other activity in respect of it that is prescribed. “prescribed” means prescribed by the regulations. “sell” includes agree to sell, offer for sale, expose for sale or have in possession for sale — or distribute to one or more persons whether or not the distribution is made for consideration. “Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act. “violation” means any of the following that may be proceeded with in accordance with the Agriculture and Agri-Food Administrative Monetary Penalties Act: (a) any contravention of any provision of this Act or of a regulation made under this Act; and (b) any refusal or neglect to perform any duty imposed by or under this Act.
HER MAJESTY Act binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province. PROHIBITIONS
Importing
4. It is prohibited for a person to import a food commodity the selling of which is prohibited under section 4 of the Food and Drugs Act.
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Recall order — Canadian Food Inspection Agency Act
5. It is prohibited for a person to sell a food commodity that is the subject of a recall order referred to in subsection 19(1) of the Canadian Food Inspection Agency Act.
Deception, erroneous impression, etc.
6. (1) It is prohibited for a person to manufacture, prepare, package, label, sell, import or advertise a food commodity in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, quality, value, quantity, composition, merit, safety or origin or the method of its manufacture or preparation.
Labelled or packaged contrary to regulations
(2) A food commodity that is labelled or packaged in contravention of a provision of the regulations is considered, for the purposes of this section, to be labelled or packaged in contravention of subsection (1).
Advertised contrary to regulations
(3) A food commodity that is advertised in contravention of a provision of the regulations is considered, for the purposes of this section, to be advertised in contravention of subsection (1).
Tampering
7. It is prohibited for a person to tamper with any food commodity, its label or its package with intent to
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(a) render the food commodity injurious to human health; or (b) cause a reasonable apprehension in others that the food commodity is injurious to human health. Threats
8. It is prohibited for a person to threaten to render a food commodity injurious to human health.
Communicating false or misleading information
9. It is prohibited for a person to communicate information, knowing that information to be false or misleading or being reckless as to whether it is false or misleading, with intent to cause a reasonable apprehension in others that a food commodity was tampered with in order to render it injurious to human health.
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Sending, conveying, importing or exporting in accordance with regulations
10. (1) It is prohibited for a person to send or convey from one province to another — or to import or export — a prescribed food commodity unless the person does so in accordance with the regulations.
Sending, conveying, importing or exporting with licence or registration
(2) It is prohibited for a person to send or convey from one province to another — or to import or export — a prescribed food commodity unless the person is authorized to do so by a registration made under paragraph 20(1)(a), by a licence issued under that paragraph or by both such a registration and licence, as provided for in the regulations.
Sending, conveying, importing or exporting of commodity that meets requirements of regulations
(3) It is prohibited for a person to send or convey from one province to another — or to import or export — a prescribed food commodity unless the food commodity meets the requirements of the regulations.
Selling, advertising or possessing
11. It is prohibited for a person to sell, advertise or have in their possession a food commodity that has been sent or conveyed from one province to another, or imported, in contravention of any provision of this Act or the regulations.
Possession of commodity that meets requirements of regulations
12. It is prohibited for a person to have in their possession for the purpose of sending or conveying from one province to another — or for the purpose of exporting — a prescribed food commodity, unless it meets the requirements of the regulations.
Conduct of prescribed activity in accordance with the regulations
13. (1) It is prohibited for a person to conduct a prescribed activity in respect of a prescribed food commodity that has been imported — or that is to be exported or to be sent or conveyed from one province to another — unless the activity is conducted in accordance with the regulations.
Conduct of prescribed activity with licence or registration
(2) It is prohibited for a person to conduct a prescribed activity in respect of a prescribed food commodity that has been imported — or that is to be exported or to be sent or conveyed from one province to another — unless the person is authorized to conduct that activity by a registration made under paragraph 20(1)(b), a
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licence issued under that paragraph or by both such a registration and licence, as provided for in the regulations. Use of inspection mark or grade name
14. (1) Unless authorized by the regulations, it is prohibited for a person to (a) apply or use an inspection mark or grade name; or (b) advertise or sell anything if the thing has an inspection mark or grade name on it, or an inspection mark or grade name is used in connection with the thing.
Use of similar mark or name
(2) It is prohibited for a person to (a) apply or use a thing that so resembles an inspection mark or grade name that it is likely to be mistaken for it; or (b) advertise or sell anything that has on it a thing referred to in paragraph (a) or that has a thing referred to in that paragraph used in connection with it.
Presumption
(3) A person found in possession of anything referred to in paragraph (1)(b) or (2)(b) is considered, in the absence of evidence to the contrary, to be in possession of it for the purpose of advertising or selling.
False or misleading information
15. It is prohibited for a person to make a false or misleading statement to any person who is exercising powers or performing duties or functions under this Act — or to provide him or her with false or misleading information — in connection with any matter under any provision of this Act or the regulations, including in respect of an application for a licence or registration.
Obstruction
16. It is prohibited for a person to obstruct or hinder a person who is exercising powers or performing duties or functions under this Act.
Falsifying or altering, etc., required documents
17. (1) It is prohibited for a person to alter, destroy or falsify a document that they are required under this Act to keep, maintain or provide.
2011-2012 Altering, possessing, etc., official documents
Salubrité des alim (2) It is prohibited for a person to (a) alter a document issued or made — or in any manner given — under this Act; or (b) have in their possession, or use, a document issued or made — or in any manner given — under this Act that has been altered.
Possessing or using documents that resemble official documents
18. It is prohibited for a person to have in their possession, or use, any document that has not been issued or made — or in any manner given — under this Act if the document so resembles a document issued or made — or in any manner given — under this Act that it is likely to be mistaken for such a document.
Personal use
19. Subject to the regulations, a provision of this Act or the regulations that prohibits an activity — or that requires the doing of an activity — does not apply to a person who is carrying out the activity solely for personal use. REGISTRATIONS AND LICENCES
Persons
20. (1) The Minister may, on application, (a) register a person, or issue a licence to a person, authorizing them to send or convey from one province to another, or to import or export, a prescribed food commodity, or both register a person and issue them a licence; and (b) register a person, or issue a licence to a person, authorizing them to conduct a prescribed activity in respect of a prescribed food commodity that has been imported or that is to be exported or to be sent or conveyed from one province to another, or both register a person and issue them a licence.
Conditions — regulations
(2) The registration and the licence are subject to the prescribed conditions.
Conditions — Minister
(3) The Minister may make a registration or licence subject to any additional conditions that the Minister considers appropriate.
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Obligation to comply
(4) The holder of the registration or licence must comply with all the conditions to which the registration or licence is subject.
No transfer
(5) The registration or licence is not transferable.
Establishments
21. (1) The Minister may, on application, register an establishment as one where
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(a) an imported prescribed food commodity is to be sent or conveyed, in its imported condition, for the purposes of the exercise of an inspector’s powers under this Act in respect of that food commodity; or (b) a prescribed activity in respect of a prescribed food commodity that has been imported or is to be exported or to be sent or conveyed from one province to another may be exercised.
Holder
(2) The applicant in respect of an establishment is the holder of the registration.
Conditions — regulations
(3) The registration is subject to the prescribed conditions.
Conditions — Minister
(4) The Minister may make a registration subject to any additional conditions that the Minister considers appropriate.
Obligation to comply
(5) The holder of the registration must comply with all the conditions to which the registration is subject.
No transfer
(6) The registration is not transferable.
Application of Act
(7) If an establishment is registered, it and all food commodities in it are subject to this Act.
Amendment, suspension, cancellation and renewal
22. Subject to the regulations, the Minister may amend, suspend, cancel or renew a registration made under subsection 20(1) or 21(1) or a licence issued under subsection 20(1).
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Salubrité des alim ADMINISTRATION AND ENFORCEMENT CERTIFICATE
Certificate to be produced
23. Each inspector is to be given a certificate in a form established by the President of the Agency or the President of the Canada Border Services Agency, as the case may be, attesting to the inspector’s designation and, on entering a place under subsection 24(1), the inspector must, on request, produce the certificate to the person in charge of that place. INSPECTION
Authority to enter a place
24. (1) Subject to subsection 26(1), an inspector may, for a purpose related to verifying compliance or preventing non-compliance with this Act, enter a place, including a conveyance, in which they have reasonable grounds to believe that an activity regulated under this Act is conducted or an item to which this Act applies is located.
Powers
(2) The inspector may, for the purpose referred to in subsection (1), (a) examine or test, or take samples of, anything that is in the place; (b) open a package that is in the place; (c) examine a document that is in the place, make copies of it or take extracts from it; (d) order the owner or person having possession, care or control of an item to which this Act applies that is in the place to move it or, for any time that may be necessary, not to move it or to restrict its movement; (e) use or cause to be used a computer or other device that is in the place to examine data that is contained in or available to a computer system or reproduce it or cause it to be reproduced in the form of a printout or other intelligible output and remove the output for examination or copying; (f) use or cause to be used copying equipment that is in the place and remove the copies for examination; (g) take photographs or make recordings or sketches;
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(h) order any person in the place to establish their identity to the inspector’s satisfaction; (i) order any person who, in the place, conducts an activity regulated under this Act to stop or start the activity; (j) prohibit or limit access to all or part of the place or to anything that is in the place; and (k) remove anything from the place for the purpose of examination, conducting tests or taking samples.
Stopping or moving conveyance
(3) For the purpose of entering a conveyance, the inspector may order the owner or person having possession, care or control of the conveyance to stop it or move it to a place where the inspector can enter it.
Persons accompanying inspector
(4) The inspector may be accompanied by any person that they believe is necessary to help them exercise their powers or perform their duties or functions under this section.
Entering private property
(5) An inspector and any person accompanying them may enter and pass through private property, other than a dwelling house on that property, in order to gain entry to a place referred to in subsection (1).
Assistance to be given to inspector
(6) The owner of the place, the person in charge of it and every person in it must give all assistance to the inspector that is reasonably required to enable the inspector to exercise their powers or perform their duties or functions under this Act and provide the inspector with any document or information, or access to any data, that they may reasonably require.
Seizure
25. The inspector may seize and detain anything that the inspector has reasonable grounds to believe (a) was used in the contravention of any provision of this Act or the regulations;
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Salubrité des alim (b) is something in relation to which a provision of this Act or the regulations was contravened; or (c) was obtained by the contravention of a provision of this Act or the regulations.
Dwelling-house
26. (1) If the place is a dwelling-house, the inspector is not authorized to enter it without the occupant’s consent except under the authority of a warrant issued under subsection (2).
Authority to issue warrant
(2) A justice of the peace may, on ex parte application, issue a warrant authorizing, subject to any conditions specified in the warrant, the inspector named in it to enter a dwelling-house if the justice of the peace is satisfied by information on oath that (a) the dwelling-house is a place referred to in subsection 24(1); (b) entry to the dwelling-house is necessary for a purpose referred to in that subsection; and (c) entry to the dwelling-house was refused by the occupant or there are reasonable grounds to believe that it will be refused or to believe that consent to entry cannot be obtained from the occupant.
Use of force
(3) In executing a warrant issued under subsection (2), the inspector is not entitled to use force unless the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.
Telewarrant
(4) If an inspector believes that it would be impracticable to appear personally to make an application for a warrant under subsection (2), a warrant may be issued by telephone or other means of telecommunication, on information submitted by telephone or other means of telecommunication, and section 487.1 of the Criminal Code applies for that purpose, with any necessary modifications.
Production of documents, information or samples
27. An inspector may, for a purpose related to verifying compliance or preventing noncompliance with this Act, order a person to provide, on the date, at the time and place and in
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the manner specified by the inspector, any document, information or sample specified by the inspector. DEALING WITH SEIZED THINGS Removing, altering and interfering
28. Except with the authorization of an inspector, it is prohibited for a person to remove, alter or interfere with anything seized under this Act.
Powers of inspector
29. An inspector may, in respect of anything seized under this Act, (a) on notice to its owner or the person having possession, care or control of it at the time of its seizure, store it or move it at the expense of the person to whom the notice is given; (b) order its owner or the person having possession, care or control of it at the time of its seizure to store it or move it at the expense of the person being so ordered; or (c) order its owner or the person having possession, care or control of it at the time of its seizure to dispose of it at the expense of the person being so ordered — or, on notice to its owner or the person having possession, care or control of it at the time of its seizure, dispose of it at the expense of the person to whom the notice is given — if (i) the thing is perishable, or (ii) the inspector is of the opinion that the thing presents a risk of injury to human health and that its disposal is necessary to respond to the risk.
Release of seized thing
30. If an inspector is satisfied that the provisions of this Act and the regulations that apply with respect to a thing seized under this Act have been complied with, the thing must be released.
Application for return
31. (1) Subject to section 35, if proceedings are instituted in relation to a thing seized under this Act, its owner or the person having possession, care or control of it at the time of its seizure may apply, in the case of a violation, to the Tribunal or, in the case of an offence, to
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Order for return
(2) If the Tribunal or court, as the case may be, is satisfied that sufficient evidence exists or may reasonably be obtained without the continued detention of the thing, the Tribunal or court may order it to be returned to the applicant, subject to any conditions the Tribunal or court may impose to ensure that it is preserved for any purpose for which it may subsequently be required. OTHER MEASURES
Removal or destruction of unlawful imports
32. (1) An inspector who has reasonable grounds to believe that an imported food commodity does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or the regulations may, by notice, whether the food commodity is seized or not, order its owner or importer, or the person having possession, care or control of it, to remove it from Canada at their expense or, if removal is not possible, to destroy it at their expense.
Notice
(2) The notice must be either delivered personally to the owner or importer of the food commodity, or to the person having possession, care or control of it, or sent by registered mail, to the owner’s, importer’s or person’s address in Canada.
Forfeiture
(3) If the food commodity is not removed from Canada, or destroyed, within the period specified in the notice — or, if no period was specified, within 90 days after the day on which the notice was delivered or sent, — it is, despite section 30, forfeited to Her Majesty in right of Canada and may be disposed of, as the Minister may direct, at the expense of the person to whom the notice was delivered or sent.
Suspension of application of subsection (3)
(4) An inspector may, for a period specified by the inspector, suspend the application of subsection (3) if the inspector is satisfied that (a) the food commodity does not present a risk of injury to human health;
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(b) the food commodity will not be sold within that period; (c) the measures that should have been taken for the food commodity not to have been imported in contravention of a provision of this Act or the regulations will be taken within that period; and (d) if the food commodity does not meet the requirements of the regulations, it will be brought into compliance with the regulations within that period. Cancellation
(5) An inspector may cancel the notice if the inspector is satisfied that (a) the food commodity does not present a risk of injury to human health; (b) the food commodity has not been sold within the period referred to in subsection (6); (c) the measures referred to in paragraph (4)(c) were taken within that period; and (d) if the food commodity did not meet the requirements of the regulations when it was imported, it was brought into compliance with the regulations within that period.
Period
(6) The period for the purposes of subsection (5) is (a) if the application of subsection (3) was suspended under subsection (4), the period of the suspension; and (b) if the application of subsection (3) was not suspended, the period specified in the notice or, if no period was specified, the period that ends 90 days after the day on which the notice was delivered or sent.
Injunction
33. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has committed, is about to commit or is likely to commit an act or omission that constitutes or is directed toward the commission of an offence under this Act, the court may order the person named in the application to
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Salubrité des alim (a) refrain from doing an act that it appears to the court may constitute or be directed toward the commission of an offence under this Act; or (b) do an act that it appears to the court may prevent the commission of an offence under this Act.
Notice
(2) No order may be made unless 48 hours’ notice is served on the person named in the application or the urgency of the situation is such that service of notice would not be in the public interest. FORFEITURE
Unclaimed seized things
34. (1) A thing seized under this Act is, at the Minister’s election, forfeited to Her Majesty in right of Canada if (a) within 60 days after the seizure, no person is identified as its owner or as the person entitled to possess it; or (b) its owner or the person having possession, care or control of it at the time of its seizure does not claim it within 60 days after the day on which they are notified that an inspector has released it.
Proceedings instituted
(2) Subsection (1) does not apply if proceedings are instituted for a violation or an offence that relates to the seized thing.
Disposal
(3) A seized thing that is forfeited under subsection (1) may be disposed of, as the Minister may direct, at the expense of its owner or the person having possession, care or control of the thing at the time of its seizure.
Consent — seized thing
35. If the owner of a thing seized under this Act consents to its forfeiture, it is forfeited to Her Majesty in right of Canada and may be disposed of, as the Minister may direct, at the owner’s expense.
Violation or offence
36. (1) If the Tribunal decides that a person has committed a violation or a person is convicted of an offence under this Act, the
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Tribunal or the convicting court, as the case may be, may, in addition to any punishment imposed, order that a thing by means of or in respect of which the violation or offence was committed, regardless of whether it was seized under this Act or not, be forfeited to Her Majesty in right of Canada. Disposal
(2) A thing forfeited under subsection (1) may be disposed of, as the Minister may direct, at the expense of, (a) if the thing was not seized, its owner; or (b) if the thing was seized, its owner or the person having possession, care or control of the thing at the time of its seizure.
Return of seized things if no forfeiture ordered
(3) If the Tribunal or court does not order the forfeiture of a thing that was seized, it must be returned to its owner or the person having possession, care or control of it at the time of its seizure.
Exception
(4) Despite subsection (3), if a penalty or fine was imposed, (a) the thing may continue to be detained until the penalty or fine is paid; or (b) the thing may be sold under execution and any proceeds realized from the sale may be applied in payment of the penalty or fine.
Forfeiture on application of inspector
37. (1) A judge of a superior court of the province in which anything is seized under this Act may, on the application of an inspector, order that the thing be forfeited to Her Majesty in right of Canada.
Notice and inquiry
(2) The order may be made only if any notice to any persons that the judge directs was given and the judge finds, after making any inquiry that he or she considers necessary, that the thing is one by means of or in relation to which any of the provisions of this Act or the regulations have been contravened.
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Salubrité des alim (3) A thing that is forfeited under subsection (1) may be disposed of, as the Minister may direct, at the expense of its owner or the person having possession, care or control of it at the time of its seizure. ANALYSIS
Analysis and examination
38. An inspector may submit to an analyst, for analysis or examination, (a) any sample taken by an inspector, or provided to the Minister or an inspector, under this Act; or (b) anything removed under paragraph 24(2)(k) or seized under section 25, or any sample of that thing. OFFENCES
Offences
39. (1) A person who contravenes a provision of this Act, other than sections 7 and 9, or a provision of the regulations — or fails to do anything the person was ordered to do by, or does anything the person was ordered not to do by, the Minister or an inspector under this Act other than subsection 32(1) — is guilty of an offence and is liable (a) on conviction on indictment, to a fine of not more than $5,000,000 or to imprisonment for a term of not more than two years or to both; or (b) on summary conviction, for a first offence, to a fine of not more than $250,000 or to imprisonment for a term of not more than six months or to both and, for a subsequent offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than 18 months or to both.
Due diligence defence
(2) A person is not to be found guilty of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.
Offences — other provisions and orders
(3) A person who contravenes section 7 or 9 or who, in contravening any other provision of this Act or a provision of the regulations or in failing to do anything the person was ordered to do by, or in doing anything the person was ordered not to do by, the Minister or an inspector under this Act, other than subsection
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32(1), knowingly or recklessly causes a risk of injury to human health is guilty of an offence and is liable (a) on conviction on indictment, to a fine the amount of which is at the discretion of the court or to imprisonment for a term of not more than five years or to both; or (b) on summary conviction, for a first offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than 18 months or to both and, for a subsequent offence, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years or to both. Parties to offence
(4) If a person other than an individual commits an offence under subsection (1), any of the person’s directors or officers, or agents or mandataries, who directs, authorizes, assents to or acquiesces or participates in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence.
Proof of offence
(5) In a prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or an agent or mandatary of the accused, even if the employee or the agent or mandatary is not identified or prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission.
Continuing offence
40. If an offence under this Act is committed or continued on more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Limitation period
41. Summary conviction proceedings for an offence under this Act may be instituted no later than two years after the time when the subject matter of the proceedings arose.
Venue
42. A prosecution for an offence under this Act may be instituted, heard or determined in the place in which the offence was committed, the accused was apprehended or the accused is carrying on business.
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Admissibility of documents as evidence
43. (1) In an application under section 33 or any proceedings for a violation or for an offence under this Act, a certificate, report or other document purporting to be signed by the Minister, the President of the Agency or any person who is exercising powers or performing duties or functions under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the statements contained in it.
Copies and extracts
(2) In an application under section 33 or any proceedings for a violation or for an offence under this Act, a copy or extract from a certificate, report or other document that is made by a person referred to in subsection (1) that appears to have been certified under the signature of that person as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.
Notice of intention to produce
(3) A certificate, report or other document referred to in subsection (1), or a copy of or an extract from it, may be admitted in evidence under that subsection only if the person intending to produce it gives to the person against whom it is intended to be produced reasonable notice of that intention together with a duplicate of the certificate, report, document, copy or extract.
Proof — person
44. In an application under section 33 or any proceedings for a violation or for an offence under this Act, proof that any food commodity, or its package or label, bore a name or address purporting to be the name or address of — or bore any other information that permits the identification of — the person by whom the food commodity was manufactured, prepared, stored, packaged, labelled or imported is, in the absence of evidence to the contrary, proof that the food commodity was manufactured, prepared, stored, packaged, labelled or imported by that person.
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Proof — establishment
45. In an application under section 33 or any proceedings for a violation or for an offence under this Act, proof that any food commodity, or its package or label, bore a name or address purporting to be the name or address of — or bore any other information that permits the identification of — the establishment where the food commodity was manufactured, prepared, stored, packaged or labelled is proof, in the absence of evidence to the contrary, that the food commodity was manufactured, prepared, stored, packaged or labelled at that establishment.
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GENERAL DISCLOSURE OF INFORMATION Disclosure to public
46. The Minister may, in the prescribed circumstances, disclose to the public, without the consent of the person to whom the information relates, any personal information or confidential business information that is obtained under this Act.
Disclosure — risk or recall
47. (1) The Minister may disclose to a person or government, without the consent of the person to whom the information relates, any personal information or confidential business information if the Minister considers that the disclosure is necessary (a) to identify or respond to a risk of injury to human health associated with a food commodity; or (b) for a recall that is or may be ordered under subsection 19(1) of the Canadian Food Inspection Agency Act, including for monitoring the conduct of the recall or its effectiveness.
Definition of “government”
(2) In subsection (1), “government” means (a) any portion of the federal public administration; or (b) any of the following or its institutions: (i) the government of a province, (ii) a public body established under an Act of the legislature of a province,
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Salubrité des alim (iii) an aboriginal government as defined in subsection 13(3) of the Access to Information Act, (iv) the government of a foreign state or of a subdivision of a foreign state, and (v) an international organization, or association, of states.
EXPORT CERTIFICATES Export certificates
48. The Minister may issue any certificate or other document setting out any information that he or she considers necessary to facilitate the export of any food commodity. SAMPLES
Disposition of samples
49. A sample taken by an inspector, or provided to the Minister or an inspector, under this Act may be disposed of in any manner that the Minister considers appropriate. INTELLECTUAL PROPERTY
Inspection marks and grade names
50. Every inspection mark and grade name is a trade-mark and the exclusive property in the trade-mark and, subject to this Act, the right to its use are vested in Her Majesty in right of Canada. REGULATIONS
Governor in Council
51. (1) The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect, including regulations (a) respecting, for the purposes of subsection 6(1), what is or is not false, misleading or deceptive or is or is not likely to create an erroneous impression; (b) prescribing grades and standards for any food commodity, including standards for the composition, purity or quality of a food commodity; (c) prescribing inspection marks and grade names in respect of any food commodity and regulating their application or use;
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(d) respecting or prohibiting the manufacturing, preparing, storing, packaging, labelling, selling or advertising of any food commodity; (e) respecting or prohibiting the sending or conveying, from one province to another, or the importation or exportation of any food commodity; (f) specifying criteria for determining whether an activity is carried out solely for personal use and specifying activities to which section 19 does not apply; (g) respecting quality management programs, quality control programs, safety programs or preventive control plans or any other similar programs or plans to be implemented by persons who conduct any activity regulated under this Act; (h) respecting, in relation to establishments where any activity regulated under this Act is conducted, the equipment and facilities to be used, the procedures to be followed and the standards to be maintained for the humane treatment and slaughter of animals; (i) respecting the design, construction, hygiene, sanitation and maintenance of (i) establishments where any activity regulated under this Act is conducted, (ii) the equipment and facilities in those establishments, or (iii) conveyances and equipment used in connection with any activity regulated under this Act; (j) respecting the operation of establishments where any activity regulated under this Act is conducted; (k) respecting (i) the registration of persons, or the issuing of licences to persons, under section 20 or the registration of establishments under section 21, (ii) the suspension, cancellation and renewal of those licences and registrations, and
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Salubrité des alim (iii) the amendment of those licences and registrations or of any of the conditions to which they are subject by reason of subsection 20(3) or 21(4); (l) requiring holders of a registration made under subsection 20(1) or 21(1) and holders of a licence issued under subsection 20(1) to post bonds or to provide suretyships, or to provide other security satisfactory to the Minister, as a guarantee that they will comply with the conditions of the registration or licence, as the case may be, and providing for the realization of the bonds, suretyships or other security if they fail to comply with the conditions; (m) requiring persons to prepare, keep or maintain documents and to provide the Minister or an inspector with, or with access to, them, and respecting (i) the information in those documents, (ii) the manner in which they are to be prepared, kept or maintained, (iii) the place where they are to be kept or maintained, and (iv) the manner in which they are to be provided or access to them is to be provided; (n) requiring persons to take or keep samples of any food commodity, or its package or label, and to provide the Minister or an inspector with, or with access to, those samples, and respecting the manner in which those samples are to be taken or kept and the manner in which they are to be provided or access to them is to be provided; (o) respecting the provision of anything, other than a document and a sample, that is required to be provided under this Act; (p) respecting the exercise of powers, or the performance of duties or functions, under this Act; (q) respecting the issuance of certificates that establish that an item to which this Act applies, or that an establishment where any activity regulated under this Act is conducted, meets the requirements of the regulations;
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(r) respecting the issuance of certificates or other documents for the purpose of section 48; (s) respecting the accreditation of persons, bodies, facilities or laboratories in Canada and elsewhere and the recognition of their activities or findings; (t) respecting the recognition of systems of inspection, certification, manufacturing, preparation, storage, packaging, labelling or testing; (u) respecting the certification of any food commodity as having a specified character, quality, value, composition or origin or as having been manufactured or prepared in a specified manner and the establishment and operation of systems for such certification; (v) respecting the traceability of any food commodity, including regulations requiring persons to establish systems to (i) identify the food commodity, (ii) determine its places of departure and destination and its location as it moves between those places, or (iii) provide information to persons who could be affected by it; (w) exempting, or permitting the Minister to exempt, with or without conditions, any item to which this Act applies, or a person or activity in respect of a food commodity, from the application of this Act or the regulations or a provision of this Act or the regulations; (x) respecting the measures to be taken in respect of items to which this Act applies that present a risk of injury to human health or that are in contravention of any provision of this Act or the regulations, or that are suspected on reasonable grounds of presenting such a risk or being in contravention of any such provision; and (y) prescribing anything that by this Act is to be prescribed.
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Paragraph (1)(e)
(2) Regulations made under paragraph (1)(e) m a y, a m o n g o t h e r t h i n g s , e s t a b l i s h pre-clearance or in-transit requirements for any imported food commodity or anything imported with it.
Paragraph (1)(m)
(3) Regulations made under paragraph (1)(m) may, among other things, require the provision to the Minister or an inspector of written notice by persons who conduct any activity regulated under this Act who become aware that a food commodity presents or is likely to present a risk of injury to human health or does not meet the requirements of the regulations.
Paragraph (1)(w)
(4) Regulations made under paragraph (1)(w) that permit the Minister to make exemptions must provide that he or she may do so only if he or she is of the opinion that no risk of injury to human health will result. INCORPORATION BY REFERENCE
Incorporation by reference
52. A regulation made under subsection 51(1) may incorporate by reference any document, regardless of its source, either as it exists on a particular date or as it is amended from time to time.
Accessibility
53. The Minister must ensure that any document that is incorporated by reference in a regulation made under subsection 51(1), including any amendments to the document, is accessible.
Defence
54. A person is not liable to be found guilty of an offence or subjected to an administrative sanction for any contravention in respect of which a document that is incorporated by reference in a regulation made under subsection 51(1) is relevant unless, at the time of the alleged contravention, the document was accessible as required by section 53 or it was otherwise accessible to the person.
No registration or publication
55. For greater certainty, a document that is incorporated by reference in a regulation made under subsection 51(1) is not required to be transmitted for registration or published in the Canada Gazette by reason only that it is incorporated by reference.
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Interim orders
56. (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under subsection 51(1) if he or she believes that immediate action is required to deal with a significant risk, direct or indirect, to health, safety or the environment.
Cessation of effect
(2) An interim order has effect from the time that it is made but ceases to have effect on the earliest of (a) 14 days after the day on which it is made, unless it is approved by the Governor in Council, (b) the day on which it is repealed, (c) the day on which a regulation made under subsection 51(1) that has the same effect as the interim order comes into force, and (d) one year after the interim order is made or any shorter period that may be specified in the interim order.
Contravention of unpublished order
(3) A person is not to be determined to have committed a violation, or to be convicted of an offence, that consists of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, (a) the person had been notified of the interim order; or (b) reasonable steps had been taken to bring the purport of the interim order to the notice of those persons likely to be affected by it.
Statutory Instruments Act
Presumption
(4) An interim order is exempt from the application of sections 3 and 9 of the Statutory Instruments Act. (5) For the purpose of any provision of this Act other than this section, any reference to regulations made under subsection 51(1) is considered to include interim orders, and any reference to a regulation made under a specified provision of that subsection is considered to include a reference to the portion of an interim
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Salubrité des alim order containing any provision that may be contained in a regulation made under the specified provision.
Tabling of order
(6) A copy of each interim order must be tabled in each House of Parliament within 15 days after the day on which it is made. It is to be sent to the Clerk of the House if the House is not sitting. COSTS
Recovery
57. Costs incurred by Her Majesty in right of Canada in relation to anything required or authorized under this Act, including the inspection, moving, seizure and detention, forfeiture, disposal, return or release of anything under this Act, constitutes a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
LIMITATION ON LIABILITY Her Majesty not liable
58. If a person must, under this Act, do anything or permit an inspector to do anything, Her Majesty in right of Canada is not liable (a) for any costs, loss or damage resulting from the compliance; or (b) to pay any fee, including any rent or charge, for what is done or permitted to be done.
No liability
59. No person who exercises powers or performs duties or functions under this Act is liable in respect of anything done or omitted to be done in good faith in the exercise of those powers or the performance of those duties or functions. BOARD OF ARBITRATION Composition
Board of Arbitration continued
60. (1) The Board of Arbitration, continued by subsection 4(1) of the Canada Agricultural Products Act is continued.
Composition
(2) The Board of Arbitration consists of the members appointed by the Minister, one of whom is to be appointed as Chairperson and one as Vice-Chairperson.
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Tenure
61. (1) Each member is to be appointed for a term of not more than five years and holds office during good behaviour, but may be removed by the Minister for cause.
Re-appointment
(2) Each member may be re-appointed as a member in the same or another capacity.
Absence or incapacity of members
62. If a member is absent or unable to act or the member’s office becomes vacant, the Minister may appoint a qualified person to act in the member’s place and, in the case of the Chairperson, the Vice-Chairperson acts as Chairperson.
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Chairperson Duties of Chairperson
63. The Chairperson is the Board of Arbitration’s chief executive officer and apportions work among its members. Remuneration and Expenses
Remuneration and expenses
64. Each member is to be paid (a) an amount that is fixed by the Treasury Board for each day or part of a day that the member is performing duties and functions unless the member is employed in the federal public administration; and (b) in accordance with Treasury Board directives, reasonable travel and living expenses incurred by the member in the course of the performance of the member’s duties and functions. Staff
Staff and facilities
65. The Minister may provide the Board of Arbitration with any officers and employees from within the federal public administration, and any facilities and professional advisers, that are necessary for the proper conduct of its business. Role
Role
66. The role of the Board of Arbitration is to hear complaints involving the failure to comply with provisions of this Act or regulations specified in regulations made under paragraph 67(1)(a) or the failure to fulfil obligations
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Salubrité des alim specified in those regulations arising from contracts involving food commodities specified in those regulations. Regulations
Regulations
67. (1) The Governor in Council may make any regulations for the Board of Arbitration with respect to the performance of its role, including regulations (a) specifying provisions, obligations and food commodities for the purposes of section 66; (b) specifying who may file a complaint to the Board, against whom a complaint may be filed and the time and manner in which a complaint may be filed; (c) fixing the quorum of the Board; (d) fixing the location of the Board’s head office; (e) specifying that the Board is a court of record; (f) specifying that the Board has sole and exclusive jurisdiction to hear complaints referred to in section 66; (g) setting out the powers, duties and functions of the Board, including (i) any of the powers, rights and privileges of a superior court of record with respect to the appearance, swearing and examination of witnesses, the production and inspection of documents and other things, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, (ii) the duty to deal with matters that come before the Board as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit, (iii) the power to enter into contracts to assist in the exercise of its powers and the performance of its duties or functions, (iv) the power to determine the location of its sittings,
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(v) the power to, with the approval of the Governor in Council, make rules governing the work of the Board and the practice and procedure in respect of its hearings, (vi) the power to make orders granting adequate relief, including the payment of compensation and interest, and (vii) the duty to give reasons for its decisions; (h) specifying that the Board is not bound by legal or technical rules of evidence; (i) respecting the review of the Board’s orders; and (j) respecting enforcement of the Board’s orders, including their registration in the Federal Court. Restriction — paragraph (1)(h)
(2) No regulation may be made under paragraph (1)(h) that permits the Board to receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. REVIEW
Review
68. (1) Five years after the coming into force of this section, and every five years after that, the Minister must undertake a review of the provisions and operation of this Act, including an assessment of the resources allocated to its administration and enforcement.
Report
(2) The Minister must cause a report of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed. TRANSITIONAL PROVISIONS
Definitions
“commencement day” « date d’entrée en vigueur »
69. The following definitions apply in sections 70 to 72. “commencement day” means the day on which section 102 comes into force.
2011-2012 “former Tribunal” « ancienne Commission »
Salubrité des alim “former Tribunal” means the Review Tribunal continued by subsection 4.1(1) of the Canada Agricultural Products Act as that subsection read immediately before the coming into force of section 102 of this Act.
“new Tribunal” « nouvelle Commission »
“new Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act.
Chairperson
70. Subject to subsection 30(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, as enacted by section 102, the person who holds the office of Chairperson of the former Tribunal immediately before the commencement day continues in office as the Chairperson of the new Tribunal for the remainder of the term for which that person was appointed Chairperson.
Other members
71. Subject to subsection 30(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, as enacted by section 102, each person who holds office as a member of the former Tribunal immediately before the commencement day continues in office as a member of the new Tribunal for the remainder of the term for which the person was appointed.
Pending proceedings
72. Proceedings pending before the former Tribunal immediately before the commencement day are to be taken up and continued before the new Tribunal.
Licences, permits, registrations and authorizations
73. (1) For the purpose of permitting a licence or permit issued, registration made or authorization given under the Fish Inspection Act, the Meat Inspection Act or the Canada Agricultural Products Act to continue to have effect on the commencement day, the authority issuing, making or giving it, or renewing it, may include in it a statement to the effect that it is also a licence or registration issued or made under this Act.
Presumption
(2) Every licence, permit, registration or authorization that contains a statement added to it under subsection (1) and the
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term of which has not expired before the commencement day is considered, as expressed in the statement, to be a licence or registration issued or made under this Act. Term
(3) Unless suspended or revoked under this Act, every licence, permit, registration or authorization to which subsection (2) applies remains in force for the remainder of the period during which it would have been in force had sections 20 and 21 not come into force.
Suspensions
(4) A suspended licence, permit, registration or authorization to which subsection (2) applies that was suspended before the commencement day and that continues to be suspended immediately before that day is considered to be suspended under this Act.
Applications
(5) An application for a licence, permit, registration or authorization under the Fish Inspection Act, the Meat Inspection Act or the Canada Agricultural Products Act that was made before the commencement day and in respect of which no decision has been made before that day is considered to be an application for a licence or a registration under this Act.
Definition of “commencement day”
(6) In this section, “commencement day” means the day on which section 1 comes into force.
Seized things
74. Sections 28 to 37 apply in respect of any thing seized under the Fish Inspection Act, the Meat Inspection Act or the Canada Agricultural Products Act — or seized under the Consumer Packaging and Labelling Act by a person designated as an inspector under the Canadian Food Inspection Agency Act for the enforcement of the Consumer Packaging and Labelling Act as it relates to food — that had not been returned to any person, released or forfeited, or removed from Canada, before the day on which section 1 comes into force.
2011-2012 Regulations
Salubrité des alim 75. The Governor in Council may make regulations that the Governor in Council considers necessary to provide for any other transitional matter arising from the coming into force of this Act. REPEALS
R.S., c. F-12
76. The Fish Inspection Act is repealed.
R.S., c. 25 (1st Supp.)
77. The Meat Inspection Act is repealed.
R.S., c. 20 (4th Supp.)
78. The Canada Agricultural Products Act is repealed. RELATED AND CONSEQUENTIAL AMENDMENTS
R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
COMPETITION ACT
1999, c. 2, s. 4
79. Subsection 7(1) of the Competition Act is amended by adding “and” at the end of paragraph (a) and by replacing paragraphs (b) to (d) with the following: (b) the administration and enforcement of the Consumer Packaging and Labelling Act, the Precious Metals Marking Act and the Textile Labelling Act.
R.S., c. C-38
1997, c. 6, s. 40
“inspector” « inspecteur »
“Minister” « ministre »
1999, c. 2, s. 44(2)
CONSUMER PACKAGING AND LABELLING ACT 80. (1) The definitions “inspector” and “Minister” in subsection 2(1) of the Consumer Packaging and Labelling Act are replaced by the following: “inspector” means any person designated as an inspector for the enforcement of this Act under the Department of Industry Act; “Minister” means the Minister of Industry;
(2) Subsection 2(2) of the Act is replaced by the following:
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Functions of Commissioner
(2) The functions of the Minister in relation to the administration of this Act, except subsection 11(1), and in relation to the enforcement of this Act may be performed by the Commissioner on behalf of the Minister.
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81. Section 3 of the Act is replaced by the following: Application despite other Acts
3. (1) Subject to subsections (2) and (3) and any regulations made under section 18, the provisions of this Act that are applicable to any product apply despite any other Act of Parliament.
Exemption
(2) This Act does not apply to any product that is a device or drug as defined in section 2 of the Food and Drugs Act.
Exemption
(3) This Act does not apply to any food commodity as defined in section 2 of the Safe Food for Canadians Act. 82. Section 8 of the Act is repealed.
1997, c. 6, s. 41
83. The portion of paragraph 15(4)(c) of the Act before subparagraph (i) is replaced by the following: (c) after the expiry of 60 days after the day of seizure unless, before that time,
1997, c. 6, s. 43
84. (1) The portion of subsection 20(1) of the Act before paragraph (a) is replaced by the following:
Contraventions of sections 4 to 9
20. (1) Every dealer who contravenes any of sections 4 to 9 is guilty of an offence and liable
1997, c. 6, s. 43
(2) The portion of subsection 20(2) of the Act before paragraph (a) is replaced by the following:
Contravention of other provisions or regulations
(2) Every person who contravenes any provision of this Act, other than any of sections 4 to 9, or any regulation made under paragraph 18(1)(d), (e) or (h), is guilty of an offence and liable
1997, c. 6, s. 43
(3) Subsection 20(2.1) of the Act is repealed.
2011-2012 1997, c. 6, s. 44(1)
Salubrité des alim 85. Subsection 21(2.1) of the Act is repealed.
R.S., c. F-7; 2002, c. 8, s. 14
FEDERAL COURTS ACT
1990, c. 8, s. 8
86. Paragraphs 28(1)(a) and (b) of the Federal Courts Act are replaced by the following: (a) the Board of Arbitration continued by subsection 60(1) of the Safe Food for Canadians Act; (b) the Review Tribunal continued by subsection 27(1) of the Agriculture and AgriFood Administrative Monetary Penalties Act;
R.S., c. F-9 1995, c. 40, s. 46
“Tribunal” « Commission »
R.S., c. F-10 1995, c. 40, s. 50
“Tribunal” « Commission »
R.S., c. S-8 1995, c. 40, s. 86
“Tribunal” « Commission »
FEEDS ACT 87. The definition “Tribunal” in section 2 of the Feeds Act is replaced by the following: “Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; FERTILIZERS ACT 88. The definition “Tribunal” in section 2 of the Fertilizers Act is replaced by the following: “Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; SEEDS ACT 89. The definition “Tribunal” in section 2 of the Seeds Act is replaced by the following: “Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act;
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90. The Act is amended by adding the following after section 2: ACCREDITED LABORATORIES Power of Minister
2.1 For the purpose of this Act and the regulations, the Minister may designate all or part of any building or place used for grading, testing or analysing seeds as an accredited laboratory. 91. Subsection 4(1) of the Act is amended by adding the following after paragraph (h.5): (h.6) respecting the registration of establishments that prepare seeds and the licensing of operators of those establishments, including the renewal, cancellation and suspension of those registrations and licences and the conditions to which they are subject;
R.S., c. 1 (2nd Supp.)
CUSTOMS ACT
2005, c. 38, s. 80(2)
92. (1) Paragraph 107(3)(c) of the Customs Act is replaced by the following: (c) for the purposes of any Act or instrument made under it, or any part of such an Act or instrument, that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to enforce, including the Agriculture and Agri-Food Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act.
2005, c. 38, s. 80(3)
(2) Paragraph 107(4)(c.1) of the Act is replaced by the following: (c.1) may reasonably be regarded as necessary solely for a purpose relating to the enforcement of the Agriculture and AgriFood Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act by an official of the Agency;
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1990, c. 21 1995, c. 40, s. 54
“Tribunal” « Commission »
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HEALTH OF ANIMALS ACT 93. The definition “Tribunal” in subsection 2(1) of the Health of Animals Act is replaced by the following: “Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; 94. (1) Paragraph 64(1)(z.1) of the Act is replaced by the following: (z.1) governing the manufacture, sale, distribution or use of any means of identification used in the system established under paragraph (y); (2) Subsection 64(1) of the Act is amended by adding the following after paragraph (z.3): (z.31) requiring persons to provide to the Minister or any other person authorized by the Minister, in the form and manner that the Minister or other person, as the case may be, directs, information in relation to animals or things to which this Act or the regulations apply, including information in respect of their movements, events in relation to them and places where they are or were located; (z.32) governing the identification of places in respect of which information is to be provided under regulations made under paragraph (z.31); (z.33) prohibiting or governing the use or disclosure of information provided under regulations made under any of paragraphs (y) to (z.1) and (z.31);
1990, c. 22 1995, c. 40, s. 75
PLANT PROTECTION ACT 95. The definition “Tribunal” in section 3 of the Plant Protection Act is replaced by the following:
38 “Tribunal” « Commission »
1992, c. 47
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“Tribunal” means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act; CONTRAVENTIONS ACT 96. Section 1 of the schedule to the Contraventions Act is repealed.
1995, c. 40
1997, c. 21, s. 29
AGRICULTURE AND AGRI-FOOD ADMINISTRATIVE MONETARY PENALTIES ACT 97. The long title of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following: An Act to establish a system of administrative monetary penalties for the enforcement of the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act
1997, c. 21, s. 30
98. The definitions “agri-food Act” and “Tribunal” in section 2 of the Act are replaced by the following:
“agri-food Act” « loi agroalimentaire »
“agri-food Act” means the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act or the Seeds Act;
“Tribunal” « Commission »
“Tribunal” means the Review Tribunal continued by subsection 27(1);
99. Subparagraph 4(1)(a)(iii) of the Act is replaced by the following:
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Salubrité des alim (iii) the refusal or neglect to perform any specified duty, or class of duties, imposed by or under the Plant Protection Act, the Health of Animals Act or the Safe Food for Canadians Act, 100. Paragraph 7(1)(c) of the English version of the Act is replaced by the following: (c) refuses or neglects to perform any duty imposed by or under the Plant Protection Act, the Health of Animals Act or the Safe Food for Canadians Act 101. Subsection 15(3) of the Act is replaced by the following:
Debt final
(3) A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 9 to 14. 102. The heading before section 27 and sections 27 to 90 of the Act are replaced by the following: REVIEW TRIBUNAL COMPOSITION
Review Tribunal continued
27. (1) The Review Tribunal, continued by subsection 4.1(1) of the Canada Agricultural Products Act, chapter 20 of the 4th Supplement to the Revised Statutes of Canada, 1985, is continued.
Composition
(2) The Tribunal consists of members to be appointed by the Governor in Council, one of whom is to be appointed as Chairperson.
Qualifications
28. A person is not eligible to be appointed as a member unless the person is knowledgeable about or has experience related to agriculture or agri-food and the Chairperson and at least one other member must, in addition, be a lawyer of at least ten years’ standing at the bar of any province or a notary of at least ten years’ standing at the Chambre des notaires du Québec.
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Membership
29. The Chairperson is to be appointed as a full-time member and the other members are to be appointed as either full-time members or part-time members.
Tenure
30. (1) Each member is to be appointed for a term of not more than five years and holds office during good behaviour, but may be removed by the Governor in Council for cause.
Re-appointment
(2) Each member may be re-appointed as a member in the same or another capacity.
No other federal public administration
31. A member must not hold any other office in the federal public administration.
Conflict of interest
32. A member must not accept or hold any office or employment that is inconsistent with the member’s duties or take part in any matter before the Tribunal in which the member has an interest.
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CHAIRPERSON Duties of Chairperson
33. (1) The Chairperson is the Tribunal’s chief executive officer and apportions work among its members.
Absence or incapacity of Chairperson
(2) If the Chairperson is absent or unable to act or the Chairperson’s position becomes vacant, the members must designate a member with the legal qualifications described in section 28 to act as Chairperson pending the appointment of a replacement, but no person may so act for a period exceeding 60 days without the approval of the Governor in Council. REMUNERATION AND EXPENSES
Remuneration
34. (1) Each full-time member is to be paid the salary that is fixed by the Governor in Council and each part-time member is entitled to be paid the fees or other remuneration that is fixed by the Governor in Council.
Travel and living expenses
(2) Members are entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the performance of their duties and functions while absent from their ordinary place of work, in the case of full-time members, or from their ordinary place of residence, in the case of parttime members.
2011-2012
Salubrité des alim STAFF
Staff and facilities
35. The Minister may provide the Tribunal with any officers and employees from within the federal public administration, and any facilities and professional advisers, that are necessary for the proper conduct of its business.
Contractual assistance
36. The Tribunal may enter into contracts for the services of persons having technical or specialized knowledge of any matter before the Tribunal. HEAD OFFICE
Head office
37. (1) The head office of the Tribunal is to be in the National Capital Region as defined in section 2 of the National Capital Act.
Sittings
(2) The Tribunal is to sit at the places in Canada that may be specified by the Governor in Council. JURISDICTION
Tribunal
38. (1) The Tribunal has sole and exclusive jurisdiction to hear and determine all questions of fact or law in relation to any matter over which it is given jurisdiction under this Act or any other Act of Parliament.
Review by Federal Court
(2) An order of the Tribunal may only be reviewed under the Federal Courts Act.
Chairperson
39. (1) The jurisdiction of the Tribunal in relation to the following matters is to be exercised by the Chairperson: (a) requests under subsection 8(1) or 12(2) for a review in respect of a notice of violation that contains a warning; and (b) requests under paragraph 9(2)(c) or 13(2)(b) for a review in respect of a notice of violation that sets out a penalty of less than $2,000.
Other legally qualified members
(2) The jurisdiction of the Tribunal in relation to a matter referred to in subsection (1) may be exercised, if the Chairperson so directs, by any member of the Tribunal with the legal qualifications described in section 28.
Reviews
40. Reviews by the Tribunal are to be heard by a single member.
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Safe Food fo POWERS
Court of record
41. (1) The Tribunal is a court of record with an official seal that must be judicially noticed.
Examination of witnesses, etc.
(2) In addition to the powers conferred by subsection (1), the Tribunal has, with respect to the appearance, swearing and examination of witnesses, the production and inspection of documents and other things, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and, without limiting the generality of the foregoing, it may (a) issue a summons requiring a person (i) to appear at the time and place stated in the summons to testify to all matters within the person’s knowledge relative to any subject matter before the Tribunal, and (ii) to bring and produce any document, book or paper in the person’s possession or under the person’s control relative to that subject matter; (b) administer oaths and examine any person on oath; and (c) during a hearing, receive any evidence that it considers relevant and trustworthy. RULES
Rules
42. The Tribunal may, with the approval of the Governor in Council, make rules governing (a) the practice and procedure in respect of hearings; (b) the time and manner in which applications and notices must be made or given; and (c) the work of the Tribunal under this or any other Act of Parliament.
GENERAL Consultations
43. The members of the Tribunal may consult with other members of the Tribunal in respect of any matter before it.
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Rules of evidence
44. The Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it. It must deal with matters that come before it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.
Privileged evidence not receivable
45. The Tribunal is not entitled to receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
1997, c. 6
CANADIAN FOOD INSPECTION AGENCY ACT 103. Subsections 11(1) and (2) of the Canadian Food Inspection Agency Act are replaced by the following:
Administration and enforcement
11. (1) The Agency is responsible for the administration and enforcement of the Agriculture and Agri-Food Administrative Monetary Penalties Act, Feeds Act, Fertilizers Act, Health of Animals Act, Plant Breeders’ Rights Act, Plant Protection Act, Safe Food for Canadians Act and Seeds Act.
104. The heading before section 19 of the English version of the Act is replaced by the following: RECALLS 105. The Act is amended by adding the following after section 19: Regulations
19.1 The Governor in Council may make regulations respecting the recall of products regulated under an Act or provision that the Agency enforces or administers by virtue of section 11. REVIEW OF CERTAIN MEASURES
Review officer
19.2 The Minister may designate as review officers any individual or class of individuals that are qualified to conduct reviews under section 19.3.
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Request for review
19.3 (1) On the request of a prescribed person in relation to a prescribed decision made under an Act or provision that the Agency enforces or administers by virtue of section 11, a review officer must conduct a review of the decision in the prescribed manner subject to the regulations and the other provisions of this section.
Contents of request
(2) The request must be made in the prescribed manner, contain the prescribed information and be made in the prescribed time after the making of the decision.
Ineligibility
(3) The review officer must be a person other than the one who made the decision.
Restriction
(4) The review is restricted to questions of fact alone or questions of mixed law and fact.
No authority to review
(5) The review is not to be conducted if the request does not comply with subsection (2) or is frivolous, vexatious or not made in good faith.
Reasons for refusal
(6) If subsection (5) applies, the person who made the request is to be, without delay, notified in writing of the reasons for the review not being conducted.
Decision not stayed
(7) The conduct of the review does not stay the decision unless the review officer decides otherwise.
Decision on completion of review
(8) On completion of the review, the review officer must confirm, vary or cancel the decision.
Notice
(9) The person who made the request must, without delay, be notified in writing of the reasons for the review officer’s decision under subsection (8).
Regulations
(10) The Governor in Council may make regulations prescribing anything that by this section is to be prescribed.
2002, c. 28
PEST CONTROL PRODUCTS ACT
Safe Food fo
106. Subsection 55(2) of the Pest Control Products Act is replaced by the following:
2011-2012 Forfeiture by court order
2005, c. 38
Salubrité des alim (2) If the Review Tribunal, continued by subsection 27(1) of the Agriculture and AgriFood Administrative Monetary Penalties Act, decides that a person has committed a violation, or if an offender is convicted of an offence under this Act, the Tribunal or the court, as the case may be, may, in addition to imposing a penalty or punishment, order that a pest control product or other thing that was involved in the violation or offence be forfeited to Her Majesty in right of Canada, unless the product or thing has been returned to its owner or another person. CANADA BORDER SERVICES AGENCY ACT 107. Paragragh (b) of the definition “program legislation” in section 2 of the Canada Border Services Agency Act is replaced by the following: (b) that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to enforce, including the Agriculture and AgriFood Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act;
108. Paragraph 9(2)(b) of the Act is replaced by the following: (b) as an inspector or a veterinary inspector or other officer for the enforcement of any Act or instrument made under it, or any part of an Act or instrument, that the Governor in Council or Parliament authorizes the Minister, the Agency, the President or an employee of the Agency to enforce, including the Agriculture and Agri-Food Administrative Monetary Penalties Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act.
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COORDINATING AMENDMENTS 1998, c. 22
109. (1) In this section, “other Act” means An Act to amend the Canada Grain Act and the Agriculture and Agri-Food Administrative Monetary Penalties Act and to repeal the Grain Futures Act, chapter 22 of the Statutes of Canada, 1998. (2) On the first day on which both section 97 of this Act is in force and subsection 28(1) of the other Act has produced its effects, the long title of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following: An Act to establish a system of administrative monetary penalties for the enforcement of the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act
(3) On the first day on which both section 98 of this Act is in force and subsection 28(2) of the other Act has produced its effects, the definition “agri-food Act” in section 2 of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following: “agri-food Act” « loi agroalimentaire »
“agri-food Act” means the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act or the Seeds Act;
Bill C-38
110. (1) Subsections (2) to (5) apply if Bill C-38, introduced in the 1st session of the 41th Parliament and entitled the Jobs, Growth and
2011-2012
Salubrité des alim Long-term Prosperity Act (in this section referred to as the “other Act”), receives royal assent. (2) If subsection 512(2) of the other Act comes into force before subsection 94(2) of this Act, then (a) that subsection 94(2) is deemed never to have come into force and is repealed; and (b) paragraph 64(1)(z.3.1) of the Health of Animals Act is replaced by the following: (z.31) requiring persons to provide to the Minister or any other person authorized by the Minister, in the form and manner that the Minister or other person, as the case may be, directs, information in relation to animals or things to which this Act or the regulations apply, including information in respect of their movements, events in relation to them and places where they are or were located; (z.32) governing the identification of places in respect of which information is to be provided under regulations made under paragraph (z.31); (z.33) prohibiting or governing the use or disclosure of information provided under regulations made under any of paragraphs (y) to (z.1) and (z.31); (3) If the other Act receives royal assent before January 1, 2013 and subsection 94(2) of this Act comes into force before that date, then subsection 512(2) of the other Act is repealed. (4) If the other Act receives royal assent after December 31, 2012 and subsection 94(2) of this Act comes into force before that date, then subsection 512(2) of the other Act is deemed never to have come into force and is repealed. (5) If subsection 512(2) of the other Act and subsection 94(2) of this Act come into force on the same day, then subsection 512(2) of the other Act is deemed never to have come into force and is repealed.
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Order in council
111. This Act, except sections 73, 94, 109 and 110, comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Senate of Canada Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 30 An Act respecting a Federal Framework for Suicide Prevention
ASSENTED TO 14th DECEMBER, 2012 BILL C-300
SUMMARY This enactment establishes a requirement for the Government of Canada to develop a federal framework for suicide prevention in consultation with relevant non-governmental organizations, the relevant entity in each province and territory, as well as with relevant federal departments.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 30 An Act respecting a Federal Framework for Suicide Prevention [Assented to 14th December, 2012] Preamble
Whereas suicide is a complex problem involving biological, psychological, social and spiritual factors, and can be influenced by societal attitudes and conditions; Whereas Canadians want to reduce suicide and its impact in Canada, and suicide prevention is everyone’s responsibility; Whereas suicide is preventable by knowledge, care and compassion; Whereas concerted, collaborative action by committed communities, governments, organizations and individuals across Canada will help prevent deaths by suicide, and assist in educating and comforting those who have been affected by suicidal behaviour; Whereas suicide is a significant public health issue in Canada and the grief and trauma associated with it produce long-term social costs and devastating effects on surviving individuals and communities; Whereas the Parliament of Canada affirmed its respect for life by unanimously adopting Motion No. 388, in 2009, which called for meaningful deterrents and punishment for those who encourage vulnerable individuals to commit suicide; And whereas a federal plan designed to disseminate information, promote the use of research, share best practices and affect public attitudes towards suicide and its prevention is in the interest of all Canadians;
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Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Federal Framework for Suicide Prevention Act. FEDERAL FRAMEWORK FOR SUICIDE PREVENTION
Framework
2. The Government of Canada must establish a federal framework for suicide prevention that (a) recognizes that suicide, in addition to being a mental health issue, is a public health issue and that, as such, it is a health and safety priority; and (b) designates the appropriate entity within the Government of Canada to assume responsibility for (i) providing guidelines to improve public awareness and knowledge about suicide, (ii) disseminating information about suicide, including information concerning its prevention, (iii) making publically available existing statistics about suicide and related risk factors, (iv) promoting collaboration and knowledge exchange across domains, sectors, regions and jurisdictions, (v) defining best practices for the prevention of suicide, and (vi) promoting the use of research and evidence-based practices for the prevention of suicide.
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Cadre fédéral de pr
CONSULTATIONS Consultations
3. Within 180 days after the day on which this section comes into force, the Government of Canada must enter into consultations with relevant non-governmental organizations, relevant entities within the governments of the provinces and territories and relevant federal departments, in order to share information and align the elements of the framework described in section 2 with existing efforts that relate to suicide prevention. REPORT
Report
4. Within four years after the coming into force of this Act and every two years thereafter, the entity designated in accordance with paragraph 2(b) must report to Canadians on its progress and activities related to the federal framework for suicide prevention.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 26 An Act to implement the Free Trade Agreement between Canada and the Republic of Panama, the Agreement on the Environment between Canada and the Republic of Panama and the Agreement on Labour Cooperation between Canada and the Republic of Panama
ASSENTED TO 14th DECEMBER, 2012 BILL C-24
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to implement the Free Trade Agreement between Canada and the Republic of Panama, the Agreement on the Environment between Canada and the Republic of Panama and the Agreement on Labour Cooperation between Canada and the Republic of Panama”.
SUMMARY This enactment implements the Free Trade Agreement and the related agreements on the environment and labour cooperation entered into between Canada and the Republic of Panama and done at Ottawa on May 13 and 14, 2010. The general provisions of the enactment specify that no recourse may be taken on the basis of the provisions of Part 1 of the enactment or any order made under that Part, or the provisions of the Free Trade Agreement or the related agreements themselves, without the consent of the Attorney General of Canada. Part 1 of the enactment approves the Free Trade Agreement and the related agreements and provides for the payment by Canada of its share of the expenditures associated with the operation of the institutional aspects of the agreements and the power of the Governor in Council to make orders for carrying out the provisions of the enactment. Part 2 of the enactment amends existing laws in order to bring them into conformity with Canada’s obligations under the Free Trade Agreement and the related agreement on labour cooperation. Part 3 of the enactment contains coordinating amendments and the coming into force provision.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO IMPLEMENT THE FREE TRADE AGREEMENT BETWEEN CANADA AND THE REPUBLIC OF PANAMA, THE AGREEMENT ON THE ENVIRONMENT BETWEEN CANADA AND THE REPUBLIC OF PANAMA AND THE AGREEMENT ON LABOUR COOPERATION BETWEEN CANADA AND THE REPUBLIC OF PANAMA SHORT TITLE 1.
Canada–Panama Economic Growth and Prosperity Act
INTERPRETATION 2.
Definitions
3. Interpretation consistent with agreements
4. Non-application of Act or Agreement to water
5. Construction HER MAJESTY
6. Binding on Her Majesty
7. Purpose
PURPOSE
CAUSES OF ACTION 8.
Causes of action under Part 1 PART 1
IMPLEMENTATION OF THE AGREEMENT AND THE RELATED AGREEMENTS APPROVAL 9.
Agreements approved ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
10. Canadian representative on Joint Commission
11. Payment of expenditures
PANELS, COMMITTEES, SUBCOMMITTEES, WORKING GROUPS AND EXPERT GROUPS 12.
Powers of Minister
i 13.
Administrative support
14. Payment of costs
15. Orders re Article 22.13 of Agreement
ORDERS
PART 2 RELATED AMENDMENTS 16-22.
Canadian International Trade Tribunal Act
23-27.
Commercial Arbitration Act
28-29.
Crown Liability and Proceedings Act
30-37.
Customs Act
38-49.
Customs Tariff
50. Department of Human Resources and Skills Development Act
51-54.
Export and Import Permits Act
55-56.
Financial Administration Act
57-59.
Importation of Intoxicating Liquors Act PART 3
COORDINATING AMENDMENTS AND COMING INTO FORCE COORDINATING AMENDMENTS 60.
Bill C-13 and Canada–Jordan Economic Growth and Prosperity Act
61. Bill C-13
62. Canada–Jordan Economic Growth and Prosperity Act
63. Bill C-13 and Canada–Jordan Economic Growth and Prosperity Act
64. SOR/2011-191
65. Order in council
COMING INTO FORCE SCHEDULE 1 SCHEDULE 2 SCHEDULE 3 SCHEDULE 4 SCHEDULE 5 SCHEDULE 6 SCHEDULE 7 SCHEDULE 8
ii SCHEDULE 9 SCHEDULE 10
60-61 ELIZABETH II —————— CHAPTER 26 An Act to implement the Free Trade Agreement between Canada and the Republic of Panama, the Agreement on the Environment between Canada and the Republic of Panama and the Agreement on Labour Cooperation between Canada and the Republic of Panama [Assented to 14th December, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Canada– Panama Economic Growth and Prosperity Act. INTERPRETATION
Definitions
“Agreement” « Accord »
“federal law” « texte législatif fédéral »
2. The following definitions apply in this Act. “Agreement” means the Free Trade Agreement between Canada and the Republic of Panama, done at Ottawa on May 14, 2010. “federal law” means the whole or any portion of an Act of Parliament or a regulation, order or other instrument issued, made or established in the exercise of a power conferred by or under an Act of Parliament.
“Joint Commission” « Commission mixte »
“Joint Commission” means the Joint Commission established under Article 21.01 of the Agreement.
“Minister” « ministre »
“Minister” means the Minister for International Trade.
2 “related agreement” « accord connexe »
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“related agreement” means (a) the Agreement on the Environment between Canada and the Republic of Panama, done at Ottawa on May 13, 2010; or (b) the Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010.
Interpretation consistent with agreements
3. For greater certainty, this Act and any federal law that implements a provision of the Agreement or a related agreement or fulfils an obligation of the Government of Canada under the Agreement or a related agreement is to be interpreted in a manner consistent with the Agreement or related agreement, as the case may be.
Non-application of Act or Agreement to water
4. For greater certainty, nothing in this Act or the Agreement applies to natural surface or ground water in liquid, gaseous or solid state.
Construction
5. For greater certainty, nothing in this Act, by specific mention or omission, is to be construed to affect in any manner the right of Parliament to enact legislation to implement any provision of the Agreement or a related agreement or fulfil any of the obligations of the Government of Canada under the Agreement or a related agreement. HER MAJESTY
Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada. PURPOSE
Purpose
7. The purpose of this Act is to implement the Agreement and the related agreements, the objectives of which, as elaborated more specifically through their provisions, are to (a) establish a free trade area in accordance with the Agreement; (b) promote, through the expansion of reciprocal trade, the harmonious development of the economic relations between Canada and the Republic of Panama in order to foster, in both countries, the advancement of economic activity;
2011-2012
Croissance économique et pr (c) provide fair conditions of competition affecting trade between Canada and the Republic of Panama; (d) substantially increase investment opportunities in Canada and the Republic of Panama; (e) contribute, by the removal of barriers to trade, to the harmonious development and expansion of world and regional trade; (f) enhance and enforce environmental laws and regulations and strengthen cooperation between Canada and the Republic of Panama on environmental matters; (g) protect, enhance and enforce basic workers’ rights, strengthen cooperation and build on the respective international commitments of Canada and the Republic of Panama on labour matters; and (h) promote sustainable development.
CAUSES OF ACTION Causes of action under Part 1
8. (1) No person has any cause of action and no proceedings of any kind are to be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part 1 or an order made under that Part.
Causes of action under the Agreement or a related agreement
(2) Subject to Section C of Chapter 9 of the Agreement and Part Three and Annex 3 of the Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010, no person has any cause of action and no proceedings of any kind are to be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement or a related agreement.
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IMPLEMENTATION OF THE AGREEMENT AND THE RELATED AGREEMENTS APPROVAL Agreements approved
9. The Agreement and the related agreements are approved. ADMINISTRATIVE AND INSTITUTIONAL PROVISIONS
Canadian representative on Joint Commission
10. The Minister is the principal representative of Canada on the Joint Commission.
Payment of expenditures
11. The Government of Canada is to pay its appropriate share of the aggregate of any expenditures incurred by or on behalf of the Joint Commission. PANELS, COMMITTEES, SUBCOMMITTEES, WORKING GROUPS AND EXPERT GROUPS
Powers of Minister
12. (1) The Minister may (a) appoint representatives of Canada to any committee, subcommittee or working group referred to in paragraph 6 of Article 21.01 of the Agreement; (b) appoint a panellist in accordance with Article 22.08 of the Agreement; and (c) propose candidates to serve as the chair of a panel, or select the chair, in accordance with that Article 22.08.
Powers of Minister of the Environment
(2) The Minister of the Environment may (a) appoint representatives of Canada to the committee referred to in Article 17 of the Agreement on the Environment between Canada and the Republic of Panama, done at Ottawa on May 13, 2010; (b) appoint a panellist in accordance with paragraph 11 of Annex I to that Agreement; and (c) propose candidates to serve as the chair of a panel, or select the chair, in accordance with that paragraph.
2011-2012 Powers of the Minister of Labour
Croissance économique et pr (3) The Minister of Labour may (a) appoint representatives of Canada to any committee, working group or expert group referred to in Article 7 of the Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010; (b) appoint a panellist in accordance with paragraph 4 of Annex 2 to that Agreement; and (c) propose candidates to serve as the chairperson of a panel, or select the chairperson, in accordance with that paragraph.
Administrative support
13. The Minister is to designate an agency, division or branch of the Government of Canada to facilitate the operation of Chapter 22 of the Agreement and to provide administrative assistance to panels established under that Chapter.
Payment of costs
14. The Government of Canada is to pay the costs of or its appropriate share of the costs of (a) the remuneration and expenses payable to members of panels, committees, subcommittees, working groups and expert groups, to independent experts and to the assistants of panel members; and (b) the general expenses incurred by panels, committees, subcommittees, working groups and expert groups. ORDERS
Orders re Article 22.13 of Agreement
15. (1) The Governor in Council may, for the purpose of suspending benefits in accordance with Article 22.13 of the Agreement, by order, do any one or more of the following: (a) suspend rights or privileges granted by Canada to the Republic of Panama or to goods of the Republic of Panama under the Agreement or any federal law; (b) modify or suspend the application of any federal law, with respect to the Republic of Panama or to goods of the Republic of Panama;
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Canada–Panama Econom
(c) extend the application of any federal law to the Republic of Panama or to goods of the Republic of Panama; and (d) take any other measure that the Governor in Council considers necessary. Period of order
(2) Unless repealed, an order made under subsection (1) has effect for the period specified in the order. PART 2 RELATED AMENDMENTS
R.S., c. 47 (4th Supp.)
CANADIAN INTERNATIONAL TRADE TRIBUNAL ACT 16. (1) Section 2 of the Canadian International Trade Tribunal Act is amended by adding the following after subsection (2.1):
Definition of “Panama Tariff”
(2.2) In this Act, “Panama Tariff” means the rates of customs duty referred to in section 49.41 of the Customs Tariff.
2010, c. 4, s. 16(2)
(2) Subsection 2(5) of the Act is replaced by the following:
Goods imported from certain countries
(5) For the purposes of this Act, goods are imported from one of the following countries if they are shipped directly to Canada from that country, within the meaning of sections 17 and 18 of the Customs Tariff: a NAFTA country an EFTA state Chile Colombia Costa Rica Panama Peru 17. The Act is amended by adding the following after section 19.013:
Definition of “principal cause”
19.0131 (1) In this section, “principal cause” means, in respect of a serious injury or threat of a serious injury, an important cause that is no less important than any other cause of the serious injury or threat.
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Emergency measures — Panama
(2) The Tribunal shall inquire into and report to the Governor in Council on the question whether goods that are entitled to the benefit of the Panama Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to the domestic production of like or directly competitive goods, and under such conditions as to constitute a principal cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods, if the Governor in Council, on the recommendation of the Minister, refers the question to it for inquiry and report.
Terms of reference
(3) The Tribunal shall conduct an inquiry under subsection (2) and prepare its report in accordance with the terms of reference established by the Governor in Council or the Minister, as the case may be.
Tabling of report
(4) The Minister shall cause a copy of each report submitted to the Governor in Council or the Minister to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is so submitted.
Notice of report
(5) The Tribunal shall cause notice of the submission of a report to be published in the Canada Gazette. 18. The Act is amended by adding the following after section 20.03:
Definition of “principal cause”
20.031 (1) In this section, “principal cause” means, in respect of a serious injury or threat of serious injury, an important cause that is no less important than any other cause of the serious injury or threat.
Determination in respect of goods imported from Panama
(2) Where, in an inquiry conducted pursuant to a reference under section 20 into goods imported from Panama that are specified by the Governor in Council or in an inquiry conducted pursuant to a complaint under subsection 23(1) into goods so imported that are specified by the Tribunal, the Tribunal finds that the specified imported goods and goods of the same kind imported from other countries are being imported in such increased quantities and under such conditions as to be a principal cause of serious injury, or threat of serious injury, to
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domestic producers of like or directly competitive goods, the Tribunal shall determine whether the specified imported goods are a principal cause of the serious injury or threat of serious injury. Determinations
(3) In the case of an inquiry to which subsection (2) applies, the Tribunal shall include in its report any determinations made under that subsection.
Inquiry under section 30.07
(4) In an inquiry under section 30.07 into goods imported from Panama conducted pursuant to an extension request, the Tribunal shall determine whether the goods imported from Panama are a principal cause of the serious injury or threat of serious injury to domestic producers of like or directly competitive goods.
2010, c. 4, s. 19
19. Section 21.1 of the Act is replaced by the following:
Definition of “complaint”
21.1 In sections 23 to 30, “complaint” means a written complaint filed with the Tribunal under any of subsections 23(1) to (1.093) and, for the purposes of those sections, a complaint is properly documented if the Tribunal is satisfied that it contains or is accompanied by the information required by section 23. 20. Section 23 of the Act is amended by adding the following after subsection (1.08):
Filing of complaint — Panama Tariff
(1.081) Any domestic producer of goods that are like or directly competitive with any goods being imported into Canada and that are entitled to the Panama Tariff, or any person or association acting on behalf of such a domestic producer, may file a written complaint with the Tribunal alleging that, as a result of that entitlement, the imported goods are being imported in such increased quantities, in absolute terms or relative to the domestic production of like or directly competitive goods, and under such conditions as to constitute a cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods.
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Croissance économique et pr 21. Paragraph 26(1)(a) of the Act is amended by adding the following after subparagraph (i.8): (i.81) in the case of a complaint filed under subsection 23(1.081), the goods that are entitled to the Panama Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to the domestic production of like or directly competitive goods, and under such conditions as to constitute a cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods,
22. Subsection 27(1) of the Act is amended by adding the following after paragraph (a.8): (a.81) in the case of a complaint filed under subsection 23(1.081), the goods that are entitled to the Panama Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to domestic production of like or directly competitive goods, and under such conditions as to constitute a principal cause of serious injury, or threat of serious injury, to domestic producers of like or directly competitive goods;
R.S., c. 17 (2nd Supp.)
COMMERCIAL ARBITRATION ACT 23. The definition “Code” in section 2 of the Commercial Arbitration Act is replaced by the following:
“Code” « Code »
“Code” means the Commercial Arbitration Code, based on the model law adopted by the United Nations Commission on International Trade Law on June 21, 1985, as set out in Schedule 1;
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24. Subsection 5(4) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d): (e) a claim under a provision, set out in column 1 of Schedule 2, of an agreement that is set out in column 2. 25. The schedule to the Act is renumbered as Schedule 1. 26. The Act is amended by adding, after Schedule 1, the Schedule 2 set out in Schedule 1 to this Act. 27. Regulations, within the meaning of section 2 of the Statutory Instruments Act, made under an Act of Parliament are amended by replacing every reference to the schedule to the Commercial Arbitration Act with a reference to Schedule 1 wherever it occurs, and more particularly in the following provisions: (a) in the Kananaskis Falls and Horseshoe Falls Water Power Regulations, (i) subparagraph 4(g)(i) of Schedule I, and (ii) subparagraph 4(g)(i) of Schedule II; and (b) in the Federal Courts Rules, (i) subsection 324(1), (ii) the definition “arbitration agreement” in section 326, (iii) paragraph (d) of the definition “foreign judgment” in section 326, and (iv) paragraph 1(d) of Form 327. R.S., c. C-50; 1990, c. 8, s. 21
CROWN LIABILITY AND PROCEEDINGS ACT
2009, c. 16, s. 25(3)
28. Paragraphs (a) to (d) of the definition “appropriate party” in section 20.1 of the Crown Liability and Proceedings Act are replaced by the following:
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Croissance économique et pr (a) the Commission for Environmental Cooperation established under Article 8 of the North American Agreement on Environmental Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 48 of that Agreement, (b) the Canada–Chile Commission for Environmental Cooperation established under Article 8 of the Agreement on Environmental Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement, (c) the Commission for Labor Cooperation established under Article 8 of the North American Agreement on Labor Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 52 of that Agreement, (d) the Canada–Chile Commission for Labour Cooperation established under Article 8 of the Agreement on Labour Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement, or
2009, c. 16, s. 30; 2010, c. 4, s. 24
29. The schedule to the Act is replaced by the schedule set out in Schedule 2 to this Act.
12 R.S., c. 1 (2nd Supp.)
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1997, c. 36, s. 147(1); 2001, c. 28, s. 26(2); 2009, c. 6, s. 23(2), c. 16, s. 31(2); 2010, c. 4, s. 25(2)
30. (1) The definitions “preferential tariff treatment under CCFTA”, “preferential tariff treatment under CCOFTA”, “preferential tariff treatment under CCRFTA”, “preferential tariff treatment under CEFTA”, “preferential tariff treatment under CIFTA”, “preferential tariff treatment under CPFTA” and “preferential tariff treatment under NAFTA” in subsection 2(1) of the Customs Act are repealed.
2010, c. 4, s. 25(1)
(2) The definitions “free trade agreement” and “free trade partner” in subsection 2(1) of the Act are replaced by the following:
“free trade agreement” « accord de libre-échange »
“free trade agreement” means an agreement set out in column 2 of Part 1 of the schedule;
“free trade partner” « partenaire de libre-échange »
“free trade partner” means a country or territory set out in column 1 of Part 1 of the schedule; (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
“CPAFTA” « ALÉCPA »
“CPAFTA” has the same meaning as “Agreement” in section 2 of the Canada–Panama Economic Growth and Prosperity Act;
“Panama” « Panama »
“Panama” has the same meaning as in subsection 2(1) of the Customs Tariff;
“preferential tariff treatment” « traitement tarifaire préférentiel »
“preferential tariff treatment” means, in respect of goods, entitlement to whichever tariff set out in column 3 of Part 1 of the schedule is applicable in the circumstances;
1997, c. 14, s. 35(4); 2001, c. 28, s. 26(3); 2009, c. 6, s. 23(3), c. 16, s. 31(3) and par. 56(10)(a); 2010, c. 4, s. 25(3) 1988, c. 65, s. 69
(4) Subsection 2(1.2) of the Act is repealed.
31. Paragraph 35.1(4)(c) of the French version of the Act is replaced by the following:
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Croissance économique et pr c) exempter des personnes ou des marchandises, individuellement ou par catégorie, de l’application du paragraphe (1), sous réserve des éventuelles conditions prévues par le règlement.
1997, c. 36, s. 162
32. Subsection 42.2(1) of the French version of the Act is replaced by the following:
Déclaration de l’origine
42.2 (1) Dès l’achèvement de la vérification de l’origine en application de l’alinéa 42.1(1)a), l’agent désigné, en application du paragraphe 42.1(1), fournit à l’exportateur ou au producteur des marchandises en cause une déclaration établissant si celles-ci sont admissibles, au titre du Tarif des douanes, au traitement tarifaire préférentiel demandé.
2010, c. 4, s. 26
33. Section 42.4 of the Act and the heading before it are replaced by the following: Denial or Withdrawal of Benefit of Preferential Tariff Treatment Under Certain Free Trade Agreements
Definition of “identical goods”
42.4 (1) In this section, “identical goods” has the meaning assigned to that expression by the provision, set out in column 2 of Part 2 of the schedule, of an agreement set out in column 1.
Denial or withdrawal of benefit — specified countries
(2) Notwithstanding section 24 of the Customs Tariff, the Minister may, subject to any prescribed conditions, deny or withdraw preferential tariff treatment under an agreement set out in column 1 of Part 2 of the schedule in respect of goods for which that treatment is claimed if the exporter or producer of the goods has made false representations that identical goods exported or produced by that exporter or producer and for which that treatment was claimed were eligible for that treatment.
2010, c. 4, s. 27
34. Paragraph 43.1(1)(b) of the Act is replaced by the following:
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(b) in the case of goods exported from a country or territory set out in column 1 of Part 3 of the schedule, any matter, other than those referred to in paragraphs (a) and (c), concerning those goods that is set out in the provision set out in column 2; and 2010, c. 4, s. 28
35. Paragraph 74(1)(c.11) of the Act is replaced by the following: (c.11) the goods were imported from Israel or another CIFTA beneficiary or from a country or territory set out in column 1 of Part 4 of the schedule but no claim for preferential tariff treatment under CIFTA or an agreement set out in column 2, as the case may be, was made in respect of those goods at the time they were accounted for under subsection 32(1), (3) or (5);
1993, c. 44, s. 108(1); 1997, c. 14, s. 47(1); 2001, c. 28, s. 30; 2009, c. 6, s. 29, c. 16, ss. 35 and 56(13); 2010, c. 4, s. 29
36. Subsections 164(1.1) to (1.5) of the Act are replaced by the following:
Regulations
(1.1) The Governor in Council may, on the recommendation of the Minister, make regulations for the purpose of the uniform interpretation, application and administration of a chapter or provision, set out in column 2 of Part 5 of the schedule, of an agreement set out in column 1 and any other matters that may be agreed on from time to time by the parties to that agreement. 37. Schedules I to IV to the Act are replaced by the schedule set out in Schedule 3 to this Act.
1997, c. 36
CUSTOMS TARIFF 38. Subsection 2(1) of the Customs Tariff is amended by adding the following in alphabetical order:
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2011-2012 “Canada– Panama Free Trade Agreement” « Accord de libre-échange CanadaPanama »
“Panama” « Panama »
“Canada–Panama Free Trade Agreement” has the same meaning as “Agreement” in section 2 of the Canada–Panama Economic Growth and Prosperity Act.
“Panama” means the land, maritime areas, and air space under the sovereignty of the Republic of Panama and the exclusive economic zone and the continental shelf within which it exercises sovereign rights and jurisdiction in accordance with its domestic law and international law.
2010, c. 4, s. 31
39. Section 5 of the Act is replaced by the following:
Goods imported from certain countries
5. For the purposes of this Act, goods are imported from one of the following countries if they are shipped directly to Canada from that country: a NAFTA country Chile Colombia Costa Rica Iceland Liechtenstein Norway Panama Peru Switzerland
2010, c. 4, s. 32
40. Paragraph 14(2)(c) of the Act is replaced by the following: (c) by way of compensation for any action taken under any of the following provisions: (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2), (v) subsection 70(2), (vi) subsection 71(2), (vii) subsection 71.01(1),
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(viii) subsection 71.1(2), (ix) subsection 71.41(1), (x) subsection 71.5(1), (xi) subsection 72(1), (xii) subsection 75(1), (xiii) subsection 76(1), (xiv) subsection 76.1(1), (xv) subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act. 2010, c. 4, s. 34
41. Section 27 of the Act is replaced by the following:
Abbreviations
27. The following abbreviations, as defined below, apply in the List of Tariff Provisions and the “F” Staging List.
“AUT” « TAU »
“AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement Tariff.
“COLT” « TCOL »
“CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
“LDCT” « TPMD »
“MT” « TM »
“MUST” « TMÉU »
“COLT” refers to the Colombia Tariff. “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff. “LDCT” refers to the Least Developed Country Tariff. “MT” refers to the Mexico Tariff. “MUST” refers to the Mexico–United States Tariff.
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“NZT” « TNZ »
“PAT” « TPA »
“PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
Croissance économique et pr “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PAT” refers to the Panama Tariff. “PT” refers to the Peru Tariff. “SLT” refers to the Switzerland–Liechtenstein Tariff. “UST” refers to the United States Tariff. 42. The Act is amended by adding the following after section 49.4: Panama Tariff
Application of PAT
49.41 (1) Subject to section 24, goods that originate in Panama are entitled to the Panama Tariff rates of customs duty.
“A” final rate
(2) If “A” is set out in the column entitled “Preferential Tariff” in the List of Tariff Provisions following the abbreviation “PAT” in relation to goods entitled to the Panama Tariff, the Panama Tariff rate of customs duty that applies to those goods is the final rate of “Free”.
“F” staging for PAT
(3) If “F” is set out in the column entitled “Preferential Tariff” in the List of Tariff Provisions following the abbreviation “PAT” in relation to goods entitled to the Panama Tariff, the Panama Tariff rate of customs duty that applies to those goods is the initial rate, reduced as provided in the “F” Staging List.
Staging for PAT
(4) If “T1”, “T2” or “T3” is set out in the column entitled “Preferential Tariff” in the List of Tariff Provisions following the abbreviation “PAT” in relation to goods entitled to the Panama Tariff, the Panama Tariff rate of customs duty that applies to those goods is the initial rate, reduced (a) if “T1” is set out, (i) effective on the coming into force of this subsection, to two thirds of the initial rate,
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(ii) effective on January 1 of the year that is one year after the year of the coming into force of this subsection, to one third of the initial rate, and (iii) effective on January 1 of the year that is two years after the year of the coming into force of this subsection, to the final rate of “Free”; (b) if “T2” is set out, (i) effective on the coming into force of this subsection, to four fifths of the initial rate, (ii) effective on January 1 of the year that is one year after the year of the coming into force of this subsection, to three fifths of the initial rate, (iii) effective on January 1 of the year that is two years after the year of the coming into force of this subsection, to two fifths of the initial rate, (iv) effective on January 1 of the year that is three years after the year of the coming into force of this subsection, to one fifth of the initial rate, and (v) effective on January 1 of the year that is four years after the year of the coming into force of this subsection, to the final rate of “Free”; and (c) if “T3” is set out, (i) effective on January 1 of the year that is five years after the year of the coming into force of this subsection, to nine tenths of the initial rate, (ii) effective on January 1 of the year that is six years after the year of the coming into force of this subsection, to eight tenths of the initial rate, (iii) effective on January 1 of the year that is seven years after the year of the coming into force of this subsection, to seven tenths of the initial rate, (iv) effective on January 1 of the year that is eight years after the year of the coming into force of this subsection, to six tenths of the initial rate,
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Croissance économique et pr (v) effective on January 1 of the year that is nine years after the year of the coming into force of this subsection, to five tenths of the initial rate, (vi) effective on January 1 of the year that is 10 years after the year of the coming into force of this subsection, to four tenths of the initial rate, (vii) effective on January 1 of the year that is 11 years after the year of the coming into force of this subsection, to three tenths of the initial rate, (viii) effective on January 1 of the year that is 12 years after the year of the coming into force of this subsection, to two tenths of the initial rate, (ix) effective on January 1 of the year that is 13 years after the year of the coming into force of this subsection, to one tenth of the initial rate, and (x) effective on January 1 of the year that is 14 years after the year of the coming into force of this subsection, to the final rate of “Free”.
Rounding of specific rates
(5) If a reduction under subsection (3) or (4) results in a specific rate of customs duty that includes a fraction of one tenth of a cent, the rate shall be rounded down to the nearest one tenth of a cent.
Rounding of amounts
(6) If a reduction under subsection (3) or (4) results in a rate of customs duty that includes a fraction of one per cent other than 0.5, the resulting percentage shall be rounded down to the nearest percentage that divides evenly by 0.5.
Elimination of rates of less than two per cent
(7) If a reduction under subsection (3) or (4) results in a rate of customs duty that is a percentage of less than two per cent, the rate shall be further reduced to “Free” immediately.
2010, c. 4, s. 36
43. The definition “principal cause” in section 54 of the Act is replaced by the following:
“principal cause” « cause principale »
“principal cause”, in respect of goods imported from one of the following countries, means an important cause that is no less important than any other cause:
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Colombia Panama Peru 2010, c. 4, s. 37
44. Section 59.1 of the Act is replaced by the following:
Emergency measures
59.1 An order made under subsection 55(1) may exclude goods of any kind imported from one of the following countries if it appears to the satisfaction of the Governor in Council, on the basis of a report under section 20 or 29 of the Canadian International Trade Tribunal Act, that the quantity of those goods being imported is not a principal cause of serious injury or threat of serious injury to domestic producers of like or directly competitive goods: Colombia Panama Peru
2010, c. 4, s. 38
45. Subsection 63(4.1) of the Act is replaced by the following:
Exception for goods imported
(4.1) An order made under subsection (1) may exclude goods of any kind imported from one of the following countries if it appears to the satisfaction of the Governor in Council, on the basis of a report under the Canadian International Trade Tribunal Act, that the quantity of those goods being imported is not a principal cause of serious injury or threat of serious injury to domestic producers of like or directly competitive goods: Colombia Panama Peru
46. The Act is amended by adding the following after section 71.4: Bilateral Emergency Measures — Panama Order by Governor in Council
71.41 (1) Subject to subsections (2) to (4), if at any time it appears to the satisfaction of the Governor in Council, as a result of an inquiry
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Croissance économique et pr made by the Canadian International Trade Tribunal under subsection 19.0131(2) of the Canadian International Trade Tribunal Act or further to a complaint filed under subsection 23(1.081) of that Act, that goods that are entitled to the Panama Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to the domestic production of like or directly competitive goods, and under such conditions as to constitute a principal cause of serious injury, or a threat of serious injury, to domestic producers of like or directly competitive goods, the Governor in Council may, on the recommendation of the Minister, by order (a) suspend, during the period that the order is in effect, any reduction of the rate of customs duty with respect to those goods that would otherwise be made after that time by virtue of section 49.41; and (b) make those goods subject to a temporary duty, in addition to any other duty specified in this Act or in any other Act of Parliament relating to customs, at a rate set out in the order, but that rate, when added to the rate of customs duty specified in the Panama Tariff that is in effect in respect of those goods at that time, may not exceed the lesser of (i) the Most-Favoured-Nation Tariff rate of customs duty that is in effect in respect of those goods at the time the order is made, and (ii) the Most-Favoured-Nation Tariff rate of customs duty that was in effect in respect of those goods on January 1, 2009.
Terms and conditions
(2) An order under subsection (1) (a) is not to be made more than once in respect of goods of any particular kind; (b) remains in effect only for the period, not exceeding three years, that is specified in the order; (c) may be made during the period beginning on the day on which this subsection comes into force and ending
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(i) if the order is in respect of goods for which the Panama Tariff rate of customs duty is reduced to the final rate of “Free” over a period of less than 10 years, on the day that is 10 years after the day on which this subsection comes into force, and (ii) if the order is in respect of goods for which the Panama Tariff rate of customs duty is reduced to the final rate of “Free” over a period of 10 years or more, on the day after the expiry of the tariff staging period in respect of those goods; and (d) may be made after the period described in paragraph (c) if the order is based on an agreement between the Government of Canada and the Government of the Republic of Panama relating to the application of subsection (1). Rate of duty when order ceases to have effect
(3) If an order made under subsection (1) ceases to have effect in a particular calendar year, the rate of customs duty applicable to the goods after the order ceases to have effect is the rate of customs duty that is applicable in accordance with section 49.41.
Definition of “principal cause”
(4) In this section, “principal cause” means, in respect of a serious injury or threat of serious injury, an important cause that is not less important than any other cause of the serious injury or threat.
2010, c. 4, s. 40
47. Section 79 of the Act is replaced by the following:
Goods in transit
79. An order made under any of the following provisions may provide that goods that are in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1); (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2); (g) subsection 71.01(1);
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(h) subsection 71.1(2); (i) subsection 71.41(1); (j) subsection 71.5(1); (k) subsection 72(1); (l) subsection 75(1); (m) subsection 76(1); (n) subsection 76.1(1). 2010, c. 4, s. 41
48. Paragraphs 133(j) and (j.1) of the Act are replaced by the following: (j) for the purpose of tariff item No. 9971.00.00, prescribing conditions under which goods that have been exported to one of the following countries for repair or alteration may be imported: a NAFTA country Chile Colombia Costa Rica Iceland Israel or another CIFTA beneficiary Liechtenstein Norway Panama Peru Switzerland (j.1) for the purpose of tariff item No. 9992.00.00, prescribing conditions under which goods that have been exported to one of the following countries for repair or alteration may be imported: a NAFTA country Chile Colombia Costa Rica Israel or another CIFTA beneficiary Panama Peru
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49. (1) The List of Tariff Provisions set out in the schedule to the Act is amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “GPT”, a reference to “PAT:”; (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “GPT”, a reference to “PAT:”; (c) adding in the column “Preferential Tariff / Initial Rate” a reference to “Free” after the abbreviation “PAT”, and adding in the column “Preferential Tariff / Final Rate” a reference to “Free (A)” after the abbreviation “PAT”, for all tariff items except those set out in each of Schedules 4 and 5 to this Act; (d) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final Rate” a reference to “N/A” after the abbreviation “PAT” for the tariff items set out in Schedule 4 to this Act; and (e) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final Rate” after the abbreviation “PAT”, for each tariff item set out in Schedule 5 to this Act, the rates of customs duty and staging categories set out with respect to that tariff item in that Schedule.
(2) The Description of Goods of tariff item No. 9929.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by (a) replacing the reference to “imported from the United States, Mexico, Chile, Costa Rica, Peru or Colombia” with a reference to “imported from one of the countries listed below”; and (b) adding, at the end of that Description of Goods, the following: Countries: Chile
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2011-2012 Colombia Costa Rica Mexico Panama Peru United States
(3) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by (a) replacing the reference beginning with “All the foregoing,” and ending with “in that country.” with a reference to “All the foregoing, regardless of the country of origin or tariff treatment, returned to Canada after having been exported to one of the countries listed below for repair or alteration in that country.”; and (b) adding the following before Note 1:
Countries: Chile Colombia Costa Rica Iceland Israel or another CIFTA beneficiary Liechtenstein Mexico Norway Panama Peru Switzerland United States (4) The Description of Goods of tariff item No. 9990.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by
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(a) replacing the reference to “Commercial samples imported from the United States, Mexico, Chile, Costa Rica, Peru or Colombia,” with a reference to “Commercial samples imported from one of the countries listed below,”; (b) replacing, in paragraph (i), the reference to “in Canadian, Chilean, Mexican, Costa Rican, Peruvian or Colombian currency,” with a reference to “in Canadian currency or the currency of the country from which it was imported”; and (c) adding, at the end of that Description of Goods, the following: Countries: Chile Colombia Costa Rica Mexico Panama Peru United States (5) The Description of Goods of tariff item No. 9992.00.00 in the List of Tariff Provisions set out in the schedule to the Act is replaced by the following: Goods, regardless of the country of origin or tariff treatment, other than the goods of tariff item No. 9971.00.00, returned to Canada after having been exported to one of the countries listed below for repair or alteration in that country. Countries: Chile Colombia Costa Rica Israel or another CIFTA beneficiary Mexico Panama Peru United States
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2005, c. 34
DEPARTMENT OF HUMAN RESOURCES AND SKILLS DEVELOPMENT ACT
2009, c. 16, s. 51; 2010, c. 4, s. 43
50. The schedule to the Department of Human Resources and Skills Development Act is replaced by the schedule set out in Schedule 6 to this Act.
R.S., c. E-19
EXPORT AND IMPORT PERMITS ACT 51. Subsection 2(1) of the Export and Import Permits Act is amended by adding the following in alphabetical order:
“Panama” « Panama »
“Panama” has the same meaning as in subsection 2(1) of the Customs Tariff;
2010, c. 4, s. 45
52. The definition “principal cause” in subsection 4.2(1) of the Act is replaced by the following:
“principal cause” « cause principale »
“principal cause” means an important cause that is no less important than any other cause;
2010, c. 4, s. 46
53. Subsection 5(3.4) of the Act is replaced by the following:
Exception for goods imported from certain countries
(3.4) An order made under subsection (3) or (3.2) may exclude goods of any kind imported from a country listed in the schedule if it appears to the satisfaction of the Governor in Council, on the basis of a report under the Canadian International Trade Tribunal Act, that the quantity of those goods being imported is not a principal cause of serious injury or threat of serious injury to domestic producers of like or directly competitive goods.
54. The Act is amended by adding, after section 27, the schedule set out in Schedule 7 to this Act. R.S., c. F-11
FINANCIAL ADMINISTRATION ACT 55. The Financial Administration Act is amended by adding the following after section 89.6:
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Implementation of Other Free Trade Agreements Directive
89.7 (1) Despite subsections 85(1) to (1.2), the Governor in Council may give a directive under subsection 89(1) to any parent Crown corporation for the purpose of implementing any provision of a free trade agreement set out in Schedule VII that pertains to that Crown corporation.
Regulations
(2) The Governor in Council may, on the recommendation of the Treasury Board and the appropriate Minister made at the request of a Crown corporation, make any regulations in relation to that corporation that the Governor in Council considers necessary for the purpose of implementing any provision of a free trade agreement set out in Schedule VII that pertains to that corporation. 56. The Act is amended by adding, after Schedule VI, the Schedule VII set out in Schedule 8 to this Act.
R.S., c. I-3
IMPORTATION OF INTOXICATING LIQUORS ACT 57. Section 2 of the Importation of Intoxicating Liquors Act is amended by adding the following in alphabetical order:
“Panama” « Panama »
“Panama” has the same meaning as in subsection 2(1) of the Customs Tariff; 58. Subsection 3(2) of the Act is amended by striking out “and” at the end of paragraph (f) and by adding the following after that paragraph: (f.1) the importation of bulk spirits into a province from a country listed in column 1 of the schedule by a licensed distiller for the purpose of being packaged by the distiller, if the spirits (i) are entitled to the benefit of a tariff set out in column 2, and (ii) are kept while in the province in accordance with the Excise Act, 2001 and the laws of the province; and
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Croissance économique et pr 59. The Act is amended by adding, after section 8, the schedule set out in Schedule 9 to this Act. PART 3 COORDINATING AMENDMENTS AND COMING INTO FORCE COORDINATING AMENDMENTS
Bill C-13 and Canada–Jordan Economic Growth and Prosperity Act
60. If Bill C-13, introduced in the 1st session of the 41st Parliament and entitled the Keeping Canada’s Economy and Jobs Growing Act (in this section referred to as the “first Act”), receives royal assent and a Bill entitled the Canada–Jordan Economic Growth and Prosperity Act (in this section referred to as the “second Act”) is introduced in the 1st session of 41st Parliament and receives royal assent, then, on the first day on which the provision of the first Act, the provision of the second Act and the provision of this Act that are set out together in one of subsections 63(2) to (4) are all in force, the effects produced by that subsection prevail over any inconsistent effects that would otherwise be produced on the same day by (a) subsections 44(4) to (6) of the second Act; (b) subsections 61(4), (5) and (12) of this Act; or (c) subsections 62(40) to (42) of this Act.
Bill C-13
61. (1) Subsections (2) to (29) apply if Bill C-13, introduced in the 1st session of the 41st Parliament and entitled the Keeping Canada’s Economy and Jobs Growing Act (in this section referred to as the “other Act”), receives royal assent. (2) If section 39 of this Act comes into force before section 111 of the other Act, then that section 111 is deemed never to have come into force and is repealed.
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Canada–Panama Econom
(3) If section 111 of the other Act comes into force on the same day as section 39 of this Act, then that section 111 is deemed to have come into force before that section 39. (4) On the first day on which both subsection 113(2) of the other Act and section 40 of this Act are in force, paragraph 14(2)(c) of the Customs Tariff is replaced by the following: (c) by way of compensation for any action taken under any of the following provisions: (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2), (v) subsection 70(2), (vi) subsection 71(2), (vii) subsection 71.01(1), (viii) subsection 71.1(2), (ix) subsection 71.41(1), (x) subsection 71.5(1), (xi) subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act. (5) On the first day on which both section 116 of the other Act and section 41 of this Act are in force, section 27 of the Customs Tariff is replaced by the following: Abbreviations
“AUT” « TAU »
27. The following abbreviations, as defined below, apply in the schedule. “AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement Tariff.
“COLT” « TCOL »
“COLT” refers to the Colombia Tariff.
2011-2012 “CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
Croissance économique et pr “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff.
“LDCT” « TPMD »
“LDCT” refers to the Least Developed Country Tariff.
“MFN” « NPF »
“MFN” refers to the Most-Favoured-Nation Tariff.
“MT” « TM »
“MUST” « TMÉU »
“NT” « TN »
“NZT” « TNZ »
“PAT” « TPA »
“PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
“MT” refers to the Mexico Tariff. “MUST” refers to the Mexico–United States Tariff. “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PAT” refers to the Panama Tariff. “PT” refers to the Peru Tariff. “SLT” refers to the Switzerland–Liechtenstein Tariff. “UST” refers to the United States Tariff. (6) If section 43 of this Act comes into force before section 124 of the other Act, then, on the day on which that section 124 comes into force, the definition “principal cause” in section 54 of the Customs Tariff is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (7) If section 124 of the other Act comes into force on the same day as section 43 of this Act, then that section 124 is deemed to have come into force before that section 43.
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(8) If section 44 of this Act comes into force before section 126 of the other Act, then that section 126 is deemed never to have come into force and is repealed. (9) If section 126 of the other Act comes into force on the same day as section 44 of this Act, then that section 126 is deemed to have come into force before that section 44. (10) If section 45 of this Act comes into force before section 127 of the other Act, then that section 127 is deemed never to have come into force and is repealed. (11) If section 127 of the other Act comes into force on the same day as section 45 of this Act, then that section 127 is deemed to have come into force before that section 45. (12) On the first day on which both section 129 of the other Act and section 47 of this Act are in force, section 79 of the Customs Tariff is replaced by the following: Goods in transit
79. An order made under any of the following provisions may provide that goods that are in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1); (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2); (g) subsection 71.01(1); (h) subsection 71.1(2); (i) subsection 71.41(1); (j) subsection 71.5(1). (13) If section 48 of this Act comes into force before section 134 of the other Act, then that section 134 is deemed never to have come into force and is repealed.
2011-2012
Croissance économique et pr (14) If section 134 of the other Act comes into force on the same day as section 48 of this Act, then that section 134 is deemed to have come into force before that section 48. (15) On the first day on which both section 137 of the other Act and subsection 49(1) of this Act are in force, the List of Countries and Applicable Tariff Treatments set out in the schedule to the Customs Tariff is amended by adding, in the column “Tariff Treatment / Other”, a reference to “PAT” opposite the reference to “Panama”. (16) If subsection 138(1) of the other Act comes into force before subsection 49(3) of this Act, then that subsection 49(3) is replaced by the following: (3) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (17) If subsection 49(3) of this Act comes into force before subsection 138(1) of the other Act, then that subsection 138(1) is deemed never to have come into force and is repealed. (18) If subsection 138(1) of the other Act comes into force on the same day as subsection 49(3) of this Act, then that subsection 49(3) is deemed to have come into force before that subsection 138(1) and subsection (17) applies as a consequence. (19) If subsection 138(2) of the other Act comes into force before subsection 49(4) of this Act, then that subsection 49(4) is replaced by the following: (4) The Description of Goods of tariff item No. 9990.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries.
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(20) If subsection 49(4) of this Act comes into force before subsection 138(2) of the other Act, then that subsection 138(2) is deemed never to have come into force and is repealed. (21) If subsection 138(2) of the other Act comes into force on the same day as subsection 49(4) of this Act, then that subsection 49(4) is deemed to have come into force before that subsection 138(2) and subsection (20) applies as a consequence. (22) If subsection 49(5) of this Act comes into force before subsection 138(3) of the other Act, then that subsection 138(3) is deemed never to have come into force and is repealed. (23) If subsection 138(3) of the other Act comes into force on the same day as subsection 49(5) of this Act, then that subsection 138(3) is deemed to have come into force before that subsection 49(5). (24) If section 140 of the other Act comes into force before subsection 49(2) of this Act, then that subsection 49(2) is repealed. (25) If section 140 of the other Act comes into force on the same day as subsection 49(2) of this Act, then that subsection 49(2) is deemed to have come into force before that section 140. (26) If subsection 49(1) of this Act comes into force before section 143 of the other Act, then, on the day on which that section 143 comes into force, the tariff provisions that are added by that section 143 to the List of Tariff Provisions set out in the schedule to the Customs Tariff are amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “GPT”, a reference to “PAT: Free”; and (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “GPT”, a reference to “PAT: Free (A)”.
2011-2012
Croissance économique et pr (27) If section 143 of the other Act comes into force on the same day as subsection 49(1) of this Act, then that section 143 is deemed to have come into force before that subsection 49(1). (28) If subsection 49(1) of this Act comes into force before section 146 of the other Act, then, on the day on which that section 146 comes into force, the tariff provisions that are added by that section 146 to the List of Tariff Provisions set out in the schedule to the Customs Tariff are amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “GPT”, a reference to “PAT: Free”; and (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “GPT”, a reference to “PAT: Free (A)”. (29) If section 146 of the other Act comes into force on the same day as subsection 49(1) of this Act, then that section 146 is deemed to have come into force before that subsection 49(1).
Canada–Jordan Economic Growth and Prosperity Act
62. (1) Subsections (2) to (60) apply if a Bill entitled the Canada–Jordan Economic Growth and Prosperity Act (in this section referred to as the “other Act”) is introduced in the 1st session of the 41st Parliament and receives royal assent. (2) If section 16 of the other Act comes into force before subsection 16(2) of this Act, then that subsection 16(2) is replaced by the following: (2) Subsection 2(5) of the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (3) If subsection 16(2) of this Act comes into force before section 16 of the other Act, then that section 16 is replaced by the following: 16. (1) Section 2 of the Canadian International Trade Tribunal Act is amended by adding the following after subsection (4.2):
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Definition of “Jordan Tariff”
(4.3) In this Act, “Jordan Tariff” means the rates of custom duty referred to in section 52.4 of the Customs Tariff.
Canada–Panama Econom
(2) Subsection 2(5) of the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (4) If section 16 of the other Act comes into force on the same day as subsection 16(2) of this Act, then that section 16 is deemed to have come into force before that subsection 16(2) and subsection (2) applies as a consequence. (5) If section 18 of the other Act comes into force before section 19 of this Act, then that section 19 is repealed. (6) If section 18 of the other Act comes into force on the same day as section 19 of this Act, then that section 19 is deemed to have come into force before that section 18. (7) If section 22 of the other Act comes into force before section 28 of this Act, then that section 28 is repealed. (8) If section 28 of this Act comes into force before section 22 of the other Act, then that section 22 is repealed. (9) If section 22 of the other Act comes into force on the same day as section 28 of this Act, then that section 22 is deemed to have come into force before that section 28 and subsection (7) applies as a consequence. (10) If section 23 of the other Act comes into force before section 29 of this Act, then that section 29 is replaced by the following: 29. Part 2 of the schedule to the Act is amended by adding the following in alphabetical order: The Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010, as amended from time to time in accordance with Article 22 of that Agreement.
2011-2012
Croissance économique et pr (11) If section 29 of this Act comes into force before section 23 of the other Act, then that section 23 is replaced by the following: 23. Part 2 of the schedule to the Act is amended by adding the following in alphabetical order: The Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009, as amended from time to time in accordance with Article 22 of that Agreement. (12) If section 23 of the other Act comes into force on the same day as section 29 of this Act, then that section 23 is deemed to have come into force before that section 29 and subsection (10) applies as a consequence. (13) If section 24 of the other Act comes into force before section 30 of this Act, then that section 30 is replaced by the following: 30. Subsection 2(1) of the Customs Act is amended by adding the following in alphabetical order:
“CPAFTA” « ALÉCPA »
“Panama” « Panama »
“CPAFTA” has the same meaning as “Agreement” in section 2 of the Canada–Panama Economic Growth and Prosperity Act; “Panama” has the same meaning as in subsection 2(1) of the Customs Tariff; (14) If section 30 of this Act comes into force before section 24 of the other Act, then that section 24 is replaced by the following: 24. Subsection 2(1) of the Customs Act is amended by adding the following in alphabetical order:
“CJFTA” « ALÉCJ »
“Jordan” « Jordanie »
“CJFTA” has the same meaning as “Agreement” in section 2 of the Canada–Jordan Economic Growth and Prosperity Act; “Jordan” has the same meaning as in subsection 2(1) of the Customs Tariff; (15) If section 24 of the other Act comes into force on the same day as section 30 of this Act, then that section 24 is deemed to have come into force before that section 30 and subsection (13) applies as a consequence.
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(16) If section 25 of the other Act comes into force before section 31 of this Act, then that section 31 is repealed. (17) If section 31 of this Act comes into force before section 25 of the other Act, then that section 25 is repealed. (18) If section 25 of the other Act comes into force on the same day as section 31 of this Act, then that section 25 is deemed to have come into force before that section 31 and subsection (16) applies as a consequence. (19) If section 26 of the other Act comes into force before section 32 of this Act, then that section 32 is repealed. (20) If section 32 of this Act comes into force before section 26 of the other Act, then that section 26 is repealed. (21) If section 26 of the other Act comes into force on the same day as section 32 of this Act, then that section 26 is deemed to have come into force before that section 32 and subsection (19) applies as a consequence. (22) If section 27 of the other Act comes into force before section 33 of this Act, then that section 33 is repealed. (23) If section 33 of this Act comes into force before section 27 of the other Act, then that section 27 is repealed. (24) If section 27 of the other Act comes into force on the same day as section 33 of this Act, then that section 27 is deemed to have come into force before that section 33 and subsection (22) applies as a consequence. (25) If section 28 of the other Act comes into force before section 34 of this Act, then that section 34 is repealed. (26) If section 34 of this Act comes into force before section 28 of the other Act, then that section 28 is repealed.
2011-2012
Croissance économique et pr (27) If section 28 of the other Act comes into force on the same day as section 34 of this Act, then that section 28 is deemed to have come into force before that section 34 and subsection (25) applies as a consequence. (28) If section 29 of the other Act comes into force before section 35 of this Act, then that section 35 is repealed. (29) If section 35 of this Act comes into force before section 29 of the other Act, then that section 29 is repealed. (30) If section 29 of the other Act comes into force on the same day as section 35 of this Act, then that section 29 is deemed to have come into force before that section 35 and subsection (28) applies as a consequence. (31) If section 30 of the other Act comes into force before section 36 of this Act, then that section 36 is repealed. (32) If section 36 of this Act comes into force before section 30 of the other Act, then that section 30 is repealed. (33) If section 30 of the other Act comes into force on the same day as section 36 of this Act, then that section 30 is deemed to have come into force before that section 36 and subsection (31) applies as a consequence. (34) If section 31 of the other Act comes into force before section 37 of this Act, that section 37 is replaced by the following: 37. (1) Part 1 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in column 1, a corresponding reference to “CPAFTA” in column 2 and a corresponding reference to “Panama Tariff rates of customs duty under the Customs Tariff” in column 3. (2) Part 2 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “CPAFTA” in column 1 and a corresponding reference to “Article 4.01” in column 2.
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Canada–Panama Econom
(3) Part 3 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in column 1 and a corresponding reference to “paragraph 10 of Article 5.02 of CPAFTA” in column 2. (4) Part 4 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in column 1 and a corresponding reference to “CPAFTA” in column 2. (5) Part 5 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “CPAFTA” in column 1 a corresponding reference to “Chapter Four” in column 2. (35) If section 37 of this Act comes into force before section 31 of the other Act, then that section 31 is replaced by the following: 31. (1) Part 1 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in column 1, a corresponding reference to “CJFTA” in column 2 and a corresponding reference to “Jordan Tariff rates of customs duty under the Customs Tariff” in column 3. (2) Part 2 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “CJFTA” in column 1 and a corresponding reference to “Article 5-11” in column 2. (3) Part 3 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in column 1 and a corresponding reference to “paragraph 10 of Article 6-2 of CJFTA” in column 2. (4) Part 4 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in column 1 and a corresponding reference to “CJFTA” in column 2.
Croissance économique et pr
2011-2012
(5) Part 5 of the schedule to the Act is amended by adding, in alphabetical order, a reference to “CJFTA” in column 1 and a corresponding reference to “Chapter Five” in column 2. (36) If section 31 of the other Act comes into force on the same day as section 37 of this Act, then that section 31 is deemed to have come into force before that section 37 and subsection (34) applies as a consequence. (37) If section 33 of the other Act comes into force before section 39 of this Act, then that section 39 is replaced by the following: 39. Section 5 of the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (38) If section 39 of this Act comes into force before section 33 of the other Act, then that section 33 is replaced by the following: 33. Section 5 of the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (39) If section 33 of the other Act comes into force on the same day as section 39 of this Act, then that section 33 is deemed to have come into force before that section 39 and subsection (37) applies as a consequence. (40) On the first day on which both section 34 of the other Act and section 40 of this Act are in force, paragraph 14(2)(c) of the Customs Tariff is replaced by the following: (c) by way of compensation for any action taken under any of the following provisions: (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2), (v) subsection 70(2), (vi) subsection 71(2), (vii) subsection 71.01(1), (viii) subsection 71.1(2),
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(ix) subsection 71.41(1), (x) subsection 71.5(1), (xi) subsection 71.6(1), (xii) subsection 72(1), (xiii) subsection 75(1), (xiv) subsection 76(1), (xv) subsection 76.1(1), (xvi) subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act. (41) On the first day on which both section 35 of the other Act and section 41 of this Act are in force, section 27 of the Customs Tariff is replaced by the following: Abbreviations
“AUT” « TAU »
27. The following abbreviations, as defined below, apply in the List of Tariff Provisions and the “F” Staging List. “AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement Tariff.
“COLT” « TCOL »
“CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
“JT” « TJ »
“LDCT” « TPMD »
“MT” « TM »
“COLT” refers to the Colombia Tariff. “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff. “JT” refers to the Jordan Tariff. “LDCT” refers to the Least Developed Country Tariff. “MT” refers to the Mexico Tariff.
Croissance économique et pr
2011-2012 “MUST” « TMÉU »
“NT” « TN »
“NZT” « TNZ »
“PAT” « TPA »
“PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
“MUST” refers to the Mexico–United States Tariff. “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PAT” refers to the Panama Tariff. “PT” refers to the Peru Tariff. “SLT” refers to the Switzerland–Liechtenstein Tariff. “UST” refers to the United States Tariff. (42) On the first day on which both section 38 of the other Act and section 47 of this Act are in force, section 79 of the Customs Tariff is replaced by the following:
Goods in transit
79. An order made under any of the following provisions may provide that goods that are in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1); (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2); (g) subsection 71.01(1); (h) subsection 71.1(2); (i) subsection 71.41(1); (j) subsection 71.5(1); (k) subsection 71.6(1); (l) subsection 72(1); (m) subsection 75(1); (n) subsection 76(1); (o) subsection 76.1(1).
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(43) If section 39 of the other Act comes into force before section 48 of this Act, then that section 48 is replaced by the following: 48. (1) Paragraph 133(j) of the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (2) Paragraph 133(j.1) of the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (44) If section 48 of this Act comes into force before section 39 of the other Act, then that section 39 is replaced by the following: 39. (1) Paragraph 133(j) of the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (2) Paragraph 133(j.1) of the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (45) If section 39 of the other Act comes into force on the same day as section 48 of this Act, then that section 39 is deemed to have come into force before that section 48 and subsection (43) applies as a consequence. (46) If subsection 40(2) of the other Act comes into force before subsection 49(3) of this Act, then that subsection 49(3) is replaced by the following: (3) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (47) If subsection 49(3) of this Act comes into force before subsection 40(2) of the other Act, then that subsection 40(2) is replaced by the following: (2) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries.
2011-2012
Croissance économique et pr (48) If subsection 40(2) of the other Act comes into force on the same day as subsection 49(3) of this Act, then that subsection 40(2) is deemed to have come into force before that subsection 49(3) and subsection (46) applies as a consequence. (49) If subsection 40(3) of the other Act comes into force before subsection 49(5) of this Act, then that subsection 49(5) is replaced by the following: (5) The Description of Goods of tariff item No. 9992.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Panama” in the list of countries. (50) If subsection 49(5) of this Act comes into force before subsection 40(3) of the other Act, then that subsection 40(3) is replaced by the following: (3) The Description of Goods of tariff item No. 9992.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by adding, in alphabetical order, a reference to “Jordan” in the list of countries. (51) If subsection 40(3) of the other Act comes into force on the same day as subsection 49(5) of this Act, then that subsection 40(3) is deemed to have come into force before that subsection 49(5) and subsection (49) applies as a consequence. (52) If section 41 of the other Act comes into force before section 50 of this Act, then that section 50 is replaced by the following: 50. The schedule to the Department of Human Resources and Skills Development Act is amended by adding the following in alphabetical order: The Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010, as amended from time to time in accordance with Article 22 of that Agreement.
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(53) If section 50 of this Act comes into force before section 41 of the other Act, then that section 41 is replaced by the following: 41. The schedule to the Department of Human Resources and Skills Development Act is amended by adding the following in alphabetical order: The Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009, as amended from time to time in accordance with Article 22 of that Agreement. (54) If section 41 of the other Act comes into force on the same day as section 50 of this Act, then that section 41 is deemed to have come into force before that section 50 and subsection (52) applies as a consequence. (55) If section 42 of the other Act comes into force before section 55 of this Act, then that section 55 is repealed. (56) If section 55 of this Act comes into force before section 42 of the other Act, then that section 42 is repealed. (57) If section 42 of the other Act comes into force on the same day as section 55 of this Act, then that section 42 is deemed to have come into force before that section 55 and subsection (55) applies as a consequence. (58) If section 43 of the other Act comes into force before section 56 of this Act, then that section 56 is replaced by the following: 56. Schedule VII to the Act is amended by adding the following in alphabetical order: Free Trade Agreement between Canada and the Republic of Panama, done at Ottawa on May 14, 2010. (59) If section 56 of this Act comes into force before section 43 of the other Act, then that section 43 is replaced by the following: 43. Schedule VII to the Act is amended by adding the following in alphabetical order:
Croissance économique et pr
2011-2012
Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, signed on June 28, 2009. (60) If section 43 of the other Act comes into force on the same day as section 56 of this Act, then that section 43 is deemed to have come into force before that section 56 and subsection (58) applies as a consequence. Bill C-13 and Canada–Jordan Economic Growth and Prosperity Act
63. (1) Subsections (2) to (6) apply if Bill C-13, introduced in the 1st session of the 41st Parliament and entitled the Keeping Canada’s Economy and Jobs Growing Act (in this section referred to as the “first Act”), receives royal assent and a Bill entitled the Canada– Jordan Economic Growth and Prosperity Act (in this section referred to as the “second Act”) is introduced in the 1st session of 41st Parliament and receives royal assent.
(2) On the first day on which subsection 113(2) of the first Act, section 34 of the second Act and section 40 of this Act are all in force, paragraph 14(2)(c) of the Customs Tariff is replaced by the following: (c) by way of compensation for any action taken under any of the following provisions: (i) subsection 55(1), (ii) section 60, (iii) subsection 63(1), (iv) subsection 69(2), (v) subsection 70(2), (vi) subsection 71(2), (vii) subsection 71.01(1), (viii) subsection 71.1(2), (ix) subsection 71.41(1), (x) subsection 71.5(1), (xi) subsection 71.6(1), (xii) subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act.
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(3) On the first day on which section 116 of the first Act, section 35 of the second Act and section 41 of this Act are all in force, section 27 of the Customs Tariff is replaced by the following: Abbreviations
“AUT” « TAU »
27. The following abbreviations, as defined below, apply in the schedule. “AUT” refers to the Australia Tariff.
“CCCT” « TPAC »
“CCCT” refers to the Commonwealth Caribbean Countries Tariff.
“CIAT” « TACI »
“CIAT” refers to the Canada–Israel Agreement Tariff.
“COLT” « TCOL »
“CRT” « TCR »
“CT” « TC »
“GPT” « TPG »
“IT” « TI »
“JT” « TJ »
“COLT” refers to the Colombia Tariff. “CRT” refers to the Costa Rica Tariff. “CT” refers to the Chile Tariff. “GPT” refers to the General Preferential Tariff. “IT” refers to the Iceland Tariff. “JT” refers to the Jordan Tariff.
“LDCT” « TPMD »
“LDCT” refers to the Least Developed Country Tariff.
“MFN” « NPF »
“MFN” refers to the Most-Favoured-Nation Tariff.
“MT” « TM »
“MUST” « TMÉU »
“NT” « TN »
“NZT” « TNZ »
“PAT” « TPA »
“MT” refers to the Mexico Tariff. “MUST” refers to the Mexico–United States Tariff. “NT” refers to the Norway Tariff. “NZT” refers to the New Zealand Tariff. “PAT” refers to the Panama Tariff.
Croissance économique et pr
2011-2012 “PT” « TP »
“SLT” « TSL »
“UST” « TÉU »
“PT” refers to the Peru Tariff. “SLT” refers to the Switzerland–Liechtenstein Tariff. “UST” refers to the United States Tariff. (4) On the first day on which section 129 of the first Act, section 38 of the second Act and section 47 of this Act are all in force, section 79 of the Customs Tariff is replaced by the following:
Goods in transit
79. An order made under any of the following provisions may provide that goods that are in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time: (a) subsection 53(2); (b) subsection 55(1); (c) section 60; (d) subsection 63(1); (e) subsection 69(2); (f) subsection 70(2); (g) subsection 71.01(1); (h) subsection 71.1(2); (i) subsection 71.41(1); (j) subsection 71.5(1); (k) subsection 71.6(1). (5) If subsection 138(1) of the first Act comes into force before subsection 40(2) of the second Act and subsection 49(3) of this Act, then subsections 62(46) to (48) of this Act are deemed never to have produced their effects. (6) If subsection 44(2), (7), (11) or (13) of the second Act produces its effects on the same day that, respectively, subsection 61(2), (13), (17) or (22) of this Act produces its effects, then that subsection of this Act is deemed never to have produced its effects.
C. 26
SOR/2011-191
64. (1) In this section, “Order” means the Order Amending the Schedule to the Customs Tariff (Harmonized System Conversion, 2012), SOR/2011-191.
Canada–Panama Econom
(2) If section 1 of the Order comes into force before subsection 49(1) of this Act, then (a) Schedule 4 to this Act is amended by deleting tariff item Nos. 0209.00.21, 0209.00.22, 0209.00.24, 0401.30.20, 0407.00.12 and 0407.00.19; and (b) Schedule 5 to this Act is amended by deleting tariff item Nos. 0209.00.23, 0401.30.10, 0407.00.11, 0407.00.18 and 2403.10.00 and the rates of customs duty and staging categories set out with respect to each of those tariff items in that Schedule. (3) If section 1 of the Order comes into force on the same day as subsection 49(1) of this Act, then that subsection 49(1) is deemed to have come into force before that section 1. (4) If section 5 of the Order comes into force before subsection 49(1) of this Act, then (a) Schedule 4 to this Act is amended by adding, in numerical order, tariff item Nos. 0209.90.10, 0209.90.20, 0209.90.40, 0401.40.20, 0401.50.20, 0407.11.12, 0407.11.92, 0407.21.20 and 0407.90.12; and (b) Schedule 5 to this Act is amended by adding, in numerical order, the tariff items set out in Schedule 10 to this Act and the rates of customs duty and staging categories set out with respect to each of those tariff items in that Schedule 10. (5) If subsection 49(1) of this Act comes into force before section 5 of the Order, then, on the day on which that section 5 comes into force, the tariff provisions that are added by that section 5 to the List of Tariff Provisions set out in the schedule to the Customs Tariff are amended by (a) adding in the column “Preferential Tariff / Initial Rate”, above the reference to “GPT”, a reference to “PAT:”;
2011-2012
Croissance économique et pr (b) adding in the column “Preferential Tariff / Final Rate”, above the reference to “GPT”, a reference to “PAT:”; (c) adding in the column “Preferential Tariff / Initial Rate” a reference to “Free” after the abbreviation “PAT”, and adding in the column “Preferential Tariff / Final Rate” a reference to “Free (A)” after the abbreviation “PAT”, for all tariff items except tariff item Nos. 0209.90.10, 0209.90.20, 0209.90.40, 0401.40.20, 0401.50.20, 0407.11.12, 0407.11.92, 0407.21.20, 0407.90.12 and the tariff items set out in Schedule 10 to this Act; (d) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final Rate” a reference to “N/A” after the abbreviation “PAT” for tariff item Nos. 0209.90.10, 0209.90.20, 0209.90.40, 0401.40.20, 0401.50.20, 0407.11.12, 0407.11.92, 0407.21.20 and 0407.90.12; and (e) adding in the columns “Preferential Tariff / Initial Rate” and “Preferential Tariff / Final Rate” after the abbreviation “PAT”, for each tariff item set out in Schedule 10 to this Act, the rates of customs duty and staging categories set out with respect to that tariff item in that Schedule.
(6) If section 5 of the Order comes into force on the same day as subsection 49(1) of this Act, then that section 5 is deemed to have come into force before that subsection 49(1) and subsection (4) applies as a consequence. COMING INTO FORCE Order in council
65. This Act, other than sections 60 to 64, comes into force on a day to be fixed by order of the Governor in Council.
C. 26
Canada–Panama Economic Grow SCHEDULE 1 (Section 26) SCHEDULE 2 (Paragraph 5(4)(e))
Column 1
Column 2
Provisions
Agreement
Article 9.20 or 9.21
Free Trade Agreement between Canada and the Republic of Panama, done at Ottawa on May 14, 2010
2011-2012
Croissance économique et prospérit SCHEDULE 2 (Section 29) SCHEDULE (Section 20.1) PART 1
ENVIRONMENTAL COOPERATION TREATIES The Agreement on Environmental Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement. The North American Agreement on Environmental Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 48 of that Agreement. PART 2 LABOUR COOPERATION TREATIES The Agreement on Labour Cooperation between Canada and the Republic of Colombia, signed on November 21, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010, as amended from time to time in accordance with Article 22 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Peru, signed on May 29, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation entered into between the Government of Canada and the Government of the Republic of Chile and signed on February 6, 1997, as amended from time to time in accordance with Article 47 of that Agreement. The North American Agreement on Labor Cooperation entered into between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America and signed on September 14, 1993, as amended from time to time in accordance with Article 52 of that Agreement.
C. 26
Canada–Panama Economic Grow SCHEDULE 3 (Section 37)
SCHEDULE (Subsection 2(1), section 42.4, paragraphs 43.1(1)(b) and 74(1)(c.11) and subsection 164(1.1)) PART 1 Column 1 Country or Territory
Column 2 Agreement
Column 3 Tariff
Chile
CCFTA
Chile Tariff rates of customs duty under the Customs Tariff
Colombia
CCOFTA
Colombia Tariff rates of customs duty under the Customs Tariff
Costa Rica
CCRFTA
Costa Rica Tariff rates of customs duty under the Customs Tariff
EFTA State
CEFTA
Iceland Tariff, Norway Tariff or Switzerland– Liechtenstein Tariff rates of customs duty under the Customs Tariff
Israel or another CIFTA beneficiary
CIFTA
Canada–Israel Agreement Tariff rates of customs duty under the Customs Tariff
NAFTA country
NAFTA
United States Tariff, Mexico Tariff or Mexico–United States Tariff rates of customs duty under the Customs Tariff
Panama
CPAFTA
Panama Tariff rates of customs duty under the Customs Tariff
Peru
CPFTA
Peru Tariff rates of customs duty under the Customs Tariff
PART 2 Column 1 Agreement
Column 2 Provision
CCFTA CCOFTA CCRFTA CPAFTA CPFTA NAFTA
Article Article Article Article Article Article
E-14 423 V.14 4.01 423 514
2011-2012
Croissance économique et prospérit PART 3
Column 1 Country or Territory
Column 2 Provision
Chile
paragraph 1 of Article E-09 of CCFTA
Colombia
paragraph 1 of Article 419 of CCOFTA
Costa Rica
paragraph 1 of Article V.9 or paragraph 10 of Article IX.2 of CCRFTA
EFTA State
Article 28(2) of Annex C of CEFTA
NAFTA country
paragraph 1 of Article 509 of NAFTA
Panama
paragraph 10 of Article 5.02 of CPAFTA
Peru
paragraph 1 of Article 419 of CPFTA PART 4
Column 1 Country or Territory
Column 2 Agreement
Colombia Costa Rica EFTA State Panama Peru
CCOFTA CCRFTA CEFTA CPAFTA CPFTA PART 5
Column 1 Agreement
Column 2 Chapter or Provision
CCFTA CCOFTA CCRFTA CEFTA CPAFTA CPFTA NAFTA
Chapters C and E Chapter Four Chapters III and V Chapters II and Annex C Chapter Four Chapter Four Chapters Three and Five
C. 26
Canada–Panama Economic Grow
SCHEDU (Paragraphs 49( 0105.11.21 0105.11.22 0105.94.10 0105.94.91 0105.94.92 0105.99.12 0207.11.10 0207.11.91 0207.11.92 0207.12.10 0207.12.91 0207.12.92 0207.13.10 0207.13.91 0207.13.92 0207.13.93 0207.14.10 0207.14.22 0207.14.91 0207.14.92 0207.14.93 0207.24.12 0207.24.92 0207.25.12 0207.25.92 0207.26.20 0207.26.30 0207.27.12 0207.27.92 0207.27.93 0209.00.21 0209.00.22 0209.00.24 0210.99.11 0210.99.12 0210.99.13 0210.99.15 0210.99.16 0401.10.20 0401.20.20 0401.30.20 0402.10.20 0402.21.12 0402.21.22 0402.29.12 0402.29.22 0402.91.20 0402.99.20 0403.10.20 0403.90.12 0403.90.92 0404.10.22
0404.90.20 0405.10.20 0405.20.20 0405.90.20 0406.10.20 0406.20.12 0406.20.92 0406.30.20 0406.40.20 0406.90.12 0406.90.22 0406.90.32 0406.90.42 0406.90.52 0406.90.62 0406.90.72 0406.90.82 0406.90.92 0406.90.94 0406.90.96 0406.90.99 0407.00.12 0407.00.19 0408.11.20 0408.19.20 0408.91.20 0408.99.20 1517.90.22 1601.00.22 1601.00.32 1602.20.22 1602.20.32 1602.31.13 1602.31.14 1602.31.94 1602.31.95 1602.32.13 1602.32.14 1602.32.94 1602.32.95 1701.12.90 1701.91.10 1701.99.10 1702.11.00 1702.19.00 1702.30.90 1702.40.00 1702.60.00 1702.90.11 1702.90.12 1702.90.13 1702.90.14
1702.90.15 1702.90.16 1702.90.17 1702.90.18 1702.90.21 1702.90.29 1702.90.40 1702.90.50 1702.90.61 1702.90.69 1702.90.70 1702.90.81 1702.90.89 1702.90.90 1703.10.10 1806.20.22 1806.90.12 1901.20.12 1901.20.22 1901.90.32 1901.90.34 1901.90.52 1901.90.54 2105.00.92 2106.90.32 2106.90.34 2106.90.52 2106.90.94 2202.90.43 2309.90.32 3502.11.20 3502.19.20 3504.00.11 3504.00.12 3504.00.90 9801.20.00 9826.10.00 9826.20.00 9826.30.00 9826.40.00 9897.00.00 9898.00.00 9899.00.00 9904.00.00 9938.00.00 9987.00.00
2011-2012
Croissance économique et prospérit
ANNE (alinéas 49 0105.11.21 0105.11.22 0105.94.10 0105.94.91 0105.94.92 0105.99.12 0207.11.10 0207.11.91 0207.11.92 0207.12.10 0207.12.91 0207.12.92 0207.13.10 0207.13.91 0207.13.92 0207.13.93 0207.14.10 0207.14.22 0207.14.91 0207.14.92 0207.14.93 0207.24.12 0207.24.92 0207.25.12 0207.25.92 0207.26.20 0207.26.30 0207.27.12 0207.27.92 0207.27.93 0209.00.21 0209.00.22 0209.00.24 0210.99.11 0210.99.12 0210.99.13 0210.99.15 0210.99.16 0401.10.20 0401.20.20 0401.30.20 0402.10.20 0402.21.12 0402.21.22 0402.29.12 0402.29.22 0402.91.20 0402.99.20 0403.10.20 0403.90.12 0403.90.92 0404.10.22
0404.90.20 0405.10.20 0405.20.20 0405.90.20 0406.10.20 0406.20.12 0406.20.92 0406.30.20 0406.40.20 0406.90.12 0406.90.22 0406.90.32 0406.90.42 0406.90.52 0406.90.62 0406.90.72 0406.90.82 0406.90.92 0406.90.94 0406.90.96 0406.90.99 0407.00.12 0407.00.19 0408.11.20 0408.19.20 0408.91.20 0408.99.20 1517.90.22 1601.00.22 1601.00.32 1602.20.22 1602.20.32 1602.31.13 1602.31.14 1602.31.94 1602.31.95 1602.32.13 1602.32.14 1602.32.94 1602.32.95 1701.12.90 1701.91.10 1701.99.10 1702.11.00 1702.19.00 1702.30.90 1702.40.00 1702.60.00 1702.90.11 1702.90.12 1702.90.13 1702.90.14
1702.90.15 1702.90.16 1702.90.17 1702.90.18 1702.90.21 1702.90.29 1702.90.40 1702.90.50 1702.90.61 1702.90.69 1702.90.70 1702.90.81 1702.90.89 1702.90.90 1703.10.10 1806.20.22 1806.90.12 1901.20.12 1901.20.22 1901.90.32 1901.90.34 1901.90.52 1901.90.54 2105.00.92 2106.90.32 2106.90.34 2106.90.52 2106.90.94 2202.90.43 2309.90.32 3502.11.20 3502.19.20 3504.00.11 3504.00.12 3504.00.90 9801.20.00 9826.10.00 9826.20.00 9826.30.00 9826.40.00 9897.00.00 9898.00.00 9899.00.00 9904.00.00 9938.00.00 9987.00.00
C. 26
Canada–Panama Economic Grow
SCHEDU (Paragraphs 49( Tariff Item
Initial Rate
0105.99.11 0201.10.20 0201.20.20 0201.30.20 0202.10.20 0202.20.20 0202.30.20 0207.24.11 0207.24.91 0207.25.11 0207.25.91 0207.26.10 0207.27.91 0209.00.23 0210.99.14 0210.99.19 0401.10.10 0401.20.10 0401.30.10 0402.91.10 0402.99.10 0403.10.10 0403.90.11 0403.90.91 0404.90.10 0405.10.10 0405.20.10 0406.10.10 0406.20.11 0406.20.91 0406.30.10 0406.40.10 0406.90.11 0406.90.21 0406.90.31 0406.90.41 0406.90.51 0406.90.61 0406.90.71 0406.90.81 0406.90.91 0406.90.93 0406.90.95 0406.90.98 0407.00.11
1.90¢/kg 26.5% 26.5% 26.5% 26.5% 26.5% 26.5% 5% but not l 5% but not l 5% but not l 5% but not l 5% but not l 5% but not l 5% but not l 5% but not l 2.5% 7.5% 7.5% 7.5% 2.84¢/kg 2.84¢/kg 6.5% 3.32¢/kg 7.5% 3% 11.38¢/kg 7% 3.32¢/kg 2.84¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 2.84¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 3.32¢/kg 1.51¢/dozen
2011-2012
Croissance économique et prospérit
Tariff Item 0407.00.18 0408.11.10 0408.19.10 0408.91.10 0408.99.10 1517.90.21 1601.00.11 1601.00.19 1602.31.11 1602.31.12 1602.31.91 1602.31.92 1602.31.93 1602.32.11 1602.32.12 1602.32.91 1602.32.93 1701.91.90 1701.99.90 1703.90.10 1704.10.00 1704.90.20 1704.90.90 1806.20.21 1806.90.11 1901.20.11 1901.20.21 1901.90.31 1901.90.33 1901.90.51 1901.90.53 1905.90.51 2103.20.10 2103.20.90 2105.00.91 2106.90.31 2106.90.33 2106.90.51 2106.90.93 2202.90.41 2202.90.42 2207.10.10 2207.10.90 2208.60.00 2208.90.21 2208.90.29 2309.90.20 2309.90.31
Initial Rate 1.51¢/dozen 8.5% 6.63¢/kg 8.5% 6.63¢/kg 7.5% 12.5% 12.5% 11% 7.5% 12.5% 2.5% 5% but not l 11% 7.5% 9.5% 5% but not l $30.86/tonne $30.86/tonne 12.5% 9.5% 10% 9.5% 5% 5% 4% 3% 6.5% 6.5% 6.5% 6.5% 14.5% 12.5% 12.5% 6.5% 5% 5% 6.68¢/kg 7% 11% 7.5% 2.28¢/litre of 4.92¢/litre of 12.28¢/litre o 12.28¢/litre o 4.92¢/litre of 10.5% 2%
60 Tariff Item 2402.20.00 2402.90.00 2403.10.00 2403.91.90 2403.99.10 2403.99.20 2403.99.90 3502.11.10 3502.19.10
C. 26
Canada–Panama Economic Grow Initial Rate 12.5% 6.5% 4% 13% 5% 9.5% 9.5% 8.5% 6.63¢/kg
2011-2012
Croissance économique et prospérit
ANNE (alinéas 49 Numéro tarifaire
Taux initial
0105.99.11 0201.10.20 0201.20.20 0201.30.20 0202.10.20 0202.20.20 0202.30.20 0207.24.11 0207.24.91 0207.25.11 0207.25.91 0207.26.10 0207.27.91 0209.00.23 0210.99.14 0210.99.19 0401.10.10 0401.20.10 0401.30.10 0402.91.10 0402.99.10 0403.10.10 0403.90.11 0403.90.91 0404.90.10 0405.10.10 0405.20.10 0406.10.10 0406.20.11 0406.20.91 0406.30.10 0406.40.10 0406.90.11 0406.90.21 0406.90.31 0406.90.41 0406.90.51 0406.90.61 0406.90.71 0406.90.81 0406.90.91 0406.90.93 0406.90.95 0406.90.98 0407.00.11
1,90 ¢/kg 26,5 % 26,5 % 26,5 % 26,5 % 26,5 % 26,5 % 5 % mais pas 5 % mais pas 5 % mais pa 5 % mais pa 5 % mais pa 5 % mais pa 5 % mais pa 5 % mais pa 2,5 % 7,5 % 7,5 % 7,5 % 2,84 ¢/kg 2,84 ¢/kg 6,5 % 3,32 ¢/kg 7,5 % 3% 11,38 ¢/kg 7% 3,32 ¢/kg 2,84 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 2,84 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 3,32 ¢/kg 1,51 ¢/douz.
C. 26
Numéro tarifaire 0407.00.18 0408.11.10 0408.19.10 0408.91.10 0408.99.10 1517.90.21 1601.00.11 1601.00.19 1602.31.11 1602.31.12 1602.31.91 1602.31.92 1602.31.93 1602.32.11 1602.32.12 1602.32.91 1602.32.93 1701.91.90 1701.99.90 1703.90.10 1704.10.00 1704.90.20 1704.90.90 1806.20.21 1806.90.11 1901.20.11 1901.20.21 1901.90.31 1901.90.33 1901.90.51 1901.90.53 1905.90.51 2103.20.10 2103.20.90 2105.00.91 2106.90.31 2106.90.33 2106.90.51 2106.90.93 2202.90.41 2202.90.42 2207.10.10 2207.10.90 2208.60.00 2208.90.21 2208.90.29 2309.90.20 2309.90.31
Canada–Panama Economic Grow
Taux initial 1,51 ¢/douz. 8,5 % 6,63 ¢/kg 8,5 % 6,63 ¢/kg 7,5 % 12,5 % 12,5 % 11 % 7,5 % 12,5 % 2,5 % 5 % mais pas 11 % 7,5 % 9,5 % 5 % mais pas 30,86 $/tonne 30,86 $/tonne 12,5 % 9,5 % 10 % 9,5 % 5% 5% 4% 3% 6,5 % 6,5 % 6,5 % 6,5 % 14,5 % 12,5 % 12,5 % 6,5 % 5% 5% 6,68 ¢/kg 7% 11 % 7,5 % 12,28 ¢/litre 4,92 ¢/litre d 12,28 ¢/litre 12,28 ¢/litre 4,92 ¢/litre d 10,5 % 2%
2011-2012 Numéro tarifaire 2402.20.00 2402.90.00 2403.10.00 2403.91.90 2403.99.10 2403.99.20 2403.99.90 3502.11.10 3502.19.10
Croissance économique et prospérit Taux initial 12,5 % 6,5 % 4% 13 % 5% 9,5 % 9,5 % 8,5 % 6,63 ¢/kg
C. 26
Canada–Panama Economic Grow SCHEDULE 6 (Section 50)
SCHEDULE (Subsections 19.1(1) and (2)) TREATIES The Agreement on Labour Cooperation between Canada and the Republic of Colombia, signed on November 21, 2008, as amended from time to time in accordance with Article 30 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Panama, done at Ottawa on May 13, 2010, as amended from time to time in accordance with Article 22 of that Agreement. The Agreement on Labour Cooperation between Canada and the Republic of Peru, signed on May 29, 2008, as amended from time to time in accordance with Article 30 of that Agreement.
2011-2012
Croissance économique et prospérit SCHEDULE 7 (Section 54) SCHEDULE (Subsection 5(3.4)) COUNTRIES
Colombia Panama Peru
C. 26
Canada–Panama Economic Grow SCHEDULE 8 (Section 56) SCHEDULE VII (Section 89.7)
Free Trade Agreement between Canada and the Republic of Panama, done at Ottawa on May 14, 2010.
2011-2012
Croissance économique et prospérit SCHEDULE 9 (Section 59) SCHEDULE (Paragraph 3(2)(f.1))
Column 1
Column 2
Country
Tariff
Panama
Panama Tariff in the List of Tariff Provisions set out in the schedule to the Customs Tariff
C. 26
Canada–Panama Economic Grow
SCHEDULE 10 (Paragraphs 64(4)(b) and (5)(c) and (e)) Tariff Item 0209.90.30
0401.40.10 0401.50.10 0407.11.11 0407.11.91 0407.21.10 0407.90.11 2403.11.00 2403.19.00
Initial Rate 5% but not less than 4.74¢/kg or more than 9.48¢/kg 7.5% 7.5% 1.51¢/dozen 1.51¢/dozen 1.51¢/dozen 1.51¢/dozen 4% 4%
Final Rate Free (T2)
Free Free Free Free Free Free Free Free
(T2) (T2) (T2) (T2) (T2) (T2) (T1) (T1)
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
|
First Session, Forty-first Parliament, 60-61 Elizabeth II, 2011-2012
STATUTES OF CANADA 2012
CHAPTER 27 An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act and the Income Tax Regulations
ASSENTED TO 14th DECEMBER, 2012 BILL C-44
RECOMMENDATION His Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act and the Income Tax Regulations”.
SUMMARY This enactment amends the Canada Labour Code to provide an employee with the right to take leave when a child of the employee is critically ill or dies or disappears as the probable result of a crime. It also makes technical amendments to that Act. Furthermore, the enactment amends the Employment Insurance Act to provide benefits to claimants who are providing care or support to their critically ill child and to facilitate access to sickness benefits for claimants who are in receipt of parental benefits. Lastly, the enactment makes consequential amendments to the Income Tax Act and the Income Tax Regulations.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
60-61 ELIZABETH II —————— CHAPTER 27 An Act to amend the Canada Labour Code and the Employment Insurance Act and to make consequential amendments to the Income Tax Act and the Income Tax Regulations [Assented to 14th December, 2012] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Helping Families in Need Act.
R.S., c. L-2
CANADA LABOUR CODE
1993, c. 42, s. 26
2. (1) The heading of Division VII of Part III of the Canada Labour Code is replaced by the following: REASSIGNMENT, MATERNITY LEAVE, PARENTAL LEAVE, COMPASSIONATE CARE LEAVE AND LEAVE RELATED TO CRITICAL ILLNESS (2) The heading of Division VII of Part III of the Act is replaced by the following: REASSIGNMENT, MATERNITY LEAVE, PARENTAL LEAVE, COMPASSIONATE CARE LEAVE AND LEAVE RELATED TO DEATH OR DISAPPEARANCE 3. Section 206 of the Act is renumbered as subsection 206(1) and is amended by adding the following:
C. 27
Extension of period — child in hospital
(2) If, during the period of 17 weeks following the date of confinement, the child who was born is hospitalized, the period is extended by the number of weeks during which the child is hospitalized.
Limitation
(3) An extension under subsection (2) must not result in the period being longer than 52 weeks.
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4. (1) Section 206.1 of the Act is amended by adding the following after subsection (2): Extension of period
(2.1) The period referred to in subsection (2) is extended by the number of weeks during which the employee is on leave under any of sections 206.3 to 206.5, is absent due to a reason referred to in subsection 239(1) or 239.1(1) or is on leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
Extension of period — child in hospital
(2.2) If the child referred to in subsection (1) is hospitalized during the period referred to in subsection (2), the period is extended by the number of weeks during which the child is hospitalized.
Limitation
(2.3) An extension under subsection (2.1) or (2.2) must not result in the period being longer than 104 weeks.
Interruption
(2.4) The employee may interrupt the leave referred to in subsection (1) in order to permit the employee to take leave under any of sections 206.3 to 206.5, to be absent due to a reason referred to in subsection 239(1) or 239.1(1) or to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
Resumption
(2.5) The leave referred to in subsection (1) resumes immediately after the interruption ends. (2) Section 206.1 of the Act is amended by adding the following after subsection (3):
Exception — sick leave
(4) Except to the extent that it is inconsistent with subsection 239(1.1), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239(1).
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Exception — work-related illness or injury
(5) Except to the extent that it is inconsistent with subsections 239.1(3) and (4), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239.1(1).
Exception — member of reserve force
(6) Despite section 209.1, sections 247.93 to 247.95 apply to an employee who interrupted the leave referred to in subsection (1) in order to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g). 5. The Act is amended by adding the following after section 206.3: Leave Related to Critical Illness
Interpretation
206.4 (1) In this section, “critically ill child”, “parent” and “specialist medical doctor” have the same meanings as in the regulations made under the Employment Insurance Act and “week” has the same meaning as in subsection 206.3(1).
Leave — 37 weeks
(2) Every employee who has completed six consecutive months of continuous employment with an employer and who is the parent of a critically ill child is entitled to and shall be granted a leave of absence from employment of up to 37 weeks in order to care for or support that child if a specialist medical doctor has issued a certificate that (a) states that the child is a critically ill child and requires the care or support of one or more of their parents; and (b) sets out the period during which the child requires that care or support.
Medical practitioner
(3) In the circumstances set out under the Employment Insurance Act, the certificate referred to in subsection (2) may be issued by a member of a class of medical practitioners that is prescribed under that Act.
Period when leave may be taken — child
(4) The period during which the employee may take a leave of absence (a) begins on the first day of the week in which either of the following falls:
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(i) the day on which the first certificate is issued in respect of the child that meets the requirements of subsection (2), or (ii) if the leave begins before the day on which the certificate is issued, the day from which the specialist medical doctor certifies that the child is critically ill; and (b) ends on the last day of the week in which either of the following occurs: (i) the child dies, or (ii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a). Period when leave may be taken — children
(5) If more than one child of the employee is critically ill as a result of the same event, the period during which the employee may take a leave of absence (a) begins on the first day of the week in which either of the following falls: (i) the day on which the first certificate is issued in respect of any of the children that meets the requirements of subsection (2), or (ii) if the leave begins before the day on which the certificate is issued, the first day from which the specialist medical doctor certifies that any of the children is critically ill; and (b) ends on the last day of the week in which either of the following occurs: (i) the last of the children dies, or (ii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a).
Aggregate leave — employees
(6) The aggregate amount of leave that may be taken by employees under this section in respect of the same child — or the same children who are critically ill as a result of the same event — must not exceed 37 weeks during the period referred to in subsection (4) or (5), as the case may be. 6. The Act is amended by adding the following before section 207:
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Code canadien du trava Leave Related to Death or Disappearance
Definitions
“child” « enfant »
“crime” « crime »
“parent” « parent »
206.5 (1) The following definitions apply in this section. “child” means a person who is under 18 years of age. “crime” means an offence under the Criminal Code, other than one that is excluded by the regulations. “parent” with respect to a child, means a person who, in law, is a parent (including an adoptive parent), has the custody of or, in Quebec, parental authority over the child, or is the guardian of or, in Quebec, the tutor to the person of the child, or with whom the child is placed for the purposes of adoption under the laws governing adoption in the province in which the person resides.
Leave — 104 weeks
(2) Every employee who has completed six consecutive months of continuous employment with an employer is entitled to and shall be granted a leave of absence from employment of up to 104 weeks if the employee is the parent of a child who has died and it is probable, considering the circumstances, that the child died as a result of a crime.
Leave — 52 weeks
(3) Every employee who has completed six consecutive months of continuous employment with an employer is entitled to and shall be granted a leave of absence from employment of up to 52 weeks if the employee is the parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as a result of a crime.
Exception
(4) An employee is not entitled to a leave of absence if the employee is charged with the crime or it is probable, considering the circumstances, that the child was a party to the crime.
Period when leave may be taken
(5) The period during which the employee may take a leave of absence (a) begins on the day on which the death or disappearance, as the case may be, occurs; and (b) ends
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(i) in the case of leave under subsection (2), 104 weeks after the day on which the death occurs, or (ii) in the case of leave under subsection (3), 52 weeks after the day on which the disappearance occurs. Disappearance of child
(6) Despite paragraph (5)(b), in the case of a child who disappears and who is subsequently found, the period referred to in subsection (5) ends (a) 14 days after the day on which the child is found, if the child is found during the 52week period, but no later than the end of the 52-week period; or (b) 104 weeks after the day on which the disappearance occurs if subsection (2) applies to the child.
Clarification
(7) For greater certainty, a leave under this section ends on the day on which the circumstances are such that it is no longer probable that the death or disappearance was the result of a crime.
Aggregate leave — employees
(8) The aggregate amount of leave that may be taken by employees under this section in respect of the same death or disappearance of a child — or the same children who die or disappear as a result of the same event — must not exceed 104 weeks in the case of a death or 52 weeks in the case of a disappearance. 7. The Act is amended by adding the following after section 207:
Notification to employer — interruption of parental leave
207.1 (1) An employee who intends to interrupt their parental leave under subsection 206.1(2.4) shall provide the employer with a notice in writing of the interruption before or as soon as possible after it begins.
Notification to employer — resumption of parental leave
(2) The employee shall provide the employer with a notice in writing of the day on which they resume their parental leave before or as soon as possible after that day.
Notification to employer — interruption for child’s hospitalization
207.2 (1) An employee who intends to interrupt their maternity or parental leave in order to return to work as a result of the
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Code canadien du trava hospitalization of his or her child shall provide the employer with a notice in writing of the interruption as soon as possible.
Employer’s decision
(2) The employer shall, within one week after receiving the notice, advise the employee in writing of the employer’s decision to accept or refuse the employee’s return to work.
Refusal
(3) If the employer refuses the interruption or does not advise the employee within the week referred to in subsection (2), the leave under section 206 or 206.1 is extended by the number of weeks during which the child is hospitalized. The aggregate amounts of leave referred to in subsection 206.1(3) and section 206.2 are extended by the same number of weeks.
Medical certificate
(4) The employer may, in writing and no later than 15 days after an employee’s return to work, require the employee to provide a certificate issued by a qualified medical practitioner, as defined in subsection 206.3(1), attesting to the child’s hospitalization.
End of interruption
(5) An employee who intends to return to their maternity or parental leave after an interruption shall, as soon as possible, advise the employer in writing of the date on which the maternity or parental leave is to resume.
Limitation
(6) The extension referred to in subsection (3) applies only once in respect of the same child. 8. The Act is amended by adding the following after section 207.2:
Notice to employer of leave
207.3 (1) Every employee who takes a leave of absence from employment under section 206.4 or 206.5 shall, as soon as possible, provide the employer with a notice in writing of the reasons for the leave and the length of the leave that they intend to take.
Notice of change in length of leave
(2) Every employee who is on a leave of absence from employment under section 206.4 or 206.5 shall, as soon as possible, provide the employer with a notice in writing of any change in the length of the leave that they intend to take.
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Leave of more than four weeks
(3) If the length of the leave is more than four weeks, the notice in writing of any change in the length of the leave shall be provided on at least four weeks’ notice, unless there is a valid reason why that cannot be done.
Documentation
(4) The employer may require the employee to provide documentation in support of the reasons for the leave and of any change in the length of leave that the employee intends to take.
Return to work postponed
(5) If an employee who takes a leave of more than four weeks wishes to shorten the length of the leave but does not provide the employer with four weeks’ notice, then the employer may postpone the employee’s return to work for a period of up to four weeks after the day on which the employee informs the employer of the new end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer.
Deemed part of leave
(6) The period of the postponement is deemed to be part of the leave.
2003, c. 15, s. 28
9. Subsection 209.3(2) of the Act is replaced by the following:
Prohibition
(2) The prohibitions set out in subsection (1) also apply in respect of an employee who has taken a leave of absence under any of sections 206.3 to 206.5.
R.S., c. 9 (1st Supp.), s. 10
10. (1) The portion of section 209.4 of the French version of the Act before paragraph (a) is replaced by the following:
Règlements
209.4 Le gouverneur en conseil peut, par règlement :
1993, c. 42, s. 31
(2) Paragraph 209.4(a) of the Act is replaced by the following:
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(a) specifying the absences from employment that are deemed not to have interrupted continuous employment referred to in sections 206, 206.1, 206.4 and 206.5; R.S., c. 9 (1st Supp.), s. 10; 2003, c. 15, s. 29
(3) Paragraphs 209.4(a.1) to (c) of the French version of the Act are replaced by the following:
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Code canadien du trava a.1) pour l’application de l’alinéa d) de la définition de « membre de la famille » au paragraphe 206.3(1), préciser les catégories de personnes; b) pour l’application de l’article 208, préciser ce qui constitue, ou non, une fonction essentielle; c) pour l’application du paragraphe 209.1(2), préciser ce qui ne constitue pas un motif valable pour ne pas réintégrer un employé dans son poste antérieur; (4) Section 209.4 of the Act is amended by striking out “and” at the end of paragraph (b) and by adding the following after paragraph (c): (d) enlarging the meaning of “critically ill child” in subsection 206.4(1) and prescribing other persons to be included in the meanings of “parent” and “specialist medical doctor” in that subsection; (e) defining or determining what constitutes a same event in subsections 206.4(5) and (6); (f) prescribing offences to be excluded from the definition of “crime” in subsection 206.5(1) and prescribing other persons to be included in the definition of “parent” in that subsection; (g) prescribing periods of consecutive months of continuous employment that are shorter than six months for the purposes of subsections 206.4(2) and 206.5(2) and (3); (h) prescribing cases, other than those set out in subsection 206.5(4), in which an employee is not entitled to a leave of absence and cases in which an employee is entitled to a leave of absence even if they are charged with the crime; (i) prescribing documentation that the employer may require under subsection 207.3(4); (j) specifying the circumstances in which a leave under this Division may be interrupted; and (k) extending the period within which a leave under this Division may be taken.
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1993, c. 42, s. 32(1)
11. Paragraph 239(1)(b) of the Act is replaced by the following:
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(b) the period of absence does not exceed 17 weeks; and 2008, c. 15, s. 1
12. Section 247.9 of the Act is replaced by the following:
Annual vacation
247.9 Despite any term or condition of employment, an employee may postpone their annual vacation until after the day on which a leave of absence that is taken under this Division ends or the day on which a leave under section 206.1 ends, if that leave was interrupted by a leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
1996, c. 23
EMPLOYMENT INSURANCE ACT 13. (1) Section 10 of the Employment Insurance Act is amended by adding the following after subsection (5.1):
Exception
(5.2) A claim for benefits referred to in section 23.2 with respect to a critically ill child or children who are critically ill as a result of the same event must not be regarded as having been made on an earlier day under subsection (4) or (5) if (a) at the time the claim is made, all benefits that may otherwise have been payable in relation to that claim have already been exhausted; (b) the beginning of the period referred to in subsection 23.2(3) or (4) has already been determined with respect to that child or those children and the claim would have the effect of moving the beginning of that period to an earlier date; or (c) the claim is made in any other circumstances set out in the regulations.
2003, c. 15, s. 16(2); 2010, c. 9, s. 2(2) Extension of benefit period — special benefits
(2) Subsections 10(13) to (15) of the Act are replaced by the following: (13) If, during a claimant’s benefit period, (a) regular benefits were not paid to the claimant,
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Code canadien du trava (b) benefits were paid to the claimant for more than one of the reasons mentioned in paragraphs 12(3)(a) to (e) and at least one of those benefits was paid for fewer than the applicable maximum number of weeks established for those reasons, and (c) the maximum total number of weeks established for those reasons is greater than 50, the benefit period is extended so that those benefits may be paid up to that maximum total number of weeks.
Maximum extension under subsections (10) to (13)
(14) Subject to subsection (15), an extension under any of subsections (10) to (13) must not result in a benefit period of more than 104 weeks.
Maximum extension under subsection (13)
(15) Unless the benefit period is also extended under any of subsections (10) to (12.1), an extension under subsection (13) must not result in a benefit period of more than the sum of two weeks and the total of the maximum number of weeks established under subsection 12(3) for each of the benefits paid to the claimant for one of the reasons mentioned in paragraphs 12(3)(a) to (e) during the claimant’s benefit period before it was extended under subsection (13). 14. (1) Subsection 12(3) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d): (e) because the claimant is providing care or support to one or more critically ill children described in subsection 23.2(1), is 35.
2009, c. 33. s. 6
(2) Subsection 12(4.1) of the Act is replaced by the following:
Maximum — compassionate care benefits
(4.1) Even if more than one claim is made under this Act, at least one of which is made under section 23.1 — or even if more than one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 23.1 — for the same reason and in
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respect of the same family member, the maximum number of weeks of benefits payable under this Act in respect of that family member is six weeks during the period of 26 weeks that begins on the first day of the week referred to in paragraph 23.1(4)(a). 2003, c. 15, s. 17(3)
(3) Subsection 12(5) of the Act is replaced by the following:
Maximum — critically ill child
(4.4) Even if more than one claim is made under this Act, at least one of which is made under section 23.2 — or even if more than one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 23.2 — for the same reason and in respect of the same critically ill child, the maximum number of weeks of benefits payable under this Act in respect of that child is 35 weeks during the period of 52 weeks that begins on the first day of the week referred to in paragraph 23.2(3)(a).
Maximum — critically ill children
(4.5) Even if more than one claim is made under this Act, at least one of which is made under section 23.2 — or even if more than one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 23.2 — for the same reason and in respect of the same children who are critically ill as a result of the same event, the maximum number of weeks of benefits payable under this Act in respect of those children is 35 weeks during the period of 52 weeks that begins on the first day of the week referred to in paragraph 23.2(4)(a).
Combined weeks of benefits
(5) In a claimant’s benefit period, the claimant may combine weeks of benefits to which they are entitled because of a reason mentioned in subsection (3), but the maximum number of combined weeks is 50. If the benefit period is extended under subsection 10(13), the maximum number of combined weeks equals the maximum number of weeks in the benefit period calculated under subsection 10(15) less two weeks.
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Code canadien du trava 15. Section 18 of the Act is renumbered as subsection 18(1) and is amended by adding the following:
Exception
(2) A claimant to whom benefits are payable under section 23 is not disentitled under paragraph (1)(b) for failing to prove that he or she would have been available for work were it not for the illness, injury or quarantine. 16. Subsection 21(2) of the Act is replaced by the following:
Limitation
(2) If benefits are payable to a claimant as a result of illness, injury or quarantine and any allowances, money or other benefits are payable to the claimant for that illness, injury or quarantine under a provincial law, the benefits payable to the claimant under this Act shall be reduced or eliminated as prescribed.
2003, c. 15, s. 18
17. Subsections 23(3.2) to (3.4) of the Act are replaced by the following:
Extension of period — special benefits
(3.2) If, during a claimant’s benefit period, (a) regular benefits were not paid to the claimant, (b) benefits were paid to the claimant for more than one of the reasons mentioned in paragraphs 12(3)(a) to (e), (c) the maximum total number of weeks established for those reasons is greater than 50, and (d) benefits were paid for the reason mentioned in paragraph 12(3)(b) but for fewer than the maximum number of weeks established for that reason, the period referred to in subsection (2) is extended so that benefits may be paid up to the maximum number of weeks referred to in paragraph 12(3)(b).
Limitation
(3.3) An extension under subsection (3.2) must not result in the period referred to in subsection (2) being longer than the maximum benefit period calculated under subsection 10(15).
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Limitation
(3.4) An extension under any of subsections 10(10) to (13) must not result in the period referred to in subsection (2) being longer than 104 weeks.
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18. The Act is amended by adding the following after section 23.1: Benefits — critically ill child
23.2 (1) Despite section 18, but subject to this section, benefits are payable to a major attachment claimant, who is the parent of a critically ill child, in order to care for or support that child if a specialist medical doctor has issued a certificate that (a) states that the child is a critically ill child and requires the care or support of one or more of their parents; and (b) sets out the period during which the child requires that care or support.
Medical practitioner
(2) In the circumstances set out in the regulations, the certificate referred to in subsection (1) may be issued by a member of a prescribed class of medical practitioners.
Weeks for which benefits may be paid — child
(3) Subject to subsection (4) and section 12, benefits under this section are payable for each week of unemployment in the period (a) that begins on the first day of the week in which either of the following falls: (i) the day on which the first certificate is issued in respect of the child that meets the requirements of subsection (1) and is filed with the Commission, or (ii) in the case of a claim that is made before the day on which the certificate is issued, the day from which the specialist medical doctor certifies that the child is critically ill; and (b) that ends on the last day of the week in which any of the following occurs: (i) all benefits payable under this section in respect of the child are exhausted, (ii) the child dies, or
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Code canadien du trava (iii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a).
Weeks for which benefits may be paid — children
(4) Subject to section 12, if more than one child of the claimant is critically ill as a result of the same event, benefits under this section are payable for each week of unemployment in the period (a) that begins on the first day of the week in which either of the following falls: (i) the day on which the first certificate is issued in respect of any of the children that meets the requirements of subsection (1) and is filed with the Commission, or (ii) in the case of a claim that is made before the day on which the certificate is issued, the first day from which the specialist medical doctor certifies that any of the children is critically ill; and (b) that ends on the last day of the week in which any of the following occurs: (i) all benefits payable under this section in respect of the children are exhausted, (ii) the last of the children dies, or (iii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a).
Exception
(5) Subparagraph (3)(a)(ii) or (4)(a)(ii) does not apply to a claim if (a) at the time the certificate is filed with the Commission, all benefits that may otherwise have been payable in relation to that claim have already been exhausted; (b) the beginning of the period referred to in subsection (3) or (4), as the case may be, has already been determined and the filing of the
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certificate with the Commission would have the effect of moving the beginning of that period to an earlier date; or (c) the claim is made in any other circumstances set out in the regulations.
Deferral of waiting period — child
(6) Subject to subsection (7), a claimant who makes a claim for benefits under this section may have their waiting period deferred until they make another claim for benefits in the same benefit period if (a) another claimant has made a claim for benefits under this section or section 152.061 in respect of the same child during the period described in subsection (3) and that other claimant has served or is serving their waiting period in respect of that claim; (b) another claimant is making a claim for benefits under this section or section 152.061 in respect of the same child at the same time as the claimant and that other claimant elects to serve their waiting period; or (c) the claimant, or another claimant who has made a claim for benefits under this section or section 152.061 in respect of the same child, meets the prescribed requirements.
Deferral of waiting period — children
(7) A claimant who makes a claim for benefits under this section — and more than one of whose children is critically ill as a result of the same event — may have their waiting period deferred until they make another claim for benefits in the same benefit period if (a) another claimant has made a claim for benefits under this section or section 152.061 in respect of the same children during the period described in subsection (4) and that other claimant has served or is serving their waiting period in respect of that claim;
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Code canadien du trava (b) another claimant is making a claim for benefits under this section or section 152.061 in respect of the same children at the same time as the claimant and that other claimant elects to serve their waiting period; or (c) the claimant, or another claimant who has made a claim for benefits under this section or section 152.061 in respect of the same children, meets the prescribed requirements.
Division of weeks of benefits
(8) If a claimant makes a claim for benefits under this section and another claimant makes a claim for benefits under this section or section 152.061 in respect of the same child or the same children who are critically ill as a result of the same event, any remaining weeks of benefits payable under this section, under section 152.061 or under both those sections, up to a maximum of 35 weeks, may be divided in the manner agreed to by those claimants. If they cannot agree, the weeks of benefits are to be divided in accordance with the prescribed rules.
Maximum divisible number of weeks
(9) For greater certainty, if, in respect of the same child or the same children who are critically ill as a result of the same event, a claimant makes a claim for benefits under this section and another claimant makes a claim for benefits under section 152.061, the total number of weeks of benefits payable under this section and section 152.061 that may be divided between them must not exceed 35 weeks.
Limitation — compassionate care benefits
(10) Benefits under section 23.1 or 152.06 are not payable in respect of a child during the period referred to in subsection (3) or (4) or 152.061(3) or (4) that is established in respect of that child.
Limitation
(11) When benefits are payable to a claimant for the reasons set out in this section and any allowances, money or other benefits are payable to the claimant under a provincial law for the same or substantially the same reasons, the
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benefits payable to the claimant under this section shall be reduced or eliminated as prescribed. 2009, c. 33, s. 9(2)
19. (1) Paragraph 54(c.2) of the Act is replaced by the following: (c.2) setting out circumstances for the purposes of paragraphs 10(5.1)(c), 10(5.2)(c), 23.1(6)(c), 23.2(5)(c), 152.06(5)(c), 152.061(5)(c), 152.11(6)(c) and 152.11(6.1)(c);
2009, c. 33, s. 9(3)
(2) Paragraphs 54(f.3) and (f.4) of the Act are replaced by the following: (f.21) defining or determining what is a parent, a critically ill child and a specialist medical doctor for the purposes of subsections 23.2(1) and 152.061(1); (f.3) defining or determining what is care or support for the purposes of paragraphs 23.1(2)(b), 23.2(1)(a), 152.06(1)(b) and 152.061(1)(a); (f.4) prescribing classes of medical practitioners for the purposes of subsections 23.1(3), 23.2(2), 152.06(2) and 152.061(2) and setting out the circumstances in which a certificate may be issued by them under subsection 23.1(2), 23.2(1), 152.06(1) or 152.061(1);
2003, c. 15, s. 20(2); 2009, c. 33, s. 9(3)
(3) Paragraphs 54(f.6) and (f.7) of the Act are replaced by the following: (f.6) prescribing requirements for the purposes of paragraphs 23.1(7)(c), 23.2(6)(c), 23.2(7)(c), 152.06(6)(c), 152.061(6)(c) and 152.061(7)(c); (f.7) prescribing rules for the purposes of subsections 23.1(9), 23.2(8) and 152.061(8);
2003, c. 15, s. 22(1); 2009, c. 33, s. 10
20. (1) Subsections 69(1) and (2) of the Act are replaced by the following:
Premium reduction — wage-loss plans
69. (1) The Commission shall, with the approval of the Governor in Council, make regulations to provide a system for reducing the employer’s premium when
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Code canadien du trava (a) the payment of any allowances, money or other benefits because of illness, injury, quarantine, pregnancy, child care, compassionate care or a child’s critical illness under a plan that covers insured persons employed by the employer, other than one established under provincial law, would have the effect of reducing the special benefits payable to the insured persons; and (b) the insured persons will benefit from the reduction of the employer’s premium in an amount at least equal to 5/12 of the reduction.
Provincial plans
(2) The Commission shall, with the approval of the Governor in Council, make regulations to provide a system for reducing the employer’s and employee’s premiums, the premiums under Part VII.1 or all those premiums, when the payment of any allowances, money or other benefits because of illness, injury, quarantine, pregnancy, child care, compassionate care or a child’s critical illness under a provincial law to insured persons, or to self-employed persons, as the case may be, would have the effect of reducing or eliminating the special benefits payable to those insured persons or the benefits payable to those self-employed persons.
(2) Section 69 of the Act is amended by adding the following after subsection (6): Reference
(7) The reference to the payment of allowances, money or other benefits because of a child’s critical illness in subsections (1) and (2) means the payment of allowances, money or other benefits for the same or substantially the same reasons for which benefits are payable under section 23.2.
21. (1) Section 152.03 of the Act is amended by adding the following after subsection (1): Exception
(1.1) A self-employed person to whom benefits are payable under section 152.05 is entitled to benefits under subsection (1) even though the person did not cease to work as a
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self-employed person because of a prescribed illness, injury or quarantine and would not be working even without the illness, injury or quarantine. 2009, c. 33, s. 16
(2) Subsection 152.03(4) of the Act is replaced by the following:
Disentitlement
(4) A self-employed person, other than one referred to in subsection (1.1), is not entitled to benefits under subsection (1) if, were it not for the prescribed illness, injury or quarantine, the self-employed person would be deemed, in accordance with the regulations, to be not working.
2009, c. 33, s. 16
22. Subsections 152.05(5) to (10) of the Act are replaced by the following:
Extension of period
(5) If, during a self-employed person’s benefit period, benefits were paid to the person for more than one of the reasons mentioned in paragraphs 152.14(1)(a) to (e), the maximum total number of weeks established for those reasons is greater than 50 and benefits were paid for the reason mentioned in paragraph 152.14(1)(b) but for fewer than the maximum number of weeks established for that reason, the period referred to in subsection (2) is extended so that benefits may be paid up to the maximum number of weeks referred to in paragraph 152.14(1)(b).
Limitation
(6) An extension under subsection (5) must not result in the period referred to in subsection (2) being longer than the maximum benefit period calculated under subsection 152.11(16).
Limitation
(7) An extension under any of subsections 152.11(11) to (14) must not result in the period referred to in subsection (2) being longer than 104 weeks. 23. The Act is amended by adding the following after section 152.06:
2011-2012 Benefits — critically ill child
Code canadien du trava 152.061 (1) Subject to this Part, benefits are payable to a self-employed person, who is the parent of a critically ill child, in order to care for or support that child if a specialist medical doctor has issued a certificate that (a) states that the child is a critically ill child and requires the care or support of one or more of their parents; and (b) sets out the period during which the child requires that care or support.
Medical practitioner
(2) In the circumstances set out in the regulations, the certificate referred to in subsection (1) may be issued by a member of a prescribed class of medical practitioners.
Weeks for which benefits may be paid — child
(3) Subject to subsection (4) and section 152.14, benefits under this section are payable for each week of unemployment in the period (a) that begins on the first day of the week in which either of the following falls: (i) the day on which the first certificate is issued in respect of the child that meets the requirements of subsection (1) and is filed with the Commission, or (ii) in the case of a claim that is made before the day on which the certificate is issued, the day from which the specialist medical doctor certifies that the child is critically ill; and (b) that ends on the last day of the week in which any of the following occurs: (i) all benefits payable under this section in respect of the child are exhausted, (ii) the child dies, or (iii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a).
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Weeks for which benefits may be paid — children
(4) Subject to section 152.14, if more than one child of the self-employed person is critically ill as a result of the same event, benefits under this section are payable for each week of unemployment in the period
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(a) that begins on the first day of the week in which either of the following falls: (i) the day on which the first certificate is issued in respect of any of the children that meets the requirements of subsection (1) and is filed with the Commission, or (ii) in the case of a claim that is made before the day on which the certificate is issued, the first day from which the specialist medical doctor certifies that any of the children is critically ill; and (b) that ends on the last day of the week in which any of the following occurs: (i) all benefits payable under this section in respect of the children are exhausted, (ii) the last of the children dies, or (iii) the expiry of 52 weeks following the first day of the week referred to in paragraph (a).
Exception
(5) Subparagraph (3)(a)(ii) or (4)(a)(ii) does not apply to a claim if (a) at the time the certificate is filed with the Commission, all benefits that may otherwise have been payable in relation to that claim have already been exhausted; (b) the beginning of the period referred to in subsection (3) or (4), as the case may be, has already been determined and the filing of the certificate with the Commission would have the effect of moving the beginning of that period to an earlier date; or (c) the claim is made in any other circumstances set out in the regulations.
2011-2012 Deferral of waiting period — child
Code canadien du trava (6) Subject to subsection (7), a self-employed person who makes a claim for benefits under this section may have their waiting period deferred until they make another claim for benefits in the same benefit period if (a) another claimant has made a claim for benefits under this section or section 23.2 in respect of the same child during the period described in subsection (3) and that other claimant has served or is serving their waiting period in respect of that claim; (b) another claimant is making a claim for benefits under this section or section 23.2 in respect of the same child at the same time as the claimant and that other claimant elects to serve their waiting period; or (c) the self-employed person, or another claimant who has made a claim for benefits under this section or section 23.2 in respect of the same child, meets the prescribed requirements.
Deferral of waiting period — children
(7) A self-employed person who makes a claim for benefits under this section — and more than one of whose children is critically ill as a result of the same event — may have their waiting period deferred until they make another claim for benefits in the same benefit period if (a) another claimant has made a claim for benefits under this section or section 23.2 in respect of the same children during the period described in subsection (4) and that other claimant has served or is serving their waiting period in respect of that claim; (b) another claimant is making a claim for benefits under this section or section 23.2 in respect of the same children at the same time as the claimant and that other claimant elects to serve their waiting period; or (c) the self-employed person, or another claimant who has made a claim for benefits under this section or section 23.2 in respect of the same children, meets the prescribed requirements.
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Division of weeks of benefits
(8) If a self-employed person makes a claim for benefits under this section and another person makes a claim for benefits under this section or section 23.2 in respect of the same child or the same children who are critically ill as a result of the same event, any remaining weeks of benefits payable under this section, under section 23.2 or under both those sections, up to a maximum of 35 weeks, may be divided in the manner agreed to by the self-employed person and the other person. If they cannot agree, the weeks of benefits are to be divided in accordance with the prescribed rules.
Maximum divisible number of weeks
(9) For greater certainty, if, in respect of the same child or the same children who are critically ill as a result of the same event, a self-employed person makes a claim for benefits under this section and another person makes a claim for benefits under section 23.2, the total number of weeks of benefits payable under this section and section 23.2 that may be divided between them must not exceed 35 weeks.
Limitation — compassionate care benefits
(10) Benefits under section 23.1 or 152.06 are not payable in respect of a child during the period referred to in subsection (3) or (4) or 23.2(3) or (4) that is established in respect of that child.
Limitation
(11) When benefits are payable to a selfemployed person for the reasons set out in this section and any allowances, money or other benefits are payable to the person under a provincial law for the same or substantially the same reasons, the benefits payable to the person under this section shall be reduced or eliminated as prescribed.
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2011-2012
Code canadien du trava 24. (1) Section 152.11 of the Act is amended by adding the following after subsection (6):
Exception
(6.1) A claim for benefits referred to in section 152.061 with respect to a critically ill child or children who are critically ill as a result of the same event must not be regarded as having been made on an earlier day under subsection (4) or (5) if (a) at the time the claim is made, all benefits that may otherwise have been payable in relation to that claim have already been exhausted; (b) the beginning of the period referred to in subsection 152.061(3) or (4) has already been determined with respect to that child or those children and the claim would have the effect of moving the beginning of that period to an earlier date; or (c) the claim is made in any other circumstances set out in the regulations.
2009, c. 33, s. 16
(2) Subsections 152.11(14) to (19) of the Act are replaced by the following:
Extension of benefit period
(14) If, during a self-employed person’s benefit period, benefits were paid to the person for more than one of the reasons mentioned in paragraphs 152.14(1)(a) to (e), at least one of those benefits was paid for fewer than the applicable maximum number of weeks established for those reasons and the maximum total number of weeks established for those reasons is greater than 50, the benefit period is extended so that those benefits may be paid up to that maximum total number of weeks.
Maximum extension under subsections (11) to (14)
(15) Subject to subsection (16), an extension under any of subsections (11) to (14) must not result in a benefit period of more than 104 weeks.
Maximum extension under subsection (14)
(16) Unless the benefit period is also extended under any of subsections (11) to (13), an extension under subsection (14) must not result in a benefit period of more than the sum of two weeks and the total of the maximum number of weeks established under subsection 152.14(1) for each of the benefits paid to the self26
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Canada Labour Code an
employed person for one of the reasons mentioned in paragraphs 152.14(1)(a) to (e) during the person’s benefit period before it was extended under subsection (14).
25. (1) Subsection 152.14(1) of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d): (e) because the self-employed person is providing care or support to one or more critically ill children described in subsection 152.061(1), is 35. 2009, c. 33, s. 16
(2) Subsection 152.14(5) of the Act is replaced by the following:
Maximum — compassionate care benefits
(5) Even if more than one claim is made under this Act, at least one of which is made under section 152.06 — or even if more than one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 152.06 — for the same reason and in respect of the same family member, the maximum number of weeks of benefits payable under this Act in respect of that family member is six weeks during the period of 26 weeks that begins on the first day of the week referred to in paragraph 152.06(3)(a).
Maximum — critically ill child
(5.1) Even if more than one claim is made under this Act, at least one of which is made under section 152.061 — or even if more than one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 152.061 — for the same reason and in respect of the same critically ill child, the maximum number of weeks of benefits payable under this Act in respect of that child is 35 weeks during the period of 52 weeks that begins on the first day of the week referred to in paragraph 152.061(3)(a).
Maximum — critically ill children
(5.2) Even if more than one claim is made under this Act, at least one of which is made under section 152.061 — or even if more than
2011-2012
Code canadien du trava one certificate is issued for the purposes of this Act, at least one of which is issued for the purposes of section 152.061 — for the same reason and in respect of the same children who are critically ill as a result of the same event, the maximum number of weeks of benefits payable under this Act in respect of those children is 35 weeks during the period of 52 weeks that begins on the first day of the week referred to in paragraph 152.061(4)(a).
2009, c. 33, s. 16
(3) Subsection 152.14(8) of the Act is replaced by the following:
Combined weeks of benefits
(8) In a self-employed person’s benefit period, the self-employed person may, subject to the applicable maximums, combine weeks of benefits to which they are entitled because of a reason mentioned in subsection (1), but the maximum number of combined weeks is 50. However, if the benefit period is extended under subsection 152.11(14), the maximum number of combined weeks equals the maximum number of weeks in the benefit period calculated under subsection 152.11(16) less two weeks. CONSEQUENTIAL AMENDMENTS
R.S., c. 1 (5th Supp.)
INCOME TAX ACT 26. (1) Subsection 56(1) of the Income Tax Act is amended by adding the following after paragraph (a.2):
Parents of victims of crime
(a.3) amounts received by the taxpayer in the year under a program established under the authority of the Department of Social Development Act in respect of children who are deceased or missing as a result of an offence, or a probable offence, under the Criminal Code; (2) Subsection (1) comes into force, or is deemed to have come into force, on January 1, 2013. 27. (1) Section 60 of the Act is amended by adding the following after paragraph (u):
28 Repayment — parents of victims of crime
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(v) the total of all amounts each of which is an amount paid in the year as a repayment of a benefit that was included because of paragraph 56(1)(a.3) in computing the taxpayer’s income for the year or a preceding taxation year; (2) Subsection (1) comes into force, or is deemed to have come into force, on January 1, 2013. 28. (1) Subsection 153(1) of the Act is amended by adding the following after paragraph (d.1): (d.2) an amount described in paragraph 56(1)(a.3), (2) Subsection (1) comes into force, or is deemed to have come into force, on January 1, 2013. 29. Paragraph 241(4)(d) of the Act is amended by adding the following after subparagraph (x): (x.1) to an official of the Department of Human Resources and Skills Development solely for the purpose of the administration or enforcement of a program established under the authority of the Department of Social Development Act in respect of children who are deceased or missing as a result of an offence, or a probable offence, under the Criminal Code,
C.R.C., c. 945
INCOME TAX REGULATIONS 30. (1) The definition “remuneration” in subsection 100(1) of the Income Tax Regulations is amended by adding the following after paragraph (g): (g.1) an amount that is required by paragraph 56(1)(a.3) of the Act to be included in computing a taxpayer’s income, (2) Subsection (1) comes into force, or is deemed to have come into force, on January 1, 2013.
2011-2012
Code canadien du trava TRANSITIONAL PROVISIONS
Death or disappearance
31. Section 206.5 of the Canada Labour Code, as enacted by section 6, applies only with respect to a death or disappearance that occurs after the day on which section 6 comes into force.
Illness, injury or quarantine
32. Sections 18, 21 and 152.03 of the Employment Insurance Act, as amended by sections 15, 16 and 21, apply only to claims for benefits because of illness, injury or quarantine that are made for weeks that begin on or after the day on which sections 15, 16 and 21 come into force.
Child’s critical illness
33. Sections 23.2 and 152.061 of the Employment Insurance Act, as enacted by sections 18 and 23, apply to a claimant for any benefit period (a) that begins on or after the day on which sections 18 and 23 come into force; or (b) that has not ended before that day, but only for weeks of benefits that begin on or after that day.
COORDINATING AMENDMENTS This Act
34. On the first day on which both subsections 2(1) and (2) of this Act are in force, the heading of Division VII of Part III of the Canada Labour Code is replaced by the following: REASSIGNMENT, MATERNITY LEAVE, PARENTAL LEAVE, COMPASSIONATE CARE LEAVE, LEAVE RELATED TO CRITICAL ILLNESS AND LEAVE RELATED TO DEATH OR DISAPPEARANCE
2000, c. 14
35. On the first day on which section 43 of the Budget Implementation Act, 2000 produces its effects, section 206.1 of the Canada Labour Code is replaced by the following:
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Entitlement to leave
206.1 (1) Subject to subsections (2) and (3), every employee who has completed six consecutive months of continuous employment with an employer is entitled to and shall be granted a leave of absence from employment of up to thirty-seven weeks to care for
Canada Labour Code an
(a) a new-born child of the employee; (b) a child who is in the care of the employee for the purpose of adoption under the laws governing adoption in the province in which the employee resides; or (c) a child with respect to whom the employee meets the requirements of paragraph 23(1)(c) of the Employment Insurance Act. Period when leave may be taken
(2) The leave of absence may only be taken during the fifty-two week period beginning (a) in the case of a child described in paragraph (1)(a), at the option of the employee, on the day the child is born or comes into the actual care of the employee; (b) in the case of a child described in paragraph (1)(b), on the day the child comes into the actual care of the employee; and (c) in the case of a child described in paragraph (1)(c), on the day the requirements referred to in that paragraph are met.
Extension of period
(2.1) The period referred to in subsection (2) is extended by the number of weeks during which the employee is on leave under any of sections 206.3 to 206.5, is absent due to a reason referred to in subsection 239(1) or 239.1(1) or is on leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
Extension of period — child in hospital
(2.2) If the child referred to in subsection (1) is hospitalized during the period referred to in subsection (2), the period is extended by the number of weeks during which the child is hospitalized.
Limitation
(2.3) An extension under subsection (2.1) or (2.2) must not result in the period being longer than 104 weeks.
2011-2012
Code canadien du trava
Interruption
(2.4) The employee may interrupt the leave referred to in subsection (1) in order to permit the employee to take leave under any of sections 206.3 to 206.5, to be absent due to a reason referred to in subsection 239(1) or 239.1(1) or to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
Resumption
(2.5) The leave referred to in subsection (1) resumes immediately after the interruption ends.
Aggregate leave — two employees
(3) The aggregate amount of leave that may be taken by two employees under this section in respect of the same event, as described in paragraphs (1)(a) to (c), shall not exceed thirtyseven weeks.
Exception — sick leave
(4) Except to the extent that it is inconsistent with subsection 239(1.1), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239(1).
Exception — work-related illness or injury
(5) Except to the extent that it is inconsistent with subsections 239.1(3) and (4), section 209.1 applies to an employee who interrupted the leave referred to in subsection (1) in order to be absent due to a reason referred to in subsection 239.1(1).
Exception — member of reserve force
(6) Despite section 209.1, sections 247.93 to 247.95 apply to an employee who interrupted the leave referred to in subsection (1) in order to take leave under any of paragraphs 247.5(1)(a), (b) and (d) to (g).
2012, c. 19
36. (1) In this section, “other Act” means the Jobs, Growth and Long-term Prosperity Act. (2) On the first day on which both section 687 of the other Act and subsection 26(1) of this Act are in force, paragraph 56(1)(a.3) of the Income Tax Act, as enacted by subsection 26(1) of this Act, is replaced by the following:
Parents of victims of crime
(a.3) amounts received by the taxpayer in the year under a program established under the authority of the Department of Human Resources and Skills Development Act in respect of children who are deceased or missing as a result of an offence, or a probable offence, under the Criminal Code;
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Canada Labour Code an
(3) On the first day on which both section 687 of the other Act and section 29 of this Act are in force, subparagraph 241(4)(d)(x.1) of the Income Tax Act, as enacted by section 29 of this Act, is replaced by the following: (x.1) to an official of the Department of Human Resources and Skills Development solely for the purpose of the administration or enforcement of a program established under the authority of the Department of Human Resources and Skills Development Act in respect of children who are deceased or missing as a result of an offence, or a probable offence, under the Criminal Code, COMING INTO FORCE Order in council
37. (1) Subsection 2(1) and section 5 come into force on a day to be fixed by order of the Governor in Council.
January 1, 2013 or royal assent
(2) Subject to subsection (3), subsection 2(2) and sections 6, 8 and 9 come into force on the later of January 1, 2013, and the day on which this Act receives royal assent.
Order in council if before January 1, 2013
(3) Subsection 2(2) and sections 6, 8 and 9 come into force on a day to be fixed by order of the Governor in Council if the order is made before January 1, 2013.
Order in council
(4) Sections 13, 14, 17 to 20 and 22 to 25 come into force on a day to be fixed by order of the Governor in Council.
Order in council
(5) Sections 15, 16 and 21 come into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: 613-941-5995 or 1-800-635-7943 Fax: 613-954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 1 An Act respecting payments to a trust established to provide provinces and territories with funding for community development
ASSENTED TO 7th FEBRUARY, 2008 BILL C-41
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act respecting payments to a trust established to provide provinces and territories with funding for community development”.
SUMMARY This enactment authorizes the making of payments to provinces and territories for community development.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 1 An Act respecting payments to a trust established to provide provinces and territories with funding for community development
[Assented to 7th February, 2008] Preamble
Whereas Canada intends to support vulnerable communities through a national initiative to provide provinces and territories with funding in support of activities to strengthen the economic opportunities for communities and workers negatively affected by international economic volatility; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Maximum payment of $1,000,000,000
1. (1) The Minister of Finance may make direct payments, in an aggregate amount not exceeding one billion dollars, to a trust established to provide provinces and territories with funding to support provincial and territorial initiatives to assist the adjustment of vulnerable communities to international economic volatility.
Provincial or territorial share
(2) The amount that may be provided to a province or territory under this section is to be determined in accordance with the terms of the trust indenture establishing the trust.
Payments out of C.R.F.
(3) Any amount payable under this section may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, at the times and in the manner that the Minister of Finance considers appropriate.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 2 An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act
ASSENTED TO 14th FEBRUARY, 2008 BILL C-11
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act”.
SUMMARY This enactment gives effect to the Nunavik Inuit Land Claims Agreement. It also includes a consequential amendment to an Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO GIVE EFFECT TO THE NUNAVIK INUIT LAND CLAIMS AGREEMENT AND TO MAKE A CONSEQUENTIAL AMENDMENT TO ANOTHER ACT Preamble SHORT TITLE 1.
Nunavik Inuit Land Claims Agreement Act
2. Definitions
3. Status of Agreement
4. Act binding on Her Majesty
INTERPRETATION
HER MAJESTY
AGREEMENT 5.
Agreement given effect
6. Inconsistency with Agreement
7. Legal capacity
8. Payments out of C.R.F.
APPROPRIATION
GENERAL 9.
Judicial notice of Agreement
10. Notice of issues arising
11. Statutory Instruments Act
12. Orders and regulations
12.1
Review by Makivik
12.2
Review by Minister
CONSEQUENTIAL AMENDMENTS TO THE CANADA NATIONAL PARKS ACT 13-14.
Amendments COMING INTO FORCE
15. Order in council
56-57 ELIZABETH II —————— CHAPTER 2 An Act to give effect to the Nunavik Inuit Land Claims Agreement and to make a consequential amendment to another Act
[Assented to 14th February, 2008] Preamble
WHEREAS the Nunavik Inuit assert aboriginal rights, title, interests and jurisdiction in and to the Nunavik Inuit Settlement Area as defined in the Agreement; WHEREAS the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada; WHEREAS the Nunavik Inuit, as represented by Makivik, and the Government of Canada have negotiated the Agreement; WHEREAS the Nunavik Inuit, by a vote held from October 16 to 20, 2006, approved the Agreement; WHEREAS the Agreement was signed on behalf of the Nunavik Inuit and Her Majesty the Queen in right of Canada on December 1, 2006; AND WHEREAS the Agreement requires that legislation be enacted by the Parliament of Canada in order for the Agreement to be ratified; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE
Short title
1. This Act may be cited as the Nunavik Inuit Land Claims Agreement Act.
C. 2
Nunavik Inuit Land INTERPRETATION
Definitions
“Agreement” « accord »
“Makivik” « Makivik »
Status of Agreement
2. The following definitions apply in this Act. “Agreement” means the land claims agreement between the Nunavik Inuit and Her Majesty the Queen in right of Canada signed on December 1, 2006, including any amendments made to it. “Makivik” means the corporation established by An Act respecting the Makivik Corporation, R.S.Q., c. S-18.1, and representing the Inuit of northern Quebec. 3. The Agreement is a treaty within the meaning of section 35 of the Constitution Act, 1982. HER MAJESTY
Act binding on Her Majesty
4. This Act is binding on Her Majesty in right of Canada or a province so as to give effect to the Agreement in accordance with its terms. AGREEMENT
Agreement given effect
5. (1) The Agreement is approved, given effect and declared valid.
Rights and obligations
(2) For greater certainty, any person or body has the powers, rights, privileges and benefits conferred on the person or body by the Agreement and shall perform the duties, and is subject to the liabilities, imposed on the person or body by the Agreement.
Third parties
(3) The Agreement is binding on, and may be relied on by, all persons and bodies that are not parties to it.
Inconsistency with Agreement
6. (1) In the event of an inconsistency or a conflict between the Agreement and this Act or any law referred to in section 2.11 of the Agreement, the Agreement prevails to the extent of the inconsistency or conflict.
Inconsistency with Act
(2) In the event of an inconsistency or a conflict between this Act and any other statute, this Act prevails to the extent of the inconsistency or conflict.
Legal capacity
7. (1) For the purposes of carrying out their objectives, the Nunavik Marine Region Wildlife Board, the Nunavik Marine Region Planning
2007-2008
Accord sur les revendications ter Commission and the Nunavik Marine Region Impact Review Board established by the Agreement each have the capacity, rights, powers and privileges of a natural person.
Not agents of Her Majesty
(2) The Nunavik Marine Region Wildlife Board, the Nunavik Marine Region Planning Commission and the Nunavik Marine Region Impact Review Board are not agents of Her Majesty in right of Canada. APPROPRIATION
Payments out of C.R.F.
8. There shall be paid out of the Consolidated Revenue Fund any sums that are required to meet the monetary obligations of Her Majesty in right of Canada under Articles 5, 15, 16 and 23 of the Agreement. GENERAL
Judicial notice of Agreement
9. (1) Judicial notice shall be taken of the Agreement.
Publication of Agreement
(2) The Agreement shall be published by the Queen’s Printer.
Evidence
(3) A copy of the Agreement published by the Queen’s Printer is evidence of the Agreement and of its contents, and a copy purporting to be published by the Queen’s Printer is deemed to be so published, unless the contrary is shown.
Notice of issues arising
10. (1) If, in any judicial or administrative proceeding, an issue arises in respect of the interpretation or validity of the Agreement or the validity or applicability of this Act, the issue shall not be decided unless the party raising the issue has served notice on the Attorney General of Canada and Makivik.
Content of notice
(2) The notice shall (a) describe the judicial or administrative proceeding in which the issue arises; (b) state whether the issue arises in respect of the interpretation or validity of the Agreement or the validity or applicability of this Act, or both;
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Nunavik Inuit Land
(c) state the day on which the issue is to be argued; (d) give particulars necessary to show the point to be argued; and (e) be served at least 14 days before the day of argument, unless the court or tribunal authorizes a shorter period. Participation in proceedings
(3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of Canada and Makivik may appear and participate in the proceeding as parties with the same rights as any other party.
Saving
(4) For greater certainty, subsections (2) and (3) do not require that an oral hearing be held if one is not otherwise required.
Statutory Instruments Act
11. An instrument made under the Agreement is not a statutory instrument for the purposes of the Statutory Instruments Act.
Orders and regulations
12. The Governor in Council may make any orders and regulations that are necessary for the purpose of carrying out any of the provisions of the Agreement.
Review by Makivik
12.1 (1) Within ten years after this Act receives royal assent, a review of the implementation of this Act and the Agreement may be undertaken by Makivik.
Report
(2) Makivik may submit a report on any review undertaken under subsection (1) to the Minister referred to in sebsection 12.2(1).
Tabling of report
(3) The Minister shall cause any report submitted under subsection (2) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.
Review by Minister
12.2 (1) Within ten years after the Act receives royal assent, a comprehensive review of the implementation of this Act and the Agreement shall be undertaken by the Minister designated by the Governor in Council for the purposes of this Act.
Tabling of report
(2) The Minister shall cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is completed.
2007-2008 2000, c. 32
Accord sur les revendications ter CONSEQUENTIAL AMENDMENTS TO THE CANADA NATIONAL PARKS ACT 13. Part 10 of Schedule 1 to the Canada National Parks Act is amended by adding the following after the description of Gros Morne National Park of Canada: (3) TORNGAT MOUNTAINS NATIONAL PARK OF CANADA All that parcel of land in the Province of Newfoundland and Labrador shown on a descriptive map plan prepared by the Department of Natural Resources, dated November 15, 2004 and recorded in the Crown Lands Registry Office in St. John’s, Newfoundland and Labrador, under number SP 367; a copy of the plan is attached as appendix D-1 to the Agreement, as defined in section 2 of the Labrador Inuit Land Claims Agreement Act; the parcel contains an area of approximately 9 700 square kilometres.
2005, c. 27, s. 17
14. The description of Torngat Mountains National Park Reserve of Canada in Schedule 2 to the Act and the heading before it are repealed. COMING INTO FORCE
Order in council
15. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 12
An Act to amend the Criminal Code (cruelty to animals)
ASSENTED TO 17th APRIL, 2008 BILL S-203
SUMMARY This enactment amends the Criminal Code to increase the maximum penalties for animal cruelty offences.
All parliamentary publications are available on the Parliamentary Internet Parlementaire at the following address: http://www.parl.gc.ca
L nes
56-57 ELIZABETH II
CHAPTER 12
An Act to amend the Criminal Code (cruelty to animals)
Loi
[Assented to 17th April, 2008] R.S., c. C-46
Injuring or endangering cattle
Punishment
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
S cons com
1. Sections 444 to 447 of the Criminal Code are replaced by the following:
1 nel s
444. (1) Every one commits an offence who wilfully
4 volo
(a) kills, maims, wounds, poisons or injures cattle; or
a es
(b) places poison in such a position that it may easily be consumed by cattle.
b p b
(2) Every one who commits an offence under subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
Injuring or endangering other animals
(2 au p
a em
(b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
b d so m em m
445. (1) Every one commits an offence who, wilfully and without lawful excuse,
4 que selon
(a) kills, maims, wounds, poisons or injures dogs, birds or animals that are not cattle and are kept for a lawful purpose; or (b) places poison in such a position that it may easily be consumed by dogs, birds or animals that are not cattle and are kept for a lawful purpose.
a es q g
b p ch p u
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Punishment
(2) Every one who commits an offence under subsection (1) is guilty of
Criminal Co
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
(2 au p
a em
b d so m em m
Cruelty to Animals Causing unnecessary suffering
445.1 (1) Every one commits an offence who
4 selon
(a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird;
a p so d n
(b) in any manner encourages, aids or assists at the fighting or baiting of animals or birds; (c) wilfully, without reasonable excuse, administers a poisonous or an injurious drug or substance to a domestic animal or bird or an animal or a bird wild by nature that is kept in captivity or, being the owner of such an animal or a bird, wilfully permits a poisonous or an injurious drug or substance to be administered to it; (d) promotes, arranges, conducts, assists in, receives money for or takes part in any meeting, competition, exhibition, pastime, practice, display or event at or in the course of which captive birds are liberated by hand, trap, contrivance or any other means for the purpose of being shot when they are liberated; or (e) being the owner, occupier or person in charge of any premises, permits the premises or any part thereof to be used for a purpose mentioned in paragraph (d).
Punishment
(2) Every one who commits an offence under subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
b o o
c) ad em o o p v su ad
d q d o o m au au p
e) la p o l
(2 au p
a em
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Code crimin (b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
b d so m em m
Failure to exercise reasonable care as evidence
(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it pain, suffering or injury is, in the absence of any evidence to the contrary, proof that the pain, suffering or injury was caused or was permitted to be caused wilfully, as the case may be.
(3 vertu pers un raiso des en l cette ont selon
Presence at baiting as evidence
(4) For the purpose of proceedings under paragraph (1)(b), evidence that an accused was present at the fighting or baiting of animals or birds is, in the absence of any evidence to the contrary, proof that he or she encouraged, aided or assisted at the fighting or baiting.
(4 vertu prév harc preu cont harc
Causing damage or injury
446. (1) Every one commits an offence who
4 selon
(a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed; or
a b o tr
(b) being the owner or the person having the custody or control of a domestic animal or a bird or an animal or a bird wild by nature that is in captivity, abandons it in distress or wilfully neglects or fails to provide suitable and adequate food, water, shelter and care for it.
Punishment
(2) Every one who commits an offence under subsection (1) is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than two years; or (b) an offence punishable on summary conviction and liable to a fine not exceeding five thousand dollars or to imprisonment for a term of not more than six months or to both.
b a o o en o l su
(2 au p
a em
b d so m em d
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Failure to exercise reasonable care as evidence
(3) For the purposes of proceedings under paragraph (1)(a), evidence that a person failed to exercise reasonable care or supervision of an animal or a bird thereby causing it damage or injury is, in the absence of any evidence to the contrary, proof that the damage or injury was caused by wilful neglect.
(3 vertu pers un raiso ou d toute bless volo
Keeping cockpit
447. (1) Every one commits an offence who builds, makes, maintains or keeps a cockpit on premises that he or she owns or occupies, or allows a cockpit to be built, made, maintained or kept on such premises.
44 cons pour poss arèn gard
Punishment
(2) Every one who commits an offence under subsection (1) is guilty of
(2 au p
Criminal Co
(a) an indictable offence and liable to imprisonment for a term of not more than five years; or (b) an offence punishable on summary conviction and liable to a fine not exceeding ten thousand dollars or to imprisonment for a term of not more than eighteen months or to both.
a em
b d so m em m
Confiscation
(3) A peace officer who finds cocks in a cockpit or on premises where a cockpit is located shall seize them and take them before a justice who shall order them to be destroyed.
(3 coqs coqs arèn deva destr
Order of prohibition or restitution
447.1 (1) The court may, in addition to any other sentence that it may impose under subsection 444(2), 445(2), 445.1(2), 446(2) or 447(2),
4 toute para ou 4
(a) make an order prohibiting the accused from owning, having the custody or control of or residing in the same premises as an animal or a bird during any period that the court considers appropriate but, in the case of a second or subsequent offence, for a minimum of five years; and
a p in o co u ca
(b) on application of the Attorney General or on its own motion, order that the accused pay to a person or an organization that has taken care of an animal or a bird as a result of the commission of the offence the reasonable costs that the person or organization incurred in respect of the animal or bird, if the costs are readily ascertainable.
b d re q le la p
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Code crimin
Breach of order
(2) Every one who contravenes an order made under paragraph (1)(a) is guilty of an offence punishable on summary conviction.
(2 sur som ordo
Application
(3) Sections 740 to 741.2 apply, with any modifications that the circumstances require, to orders made under paragraph (1)(b).
(3 avec ce pr
Published under authority of the Senate of Canada
Publ
Available from: PWGSC Publishing and Depository Services Ottawa, Ontario K1A 0S5
Disp TPSG Ottaw
Also available on the Internet: http://www.parl.gc.ca
Auss
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 13 An Act to add perfluorooctane sulfonate (PFOS) and its salts to the Virtual Elimination List under the Canadian Environmental Protection Act, 1999
ASSENTED TO 17th APRIL, 2008 BILL C-298
SUMMARY This enactment requires the Minister of the Environment and the Minister of Health to make, within nine months after the coming into force of this enactment, a regulation to add perfluorooctane sulfonate (PFOS) and its salts to the Virtual Elimination List compiled under subsection 65(2) of the Canadian Environmental Protection Act, 1999.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 13 An Act to add perfluorooctane sulfonate (PFOS) and its salts to the Virtual Elimination List under the Canadian Environmental Protection Act, 1999
[Assented to 17th April, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Perfluorooctane Sulfonate Virtual Elimination Act. INTERPRETATION
Definition
2. In this Act, “Ministers” means the Minister of the Environment and the Minister of Health. ADDITION TO THE LIST
Addition of perfluorooctane sulfonate and its salts
3. (1) The Ministers shall, within nine months after the coming into force of this Act, make a regulation to add perfluorooctane sulfonate and its salts to the Virtual Elimination List compiled under subsection 65(2) of the Canadian Environmental Protection Act, 1999.
Exception — subsection 65(2)
(2) The Ministers are not required to specify in the regulation referred to in subsection (1) the level of quantification for perfluorooctane sulfonate or its salts, despite subsection 65(2) of the Canadian Environmental Protection Act, 1999.
C. 13
Exception — subsection 65(3)
(3) If the Ministers specify in the Virtual Elimination List the level of quantification for perfluorooctane sulfonate or its salts, the Ministers are not required to make the regulation described in subsection 65(3) of the Canadian Environmental Protection Act, 1999.
Perfluorooctane Sulfon
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 3 An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
ASSENTED TO 14th FEBRUARY, 2008 BILL C-3
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act”.
SUMMARY This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests. The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection. The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the sixmonth period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review. The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved. It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release. The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.
56-57 ELIZABETH II —————— CHAPTER 3 An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act [Assented to 14th February, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT
2005, c. 38, s. 118
1. (1) Subsection 4(1) of the Immigration and Refugee Protection Act is replaced by the following:
Minister of Citizenship and Immigration
4. (1) Except as otherwise provided in this section, the Minister of Citizenship and Immigration is responsible for the administration of this Act.
Designated Minister
(1.1) The Governor in Council may, by order, designate a minister of the Crown as the Minister responsible for all matters under this Act relating to special advocates. If none is designated, the Minister of Justice is responsible for those matters.
2005, c. 38, s. 118
(2) The portion of subsection 4(2) of the Act before paragraph (a) is replaced by the following:
Minister of Public Safety and Emergency Preparedness
(2) The Minister of Public Safety and Emergency Preparedness is responsible for the administration of this Act as it relates to
2005, c. 38, s. 118
(3) Subsection 4(3) of the Act is replaced by the following:
C. 3
Specification
(3) Subject to subsections (1) to (2), the Governor in Council may, by order,
Immigration and Refugee Protection
(a) specify which Minister referred to in any of subsections (1) to (2) is the Minister for the purposes of any provision of this Act; and (b) specify that more than one Minister may be the Minister for the purposes of any provision of this Act and specify the circumstances under which each Minister is the Minister. 2004, c. 15, s. 70
2. Subsection 5(2) of the Act is replaced by the following:
Tabling and referral of proposed regulations
(2) The Minister shall cause a copy of each proposed regulation made under sections 17, 32, 53, 61, 87.2, 102, 116, 150 and 150.1 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House. 3. Paragraph 36(3)(e) of the Act is replaced by the following: (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 or the Youth Criminal Justice Act.
2002, c. 8, subpar. 194(a)(ii) and (b)(ii) and par. 194(d); 2005, c. 10, par. 34(1)(o) and s. 34(2)(E)
4. Division 9 of Part 1 of the Act is replaced by the following:
DIVISION 9 CERTIFICATES AND PROTECTION OF INFORMATION Interpretation Definitions
“information” « renseignements »
76. The following definitions apply in this Division. “information” means security or criminal intelligence information and information that is obtained in confidence from a source in Canada,
2007-2008
Immigration et protection des réfu the government of a foreign state, an international organization of states or an institution of such a government or international organization.
“judge” « juge »
“judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. Certificate
Referral of certificate
77. (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.
Filing of evidence and summary
(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
Effect of referral
(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 82 to 82.3, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.
Determination
78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.
Appeal
79. An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.
C. 3
Effect of certificate
80. A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.
Immigration and Refugee Protection
Detention and Release Ministers’ warrant
81. The Minister and the Minister of Citizenship and Immigration may issue a warrant for the arrest and detention of a person who is named in a certificate if they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
Initial review of detention
82. (1) A judge shall commence a review of the reasons for the person’s continued detention within 48 hours after the detention begins.
Further reviews of detention — before determining reasonableness
(2) Until it is determined whether a certificate is reasonable, a judge shall commence another review of the reasons for the person’s continued detention at least once in the sixmonth period following the conclusion of each preceding review.
Further reviews of detention — after determining reasonableness
(3) A person who continues to be detained after a certificate is determined to be reasonable may apply to the Federal Court for another review of the reasons for their continued detention if a period of six months has expired since the conclusion of the preceding review.
Reviews of conditions
(4) A person who is released from detention under conditions may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.
Order
(5) On review, the judge (a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
2007-2008
Immigration et protection des réfu (b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.
Variation of orders
82.1 (1) A judge may vary an order made under subsection 82(5) on application of the Minister or of the person who is subject to the order if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order.
Calculation of period for next review
(2) For the purpose of calculating the sixmonth period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (1) is made.
Arrest and detention — breach of conditions
82.2 (1) A peace officer may arrest and detain a person released under section 82 or 82.1 if the officer has reasonable grounds to believe that the person has contravened or is about to contravene any condition applicable to their release.
Appearance before judge
(2) The peace officer shall bring the person before a judge within 48 hours after the detention begins.
Order
(3) If the judge finds that the person has contravened or was about to contravene any condition applicable to their release, the judge shall (a) order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; (b) confirm the release order; or (c) vary the conditions applicable to their release.
Calculation of period for next review
(4) For the purpose of calculating the sixmonth period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (3) is made.
C. 3
Appeal
82.3 An appeal from a decision made under any of sections 82 to 82.2 may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.
Minister’s order to release
82.4 The Minister may, at any time, order that a person who is detained under any of sections 82 to 82.2 be released from detention to permit their departure from Canada.
Immigration and Refugee Protection
Protection of Information Protection of information
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2: (a) the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national; (c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person; (d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person; (e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of
2007-2008
Immigration et protection des réfu the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; (f) the judge shall ensure the confidentiality of all information or other evidence that is withdrawn by the Minister; (g) the judge shall provide the permanent resident or foreign national and the Minister with an opportunity to be heard; (h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence; (i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national; and (j) the judge shall not base a decision on information or other evidence provided by the Minister, and shall return it to the Minister, if the judge determines that it is not relevant or if the Minister withdraws it.
Clarification
(1.1) For the purposes of paragraph (1)(h), reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.
Appointment of special advocate
(1.2) If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that (a) the appointment would result in the proceeding being unreasonably delayed; (b) the appointment would place the person in a conflict of interest; or
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Immigration and Refugee Protection
(c) the person has knowledge of information or other evidence whose disclosure would be injurious to national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence. For greater certainty
(2) For greater certainty, the judge’s power to appoint a person to act as a special advocate in a proceeding includes the power to terminate the appointment and to appoint another person.
Protection of information on appeal
84. Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply to an appeal under section 79 or 82.3, and to any further appeal, with any necessary modifications. Special Advocate
List of persons who may act as special advocates
85. (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.
Statutory Instruments Act
(2) The Statutory Instruments Act does not apply to the list.
Administrative support and resources
(3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.
Special advocate’s role
85.1 (1) A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
Responsibilities
(2) A special advocate may challenge (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and (b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed
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Immigration et protection des réfu to the permanent resident or foreign national and their counsel, and the weight to be given to it.
For greater certainty
(3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.
Protection of communications with special advocate
(4) However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.
Powers
85.2 A special advocate may (a) make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel; (b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and (c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.
Immunity
85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.
Obligation to provide information
85.4 (1) The Minister shall, within a period set by the judge, provide the special advocate with a copy of all information and other evidence that is provided to the judge but that is not disclosed to the permanent resident or foreign national and their counsel.
Restrictions on communications — special advocate
(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person
C. 3
Immigration and Refugee Protection
about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate. Restrictions on communications — other persons
(3) If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.
Disclosure and communication prohibited
85.5 With the exception of communications authorized by a judge, no person shall (a) disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or (b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
Rules
85.6 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.
Composition of committees
(2) Any committee established shall be composed of the Chief Justice of the Federal Court of Appeal or the Chief Justice of the Federal Court, as the case may be, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to those types of proceedings. The Chief Justices may also designate additional members of their respective committees.
2007-2008 Chief Justices shall preside
Immigration et protection des réfu (3) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court — or a member designated by them — shall preside over their respective committees. Other Proceedings
Application for non-disclosure
86. The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, apply for the non-disclosure of information or other evidence. Sections 83 and 85.1 to 85.5 apply to the proceeding with any necessary modifications, including that a reference to “judge” be read as a reference to the applicable Division of the Board.
Application for nondisclosure — judicial review
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications.
Special advocate
87.1 If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.
Regulations Regulations
Requirements
87.2 (1) The regulations may provide for any matter relating to the application of this Division and may include provisions respecting conditions and qualifications that persons must meet to be included in the list referred to in subsection 85(1) and additional qualifications that are assets that may be taken into account for that purpose. (2) The regulations (a) shall require that, to be included in the list, persons be members in good standing of the bar of a province, not be employed in the
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federal public administration, and not otherwise be associated with the federal public administration in such a way as to impair their ability to protect the interests of the permanent resident or foreign national; and (b) may include provisions respecting those requirements. 5. (1) The portion of paragraph 166(b) of the English version of the Act before subparagraph (i) is replaced by the following: (b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is (2) Paragraph 166(c) of the English version of the Act is replaced by the following: (c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Immigration Division concerning a claimant of refugee protection, proceedings concerning cessation and vacation applications and proceedings before the Refugee Appeal Division must be held in the absence of the public; (3) Paragraph 166(f) of the Act is replaced by the following: (f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section. TRANSITIONAL PROVISIONS Definition of “the Act”
6. In sections 7 to 10, “the Act” means the Immigration and Refugee Protection Act.
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Immigration et protection des réfu
Proceedings relating to reasonableness of certificates
7. (1) A proceeding relating to the reasonableness of a certificate referred to the Federal Court under subsection 77(1) of the Act is terminated on the coming into force of this Act.
Existing removal orders
(2) A removal order made against a person who is named in a certificate referred to the Federal Court under the Act, or under the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, before this Act comes into force and who is in Canada when this Act comes into force ceases to have effect on that coming into force.
New certificates
(3) If, on the day on which this Act comes into force, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration sign a new certificate and refer it to the Federal Court under subsection 77(1) of the Act, as enacted by section 4 of this Act, the person who is named in the certificate (a) shall, if they were detained under Division 9 of Part 1 of the Act when this Act comes into force, remain in detention without a new warrant for their arrest and detention having to be issued under section 81 of the Act, as enacted by section 4 of this Act; or (b) shall, if they were released from detention under conditions under Division 9 of Part 1 of the Act when this Act comes into force, remain released under the same conditions unless a warrant for their arrest and detention is issued under section 81 of the Act, as enacted by section 4 of this Act.
Application for review of detention or conditions
(4) A person referred to in subsection (3) may apply to the Federal Court for a review of the reasons for their continued detention or of the reasons for continuing the conditions, as the case may be, within 60 days after the day on which this Act comes into force.
Review of detention
(5) If a person who is detained and who is entitled to make an application under subsection (4) does not do so, a judge shall commence a review of the reasons for the
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person’s continued detention at least once in the six-month period following the day on which this Act comes into force. Review of conditions
(6) If a person who is released from detention under conditions and who is entitled to make an application under subsection (4) does not do so, they may apply to the Federal Court for a review of the reasons for continuing the conditions if a period of six months has expired since the day on which this Act comes into force.
Calculation of period for next review
(7) For the purpose of calculating the sixmonth period referred to in subsection 82(2), (3) or (4) of the Act, as enacted by section 4 of this Act, the conclusion of the preceding review is deemed to have taken place on the day on which a judge makes a decision under this section.
Proceedings relating to section 112 or 115
8. (1) Any proceeding that involves a person who is named in a certificate and that relates to section 112 or 115 of the Act is terminated on the coming into force of this Act.
Persons subject to stay of removal
(2) A person who is named in a certificate referred to the Federal Court under subsection 77(1) of the Act, as enacted by section 4 of this Act, is not required to apply for protection under section 112 of the Act after the day on which this Act comes into force if a removal order made against them was stayed under subsection 114(1) of the Act when this Act comes into force unless the stay is cancelled under subsection 114(2) of the Act.
Existing removal orders — section 86
9. (1) A removal order made against a person in a proceeding in which an application was made for the non-disclosure of information under section 86 of the Act, as it read immediately before the coming into force of this Act, ceases to have effect when this Act comes into force if the person is in Canada on that coming into force.
New reports on inadmissibility
(2) If the Minister of Public Safety and Emergency Preparedness refers a report to the Immigration Division under subsection
2007-2008
Immigration et protection des réfu 44(2) of the Act on the day on which this Act comes into force, then the person who is named in the report (a) shall, if they were detained under Division 9 of Part 1 of the Act when this Act comes into force, remain in detention without a new warrant for their arrest and detention having to be issued under Division 6 of Part 1 of the Act; or (b) shall, if they were released from detention under conditions under Division 9 of Part 1 of the Act when this Act comes into force, remain released under the same conditions unless a warrant for their arrest and detention is issued under Division 6 of Part 1 of the Act.
Calculation of period for next review
(3) If the Minister of Public Safety and Emergency Preparedness refers a report to the Immigration Division under subsection 44(2) of the Act on the day on which this Act comes into force, then, for the purpose of calculating the 30-day period referred to in subsection 57(2) of the Act, the previous review is deemed to have taken place on that day.
Proceedings under section 86
(4) On the coming into force of this Act, section 86 of the Act, as enacted by section 4 of this Act, applies to a proceeding that is pending or in progress immediately before that coming into force and in which an application was made for the non-disclosure of information under section 86 of the Act, as it read immediately before that coming into force.
Proceedings under section 87
10. On the coming into force of this Act, sections 87 and 87.1 of the Act, as enacted by section 4 of this Act, apply to a proceeding that is pending or in progress immediately before that coming into force and in which an application was made for the non-disclosure of information under section 87 of the Act, as it read immediately before that coming into force.
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R.S., c. C-5
CONSEQUENTIAL AMENDMENT TO THE CANADA EVIDENCE ACT
2001, c. 41, s. 124(2)
11. Item 3 of the schedule to the Canada Evidence Act is replaced by the following: 3.
A judge of the Federal Court, the Federal Court of Appeal or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87.1 of the Immigration and Refugee Protection Act COMING INTO FORCE
Order in council
12. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 7 An Act to amend the Agricultural Marketing Programs Act
ASSENTED TO 28th FEBRUARY, 2008 BILL C-44
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Agricultural Marketing Programs Act”.
SUMMARY This enactment amends the Agricultural Marketing Programs Act by modifying the eligibility requirements for advances to livestock producers. It also expands the circumstances in which an emergency advance may be paid to producers to include situations of severe economic hardship.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 7 An Act to amend the Agricultural Marketing Programs Act [Assented to 28th February, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1997, c. 20
AGRICULTURAL MARKETING PROGRAMS ACT 1. Subsection 2(1) of the Agricultural Marketing Programs Act is amended by adding the following in alphabetical order:
“livestock” « bétail »
“livestock” means cattle, sheep, swine and bison and any other animals that may be designated by regulation. 2. (1) Paragraph 5(3)(e) of the Act is amended by striking out the word “and” at the end of subparagraph (i), by adding the word “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) despite subparagraphs (i) and (ii), in the case of an agricultural product that is livestock, it is of marketable quality and maintained so as to remain of marketable quality until disposed of in accordance with the repayment agreement; (2) Section 5 of the Act is amended by adding the following after subsection (3):
Specific terms and conditions
(3.01) An advance guarantee agreement may include any of the following terms and conditions governing advances and their repayment:
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(a) the producer must agree to inform the administrator of the producer’s participation in any program listed in the schedule; and (b) the producer must agree to assign, if in default, any amounts payable to the producer under a program listed in the schedule to (i) the administrator, to the extent of the producer’s liability under section 22, and (ii) the Minister, to the extent of the producer’s liability under section 23. 2006, c. 3, s. 4
3. Subsection 5.1(2) of the Act is replaced by the following:
Provisions do not apply
(2) Paragraph 5(3)(i), section 23 and, unless the agreement specifies otherwise, the following provisions do not apply to an advance guarantee agreement that the Minister enters into without making the guarantee referred to in paragraph 5(1)(a): (a) paragraphs 5(3)(c) and (e) to (h); (b) paragraphs 10(1)(g) and (h); and (c) paragraphs 10(2)(b) and (c).
2006, c. 3, s. 4
4. Section 7 of the Act is replaced by the following:
Emergency advance
7. (1) The advance guarantee agreement may authorize the administrator to pay, subject to any terms and conditions set out in the advance guarantee agreement, a portion of an advance as an emergency advance to an eligible producer who (a) has difficulty producing the producer’s agricultural product because of unusual production conditions that are attributable to weather or natural disaster, if it is reasonable to expect that the agricultural product will be marketable; or (b) experiences severe economic hardship, if the Governor in Council, on the recommendation of the Minister and the Minister of Finance, has declared — taking into account any criteria prescribed by regulation — that severe economic hardship affects a class of eligible producers to which that producer belongs and that the severe economic hardship would likely be substantially mitigated by emergency advances.
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Time limit for payment
(2) When acting under paragraph (1)(b), the Governor in Council must specify the time limit — not later than the day on which the production period ends — within which the emergency advances under that paragraph must be paid.
Maximum amount
(3) The maximum amount of the emergency advance is (a) in the case of an emergency advance under paragraph (1)(a), the lesser of $25,000, or the amount fixed by regulation, and 50%, or the percentage fixed by regulation, of the advance that the administrator expects to make to the producer in respect of the agricultural product on the basis of the amount of that product that is expected to be produced; or (b) in the case of an emergency advance under paragraph (1)(b), the lesser of $400,000, or the amount fixed by regulation, and 100%, or the percentage fixed by regulation, of the advance referred to in paragraph (a).
Provisions do not apply
(4) Paragraph 5(3)(e) does not apply to emergency advances under paragraph (1)(a) and, unless the advance guarantee agreement specifies otherwise, the following provisions do not apply to emergency advances under paragraph (1)(b): (a) paragraphs 5(3)(e) and (g); (b) subsection 5(3.01); (c) paragraphs 10(1)(g) and (h); (d) paragraphs 10(2)(b) to (c); and (e) subsection 19(3).
Applicable Minister’s percentage
(5) Unless paragraph 5(3)(g) applies under the advance guarantee agreement to emergency advances under paragraph (1)(b), the Minister’s percentage mentioned in paragraph 5(3)(i) and subsection 23(1) is 100% for an emergency advance under paragraph (1)(b) and shall not be determined by regulation.
Security
(6) The advance guarantee agreement may specify, in the place of or in addition to the security required by regulations made for the
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purpose of section 12, the security that the administrator is required to take for an emergency advance under paragraph (1)(b). 5. (1) Subsection 10(1) of the Act is amended by adding the following after paragraph (f): (f.1) the producer must demonstrate to the administrator that the producer is capable of meeting its obligations under the repayment agreement; (2) Paragraph 10(1)(h) of the Act is amended by striking out the word “and” at the end of subparagraph (i), by adding the word “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) despite subparagraphs (i) and (ii), in the case of an agricultural product that is livestock, it is of marketable quality and maintained so as to remain of marketable quality until disposed of; and (3) Subsection 10(1) of the Act is amended by striking out the word “and” at the end of paragraph (g) and by adding the following after paragraph (h): (i) the producer must meet any additional requirements prescribed by regulation. 2006, c. 3, s. 6(3)
(4) Subparagraphs 10(2)(a)(iii) and (iv) of the Act are replaced by the following: (iii) by paying directly to the administrator any amount received under a program listed in the schedule in accordance with the terms and conditions specified in the agreement, (iv) by assigning to the administrator amounts payable to the producer under a program listed in the schedule in accordance with the terms and conditions specified in the agreement, (5) Paragraph 10(2)(b) of the Act is amended by striking out the word “and” at the end of subparagraph (i), by adding the word “and” at the end of subparagraph (ii) and by adding the following after subparagraph (ii):
2007-2008
Programmes de comm (iii) despite subparagraphs (i) and (ii), in the case of an agricultural product that is livestock, it will be maintained so as to remain of marketable quality until disposed of in accordance with the repayment agreement; (6) Subsection 10(2) of the Act is amended by adding the following after paragraph (b): (b.1) if required by the advance guarantee agreement, to inform the administrator of the producer’s participation in any program listed in the schedule; (b.2) if required by the advance guarantee agreement, to assign, if the producer is in default, any amounts payable to the producer under a program listed in the schedule to (i) the administrator, to the extent of the producer’s liability under section 22, and (ii) the Minister, to the extent of the producer’s liability under section 23. 6. Section 23 of the Act is amended by adding the following after subsection (3):
Limitation period
(4) No action or proceedings may be initiated by the Minister to recover any amounts, interest and costs that are owing more than six years after the day on which the Minister is subrogated to the administrator’s rights.
Deduction and set-off
(5) The amounts, interest and costs that are owing may be recovered at any time by way of deduction from or set-off against any sum of money that may be due or payable by Her Majesty in right of Canada to the person who is liable or their estate or succession. 7. (1) Subsection 40(1) of the Act is amended by adding the following after paragraph (a): (a.1) designating animals as livestock for the purposes of the definition “livestock” in subsection 2(1);
2006, c. 3, s. 16(1)
(2) Paragraphs 40(1)(d.1) and (e) of the Act are replaced by the following:
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(d.1) fixing an amount for the purposes of each of subsection 5(5), paragraphs 7(3)(a) and (b), subsection 9(1), paragraph 20(1)(b) and subsection 20(1.1), which amount may, for the purposes of subsection 9(1), paragraph 20(1)(b) or subsection 20(1.1), differ with regard to classes of producers; (d.2) prescribing criteria for the purposes of paragraph 7(1)(b); (e) fixing a percentage for the purposes of each of paragraphs 7(3)(a) and (b) and 9(2)(c), subsection 19(2) and paragraph 20(2)(c); (3) Subsection 40(1) of the Act is amended by adding the following after paragraph (e.1): (e.2) prescribing, for the purposes of paragraph 10(1)(i), additional requirements, including requirements based on different classes of producers or agricultural products, different amounts of potential producer liability and different risks associated with that liability; 2006, c. 3, s. 16(3)
(4) Subsection 40(2) of the Act is replaced by the following:
Recommendation
(2) Regulations made under paragraph (1)(d.1), and regulations made under paragraph (1)(e) to the extent that they fix a percentage for the purposes of paragraph 7(3)(a) or (b) or subsection 19(2), may be made only on the recommendation of the Minister with the concurrence of the Minister of Finance. 8. Section 42 of the Act is amended by adding the following after subsection (1):
Emergency advances
(1.1) The Ministers’ review of the provisions of this Act relating to emergency advances under paragraph 7(1)(b) and their application must specifically address whether those provisions are necessary and to what extent they should be retained or modified.
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Programmes de comm TRANSITIONAL PROVISION
Transitional provision
9. (1) The Agricultural Marketing Programs Act, as it read immediately before the day on which this Act comes into force, continues to apply as of that day to any agreement entered into under Part I of that Act that is still in existence on the day on which this Act comes into force.
Exception
(2) However, the Agricultural Marketing Programs Act, as amended by this Act, applies to an agreement referred to in subsection (1) as of the day on which the parties amend the agreement to specify that that Act will apply and to bring the agreement into conformity with that Act.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 17 An Act respecting the provision of official development assistance abroad
ASSENTED TO 29th MAY, 2008 BILL C-293
SUMMARY This enactment sets out criteria respecting resource allocation to international development agencies and enhances transparency and monitoring of Canada’s international development efforts.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 17 An Act respecting the provision of official development assistance abroad [Assented to 29th May, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Official Development Assistance Accountability Act. PURPOSE
Purpose
2. (1) The purpose of this Act is to ensure that all Canadian official development assistance abroad is provided with a central focus on poverty reduction and in a manner that is consistent with Canadian values, Canadian foreign policy, the principles of the Paris Declaration on Aid Effectiveness of March 2, 2005, sustainable development and democracy promotion and that promotes international human rights standards.
Official development assistance
(2) Canadian official development assistance abroad shall be defined exclusively with regard to these values. INTERPRETATION
Definitions
“Canadian values” « valeurs canadiennes »
3. The following definitions apply in this Act. “Canadian values” means, amongst others, values of global citizenship, equity and environmental sustainability.
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“civil society organization” « organisme de la société civile »
“civil society organization” means a not-forprofit or charitable organization whose governing structure is independent of government direction, and includes, but is not limited to, registered charities, non-governmental development organizations, community groups, women’s organizations, faith-based organizations, professional associations, trade unions, self-help groups, social movements, business associations, coalitions, human rights organizations and advocacy groups.
“competent minister” « ministre compétent »
“democracy” « démocratie »
“international agency” « agence internationale »
“international assistance” « aide internationale »
“international human rights standards” « normes internationales en matière de droits de la personne »
“Minister” « ministre »
“official development assistance” « aide au développement officielle »
Official Development As
“competent minister” means the Minister of International Cooperation, the Minister of Finance, the Minister of Foreign Affairs or any other minister who is providing official development assistance. “democracy” includes, but is not limited to, political and civil rights as defined by the International Covenant on Civil and Political Rights. “international agency” means any organization whose objectives include global poverty reduction or international humanitarian assistance. “international assistance” means funding provided by government for international development, international financial institutions, global peace and security, crises overseas and international development research. “international human rights standards” means standards that are based on international human rights conventions to which Canada is a party and on international customary law.
“Minister” means the Minister of International Cooperation or any other minister designated by the Governor in Council as the Minister for the purposes of this Act. “official development assistance” means international assistance (a) that is administered with the principal objective of promoting the economic development and welfare of developing countries, that is concessional in character, that conveys a grant element of at least 25%, and that meets the requirements set out in section 4; or
2007-2008
Responsabilité en matière d’ai (b) that is provided for the purpose of alleviating the effects of a natural or artificial disaster or other emergency occurring outside Canada.
OFFICIAL DEVELOPMENT ASSISTANCE Official development assistance
4. (1) Official development assistance may be provided only if the competent minister is of the opinion that it (a) contributes to poverty reduction; (b) takes into account the perspectives of the poor; and (c) is consistent with international human rights standards.
Disaster or other emergency occurring outside Canada
(1.1) Notwithstanding subsection (1), official development assistance may be provided for the purposes of alleviating the effects of a natural or artificial disaster or other emergency occurring outside Canada.
Consultation
(2) The competent minister shall consult with governments, international agencies and Canadian civil society organizations at least once every two years, and shall take their views and recommendations into consideration when forming an opinion described in subsection (1).
Calculation of contribution
(3) In calculating Canada’s official development assistance contribution in Government of Canada publications, the competent minister or the Governor in Council shall consider only official development assistance as defined by this Act that meets the criteria in subsections (1) and (1.1).
No limit or restriction imposed
(4) Nothing in this Act shall be construed so as to limit the funding or restrict the activities of the International Development Research Centre. REPORTS
Report to Parliament
5. (1) The Minister or the competent minister shall cause to be submitted to each House of Parliament, within six months after the termina4
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Official Development As
tion of each fiscal year or, if that House is not then sitting, on any of the first five days next thereafter that the House is sitting, a report containing (a) the total amount spent by the Government of Canada on official development assistance in the previous fiscal year; (b) a summary of any activity or initiative taken under this Act; (c) a summary of the annual report submitted under the Bretton Woods and Related Agreements Act; (d) a summary of any representation made by Canadian representatives with respect to priorities and policies of the Bretton Woods Institutions; and (e) a summary of the Departmental Performance Report of the Canadian International Development Agency. Statistical report
(2) The Minister shall issue a statistical report on the disbursement of official development assistance within one year after the end of each fiscal year.
Report to Parliament
(3) The Minister of Finance shall, in addition to preparing the report required under section 13 of the Bretton Woods and Related Agreements Act, contribute the following to the report submitted to Parliament under subsection (1): (a) the position taken by Canada on any resolution that is adopted by the Board of Governors of the Bretton Woods Institutions; and (b) a summary of the manner in which Canada’s activities under the Bretton Woods and Related Agreements Act have contributed to carrying out the purpose of this Act.
Information not to be disclosed
(4) Despite subsections (1) and (3), information shall not be reported under this section if its disclosure is prohibited by the policies of the Bretton Woods Institutions.
2007-2008
Responsabilité en matière d’ai COMING INTO FORCE
Coming into force
6. This Act comes into force 30 days after the day on which it receives royal assent.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 16
An Act to protect heritage lighthouses
ASSENTED TO 29th MAY, 2008 BILL S-215
SUMMARY This enactment protects federally-owned heritage lighthouses by providing a means for their designation as heritage lighthouses; by providing an opportunity for public consultation before alterations are made to a designated heritage lighthouse; by requiring public notice before the transfer, sale or demolition of a designated heritage lighthouse; and by requiring that designated heritage lighthouses be maintained in a manner consistent with accepted conservation standards.
All parliamentary publications are available on the Parliamentary Internet Parlementaire at the following address: http://www.parl.gc.ca
L prié pha ava dési ven treti nue
56-57 ELIZABETH II
CHAPTER 16
An Act to protect heritage lighthouses
Loi
[Assented to 29th May 2008] Preamble
WHEREAS lighthouses have long graced Canadas rugged coastlines and majestic shores, providing and symbolizing direction, hope and safe harbour to generations of mariners; AND WHEREAS lighthouses form an integral part of Canadas identity, culture and heritage, and are of historic and aesthetic interest and significance to our communities and our nation; AND WHEREAS communities in the areas in which lighthouses are situated have an important role in the conservation and protection of heritage lighthouses and in ensuring a public purpose for them; AND WHEREAS it is important to provide access to heritage lighthouses in order for people to understand and appreciate the contribution of those lighthouses to Canadas maritime heritage; AND WHEREAS the Parliament of Canada recognizes that measures must be taken to conserve and protect our heritage lighthouses; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
A
q le v sy n
q l d im n
q p d p u
q p p m à
q n co re
Sa M du S Cana
SHORT TITLE Short title
1. This Act may be cited as the Heritage Lighthouse Protection Act.
1 mon
C. 16
Heritage Lighthouse
INTERPRETATION Definitions
2. The following definitions apply in this Act.
2 à la
advisory committee « comité consultatif »
advisory committee means the advisory committee established by the Minister under section 10.
alter « modifier »
alter includes to restore or renovate, but does not include to perform routine maintenance and repairs.
« bâ phar mêm cara
established criteria « critère établi »
established criteria means the criteria established by the Minister under paragraph 16(a).
heritage lighthouse « phare patrimonial »
heritage lighthouse means a lighthouse designated as a heritage lighthouse under this Act, and includes any related building that is included in the designation.
lighthouse « phare »
lighthouse means a tower or other structure, including its fixtures, that was built to contain, contains, or once contained a beacon light or other signal to warn or guide marine vessels, whether or not it is now in use as an aid to navigation.
Minister « ministre »
Minister means the Minister responsible for the Parks Canada Agency.
related building « bâtiment connexe »
related building, in relation to a heritage lighthouse, means any building on the site on which the lighthouse is situated that contributes to the heritage character of the lighthouse.
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PURPOSE AND APPLICATION Purpose
3. The purpose of this Act is to conserve and protect heritage lighthouses by (a) providing for the selection and designation of heritage lighthouses; (b) preventing the unauthorized alteration or disposition of heritage lighthouses; (c) requiring that heritage lighthouses be reasonably maintained; and (d) facilitating sales or transfers of heritage lighthouses in order to ensure the lighthouses public purpose.
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2007-2008
Protection des phares
Application
4. This Act applies to lighthouses that are the property of Her Majesty in right of Canada.
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Binding on Her Majesty
5. This Act is binding on Her Majesty in right of Canada.
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DESIGNATION OF HERITAGE LIGHTHOUSES Designation by the Minister
6. (1) The Minister may, at any time, taking into account the established criteria, designate a lighthouse to be a heritage lighthouse for the purposes of this Act.
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Inclusion of related structure
(2) The designation of a lighthouse may include any related building that the Minister considers should be included in the designation, taking into account the established criteria.
(2 pren du m étab
Definition of petition
7. (1) In this section, petition means a petition that a specified lighthouse be designated as a heritage lighthouse that is
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(a) signed by at least 25 persons who are resident in Canada and are 18 years of age or older, and whose names and addresses appear in printed form on the petition; and
Consideration within five years
(b) received by the Minister within two years after the coming into force of this Act.
b an se
(2) Within five years after the coming into force of this Act, the Minister must, taking into account the established criteria,
(2 vigu nant
(a) consider all lighthouses in respect of which the Minister receives a petition; and (b) determine which of them should be designated as heritage lighthouses and whether any related buildings should be included in the designations, and make the appropriate designations. Surplus lighthouses
a ci an ad
8. (1) For two years beginning with the coming into force of this Act, every Minister of the Crown in right of Canada who has the administration of lighthouses must maintain and make available to the public a list of those lighthouses that he or she considers to be surplus to the operational requirements of the portion of the federal public administration for which he or she is responsible.
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C. 16
Heritage Lighthouse
Commitment
(2) A surplus lighthouse may only be designated as a heritage lighthouse if a person or body submits a written commitment to buy or otherwise acquire the lighthouse and to protect its heritage character in the event that it is designated as a heritage lighthouse.
(2 être une mini la d phar nial.
Publication of list of lighthouses considered
9. Within 90 days after the expiration of the five-year period referred to in subsection 7(2), the Minister must publish, in the Canada Gazette, a list of all lighthouses that the Minister has considered for designation as heritage lighthouses under this Act, indicating, for each lighthouse, whether or not it has been designated as a heritage lighthouse.
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Advisory committee
10. The Minister must establish an advisory committee to advise and assist the Minister on matters relating to heritage lighthouses, including the designation and protection of heritage lighthouses and the establishment of criteria for their designation, alteration and maintenance.
1 cons siste patri leur relat tion
Consultation with the advisory committee
11. The Minister must consult with the advisory committee, and may consult with any other persons or bodies that the Minister considers appropriate, before determining whether a lighthouse should be designated as a heritage lighthouse and whether any related building should be included in the designation.
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PROTECTION OF HERITAGE LIGHTHOUSES Alterations
12. (1) A heritage lighthouse, or any part of it, may only be altered in accordance with the criteria and procedures established under paragraph 16(b).
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Exception
(2) Subsection (1) does not apply in respect of an alteration made to a heritage lighthouse
(2 ficat
Notice of transfer or sale
(a) in response to an emergency situation or an urgent operational requirement; or
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(b) for operational reasons, if the alteration does not affect the heritage character of the heritage lighthouse.
b m ca
13. (1) A heritage lighthouse, or any part of it, may only be transferred to Her Majesty in right of a province or sold if a notice is published at least 90 days before the transfer
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Protection des phares
2007-2008
or sale in one or more newspapers of general circulation in the area in which the lighthouse is situated.
jours large phar
Public meeting
(2) A heritage lighthouse, or any part of it, may only be sold if a public meeting is held on the matter in the area in which the lighthouse is situated, unless the sale is to a municipality or to a person or body that is acquiring the heritage lighthouse for a public purpose.
(2 trim publ gion est u liser
Protection of heritage character
(3) Any transaction effecting a transfer to Her Majesty in right of a province or a sale must provide for the protection of the heritage character of the heritage lighthouse by any means that the Minister may authorize.
(3 prév tère mini
Notice of demolition
14. (1) A heritage lighthouse, or any part of it, may only be demolished if there is no reasonable alternative and if a notice is published at least 90 days before the demolition in one or more newspapers of general circulation in the area in which the lighthouse is situated.
1 dun sil n si u jours large le ph
Public meeting
(2) A heritage lighthouse, or any part of it, may only be demolished if a public meeting is held on the matter in the area in which the lighthouse is situated.
(2 phar réun la ré
Exception
(3) Subsections (1) and (2) do not apply in respect of the demolition of a heritage lighthouse in response to an emergency situation or an urgent operational requirement.
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MAINTENANCE OF HERITAGE LIGHTHOUSES Duty to maintain
15. The owner of a heritage lighthouse 1 1 must maintain it in accordance with the criteria 2 doit established under paragraph 16(c). 3 étab GENERAL
Criteria
16. The Minister must
(a) establish criteria to be taken into account in considering whether a lighthouse should be designated as a heritage lighthouse and whether any related building should be included in the designation;
a co ai d
b p ré ti n
Heritage Lighthouse
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(b) establish criteria and procedures respecting the alteration of heritage lighthouses that are in keeping with national and international standards for the conservation of heritage properties; and
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(c) establish criteria for the maintenance of heritage lighthouses that are in keeping with national and international standards for the conservation of heritage properties. 1998, c. 31
RELATED AMENDMENTS TO THE PARKS CANADA AGENCY ACT
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2005, c. 2, s. 3(2)
17. Paragraph (a) of the definition heritage protection programs in subsection 2(1) of the Parks Canada Agency Act is replaced by the following:
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2005, c. 2, s.4
(a) heritage railway stations, heritage lighthouses and federal heritage buildings;
a p ra
18. Paragraph 4(1)(b) of the Act is replaced by the following:
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(b) heritage railway stations, heritage lighthouses, federal heritage buildings, historic places in Canada, federal archaeology and Canadian heritage rivers; and
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COMING INTO FORCE Coming into force
19. This Act comes into force on the day that is two years after the day on which it receives royal assent, or on an earlier day fixed by order of the Governor in Council.
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Published under authority of the Senate of Canada
Publ
Available from: PWGSC Publishing and Depository Services Ottawa, Ontario K1A 0S5
Disp TPSG Ottaw
Also available on the Internet: http://www.parl.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 6 An Act to amend the Criminal Code and to make consequential amendments to other Acts
ASSENTED TO 28th FEBRUARY, 2008 BILL C-2
SUMMARY This enactment amends the Criminal Code by (a) creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences; (b) strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons; (c) providing for more effective sentencing and monitoring of dangerous and high-risk offenders; (d) introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and (e) raising the age of consent for sexual activity from 14 to 16 years.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 6 An Act to amend the Criminal Code and to make consequential amendments to other Acts [Assented to 28th February, 2008] Preamble
Whereas Canadians are entitled to live in a safe society; Whereas violence involving firearms continues to threaten the safety of Canadians; Whereas dangerous and high risk offenders pose a significant threat to the public; Whereas driving under the influence of drugs or alcohol can result in serious bodily harm and death on Canada’s streets; Whereas families should be able to raise their children without fear of sexual predators; Whereas the Parliament of Canada is committed to enacting comprehensive laws to combat violent crime and to protect Canadians while respecting and promoting the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms; And whereas those laws should ensure that violent offenders are kept in prison, should provide those responsible for law enforcement with effective tools to detect and investigate crime, and should better protect young persons from sexual predators;
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Tackling Vio
Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. C-46
1. This Act may be cited as the Tackling Violent Crime Act. CRIMINAL CODE 2. Section 84 of the Criminal Code is amended by adding the following after subsection (4):
Subsequent offences
(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1); (b) an offence under section 244; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(6) For the purposes of subsection (5), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
2003, c. 8, s. 3
3. (1) Paragraph 85(1)(a) of the Act is replaced by the following: (a) while committing an indictable offence, other than an offence under section 220 (criminal negligence causing death), 236 (manslaughter), 239 (attempted murder),
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Lutte contre les 244 (discharging firearm with intent), 272 (sexual assault with a weapon) or 273 (aggravated sexual assault), subsection 279(1) (kidnapping) or section 279.1 (hostage-taking), 344 (robbery) or 346 (extortion),
1995, c. 39, s. 139
(2) Subsection 85(3) of the Act is amended by adding the word “and” at the end of paragraph (a) and by replacing paragraphs (b) and (c) with the following: (b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of three years.
1995, c. 39, s. 139
4. Subsections 91(1) and (2) of the Act are replaced by the following:
Unauthorized possession of firearm
91. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm without being the holder of (a) a licence under which the person may possess it; and (b) a registration certificate for the firearm.
Unauthorized possession of prohibited weapon or restricted weapon
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.
1995, c. 39, s. 139
5. Subsections 92(1) and (2) of the Act are replaced by the following:
Possession of firearm knowing its possession is unauthorized
92. (1) Subject to subsections (4) and (5), every person commits an offence who possesses a firearm knowing that the person is not the holder of (a) a licence under which the person may possess it; and (b) a registration certificate for the firearm.
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Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized
(2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition knowing that the person is not the holder of a licence under which the person may possess it.
1995, c. 39, s. 139
6. The portion of subsection 93(1) of the Act before paragraph (a) is replaced by the following:
Possession at unauthorized place
93. (1) Subject to subsection (3), every person commits an offence who, being the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition, possesses the firearm, prohibited weapon, restricted weapon, prohibited device or prohibited ammunition at a place that is
1995, c. 39, s. 139
7. The portion of subsection 94(1) of the Act before paragraph (a) is replaced by the following:
Unauthorized possession in motor vehicle
94. (1) Subject to subsections (3) to (5), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless
1995, c. 39, s. 139
8. (1) The portion of subsection 95(1) of the Act before paragraph (a) is replaced by the following:
Possession of prohibited or restricted firearm with ammunition
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of
1995, c. 39, s. 139
(2) Paragraph 95(2)(a) of the Act is replaced by the following:
Tackling Vio
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
2007-2008
Lutte contre les (i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; or
1995, c. 39, s. 139
9. Section 98 of the Act is replaced by the following:
Breaking and entering to steal firearm
98. (1) Every person commits an offence who (a) breaks and enters a place with intent to steal a firearm located in it; (b) breaks and enters a place and steals a firearm located in it; or (c) breaks out of a place after (i) stealing a firearm located in it, or (ii) entering the place with intent to steal a firearm located in it.
Definitions of “break” and “place”
Entrance
(2) In this section, “break” has the same meaning as in section 321, and “place” means any building or structure — or part of one — and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer. (3) For the purposes of this section, (a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and (b) a person is deemed to have broken and entered if he or she (i) obtained entrance by a threat or an artifice or by collusion with a person within, or (ii) entered without lawful justification or excuse by a permanent or temporary opening.
Punishment
(4) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life.
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Robbery to steal firearm
98.1 Every person who commits a robbery within the meaning of section 343 with intent to steal a firearm or in the course of which he or she steals a firearm commits an indictable offence and is liable to imprisonment for life.
1995, c. 39, s. 139
10. Subsection 99(2) of the Act is replaced by the following:
Punishment — firearm
(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
Tackling Vio
(a) in the case of a first offence, three years; and (b) in the case of a second or subsequent offence, five years. Punishment — other cases
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
1995, c. 39, s. 139
11. Subsection 100(2) of the Act is replaced by the following:
Punishment — firearm
(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (a) in the case of a first offence, three years; and (b) in the case of a second or subsequent offence, five years.
Punishment — other cases
(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
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Lutte contre les
1995, c. 39, s. 139
12. Subsection 103(2) of the Act is replaced by the following:
Punishment — firearm
(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (a) in the case of a first offence, three years; and (b) in the case of a second or subsequent offence, five years.
Punishment — other cases
(2.1) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of one year.
R.S., c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 2(1)
13. (1) Subsections 150.1(1) and (2) of the Act are replaced by the following:
Consent no defence
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
Exception — complainant aged 12 or 13
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (a) is less than two years older than the complainant; and (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of
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Tackling Vio
dependency and is not in a relationship with the complainant that is exploitative of the complainant. Exception — complainant aged 14 or 15
(2.1) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complain- ant consented to the activity that forms the subject-matter of the charge if (a) the accused (i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (b) the accused is married to the complainant.
Exception for transitional purposes
(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subjectmatter of the charge if, on the day on which this subsection comes into force, (a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and (b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. (2) Section 150.1 of the Act is amended by adding the following after subsection (5):
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Lutte contre les
Mistake of age
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.
2002, c. 13, s. 8
14. Paragraphs 172.1(1)(b) and (c) of the Act are replaced by the following: (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 280 with respect to that person; or (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person. 15. Paragraph (a) of the definition “offence” in section 183 of the Act is amended by adding the following after subparagraph (xiii): (xiii.1) section 98 (breaking and entering to steal firearm), (xiii.2) section 98.1 (robbery to steal firearm),
1995, c. 39, s. 143
16. Section 239 of the Act is replaced by the following:
Attempt to commit murder
239. (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years;
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Tackling Vio
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244; or (c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
1995, c. 39, s. 144
17. Section 244 of the Act is replaced by the following:
Discharging firearm with intent
244. (1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
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Lutte contre les (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; and (b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.
Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2); or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction. 18. Section 253 of the Act is renumbered as subsection 253(1) and is amended by adding the following:
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For greater certainty
(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
R.S., c. 27 (1st Supp.), s. 36
19. (1) The portion of subsection 254(1) of the Act before the definition “analyst” is replaced by the following:
Definitions
254. (1) In this section and sections 254.1 to 258.1,
Tackling Vio
(2) Subsection 254(1) of the Act is amended by adding the following in alphabetical order: “evaluating officer” « agent évaluateur »
“evaluating officer” means a peace officer who is qualified under the regulations to conduct evaluations under subsection (3.1);
R.S., c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14 and 18 (Sch. I, item 6)(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2
(3) Subsections 254(2) to (6) of the Act are replaced by the following:
Testing for presence of alcohol or a drug
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol: (a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and
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Lutte contre les (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
Video recording
(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a).
Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; and (b) if necessary, to accompany the peace officer for that purpose.
Evaluation
(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or of a combination of alcohol and a drug, the peace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether
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Tackling Vio
the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose. Video recording
(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).
Testing for presence of alcohol
(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made by means of an approved instrument.
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, (a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or (b) samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine whether the person has a drug in their body.
Condition
(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.
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Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
Only one determination of guilt
(6) A person who is convicted of an offence under subsection (5) for a failure or refusal to comply with a demand may not be convicted of another offence under that subsection in respect of the same transaction. 20. The Act is amended by adding the following after section 254:
Regulations
254.1 (1) The Governor in Council may make regulations (a) respecting the qualifications and training of evaluating officers; (b) prescribing the physical coordination tests to be conducted under paragraph 254(2)(a); and (c) prescribing the tests to be conducted and procedures to be followed during an evaluation under subsection 254(3.1).
Incorporated material
(2) A regulation may incorporate any material by reference either as it exists on a specified date or as amended from time to time.
Incorporated material is not a regulation
(3) For greater certainty, material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.
R.S., c. 27 (1st Supp.), s. 36; 1999, c. 32, s. 3
21. (1) Subparagraphs 255(1)(a)(i) to (iii) of the Act are replaced by the following: (i) for a first offence, to a fine of not less than $1,000, (ii) for a second offence, to imprisonment for not less than 30 days, and (iii) for each subsequent offence, to imprisonment for not less than 120 days;
R.S., c. 27 (1st Supp.), s. 36
(2) Paragraph 255(1)(c) of the Act is replaced by the following: (c) if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.
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R.S., c. 27 (1st Supp.), s. 36; 2000, c. 25, s. 2
(3) Subsections 255(2) and (3) of the Act are replaced by the following:
Impaired driving causing bodily harm
(2) Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Blood alcohol level over legal limit — bodily harm
(2.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Failure or refusal to provide sample — bodily harm
(2.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.
Impaired driving causing death
(3) Everyone who commits an offence under paragraph 253(1)(a) and causes the death of another person as a result is guilty of an indictable offence and liable to imprisonment for life.
Blood alcohol level over legal limit — death
(3.1) Everyone who, while committing an offence under paragraph 253(1)(b), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life.
Failure or refusal to provide sample — death
(3.2) Everyone who commits an offence under subsection 254(5) and, at the time of committing the offence, knows or ought to know that their operation of the motor vehicle, vessel, aircraft or railway equipment, their assistance in the operation of the aircraft or railway equipment or their care or control of the motor vehicle, vessel, aircraft or railway equipment caused an accident resulting in the death of another person, or in bodily harm to another
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R.S., c. 27 (1st Supp.), s. 36
(4) The portion of subsection 255(4) of the Act before paragraph (b) is replaced by the following:
Previous convictions
(4) A person who is convicted of an offence committed under section 253 or subsection 254(5) is, for the purposes of this Act, deemed to be convicted for a second or subsequent offence, as the case may be, if they have previously been convicted of (a) an offence committed under either of those provisions;
R.S., c. 27 (1st Supp.), s. 36
22. Subsection 256(5) of the Act is replaced by the following:
Copy or facsimile to person
(5) When a warrant issued under subsection (1) is executed, the peace officer shall, as soon as practicable, give a copy of it — or, in the case of a warrant issued by telephone or other means of telecommunication, a facsimile — to the person from whom the blood samples are taken.
R.S., c. 27 (1st Supp.), s. 36
23. Subsection 257(2) of the Act is replaced by the following:
No criminal or civil liability
(2) No qualified medical practitioner by whom or under whose direction a sample of blood is taken from a person under subsection 254(3) or (3.4) or section 256, and no qualified technician acting under the direction of a qualified medical practitioner, incurs any criminal or civil liability for anything necessarily done with reasonable care and skill when taking the sample.
R.S., c. 27 (1st Supp.), s. 36
24. (1) The portion of subsection 258(1) of the Act before paragraph (a) is replaced by the following:
Proceedings under section 255
258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
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R.S., c. 27 (1st Supp.), s. 36
(2) Paragraph 258(1)(b) of the Act is replaced by the following:
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(b) the result of an analysis of a sample of the accused’s breath, blood, urine or other bodily substance — other than a sample taken under subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the accused was not warned before they gave the sample that they need not give the sample or that the result of the analysis of the sample might be used in evidence; R.S., c. 27 (1st Supp.), s. 36
(3) The portion of paragraph 258(1)(c) of the French version of the Act before subparagraph (i) is replaced by the following: c) lorsque des échantillons de l’haleine de l’accusé ont été prélevés conformément à un ordre donné en vertu du paragraphe 254(3), la preuve des résultats des analyses fait foi de façon concluante, en l’absence de toute preuve tendant à démontrer à la fois que les résultats des analyses montrant une alcoolémie supérieure à quatre-vingts milligrammes d’alcool par cent millilitres de sang découlent du mauvais fonctionnement ou de l’utilisation incorrecte de l’alcootest approuvé et que l’alcoolémie de l’accusé au moment où l’infraction aurait été commise ne dépassait pas quatre-vingts milligrammes d’alcool par cent millilitres de sang, de l’alcoolémie de l’accusé tant au moment des analyses qu’à celui où l’infraction aurait été commise, ce taux correspondant aux résultats de ces analyses, lorsqu’ils sont identiques, ou au plus faible d’entre eux s’ils sont différents, si les conditions suivantes sont réunies :
R.S., c. 27 (1st Supp.), s. 36
(4) The portion of paragraph 258(1)(c) of the English version of the Act after subparagraph (iv) is replaced by the following: evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results
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R.S., c. 27 (1st Supp.), s. 36; 1997, c. 18, ss. 10(1) and (2)
(5) Paragraphs 258(1)(d) and (d.1) of the Act are replaced by the following:
(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if (i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4), (ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed, (iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner, (iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and
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evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the analysis was performed improperly, that the improper performance resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of (i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed; (d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that para2007-2008
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R.S., c. 27 (1st Supp.), s. 36
(7) The portion of paragraph 258(1)(h) of the Act before subparagraph (i) is replaced by the following: (h) if a sample of the accused’s blood has been taken under subsection 254(3) or (3.4) or section 256 or with the accused’s consent,
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R.S., c. 27 (1st Supp.), s. 36
(8) Clause 258(1)(h)(i)(A) of the Act is replaced by the following:
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(A) they took the sample and before the sample was taken they were of the opinion that taking it would not endanger the accused’s life or health and, in the case of a demand made under section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol or a drug, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of the sample,
R.S., c. 27 (1st Supp.), s. 36; 1997, c. 18, s. 10(3)
(9) Subsections 258(2) to (6) of the Act are replaced by the following:
Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.
Evidence of failure to comply with demand
(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.
Release of sample for analysis
(4) If, at the time a sample of an accused’s blood is taken, an additional sample is taken and retained, a judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months after the day on which the samples were taken, order the release of one of the samples for the purpose of
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Testing of blood for concentration of a drug
(5) A sample of an accused’s blood taken under subsection 254(3) or section 256 or with the accused’s consent for the purpose of analysis to determine the concentration, if any, of alcohol in the blood may be tested to determine the concentration, if any, of a drug in the blood.
Attendance and right to crossexamine
(6) A party against whom a certificate described in paragraph (1)(e), (f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of crossexamination. 25. The Act is amended by adding the following after section 258:
Unauthorized use of bodily substance
258.1 (1) Subject to subsections 258(4) and (5) and subsection (3), no person shall use a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer or medical samples that are provided by consent and subsequently seized under a warrant, except for the purpose of an analysis that is referred to in that provision or for which the consent is given.
Unauthorized use or disclosure of results
(2) Subject to subsections (3) and (4), no person shall use, disclose or allow the disclosure of the results of physical coordination tests under paragraph 254(2)(a), the results of an evaluation under subsection 254(3.1), the results of the analysis of a bodily substance taken under paragraph 254(2)(b), subsection 254(3), (3.3) or (3.4) or section 256 or with the consent of the person from whom it was taken after a request by a peace officer, or the results of the analysis of medical samples that are provided by consent and subsequently seized under a warrant, except
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(a) in the course of an investigation of, or in a proceeding for, an offence under any of sections 220, 221, 236 and 249 to 255, an offence under Part I of the Aeronautics Act, or an offence under the Railway Safety Act in respect of a contravention of a rule or regulation made under that Act respecting the use of alcohol or a drug; or (b) for the purpose of the administration or enforcement of the law of a province. Exception
(3) Subsections (1) and (2) do not apply to persons who for medical purposes use samples or use or disclose the results of tests, taken for medical purposes, that are subsequently seized under a warrant.
Exception
(4) The results of physical coordination tests, an evaluation or an analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or other research purposes.
Offence
(5) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
1999, c. 32, s. 5(1); 2006, c. 14, s. 3(1)(F)
26. (1) Subsection 259(1) of the Act is replaced by the following:
Mandatory order of prohibition
259. (1) When an offender is convicted of an offence committed under section 253 or 254 or this section or discharged under section 730 of an offence committed under section 253 and, at the time the offence was committed or, in the case of an offence committed under section 254, within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street,
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2000, c. 2, s. 2
(2) The portion of subsection 259(2) of the Act before paragraph (a) is replaced by the following:
Discretionary order of prohibition
(2) If an offender is convicted or discharged under section 730 of an offence under section 220, 221, 236, 249, 249.1, 250, 251 or 252 or any of subsections 255(2) to (3.2) committed by means of a motor vehicle, a vessel, an aircraft or railway equipment, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel, an aircraft or railway equipment, as the case may be,
2006, c. 14, s. 5
27. Section 261 of the Act is replaced by the following:
Stay of order pending appeal
261. (1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.
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Appeals to Supreme Court of Canada
(1.1) In the case of an appeal to the Supreme Court of Canada, the direction referred to in subsection (1) may be made only by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada.
Effect of conditions
(2) If conditions are imposed under a direction made under subsection (1) or (1.1) that a prohibition order be stayed, the direction shall not operate to decrease the period of prohibition provided in the order.
1995, c. 39, s. 145
28. (1) Paragraph 272(2)(a) of the Act is replaced by the following:
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(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and (2) Section 272 of the Act is amended by adding the following after subsection (2): Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244; or
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Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
1995, c. 39, s. 146
29. (1) Paragraph 273(2)(a) of the Act is replaced by the following: (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (2) Section 273 of the Act is amended by adding the following after subsection (2):
Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section;
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(b) an offence under subsection 85(1) or (2) or section 244; or (c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody. Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
1995, c. 39, s. 147
30. (1) Paragraph 279(1.1)(a) of the Act is replaced by the following: (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (2) Section 279 of the Act is amended by adding the following after subsection (1.1):
Subsequent offences
(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence,
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Sequence of convictions only
(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
R.S., c. 27 (1st Supp.), s. 40(1)
31. (1) Subsection 279.1(1) of the Act is replaced by the following:
Hostage taking
279.1 (1) Everyone takes a person hostage who — with intent to induce any person, other than the hostage, or any group of persons or any state or international or intergovernmental organization to commit or cause to be committed any act or omission as a condition, whether express or implied, of the release of the hostage — (a) confines, imprisons, forcibly seizes or detains that person; and (b) in any manner utters, conveys or causes any person to receive a threat that the death of, or bodily harm to, the hostage will be caused or that the confinement, imprisonment or detention of the hostage will be continued.
1995, c. 39, s. 148
(2) Paragraph 279.1(2)(a) of the Act is replaced by the following: (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of
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the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (3) Section 279.1 of the Act is amended by adding the following after subsection (2): Subsequent offences
(2.1) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(2.2) For the purposes of subsection (2.1), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
1995, c. 39, s. 149
32. (1) Paragraph 344(a) of the Act is replaced by the following:
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Subsequent offences
(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(3) For the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
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1995, c. 39, s. 150
33. (1) Paragraph 346(1.1)(a) of the Act is replaced by the following:
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(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (2) Section 346 of the Act is amended by adding the following after subsection (1.1): Subsequent offences
(1.2) In determining, for the purpose of paragraph (1.1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
Sequence of convictions only
(1.3) For the purposes of subsection (1.2), the only question to be considered is the sequence of convictions and no consideration
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2002, c. 13, s. 15
34. The portion of section 348.1 of the Act before paragraph (a) is replaced by the following:
Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
1998, c. 37, s. 15(2)
35. Subparagraph (a)(ix) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following: (ix) section 244 (discharging firearm with intent),
2004, c. 10, s. 20
36. Subparagraph (a)(xviii) of the definition “designated offence” in subsection 490.011(1) of the Act is replaced by the following: (xviii) paragraph 273(2)(a) (aggravated sexual assault — use of a restricted firearm or prohibited firearm or any firearm in connection with criminal organization), (xviii.1) paragraph 273(2)(a.1) (aggravated sexual assault — use of a firearm),
37. (1) The portion of subsection 515(6) of the Act before paragraph (a) is replaced by the following: Order of detention
(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
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(2) Paragraph 515(6)(a) of the Act is amended by striking out the word “or’’ at the end of subparagraph (iv) and by adding the following after subparagraph (v): (vi) that is an offence under section 99, 100 or 103, (vii) that is an offence under section 244, or that is an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or (viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1); (3) The portion of subsection 515(6) of the Act after paragraph (d) is repealed. (4) Section 515 of the Act is amended by adding the following after subsection (6): Reasons
(6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice’s reasons for making the order.
1997, c. 18, s. 59(2)
(5) Paragraph 515(10)(c) of the Act is replaced by the following: (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject2007-2008
Lutte contre les matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
R.S., c. 27 (1st Supp.), s. 134
38. Subsection 662(6) of the Act is replaced by the following:
Conviction for break and enter with intent
(6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph.
1997, c. 17, s. 1(2)
39. Subsection 743.1(3.1) of the Act is replaced by the following:
Long-term supervision
(3.1) Despite subsection (3), an offender who is subject to long-term supervision under Part XXIV and is sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a penitentiary.
40. Section 752 of the Act is amended by adding the following in alphabetical order: “designated offence” « infraction désignée »
“designated offence” means (a) a primary designated offence, (b) an offence under any of the following provisions: (i) paragraph 81(1)(a) (using explosives), (ii) paragraph 81(1)(b) (using explosives), (iii) section 85 (using firearm or imitation firearm in commission of offence), (iv) section 87 (pointing firearm), (v) section 153.1 (sexual exploitation of person with disability), (vi) section 163.1 (child pornography), (vii) section 170 (parent or guardian procuring sexual activity), (viii) section 171 (householder permitting sexual activity by or in presence of child), (ix) section 172.1 (luring child),
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(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(2) (sexual intercourse with female between ages of 14 and 16), (ii) section 148 (sexual intercourse with feeble-minded), (iii) section 166 (parent or guardian procuring defilement), and
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Lutte contre les (iv) section 167 (householder permitting defilement), or (d) an attempt or conspiracy to commit an offence referred to in paragraph (b) or (c);
“long-term supervision” « surveillance de longue durée »
“primary designated offence” « infraction primaire »
“long-term supervision” means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i); “primary designated offence” means (a) an offence under any of the following provisions: (i) section 151 (sexual interference), (ii) section 152 (invitation to sexual touching), (iii) section 153 (sexual exploitation), (iv) section 155 (incest), (v) section 239 (attempt to commit murder), (vi) section 244 (discharging firearm with intent), (vii) section 267 (assault with weapon or causing bodily harm), (viii) section 268 (aggravated assault), (ix) section 271 (sexual assault), (x) section 272 (sexual assault with weapon, threats to third party or causing bodily harm), (xi) section 273 (aggravated sexual assault), and (xii) subsection 279(1) (kidnapping), (b) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 4, 1983: (i) section 144 (rape), (ii) section 145 (attempt to commit rape), (iii) section 149 (indecent assault on female), (iv) section 156 (indecent assault on male),
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(c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as enacted by section 19 of An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, chapter 125 of the Statutes of Canada, 1980-81-82-83: (i) section 246.1 (sexual assault), (ii) section 246.2 (sexual assault with weapon, threats to third party or causing bodily harm), and (iii) section 246.3 (aggravated sexual assault), (d) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(1) (sexual intercourse with female under age of 14), and (ii) paragraph 153(1)(a) (sexual intercourse with step-daughter), or (e) an attempt or conspiracy to commit an offence referred to in any of paragraphs (a) to (d);
1997, c. 17, s. 4
41. Section 752.1 of the Act is replaced by the following:
Prosecutor’s duty to advise court
752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of
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Lutte contre les those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).
Application for remand for assessment
752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1.
Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
1997, c. 17, s. 4
42. (1) The portion of subsection 753(1) of the Act before paragraph (a) is replaced by the following:
Application for finding that an offender is a dangerous offender
753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (2) Section 753 of the Act is amended by adding the following after subsection (1):
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Presumption
(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.
1997, c. 17, s. 4
(3) Paragraphs 753(2)(a) and (b) of the Act are replaced by the following:
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(a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and (b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim. 1997, c. 17, s. 4
(4) Subsections 753(4) and (4.1) of the Act are replaced by the following:
Sentence for dangerous offender
(4) If the court finds an offender to be a dangerous offender, it shall (a) impose a sentence of detention in a penitentiary for an indeterminate period; (b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or (c) impose a sentence for the offence for which the offender has been convicted.
Sentence of indeterminate detention
(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application
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Lutte contre les that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
If application made after sentencing
(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
1997, c. 17, s. 4
(5) Subsection 753(6) of the Act is repealed. 43. The Act is amended by adding the following after section 753:
Application for remand for assessment — later conviction
753.01 (1) If an offender who is found to be a dangerous offender is later convicted of a serious personal injury offence or an offence under subsection 753.3(1), on application by the prosecutor, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under subsection (4).
Report
(2) The person to whom the offender is remanded shall file a report of the assessment with the court not later than 30 days after the end of the assessment period and make copies of it available to the prosecutor and counsel for the offender.
Extension of time
(3) On application by the prosecutor, the court may extend the period within which the report must be filed by a maximum of 30 days if the court is satisfied that there are reasonable grounds to do so.
Application for new sentence or order
(4) After the report is filed, the prosecutor may apply for a sentence of detention in a penitentiary for an indeterminate period, or for an order that the offender be subject to a new
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period of long-term supervision in addition to any other sentence that may be imposed for the offence. Sentence of indeterminate detention
(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted — with or without a new period of long-term supervision — will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
New long-term supervision
(6) If the application is for a new period of long-term supervision, the court shall order that the offender be subject to a new period of longterm supervision in addition to a sentence for the offence for which they have been convicted unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that the sentence alone will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.
Victim evidence
753.02 Any evidence given during the hearing of an application made under subsection 753(1) by a victim of an offence for which the offender was convicted is deemed also to have been given during any hearing held with respect to the offender under paragraph 753(5)(a) or subsection 753.01(5) or (6).
1997, c. 17, s. 4
44. (1) Subsection 753.1(3) of the Act is replaced by the following:
Sentence for long-term offender
(3) If the court finds an offender to be a longterm offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which must be a minimum punishment of imprisonment for a term of two years; and
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Lutte contre les (b) order that the offender be subject to longterm supervision for a period that does not exceed 10 years.
1997, c. 17, s. 4
(2) Subsections 753.1(4) and (5) are repealed.
1997, c. 17, s. 4
45. (1) The portion of subsection 753.2(1) of the Act before paragraph (a) is replaced by the following:
Long-term supervision
753.2 (1) Subject to subsection (2), an offender who is subject to long-term supervision shall be supervised in the community in accordance with the Corrections and Conditional Release Act when the offender has finished serving
1997, c. 17, s. 4
(2) Subsection 753.2(2) of the Act is replaced by the following:
Sentence served concurrently with supervision
(2) A sentence imposed on an offender referred to in subsection (1), other than a sentence that requires imprisonment, is to be served concurrently with the long-term supervision.
1997, c. 17, s. 4
(3) Subsection 753.2(3) of the French version of the Act is replaced by the following:
Réduction de la période de surveillance
(3) Le délinquant soumis à une surveillance de longue durée peut — tout comme un membre de la Commission nationale des libérations conditionnelles ou, avec l’approbation de celle-ci, son surveillant de liberté conditionnelle au sens du paragraphe 134.2(2) de la Loi sur le système correctionnel et la mise en liberté sous condition — demander à la cour supérieure de juridiction criminelle de réduire la période de surveillance ou d’y mettre fin pour le motif qu’il ne présente plus un risque élevé de récidive et, de ce fait, n’est plus une menace pour la collectivité, le fardeau de la preuve incombant au demandeur.
1997, c. 17, s. 4
46. Subsection 753.3(1) of the Act is replaced by the following:
Breach of longterm supervision
753.3 (1) An offender who, without reasonable excuse, fails or refuses to comply with long-term supervision is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.
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1997, c. 17, s. 4
47. Subsection 753.4(1) of the Act is replaced by the following:
New offence
753.4 (1) If an offender who is subject to long-term supervision commits one or more offences under this or any other Act and a court imposes a sentence of imprisonment for the offence or offences, the long-term supervision is interrupted until the offender has finished serving all the sentences, unless the court orders its termination.
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48. (1) The portion of subsection 754(1) of the Act before paragraph (a) is replaced by the following: Hearing of application
754. (1) With the exception of an application for remand for assessment, the court may not hear an application made under this Part unless (2) Paragraph 754(1)(b) of the French version of the Act is replaced by the following: b) le poursuivant a donné au délinquant un préavis d’au moins sept jours francs après la présentation de la demande indiquant ce sur quoi la demande se fonde; 49. The Act is amended by adding the following after section 754:
Exception to long-term supervision — life sentence
755. (1) The court shall not order that an offender be subject to long-term supervision if they have been sentenced to life imprisonment.
Maximum length of longterm supervision
(2) The periods of long-term supervision to which an offender is subject at any particular time must not total more than 10 years.
1997, c. 17, s. 5
50. Section 757 of the Act is replaced by the following:
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Lutte contre les 757. Without prejudice to the right of the offender to tender evidence as to their character and repute, if the court thinks fit, evidence of character and repute may be admitted (a) on the question of whether the offender is or is not a dangerous offender or a long-term offender; and (b) in connection with a sentence to be imposed or an order to be made under this Part.
1997, c. 17, s. 6
51. Subsections 759(1) to (5) of the Act are replaced by the following:
Appeal — offender
759. (1) An offender who is found to be a dangerous offender or a long-term offender may appeal to the court of appeal from a decision made under this Part on any ground of law or fact or mixed law and fact.
Appeal — Attorney General
(2) The Attorney General may appeal to the court of appeal from a decision made under this Part on any ground of law.
Disposition of appeal
(3) The court of appeal may (a) allow the appeal and (i) find that an offender is or is not a dangerous offender or a long-term offender or impose a sentence that may be imposed or an order that may be made by the trial court under this Part, or (ii) order a new hearing, with any directions that the court considers appropriate; or (b) dismiss the appeal.
Effect of decision
(4) A decision of the court of appeal has the same force and effect as if it were a decision of the trial court.
2002, c. 13, s. 81(1)
52. Subsection 810.1(3) of the Act is replaced by the following:
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Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of 14 years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.
Conditions in recognizance
(3.02) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that
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(a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of 14 years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age; (b) prohibit the defendant from attending a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground; (c) require the defendant to participate in a treatment program; (d) require the defendant to wear an electronic monitoring device, if the Attorney General makes the request; (e) require the defendant to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge; (f) require the defendant to return to and remain at his or her place of residence at specified times; or
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Lutte contre les (g) require the defendant to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.
Conditions — firearms
(3.03) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(3.04) If the provincial court judge adds a condition described in subsection (3.03) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.
Condition — reporting
(3.05) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.
1997, c.17, s. 9(1)
53. (1) Subsection 810.2(3) of the Act is replaced by the following:
Adjudication
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period that does not exceed 12 months.
Duration extended
(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in subsec48
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tion (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years. 1997, c. 17, ss. 9(1) and (2)
(2) Subsections 810.2(5) to (6) of the Act are replaced by the following:
Conditions in recognizance
(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant (a) to participate in a treatment program; (b) to wear an electronic monitoring device, if the Attorney General makes the request; (c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge; (d) to return to and remain at his or her place of residence at specified times; or (e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.
Conditions — firearms
(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.
Surrender, etc.
(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.
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Reasons
(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition.
Condition — reporting
(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.
Replacement of “fourteen years” with “16 years”
54. The Act is amended by replacing the words “fourteen years” with the words “16 years” wherever they occur in the following provisions: (a) subsection 150.1(4); (b) sections 151 and 152; (c) subsection 153(2); (d) subsection 160(3); (e) subsection 161(1); (f) paragraphs 170(a) and (b); (g) paragraphs 171(a) and (b); (h) subsection 173(2); (i) paragraphs 273.3(1)(a) and (b); and (j) subsection 810.1(1) and paragraphs 810.1(3)(a) and (b). CONSEQUENTIAL AMENDMENTS
R.S., c. A-2
AERONAUTICS ACT
1992, c. 1, s. 3
55. Section 8.6 of the Aeronautics Act is replaced by the following:
Admissibility of evidence
8.6 Evidence relating to the presence or concentration of alcohol or a drug in a sample of a bodily substance obtained under any provision of the Criminal Code is admissible in proceedings taken against a person under this Part, and the provisions of section 258 of the Criminal Code, except paragraph 258(1)(a), apply to those proceedings with any modifications that the circumstances require.
50 1992, c. 20
1997, c. 17, s. 11
“long-term supervision” « surveillance de longue durée »
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56. The definition “long-term supervision” in subsection 2(1) of the Corrections and Conditional Release Act is replaced by the following: “long-term supervision” means long-term supervision ordered under subsection 753(4), 753.01(5) or (6) or 753.1(3) or subparagraph 759(3)(a)(i) of the Criminal Code; 57. Paragraph 1(r) of Schedule I to the Act is replaced by the following: (r) section 244 (discharging firearm with intent);
R.S., c. C-47 2000, c. 1, s. 8.1
CRIMINAL RECORDS ACT 58. (1) Paragraphs 1(b) to (d) of the schedule to the Criminal Records Act are replaced by the following: (b) section 151 (sexual interference with a person under 16); (c) section 152 (invitation to a person under 16 to sexual touching); (d) section 153 (sexual exploitation of a person 16 or more but under 18);
2000, c. 1, s. 8.1
(2) Paragraph 1(h) of the schedule to the Act is replaced by the following: (h) subsection 160(3) (bestiality in the presence of a person under 16 or inciting a person under 16 to commit bestiality);
2000, c. 1, s. 8.1
(3) Paragraphs 1(x) and (y) of the schedule to the Act are replaced by the following: (x) paragraph 273.3(1)(a) (removal of child under 16 from Canada for purposes of listed offences); (y) paragraph 273.3(1)(b) (removal of child 16 or more but under 18 from Canada for purpose of listed offence);
2007-2008 R.S., c. 1 (2nd Supp.)
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2001, c. 25, s. 84
59. Subsection 163.5(2) of the Customs Act is replaced by the following:
Impaired driving offences
(2) A designated officer who is at a customs office performing the normal duties of an officer or is acting in accordance with section 99.1 has the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code. If, by demand, they require a person to provide samples of blood or breath under subsection 254(3) of that Act, or to submit to an evaluation under subsection 254(3.1) of that Act, they may also require the person to accompany a peace officer referred to in paragraph (c) of the definition “peace officer” in section 2 of that Act, for that purpose.
R.S., c. 32 (4th Supp.)
RAILWAY SAFETY ACT 60. Subsection 41(7) of the Railway Safety Act is replaced by the following:
Admissibility of evidence
(7) Evidence relating to the presence or concentration of alcohol or a drug in a sample of a bodily substance obtained under any provision of the Criminal Code is admissible in proceedings taken against a person under this Act in respect of a contravention of a rule or regulation respecting the use of alcohol or a drug, and section 258 of the Criminal Code applies to those proceedings with any modifications that the circumstances require. COORDINATING AMENDMENTS
This Act
61. On the first day on which both sections 9 and 40 of this Act are in force, paragraph (b) of the definition “designated offence” in section 752 of the Criminal Code is amended by adding the following after subparagraph (iv): (iv.1) section 98 (breaking and entering to steal firearm),
C. 6
Tackling Vio (iv.2) section 98.1 (robbery to steal firearm),
This Act
62. (1) If section 52 of this Act comes into force before section 54 of this Act, then paragraph 54(j) of this Act is replaced by the following: (j) subsections 810.1(1) and (3.01) and paragraphs 810.1(3.02)(a) and (b). (2) If section 54 of this Act comes into force before section 52 of this Act, then (a) subsection 810.1(3.01) of the Criminal Code, as enacted by section 52 of this Act, is replaced by the following:
Duration extended
(3.01) However, if the provincial court judge is also satisfied that the defendant was convicted previously of a sexual offence in respect of a person who is under the age of 16 years, the judge may order that the defendant enter into the recognizance for a period that does not exceed two years. (b) paragraphs 810.1(3.02)(a) and (b) of the Criminal Code, as enacted by section 52 of this Act, are replaced by the following: (a) prohibit the defendant from engaging in any activity that involves contact with persons under the age of 16 years, including using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under that age; (b) prohibit the defendant from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground or playground; (3) If section 52 of this Act comes into force on the same day as section 54 of this Act, then that section 52 is deemed to have come into force before that section 54 and subsection (1) applies as a consequence.
2007-2008 2005, c. 25
Lutte contre les 63. (1) In this section, “other Act” means An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act, chapter 25 of the Statutes of Canada, 2005. (2) If subsection 1(5) of the other Act comes into force before section 35 of this Act, then that section 35 is replaced by the following:
2005, c. 25, s. 1(5)
35. Subparagraph (a)(v) of the definition “primary designated offence” in section 487.04 of the Act is replaced by the following: (v) section 244 (discharging firearm with intent), (3) If section 35 of this Act comes into force before subsection 1(5) of the other Act, then subparagraph (a.1)(v) of the definition “primary designated offence” in section 487.04 of the Criminal Code, as enacted by that subsection 1(5), is replaced by the following: (v) section 244 (discharging firearm with intent), (4) If subsection 1(5) of the other Act comes into force on the same day as section 35 of this Act, then that subsection 1(5) is deemed to have come into force before that section 35 and subsection (2) applies as a consequence. COMING INTO FORCE
Order in council
64. The provisions of this Act, other than sections 61 to 63, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 4
An Act respecting a National Blood Donor Week
ASSENTED TO 14th FEBRUARY, 2008 BILL S-220
SUMMARY This enactment designates the week in which June 14 occurs in each and every year as National Blood Donor Week.
All parliamentary publications are available on the Parliamentary Internet Parlementaire at the following address: http://www.parl.gc.ca
L juin
56-57 ELIZABETH II
CHAPTER 4
An Act respecting a National Blood Donor Week
Loi
[Assented to 14th February, 2008] Preamble
WHEREAS the blood supply in Canada is managed by two not-for-profit organizations Héma-Québec and Canadian Blood Services; WHEREAS Canada has one of the safest blood systems in the world; WHEREAS over half of Canadians will require blood or blood products for themselves or a family member during their lifetime; WHEREAS less than four per cent of eligible Canadians donate blood every year; WHEREAS more blood donors are needed in Canada to meet the demand for blood and blood products; WHEREAS blood donation includes not only the gift of whole blood, but gifts of plasma, platelets and bone marrow as well; WHEREAS every blood donation has the power to save the lives of up to three people; WHEREAS a greater awareness of the importance of becoming a blood donor is required to engage more Canadians in helping their fellow citizens; WHEREAS blood donors are volunteers who are not remunerated, and therefore the act of donating blood and blood products is a genuine act of altruism; WHEREAS blood donors in Canada are the lifeblood of their communities, and their acts of kindness and generosity should be honoured with a national week of celebration;
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National Blood Do
WHEREAS the World Health Organization (WHO) has declared June 14 of every year as World Blood Donor Day, a day to honour those who give the gift of life; AND WHEREAS, throughout the world, 192 WHO Member States, 181 National Red Cross and Red Crescent Societies, and 50 national voluntary blood donor organizations and blood transfusion specialists have agreed to support World Blood Donor Day each year;
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q S d d d d NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
Sa M du S Cana
SHORT TITLE Short title
1. This Act may be cited as the National 1 1 2 nale Blood Donor Week Act. NATIONAL BLOOD DONOR WEEK
National Blood Donor Week
2. Throughout Canada, in each and every year, the week in which June 14 occurs shall be known as National Blood Donor Week.
S
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Published under authority of the Senate of Canada
Publ
Available from: PWGSC Publishing and Depository Services Ottawa, Ontario K1A 0S5
Disp TPSG Ottaw
Also available on the Internet: http://www.parl.gc.ca
Auss
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 28 An Act to implement certain provisions of the budget tabled in Parliament on February 26, 2008 and to enact provisions to preserve the fiscal plan set out in that budget
ASSENTED TO 18th JUNE, 2008 BILL C-50
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to implement certain provisions of the budget tabled in Parliament on February 26, 2008 and to enact provisions to preserve the fiscal plan set out in that budget”.
SUMMARY Part 1 enacts a number of income tax measures proposed in the February 26, 2008 Budget. In particular, it (a) introduces the new Tax-Free Savings Account, effective for the 2009 and subsequent taxation years; (b) extends by 10 years the maximum number of years during which a Registered Education Savings Plan may be open and accept contributions and provides a six-month grace period for making educational assistance payments, generally effective for the 2008 and subsequent taxation years; (c) increases the amount of the Northern Residents Deduction, effective for the 2008 and subsequent taxation years; (d) extends the application of the Medical Expense Tax Credit to certain devices and expenses and better targets the requirement that eligible medications must require a prescription by an eligible medical practitioner, generally effective for the 2008 and subsequent taxation years; (e) amends the provisions relating to Registered Disability Savings Plans so that the rule forcing the mandatory collapse of a plan be invoked only where the beneficiary’s condition has factually improved to the extent that the beneficiary no longer qualifies for the disability tax credit, effective for the 2008 and subsequent taxation years; (f) extends by one year the Mineral Exploration Tax Credit; (g) extends the capital gains tax exemption for certain gifts of listed securities to also apply in respect of certain exchangeable shares and partnership interests, effective for gifts made on or after February 26, 2008; (h) adjusts the rate of the Dividend Tax Credit to reflect corporate income tax rate reductions, beginning in 2010; (i) increases the benefits available under the Scientific Research and Experimental Development Program, generally effective for taxation years that end on or after February 26, 2008; (j) amends the penalty for failures to remit source deductions when due in order to better reflect the degree to which the remittances are late, and excuses early remittances from the mandatory financial institution remittance rules, effective for remittances due on or after February 26, 2008;
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
(k) reduces the paper burden associated with dispositions by non-residents of certain treaty-protected property, effective for dispositions that occur after 2008; (l) ensures that the enhanced tax incentive for Donations of Medicines is properly targeted, effective for gifts made after June, 2008; and (m) modifies the provincial component of the SIFT tax to better reflect actual provincial tax rates, effective for the 2009 and subsequent taxation years. Part 1 also implements income tax measures to preserve the fiscal plan as set out in the February 26, 2008 Budget. Part 2 amends the Excise Act, the Excise Act, 2001 and the Customs Tariff to implement measures aimed at improving tobacco tax enforcement and compliance, adjusting excise duties on tobacco sticks and on tobacco for duty-free markets and equalizing the excise treatment of imitation spirits and other spirits. Part 3 implements goods and services tax and harmonized sales tax (GST/ HST) measures proposed or referenced in the February 26, 2008 Budget. It amends the Excise Tax Act to expand the list of zero-rated medical and assistive devices and to ensure that all supplies of drugs sold to final consumers under prescription are zero-rated. It also amends that Act to exempt all nursing services rendered within a nurse-patient relationship, prescribed health care services ordered by an authorized registered nurse and, if certain conditions are met, a service of training that is specially designed to assist individuals in coping with the effects of their disorder or disability. It further amends that Act to ensure that a variety of professional health services maintain their GST/HST exempt status if those services are rendered by a health professional through a corporation. Additional amendments to that Act clarify the GST/HST treatment of long-term residential care facilities. Those amendments are intended to ensure that the GST New Residential Rental Property Rebate is available, and the GST/HST exempt treatment for residential leases and sales of used residential rental buildings applies, to long-term residential care facilities on a prospective basis and on past transactions if certain circumstances exist. This Part also makes amendments to relieve the GST/HST on most lease payments for land on which wind or solar power equipment used to generate electricity is situated. Part 4 dissolves the Canada Millennium Scholarship Foundation, provides for the Foundation to fulfill certain obligations and deposit its remaining assets in the Consolidated Revenue Fund, and repeals Part 1 of the Budget Implementation Act, 1998. It also makes consequential amendments to other Acts. Part 5 amends the Canada Student Financial Assistance Act and the Canada Student Loans Act to implement measures concerning financial assistance for students, including the following: (a) authorizing the establishment and operation, by regulation, of electronic systems to allow on-line services to be offered to students; (b) providing for the establishment and operation, by regulation, of a program to provide for the repayment of student loans for classes of borrowers who are encountering financial difficulties; (c) allowing part-time students to defer their student loan payments for as long as they continue to be students, and providing, by regulation, for other circumstances in which student loan payments may be deferred; and (d) allowing the Minister of Human Resources and Skills Development to take remedial action if any error is made in the administration of the two Acts and in certain cases, to waive requirements imposed on students to avoid undue hardship to them. Part 6 amends the Immigration and Refugee Protection Act to authorize the Minister of Citizenship and Immigration to give instructions with respect to the processing of certain applications and requests in order to support the attainment of the immigration goals established by the Government of Canada.
Part 7 enacts the Canada Employment Insurance Financing Board Act. The mandate of the Board is to set the Employment Insurance premium rate and to manage a financial reserve. That Part also amends the Employment Insurance Act and makes consequential amendments to other Acts. Part 8 authorizes payments to be made out of the Consolidated Revenue Fund for the recruitment of front line police officers, capital investment in public transit infrastructure and carbon capture and storage. It also authorizes Canada Social Transfer transition protection payments. Part 9 authorizes payments to be made out of the Consolidated Revenue Fund to Genome Canada, the Mental Health Commission of Canada, The Gairdner Foundation and the University of Calgary. Part 10 amends various Acts.
TABLE OF PROVISIONS
AN ACT TO IMPLEMENT CERTAIN PROVISIONS OF THE BUDGET TABLED IN PARLIAMENT ON FEBRUARY 26, 2008 AND TO ENACT PROVISIONS TO PRESERVE THE FISCAL PLAN SET OUT IN THAT BUDGET Preamble SHORT TITLE Budget Implementation Act, 2008
1. PART 1 AMENDMENTS RELATED TO INCOME TAX INCOME TAX ACT 2-37.
Amendments CANADA PENSION PLAN
38. Amendments EMPLOYMENT INSURANCE ACT
39. Amendments COORDINATING AMENDMENTS
40-44.
Bill C-10
45-48.
Bill C-253
CONDITIONAL AMENDMENTS
PART 2 AMENDMENTS IN RESPECT OF EXCISE DUTY ON TOBACCO PRODUCTS AND ALCOHOL EXCISE ACT 49.
Amendment EXCISE ACT, 2001 Amendments to the Act
50-68.
Amendments Application
69. Application
i RELATED AMENDMENTS 70-71.
Customs Tariff PART 3
AMENDMENTS IN RESPECT OF THE GOODS AND SERVICES TAX AND HARMONIZED SALES TAX (GST/HST) EXCISE TAX ACT 72-93.
Amendments PART 4
CANADA MILLENNIUM SCHOLARSHIP FOUNDATION DISSOLUTION OF THE FOUNDATION 94.
Liquidation
AMENDMENTS TO THE BUDGET IMPLEMENTATION ACT, 1998 95-97.
Amendments CONSEQUENTIAL AMENDMENTS
98. Access to Information Act
99. Privacy Act
100. January 5, 2010, or earlier
COMING INTO FORCE
PART 5 FEDERAL FINANCIAL ASSISTANCE FOR STUDENTS AMENDMENTS TO THE CANADA STUDENT FINANCIAL ASSISTANCE ACT 101-110.
Amendments
AMENDMENTS TO THE CANADA STUDENT LOANS ACT 111-114.
Amendments COMING INTO FORCE
115. Order in council
ii PART 6 IMMIGRATION AND REFUGEE PROTECTION ACT AMENDMENTS TO THE ACT 116-119.
Amendments TRANSITIONAL PROVISION
120. Application PART 7 EMPLOYMENT INSURANCE
CANADA EMPLOYMENT INSURANCE FINANCING BOARD ACT 121.
Enactment of Act
AN ACT TO ESTABLISH THE CANADA EMPLOYMENT INSURANCE FINANCING BOARD SHORT TITLE 1.
Canada Employment Insurance Financing Board Act
INTERPRETATION 2.
Definitions ESTABLISHMENT OF THE BOARD
3. Board established OBJECTS, POWERS AND DUTIES
4. Objects
5. Powers of Board MANAGEMENT BOARD OF DIRECTORS
6. Board of directors
7. Specific duties
8. Power to delegate DIRECTORS
9. Appointment of directors
10. Nominating committee CHAIRPERSON OF THE BOARD OF DIRECTORS
11. Designation
iv OFFICERS 12.
Directors not officers CHIEF EXECUTIVE OFFICER
13. Designation
14. Appointment
CHIEF ACTUARY
DILIGENCE 15.
Obligation BY-LAWS
16. Statutory Instruments Act does not apply COMMITTEES ESTABLISHMENT
17. Committees AUDIT COMMITTEE
18. Duties
19. Meeting of audit committee
20. Auditor’s right to attend meetings INVESTMENT COMMITTEE
21. Duties HUMAN RESOURCES COMMITTEE
22. Duties
23. Investment policies, standards and procedures
24. Duty of investment managers
INVESTMENTS
FINANCIAL MANAGEMENT GENERAL 25.
Financial year
26. Deposits and deposit receipts FINANCIAL STATEMENTS
27. Books and systems
v AUDITOR’S REPORT 28.
Annual auditor’s report QUALIFIED PRIVILEGE
29. Qualified privilege
30. Special examination
31. Report
32. Examiner
SPECIAL EXAMINATION
REPORTING QUARTERLY STATEMENTS 33.
Statements to Minister ANNUAL REPORT
34. Annual report required
35. Report
PREMIUM RATE SETTING REPORT
REGULATIONS 36.
Governor in Council TRANSITIONAL PROVISIONS
122. Application
123. Application AMENDMENTS TO THE EMPLOYMENT INSURANCE ACT
124-131.
Amendments CONSEQUENTIAL AMENDMENTS
132-133. 134.
Department of Human Resources and Skills Development Act
Financial Administration Act COMING INTO FORCE
135. Order in council
v PART 8 PAYMENTS TO PROVINCES AND TERRITORIES POLICE OFFICERS RECRUITMENT FUND 136.
Maximum payment of $400,000,000 PUBLIC TRANSIT CAPITAL TRUST 2008
137. Maximum payment of $500,000,000
PAYMENT TO SASKATCHEWAN FOR CARBON CAPTURE AND STORAGE 138.
Maximum payment of $240,000,000 PAYMENT TO NOVA SCOTIA FOR CARBON STORAGE
139. Maximum payment of $5,000,000 CANADA SOCIAL TRANSFER TRANSITION PROTECTION PAYMENT TO SASKATCHEWAN
140. Payment of $31,204,000 CANADA SOCIAL TRANSFER TRANSITION PROTECTION PAYMENT TO NUNAVUT
141. Payment of $705,000 PART 9 PAYMENTS TO CERTAIN ENTITIES GENOME CANADA
142. Maximum payment of $140,000,000 MENTAL HEALTH COMMISSION OF CANADA
143. Maximum payment of $110,000,000
144. Maximum payment of $20,000,000
THE GAIRDNER FOUNDATION
UNIVERSITY OF CALGARY 145.
Maximum payment of $5,000,000 PART 10 VARIOUS AMENDMENTS
146-147. 148.
Bank of Canada Act
Budget Implementation Act, 2006
vi 149-150.
Canadian Forces Superannuation Act
151. Cooperative Credit Associations Act
152. Donkin Coal Block Development Opportunity Act
153. Financial Administration Act
154. Insurance Companies Act
155. Interest Act
156. Old Age Security Act
157-160.
Public Service Superannuation act
161-162.
Royal Canadian Mounted Police Superannuation Act
163. Trust and Loan Companies Act
164. Order in council
COMING INTO FORCE
56-57 ELIZABETH II —————— CHAPTER 28 An Act to implement certain provisions of the budget tabled in Parliament on February 26, 2008 and to enact provisions to preserve the fiscal plan set out in that budget [Assented to 18th June, 2008]
Preamble
Whereas, when the Government of Canada tables a budget in Parliament, a fiscal plan is an integral part of that budget; Whereas the Government of Canada is committed to meeting the challenge of global economic uncertainty with a responsible, prudent and effective fiscal plan as reflected in the Budget Plan tabled in Parliament on February 26, 2008; Whereas it is imperative to preserve the fiscal integrity of that Budget Plan and the integrity of the budget process, and important not to risk the Government of Canada going into deficit; And whereas it is expedient to implement certain provisions of that Budget Plan; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE Short title
1. This Act may be cited as the Budget Implementation Act, 2008.
C. 28
Budget Implem PART 1
AMENDMENTS RELATED TO INCOME TAX R.S., c. 1 (5th Supp.)
INCOME TAX ACT 2. (1) Paragraph 18(1)(u) of the Income Tax Act is replaced by the following:
Fees — individual saving plans
(u) any amount paid or payable by the taxpayer for services in respect of a retirement savings plan, retirement income fund or TFSA under or of which the taxpayer is the annuitant or holder; and (2) Subsection 18(11) of the Act is amended by striking out the word “or” at the end of paragraph (h), by adding the word “or” at the end of paragraph (i) and by adding the following after paragraph (i): (j) making a contribution under a TFSA, (3) Subsections (1) and (2) apply to the 2009 and subsequent taxation years. 3. (1) Section 37 of the Act is amended by adding the following after subsection (1.3):
Salary or wages for SR&ED outside Canada
(1.4) For the purposes of this section, section 127 and Part XXIX of the Income Tax Regulations, the amount of a taxpayer’s expenditure for a taxation year determined under subsection (1.5) is deemed to be made in the taxation year in respect of scientific research and experimental development carried on in Canada by the taxpayer.
Salary or wages outside Canada — limit determined
(1.5) The amount of a taxpayer’s expenditure for a taxation year determined under this subsection is the lesser of (a) the amount that is the total of all expenditures each of which is an expenditure made by the taxpayer, in the taxation year and after February 25, 2008, in respect of an expense incurred in the taxation year for salary or wages paid to the taxpayer’s employee who was resident in Canada at
Exécution du b
2007-2008
the time the expense was incurred in respect of scientific research and experimental development, (i) that was carried on outside Canada, (ii) that was directly undertaken by the taxpayer, (iii) that related to a business of the taxpayer, and (iv) that was solely in support of scientific research and experimental development carried on in Canada by the taxpayer, and (b) the amount that is 10 per cent of the total of all expenditures, made by the taxpayer in the year, each of which would, if this Act were read without reference to subsection (1.4), be an expenditure made in respect of an expense incurred in the year for salary or wages paid to an employee in respect of scientific research and experimental development that was carried on in Canada, that was directly undertaken by the taxpayer and that related to a business of the taxpayer. (2) Paragraph 37(2)(a) of the Act is replaced by the following: (a) on scientific research and experimental development carried on outside Canada, directly undertaken by or on behalf of the taxpayer, and related to the business (except to the extent that subsection (1.4) deems the expenditures to have been made in Canada); or (3) Subsection 37(9) of the Act is replaced by the following: Salary or wages
(9) An expenditure of a taxpayer (a) does not include, for the purposes of clauses (8)(a)(ii)(A) and (B), remuneration based on profits or a bonus, where the remuneration or bonus, as the case may be, is in respect of a specified employee of the taxpayer, and (b) includes, for the purpose of paragraph (1.5)(a), an amount paid in respect of an expense incurred for salary or wages paid to an employee only if the taxpayer reasonably believes that the salary or wages is not subject
C. 28
Budget Implem
to an income or profits tax imposed, because of the employee’s presence or activity in a country other than Canada, by a government of that other country. (4) Subsections (1) to (3) apply in respect of taxation years that end on or after February 26, 2008, except that in respect of taxation years that include February 26, 2008, the reference in paragraph 37(1.5)(b) of the Act, as enacted by subsection (1), to “10 per cent” shall be read as a reference to the percentage determined by the formula 10% × A/B where A is the number of days in the taxation year that are after February 25, 2008; and B is the number of days in the taxation year.
4. (1) Paragraph 38(a) of the Act is replaced by the following: (a) subject to paragraphs (a.1) to (a.3), a taxpayer’s taxable capital gain for a taxation year from the disposition of any property is ½ of the taxpayer’s capital gain for the year from the disposition of the property; (2) Paragraph 38(a.1) of the Act is amended by striking out the word “or” at the end of subparagraph (i), by adding the word “or” at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) the disposition is the exchange, for a security described in subparagraph (i), of a share of the capital stock of a corporation, which share included, at the time it was issued and at the time of the disposition, a condition allowing the holder to exchange it for the security, and the taxpayer (A) receives no consideration on the exchange other than the security, and
Exécution du b
2007-2008
(B) makes a gift of the security to a qualified donee not more than 30 days after the exchange; (3) Section 38 of the Act is amended by adding the following after paragraph (a.2): (a.3) a taxpayer’s taxable capital gain for a taxation year, from the disposition of an interest in a partnership (other than a prescribed interest in a partnership) that would be an exchange described in subparagraph (a.1)(iii) if the interest were a share in the capital stock of a corporation, is equal to the lesser of (i) that taxable capital gain determined without reference to this paragraph, and (ii) ½ of the amount, if any, by which (A) the total of (I) the cost to the taxpayer of the partnership interest, and (II) each amount required by subparagraph 53(1)(e)(iv) or (x) to be added in determining the taxpayer’s adjusted cost base of the partnership interest, exceeds (B) the adjusted cost base to the taxpayer of the partnership interest (determined without reference to subparagraphs 53(2)(c)(iv) and (v));
(4) Subsections (1) to (3) apply in respect of gifts made on or after February 26, 2008. 5. (1) Clause 40(2)(g)(iv)(A) of the Act is replaced by the following: (A) a trust governed by a deferred profit sharing plan, an employees profit sharing plan, a registered disability savings plan, a registered retirement income fund or a TFSA under which the
C. 28
Budget Implem taxpayer is a beneficiary or immediately after the disposition becomes a beneficiary, or
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 6. (1) Subsection 74.5(12) of the Act is amended by striking out the word “or” at the end of paragraph (a.2), by adding the word “or” at the end of paragraph (b) and by adding the following after paragraph (b): (c) to the individual’s spouse or common-law partner, (i) while the property, or property substituted for it, is held under a TFSA of which the spouse or common-law partner is the holder, and (ii) to the extent that the spouse or common-law partner does not, at the time of the contribution of the property under the TFSA, have an excess TFSA amount (as defined in subsection 207.01(1)). (2) Subsection (1) applies to the 2009 and subsequent taxation years. 7. (1) Paragraph 75(3)(a) of the Act is replaced by the following: (a) by a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a registered disability savings plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan, a retirement compensation arrangement or a TFSA;
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 8. (1) Subparagraph 82(1)(b)(ii) of the Act is replaced by the following:
2007-2008
Exécution du b (ii) the product of the amount determined under paragraph (a.1) in respect of the taxpayer for the taxation year multiplied by (A) for the 2009 taxation year, 45%, (B) for the 2010 taxation year, 44%, (C) for the 2011 taxation year, 41%, and (D) for taxation years after 2011, 38%;
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 9. (1) The portion of subsection 87(10) of the Act after paragraph (f) is replaced by the following: the new share is deemed, for the purposes of subsection 116(6), the definitions “qualified investment” in subsections 146(1), 146.1(1) and 146.3(1), in section 204 and in subsections 205(1) and 207.01(1), and the definition “taxable Canadian property” in subsection 248(1), to be listed on the exchange until the earliest time at which it is so redeemed, acquired or cancelled. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 10. (1) Paragraph 107.4(1)(j) of the Act is replaced by the following: (j) if the contributor is an amateur athlete trust, a cemetery care trust, an employee trust, an inter vivos trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization, a related segregated fund trust (as defined by section 138.1), a trust described in paragraph 149(1)(o.4) or a trust governed by an eligible funeral arrangement, an employees profit sharing plan, a registered disability savings plan, a registered education savings plan, a registered supplementary unemployment benefit plan or a TFSA, the particular trust is the same type of trust; and
C. 28
Budget Implem
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 11. (1) Paragraph (a) of the definition “trust” in subsection 108(1) of the Act is replaced by the following: (a) an amateur athlete trust, an employee trust, a trust described in paragraph 149(1)(o.4) or a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a foreign retirement arrangement, a registered disability savings plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan or a TFSA,
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 12. (1) Paragraphs 110.1(8)(b) and (c) of the Act are replaced by the following: (b) the property that is the subject of the gift is a medicine that is available for the donee’s use at least six months prior to its expiration date, within the meaning of the Food and Drug Regulations; (c) the medicine qualifies as a drug, within the meaning of the Food and Drugs Act, and the drug (i) meets the requirements of that Act, or would meet those requirements if that Act were read without reference to its subsection 37(1), and (ii) is not a food, cosmetic or device (as those terms are defined in that Act), a natural health product (as defined in the Natural Health Products Regulations) or a veterinary drug; (2) Paragraph 110.1(8)(e) of the Act is replaced by the following:
2007-2008
Exécution du b (e) the donee is a registered charity that, in the opinion of the Minister of International Cooperation (or, if there is no such Minister, the Minister responsible for the Canadian International Development Agency) meets prescribed conditions. (3) Subsections (1) and (2) apply in respect of gifts made on or after July 1, 2008. 13. (1) Clauses 110.7(1)(b)(ii)(A) and (B) of the Act are replaced by the following: (A) $8.25 multiplied by the number of days in the year included in the qualifying period in which the taxpayer resided in the particular area, and (B) $8.25 multiplied by the number of days in the year included in that portion of the qualifying period throughout which the taxpayer maintained and resided in a self-contained domestic establishment in the particular area (except any day included in computing a deduction claimed under this paragraph by another person who resided on that day in the establishment). (2) Subsection (1) applies to the 2008 and subsequent taxation years. 14. (1) Subsection 116(5) of the Act is amended by striking out the word “or” at the end of paragraph (a) and by adding the following after that paragraph: (a.1) subsection (5.01) applies to the acquisition, or (2) Section 116 of the Act is amended by adding the following after subsection (5):
Treaty-protected property
(5.01) This subsection applies to the acquisition of a property by a person (referred to in this subsection as the “purchaser”) from a nonresident person if (a) the purchaser concludes after reasonable inquiry that the non-resident person is, under a tax treaty that Canada has with a particular country, resident in the particular country;
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(b) the property would be treaty-protected property of the non-resident person if the non-resident person were, under the tax treaty referred to in paragraph (a), resident in the particular country; and (c) the purchaser provides notice under subsection (5.02) in respect of the acquisition.
Notice by purchaser in respect of an acquisition of property
(5.02) A person (referred to in this subsection as the “purchaser”) who acquires property from a non-resident person provides notice under this subsection in respect of the acquisition if the purchaser sends to the Minister, on or before the day that is 30 days after the date of the acquisition, a notice setting out (a) the date of the acquisition; (b) the name and address of the non-resident person; (c) a description of the property sufficient to identify it; (d) the amount paid or payable, as the case may be, by the purchaser for the property; and (e) the name of the country with which Canada has concluded a tax treaty under which the property is a treaty-protected property for the purposes of subsection (5.01) or (6.1), as the case may be. (3) The portion of paragraph 116(5.3)(a) of the Act before subparagraph (i) is replaced by the following: (a) the taxpayer, unless subsection (5.01) applies to the acquisition or unless after reasonable inquiry the taxpayer had no reason to believe that the non-resident person was not resident in Canada, is liable to pay, as tax under this Part for the year on behalf of the non-resident person, 50% of the amount, if any, by which
2007-2008
Exécution du b (4) Subsection 116(6) of the Act is amended by striking out the word “and” at the end of paragraph (g), by adding the word “and” at the end of paragraph (h) and by adding the following after paragraph (h): (i) a property that is, at the time of its disposition, a treaty-exempt property of the person. (5) Section 116 of the Act is amended by adding the following after subsection (6):
Treaty-exempt property
(6.1) For the purpose of subsection (6), a property is a treaty-exempt property of a nonresident person, at the time of the non-resident person’s disposition of the property to another person (referred to in this subsection as the “purchaser”), if (a) it is, at that time, a treaty-protected property of the non-resident person; and (b) where the purchaser and the non-resident person are related at that time, the purchaser provides notice under subsection (5.02) in respect of the disposition. (6) Subsections (1) to (5) apply in respect of dispositions of property that occur after 2008. 15. (1) Subsection 118.1(5.3) of the Act is replaced by the following:
Direct designation — RRSPs, RRIFs and TFSAs
(5.3) If as a consequence of an individual’s death, a transfer of money, or a transfer by means of a negotiable instrument, is made, from an arrangement that is a registered retirement savings plan, registered retirement income fund or TFSA (other than an arrangement of which a licensed annuities provider is the issuer or carrier) to a qualified donee, solely because of the donee’s interest or, for civil law, a right as a beneficiary under the arrangement, the individual was the annuitant under, or the holder of, the arrangement immediately before the individual’s death and the transfer occurs within the 36month period that begins at the time of the death (or, where written application to extend the period has been made to the Minister by the individual’s legal representative, within such longer period as the Minister considers reasonable in the circumstances),
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(a) for the purposes of this section (other than this paragraph) and section 149.1, the transfer is deemed to be a gift made, immediately before the individual’s death, by the individual to the donee; and (b) the fair market value of the gift is deemed to be the fair market value, at the time of the individual’s death, of the right to the transfer (determined without reference to any risk of default with regard to the obligations of the issuer or carrier of the arrangement). (2) Subsection (1) applies to the 2009 and subsequent taxation years. 16. (1) The portion of paragraph 118.2(2)(l) of the Act before subparagraph (i) is replaced by the following: (l) on behalf of the patient who is blind or profoundly deaf or has severe autism, severe epilepsy or a severe and prolonged impairment that markedly restricts the use of the patient’s arms or legs,
(2) Paragraph 118.2(2)(n) of the Act is replaced by the following: (n) for (i) drugs, medicaments or other preparations or substances (other than those described in paragraph (k)) (A) that are manufactured, sold or represented for use in the diagnosis, treatment or prevention of a disease, disorder or abnormal physical state, or its symptoms, or in restoring, correcting or modifying an organic function, (B) that can lawfully be acquired for use by the patient only if prescribed by a medical practitioner or dentist, and (C) the purchase of which is recorded by a pharmacist, or (ii) drugs, medicaments or other preparations or substances that are prescribed by regulation;
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Exécution du b
(3) Subsection (1) applies to the 2008 and subsequent taxation years. (4) Subsection (2) applies to expenses incurred after February 26, 2008. 17. (1) Paragraph 121(b) of the Act is replaced by the following: (b) the product of the amount, if any, that is required by subparagraph 82(1)(b)(ii) to be included in computing the individual’s income for the year multiplied by (i) for the 2009 taxation year, 11/18, (ii) for the 2010 taxation year, 10/17, (iii) for the 2011 taxation year, 13/23, and (iv) for taxation years after 2011, 6/11. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 18. (1) The description of D in subsection 122(1) of the Act is replaced by the following: D is the provincial SIFT tax rate of the SIFT trust for the taxation year, and (2) The description of C in the definition “taxable SIFT trust distributions” in subsection 122(3) of the Act is replaced by the following: C is the provincial SIFT tax rate of the SIFT trust for the taxation year. (3) Subsections (1) and (2) apply to the 2009 and subsequent taxation years, except that those subsections also apply for a SIFT trust’s earlier taxation year if the definition “provincial SIFT tax rate” in subsection 248(1) of the Act, as enacted by subsection 34(3), applies to that earlier taxation year.
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19. (1) Paragraph (a) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act is replaced by the following: (a) that is a Canadian exploration expense incurred by a corporation after March 2008 and before 2010 (including, for greater certainty, an expense that is deemed by subsection 66(12.66) to be incurred before 2010) in conducting mining exploration activity from or above the surface of the earth for the purpose of determining the existence, location, extent or quality of a mineral resource described in paragraph (a) or (d) of the definition “mineral resource” in subsection 248(1), (2) Paragraphs (c) and (d) of the definition “flow-through mining expenditure” in subsection 127(9) of the Act are replaced by the following: (c) an amount in respect of which is renounced in accordance with subsection 66(12.6) by the corporation to the taxpayer (or a partnership of which the taxpayer is a member) under an agreement described in that subsection and made after March 2008 and before April 2009, and (d) that is not an expense that was renounced under subsection 66(12.6) to the corporation (or a partnership of which the corporation is a member), unless that renunciation was under an agreement described in that subsection and made after March 2008 and before April 2009; (3) Subsection 127(10.2) of the Act is replaced by the following: Expenditure limit determined
(10.2) For the purpose of subsection (10.1), a particular corporation’s expenditure limit for a particular taxation year is the amount determined by the formula ($7 million - 10A) × [($40 million - B)/ $40 million] where A is the greater of
Exécution du b
2007-2008 (a) $400,000, and (b) the amount that is
(i) if the particular corporation is not associated with any other corporation in the particular taxation year, the particular corporation’s taxable income for its immediately preceding taxation year (determined before taking into consideration the specified future tax consequences for that preceding year), or (ii) if the particular corporation is associated with one or more other corporations in the particular taxation year, the total of all amounts each of which is the taxable income of the particular corporation for its, or of one of the other corporations for its, last taxation year that ended in the last calendar year that ended before the end of the particular taxation year (determined before taking into consideration the specified future tax consequences for that last taxation year), and B is (a) nil, if the following amount is less than or equal to $10 million: (i) if the particular corporation is not associated with any other corporation in the particular taxation year, the amount that is its taxable capital employed in Canada (within the meaning assigned by section 181.2) for its immediately preceding taxation year, or (ii) if the particular corporation is associated with one or more other corporations in the particular taxation year, the amount that is the total of all amounts, each of which is the taxable capital employed in Canada (within the meaning assigned by section 181.2) of the particular corporation for its, or of one of the other corporations for its, last taxation year that ended in the last calendar year that ended before the end of the particular taxation year, or
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Budget Implem (b) in any other case, the lesser of $40 million and the amount by which the amount determined under subparagraph (a)(i) or (ii), as the case may be, exceeds $10 million.
(4) Subsections (1) and (2) apply to expenses renounced under a flow through share agreement made after March 2008. (5) Subsection (3) applies to taxation years that end on or after February 26, 2008, except that for taxation years that include February 26, 2008, the expenditure limit of a corporation shall be determined by the formula A + [(B - A) × (C/D)] where A is the expenditure limit of the corporation for the taxation year determined in accordance with the formula in subsection 127(10.2) as that subsection read in its application to a taxation year that ended immediately before February 26, 2008; B is the expenditure limit of the corporation for the taxation year determined in accordance with the formula in subsection 127(10.2), as enacted by subsection (3); C is the number of days in the taxation year that are after February 25, 2008; and D is the number of days in the taxation year. 20. (1) Paragraph (a) of the definition “excluded right or interest” in subsection 128.1(10) of the Act is amended by adding the following after subparagraph (iii.1): (iii.2) a TFSA, (2) Subsection (1) applies to the 2009 and subsequent taxation years. 21. (1) Paragraph 132.2(1)(k) of the Act is replaced by the following:
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Exécution du b (k) if a share to which paragraph (j) applies would, but for this paragraph, cease to be a qualified investment (within the meaning assigned by subsection 146(1), 146.1(1) or 146.3(1), section 204 or subsection 205(1) or 207.01(1)) as a consequence of the qualifying exchange, the share is deemed to be a qualified investment until the earlier of the day that is 60 days after the transfer time and the time at which it is disposed of in accordance with paragraph (j); (2) Subsection (1) applies to the 2009 and subsequent taxation years. 22. (1) Subsection 138.1(7) of the Act is replaced by the following:
Where ss. (1) to (6) do not apply
(7) Subsections (1) to (6) do not apply to the holder of a segregated fund policy with respect to such a policy that is issued or effected as a registered retirement savings plan, registered retirement income fund or TFSA or that is issued under a registered pension plan. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 23. (1) Paragraphs (b) and (c) of the definition “specified plan” in subsection 146.1(1) of the Act are replaced by the following: (b) under which the beneficiary is an individual in respect of whom paragraphs 118.3(1)(a) to (b) apply for the beneficiary’s taxation year that ends in the 31st year following the year in which the plan was entered into, and (c) that provides that, at all times after the end of the 35th year following the year in which the plan was entered into, no other individual may be designated as a beneficiary under the plan; (2) Subparagraphs 146.1(2)(h)(i) and (ii) of the Act are replaced by the following: (i) in the case of a specified plan, the 35th year following the year in which the plan was entered into, and
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(ii) in any other case, the 31st year following the year in which the plan was entered into; (3) Subparagraphs 146.1(2)(i)(i) and (ii) of the Act are replaced by the following: (i) in the case of a specified plan, the 40th year following the year in which the plan was entered into, and (ii) in any other case, the 35th year following the year in which the plan was entered into; (4) Clause 146.1(2)(j)(ii)(A) of the Act is replaced by the following: (A) the beneficiary had not attained 31 years of age before the time of the contribution, or (5) Section 146.1 of the Act is amended by adding the following after subsection (2.2): Extension for making educational assistance payments
(2.21) Notwithstanding paragraph (2)(g.1), an education savings plan may allow for the payment of an educational assistance payment to or for an individual at any time in the sixmonth period immediately following the particular time at which the individual ceases to be enrolled as a student in a qualifying educational program or a specified educational program, as the case may be, if the payment would have complied with the requirements of paragraph (2)(g.1) had the payment been made immediately before the particular time.
Timing of payment
(2.22) An educational assistance payment that is made at any time in accordance with subsection (2.21) but not in accordance with paragraph (2)(g.1) is deemed, for the purposes of applying that paragraph at and after that time, to have been made immediately before the particular time referred to in subsection (2.21). (6) Subsections (1) to (5) apply to the 2008 and subsequent taxation years, except that subsection (5) does not apply in respect of cessations of enrolment that occur before 2008. 24. (1) Section 146.2 of the Act and the heading before it are replaced by the following:
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2007-2008
Tax-free Savings Accounts Definitions
“distribution” « distribution »
“holder” « titulaire »
146.2 (1) The following definitions apply in this section and in Part XI.01. “distribution” under an arrangement of which an individual is the holder means a payment out of or under the arrangement in satisfaction of all or part of the holder’s interest in the arrangement. “holder” of an arrangement means (a) until the death of the individual who entered into the arrangement with the issuer, the individual; and (b) at and after the death of the individual, the individual’s survivor, if the survivor acquires (i) all of the individual’s rights as the holder of the arrangement, and (ii) to the extent it is not included in the rights described in subparagraph (i), the unconditional right to revoke any beneficiary designation made, or similar direction imposed, by the individual under the arrangement or relating to property held in connection with the arrangement.
“issuer” « émetteur »
“qualifying arrangement” « arrangement admissible »
“issuer” of an arrangement means the person described as the issuer in the definition “qualifying arrangement”. “qualifying arrangement”, at a particular time, means an arrangement (a) that is entered into after 2008 between a person (in this definition referred to as the “issuer”) and an individual (other than a trust) who is at least 18 years of age; (b) that is (i) an arrangement in trust with an issuer that is a corporation licensed or otherwise authorized under the laws of Canada or a province to carry on in Canada the business of offering to the public its services as trustee, (ii) an annuity contract with an issuer that is a licensed annuities provider, other than a contract that is adjoined to another contract or arrangement, or (iii) a deposit with an issuer that is
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Budget Implem (A) a person who is, or is eligible to become, a member of the Canadian Payments Association, or (B) a credit union that is a shareholder or member of a body corporate referred to as a “central” for the purposes of the Canadian Payments Act;
(c) that provides for contributions to be made under the arrangement to the issuer in consideration of, or to be used, invested or otherwise applied for the purpose of, the issuer making distributions under the arrangement to the holder; (d) under which the issuer and the individual agree, at the time the arrangement is entered into, that the issuer will file with the Minister an election to register the arrangement as a TFSA; and (e) that, at all times throughout the period that begins at the time the arrangement is entered into and that ends at the particular time, complies with the conditions in subsection (2). “survivor” « survivant »
Qualifying arrangement conditions
“survivor” of an individual means another individual who is, immediately before the individual’s death, a spouse or common-law partner of the individual.
(2) The conditions referred to in paragraph (e) of the definition “qualifying arrangement” in subsection (1) are as follows: (a) the arrangement requires that it be maintained for the exclusive benefit of the holder (determined without regard to any right of a person to receive a payment out of or under the arrangement only on or after the death of the holder); (b) the arrangement prohibits, while there is a holder of the arrangement, anyone that is neither the holder nor the issuer of the arrangement from having rights under the
2007-2008
Exécution du b arrangement relating to the amount and timing of distributions and the investing of funds; (c) the arrangement prohibits anyone other than the holder from making contributions under the arrangement; (d) the arrangement permits distributions to be made to reduce the amount of tax otherwise payable by the holder under section 207.02 or 207.03; (e) the arrangement provides that, at the direction of the holder, the issuer shall transfer all or any part of the property held in connection with the arrangement (or an amount equal to its value) to another TFSA of the holder; (f) if the arrangement is an arrangement in trust, it prohibits the trust from borrowing money or other property for the purposes of the arrangement; and (g) the arrangement complies with prescribed conditions.
TFSA
(3) If the issuer of an arrangement that is, at the time it is entered into, a qualifying arrangement files with the Minister, on or before the day that is 60 days after the end of the calendar year in which the arrangement was entered into, an election in prescribed form and manner to register the arrangement as a TFSA under the Social Insurance Number of the individual with whom the arrangement was entered into, the arrangement becomes a TFSA at the time the arrangement was entered into and ceases to be a TFSA immediately before the earliest of the following events: (a) the death of the last holder of the arrangement, (b) the arrangement ceasing to be a qualifying arrangement, and (c) the arrangement not being administered in accordance with the conditions in subsection (2).
Trust not taxable
(4) No tax is payable under this Part by a trust that is governed by a TFSA on its taxable income for a taxation year, except that, if at any
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time in the taxation year, it carries on one or more businesses or holds one or more properties that are non-qualified investments (as defined in subsection 207.01(1)) for the trust, tax is payable under this Part by the trust on the amount that would be its taxable income for the taxation year if it had no incomes or losses from sources other than those businesses and properties, and no capital gains or capital losses other than from dispositions of those properties, and for that purpose, (a) “income” includes dividends described in section 83; and (b) the trust’s taxable capital gain or allowable capital loss from the disposition of a property is equal to its capital gain or capital loss, as the case may be, from the disposition.
Amount credited to a deposit
(5) An amount that is credited or added to a deposit that is a TFSA as interest or other income in respect of the TFSA is deemed not to be received by the holder of the TFSA solely because of that crediting or adding.
Trust ceasing to be a TFSA
(6) If an arrangement that governs a trust ceases, at a particular time, to be a TFSA, (a) the trust is deemed (i) to have disposed, immediately before the particular time, of each property held by the trust for proceeds equal to the property’s fair market value immediately before the particular time, and (ii) to have acquired, at the particular time, each such property at a cost equal to that fair market value; (b) the trust’s last taxation year that began before the particular time is deemed to have ended immediately before the particular time; and (c) a taxation year of the trust is deemed to begin at the particular time.
2007-2008 Annuity contract ceasing to be a TFSA
Exécution du b (7) If an annuity contract ceases, at a particular time, to be a TFSA, (a) the holder of the TFSA is deemed to have disposed of the contract immediately before the particular time for proceeds equal to its fair market value immediately before the particular time; (b) the contract is deemed to be a separate annuity contract issued and effected at the particular time otherwise than pursuant to or as a TFSA; and (c) each person who has an interest or, for civil law, a right in the separate annuity contract at the particular time is deemed to acquire the interest at the particular time at a cost equal to its fair market value at the particular time.
Deposit ceasing to be a TFSA
(8) If a deposit ceases, at a particular time, to be a TFSA, (a) the holder of the TFSA is deemed to have disposed of the deposit immediately before the particular time for proceeds equal to its fair market value immediately before the particular time; and (b) each person who has an interest or, for civil law, a right in the deposit at the particular time is deemed to acquire the interest at the particular time at a cost equal to its fair market value at the particular time.
Arrangement is TFSA only
(9) An arrangement that is a qualifying arrangement at the time it is entered into is deemed not to be a retirement savings plan, an education savings plan, a retirement income fund or a disability savings plan. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 25. (1) Subparagraph 146.4(4)(p)(ii) of the Act is replaced by the following: (ii) the first calendar year throughout which the beneficiary has no severe and prolonged impairments with the effects described in paragraph 118.3(1)(a.1).
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(2) Paragraph 146.4(12)(d) of the Act is replaced by the following: (d) if the failure consists of the plan not being terminated by the time set out in paragraph (4)(p) and the failure was due to the issuer being unaware of, or there being some uncertainty as to, the existence of circumstances requiring that the plan be terminated, (i) the Minister may specify a later time by which the plan is to be terminated (but no later than is reasonably necessary for the plan to be terminated in an orderly manner), and (ii) paragraph (4)(p) and the plan terms are, for the purposes of paragraphs (11)(a) and (b), to be read as though they required the plan to be terminated by the time so specified. (3) Subsections (1) and (2) apply to the 2008 and subsequent taxation years. 26. (1) Subsection 148(1) of the Act is amended by adding the following after paragraph (b.1): (b.2) a TFSA, (2) Subsection (1) applies to the 2009 and subsequent taxation years. 27. (1) Subsection 149(1) of the Act is amended by adding the following after paragraph (u.1): TFSA trust
(u.2) a trust governed by a TFSA to the extent provided by section 146.2; (2) Subsection (1) applies to the 2009 and subsequent taxation years. 28. (1) Clauses 150(1)(a)(i)(C) and (D) of the Act are replaced by the following: (C) has a taxable capital gain (otherwise than from an excluded disposition), or (D) disposes of a taxable Canadian property (otherwise than in an excluded disposition), or
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2007-2008
(2) Subparagraph 150(1)(a)(ii) of the Act is replaced by the following: (ii) tax under this Part (A) is payable by the corporation for the year, or (B) would be, but for a tax treaty, payable by the corporation for the year (otherwise than in respect of a disposition of taxable Canadian property that is treaty-protected property of the corporation); (3) Subparagraph 150(1.1)(b)(iii) of the Act is replaced by the following: (iii) where the individual is non-resident throughout the year, the individual has a taxable capital gain (otherwise than from an excluded disposition) or disposes of a taxable Canadian property (otherwise than in an excluded disposition) in the year, or (4) Section 150 of the Act is amended by adding the following after subsection (4): Excluded disposition
(5) For the purposes of this section, a disposition of a property by a taxpayer at any time in a taxation year is an excluded disposition if (a) the taxpayer is non-resident at that time; (b) no tax is payable under this Part by the taxpayer for the taxation year; (c) the taxpayer is, at that time, not liable to pay any amount under this Act in respect of any previous taxation year (other than an amount for which the Minister has accepted, and holds, adequate security under section 116 or 220); and (d) each taxable Canadian property disposed of by the taxpayer in the taxation year is (i) excluded property within the meaning assigned by subsection 116(6), or
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(ii) a property in respect of the disposition of which the Minister has issued to the taxpayer a certificate under subsection 116(2), (4) or (5.2).
(5) Subsections (1) to (4) apply in respect of dispositions of property that occur after 2008. 29. (1) Section 153 of the Act is amended by adding the following after subsection (1.3): Exception — remittance to designated financial institution
(1.4) For the purpose of subsection (1), a prescribed person referred to in that subsection is deemed to have remitted an amount to the account of the Receiver General at a designated financial institution if the prescribed person has remitted the amount to the Receiver General at least one day before the day upon which the amount is due. (2) Subsection (1) applies in respect of remittances by a prescribed person that are first due after February 25, 2008. 30. (1) The description of C in subsection 197(2) of the Act is replaced by the following: C is the provincial SIFT tax rate of the SIFT partnership for the taxation year. (2) Subsection (1) applies to the 2009 and subsequent taxation years, except that that subsection also applies for a SIFT partnership’s earlier taxation year if the definition “provincial SIFT tax rate” in subsection 248(1) of the Act, as enacted by subsection 34(3), applies to that earlier taxation year.
31. (1) The Act is amended by adding the following after Part XI:
Exécution du b
2007-2008 PART XI.01
TAXES IN RESPECT OF TFSAs Definitions
“advantage” « avantage »
207.01 (1) The definitions in subsection 146.2(1) and the following definitions apply in this Part. “advantage”, in relation to a TFSA, means (a) any benefit, loan or indebtedness that is conditional in any way on the existence of the TFSA, other than (i) a benefit derived from the provision of administrative or investment services in respect of the TFSA, and (ii) a loan or an indebtedness (including the use of the TFSA as security for a loan or an indebtedness) the terms and conditions of which are terms and conditions that persons dealing at arm’s length with each other would have entered into; and (b) a prescribed benefit.
“allowable refund” « remboursement admissible »
“excess TFSA amount” « excédent CÉLI »
“allowable refund” of a person for a calendar year means the total of all amounts each of which is a refund, for the year, to which the person is entitled under subsection 207.04(4). “excess TFSA amount” of an individual at a particular time in a calendar year means the amount, if any, determined by the formula A-B-C-D-E where A is the total of all amounts each of which is a contribution made under a TFSA by the individual in the calendar year and at or before the particular time, other than a contribution that is (a) a qualifying transfer, or (b) an exempt contribution; B is the individual’s unused TFSA contribution room at the end of the preceding calendar year;
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C is the total of all amounts each of which was a distribution made in the preceding calendar year under a TFSA of which the individual was the holder at the time of the distribution, other than a distribution that is (a) a qualifying transfer, or (b) a prescribed distribution; D is (a) the TFSA dollar limit for the calendar year if, at any time in the calendar year, the individual is resident in Canada, and (b) nil, in any other case; and E is the total of all amounts each of which is a distribution made in the calendar year and at or before the particular time under a TFSA of which the individual was the holder at the time of the distribution, other than a distribution that is (a) a qualifying transfer, or (b) a prescribed distribution. “non-qualified investment” « placement non admissible »
“prohibited investment” « placement interdit »
“non-qualified investment” for a trust governed by a TFSA means property that is not a qualified investment for the trust. “prohibited investment”, at any time, for a trust governed by a TFSA means property (other than prescribed property in relation to the trust) that is at that time (a) a debt of the holder of the TFSA; (b) a share of the capital stock of, an interest in, or a debt of (i) a corporation, partnership or trust in which the holder has a significant interest, or (ii) a person or partnership that does not deal at arm’s length with the holder or with a person or partnership described in subparagraph (i); (c) an interest (or, for civil law, a right) in, or a right to acquire, a share, interest or debt described in paragraph (a) or (b); or (d) restricted property.
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2007-2008 “qualified investment” « placement admissible »
“qualified investment” for a trust governed by a TFSA means (a) an investment that would be described by any of paragraphs (a) to (d), (f) and (g) of the definition “qualified investment” in section 204 if the reference in that definition to “a trust governed by a deferred profit sharing plan or revoked plan” were read as a reference to “a trust governed by a TFSA” and if that definition were read without reference to the words “with the exception of excluded property in relation to the trust”; (b) a contract for an annuity issued by a licensed annuities provider if (i) the trust is the only person who, disregarding any subsequent transfer of the contract by the trust, is or may become entitled to any annuity payments under the contract, and (ii) the holder of the contract has a right to surrender the contract at any time for an amount that would, if reasonable sales and administration charges were ignored, approximate the value of funds that could otherwise be applied to fund future periodic payments under the contract; and (c) a prescribed investment.
“qualifying transfer” « transfert admissible »
“qualifying transfer” means the transfer of an amount from a TFSA of which a particular individual is the holder if (a) the amount is transferred directly to another TFSA, the holder of which is the particular individual; or (b) the amount is transferred directly to another TFSA, the holder of which is a spouse or common-law partner or former spouse or common-law partner of the particular individual, and the following conditions are satisfied: (i) the individuals are living separate and apart at the time of the transfer, and (ii) the transfer is made under a decree, order or judgment of a competent tribunal, or under a written separation agreement, relating to a division of property between
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the individuals in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership. “restricted property” « bien d’exception » “TFSA dollar limit” « plafond CÉLI »
“restricted property” has the meaning assigned by regulation. “TFSA dollar limit” for a calendar year means, (a) for 2009, $5,000; and (b) for each year after 2009, the amount (rounded to the nearest multiple of $500, or if that amount is equidistant from two such consecutive multiples, to the higher multiple) that is equal to $5,000 adjusted for each year after 2009 in the manner set out in section 117.1.
“unused TFSA contribution room” « droits inutilisés de cotisation à un CÉLI »
“unused TFSA contribution room” of an individual at the end of a calendar year means, (a) if the year is before 2009, nil; and (b) in any other case, the positive or negative amount determined by the formula A+B+C-D where A is the individual’s unused TFSA contribution room at the end of the preceding calendar year, B is the total of all amounts each of which was a distribution made in the preceding calendar year under a TFSA of which the individual was the holder at the time of the distribution, other than a distribution that is (i) a qualifying transfer, or (ii) a prescribed distribution, C is (i) the TFSA dollar limit for the calendar year, if at any time in the calendar year the individual is 18 years of age or older and resident in Canada, and (ii) nil, in any other case, and
Exécution du b
2007-2008
D is the total of all amounts each of which is a contribution made under a TFSA by the individual in the calendar year, other than a contribution that is (i) a qualifying transfer, or (ii) an exempt contribution.
Exempt contribution to survivor TFSA
(2) A contribution made in a taxation year under a TFSA by the survivor of an individual is an exempt contribution if (a) the contribution is made during the period (in this subsection referred to as the “rollover period”) that begins when the individual dies and that ends on the second anniversary of the individual’s death (or on any later day that is acceptable to the Minister); (b) a payment (in this subsection referred to as the “survivor payment”) was made to the survivor during the rollover period, as a consequence of the individual’s death, directly or indirectly out of or under an arrangement that ceased, because of the individual’s death, to be a TFSA; (c) the survivor designates, in prescribed form filed with the survivor’s return of income for the taxation year, the contribution in relation to the survivor payment; and (d) the amount of the contribution does not exceed the least of (i) the amount, if any, by which
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exceeds (B) the total of all other contributions designated by the survivor in relation to the survivor payment, (ii) the amount, if any, by which (A) the total proceeds of disposition determined in respect of the arrangement under paragraph 146.2(6)(a), (7)(a) or (8)(a), as the case may be, exceeds (B) the total of all other exempt contributions in respect of the arrangement made by the survivor at or before the time of the contribution, and (iii) if the individual had, immediately before the individual’s death, an excess TFSA amount or if payments described in paragraph (b) are made to more than one survivor of the individual, nil or the greater amount, if any, allowed by the Minister in respect of the contribution.
Survivor as successor holder
(3) If an individual’s survivor becomes the holder of a TFSA as a consequence of the individual’s death and, immediately before the individual’s death, the individual had an excess TFSA amount, the survivor is deemed (other than for the purposes of subsection (2)) to have made, at the beginning of the month following the individual’s death, a contribution under a TFSA equal to the amount, if any, by which (a) that excess TFSA amount exceeds (b) the total fair market value immediately before the individual’s death of all property held in connection with arrangements that ceased, because of the individual’s death, to be TFSAs.
2007-2008 Significant interest
Exécution du b (4) An individual has a significant interest in a corporation, partnership or trust at any time if (a) in the case of a corporation, the individual is a specified shareholder of the corporation at that time; (b) in the case of a partnership, the individual, or the individual together with persons and partnerships with which the individual does not deal at arm’s length, holds at that time interests as a member of the partnership that have a fair market value of 10% or more of the fair market value of the interests of all members in the partnership; and (c) in the case of a trust, the individual, or the individual together with persons and partnerships with which the individual does not deal at arm’s length, holds at that time interests as a beneficiary (in this paragraph, as defined in subsection 108(1)) under the trust that have a fair market value of 10% or more of the fair market value of the interests of all beneficiaries under the trust.
Obligation of issuer
(5) The issuer of a TFSA shall exercise the care, diligence and skill of a reasonably prudent person to minimize the possibility that a trust governed by the TFSA holds a non-qualified investment.
Tax payable on excess TFSA amount
207.02 If, at any time in a calendar month, an individual has an excess TFSA amount, the individual shall, in respect of that month, pay a tax under this Part equal to 1% of the highest such amount in that month.
Tax payable on non-resident contributions
207.03 If, at a particular time, a non-resident individual makes a contribution under a TFSA, the individual shall pay a tax under this Part equal to 1% of the amount of the contribution in respect of each month that ends after the particular time and before the earlier of
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(a) the first time after the particular time at which the amount of the contribution is equalled or exceeded by the total of all amounts each of which is a distribution (i) that is made after the particular time under a TFSA of which the individual is the holder, and (ii) that the individual designates in prescribed manner to be a distribution in connection with the contribution and not in connection with any other contribution, and (b) the time at which the individual becomes resident in Canada. Tax payable on prohibited or non-qualified investment
207.04 (1) The holder of a TFSA that governs a trust shall pay a tax under this Part for a calendar year if, at any time in the year, (a) the trust acquires property that is a prohibited investment, or a non-qualified investment, for the trust; or (b) property held by the trust becomes a prohibited investment, or a non-qualified investment, for the trust.
Amount of tax payable
(2) The amount of tax payable in respect of each property described in subsection (1) is 50% of the fair market value of the property at the time referred to in that subsection.
Where both prohibited and non-qualified investment
(3) For the purposes of subsection 146.2(4) and this section, if a trust governed by a TFSA holds property at any time that is, for the trust, both a prohibited investment and a nonqualified investment, the property is deemed at that time not to be a non-qualified investment, but remains a prohibited investment, for the trust.
Refund of tax on disposition of investment
(4) If in a calendar year a trust governed by a TFSA disposes of a property in respect of which a tax is imposed under subsection (1) on the holder of the TFSA, the holder is entitled to a refund for the year of an amount equal to (a) except where paragraph (b) applies, the amount of the tax so imposed; or
Exécution du b
2007-2008 (b) nil,
(i) if it is reasonable to consider that the holder knew, or ought to have known, at the time the property was acquired by the trust, that it was, or would become, a property described in subsection (1), or (ii) if the property is not disposed of by the trust before the end of the calendar year following the calendar year in which the tax arose, or any later time that the Minister considers reasonable in the circumstances.
Deemed disposition and reacquisition
(5) For the purposes of this Act, if property held by a trust in respect of which a tax was imposed under subsection (1) ceases, at any particular time after the tax is imposed, to be a prohibited investment, or a non-qualified investment, for the trust, the trust is deemed to have disposed of the property immediately before the particular time for proceeds of disposition equal to its fair market value at the particular time and to have reacquired it immediately after the particular time at a cost equal to that fair market value.
Additional tax payable on prohibited investment
(6) The holder of a TFSA that governs a trust shall pay a tax under this Part for a calendar year, in addition to any tax imposed under subsection (1) for the year, if at any time in the year the trust holds one or more properties that are prohibited investments for the trust.
Amount of additional tax payable
(7) The amount of tax payable under subsection (6) for a calendar year is the amount of tax that would be payable under Part I by the trust for the taxation year that ends in the calendar year if (a) the Act were read without reference to paragraph 82(1)(b), section 121 and subsection 146.2(4); and (b) the trust had no incomes or losses from sources other than the properties referred to in subsection (6), and no capital gains or capital losses other than from dispositions of those properties, and for that purpose,
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(i) “income” includes dividends described in section 83, and (ii) the trust’s taxable capital gain or allowable capital loss from the disposition of a property is equal to its capital gain or capital loss, as the case may be, from the disposition. Tax payable where advantage extended
207.05 (1) A tax is payable under this Part for a calendar year in connection with a TFSA if, in the year, an advantage in relation to the TFSA is extended to a person who is, or who does not deal at arm’s length with, the holder of the TFSA.
Amount of tax payable
(2) The amount of tax payable in respect of an advantage described in subsection (1) is (a) in the case of a benefit, the fair market value of the benefit; and (b) in the case of a loan or an indebtedness, the amount of the loan or indebtedness.
Liability for tax
(3) The holder of a TFSA in connection with which a tax is imposed under subsection (1) is liable to pay the tax except that, if the advantage is extended by the issuer of the TFSA or by a person with whom the issuer is not dealing at arm’s length, the issuer, and not the holder, is liable to pay the tax.
Waiver of tax payable
207.06 (1) If an individual would otherwise be liable to pay a tax under this Part because of section 207.02 or 207.03, the Minister may waive or cancel all or part of the liability if (a) the individual establishes to the satisfaction of the Minister that the liability arose as a consequence of a reasonable error; and (b) the individual acts without delay to cause one or more distributions to be made, under one or more TFSAs, the total amount of which is not less than the amount in respect of which the individual would otherwise be liable to pay the tax.
2007-2008 Waiver of tax payable
Exécution du b (2) If a person would otherwise be liable to pay a tax under this Part because of section 207.04 or 207.05, the Minister may waive or cancel all or part of the liability where the Minister considers it just and equitable to do so having regard to all the circumstances, including (a) whether the tax arose as a consequence of reasonable error; and (b) the extent to which the transaction that gave rise to the tax also gave rise to another tax under this Part.
Return and payment of tax
207.07 (1) A person who is liable to pay tax under this Part for all or any part of a calendar year shall within 90 days after the end of the year (a) file with the Minister a return for the year under this subsection in prescribed form and containing prescribed information including (i) an estimate of the amount of tax payable under this Part by the person in respect of the year, and (ii) an estimate of the amount of the person’s allowable refund, if any, for the year; and (b) pay to the Receiver General the amount, if any, by which the amount of the person’s tax payable under this Part in respect of the year exceeds the person’s allowable refund, if any, for the year.
Refund
(2) If a person has filed a return under this Part for a calendar year within three years after the end of the year, the Minister (a) may, on mailing the notice of assessment for the year, refund without application any allowable refund of the person for the year, to the extent that it was not applied against the person’s tax payable under paragraph (1)(b); and (b) shall, with all due dispatch, make the refund referred to in paragraph (a) after mailing the notice of assessment if an application for it has been made in writing by the person within three years after the mailing of an original notice of assessment for the year.
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Provisions applicable to Part
(3) Subsections 150(2) and (3), sections 152 and 158 to 167 and Division J of Part I apply to this Part with any modifications that the circumstances require.
Budget Implem
(2) Subsection (1) applies to the 2009 and subsequent taxation years. 32. (1) Paragraph (a) of the definition “registered life insurance policy” in subsection 211(1) of the Act is replaced by the following: (a) as a registered retirement savings plan or TFSA, or (2) Subsection (1) applies to the 2009 and subsequent taxation years. 33. (1) Paragraph 227(9)(a) of the Act is replaced by the following: (a) subject to paragraph (b), if (i) the Receiver General receives that amount on or before the day it was due, but that amount is not paid in the manner required, 3% of that amount, (ii) the Receiver General receives that amount (A) no more than three days after it was due, 3% of that amount, (B) more than three days and no more than five days after it was due, 5% of that amount, or (C) more than five days and no more than seven days after it was due, 7% of that amount, or (iii) that amount is not paid or remitted on or before the seventh day after it was due, 10% of that amount; or (2) Subsection (1) applies in respect of payments and remittances that are required to be first made after February 25, 2008. 34. (1) The definition “provincial SIFT tax factor” in subsection 248(1) of the Act is repealed.
2007-2008
Exécution du b (2) Subparagraph (f)(vi) of the definition “disposition” in subsection 248(1) of the Act is replaced by the following: (vi) if the transferor is an amateur athlete trust, a cemetery care trust, an employee trust, an inter vivos trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization, a related segregated fund trust (in this paragraph having the meaning assigned by section 138.1), a trust described in paragraph 149(1)(o.4) or a trust governed by an eligible funeral arrangement, an employees profit sharing plan, a registered disability savings plan, a registered education savings plan, a registered supplementary unemployment benefit plan or a TFSA, the transferee is the same type of trust, and
(3) Subsection 248(1) of the Act is amended by adding the following in alphabetical order: “provincial SIFT tax rate” « taux d’imposition provincial des EIPD »
“TFSA” « compte d’épargne libre d’impôt »
“provincial SIFT tax rate” of a SIFT trust or a SIFT partnership for a taxation year means the prescribed amount determined in respect of the SIFT trust or SIFT partnership for the taxation year; “TFSA”, being a tax-free savings account, has the meaning assigned by subsection 146.2(3);
(4) Subsection (1) and the definition “provincial SIFT tax rate” in subsection 248(1) of the Act, as enacted by subsection (3), apply to the 2009 and subsequent taxation years, except that that subsection and that definition also apply (a) to the 2007 and 2008 taxation years of a SIFT trust if the SIFT trust so elects in its return of income for the 2007 taxation year;
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(b) to the 2007 and 2008 taxation years of a SIFT partnership if the SIFT partnership so elects in its return for 2007 required under Part IX.1 of the Act; (c) to the 2008 taxation year of a SIFT trust if the SIFT trust so elects in its return of income for the 2008 taxation year; and (d) to the 2008 taxation year of a SIFT partnership if the SIFT partnership so elects in its return for 2008 required under Part IX.1 of the Act.
(5) Subsection (2) and the definition “TFSA” in subsection 248(1) of the Act, as enacted by subsection (3), apply to the 2009 and subsequent taxation years. 35. (1) Subsection 252(3) of the Act is replaced by the following: Extended meaning of “spouse” and “former spouse”
(3) For the purposes of paragraph 56(1)(b), section 56.1, paragraphs 60(b) and (j), section 60.1, subsections 70(6) and (6.1), 73(1) and (5) and 104(4), (5.1) and (5.4), the definition “pre1972 spousal trust” in subsection 108(1), subsection 146(16), the definition “survivor” in subsection 146.2(1), subparagraph 146.3(2)(f)(iv), subsections 146.3(14), 147(19), 147.3(5) and (7) and 148(8.1) and (8.2), the definition “small business property” in subsection 206(1), the definition “qualifying transfer” in subsection 207.01(1), subparagraph 210(c)(ii) and subsections 248(22) and (23), “spouse” and “former spouse” of a particular individual include another individual who is a party to a void or voidable marriage with the particular individual. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 36. (1) Section 253.1 of the Act is replaced by the following:
2007-2008 Investments in limited partnerships
Exécution du b 253.1 For the purposes of subparagraph 108(2)(b)(ii), paragraphs 130.1(6)(b), 131(8)(b) and 132(6)(b), subsection 146.2(4), paragraphs 146.4(5)(b) and 149(1)(o.2), the definition “private holding corporation” in subsection 191(1) and regulations made for the purposes of paragraphs 149(1)(o.3) and (o.4), if a trust or corporation holds an interest as a member of a partnership and, by operation of any law governing the arrangement in respect of the partnership, the liability of the member as a member of the partnership is limited, the member shall not, solely because of its acquisition and holding of that interest, be considered to carry on any business or other activity of the partnership. (2) Subsection (1) applies to the 2009 and subsequent taxation years. 37. (1) The portion of subsection 259(1) of the Act before paragraph (a) is replaced by the following:
Proportional holdings in trust property
259. (1) For the purposes of subsections 146(6), (10) and (10.1), 146.2(4) and 146.3(7), (8) and (9) and Parts X, X.2 and XI to XI.1, if at any time a taxpayer that is a registered investment or that is described in any of paragraphs 149(1)(r), (s), (u) to (u.2) or (x) acquires, holds or disposes of a particular unit in a qualified trust and the qualified trust elects for any period that includes that time to have this subsection apply,
(2) Subsection (1) applies to the 2009 and subsequent taxation years. R.S., c. C-8
CANADA PENSION PLAN 38. (1) Section 21 of the Canada Pension Plan is amended by adding the following after subsection (1):
Exception — remittance to financial institution
(1.1) For the purpose of subsection (1), a prescribed person referred to in that subsection is deemed to have remitted an amount to the account of the Receiver General at a financial institution referred to in that subsection if the
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prescribed person has remitted the amount to the Receiver General at least one day before the day on which the amount is due. R.S., c. 46 (4th Supp.), s. 1
(2) Paragraph 21(7)(a) of the Act is replaced by the following: (a) subject to paragraph (b), if (i) the Receiver General receives that amount on or before the day it was due, but that amount is not paid in the manner required, three per cent of that amount, (ii) the Receiver General receives that amount (A) no more than three days after it was due, three per cent of that amount, (B) more than three days and no more than five days after it was due, five per cent of that amount, or (C) more than five days and no more than seven days after it was due, seven per cent of that amount, or (iii) that amount is not paid or remitted on or before the seventh day after it was due, ten per cent of that amount; or
(3) Subsection (1) applies in respect of remittances by a prescribed person that are first due after February 25, 2008. (4) Subsection (2) applies in respect of payments and remittances that are required to be first made after February 25, 2008. 1996, c. 23
EMPLOYMENT INSURANCE ACT 39. (1) Section 82 of the Employment Insurance Act is amended by adding the following after subsection (3):
Exception — remittance to financial institution
(3.1) For the purpose of subsection (3), a prescribed person referred to in that subsection is deemed to have remitted an amount to the account of the Receiver General at a financial institution referred to in that subsection if the prescribed person has remitted the amount to the Receiver General at least one day before the day on which the amount is due.
Exécution du b
2007-2008
(2) Paragraph 82(9)(a) of the Act is replaced by the following: (a) subject to paragraph (b), if (i) the Receiver General receives that amount on or before the day it was due, but that amount is not paid in the manner required, 3% of that amount, (ii) the Receiver General receives that amount (A) no more than three days after it was due, 3% of that amount, (B) more than three days and no more than five days after it was due, 5% of that amount, or (C) more than five days and no more than seven days after it was due, 7% of that amount, or (iii) that amount is not paid or remitted on or before the seventh day after it was due, 10% of that amount; or
(3) Subsection (1) applies in respect of remittances by a prescribed person that are first due after February 25, 2008. (4) Subsection (2) applies in respect of payments and remittances that are required to be first made after February 25, 2008. COORDINATING AMENDMENTS Bill C-10
40. Sections 41 to 44 apply if Bill C-10, introduced in the 2nd session of the 39th Parliament and entitled the Income Tax Amendments Act, 2006 (referred to in those sections as the “other Act”), receives royal assent. 41. (1) If the other Act is assented to before or on the same day as the day on which this Act is assented to, then (a) section 21 of this Act is deemed never to have come into force and is repealed; and
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(b) paragraph 132.2(3)(h) of the Income Tax Act, as enacted by subsection 130(1) of the other Act, is replaced by the following: (h) if a share to which paragraph (g) applies would, if this Act were read without reference to this paragraph, cease to be a qualified investment (within the meaning assigned by subsection 146(1), 146.1(1) or 146.3(1), section 204 or subsection 205(1) or 207.01(1)) as a consequence of the qualifying exchange, the share is deemed to be a qualified investment until the earlier of the day that is 60 days after the day that includes the transfer time and the time at which it is disposed of in accordance with paragraph (g); (2) If this Act is assented to before the day on which the other Act is assented to, then paragraph 132.2(3)(h) of the Income Tax Act, as enacted by subsection 130(1) of the other Act, is replaced by the following: (h) if a share to which paragraph (g) applies would, if this Act were read without reference to this paragraph, cease to be a qualified investment (within the meaning assigned by subsection 146(1), 146.1(1) or 146.3(1), section 204 or subsection 205(1) or 207.01(1)) as a consequence of the qualifying exchange, the share is deemed to be a qualified investment until the earlier of the day that is 60 days after the day that includes the transfer time and the time at which it is disposed of in accordance with paragraph (g); (3) The replacement of paragraph 132.2(3)(h) of the Income Tax Act by the operation of paragraph (1)(b) or subsection (2) applies in respect of the 2009 and subsequent taxation years. 42. (1) On the first day on which both subsection 190(1) of the other Act and section 35 of this Act are in force, subsection 252(3) of the Income Tax Act is replaced by the following: Extended meaning of “spouse” and “former spouse”
(3) For the purposes of paragraph 56(1)(b), section 56.1, paragraphs 60(b) and (j), section 60.1, subsections 70(6) and (6.1), 73(1) and (5) and 104(4), (5.1) and (5.4), the definition “pre2007-2008
Exécution du b 1972 spousal trust” in subsection 108(1), subsection 146(16), the definition “survivor” in subsection 146.2(1), subparagraph 146.3(2)(f)(iv), subsections 146.3(14), 147(19), 147.3(5) and (7) and 148(8.1) and (8.2), the definition “small business property” in subsection 206(1), the definition “qualifying transfer” in subsection 207.01(1), and subsections 210(1) and 248(22) and (23), “spouse” and “former spouse” of a particular individual include another individual who is a party to a void or voidable marriage with the particular individual.
(2) The replacement of subsection 252(3) of the Income Tax Act by the operation of subsection (1) applies in respect of the 2009 and subsequent taxation years. 43. (1) On the first day on which both subsection 191(1) of the other Act and section 36 of this Act are in force, section 253.1 of the Income Tax Act is replaced by the following: Investments in limited partnerships
253.1 For the purposes of subparagraph 108(2)(b)(ii), paragraphs 130.1(6)(b), 131(8)(b), 132(6)(b) and 146.1(2.1)(c), subsection 146.2(4), paragraphs 146.4(5)(b) and 149(1)(o.2), the definition “private holding corporation” in subsection 191(1) and regulations made for the purposes of paragraphs 149(1)(o.3) and (o.4), if a trust or corporation holds an interest as a member of a partnership and, by operation of any law governing the arrangement in respect of the partnership, the liability of the member as a member of the partnership is limited, the member shall not, solely because of its acquisition and holding of that interest, be considered to carry on any business or other activity of the partnership. (2) The replacement of section 253.1 of the Income Tax Act by the operation of subsection (1) applies in respect of the 2009 and subsequent taxation years. 44. (1) On the first day on which both subsection 193(1) of the other Act and section 37 of this Act are in force, the portion of
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subsection 259(1) of the Income Tax Act before paragraph (a) is replaced by the following: Proportional holdings in trust property
259. (1) For the purposes of subsections 146(6), (10) and (10.1), 146.1(2.1), 146.2(4) and 146.3(7), (8) and (9) and Parts X, X.2 and XI to XI.1, if at any time a taxpayer that is a registered investment or that is described in any of paragraphs 149(1)(r), (s), (u) to (u.2) or (x) acquires, holds or disposes of a particular unit in a qualified trust and the qualified trust elects for any period that includes that time to have this subsection apply,
(2) The replacement of the portion of subsection 259(1) of the Income Tax Act before paragraph (a) by the operation of subsection (1) applies in respect of the 2009 and subsequent taxation years. CONDITIONAL AMENDMENTS Bill C-253
45. Sections 46 to 48 apply if Bill C-253, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Income Tax Act (deductibility of RESP contributions) (referred to in those sections as the “other Act”), receives royal assent. 46. Paragraph 60(i) of the Income Tax Act, as enacted by section 1 of the other Act, is replaced by the following:
Premium or payment under RRSP or RRIF
(i) any amount that is deductible under section 146 or subsection 147.3(13.1) in computing the income of the taxpayer for the year; 47. (1) Subsection 146.1(2.01) of the Income Tax Act, as enacted by subsection 2(1) of the other Act, is repealed. (2) Subsection 146.1(7.1) of the Income Tax Act, as amended by subsection 2(2) of the other Act, is amended by adding the word “and” at the end of paragraph (a), by striking out the word “and” at the end of paragraph (b) and by repealing paragraph (c).
Exécution du b
2007-2008
(3) Section 146.1 of the Income Tax Act is amended by adding the following after subsection (7.1): Excluded amount
(7.2) For the purpose of paragraph (7.1)(b), an excluded amount in respect of a registered education savings plan is (a) any amount received under the plan; (b) any amount received in satisfaction of a right to a refund of payments under the plan; or (c) any amount received by a taxpayer under a decree, order or judgment of a competent tribunal, or under a written agreement, relating to a division of property between the taxpayer and the taxpayer’s spouse or common-law partner or former spouse or common-law partner in settlement of rights arising out of, or on the breakdown of, their marriage or common-law partnership. 48. Sections 46 and 47 come into force, or are deemed to have come into force, on the day on which the other Act receives royal assent. PART 2 AMENDMENTS IN RESPECT OF EXCISE DUTY ON TOBACCO PRODUCTS AND ALCOHOL
R.S., c. E-14
EXCISE ACT
2002, c. 22, s. 364
49. (1) The definition “beer” or “malt liquor” in section 4 of the Excise Act is replaced by the following:
“beer” or “malt liquor” « bière » ou « liqueur de malt »
“beer” or “malt liquor” means all fermented liquor that is brewed in whole or in part from malt, grain or any saccharine matter without any process of distillation and that has an alcoholic strength not in excess of 11.9% absolute ethyl alcohol by volume, but does not include wine as defined in section 2 of the Excise Act, 2001; (2) With respect to fermented liquor that is brewed by a brewer in whole or in part from malt, grain or any saccharine matter without any process of distillation and that has an alcoholic strength in excess of 11.9%
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absolute ethyl alcohol by volume, a valid licence held by the brewer under the Excise Act is deemed to be a valid spirits licence issued under section 14 of the Excise Act, 2001 until the day that is 30 days after the day on which this Act is assented to.
(3) For the purposes of applying the provisions of the Excise Act, 2001 and of the Customs Act that provide for the payment of, or the liability to pay, interest in respect of any amount, the amount shall be determined and interest shall be computed on it as though this section had come into force on February 27, 2008. (4) Subsections (1) and (2) are deemed to have come into force on February 27, 2008. 2002, c. 22
EXCISE ACT, 2001 Amendments to the Act 50. Section 2 of the Excise Act, 2001 is amended by adding the following in alphabetical order:
“tobacco manufacturing equipment” « matériel de fabrication du tabac »
“tobacco manufacturing equipment” means any machinery or equipment designed or modified specifically for the manufacture of a tobacco product. 51. (1) Subsection 5(1) of the Act is replaced by the following:
Constructive possession
5. (1) For the purposes of subsections 30(1), 32(1) and 32.1(1), section 61, subsections 70(1) and 88(1) and sections 230 and 231, if one of two or more persons, with the knowledge and consent of the rest of them, has anything in the person’s possession, it is deemed to be in the custody and possession of each and all of them. (2) The portion of subsection 5(2) of the Act before paragraph (a) is replaced by the following:
Meaning of “possession”
(2) In this section and in subsections 30(1), 32(1) and 32.1(1), section 61 and subsections 70(1) and 88(1), “possession” means not only having in one’s own personal possession but also knowingly
2007-2008
Exécution du b
52. (1) Subsection 23(1) of the Act is replaced by the following: Refusal to issue licence or registration
23. (1) The Minister may refuse to issue a licence or registration to a person if the Minister has reason to believe (a) that access to the person’s premises will be denied or impeded by any person; or (b) that the refusal is otherwise in the public interest. (2) Section 23 of the Act is amended by adding the following after subsection (2):
Cancellation, etc. — access to premises
(2.1) The Minister may amend, suspend or cancel any licence or registration of a person if (a) access to the premises of the licensee or registrant is denied or impeded by any person; or (b) it is otherwise in the public interest.
53. The Act is amended by adding the following after section 32: Prohibition — possession of tobacco manufacturing equipment
32.1 (1) No person shall possess tobacco manufacturing equipment with the intent of manufacturing a tobacco product unless (a) the person is a tobacco licensee; or (b) the person is an individual manufacturing manufactured tobacco or cigars for their personal use as permitted under subsection 25(3).
Prohibition — importation of tobacco manufacturing equipment
(2) No person shall import tobacco manufacturing equipment unless (a) the person is a tobacco licensee; (b) the equipment is designed for use by an individual manufacturing manufactured tobacco or cigars for their personal use as permitted under subsection 25(3) and is not designed for commercial manufacturing;
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Budget Implem
(c) the person provides evidence satisfactory to the Minister of Public Safety and Emergency Preparedness that the equipment is imported (i) on a tobacco licensee’s behalf, (ii) for the sole purpose of maintenance, alteration or repair in Canada, if the equipment is intended to be exported immediately after the maintenance, alteration or repair is completed, (iii) by or on behalf of a person who carries on a business of supplying that equipment, or (iv) for in-transit movement through Canada; or (d) it is imported in prescribed circumstances or under prescribed terms and conditions. 2007, c. 18, s. 82(1)
54. (1) The portion of subsection 38(2) of the Act before paragraph (a) is replaced by the following:
No delivery of imported tobacco without markings
(2) Subject to subsections (2.1) and (3), no person shall deliver a container of imported manufactured tobacco or cigars that does not have printed on it or affixed to it tobacco markings and other prescribed information to (2) Section 38 of the Act is amended by adding the following after subsection (2):
Delivery of imported stamped tobacco
(2.1) A container of imported manufactured tobacco that was manufactured outside Canada and is stamped may be delivered to (a) a duty free shop for sale or offer for sale in accordance with the Customs Act; or (b) a customs bonded warehouse. (3) Subsections (1) and (2) are deemed to have come into force on February 27, 2008. 55. (1) Section 47 of the Act is renumbered as subsection 47(1) and is amended by adding the following:
2007-2008 Duty relieved — reimportation of stamped tobacco by individual
Exécution du b (2) The duty imposed under section 42 is relieved on manufactured tobacco imported by an individual for their personal use if it was manufactured outside Canada, was previously imported into Canada and is stamped. (2) Subsection (1) is deemed to have come into force on February 27, 2008. 56. (1) Subsection 53(1) of the Act is replaced by the following:
Special duty on imported manufactured tobacco delivered to duty free shop
53. (1) A special duty is imposed, at the rates set out in section 1 of Schedule 3, on imported manufactured tobacco that is delivered to a duty free shop and that is not stamped. (2) Subsection (1) applies to imported manufactured tobacco that is delivered after February 26, 2008. 57. (1) Subsection 54(4) of the Act is replaced by the following:
Exception
(4) The special duty is not imposed on traveller’s tobacco imported by an individual for their personal use if duty under section 42 was previously imposed on the tobacco and the tobacco is stamped. (2) Subsection (1) is deemed to have come into force on February 27, 2008. 58. (1) The Act is amended by adding the following after section 180:
Refund — imported black stock tobacco
180.1 (1) The Minister may refund to a person who has imported manufactured tobacco an amount determined in accordance with subsection (2) in respect of the tobacco if (a) the person provides evidence satisfactory to the Minister that (i) duty was imposed on the tobacco under section 42 at a rate set out in paragraph 1(b), 2(b) or 3(b) of Schedule 1 and paid, and (ii) the tobacco was black stock (A) that was delivered to a duty free shop or customs bonded warehouse or to a person for use as ships’ stores in accordance with the Ships’ Stores Regulations, or
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Budget Implem (B) that was exported for delivery to a foreign duty free shop or as foreign ships’ stores; and
(b) the person applies to the Minister for the refund within two years after the tobacco was imported. Determination of refund
(2) The amount of the refund is equal to the amount by which (a) the duty referred to in subparagraph (1)(a)(i) exceeds (b) the duty that would have been imposed under section 42 on the tobacco if the applicable rate of duty had been the rate set out in paragraph 1(a), 2(a) or 3(a) of Schedule 1. (2) Subsection (1) applies to imported manufactured tobacco that is black stock and that is, after February 26, 2008, (a) delivered to a duty free shop or customs bonded warehouse or to a person for use as ships’ stores in accordance with the Ships’ Stores Regulations; or (b) exported for delivery to a foreign duty free shop or as foreign ships’ stores.
59. Section 206 of the Act is amended by adding the following after subsection (2): Keeping records — tobacco manufacturing equipment
(2.1) Every person who possesses tobacco manufacturing equipment (other than equipment that is designed for use by an individual manufacturing manufactured tobacco or cigars for their personal use as permitted under subsection 25(3) and that is not designed for commercial manufacturing) shall keep records that will enable the determination of the source, the type and the disposition of that equipment. 60. The portion of section 214 of the Act before paragraph (a) is replaced by the following:
2007-2008
Exécution du b
Unlawful production, sale, etc., of tobacco or alcohol
214. Every person who contravenes section 25, 27 or 29, subsection 32.1(1) or section 60 or 62 is guilty of an offence and liable
2007, c. 35, s. 202(1)
61. (1) Subparagraph 216(2)(a)(ii) of the Act is replaced by the following: (ii) $0.17 multiplied by the number of tobacco sticks to which the offence relates,
2007, c. 35, s. 202(2)
(2) Subparagraph 216(3)(a)(ii) of the Act is replaced by the following: (ii) $0.255 multiplied by the number of tobacco sticks to which the offence relates,
2007, c. 35, s. 203(1)
62. Paragraph 240(b) of the Act is replaced by the following: (b) $0.361448 per tobacco stick that was removed in contravention of that subsection, and
2003, c. 15, s. 48(1)
63. (1) The portion of paragraph 2(a) of Schedule 1 to the Act before subparagraph (i) is replaced by the following: (a) $0.074975 per stick, if the tobacco sticks are black stock
2007, c. 35, s. 205(1)
(2) Paragraph 2(b) of Schedule 1 to the Act is replaced by the following: (b) $0.085 per stick, in any other case. (3) Subsections (1) and (2) are deemed to have come into force on February 27, 2008.
2003, c. 15, s. 49(1)
64. (1) The portion of paragraph 3(a) of Schedule 1 to the Act before subparagraph (i) is replaced by the following: (a) $2.49915 per 50 grams or fraction of 50 grams contained in any package, if the manufactured tobacco is black stock
2007, c. 35, s. 206(1)
(2) Paragraph 3(b) of Schedule 1 to the Act is replaced by the following: (b) $2.8925 per 50 grams or fraction of 50 grams contained in any package, in any other case.
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(3) Subsections (1) and (2) come into force, or are deemed to have come into force, on July 1, 2008. 2003, c. 15, s. 51
65. (1) Paragraphs 1(b) and (c) of Schedule 3 to the Act are replaced by the following: (b) $0.075 per stick, in the case of tobacco sticks; and (c) $2.50 per 50 grams or fraction of 50 grams contained in any package, in the case of manufactured tobacco other than cigarettes or tobacco sticks. (2) Paragraph 1(b) of Schedule 3 to the Act, as enacted by subsection (1), is deemed to have come into force on February 27, 2008. (3) Paragraph 1(c) of Schedule 3 to the Act, as enacted by subsection (1), comes into force, or is deemed to have come into force, on July 1, 2008.
2003, c. 15, s. 52
66. (1) Paragraphs 2(b) and (c) of Schedule 3 to the Act are replaced by the following: (b) $0.075 per stick, in the case of tobacco sticks; and (c) $2.50 per 50 grams or fraction of 50 grams contained in any package, in the case of manufactured tobacco other than cigarettes or tobacco sticks. (2) Paragraph 2(b) of Schedule 3 to the Act, as enacted by subsection (1), is deemed to have come into force on February 27, 2008. (3) Paragraph 2(c) of Schedule 3 to the Act, as enacted by subsection (1), comes into force, or is deemed to have come into force, on July 1, 2008.
2003, c. 15, s. 53
67. (1) Paragraph 3(b) of Schedule 3 to the Act is replaced by the following: (b) $0.075 per stick, in the case of tobacco sticks; and (2) Subsection (1) is deemed to have come into force on February 27, 2008.
Exécution du b
2007-2008 2003, c. 15, s. 54
68. (1) Paragraphs 4(b) and (c) of Schedule 3 to the Act are replaced by the following: (b) $0.095724 per stick, in the case of tobacco sticks; and (c) $2.3001 per 50 grams or fraction of 50 grams contained in any package, in the case of tobacco products other than cigarettes or tobacco sticks. (2) Paragraph 4(b) of Schedule 3 to the Act, as enacted by subsection (1), is deemed to have come into force on February 27, 2008. (3) Paragraph 4(c) of Schedule 3 to the Act, as enacted by subsection (1), comes into force, or is deemed to have come into force, on July 1, 2008. Application 69. For the purposes of applying the provisions of the Customs Act that provide for the payment of, or the liability to pay, interest in respect of any amount, the amount shall be determined and interest shall be computed on it as though (a) section 63, paragraph 1(b) of Schedule 3 to the Act, as enacted by subsection 65(1), paragraph 2(b) of Schedule 3 to the Act, as enacted by subsection 66(1), section 67 and paragraph 4(b) of Schedule 3 to the Act, as enacted by subsection 68(1), had come into force on February 27, 2008; and (b) section 64, paragraph 1(c) of Schedule 3 to the Act, as enacted by subsection 65(1), paragraph 2(c) of Schedule 3 to the Act, as enacted by subsection 66(1), and paragraph 4(c) of Schedule 3 to the Act, as enacted by subsection 68(1), had come into force on July 1, 2008.
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Budget Implem RELATED AMENDMENTS
1997, c. 36
Customs Tariff 70. (1) The definition “spirits” in section 21 of the Customs Tariff is amended by striking out the word “or” at the end of paragraph (a) and by adding the following after that paragraph: (a.1) of an alcoholic strength by volume exceeding 11.9%, of heading No. 22.03, that are classified under that heading or with the container in which they are imported; or (2) For the purposes of applying the provisions of the Excise Act, 2001 and of the Customs Act that provide for the payment of, or the liability to pay, interest in respect of any amount, the amount shall be determined and interest shall be computed on it as though this section had come into force on February 27, 2008. (3) Subsection (1) is deemed to have come into force on February 27, 2008.
2002, c. 22, s. 350
71. (1) Subsection 92(3) of the Act is replaced by the following:
Exception
(3) This section does not apply to any duty imposed under the Excise Act, 2001 in respect of manufactured tobacco that is manufactured in Canada and imported manufactured tobacco that is stamped in accordance with that Act. (2) Subsection (1) is deemed to have come into force on February 27, 2008. PART 3 AMENDMENTS IN RESPECT OF THE GOODS AND SERVICES TAX AND HARMONIZED SALES TAX (GST/HST)
R.S., c. E-15
EXCISE TAX ACT 72. (1) Subsection 162(2) of the Excise Tax Act is amended by striking out the word “or” at the end of paragraph (b), by adding the word “or’’ at the end of paragraph (c) and by adding the following after paragraph (c):
Exécution du b
2007-2008
(d) a right to enter or use land to generate, or evaluate the feasibility of generating, electricity from the sun or wind,
2000, c. 30, s. 26(2)
(2) Subsection 162(3) of the Act is replaced by the following:
Exception
(3) Subsection (2) does not apply to a supply of a right to take or remove forestry products, products that grow in water, fishery products, minerals or peat, a right of entry or user relating thereto or a right referred to in paragraph (2)(d), if the supply is made to (a) a consumer; or (b) a person who is not a registrant and who acquires the right in the course of a business of the person of making supplies of the products, minerals, peat or electricity to consumers. (3) Subsections (1) and (2) apply to (a) any supply made on or after February 26, 2008; and (b) any supply made before February 26, 2008, but only in respect of the portion of the consideration for the supply that becomes due, or is paid without having become due, on or after February 26, 2008.
1993, c. 27, s. 56(2)
73. (1) Subparagraph 191(1)(b)(i) of the Act is replaced by the following: (i) gives possession or use of the complex to a particular person under a lease, licence or similar arrangement (other than an arrangement, under or arising as a consequence of an agreement of purchase and sale of the complex, for the possession or occupancy of the complex until ownership of the complex is transferred to the purchaser under the agreement) entered into for the purpose of its occupancy by an individual as a place of residence,
1993, c. 27, s. 56(2)
(2) The po rtion of sub parag raph 191(1)(b)(ii) of the Act before clause (A) is replaced by the following:
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Budget Implem
(ii) gives possession or use of the complex to a particular person under an agreement for
1993, c. 27, s. 56(1)
(3) Paragraph 191(1)(c) of the Act is replaced by the following: (c) the builder, the particular person, or an individual who has entered into a lease, licence or similar arrangement in respect of the complex with the particular person, is the first individual to occupy the complex as a place of residence after substantial completion of the construction or renovation,
1993, c. 27, s. 56(1)
(4) Paragraph 191(1)(d) of the Act is replaced by the following: (d) to have made and received, at the later of the time the construction or substantial renovation is substantially completed and the time possession or use of the complex is so given to the particular person or the complex is so occupied by the builder, a taxable supply by way of sale of the complex, and
2000, c. 30, s. 40(1)
(5) Subparagraph 191(3)(b)(i) of the Act is replaced by the following: (i) gives, to a particular person who is not a purchaser under an agreement of purchase and sale of the complex, possession or use of any residential unit in the complex under a lease, licence or similar arrangement entered into for the purpose of the occupancy of the unit by an individual as a place of residence,
2000, c. 30, s. 40(1)
(6) The po rtion of sub parag raph 191(3)(b)(i.1) of the Act before clause (A) is replaced by the following: (i.1) gives possession or use of any residential unit in the complex to a particular person under an agreement for
1990, c. 45, s. 12(1); 2000, c. 30, s. 40(1)
(7) Paragraph 191(3)(c) of the Act is replaced by the following:
2007-2008
Exécution du b (c) the builder, the particular person, or an individual who has entered into a lease, licence or similar arrangement in respect of a residential unit in the complex with the particular person, is the first individual to occupy a residential unit in the complex as a place of residence after substantial completion of the construction or renovation,
1993, c. 27, s. 56(4); 2000, c. 30, s. 40(1)
(8) Paragraph 191(3)(d) of the Act is replaced by the following: (d) to have made and received, at the later of the time the construction or substantial renovation is substantially completed and the time possession or use of the unit is so given to the particular person or the unit is so occupied by the builder, a taxable supply by way of sale of the complex, and
2000, c. 30, s. 40(2)
(9) Subparagraph 191(4)(b)(i) of the Act is replaced by the following: (i) gives, to a particular person who is not a purchaser under an agreement of purchase and sale of the complex, possession or use of any residential unit in the addition under a lease, licence or similar arrangement entered into for the purpose of the occupancy of the unit by an individual as a place of residence,
2000, c. 30, s. 40(2)
(10) The portion of subparagraph 191(4)(b)(i.1) of the Act before clause (A) is replaced by the following: (i.1) gives possession or use of any residential unit in the addition to a particular person under an agreement for
1990, c. 45, s. 12(1); 2000, c. 30, s. 40(2)
(11) Paragraph 191(4)(c) of the Act is replaced by the following: (c) the builder, the particular person, or an individual who has entered into a lease, licence or similar arrangement in respect of a residential unit in the addition with the particular person, is the first individual to occupy a residential unit in the addition as a place of residence after substantial completion of the construction of the addition,
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1993, c. 27, s. 56(5); 2000, c. 30, s. 40(2)
(12) Paragraph 191(4)(d) of the Act is replaced by the following:
Budget Implem
(d) to have made and received, at the later of the time the construction of the addition is substantially completed and the time possession or use of the unit is so given to the particular person or the unit is so occupied by the builder, a taxable supply by way of sale of the addition, and 1993, c. 27, s. 56(9)
Transfer of possession attributed to builder
(13) The portion of subsection 191(10) of the Act before paragraph (c) is replaced by the following: (10) For the purposes of this section, if (a) a builder of a residential complex or an addition to a multiple unit residential complex makes a supply of the complex or a residential unit in the complex or addition by way of lease, licence or similar arrangement and the supply is an exempt supply included in section 6.1 or 6.11 of Part I of Schedule V, (b) the recipient of the supply is acquiring the complex or unit for use or supply in the course of making exempt supplies and, as part of an exempt supply, possession or use of the complex, unit or residential units in the complex is given by the recipient under a lease, licence or similar arrangement under which occupancy of the complex or unit is given to an individual as a place of residence or lodging, and
(14) For the purposes of subsection (15), the particular time in respect of a residential complex or an addition to a residential complex is the later of (a) the time the construction or substantial renovation of the residential complex or addition is substantially completed, and (b) the earlier of the time the builder of the complex or addition first gives possession or use of the complex, or of a residential unit in the complex or addition, to a person for the purpose of the occupancy of the
Exécution du b
2007-2008
complex or unit by an individual as a place of residence and the time the complex or a residential unit in the complex or addition is occupied by the builder as a place of residence.
(15) Subsections (1) to (12) apply in respect of a residential complex or an addition to a residential complex if the particular time is (a) after February 26, 2008; or (b) on or before February 26, 2008 and the builder of the complex or addition, as the case may be, (i) would have been deemed under section 191 of the Act to have made, at the particular time, a taxable supply by way of sale of the complex or addition if that section, as amended by subsections (1) to (13), had applied at that time, and (ii) has reported an amount as or on account of tax, as a result of the builder applying section 191 of the Act in respect of the complex or addition, in the builder’s return under Division V of Part IX of the Act for any reporting period the return for which is filed on or before February 26, 2008 or is required under that Division to be filed on or before a day that is on or before February 26, 2008. (16) For the purposes of subsection (17), the particular time in respect of a residential complex or an addition to a residential complex is the later of (a) the time the construction or substantial renovation of the complex or addition is substantially completed, and (b) the time possession of the complex or of a residential unit in the complex or addition is first given by a builder of the complex or addition to a person who is acquiring the complex or unit for use or supply in the course of making exempt supplies if, as part of an exempt supply,
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Budget Implem
possession or use of the complex, unit or residential units in the complex is given by the person under a lease, licence or similar arrangement under which occupancy of the complex or unit is given to an individual as a place of residence or lodging.
(17) Subsection (13) applies in respect of a residential complex or an addition to a residential complex if the particular time is (a) after February 26, 2008; or (b) on or before February 26, 2008 and the builder of the complex or addition, as the case may be, (i) would have been deemed under section 191 of the Act to have made, at the particular time, a taxable supply by way of sale of the complex or addition if that section, as amended by subsections (1) to (13), had applied at that time, and (ii) has reported an amount as or on account of tax, as a result of the builder applying section 191 of the Act in respect of the complex or addition, in the builder’s return under Division V of Part IX of the Act for any reporting period the return for which is filed on or before February 26, 2008 or is required under that Division to be filed on or before a day that is on or before February 26, 2008. (18) For the purposes of the Act, if a person (a) is the builder of a residential complex or of an addition to a multiple unit residential complex, (b) is deemed under subsection 191(1), (3) or (4) of the Act to have made and received, at a particular time that is after February 26, 2008, a taxable supply by way of sale of the residential complex or addition and to have paid as a recipient
2007-2008
Exécution du b and to have collected as a supplier a particular amount of tax in respect of that supply, and (c) has not claimed or deducted an amount (in this subsection referred to as an “unclaimed credit”) in respect of property or a service in determining the net tax for any reporting period of the person the return for which is filed on or before February 26, 2008 or is required under Division V of Part IX of the Act to be filed on or before a day that is on or before February 26, 2008 and (i) the property or service, in a particular reporting period that ends on or before February 26, 2008, (A) was acquired, imported or brought into a participating province for consumption or use in making the taxable supply, or (B) was, in relation to the complex or addition, acquired, imported or brought into a participating province and would have been acquired, imported or brought into the participating province for consumption or use in making the taxable supply if section 191 of the Act were read as that section is amended by this Act, and (ii) the unclaimed credit is, or would be if section 191 of the Act were read as that section is amended by this Act, an input tax credit of the person, the unclaimed credit of the person is deemed to be an input tax credit of the person for the reporting period of the person that includes February 26, 2008 and not to be an input tax credit of the person for any other reporting period.
(19) For the purposes of this section,
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(a) subsection 191(9) of the Act applies in determining the time the construction or substantial renovation of a residential complex or an addition to a residential complex is substantially completed; and (b) subsection 191(10) of the Act, as amended by subsection (13), applies in determining the time possession of a residential complex or a residential unit in a residential complex or addition to a residential complex is given to a person. 1997, c. 10, s. 38(1)
74. (1) The portion of paragraph 191.1(2)(b) of the Act before subparagraph (i) is replaced by the following: (b) possession or use of at least 10% of the residential units in the complex is intended to be given for the purpose of their occupancy as a place of residence or lodging by
1997, c. 10, s. 38(1)
(2) Subparagraphs 191.1(2)(b)(vi) and (vii) of the Act are replaced by the following: (vi) individuals whose eligibility for occupancy of the units as a place of residence or lodging, or for reduced payments in respect of their occupancy as a place of residence or lodging, is dependent on a means or income test, (vii) individuals for whose benefit no other persons (other than public sector bodies) pay consideration for supplies that include giving possession or use of the units for occupancy by the individuals as a place of residence or lodging and who either pay no consideration for the supplies or pay consideration that is significantly less than the consideration that could reasonably be expected to be paid for comparable supplies made by a person in the business of making such supplies for the purpose of earning a profit, or
Exécution du b
2007-2008
(3) For the purposes of subsection (4), the particular time in respect of a residential complex or an addition to a residential complex is the later of (a) the time the construction or substantial renovation of the residential complex or addition is substantially completed, and (b) the earlier of the time the builder of the complex or addition first gives possession or use of the complex or of a residential unit in the complex or addition to a person for the purpose of the occupancy of the complex or unit by an individual as a place of residence and the time the complex or a residential unit in the complex or addition is occupied by the builder as a place of residence.
(4) Subsections (1) and (2) apply in respect of a residential complex or an addition to a residential complex if the particular time is (a) after February 26, 2008; or (b) on or before February 26, 2008 and the builder of the complex or addition, as the case may be, (i) would have been deemed under section 191 of the Act to have made, at the particular time, a taxable supply by way of sale of the complex or addition if that section, as amended by subsections 73(1) to (13), had applied at that time, and (ii) has reported an amount as or on account of tax, as a result of the builder applying section 191 of the Act in respect of the complex or addition, in the builder’s return under Division V of Part IX of the Act for any reporting period the return for which is filed on or before February 26, 2008 or is required under that Division to be filed on or before a day that is on or before February 26, 2008. (5) For the purposes of this section,
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(a) subsection 191(9) of the Act applies in determining the time the construction or substantial renovation of a residential complex or an addition to a residential complex is substantially completed; and (b) subsection 191(10) of the Act, as amended by subsection 73(13), applies in determining the time possession of a residential complex or a residential unit in a residential complex or addition to a residential complex is given to a person.
75. (1) The Act is amended by adding the following after section 236.3: Election for residential complex
236.4 (1) A person may make an election in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a particular reporting period of the person if (a) the person is the builder of the residential complex or addition; (b) the person is deemed under subsection 191(1), (3) or (4) to have made and received, at a particular time that is on or before February 26, 2008, a taxable supply by way of sale of the residential complex or addition and to have paid as a recipient and to have collected as a supplier a particular amount of tax in respect of that supply; (c) the person has not reported an amount as or on account of tax in respect of the taxable supply in the person’s return under this Division for any reporting period the return for which is filed on or before February 26, 2008 or is required under this Division to be filed on or before a day that is on or before February 26, 2008; (d) the person would be entitled to claim a rebate under subsection 256.2(3) in respect of the residential complex or addition that is determined based on the particular amount of tax if (i) section 256.2 were read without reference to subsection (7), and
Exécution du b
2007-2008
(ii) the amount determined for B in the first formula in subsection 256.2(3) for a qualifying residential unit, as defined in subsection 256.2(1), that forms part of the residential complex or addition were less than $450,000; (e) the person did not supply to another person by way of sale the residential complex or addition on or before February 26, 2008; (f) the particular reporting period ends on or before February 26, 2010; (g) the election is filed in prescribed form containing prescribed information not later than the day on or before which the return under this Division is required to be filed for the particular reporting period; and (h) the person has not made another election under this subsection in respect of the residential complex or addition.
Adjustment to net tax
(2) If a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a reporting period of the person, the person shall, in determining the net tax for that period, add the positive amount or deduct the negative amount determined by the formula (A - B) - C where A is the particular amount of tax referred to in paragraph (1)(b); B is the amount of the rebate that the person would be entitled, if section 256.2 were read without reference to subsection (7), to claim under subsection 256.2(3) in respect of the residential complex or addition that is determined based on the particular amount of tax; and C is the amount determined by the formula C1 - C 2
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Budget Implem
where C1
is the total of all amounts each of which is an input tax credit of the person (i) that is in respect of property or a service acquired, imported or brought into a participating province before the particular time referred to in paragraph (1)(b) for consumption or use for the purpose of making the supply referred to in that paragraph, and (ii) in respect of which the person satisfies the requirements of subsection 169(4) at the time the election under subsection (1) is filed, and
C2
is the total of all amounts each of which is an amount included in the determination of C1, but only to the extent that the amount can reasonably be regarded as an amount that (i) was claimed or included as an input tax credit or deduction in determining the net tax for the reporting period or a preceding reporting period of the person, (ii) has previously been rebated, refunded or remitted to the person, or that the person is entitled to obtain as a rebate, refund or remission, under this or any other Act of Parliament, or (iii) is included in an adjustment, refund or credit for which a credit note referred to in subsection 232(3) has been received by the person or a debit note referred to in that subsection has been issued by the person.
Consequences of election
(3) For the purposes of this Part, if a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, for a reporting period of the person, the person is deemed
2007-2008
Exécution du b (a) to have been deemed to have made and received, at the particular time referred to in paragraph (1)(b), a taxable supply of the residential complex or addition by way of sale and to have paid as a recipient and to have collected as a supplier tax in respect of the supply equal to the particular amount of tax referred to in that paragraph under (i) in the case of a single unit residential complex or a residential condominium unit, subsection 191(1), (ii) in the case of a multiple unit residential complex, subsection 191(3), and (iii) in the case of an addition, subsection 191(4); (b) to have claimed each amount that is included in the determination of C1 in the second formula in subsection (2) as an input tax credit in determining the net tax for the reporting period, but only to the extent that the amount is not included in the determination of C2 in the same formula; (c) to have claimed and received a rebate under subsection 256.2(3), in respect of the complex or addition, equal to the amount determined for B in the first formula in subsection (2); and (d) not to be required to include the particular amount of tax deemed to have been collected under paragraph (a) for the purpose of determining the net tax of the person for the reporting period that includes the particular time, other than for the purpose of including the particular amount in the determination of A in the first formula in subsection (2).
Input tax credit
(4) For the purposes of subsection 225(4), if a person makes an election under subsection (1), any input tax credit of the person in respect of the complex or addition that the person is deemed to have received under paragraph (3)(a) is deemed to be an input tax credit of the person
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for the reporting period of the person that includes February 26, 2008 and not an input tax credit of the person for any other period. Limitation period if election
(5) If a person makes an election under subsection (1) in respect of a residential complex, or in respect of an addition to a multiple unit residential complex, section 298 applies to any assessment, reassessment or additional assessment of an amount added to, or deducted from, net tax by the person in respect of the residential complex or addition, but the Minister has until the day that is four years after the day on or before which the election under subsection (1) is required to be filed with the Minister to make any assessment, reassessment or additional assessment for the purpose of taking into account any amount that is, or is required to be, added or subtracted in determining the amount determined under the first formula in subsection (2).
Residential complex separate from addition
(6) For the purposes of this section, if a person is the builder of an addition to a residential complex and is eligible to make an election under subsection (1) in respect of the addition or the remainder of the residential complex, the addition and the remainder of the residential complex are each deemed to be a separate property. (2) Subsection (1) applies to any reporting period that ends on or after February 26, 2008. (3) Despite any other provision of this Act, sections 191, 191.1 and 256.2 of the Act shall be read as those sections are amended by this Act in applying section 236.4 of the Act, as enacted by subsection (1).
1993, c. 27, s. 113(1); 2000, c. 30, s. 74(1)
76. (1) The portion of subsection 256.1(1) of the Act before the formula is replaced by the following:
Rebate to owner of land leased for residential purposes
256.1 (1) If an exempt supply of land described by section 6.1 or 6.11 of Part I of Schedule V is made to a particular lessee who is acquiring the land for the purpose of making a particular supply of property or a service that includes the land or a particular supply of a
2007-2008
Exécution du b lease, licence or similar arrangement in respect of property that includes the land, and the particular supply (a) is an exempt supply of property or a service, other than a supply that is exempt only by virtue of paragraph 6(b) of Part I of Schedule V, that (i) includes giving possession or use of a residential complex, or of a residential unit forming part of a residential complex, to another person under a lease, licence or similar arrangement entered into for the purpose of its occupancy by an individual as a place of residence or lodging, or (ii) is described by section 7 of Part I of Schedule V, other than an exempt supply described by paragraph 7(a) of that Part made to a person described in subparagraph 7(a)(ii) of that Part, and (b) will result in the particular lessee being deemed under any of subsections 190(3) to (5) and section 191 to have made a supply of property that includes the land at a particular time, the Minister shall, subject to subsection (2), pay a rebate, to each person (in this subsection referred to as the “landlord”) who is an owner or lessee of the land and who is not the particular lessee, equal to the amount determined by the formula (2) Subsection (1) applies in respect of (a) a supply of land made to a particular lessee that is deemed under any of subsections 190(3) to (5) and section 191 of the Act to have made, after February 26, 2008, another supply of property that includes the land; and (b) a supply of land made by a person to a particular lessee if (i) the particular lessee was deemed under any of subsections 190(3) to (5) and section 191 of the Act to have made, on or before February 26, 2008, another supply of property that includes the land,
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(ii) the supply would be included in section 6.11 of Part I of Schedule V to the Act if that section were read as that section is enacted by this Act, and (iii) the person did not, on or before February 26, 2008, charge, collect or remit any amount as or on account of tax under Part IX of the Act in respect of the supply or any other supply of the land made by the person that would be included in section 6.1 or 6.11 of Part I of Schedule V to the Act if that section were read as that section is enacted by this Act. (3) If paragraph (2)(b) applies, (a) each person (in this subsection referred to as the “landlord”) who is an owner or lessee of the land and who is not the particular lessee may, despite subsection 256.1(2) of the Act, file an application for a rebate under subsection 256.1(1) of the Act on or before February 26, 2010; (b) the application may, despite subsection 262(2) of the Act, be the second application of the landlord for the rebate if the landlord has filed, on or before February 26, 2008, another application for the rebate and the other application has been assessed before the landlord files the application; (c) for the purposes of Part IX of the Act in respect of the application, sections 6.1 and 6.11 of Part I of Schedule V to the Act shall be read as those sections are enacted by this Act; and (d) a rebate is not payable under subsection 256.1(1) of the Act, as amended by subsection (1), to a person who is not a landlord of the land at the time the application for the rebate is filed. 2001, c. 15, s. 16(1)
77. (1) Clause (a)(ii)(A) of the definition “qualifying residential unit” in subsection 256.2(1) of the Act is replaced by the following:
2007-2008
Exécution du b (A) for the purpose of making exempt supplies of the unit that are included in section 5.1, 6.1, 6.11 or 7 of Part I of Schedule V, (A.1) for the purpose of making exempt supplies of property or a service that includes giving possession or use of the unit to a person under a lease to be entered into for the purpose of its occupancy by an individual as a place of residence, or
2001, c. 15, s. 16(1)
(2) Subparagraph 256.2(3)(a)(ii) of the Act is replaced by the following: (ii) is a builder of a residential complex, or of an addition to a multiple unit residential complex, that gives possession or use of a residential unit in the complex or addition to another person under a lease entered into for the purpose of its occupancy by an individual as a place of residence that results in the particular person being deemed under section 191 to have made and received a taxable supply by way of sale (in this subsection referred to as the “deemed purchase”) of the complex or addition, (3) Section 256.2 of the Act is amended by adding the following after subsection (6):
Adjustment for transitional rebate
(6.1) For the purposes of determining the amount of a particular rebate in respect of a residential complex, an interest in a residential complex or an addition to a multiple unit residential complex payable to a person under any of subsections (3) to (5), the amount of the total tax under subsection 165(1) included in the calculation made under the formulae in subsections (3) to (5) shall be reduced by the total of all rebates payable to the person under any of sections 256.3 to 256.77 in respect of the residential complex, interest or addition, as the case may be, if the person
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(a) was not entitled to the particular rebate under this section as it read immediately after it was last amended by an Act of Parliament that was assented to before February 26, 2008; and (b) is entitled to the particular rebate under this section as it reads immediately after the Budget Implementation Act, 2008 has been assented to. (4) Subsections (1) and (2) apply in respect of (a) a taxable supply by way of sale (i) of a residential complex, or of an addition to a multiple unit residential complex, that is deemed to have been made under section 191 of the Act, if tax in respect of the supply is deemed under that section to have been paid after February 26, 2008, or (ii) of a residential complex, or of an interest in a residential complex, to a person from another person, if tax under Part IX of the Act in respect of the supply first becomes payable after February 26, 2008; and (b) a taxable supply by way of sale (i) of a residential complex, or of an addition to a multiple unit residential complex, that is deemed to have been made under section 191 of the Act, if (A) tax in respect of the supply is deemed under that section to have been paid by a person on a particular day that is on or before February 26, 2008, (B) the person has reported the tax in the person’s return under Division V of Part IX of the Act for the reporting period of the person that includes the particular day, and (C) the person has remitted all net tax remittable, if any, as reported in that return, or
Exécution du b
2007-2008
(ii) of a residential complex, or of an interest in a residential complex, to a person that is not a builder of the complex from another person, if tax under Part IX of the Act in respect of the supply first becomes payable on or before February 26, 2008 and the person has paid all of the tax. (5) Subsection (3) is deemed to have come into force on July 1, 2006. (6) If paragraph (4)(b) applies, (a) the person referred to in that paragraph may, despite paragraph 256.2(7)(a) of the Act, file, on or before February 26, 2010, an application for a rebate in respect of the tax under subsection 256.2(3) of the Act; and (b) the application may, despite subsection 262(2) of the Act, be the second application of the person for the rebate if the person has filed, on or before February 26, 2008, another application for the rebate and the other application has been assessed before the person files the application. 2000, c. 30, s. 109(2)
78. (1) Section 6.1 of Part I of Schedule V to the Act is replaced by the following: 6.1 A supply of property that is (a) land, or (b) a building, or that part of a building, that consists solely of residential units made by way of lease, licence or similar arrangement to a recipient (in this section referred to as a “lessee”) for a lease interval (within the meaning assigned by subsection 136.1(1) of the Act) throughout which the lessee or any sublessee makes, or holds the property for the purpose of making, one or more supplies of the property, parts of the property or leases, licences or similar arrangements in respect of the property or parts of it and all or substantially all of those supplies (c) are exempt supplies included in section 6 or 7, or
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(d) are supplies that are made, or are reasonably expected to be made, to other lessees or sublessees described in this section. (2) Subsection (1) applies to any supply for which consideration becomes due after February 26, 2008, without having been paid on or before that day, or is paid after that day without having become due. 79. (1) Part I of Schedule V to the Act is amended by adding the following after section 6.1: 6.11 A supply made by way of lease, licence or similar arrangement of property that is a residential complex or that is land, a building or that part of a building, that forms or is reasonably expected to form part of a residential complex if the supply is made to a recipient (in this section referred to as the “lessee”) for a lease interval (within the meaning assigned by subsection 136.1(1) of the Act) throughout which all or substantially all of the property is (a) supplied, or is held for the purpose of being supplied, in one or more supplies, by the lessee or any sublessee for the purpose of the occupancy of the property or parts of the property by individuals as a place of residence or lodging and all or substantially all of the supplies of the property or parts of the property are exempt supplies included in section 6, or (b) used, or held for the purpose of being used, by the lessee or any sublessee in the course of making exempt supplies and, as part of one or more exempt supplies, possession or use of all or substantially all of the residential units situated in the property is given under a lease, licence or similar arrangement for the purpose of their occupancy by an individual as a place of residence. (2) Subsection (1) applies to any supply of property made by a supplier for which
2007-2008
Exécution du b (a) consideration becomes due after February 26, 2008 without having been paid on or before that day, or is paid after that day without having become due; or (b) all of the consideration became due or was paid on or before February 26, 2008 if the supplier did not, on or before that day, charge, collect or remit any amount as or on account of tax under Part IX of the Act in respect of the supply or any other supply of the property made by the supplier that would be included in section 6.1 or 6.11 of Part I of Schedule V to the Act, if that section were read as that section is enacted by this Act. (3) If, as a result of the enactment of section 6.11 of Part I of Schedule V to the Act by subsection (1), (a) a person ceases to use land of the person, or reduces the extent to which land is used, in commercial activities of the person, (b) the person is deemed under subsection 206(4) or (5) or 207(1) or (2) of the Act to have made a supply of the land, or a portion of it, (c) the person would have become entitled, at a particular time that is on or before February 26, 2008, to a rebate under subsection 256.1(1) of the Act in respect of the land equal to an amount, if that subsection, as amended by this Act, and sections 6.1 and 6.11 of Part I of Schedule V to the Act, as enacted by this Act, had applied at the particular time, and (d) in determining the basic tax content (as defined in subsection 123(1) of the Act) of the land of the person on or after the particular time, the amount would have been included in determining the total for B in paragraph (a) of that definition if the person had been entitled to the rebate at the particular time,
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Budget Implem
for the purpose of determining, on or after the particular time, the basic tax content of the land of the person, the amount shall be included in determining the total for B in paragraph (a) of that definition. (4) If, as a result of the enactment of section 6.11 of Part I of Schedule V to the Act by subsection (1), (a) a person ceases to use a residential complex of the person, or reduces the extent to which the residential complex is used, in commercial activities of the person, (b) the person is deemed under subsection 206(4) or (5) or 207(1) or (2) of the Act to have made a supply of the residential complex, or a portion of it, (c) the person would have become entitled, at a particular time that is on or before February 26, 2008, to a rebate under subsection 256.2(3) of the Act in respect of the residential complex equal to an amount, if section 256.2 of the Act, as amended by this Act, and sections 6.1 and 6.11 of Part I of Schedule V to the Act, as enacted by this Act, had applied at the particular time, and (d) in determining the basic tax content (as defined in subsection 123(1) of the Act) of the residential complex of the person on or after the particular time, the amount would have been included in determining the total for B in paragraph (a) of that definition if the person had been entitled to the rebate at the particular time, for the purpose of determining, on or after the particular time, the basic tax content of the residential complex of the person, the amount shall be included in determining the total for B in paragraph (a) of that definition.
1990, c. 45, s. 18; 1997, c. 10, s. 93.1(1)
80. (1) Sections 5 and 6 of Part II of Schedule V to the Act are replaced by the following:
2007-2008
Exécution du b 5. A supply of a consultative, diagnostic, treatment or other health care service (other than a surgical or dental service that is performed for cosmetic purposes and not for medical or reconstructive purposes) that is rendered by a medical practitioner to an individual. 6. A supply of a nursing service rendered to an individual by a registered nurse, a registered nursing assistant, a licensed or registered practical nurse or a registered psychiatric nurse, if the service is rendered within a nurse-patient relationship.
(2) Subsection (1) applies to any supply made after February 26, 2008. 1990, c. 45, s. 18
81. (1) The portion of section 7 of Part II of Schedule V to the Act before paragraph (a) is replaced by the following: 7. A supply of any of the following services if the service is rendered to an individual by a practitioner of the service: (2) Subsection (1) applies to any supply made after February 26, 2008.
1997, c. 10, s. 95(1); 2007, c. 18, s. 54(1)
82. (1) Sections 7.1 and 7.2 of Part II of Schedule V to the Act are replaced by the following: 7.1 A supply of a dietetic service rendered by a practitioner of the service, if the service is rendered to an individual or the supply is made to a public sector body or to the operator of a health care facility. 7.2 A supply of a service rendered in the practice of the profession of social work where (a) the service is rendered to an individual within a professional-client relationship between the particular individual who renders the service and the individual and is provided for the prevention, assessment or remediation of, or to assist the individual in coping with, a physical, emotional, behavioural or mental
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Budget Implem
disorder or disability of the individual or of another individual to whom the individual is related or to whom the individual provides care or supervision otherwise than in a professional capacity; and (b) either (i) if the particular individual is required to be licensed or otherwise certified to practise the profession of social work in the province in which the service is supplied, the particular individual is so licensed or certified, or (ii) if the particular individual is not required to be licensed or otherwise certified to practise that profession in that province, the particular individual has the qualifications equivalent to those necessary to be licensed or certified to practise that profession in a province in which such a requirement exists. (2) Subsection (1) applies to any supply made after February 26, 2008. 1990, c. 45, s. 18
83. (1) Section 10 of Part II of Schedule V to the Act is replaced by the following: 10. A supply of a prescribed diagnostic, treatment or other health care service rendered to an individual if made on the order of (a) a medical practitioner or practitioner; or (b) a registered nurse authorized under the laws of a province to order such a service if the order is made within a nurse-patient relationship.
(2) Subsection (1) applies to any supply made after February 26, 2008. 84. (1) Part II of Schedule V to the Act is amended by adding the following after section 13: 14. A supply (other than a zero-rated supply or a prescribed supply) of a training service if
Exécution du b
2007-2008
(a) the training is specially designed to assist individuals with a disorder or disability in coping with the effects of the disorder or disability or to alleviate or eliminate those effects and is given to a particular individual with the disorder or disability or to another individual who provides personal care or supervision to the particular individual otherwise than in a professional capacity; and (b) one of the following circumstances exists: (i) a person acting in the capacity of a practitioner, medical practitioner, social worker or registered nurse, and in the course of a professional-client relationship between the person and the particular individual, has certified in writing that the training is an appropriate means to assist the particular individual in coping with the effects of the disorder or disability or to alleviate or eliminate those effects, (ii) a prescribed person, or a member of a prescribed class of persons, has, subject to prescribed circumstances or conditions, certified in writing that the training is an appropriate means to assist the particular individual in coping with the effects of the disorder or disability or to alleviate or eliminate those effects, or (iii) the supplier (A) is a government, (B) is paid an amount to make the supply by a government or organization administering a government program targeted at assisting individuals with a disorder or disability, or (C) receives evidence satisfactory to the Minister that, for the purpose of the acquisition of the service, an amount has been paid or is payable to a person by a government or organization administering a government program targeted at assisting individuals with a disorder or disability.
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15. For the purposes of section 14, a training service does not include training that is similar to the training ordinarily given to individuals who (a) do not have a disorder or disability; and (b) do not provide personal care or supervision to an individual with a disorder or disability. (2) Subsection (1) applies to any supply made after February 26, 2008. 1997, c. 10, s. 118(2)
85. (1) The definition “prescription” in section 1 of Part I of Schedule VI to the Act is replaced by the following: “prescription” means a written or verbal order, given to a pharmacist by a medical practitioner or authorized individual, directing that a stated amount of any drug or mixture of drugs specified in the order be dispensed for the individual named in the order. (2) Section 1 of Part I of Schedule VI to the Act is amended by adding the following in alphabetical order: “authorized individual” means an individual, other than a medical practitioner, who is authorized under the laws of a province to make an order directing that a stated amount of a drug or mixture of drugs specified in the order be dispensed for the individual named in the order; (3) Subsections (1) and (2) apply to any supply made (a) after February 26, 2008; or (b) on or before February 26, 2008 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply.
1993, c. 27, s. 179(1)
86. (1) Paragraph 2(b) of Part I of Schedule VI to the Act is replaced by the following: (b) a drug included in Schedule F to the Food and Drug Regulations, other than a drug or mixture of drugs that may, pursuant to
Exécution du b
2007-2008
the Food and Drugs Act or those Regulations, be sold to a consumer with neither a prescription nor a written order signed by the Director (as defined in those Regulations), 2000, c. 30, s. 123(1)
(2) Paragraph 2(d) of Part I of Schedule VI to the Act is replaced by the following: (d) a drug that contains a substance included in the schedule to the Narcotic Control Regulations, other than a drug or mixture of drugs that may, pursuant to the Controlled Drugs and Substances Act or regulations made under that Act, be sold to a consumer with neither a prescription nor an exemption by the Minister of Health in respect of the sale, (3) Subsections (1) and (2) apply to any supply made after February 26, 2008.
1997, c. 10, s. 119(1)
87. (1) Paragraph 3(b) of Part I of Schedule VI to the Act is replaced by the following: (b) on the prescription of a medical practitioner or authorized individual for the personal consumption or use of the individual named in the prescription. (2) Subsection (1) applies to any supply made (a) after February 26, 2008; or (b) on or before February 26, 2008 if no amount was charged, collected or remitted on or before that day as or on account of tax under Part IX of the Act in respect of the supply. 88. (1) Part II of Schedule VI to the Act is amended by adding the following after section 1: 1.1 For the purposes of this Part, other than section 33, a supply of property that is not designed for human use or for assisting an individual with a disability or impairment is deemed not to be included in this Part.
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(2) Subsection (1) applies to any supply made after February 26, 2008. 1990, c. 45, s. 18
89. (1) Section 6 of Part II of Schedule VI to the Act is replaced by the following: 6. A supply of a mechanical percussor for postural drainage treatment or a chest wall oscillation system for airway clearance therapy. (2) Subsection (1) applies to any supply made after February 26, 2008.
1997, c. 10, s. 127
90. (1) Section 14 of Part II of Schedule VI to the Act is replaced by the following: 14. A supply of a chair, walker, wheelchair lift or similar aid to locomotion, with or without wheels, including motive power and wheel assemblies therefor, that is specially designed to be operated by an individual with a disability for locomotion of the individual. 14.1 A supply of a chair that is specially designed for use by an individual with a disability if the chair is supplied on the written order of a medical practitioner for use by a consumer named in the order. (2) Subsection (1) applies to any supply made after February 26, 2008.
1997, c. 10, s. 128(1)
91. (1) Section 20 of Part II of Schedule VI to the Act is replaced by the following: 20. A supply of a toilet seat, bath seat, shower seat or commode chair that is specially designed for use by an individual with a disability. (2) Subsection (1) applies to any supply made after February 26, 2008.
1993, c. 27, s. 185(1); 1997, c. 10, s. 135(F); 2000, c. 30, s. 125(1)
92. (1) Sections 33 to 34 of Part II of Schedule VI to the Act are replaced by the following:
2007-2008
Exécution du b 33. A supply of an animal that is or is to be specially trained to assist an individual with a disability or impairment with a problem arising from the disability or impairment, or a supply of a service of training an individual to use the animal, if the supply is made to or by an organization that is operated for the purpose of supplying such specially trained animals to individuals with the disability or impairment.
34. A supply of a service (other than a service the supply of which is included in any provision of Part II of Schedule V except section 9 of that Part and a service related to the provision of a surgical or dental service that is performed for cosmetic purposes and not for medical or reconstructive purposes) of installing, maintaining, restoring, repairing or modifying a property the supply of which is included in any of sections 2 to 32 and 37 to 41 of this Part, or any part for such a property if the part is supplied in conjunction with the service. (2) Subsection (1) applies to any supply made after February 26, 2008. 93. (1) Part II of Schedule VI to the Act is amended by adding the following after section 40: 41. A supply of a device that is specially designed for neuromuscular stimulation therapy or standing therapy, if supplied on the written order of a medical practitioner for use by a consumer with paralysis or a severe mobility impairment who is named in the order. (2) Subsection (1) applies to any supply made after February 26, 2008.
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Budget Implem PART 4
CANADA MILLENNIUM SCHOLARSHIP FOUNDATION DISSOLUTION OF THE FOUNDATION Liquidation
94. (1) Within six months after the day on which this subsection comes into force, or any longer time that the Governor in Council determines on the recommendation of the Minister of Human Resources and Skills Development, the Canada Millennium Scholarship Foundation, established by section 3 of the Budget Implementation Act, 1998 and referred to in this Part as “the Foundation”, shall sell or otherwise dispose of all of its property other than property referred to in subsection (3) and discharge all of its liabilities, on terms and conditions that are approved by the Governor in Council.
Donations of money
(2) Despite subsection (1), money that was donated to the Foundation under section 21 of the Budget Implementation Act, 1998 — including any income arising from the investment of the money — and that was not used for carrying out the objects and purposes of the Foundation shall be paid to the donor.
Transfer to department
(3) Within the period referred to in subsection (1), the Foundation shall transfer to the Department of Human Resources and Skills Development the following things, including any electronic versions of them: (a) the books of account and other records referred to in section 35 of the Budget Implementation Act, 1998, as well as any information that the Foundation collected in order to produce them; (b) all other information that the Foundation has under its control concerning persons who have received scholarships or any other financial assistance from it; (c) any studies that the Foundation has under its control, and any other information that it has collected through research; and
Exécution du b
2007-2008
(d) any database containing information related to any of those books of account and other records, that other information and those studies, as well as any information necessary in order to use the database. Remaining money
Dissolution
1998, c. 21
(4) After satisfying the obligations set out in subsections (1) to (3), the Foundation shall deposit all of its remaining money in the Consolidated Revenue Fund to the credit of the Receiver General. (5) The Foundation is dissolved. AMENDMENTS TO THE BUDGET IMPLEMENTATION ACT, 1998
2003, c. 22, par. 224(g)(E); 2005, c. 30, s. 82, c. 34, par. 80(a)
95. The headings before section 2 and sections 2 to 42 of the Budget Implementation Act, 1998 are repealed.
2003, c. 15, s. 32
96. Section 43 of the Act and the heading before it are repealed. 97. The heading before section 44 and sections 44 to 46 of the Act are repealed. CONSEQUENTIAL AMENDMENTS
R.S., c. A-1 2006, c. 9, s. 166
R.S., c. P-21
2006, c. 9, s. 191
Access to Information Act 98. Schedule I to the Access to Information Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Canada Millennium Scholarship Foundation Fondation canadienne des bourses d’études du millénaire Privacy Act 99. The schedule to the Privacy Act is amended by striking out the following under the heading “OTHER GOVERNMENT INSTITUTIONS”: Canada Millennium Scholarship Foundation Fondation canadienne des bourses d’études du millénaire
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Budget Implem COMING INTO FORCE
January 5, 2010, or earlier
100. (1) Subsections 94(1) to (4) and section 96 come into force on January 5, 2010, or on an earlier day that is fixed by order of the Governor in Council.
Order in council
(2) Subsection 94(5) and sections 95 and 97 to 99 come into force on a day to be fixed by order of the Governor in Council. PART 5 FEDERAL FINANCIAL ASSISTANCE FOR STUDENTS
1994, c. 28
AMENDMENTS TO THE CANADA STUDENT FINANCIAL ASSISTANCE ACT 101. (1) Subsection 2(2) of the Canada Student Financial Assistance Act is replaced by the following:
Other definitions
(2) In this Act, the words and expressions “borrower”, “consolidated student loan agreement”, “course”, “family income”, “financial assistance”, “full-time student”, “loan year”, “part-time student”, “period of studies”, “postsecondary school level”, “program of studies”, “severe permanent disability”, “student loan” and “student loan agreement” have the meanings assigned by the regulations. (2) Section 2 of the Act is amended by adding the following after subsection (3):
Electronic documents and communication
(4) A document or other communication under this Act or the regulations may be in electronic form, and a reference in this Act or the regulations to a document includes a document in electronic form. 102. Paragraph 5(e) of the Act is replaced by the following: (e) the repayment of student loans by borrowers or classes of borrowers on an income-contingent basis;
2000, c. 14, s. 17
103. Subsection 6.2(2) of the Act is replaced by the following:
2007-2008 Receipt and Deposit of Public Money Regulations, 1997
Exécution du b (2) Despite section 3 of the Receipt and Deposit of Public Money Regulations, 1997, the portion of the following money that is public money and is collected or received electronically by a service provider that has entered into an agreement under subsection (1) shall be paid to the credit of the Receiver General by depositing it, within two business days after the day of collection or receipt, in an account established under subsection 17(2) of the Financial Administration Act: (a) money collected or received as repayment of financial assistance, as repayment of a guaranteed student loan as defined in subsection 2(1) of the Canada Student Loans Act or as payment of interest owing on that assistance or loan; and (b) interest received by the service provider on the money referred to in paragraph (a).
Meaning of “business day”
(3) In this section, “business day” means a day other than a Saturday or a holiday. 104. Section 8 of the Act is renumbered as subsection 8(1) and is amended by adding the following:
Payment deferred for parttime students
(2) Subject to the regulations, no amount on account of principal or interest in respect of a student loan that is made to a part-time student is required to be paid by the borrower until the last day of the seventh month after the month in which the borrower ceases to be a student, whether a part-time or full-time student. 105. Section 10 of the Act is replaced by the following:
Death of borrower
10. All rights of the lender against a borrower in respect of a student loan prescribed by regulations made under paragraph 15(1)(j) terminate if the borrower dies, and in that event the Minister shall pay to the lender the amounts referred to in subparagraph 5(a)(iii).
2005, c. 30, s. 111
106. Sections 11 and 11.1 of the Act are replaced by the following:
Severe permanent disability
11. All rights of the lender against a borrower in respect of a student loan prescribed by regulations made under paragraph 15(1)(j)
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terminate if the Minister is satisfied, on the basis of information specified by the Minister and provided by or on behalf of the borrower, that the borrower, by reason of the borrower’s severe permanent disability, is unable to repay the student loan and will never be able to repay it, and in that event the Minister shall pay to the lender the amounts referred to in subparagraph 5(a)(iii). Severe permanent disability — section 6.1 loan
11.1 All obligations of a borrower in respect of a loan made under an agreement entered into under section 6.1 terminate if the Minister is satisfied, on the basis of information specified by the Minister and provided by or on behalf of the borrower, that the borrower, by reason of the borrower’s severe permanent disability, is unable to repay the loan and will never be able to repay it. 107. The portion of subsection 12(1) of the Act before paragraph (a) is replaced by the following:
Issue of certificates
12. (1) Subject to the regulations, the appropriate authority for a province designated under paragraph 3(1)(a) may, on application of a qualifying student, issue or cause to be issued a certificate of eligibility in the prescribed form, for a period of studies at a designated educational institution in or outside Canada, to or in respect of the student if that authority considers the student 108. (1) Paragraph 15(e) of the Act is replaced by the following: (d.1) respecting the issuance of certificates of eligibility and providing for their subsequent submission by the issuees; (e) providing for the conditions to be met before a disbursement in respect of a student loan may be made; (2) Section 15 of the Act is amended by adding the following after paragraph (f): (f.1) respecting the circumstances in which no amount on account of principal or interest is required to be paid in respect of student loans;
2007-2008
Exécution du b (3) Paragraphs 15(n) to (p) of the Act are replaced by the following: (n) providing for the establishment and operation of a program to provide special interest-free or interest-reduced periods to borrowers or classes of borrowers, including the terms and conditions of the granting or termination of the periods, the making, continuation or alteration of agreements between borrowers and lenders when the periods are granted or terminated and the authorization of lenders to grant or terminate the periods and otherwise administer the program; (o) providing, in respect of any province, for repayment of student loans by borrowers or classes of borrowers on an income-contingent basis, or for the establishment and operation of a student loan program that is financed by Her Majesty in right of Canada or any agent of Her Majesty in right of Canada and that may provide for the repayment of student loans by borrowers or classes of borrowers on an income-contingent basis; (p) providing for the establishment and operation of grant programs, and additional grant programs for qualifying students whose financial needs are greater than the maximum amount of the financial assistance that may be given to the student, for the classes of persons who are eligible for grants and for the circumstances in which all or part of a grant is to be repaid or converted into a loan; (4) Section 15 of the Act is renumbered as subsection 15(1) and is amended by adding the following:
Electronic systems
(2) The Governor in Council may make regulations providing for the establishment and operation of electronic systems that provide information about financial aid available to qualifying students and borrowers and that can receive information from them, and providing for the transactions that may be carried out with regard to that financial aid by means of those systems. 109. The Act is amended by adding the following after section 16:
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Right of recovery by Minister
16.01 A student loan that is made to a borrower who is not of full age under an agreement entered into under section 6.1, and interest on the loan, is recoverable by the Minister from the borrower as though the borrower had been of full age at the time the agreement was entered into.
Waiver
16.02 On application by a qualifying student or a borrower, the Minister may, to avoid undue hardship to the student or borrower, waive
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(a) a requirement of the regulations with respect to the times within which the student or borrower’s confirmation of enrolment or certificate of eligibility is to be submitted; or (b) a requirement of the regulations, or a requirement determined or approved by the Minister, with respect to the form or manner in which information in respect of the student or borrower is to be provided. Financial assistance denied due to error
16.03 If the Minister is satisfied that a person was denied financial assistance to which the person would have been entitled as a result of an error made in the administration of this Act or the regulations, the Minister may take remedial action to place the person in the position that he or she would have been in under this Act had the error not been made. 110. The Act is amended by replacing every reference to section 15 of the Act with a reference to subsection 15(1) wherever it occurs in the following provisions: (a) subparagraphs 5(a)(ii) and (iv); (b) subsection 7(1); (c) section 8; (d) the portion of subsection 12(4) before paragraph (a); and (e) subsections 14(6) and (7).
R.S., c. S-23
1994, c. 28, s. 25
AMENDMENTS TO THE CANADA STUDENT LOANS ACT 111. Section 11 of the Canada Student Loans Act is replaced by the following:
2007-2008 Regulations
Exécution du b 11. The Governor in Council may make regulations providing for the establishment and operation of a program to provide special interest-free or interest-reduced periods to borrowers or classes of borrowers, including the terms and conditions of the granting or termination of the periods, the making, continuation or alteration of agreements between borrowers and lenders when the periods are granted or terminated and the authorization of lenders to grant or terminate the periods and otherwise administer the program. 112. Section 13 of the Act is replaced by the following:
Severe permanent disability
13. (1) If the Minister is satisfied, on the basis of prescribed information provided by or on behalf of a borrower, that the borrower, by reason of severe permanent disability, is unable to repay a guaranteed student loan and will never be able to repay it, all rights of any lender against the borrower in respect of that guaranteed student loan terminate, and the Minister shall pay to any lender whose rights against a borrower are terminated under this section the amount of principal and interest determined in the prescribed manner to have been payable by the borrower at the time the borrower provided the Minister with the information required under this section.
Meaning of “severe permanent disability”
(2) The Governor in Council may make regulations defining the expression “severe permanent disability” for the purposes of subsection (1). 113. (1) Section 17 of the Act is amended by adding the following after paragraph (k): (k.1) respecting the circumstances in which no amount on account of principal or interest is required to be paid in respect of guaranteed student loans; (2) Paragraph 17(m) of the Act is replaced by the following: (m) prescribing circumstances, related to the conduct of a student in obtaining or repaying a guaranteed student loan, under which a new loan may be denied to a student or a borrower’s right to an interest-free period
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under section 4 or to a special interest-free period under section 10 may be revoked by the Minister; (3) Paragraph 17(q) of the Act is replaced by the following: (q) providing for the repayment of guaranteed student loans by borrowers or classes of borrowers on an income-contingent basis; 114. The Act is amended by adding the following after section 19: Waiver
19.01 On application by a qualifying student or a borrower, the Minister may, to avoid undue hardship to the student or borrower, waive (a) a requirement of the regulations with respect to the times within which the student or borrower’s confirmation of enrolment or certificate of eligibility is to be submitted; or (b) a requirement of the regulations, or a requirement prescribed by the Minister, with respect to the form or manner in which information in respect of the student or borrower is to be provided.
Financial assistance denied due to error
19.02 If the Minister is satisfied that a person was denied financial assistance under this Act to which the person would have been entitled as a result of an error made in the administration of this Act or the regulations, the Minister may take remedial action to place the person in the position that he or she would have been in under this Act had the error not been made. COMING INTO FORCE
Order in council
115. Subsection 101(1) and sections 104 to 106 and 112 come into force on a day or days to be fixed by order of the Governor in Council. PART 6
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT AMENDMENTS TO THE ACT 116. Subsection 11(1) of the Immigration and Refugee Protection Act is replaced by the following:
2007-2008 Application before entering Canada
Exécution du b 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 117. Subsection 25(1) of the Act is replaced by the following:
Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. 118. The Act is amended by adding the following before the heading “Loans” before section 88: Instructions on Processing Applications and Requests
Application
87.3 (1) This section applies to applications for visas or other documents made under subsection 11(1), other than those made by persons referred to in subsection 99(2), sponsorship applications made by persons referred to in subsection 13(1), applications for permanent resident status under subsection 21(1) or temporary resident status under subsection 22(1) made by foreign nationals in Canada and to requests under subsection 25(1) made by foreign nationals outside Canada.
Attainment of immigration goals
(2) The processing of applications and requests is to be conducted in a manner that, in the opinion of the Minister, will best support the attainment of the immigration goals established by the Government of Canada.
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Instructions
(3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
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(a) establishing categories of applications or requests to which the instructions apply; (b) establishing an order, by category or otherwise, for the processing of applications or requests; (c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and (d) providing for the disposition of applications and requests, including those made subsequent to the first application or request. Compliance with instructions
(4) Officers and persons authorized to exercise the powers of the Minister under section 25 shall comply with any instructions before processing an application or request or when processing one. If an application or request is not processed, it may be retained, returned or otherwise disposed of in accordance with the instructions of the Minister.
Clarification
(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.
Publication
(6) Instructions shall be published in the Canada Gazette.
Clarification
(7) Nothing in this section in any way limits the power of the Minister to otherwise determine the most efficient manner in which to administer this Act. 119. Paragraph 94(2)(a) of the Act is replaced by the following: (a) the instructions given under section 87.3 and other activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces;
Exécution du b
2007-2008
TRANSITIONAL PROVISION Application
120. Section 87.3 of the Immigration and Refugee Protection Act applies only to applications and requests made on or after February 27, 2008. PART 7 EMPLOYMENT INSURANCE CANADA EMPLOYMENT INSURANCE FINANCING BOARD ACT
Enactment of Act
121. The Canada Employment Insurance Financing Board Act is enacted as follows: An Act to establish the Canada Employment Insurance Financing Board SHORT TITLE
Short title
1. This Act may be cited as the Canada Employment Insurance Financing Board Act. INTERPRETATION
Definitions
“Auditor General” « vérificateur général »
“Board” « Office »
“by-law” Version anglaise seulement
“Minister” « ministre »
2. The following definitions apply in this Act. “Auditor General” means the Auditor General of Canada appointed under subsection 3(1) of the Auditor General Act. “Board” means the Canada Employment Insurance Financing Board established by subsection 3(1). “by-law” means a by-law of the Board.
“Minister” means the Minister of Human Resources and Skills Development. ESTABLISHMENT OF THE BOARD
Board established
3. (1) There is established a corporation to be known as the Canada Employment Insurance Financing Board.
Not agent of Her Majesty
(2) The Board is not an agent of Her Majesty in right of Canada.
Not part of federal public administration
(3) Directors, officers, employees, agents and mandataries of the Board are not part of the federal public administration.
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Head office
(4) The head office and principal place of business of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act.
Canada Corporations Act
(5) The Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, does not apply to the Board.
Inconsistency with Financial Administration Act
(6) In the event of any inconsistency between the provisions of this Act and the provisions of Part X of the Financial Administration Act, the provisions of this Act prevail.
Non-application
(7) Sections 105, 121, 128 to 132, 138 to 142, 148 and 150 of the Financial Administration Act do not apply to the Board.
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OBJECTS, POWERS AND DUTIES Objects
4. The objects of the Board are (a) to set the premium rate under section 66 of the Employment Insurance Act; (b) to maintain a reserve in accordance with that section; (c) to manage any amounts paid to it under section 77.1 of that Act; and (d) to invest its financial assets with a view to meeting its financial obligations.
Powers of Board
5. (1) The Board has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
No inconsistent business or activity
(2) The Board shall not, directly or indirectly, carry on any business or activity or exercise any power that is inconsistent with the Board’s objects, including any power in relation to benefits or other payments made under subsection 77(1) of the Employment Insurance Act or to the employment insurance program design or delivery, or that the Board is restricted by this Act from carrying on or exercising, and shall not, directly or indirectly, exercise any of its powers, or perform any of its duties, in a manner contrary to this Act.
Borrowing
(3) The Board shall not borrow money otherwise than from Her Majesty in right of Canada.
Exécution du b
2007-2008 No subsidiaries
(4) The Board shall not incorporate or acquire any subsidiaries.
No invalidity
(5) No act of the Board, including a transfer of property, is invalid by reason only that the Board was without the capacity or power to so act. MANAGEMENT BOARD OF DIRECTORS
Board of directors
6. The Board shall be managed by a board of directors of seven directors, including the chairperson.
Specific duties
7. The board of directors shall, among other things, (a) on an annual basis, establish written investment policies, standards and procedures in accordance with section 23; (b) monitor the officers and employees of the Board to ensure compliance with those investment policies, standards and procedures; (c) establish procedures for the identification of real or potential conflicts of interest and procedures to resolve those conflicts; (d) establish a code of conduct for officers and employees of the Board; and (e) designate a committee of the board of directors to monitor the application of the conflict of interest procedures and the code of conduct.
Power to delegate
8. (1) Subject to subsection (2) and the bylaws, the board of directors may delegate to the chairperson of the board of directors, to a committee of the board of directors or to any officer of the Board any of the powers or duties of the board of directors.
Limits on power
(2) The board of directors may not delegate the power to (a) set the premium rate under section 66 of the Employment Insurance Act; (b) adopt, amend or repeal by-laws; (c) establish the Board’s investment policies, standards and procedures;
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(d) fill a vacancy in a committee of directors or in the office of auditor of the Board; (e) appoint officers or fix their remuneration; or (f) approve the annual financial statements of the Board or any other financial statements issued by the Board. DIRECTORS Appointment of directors
9. (1) Each director shall be appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for a term, not exceeding four years, that will ensure, as far as possible, the expiry in any one year of the terms of office of not more than one half of the directors.
Reappointment
(2) A director is eligible for reappointment for one or more additional terms.
Removal
(3) The Governor in Council may remove a director for cause.
Vacancy
(4) If a person ceases to be a director during the term for which the person was appointed, the Minister shall appoint a candidate from the list established under section 10 to hold office as a director for the remainder of the term.
No available candidates on list
(5) However, if no candidate on the list is available, the Minister shall, after taking into account the factors referred to in subsection 10(6), appoint any qualified person to hold office as a director for the remainder of the term.
Disqualified persons
(6) The following persons are disqualified from being directors: (a) a person who is less than 18 years of age; (b) a person who is of unsound mind and has been so found by a court in Canada or elsewhere; (c) a person who has the status of a bankrupt; (d) a person who is not a natural person; (e) a member of the nominating committee established under subsection 10(1);
2007-2008
Exécution du b (f) a person who is an agent, mandatary or employee of Her Majesty in right of Canada or in right of a province; (g) a person who is a member of the Senate or House of Commons of Canada or a member of a provincial legislature; (h) a person who is an agent, mandatary or employee of the government of a foreign country or any political subdivision of a foreign country; and (i) a person who is not a resident of Canada.
Nominating committee
10. (1) The Minister shall establish a nominating committee to establish a list of candidates for proposed appointment as directors. The committee shall consist of a chairperson appointed by the Minister and of the commissioners referred to in paragraphs 20(2)(c) and (d) of the Department of Human Resources and Skills Development Act.
Qualifications of chairperson
(2) The chairperson of the nominating committee shall be appointed on the basis of merit taking into account any relevant experience in the functioning of a board of directors and in the financial or insurance sector as a senior executive.
Term of office
(3) The chairperson of the nominating committee holds office for a maximum term of five years and is eligible for reappointment for one or more additional terms.
Removal
(4) The Minister may remove the chairperson of the nominating committee at any time.
Remuneration of chairperson
(5) The Minister shall fix the remuneration and expenses of the chairperson of the nominating committee, which shall be paid by the Board.
Factors for consideration
(6) When the nominating committee is establishing a list of qualified candidates for proposed appointment as directors, it shall consult the board of directors and shall have regard to the desirability of having on the board of directors a sufficient number of directors with proven financial ability or relevant work experience such that the Board will be able to effectively achieve its objects.
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Maintenance of list
(7) The nominating committee shall maintain the list with a sufficient number of candidates to fill any vacancies on the board of directors that may arise.
Recommendations from list of nominating committee
(8) The recommendation of the Minister under subsection 9(1) shall be made from the list of candidates proposed by the nominating committee.
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CHAIRPERSON OF THE BOARD OF DIRECTORS Designation
11. (1) The Governor in Council shall, on the recommendation of the Minister made after the Minister has consulted with the board of directors, designate one of the directors as chairperson of the board of directors.
Term of office
(2) The chairperson shall hold office during good behaviour for the term that the Governor in Council deems appropriate and is eligible for reappointment for one or more additional terms.
Removal
(3) The Governor in Council may remove the chairperson for cause.
Presiding at meetings
(4) The chairperson shall preside at all meetings of the board of directors and may exercise the powers and perform the duties and functions that are specified by the board of directors.
Absence of chairperson
(5) If the chairperson is absent at any meeting of the board of directors, one of the directors present who is chosen to so act by the directors present shall preside and have all the powers, duties and functions of the chairperson.
Incapacity of chairperson
(6) If the chairperson is incapable of performing his or her duties or there is a vacancy in the office of chairperson, the Minister may, after consulting with the board of directors, designate another director to exercise the powers and perform the duties and functions of the chairperson. OFFICERS
Directors not officers
12. (1) A director is not eligible to be appointed as an officer of the Board.
Two or more offices
(2) A person may hold two or more offices of the Board.
Exécution du b
2007-2008
CHIEF EXECUTIVE OFFICER Designation
13. (1) The board of directors shall, after consulting with the Minister, appoint the chief executive officer of the Board on the basis of merit taking into account any relevant experience in the financial or insurance sector as a senior executive.
Term of office
(2) The chief executive officer shall hold office for the term that the board of directors deems appropriate.
Removal
(3) The board of directors may remove the chief executive officer for cause.
Duties
(4) The chief executive officer is responsible for the direction and management of the business and day-to-day operations of the Board.
Not a board member
(5) The chief executive officer is not a member of the board of directors.
Absence, incapacity or vacancy
(6) If the chief executive officer is absent or incapacitated or if the office of chief executive officer is vacant, the chairperson of the board of directors may designate any qualified person to exercise the powers and perform the duties and functions of the chief executive officer during the absence, incapacity or vacancy, but no person may be so designated for a period exceeding 90 days without the approval of the board of directors. CHIEF ACTUARY
Appointment
14. (1) The board of directors shall appoint a Fellow of the Canadian Institute of Actuaries to be the chief actuary of the Board.
Officer
(2) The chief actuary is an officer of the Board under the direction of the chief executive officer.
Duties
(3) The chief actuary shall prepare actuarial forecasts and estimates for the purposes of section 66 of the Employment Insurance Act and shall, on or before October 31 in each year, provide the board of directors with (a) the forecast premium rate for the following year and a detailed analysis in support of the forecast;
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(b) the forecast fair market value of the Board’s reserve at the end of the following year; (c) a determination and analysis of any difference between the premium rate set for the year that is two years before the current year and what that rate should have been for that year in order to meet the objective of subsection 66(1) of the Employment Insurance Act; and (d) the source of the data, the actuarial and economic assumptions and the actuarial methodology used. DILIGENCE Obligation
15. (1) Every director and officer of the Board in exercising any of the powers of a director or an officer and in performing any of the duties of a director or an officer shall (a) act honestly and in good faith with a view to the best interests of the Board; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances.
Special knowledge or skill
(2) A director or officer of the Board who in fact possesses, or by reason of profession or business ought to possess, a particular level of knowledge or skill relevant to the director’s or officer’s powers or duties shall employ that particular level of knowledge or skill in the exercise of those powers or the performance of those duties.
Reliance on statements
(3) A director or an officer of the Board is deemed to comply with subsections (1) and (2) if they rely in good faith on (a) financial statements of the Board represented by an officer of the Board, or represented in a written report of the Board’s auditor, to be a fair reflection of the financial condition of the Board; or (b) a report of an accountant, actuary, lawyer, notary or other person whose profession lends credibility to a statement made by the person.
Exécution du b
2007-2008 BY-LAWS Statutory Instruments Act does not apply
16. The Statutory Instruments Act does not apply in respect of by-laws. COMMITTEES ESTABLISHMENT
Committees
17. (1) The board of directors shall establish an audit committee, an investment committee and a human resources committee.
Other committees
(2) The board of directors may establish other committees as it deems necessary and assign to them the duties that it considers appropriate. AUDIT COMMITTEE
Duties
18. The audit committee shall (a) require the Board’s management to implement and maintain appropriate internal control procedures; (b) review, evaluate and approve those internal control procedures; (c) review and approve the Board’s annual financial statements and report to the board of directors before those statements are approved by the board of directors; (d) meet with the Board’s auditor to discuss the Board’s annual financial statements and the auditor’s report; (e) review all investments and transactions that could adversely affect the return on the Board’s investments that are brought to the committee’s attention by the Board’s auditor or officers; and (f) meet with the internal auditor of the Board, or with the person acting in any similar capacity, and with the Board’s management, to discuss the effectiveness of the internal control procedures.
Meeting of audit committee
19. (1) The Board’s auditor or any member of the audit committee may call a meeting of the committee.
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Meeting of directors
(2) The audit committee may call a meeting of the board of directors to consider any matter of concern to the committee.
Auditor’s right to attend meetings
20. (1) The Board’s auditor is entitled to receive notice of and to attend meetings of the board of directors and meetings of the audit committee, at the Board’s expense, and to be heard at those meetings on matters relating to the auditor’s duties.
Rights if no meeting
(2) If the board of directors or the audit committee proposes to make a decision with respect to matters referred to in subsection (1) without holding a meeting, the auditor is entitled to notice of a proposed decision to be made by the board or the committee and the proposed decision shall not be made until the auditor has been given the opportunity to make submissions on the matter in writing, in accordance with the by-laws.
Requiring auditor’s attendance
(3) The Board’s auditor shall attend meetings of the audit committee, if requested to do so by a member of the audit committee — and shall attend meetings of the board of directors, if requested to do so by a director — at the Board’s expense.
Budget Implem
INVESTMENT COMMITTEE Duties
21. The investment committee shall (a) perform the duties that are assigned to it by the board of directors; (b) approve the engagement of investment managers empowered with discretionary authority to invest the assets of the Board; (c) meet with the officers and employees of the Board to discuss the effectiveness of the Board’s investment policies and the achievement of the Board’s objects; (d) require the Board’s management to implement and maintain appropriate procedures to (i) monitor the application of the Board’s investment policies, standards and procedures, and
Exécution du b
2007-2008
(ii) ensure that the Board’s agents and mandataries comply with this Act and the Board’s investment policies, standards and procedures; and (e) review, evaluate and approve the procedures referred to in paragraph (d). HUMAN RESOURCES COMMITTEE Duties
22. The human resources committee shall (a) establish human resources policies and procedures, including those related to the review and assessment of employee performance and to the resolution of personnel grievances; (b) fix the remuneration of employees; (c) approve candidates for senior positions reporting directly to the chief executive officer; and (d) develop, and recommend to the board of directors for approval, the selection criteria for the position of chief actuary. INVESTMENTS
Investment policies, standards and procedures
23. Subject to the regulations, the board of directors shall establish, and the Board shall adhere to, investment policies, standards and procedures that a person of ordinary prudence would implement in dealing with the property of others.
Duty of investment managers
24. Every investment manager who invests the assets of the Board shall do so in accordance with this Act and the Board’s investment policies, standards and procedures. FINANCIAL MANAGEMENT GENERAL
Financial year
25. The financial year of the Board is the period beginning on April 1 in one calendar year and ending on March 31 in the next calendar year.
Deposits and deposit receipts
26. (1) The Board may only have accounts with banks listed in Schedule I to the Bank Act.
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Regulations
(2) Despite subsection (1), the Governor in Council may, on the recommendation of the Minister of Finance, make regulations prescribing the types of account that the Board may have and the financial institutions with which it may have those accounts.
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FINANCIAL STATEMENTS Books and systems
27. (1) The Board shall cause (a) books of account and records to be kept; (b) financial and management control and information systems and management practices to be maintained; and (c) a record of the investments held during the financial year to be kept, showing (i) the book value of each investment, (ii) the market value of each investment and the information that will permit the verification of that value, and (iii) the information that will permit the determination of whether the requirements of this Act and the investment policies, standards and procedures have been met.
Manner in which books, etc., to be kept
(2) The books, records, systems and practices required by subsection (1) shall be kept and maintained in the manner that will provide reasonable assurance that (a) the Board’s assets are safeguarded and controlled; (b) the Board’s transactions are in accordance with this Act and the by-laws; and (c) the Board’s financial, human and physical resources are managed economically and efficiently and that the Board’s operations are carried out effectively.
Internal audit
(3) The Board shall cause internal audits to be conducted to assess compliance with subsections (1) and (2).
Annual financial statements
(4) The Board shall cause financial statements to be prepared annually, including, with respect to the financial year to which it relates, (a) a balance sheet as at the end of the financial year;
Exécution du b
2007-2008
(b) a statement of income for the financial year; (c) a statement of change in net assets for the financial year; and (d) a statement of investment portfolio. Contents of statements
(5) The annual financial statements shall show the information and particulars that in the opinion of the board of directors are necessary to present fairly, in accordance with generally accepted accounting principles, the Board’s financial position as at the end of the financial year to which the statements relate.
Quarterly financial statements
(6) During each financial year, the Board shall cause quarterly financial statements to be prepared for each three-month period of the year. The quarterly statements shall (a) show the same information for the most recent three-month period as is required to be shown in the Board’s annual financial statements, except that a balance sheet is not required; and (b) show the same information in respect of the part of the year up to the date of the statements in relation to the corresponding period in the preceding financial year.
Approval by board of directors
(7) The board of directors shall approve the Board’s annual financial statements and that approval shall be evidenced by the signature of at least one director of the Board. AUDITOR’S REPORT
Annual auditor’s report
28. (1) The Board shall cause an annual auditor’s report to be prepared on (a) the annual financial statements referred to in subsection 27(4); (b) the record of investments referred to in paragraph 27(1)(c); and (c) any revised financial statement referred to in subsection 133(3) of the Financial Administration Act.
Contents
(2) The report shall be addressed to the Board and shall (a) include separate statements indicating whether, in the auditor’s opinion,
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(i) the financial statements are presented fairly in accordance with generally accepted accounting principles applied on a basis consistent with that of the preceding year, (ii) the Board’s transactions that have come to the auditor’s notice in the course of the auditor’s examination for the report were in accordance with this Act and the by-laws, and (iii) the record of investments referred to in paragraph 27(1)(c) fairly presents the information required by that paragraph; and (b) call attention to any other matter falling within the scope of the auditor’s examination for the report that, in the auditor’s opinion, should be brought to the attention of the Board. Examination
(3) The auditor shall carry out the examination that the auditor considers necessary to prepare the report.
Auditing standards
(4) The auditor’s examination shall be carried out in accordance with generally accepted auditing standards.
Reliance on internal audit
(5) In conducting an audit under this Act, the auditor shall rely on any internal audit conducted under subsection 27(3), to the extent that the auditor considers that reliance to be practicable. QUALIFIED PRIVILEGE
Qualified privilege
29. Any oral or written statement or report made under this Act by the Board’s auditor or a former auditor of the Board has qualified privilege. SPECIAL EXAMINATION
Special examination
30. (1) The Minister shall cause a special examination to be carried out at least once every five years to determine if the systems and practices referred to in paragraph 27(1)(b) were, in the period under examination, maintained in a manner that provided reasonable assurance that they met the requirements of paragraphs 27(2)(a) and (c).
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Plan
(2) Before beginning a special examination, the examiner shall survey the systems and practices of the Board and submit a plan to the audit committee for the examination, including a statement of the criteria to be applied in the examination.
Resolution of disagreements
(3) Disagreements, if any, between the examiner and the audit committee with respect to the plan may be resolved by the Minister.
Reliance on internal audit
(4) An examiner shall rely on any internal audit conducted under subsection 27(3), to the extent that the examiner considers that reliance to be practicable.
Report
31. (1) An examiner shall, on completion of the special examination, submit a report on the examiner’s findings to the Minister.
Contents
(2) The report of an examiner shall include (a) a statement indicating whether, in the examiner’s opinion, with respect to the criteria established under subsection 30(2), there is reasonable assurance that there are no significant deficiencies in the systems and practices examined; and (b) a statement of the extent to which the examiner relied on internal audits.
Tabling in Parliament
(3) After receiving the report, the Minister shall cause it to be laid before each House of Parliament on any of the next 15 days during which that House is sitting.
Copy to board and Auditor General
(4) Within 10 days after the day on which the Minister receives the report, the Minister shall provide the board of directors and the Auditor General with a copy of the report.
Examiner
32. (1) Subject to subsection (2), a special examination referred to in section 30 shall be carried out by the Board’s auditor.
Examiner
(2) If, in the opinion of the Governor in Council, a person other than the Board’s auditor should carry out a special examination, the Governor in Council may, after the Minister has consulted the board of directors, appoint an auditor who is qualified for the purpose to carry out the examination in lieu of the Board’s
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auditor and may, after the Minister has consulted the board of directors, remove that qualified auditor at any time. Applicable provisions
(3) Subject to subsection (4), section 29 and sections 135 and 137 of the Financial Administration Act apply in respect of an examiner as though the references in those sections to an auditor were references to an examiner.
Auditor General eligible
(4) The Auditor General is eligible to be appointed as an examiner and section 135 of the Financial Administration Act does not apply to the Auditor General in respect of such an appointment. REPORTING QUARTERLY STATEMENTS
Statements to Minister
33. (1) The Board shall send copies of the financial statements for the first, second and third quarters of the financial year, prepared in accordance with subsection 27(6), to the Minister within 45 days after the end of the three-month period to which they relate.
Statements to be made public
(2) Within seven days after the financial statements are sent, the Board shall make the statements available to the public. ANNUAL REPORT
Annual report required
34. (1) The Board shall as soon as possible, but in any case within 90 days, after the end of each financial year provide the Minister and the President of the Treasury Board with an annual report on the operations of the Board in that year and the Board shall make the report available to the public.
Tabling in Parliament
(2) After receiving the annual report, the Minister shall cause it to be laid before each House of Parliament on any of the next 15 days during which that House is sitting.
Reference to committee
(3) The annual report laid before Parliament stands permanently referred to any parliamentary committee that may be designated or established to review matters relating to the activities of the Board.
Contents
(4) The annual report shall contain
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2007-2008
(a) the financial statements for the financial year prepared as required under section 27; (b) the annual auditor’s report referred to in section 28; (c) a certificate, signed by a director on behalf of the board of directors, stating that the investments of the Board held during the financial year were in accordance with this Act and the Board’s investment policies, standards and procedures; (d) a statement of the Board’s objectives for the financial year and a statement of the extent to which the Board met those objectives; (e) a statement of the Board’s objectives for the next financial year and for the foreseeable future; (f) a statement of the corporate governance practices of the Board; (g) a summary of the Board’s investment policies, standards and procedures established under paragraph 7(a) and a comparison of its investment policies with investments actually held by it; (h) a summary of the code of conduct established under paragraph 7(d); (i) a special examiner’s report submitted under section 31; and (j) any information that the Minister may require. PREMIUM RATE SETTING REPORT Report
35. On the day on which the Board sets the premium rate under section 66 of the Employment Insurance Act, it shall make public a report that sets out (a) the premium rate; (b) a detailed analysis in support of that rate; (c) information provided to the board of directors by the chief actuary under subsection 14(3);
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(d) information provided to the Board by the Minister under subsection 66.1(1) of the Employment Insurance Act; and (e) any other information that the Board took into account in setting the rate. REGULATIONS Governor in Council
36. The Governor in Council, on the joint recommendation of the Minister and the Minister of Finance, may make regulations (a) respecting the investments that the Board may make; (b) respecting the limitations to which the Board is subject when it makes investments; and (c) prescribing anything that this Act provides is to be prescribed or is to be determined by regulation. TRANSITIONAL PROVISIONS
Application
122. For the purposes of paragraph 4(a) of the Canada Employment Insurance Financing Board Act, the Board sets the premium rate under section 66 of the Employment Insurance Act, as enacted by section 127.
Application
123. For the purposes of subsection 10(6) of the Canada Employment Insurance Financing Board Act, the nominating committee does not have to consult the board of directors until the first seven directors have been appointed by the Governor in Council.
1996, c. 23
AMENDMENTS TO THE EMPLOYMENT INSURANCE ACT
2001, c. 5, s. 2
124. Subsections 3(1) and (2) of the Employment Insurance Act are replaced by the following:
Commission to assess adjustment
3. (1) The Commission shall monitor and assess the impact and effectiveness, for individuals, communities and the economy, of the benefits and other assistance provided under this Act, including (a) how the benefits and assistance are utilized by employees and employers, and
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2007-2008
(b) the effect of the benefits and assistance on the obligation of claimants to be available for and to seek employment and on the efforts of employers to maintain a stable workforce. Report
(2) The Commission shall report to the Minister on its assessment annually no later than March 31 following the end of a year. The Commission shall make any additional reports at any other times, as the Minister may request. 125. The Act is amended by adding the following before the heading “PREMIUMS” before section 65.3: INTERPRETATION
Definition of “Board”
65.21 In this Part, “Board” means the Canada Employment Insurance Financing Board established by subsection 3(1) of the Canada Employment Insurance Financing Board Act.
2005, c. 30, s. 126 and par. 129(2)(c)
126. Section 65.3 of the Act is repealed.
2005, c. 30, s. 126
127. Sections 66 to 66.5 of the Act are replaced by the following:
Annual premium rate setting
66. (1) Subject to subsection (7) and section 66.3, the Board shall set the premium rate for each year in order to generate just enough premium revenue during that year to cover the payments to be made under subsection 77(1) during that year and the repayment of any advances that must be made in accordance with subsection 80(2) during that year, and to ensure that the forecast fair market value of the Board’s reserve at the end of that year is equal to the amount determined under subsection (5).
Factors
(2) Subject to subsection (3) and any regulations made under subsections 66.1(2) and 66.2(2), the Board shall set the premium rate based on (a) the information provided under sections 66.1 and 66.2;
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(b) any difference, accumulated after December 31, 2008, between (i) the amount credited to the Employment Insurance Account under sections 73 to 75, and (ii) the amount charged to that Account under subsections 77(1) and 80(3); (c) the investment income earned by the Board; (d) the Board’s obligation to manage a reserve, the amount of which is referred to in subsection (5); (e) any regulations made under section 69; (f) any changes, announced by the Minister on or before September 30 in a year, to payments to be made under paragraph 77(1)(a), (b) or (c) during the following year; and (g) any other information that the Board considers relevant. Restriction
(3) In exercising its powers and performing its functions and duties, the Board shall not take into account the balance in the Employment Insurance Account.
Reserve
(4) The Board’s reserve is equal to its financial assets less its financial liabilities.
Indexation
(5) The amount referred to in subsection (1) is equal to the amount paid under section 70.1, indexed annually, beginning in 2009, on a compound basis, in accordance with the regulations.
Regulations — indexation
(6) On the joint recommendation of the Minister and the Minister of Finance, the Governor in Council may make regulations respecting the method for indexing, for the purposes of subsection (5).
Difference year to year
(7) The premium rate may not be increased or decreased by more than fifteen one-hundredths of one per cent (0.15%) from one year to the next.
Governor in Council — maximum change in premium rate
(8) On the joint recommendation of the Minister and the Minister of Finance, the Governor in Council may change the maximum percentage referred to in subsection (7) by which the premium rate may be increased or
Exécution du b
2007-2008
decreased from one year to the next, if the Governor in Council considers it to be in the public interest. Time limit
(9) On or before November 14 in a year, the Board shall set the premium rate for the following year.
Information provided
66.1 (1) The Minister shall, on or before September 30 in a year, provide the Board with the following information: (a) the amount of the payments made under subsection 77(1) during the two previous years; (b) the amount of the payments made under that subsection during the year; (c) if the Minister has made an announcement referred to in paragraph 66(2)(f), the forecast change in the amount of the payments to be made during the following year under paragraph 77(1)(a), (b) or (c), as the case may be; (d) the forecast costs to be paid under paragraphs 77(1)(d) and (f) during the following year, including any forecast change in those costs resulting from any change to the payments referred to in paragraph (c); and (e) any prescribed information.
Regulations
(2) On the recommendation of the Minister, the Governor in Council may make regulations (a) prescribing information referred to in paragraph (1)(e); and (b) specifying which of the information referred to in subsection (1) is binding on the Board.
Information provided
66.2 (1) The Minister of Finance shall, on or before September 30 in a year, provide the Board with the following information: (a) the most current forecast values of the economic variables that are relevant to the determination under section 66 of a premium rate for the following year; (b) the amount credited to the Employment Insurance Account under sections 73 to 75 during the year that is two years before the current year;
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(c) the estimated amount credited to the Employment Insurance Account under sections 73 to 75 during the previous year; (d) the amounts forecasted under subsection 77.1(1); (e) the amount of any interim payment to be made under subsection 77.1(2) or (3) during the year; and (f) any prescribed information. Regulations
(2) On the recommendation of the Minister of Finance, the Governor in Council may make regulations (a) prescribing information referred to in paragraph (1)(f); and (b) specifying which of the information referred to in subsection (1) is binding on the Board.
Governor in Council
66.3 (1) On the joint recommendation of the Minister and the Minister of Finance, the Governor in Council may, on or before November 30 in a year, (a) if the Governor in Council considers it to be in the public interest, substitute a premium rate for the following year that is different from the one set by the Board under section 66; or (b) if the Board has not set a premium rate under that section by November 14 in the year, set one for the following year.
Non-application of subsection 66(7)
(2) Subsection 66(7) does not apply to the setting of the premium rate under subsection (1).
Rounding percentage rates
66.4 If the calculation of a premium rate under section 66 or 66.3 results in a rate that includes a fraction of one per cent, the resulting percentage is to be rounded to the nearest onehundredth of one per cent or, if the resulting percentage is equidistant from two one-hundredths of one percent, to the higher of them.
Statutory Instruments Act
66.5 The Statutory Instruments Act does not apply in respect of a premium rate set under section 66 or 66.3 or the premiums determined under sections 67 and 68. However, the
2007-2008
Exécution du b premium rates must, as soon as possible, be published by the Board in Part I of the Canada Gazette. 128. The Act is amended by adding the following after section 70:
Payment of $2,000,000,000
70.1 There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, an amount of two billion dollars to the Board. 129. Subsection 77(1) of the Act is amended by striking out “and” at the end of paragraph (c) and by adding the following after paragraph (d): (e) the costs to the Board of administering the Canada Employment Insurance Financing Board Act; and (f) the costs to Her Majesty in right of Canada of administering that Act. 130. The Act is amended by adding the following after section 77:
Forecast — premium revenue and payments
77.1 (1) On or before September 30 in a year, the Minister of Finance shall forecast (a) the amount to be credited to the Employment Insurance Account under sections 73 to 75 during the year; and (b) the amount to be charged, during the year, to that Account under subsection 77(1) — based on, among other things, information provided by the Minister — and under subsection 80(3).
Interim payment to Board
(2) If the amount referred to in paragraph (1)(a) is greater than the amount referred to in paragraph (1)(b), an interim payment equal to the amount of the difference shall be made, on or before October 31 in the year, to the Board out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, and charged to the Employment Insurance Account.
Interim payment by Board
(3) If the amount referred to in paragraph (1)(a) is less than the amount referred to in paragraph (1)(b), an interim payment equal to the amount of the difference shall be made, on or before October 31 in the year, by the Board to the Consolidated Revenue Fund and credited to the Employment Insurance Account.
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Calculation
(4) On or before March 31 in the second year following the year referred to in subsection (1), the Minister of Finance shall determine the difference between
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(a) the actual amount credited to the Employment Insurance Account under sections 73 to 75 during the year, and (b) the actual amount charged to that Account under subsections 77(1) and 80(3) during the year. Final payment
(5) A final payment required to reconcile the amount of the interim payment made under subsection (2) or (3) with the amount of the difference determined under subsection (4) shall be determined in accordance with the regulations.
Final payment to Board
(6) If a final payment is owed to the Board, it shall be made, on or before the March 31 referred to in subsection (4), to the Board out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, and charged to the Employment Insurance Account.
Final payment by Board
(7) If a final payment is owed by the Board, it shall be made, on or before the March 31 referred to in subsection (4), by the Board to the Consolidated Revenue Fund and credited to the Employment Insurance Account.
Regulations — final payment
(8) On the recommendation of the Minister of Finance, the Governor in Council may make regulations respecting (a) the method for determining the final payment referred to in subsection (5); (b) the interest on it, if any; (c) the method for determining that interest; (d) the time from which that interest is payable.
Terms and conditions
(9) Any interim or final payment shall be made in the manner and on the terms and conditions that the Minister of Finance may establish after consulting with the Minister and the Board.
2007-2008
Exécution du b 131. Subsections 80(1) and (2) of the Act are replaced by the following:
Advances
80. (1) If amounts credited to the Employment Insurance Account after December 31, 2008, and the amount of the Board’s reserve referred to in subsection 66(4), are not sufficient for the payment of amounts authorized to be charged to that Account after that day, the Minister of Finance, when requested by the Minister, may authorize the advance to the Account from the Consolidated Revenue Fund of an amount sufficient to make the payment.
Advances repayable
(2) The advance shall be credited to the Employment Insurance Account and shall be repaid in the time and manner and on the terms and conditions that the Minister of Finance may establish. CONSEQUENTIAL AMENDMENTS
2005, c. 34
2005, c. 30, par. 129(2)(a)
Department of Human Resources and Skills Development Act 132. (1) Subsection 28(1.1) of the Department of Human Resources and Skills Development Act is repealed. (2) Section 28 of the Act is amended by adding the following after subsection (3):
Calculations
(4) The Commission may request the Canada Employment Insurance Financing Board established under subsection 3(1) of the Canada Employment Insurance Financing Board Act to perform calculations for the purposes of sections 4 and 69 of the Employment Insurance Act in accordance with an agreement between the Commission and that Board.
2005, c. 30, par. 129(2)(b)
133. Section 28.1 of the Act is repealed.
R.S., c. F-11
Financial Administration Act 134. Part I of Schedule III to the Financial Administration Act is amended by adding the following in alphabetical order:
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Canada Employment Insurance Financing Board Office de financement de l’assurance-emploi du Canada COMING INTO FORCE Order in council
135. The provisions of this Part or those of the Canada Employment Insurance Financing Board Act, as enacted by section 121, come into force on a day or days to be fixed by order of the Governor in Council. PART 8 PAYMENTS TO PROVINCES AND TERRITORIES POLICE OFFICERS RECRUITMENT FUND
Maximum payment of $400,000,000
136. (1) The Minister of Finance may make direct payments, in an aggregate amount not exceeding four hundred million dollars, to a trust established to provide provinces and territories with funding to support the recruitment of 2,500 new frontline police officers over the next five years.
Provincial or territorial share
(2) The amount that may be provided to a province or territory under this section is to be determined in accordance with the terms of the trust indenture establishing the trust.
Payments out of C.R.F.
(3) Any amount payable under this section may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, at the times and in the manner that the Minister of Finance considers appropriate. PUBLIC TRANSIT CAPITAL TRUST 2008
Maximum payment of $500,000,000
137. (1) The Minister of Finance may make direct payments, in an aggregate amount not exceeding five hundred million dollars, to a trust established to support capital investment in public transit infrastructure in the provinces and territories.
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Exécution du b
Beneficiaries’ share
(2) The beneficiaries of the trust and the amount that may be provided to each beneficiary under this section are to be determined in accordance with the terms of the trust indenture establishing the trust.
Payments out of C.R.F.
(3) Any amount payable under this section may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, at the times and in the manner that the Minister of Finance considers appropriate. PAYMENT TO SASKATCHEWAN FOR CARBON CAPTURE AND STORAGE
Maximum payment of $240,000,000
138. (1) The Minister of Finance may make direct payments, in an aggregate amount not exceeding two hundred and forty million dollars, to a trust established to provide Saskatchewan with funding to support a full scale commercial demonstration of carbon capture and storage in the coal-fired electricity sector.
Determination of amount
(2) The amount that may be provided to Saskatchewan under this section is to be determined in accordance with the terms of the trust indenture establishing the trust.
Payments out of C.R.F.
(3) Any amount payable under this section may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, at the times and in the manner that the Minister of Finance considers appropriate. PAYMENT TO NOVA SCOTIA FOR CARBON STORAGE
Maximum payment of $5,000,000
139. There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, a sum not exceeding five million dollars to Nova Scotia to support geological research examining the potential for carbon storage in the province.
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CANADA SOCIAL TRANSFER TRANSITION PROTECTION PAYMENT TO SASKATCHEWAN
Payment of $31,204,000
140. There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, the sum of thirty-one million, two hundred and four thousand dollars to Saskatchewan. CANADA SOCIAL TRANSFER TRANSITION PROTECTION PAYMENT TO NUNAVUT
Payment of $705,000
141. There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Finance, the sum of seven hundred and five thousand dollars to Nunavut. PART 9 PAYMENTS TO CERTAIN ENTITIES GENOME CANADA
Maximum payment of $140,000,000
142. There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Industry, a sum not exceeding one hundred and forty million dollars to Genome Canada for its use. MENTAL HEALTH COMMISSION OF CANADA
Maximum payment of $110,000,000
143. (1) There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Health, a sum not exceeding one hundred and ten million dollars to the Mental Health Commission of Canada for its use.
Terms and conditions
(2) The Minister of Health may, before or after this section comes into force, enter into an agreement with the Mental Health Commission of Canada respecting the terms and conditions applicable to the making of the payment and its use.
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2007-2008
THE GAIRDNER FOUNDATION Maximum payment of $20,000,000
144. (1) There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Health, a sum not exceeding twenty million dollars to The Gairdner Foundation for its use.
Terms and conditions
(2) The Minister of Health may, before or after this section comes into force, enter into an agreement with The Gairdner Foundation respecting the terms and conditions applicable to the making of the payment and its use. UNIVERSITY OF CALGARY
Maximum payment of $5,000,000
145. (1) There may be paid out of the Consolidated Revenue Fund, on the requisition of the Minister of Natural Resources, a sum not exceeding five million dollars to the University of Calgary for the purpose of examining regulatory, economic and technological barriers in order to accelerate the deployment of carbon capture and storage technologies.
Terms and conditions
(2) The Minister of Natural Resources may, before or after this section comes into force, enter into an agreement with the University of Calgary respecting the terms and conditions applicable to the making of the payment and its use. PART 10 VARIOUS AMENDMENTS
R.S., c. B-2 1999, c. 28, s. 95(1); 2001, c. 9, s. 194(2)
BANK OF CANADA ACT 146. (1) Paragraphs 18(g) and (g.1) of the Bank of Canada Act are replaced by the following: (g) for the purposes of conducting monetary policy or promoting the stability of the Canadian financial system, (i) buy and sell from or to any person securities and any other financial instruments — other than instruments that evidence an ownership interest or right in or to an entity — that comply with the policy established by the Governor under subsection 18.1(1), and
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(ii) if the Governor is of the opinion that there is a severe and unusual stress on a financial market or the financial system, buy and sell from or to any person any securities and any other financial instruments, to the extent determined necessary by the Governor; (2) Paragraph 18(k) of the Act is repealed. 2001, c. 9, s. 195
147. Section 19 of the Act is replaced by the following:
Policy established by Governor
18.1 (1) The Governor shall establish a policy for the purposes of subparagraph 18(g)(i).
Publication
(2) The Bank shall publish the policy and any amendment to it in the Canada Gazette and the policy or the amendment comes into force seven days after the day on which the Bank publishes it or on any later day specified by the Governor.
Publication
19. If the Bank takes any action under subparagraph 18(g)(ii), the Bank shall cause a notice to be published in the Canada Gazette that the Governor has formed an opinion that there is a severe and unusual stress on a financial market or the financial system. The notice is to be published as soon as the Governor is of the opinion that its publication will not materially contribute to the stress to which the notice relates.
2006, c. 4
BUDGET IMPLEMENTATION ACT, 2006 148. Subsection 193(4) of the Budget Implementation Act, 2006 is replaced by the following:
Limitation
(4) The aggregate outstanding principal amount of all mortgages or hypothecs to which insurance policies that are subject to such agreements apply shall not at any time exceed $250,000,000,000 or any other amount that may be authorized for the purposes of this subsection under an appropriation Act.
2007-2008 R.S., c. C-17
Exécution du b CANADIAN FORCES SUPERANNUATION ACT 149. The Canadian Forces Superannuation Act is amended by adding the following after section 93:
Power of Minister
94. The Minister may use electronic means to create, communicate, make available, collect, receive, store or otherwise deal with documents or information under this Act.
Regulations — electronic means
95. (1) The Governor in Council may make regulations (a) respecting the use of electronic means to create, communicate, make available, collect, receive, store or otherwise deal with a document or information under this Act, including (i) the technology or process, and the format, to be used, (ii) the place where an electronic document is to be made or sent, (iii) the time and circumstances when an electronic document is considered to be sent or received and the place where it is considered to have been sent or received, (iv) the technology or process to be used to make or verify an electronic signature and the manner in which the signature is to be used, and (v) the circumstances in which an electronic document must be signed with an electronic signature or a secure electronic signature; and (b) providing that a requirement under a provision of this Act to provide a document or information by non-electronic means is satisfied by the provision of an electronic document if the prescribed conditions, if any, have been complied with.
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Personal Information Protection and Electronic Documents Act
(2) In subsection (1), “electronic document”, “electronic signature” and “secure electronic signature” have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
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150. The Act is amended by adding the following after section 95: Interest on overpayment
96. If there is an overpayment by a contributor, a participant or a former participant in respect of amounts required to be paid under this Act, interest shall be paid on the overpayment in accordance with the regulations.
Regulations — payment of interest
97. The Governor in Council may make regulations respecting (a) the circumstances in which interest is to be paid; (b) the rate of interest, the manner of calculating the rate and the period in respect of which interest is to be paid; (c) the terms and conditions to which the payment of interest may be subject; and (d) any other matters that the Governor in Council deems necessary for the purposes of section 96.
1991, c. 48
COOPERATIVE CREDIT ASSOCIATIONS ACT
2001, c. 9, s. 314
151. Subparagraphs (a)(iv) and (v) of the definition “commercial loan” in subsection 386(1) of the Cooperative Credit Associations Act are replaced by the following: (iv) a loan that is secured by a mortgage on real property, if (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and
2007-2008
Exécution du b (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (v) a loan that is secured by a mortgage on real property, if (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and
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Budget Implem (III) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property,
2007, c. 33
DONKIN COAL BLOCK DEVELOPMENT OPPORTUNITY ACT 152. Section 10 of the Donkin Coal Block Development Opportunity Act is amended by adding the following after subsection (2):
Payment out of Consolidated Revenue Fund
R.S., c. F-11
(3) There may be paid out of the Consolidated Revenue Fund to Her Majesty in right of the Province, on the requisition of the Minister, any amount to be remitted during a fiscal year under subsection (2). FINANCIAL ADMINISTRATION ACT 153. The Financial Administration Act is amended by adding the following after section 15:
Advisory and other committees
15.1 (1) The Minister may establish advisory and other committees and provide for their membership, duties, functions and operation.
Remuneration and expenses
(2) Members of a committee may be paid for their services the remuneration and expenses that the Governor in Council may determine.
1991, c. 47 2001, c. 9, s. 426
INSURANCE COMPANIES ACT 154. Subparagraphs (a)(iv) and (v) of the definition “commercial loan” in subsection 490(1) of the Insurance Companies Act are replaced by the following: (iv) a loan that is secured by a mortgage on real property, if
2007-2008
Exécution du b (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (v) a loan that is secured by a mortgage on real property, if (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior
C. 28
Budget Implem claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and (III) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, or (C) the loan is one referred to in paragraph 469(2)(d),
R.S., c. I-15 2001, c. 4, s. 95
Exception
INTEREST ACT 155. Subsection 10(2) of the Interest Act is replaced by the following: (2) Subsection (1) does not apply (a) to any mortgage on real property or hypothec on immovables given by a joint stock company or any other corporation, nor to any debenture issued by them, for the payment of which security has been given by way of mortgage on real property or hypothec on immovables; or (b) to any prescribed mortgage on real property or prescribed hypothec on immovables given by a prescribed entity, nor to any prescribed debenture issued by it, for the payment of which security has been given by way of mortgage on real property or hypothec on immovables.
Regulations
(3) For the purposes of paragraph (2)(b), the Governor in Council may, by regulation,
Exécution du b
2007-2008 (a) prescribe entities; and
(b) prescribe classes of mortgages and hypothecs given by those entities and classes of debentures issued by them. R.S., c. O-9
OLD AGE SECURITY ACT
1999, c. 22, s. 87(1)
156. Subparagraph (a)(i) of the definition “income” in section 2 of the Old Age Security Act is replaced by the following: (i) a single amount in respect of all offices and employments of that person equal to (A) for the purpose of determining benefits payable in respect of any month before July 2008, the lesser of $500 and one fifth of the person’s income from office or employment for the year, or (B) for the purpose of determining benefits payable in respect of any month after June 2008, the lesser of $3,500 and the person’s income from office or employment for the year,
R.S., c. P-36
PUBLIC SERVICE SUPERANNUATION ACT 157. Section 40.1 of the Public Service Superannuation Act is amended by adding the following after subsection (2):
Deemed coming into force
(3) Subsection (1), as enacted by section 79 of chapter 34 of the Statutes of Canada, 2001, is deemed to have come into force on December 1, 1996. 158. Paragraph 42(1)(v) of the Act is replaced by the following: (v) respecting, for the purposes of paragraph 13(1)(d) and subsection 13(6), the method by which the amount of any annuity or annual allowance payable to a contributor described in paragraph 13(1)(a), (c) or (d) shall be adjusted; 159. The Act is amended by adding the following after section 72:
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Power of Minister
73. The Minister may use electronic means to create, communicate, make available, collect, receive, store or otherwise deal with documents or information under this Act.
Regulations — electronic means
74. (1) The Governor in Council may make regulations
Budget Implem
(a) respecting the use of electronic means to create, communicate, make available, collect, receive, store or otherwise deal with a document or information under this Act, including (i) the technology or process, and the format, to be used, (ii) the place where an electronic document is to be made or sent, (iii) the time and circumstances when an electronic document is considered to be sent or received and the place where it is considered to have been sent or received, (iv) the technology or process to be used to make or verify an electronic signature and the manner in which the signature is to be used, and (v) the circumstances in which an electronic document must be signed with an electronic signature or a secure electronic signature; and (b) providing that a requirement under a provision of this Act to provide a document or information by non-electronic means is satisfied by the provision of an electronic document if the prescribed conditions, if any, have been complied with.
Personal Information Protection and Electronic Documents Act
(2) In subsection (1), “electronic document”, “electronic signature” and “secure electronic signature” have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act. 160. The Act is amended by adding the following after section 74:
2007-2008
Exécution du b
Interest on overpayment
75. If there is an overpayment by a contributor in respect of amounts required to be paid under this Act, interest shall be paid on the overpayment in accordance with the regulations.
Regulations — payment of interest
76. The Governor in Council may make regulations respecting (a) the circumstances in which interest is to be paid; (b) the rate of interest, the manner of calculating the rate and the period in respect of which interest is to be paid; (c) the terms and conditions to which the payment of interest may be subject; and (d) any other matters that the Governor in Council deems necessary for the purposes of section 75.
R.S., c. R-11
ROYAL CANADIAN MOUNTED POLICE SUPERANNUATION ACT 161. The Royal Canadian Mounted Police Superannuation Act is amended by adding the following after section 42:
Power of Minister
43. The Minister may use electronic means to create, communicate, make available, collect, receive, store or otherwise deal with documents or information under this Act.
Regulations — electronic means
44. (1) The Governor in Council may make regulations (a) respecting the use of electronic means to create, communicate, make available, collect, receive, store or otherwise deal with a document or information under this Act, including (i) the technology or process, and the format, to be used, (ii) the place where an electronic document is to be made or sent, (iii) the time and circumstances when an electronic document is considered to be sent or received and the place where it is considered to have been sent or received,
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Budget Implem
(iv) the technology or process to be used to make or verify an electronic signature and the manner in which the signature is to be used, and (v) the circumstances in which an electronic document must be signed with an electronic signature or a secure electronic signature; and (b) providing that a requirement under a provision of this Act to provide a document or information by non-electronic means is satisfied by the provision of an electronic document if the prescribed conditions, if any, have been complied with.
Personal Information Protection and Electronic Documents Act
(2) In subsection (1), “electronic document”, “electronic signature” and “secure electronic signature” have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
Powers of Treasury Board
(3) The Treasury Board may, in addition to the powers conferred on it by paragraph 7(2)(d) of the Financial Administration Act, exercise the powers of the Governor in Council under subsection (1). 162. The Act is amended by adding the following after section 44:
Interest on overpayment
45. If there is an overpayment by a contributor in respect of amounts required to be paid under this Act, interest shall be paid on the overpayment in accordance with the regulations.
Regulations — payment of interest
46. (1) The Governor in Council may make regulations respecting (a) the circumstances in which interest is to be paid; (b) the rate of interest, the manner of calculating the rate and the period in respect of which interest is to be paid;
2007-2008
Exécution du b (c) the terms and conditions to which the payment of interest may be subject; and (d) any other matters that the Governor in Council deems necessary for the purposes of section 45.
Powers of Treasury Board
1991, c. 45
2001, c. 9, s. 550
(2) The Treasury Board may, in addition to the powers conferred on it by paragraph 7(2)(d) of the Financial Administration Act, exercise the powers of the Governor in Council under subsection (1). TRUST AND LOAN COMPANIES ACT 163. Subparagraphs (a)(iv) and (v) of the definition “commercial loan” in subsection 449(1) of the Trust and Loan Companies Act are replaced by the following: (iv) a loan that is secured by a mortgage on real property, if (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 80% of the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property,
C. 28
Budget Implem
(v) a loan that is secured by a mortgage on real property, if (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 80% of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 80% of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and (III) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, or (C) the loan is one referred to in paragraph 418(2)(d),
Exécution du b
2007-2008 COMING INTO FORCE Order in council
164. (1) Subject to subsection (2), the provisions of this Part, other than sections 148, 149, 151 to 155, 157 to 159, 161 and 163, come into force on a day or days to be fixed by order of the Governor in Council.
Deemed coming into force
(2) Section 156 comes into force or is deemed to have come into force on July 1, 2008.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 14 An Act to amend the Citizenship Act
ASSENTED TO 17th APRIL, 2008 BILL C-37
SUMMARY This enactment amends the Citizenship Act in order to (a) permit certain persons who lost their Canadian citizenship for specified reasons to have their citizenship restored from the time it was lost; (b) permit certain persons who, born outside Canada to a Canadian parent, did not acquire Canadian citizenship for specified reasons to become Canadian citizens from the time of their birth; (c) provide that certain persons born outside Canada to a Canadian parent who was himself or herself born outside Canada do not acquire Canadian citizenship; and (d) provide for a grant of citizenship, on application, to persons who have always been stateless and meet other specified conditions.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 14 An Act to amend the Citizenship Act [Assented to 17th April, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-29
CITIZENSHIP ACT 1. The definition “certificate of renunciation” in subsection 2(1) of the Citizenship Act is replaced by the following:
“certificate of renunciation” « certificat de répudiation »
“certificate of renunciation” means, unless a contrary intention appears, a certificate of renunciation issued under this Act; 2. (1) Subsection 3(1) of the Act is amended by striking out the word “or” at the end of paragraph (d) and by adding the following after paragraph (e): (f) before the coming into force of this paragraph, the person ceased to be a citizen for any reason other than the following reasons and did not subsequently become a citizen: (i) the person renounced his or her citizenship under any of the following provisions: (A) paragraph 19(2)(c) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1951, c. 12, s. 1(3), (B) paragraph 19(2)(c) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, (C) subparagraph 19(1)(b)(iii) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5,
C. 14
Citize (D) subparagraph 18(1)(b)(iii) of the former Act, (E) section 8 of the Citizenship Act, S.C. 1974-75-76, c. 108, or (F) section 9 of this Act,
(ii) the person’s citizenship was revoked for false representation, fraud or concealment of material circumstances under any of the following provisions: (A) paragraph 21(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, (B) paragraph 19(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 8, (C) paragraph 19(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as it read before the coming into force of An Act to amend the Canadian Citizenship Act, S.C. 1967-68, c. 4, (D) paragraph 19(1)(a) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 5, (E) paragraph 18(1)(a) of the former Act, (F) section 9 of the Citizenship Act, S.C. 1974-75-76, c. 108, or (G) section 10 of this Act, or (iii) the person failed to make an application to retain his or her citizenship under section 8 as it read before the coming into force of this paragraph or did make such an application that subsequently was not approved; (g) the person was born outside Canada before February 15, 1977 to a parent who was a citizen at the time of the birth and the person did not, before the coming into force of this paragraph, become a citizen; (h) the person was granted citizenship under section 5, as it read before the coming into force of this paragraph, the person would have, but for that grant, been a citizen under paragraph (g) and, if it was required, he or she took the oath of citizenship;
2007-2008
Citoye (i) the person had been a citizen other than by way of grant, ceased to be a citizen for a reason other than the reasons referred to in subparagraphs (f)(i) to (iii), was subsequently granted citizenship before the coming into force of this paragraph under any of the following provisions and, if it was required, he or she took the oath of citizenship: (i) subsection 10(1) of the Citizenship Act, S.C. 1974-75-76, c. 108, (ii) subsection 5(1) or (4) or 11(1) of this Act, or (iii) paragraph 5(2)(a) of this Act, as it read before the coming into force of this paragraph; or (j) under prior legislation, the person had been a citizen other than by way of grant, ceased to be a citizen for a reason other than the reasons referred to in subparagraphs (f)(i) and (ii) and resumed citizenship.
(2) Section 3 of the Act is amended by adding the following after subsection (2): Not applicable — after first generation
(3) Subsection (1) does not apply to a person born outside Canada (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or (b) if, at any time, only one of the person’s parents was a citizen and that parent was a citizen under any of the following provisions, or both of the person’s parents were citizens under any of the following provisions: (i) paragraph 4(b) or 5(b) of the Canadian Citizenship Act, S.C. 1946, c. 15,
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Citize
(ii) paragraph 5(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 2, (iii) paragraph 4(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1952-53, c. 23, s. 2(1), (iv) paragraph 5(1)(b) of the Canadian Citizenship Act, S.C. 1946, c. 15, as enacted by S.C. 1950, c. 29, s. 2 and amended by S.C. 1952-53, c. 23, s. 3(1), (v) paragraph 4(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1952-53, c. 23, s. 13(1), (vi) paragraph 5(1)(b) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as amended by S.C. 1952-53, c. 23, s. 14(1), (vii) subsection 39B(1) of the Canadian Citizenship Act, R.S.C. 1952, c. 33, as enacted by S.C. 1967-68, c. 4, s. 10, or (viii) paragraph 4(1)(b) or 5(1)(b) or subsection 42(1) of the former Act.
Exception — transitional provision
(4) Subsection (3) does not apply to a person who, on the coming into force of that subsection, is a citizen.
Exception — service abroad
(5) Subsection (3) does not apply to a person if one or both of the person’s parents, as provided for in that subsection, were, at the time of the person’s birth or adoption, employed outside Canada in or with the Canadian armed forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person.
Citizenship other than by way of grant
(6) A person referred to in paragraph (1)(h), (i) or (j) is deemed, except for the purposes of that paragraph, never to have been a citizen by way of grant.
Deemed application
(7) Despite any provision of this Act or any Act respecting naturalization or citizenship that was in force in Canada at any time before the day on which this subsection comes into force (a) a person referred to in paragraph (1)(c) who was, before the coming into force of this subsection, granted citizenship under any of the following provisions after ceasing to be a
2007-2008
Citoye citizen by way of grant for any reason other than the reasons referred to in subparagraphs (1)(f)(i) to (iii) is deemed to be a citizen under paragraph (1)(c) from the time that he or she ceased to be a citizen: (i) subsection 10(1) of the Citizenship Act, S.C. 1974-75-76, c. 108, (ii) subsection 5(1) or (4) or 11(1) of this Act, or (iii) paragraph 5(2)(a) of this Act, as it read before the coming into force of this paragraph; (b) a person referred to in paragraph (1)(d) who, under prior legislation, ceased to be a citizen by way of grant for any reason other than the reasons referred to in subparagraphs (1)(f)(i) and (ii) and resumed citizenship is deemed to be a citizen under paragraph (1)(d) from the time that he or she ceased to be a citizen; (c) a person referred to in paragraph (1)(f) who, at the time he or she ceased to be a citizen, was a citizen by way of grant is deemed to have been granted citizenship under that paragraph at that time; (d) a person referred to in paragraph (1)(f) — other than a person described in paragraph (c) — is deemed to be a citizen under paragraph (1)(f) from the time the person ceased to be a citizen; (e) a person referred to in paragraph (1)(g) or (h) is deemed to be a citizen from the time that he or she was born; (f) a person referred to in paragraph (1)(i) is deemed to be a citizen under that paragraph from the time that he or she ceased to be a citizen; and (g) a person referred to in paragraph (1)(j) is deemed to be a citizen under that paragraph from the time that he or she ceased to be a citizen.
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Limitation
(8) With respect to any period before the coming into force of this subsection,
Citize
(a) subsection (7) does not have the effect of conferring on a person any rights, powers or privileges, or imposing on a person any obligations, duties or liabilities, under any Act of Parliament other than this Act or any other law; and (b) no action or other proceedings for damages based on subsection (7) may be brought against Her Majesty in right of Canada or any officers, employees or agents of Her Majesty in right of Canada in respect of anything done or omitted to be done during that period. 3. Subsection 4(3) of the Act is repealed. 2001, c. 27, s. 228(3)
4. (1) Subsection 5(2) of the Act is replaced by the following:
Grant of citizenship
(2) The Minister shall grant citizenship to any person who is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child. (2) Section 5 of the Act is amended by adding the following after subsection (4):
Statelessness — bloodline connection
(5) The Minister shall, on application, grant citizenship to a person who (a) is born outside Canada after the coming into force of this subsection; (b) has a birth parent who was a citizen at the time of the birth; (c) is less than 23 years of age; (d) has resided in Canada for at least three years during the four years immediately before the date of his or her application; (e) has always been stateless; and (f) has not been convicted of any of the following offences:
2007-2008
Citoye (i) a terrorism offence, as defined in section 2 of the Criminal Code, (ii) an offence under section 47, 51 or 52 of the Criminal Code, (iii) an offence under subsection 5(1) or any of sections 6 and 16 to 22 of the Security of Information Act, or (iv) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in subparagraph (ii) or (iii).
No oath required
(6) A person who is granted citizenship under subsection (5) is not required to take the oath of citizenship. 5. Section 7 of the Act is replaced by the following:
No loss except as provided
7. A person who is a citizen shall not cease to be a citizen except in accordance with this Part or regulations made under paragraph 27(j.1). 6. Section 8 of the Act is repealed.
2005, c. 17, s. 1
7. Subsection 11(1.1) of the Act is repealed. 8. Subsection 12(2) of the Act is replaced by the following:
Issue of certificate
(2) When an application under section 5 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. 9. The portion of section 13 of the Act before paragraph (a) is replaced by the following:
Applications
13. When an application is made or a notice is given under this Act
10. Paragraphs 14(1)(a) and (b) of the Act are replaced by the following: (a) a grant of citizenship under subsection 5(1) or (5), R.S., c. 30 (3rd Supp.), s. 11(1)
11. (1) The portion of subsection 22(1) of the Act before paragraph (a) is replaced by the following:
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Prohibition
22. (1) Despite anything in this Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship
R.S., c. 30 (3rd Supp.), s. 11(2)(E); 1992, c. 47, s. 67(2)
(2) The portion of subsection 22(2) of the Act before paragraph (a) is replaced by the following:
Prohibition
(2) Despite anything in this Act, but subject to the Criminal Records Act, a person shall not be granted citizenship under subsection 5(1), (2) or (4) or 11(1) or take the oath of citizenship if,
Citize
12. (1) Paragraph 27(a) of the Act is replaced by the following: (a) prescribing the manner in which and the place at which applications are to be made and notices are to be given under this Act and the evidence that is to be provided with respect to those applications and notices; (2) Subparagraph 27(b)(iii) of the Act is repealed. (3) Paragraph 27(d) of the Act is amended by adding the word “or” at the end of subparagraph (i), by striking out the word “or” at the end of subparagraph (ii) and by repealing subparagraph (iii). (4) Section 27 of the Act is amended by adding the following before paragraph (e): (d.2) providing for the circumstances in which the Minister shall determine that any of the requirements of subsections 5.1(1) and (2) are met; (d.3) providing for the circumstances in which a review of an application under section 5.1 is suspended; (5) Section 27 of the Act is amended by adding the following after paragraph (j):
2007-2008
Citoye (j.1) providing for the renunciation of citizenship by persons who are citizens under paragraph 3(1)(f) or (g); COORDINATING AMENDMENTS
2007, c. 24
13. (1) In this section, “other Act” means An Act to amend the Citizenship Act (adoption), chapter 24 of the Statutes of Canada, 2007. (2) On the first day on which both section 2 of this Act and section 1 of the other Act are in force, paragraph 3(3)(a) of the Citizenship Act is replaced by the following: (a) if, at the time of his or her birth or adoption, only one of the person’s parents is a citizen and that parent is a citizen under paragraph (1)(b), (c.1), (e), (g) or (h), or both of the person’s parents are citizens under any of those paragraphs; or (3) On the first day on which both section 2 of this Act and section 2 of the other Act are in force (a) the portion of subsection 5.1(1) of the Citizenship Act before paragraph (a) is replaced by the following:
Adoptees — minors
5.1 (1) Subject to subsection (3), the Minister shall on application grant citizenship to a person who was adopted by a citizen on or after January 1, 1947 while the person was a minor child if the adoption (b) the portion of subsection 5.1(2) of the Citizenship Act before paragraph (a) is replaced by the following:
Adoptees — adults
(2) Subject to subsection (3), the Minister shall on application grant citizenship to a person who was adopted by a citizen on or after January 1, 1947 while the person was at least 18 years of age if (c) the portion of subsection 5.1(3) of the Citizenship Act before paragraph (a) is replaced by the following:
C. 14
Quebec adoptions
(3) The Minister shall on application grant citizenship to a person in respect of whose adoption — by a citizen who is subject to Quebec law governing adoptions — a decision was made abroad on or after January 1, 1947 if
Citize
(4) On the first day on which both section 8 of this Act and section 2 of the other Act are in force, subsection 12(2) of the Citizenship Act is replaced by the following: Issue of certificate
(2) When an application under section 5 or 5.1 or subsection 11(1) is approved, the Minister shall issue a certificate of citizenship to the applicant. COMING INTO FORCE
Order in council
14. The provisions of this Act, other than section 13, come into force on a day or days to be fixed by order of the Governor in Council, but no later than 365 days after the day on which this Act receives royal assent.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 15 An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act
ASSENTED TO 17th APRIL, 2008 BILL C-40
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act”.
SUMMARY This enactment amends the Canada Labour Code to provide for an entitlement to a leave of absence from employment for members of the reserve force who take part in certain military activities and operations in Canada and abroad and to prohibit employers from discriminating against employees on the basis that they are members of the reserve force. It also amends the Canada Student Financial Assistance Act and the Canada Student Loans Act to authorize the Governor in Council to make regulations exempting members of the reserve force from the payment of interest on their loans or deferring the payment of principal or interest on those loans. It also amends those Acts to provide for provinces to be compensated for any loss of interest. It also amends the Public Service Employment Act to provide federal public service employees who are members of the reserve force with the right to return to their position at the end of a leave of absence that they take in order to take part in an operation or activity referred to in the Canada Labour Code.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 15 An Act to amend the Canada Labour Code, the Canada Student Financial Assistance Act, the Canada Student Loans Act and the Public Service Employment Act
[Assented to 17th April, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. L-2
CANADA LABOUR CODE 1. The Canada Labour Code is amended by adding the following after section 247.4: DIVISION XV.2 LEAVE OF ABSENCE FOR MEMBERS OF THE RESERVE FORCE
Entitlement to leave
247.5 (1) An employee who is a member of the reserve force and has completed six consecutive months of continuous employment with an employer — or a shorter period that is prescribed for a class of employees to which the employee belongs — is entitled to a leave of absence from employment to take part in the following operations or activities: (a) an operation in Canada or abroad — including preparation, training, rest or travel from or to the employee’s residence — that is designated by the Minister of National Defence; (b) an activity set out in the regulations; (c) annual training for the prescribed period or, if no period is prescribed, for a period of up to 15 days;
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(d) training that they are ordered to take under paragraph 33(2)(a) of the National Defence Act; (e) duties that they are called out on service to perform under paragraph 33(2)(b) of the National Defence Act; (f) service in aid of a civil power for which they are called out under section 275 of the National Defence Act; or (g) treatment, respect of a problem that operation or subsection.
recovery or rehabilitation in physical or mental health results from service in an activity referred to in this
Designation and delegation
(2) The Minister of National Defence may, in consultation with the Minister, designate an operation for the purposes of paragraph (1)(a) and may authorize another person to do so.
Effect
(3) A designation takes effect on the day on which it is made or on an earlier or later day that is fixed by the Minister of National Defence or the other person. The Minister of National Defence or the other person may fix the day on which the designation ceases to be in effect.
Exception
(4) Despite subsection (1), an employee is not entitled to a leave of absence under this Division if, in the opinion of the Minister, it would adversely affect public health or safety or would cause undue hardship to the employer if the employee, as an individual or as a member of a class of employees, were to take leave.
Notice to employer
247.6 (1) An employee who takes a leave of absence under this Division shall (a) unless there is a valid reason for not doing so, give at least four weeks’ notice to the employer before the day on which the leave is to begin; and
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Code canadien du travail, Aide financière a dans la fonct (b) inform the employer of the length of the leave.
If there is a valid reason
(2) If there is a valid reason for not providing notice in accordance with paragraph (1)(a), the employee shall notify the employer as soon as practicable that the employee is taking a leave of absence.
Change in length of leave
(3) Unless there is a valid reason for not doing so, an employee who takes a leave of absence under this Division shall notify the employer of any change in the length of the leave at least four weeks before (a) the new day on which the leave is to end, if the employee is taking a shorter leave; or (b) the day that was most recently indicated for the leave to end, if the employee is taking a longer leave.
In writing
(4) Unless there is a valid reason for not doing so, any notice or other information to be provided by the employee to the employer under this section is to be in writing.
Request for proof
247.7 (1) Subject to subsection (2), if the employer requests proof that a leave of absence is taken under this Division, the employee shall provide the employer with the prescribed document, if any, or with a document that is approved by the Chief of the Defence Staff who was appointed under subsection 18(1) of the National Defence Act.
No prescribed or approved document
(2) If no document is prescribed, or approved by the Chief of the Defence Staff, the employee shall, on request, provide the employer with a document from the employee’s commanding officer specifying that the employee is taking part in an operation or activity referred to in paragraphs 247.5(1)(a) to (g).
Timing
(3) Unless there is a valid reason for doing so, the employee shall provide document referred to in subsection (1) or within three weeks after the day on which leave begins.
Return to work postponed
247.8 (1) If the employee does not notify the employer at least four weeks before the day on which the leave that is taken under this Division is to end, the employer may postpone the employee’s return to work for a period of up to
not the (2) the
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four weeks after the day on which the employee informs the employer of the end date of the leave. If the employer informs the employee that their return to work is postponed, the employee is not entitled to return to work until the day that is indicated by the employer. Subsection (1) does not apply
(2) Subsection (1) does not apply if the employee notifies the employer in accordance with paragraph 247.6(1)(b) before the leave begins and if the length of the leave is not changed after the leave begins.
Deemed part of leave
(3) The period of postponement referred to in subsection (1) is deemed to be part of the leave.
Annual vacation
247.9 Despite any term or condition of employment, an employee may postpone their annual vacation until after the day on which a leave of absence that is taken under this Division ends.
Continuous employment — benefits
247.91 (1) For the purposes of calculating the benefits of an employee who takes a leave of absence under this Division, employment on the employee’s return to work is deemed to be continuous with their employment before the leave.
Seniority
(2) The seniority of an employee who takes a leave of absence under this Division shall accumulate during the leave.
Application of section 189
247.92 Section 189 applies for the purposes of this Division.
Resumption of employment in same position
247.93 (1) At the end of a leave of absence that is taken under this Division, the employer shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.
Comparable position
(2) If for a valid reason an employer is not able to reinstate the employee in that position, they shall reinstate the employee in a comparable position with the same wages and benefits and in the same location.
Not able to perform work
247.94 Subject to the regulations, if an employee is not able to perform the functions of the position that they occupy before the leave begins — or those of a comparable position, with the same wages and benefits and in the
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Code canadien du travail, Aide financière a dans la fonct same location — the employer may assign them to a position with different terms or conditions of employment.
Wages or benefits affected by reorganization
247.95 (1) If, during a leave of absence that is taken under this Division, the wages or benefits of the group of employees of which an employee is a member are changed as part of a plan to reorganize the industrial establishment in which that group is employed, the employee is entitled, on reinstatement under this section, to receive the wages and benefits in respect of that employment that that employee would have been entitled to receive had that employee been working when the reorganization took place.
Notice of change in wages or benefits
(2) The employer of an employee who is on leave and whose wages or benefits would be changed as a result of the reorganization shall, as soon as practicable, send a notice to the employee at their last known address.
Prohibition — employee
247.96 (1) No employer may dismiss, suspend, lay off, demote or discipline an employee because they are a member of the reserve force or intend to take or have taken a leave of absence under this Division or take into account the fact that an employee is a member of the reserve force or intends to take or has taken a leave of absence under this Division in a decision to promote or train them.
Prohibition — future employee
(2) No person may refuse to employ a person because they are a member of the reserve force.
Regulations
247.97 The Governor in Council may make regulations for carrying out the purposes of this Division and, without restricting the generality of the foregoing, may make regulations (a) specifying the absences that are deemed not to interrupt continuity of employment for the purpose of subsection 247.5(1); (b) specifying what constitutes or does not constitute an operation for the purposes of paragraph 247.5(1)(a); (c) setting out the activities for the purposes of paragraph 247.5(1)(b); (d) defining “annual training” for the purposes of paragraph 247.5(1)(c);
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(e) limiting the duration of the treatment, recovery or rehabilitation referred to in paragraph 247.5(1)(g) or setting out the terms or conditions for the application of that paragraph; (f) specifying what constitutes or does not constitute undue hardship for the purposes of subsection 247.5(4); (g) specifying what constitutes or does not constitute a valid reason for the purposes of subsection 247.6(1), (2), (3) or (4), 247.7(3) or 247.93(2); (h) specifying the circumstances in which section 247.7, subsection 247.8(1), section 247.9 or subsection 247.91(2) do not apply; (i) specifying the circumstances in which an employer may not assign an employee to a position with different terms or conditions of employment for the purposes of section 247.94; (j) prescribing the maximum duration of a leave of absence that may be taken under this Division; (k) specifying the maximum number of leaves of absence — or the maximum duration of leave — that may be taken under this Division within a given period; (l) prescribing the classes of employees that are not entitled to a leave of absence under this Division if the Governor in Council is satisfied that the fact of taking leave would cause unreasonable consequences; and (m) prescribing the circumstances in which classes of employees are not entitled to a leave of absence under this Division. 1994, c. 28
CANADA STUDENT FINANCIAL ASSISTANCE ACT 2. The Canada Student Financial Assistance Act is amended by adding the following after section 8:
Agreement to pay interest
9. (1) The Minister may enter into an agreement with a lender respecting the payment of interest — or a province respecting the payment of interest on provincial student loans
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Code canadien du travail, Aide financière a dans la fonct — by borrowers who are referred to in a regulation that is made under paragraph 15(k) or (k.2).
Payment on behalf of reservist
(2) If there is no agreement, the Minister may pay the interest on behalf of those borrowers.
Personal information
9.1 Personal information as defined in section 3 of the Privacy Act — that is under the control of a government institution as defined in that section — shall, on request, be made available to the Minister for the purposes of a regulation that is made under paragraph 15(k), (k.1), (k.2) or (k.3). 3. Section 15 of the Act is amended by adding the following after paragraph (j): (k) respecting the circumstances in which no interest is payable by members of the reserve force in respect of their student loans; (k.1) respecting the circumstances in which no fees may be charged to members of the reserve force on their student loans; (k.2) respecting the circumstances in which no amount on account of principal or interest is required to be paid by members of the reserve force in respect of their student loans; (k.3) respecting the payment of interest under subsection 9(2);
R.S. c. S-23
CANADA STUDENT LOANS ACT 4. The Canada Student Loans Act is amended by adding the following after section 5:
Agreement to pay interest
5.1 (1) The Minister may enter into an agreement with a lender respecting the payment of interest — or a province respecting the payment of interest on provincial student loans — by borrowers who are referred to in a regulation that is made under paragraph 17(s.1) or (s.2).
Payment on behalf of reservist
(2) If there is no agreement, the Minister may pay the interest on behalf of those borrowers.
Canada Labour Code, Canada Student Finan Public Service
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Personal information
5.2 Personal information as defined in section 3 of the Privacy Act — that is under the control of a government institution as defined in that section — shall, on request, be made available to the Minister for the purposes of a regulation that is made under paragraph 17(s.1), (s.2) or (s.3). 5. Section 17 of the Act is amended by adding the following after paragraph (s): (s.1) respecting the circumstances in which no interest is payable by members of the reserve force in respect of their guaranteed student loans; (s.2) respecting the circumstances in which no amount on account of principal or interest is required to be paid by members of the reserve force in respect of their guaranteed student loans; (s.3) respecting the payment of interest under subsection 5.1(2);
2003, c. 22, ss. 12 and 13
PUBLIC SERVICE EMPLOYMENT ACT 6. The Public Service Employment Act is amended by adding the following after section 41:
Resumption of employment
41.1 (1) At the end of a leave of absence from employment that is taken by an employee who is a member of the reserve force in order to take part in an operation or activity referred to in paragraphs 247.5(1)(a) to (f) of the Canada Labour Code, the deputy head shall reinstate the employee in the position that the employee occupied on the day before the day on which the leave begins.
Workforce adjustment
(2) Despite subsection (1), if a deputy head is not able to reinstate the employee in that position by reason of a workforce adjustment, the workforce adjustment measures that are established by the employer or the measures that are set out in agreements relating to workforce adjustment apply.
2007-2008
Code canadien du travail, Aide financière a dans la fonct COMING INTO FORCE
Order in council
7. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 29 An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act
ASSENTED TO 18th JUNE, 2008 BILL C-60
SUMMARY This enactment amends certain provisions of the National Defence Act that govern the military justice system. The amendments, among other things, reduce the number of types of courts martial from four to two and permit an accused person, in certain circumstances, to choose the type of court martial that will be convened. The enactment also provides that certain decisions of the panel of a General Court Martial must be unanimous and clarifies the provision that deals with the period of liability with respect to summary trials under the Code of Service Discipline. It also makes a consequential amendment to the Geneva Conventions Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 29 An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act [Assented to 18th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. N-5
NATIONAL DEFENCE ACT
1993, c. 34, s. 91(F)
1. The definition “court martial” in subsection 2(1) of the National Defence Act is replaced by the following:
“court martial” « cour martiale »
“court martial” includes a General Court Martial and a Standing Court Martial;
1998, c. 35, s. 21
2. Section 69 of the Act is replaced by the following:
When person is liable
69. (1) A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code.
Sections 130 and 132
(2) Despite subsection (1), if the service offence is punishable under section 130 or 132 and the act or omission that constitutes the service offence would have been subject to a limitation period had it been dealt with other than under the Code, then that limitation period applies.
1998, c. 35, s. 42
3. Section 162 of the Act is replaced by the following:
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Duty to act expeditiously
162. Charges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit.
National Defence
4. Section 163 of the Act is amended by adding the following after subsection (1): Limitation period
(1.1) A commanding officer may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed. 5. Section 164 of the Act is amended by adding the following after subsection (1):
Limitation period
(1.1) A superior commander may not try an accused person by summary trial unless the summary trial commences within one year after the day on which the service offence is alleged to have been committed.
1998, c. 35, s. 42
6. Section 165.14 of the Act is repealed.
1998, c. 35, s. 42
7. Subsection 165.19(1) of the Act is replaced by the following:
Duties
165.19 (1) The Court Martial Administrator performs the duties specified in sections 165.191 to 165.193 and, if he or she convenes a General Court Martial, shall appoint its members. 8. The Act is amended by adding the following after section 165.19:
Convening General Court Martial
165.191 (1) The Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is (a) an offence under this Act, other than under section 130 or 132, that is punishable by imprisonment for life; (b) an offence punishable under section 130 that is punishable by imprisonment for life; or (c) an offence punishable under section 130 that is referred to in section 469 of the Criminal Code.
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Défense nationale
Consent to be tried by Standing Court Martial
(2) An accused person who is charged with an offence referred to in subsection (1) may, with the written consent of the accused person and that of the Director of Military Prosecutions, be tried by Standing Court Martial.
Withdrawal of consent
(3) The consent given under subsection (2) may not be withdrawn unless both the accused and the Director of Military Prosecutions agree in writing to the withdrawal.
Convening Standing Court Martial
165.192 The Court Martial Administrator shall convene a Standing Court Martial if every charge preferred against an accused person on a charge sheet is (a) an offence under this Act, other than under section 130, that is punishable by imprisonment for less than two years or by a punishment that is lower in the scale of punishments; or (b) an offence that is punishable under section 130 and is punishable on summary conviction under any Act of Parliament.
Choice of accused
165.193 (1) An accused person may choose to be tried by General Court Martial or Standing Court Martial if a charge is preferred and sections 165.191 and 165.192 do not apply.
Notification
(2) The Court Martial Administrator shall cause the accused person to be notified in writing that he or she may make a choice under subsection (1).
Failure to make choice
(3) If the accused person fails to notify the Court Martial Administrator in writing of his or her choice within 14 days after the day on which the accused person is notified under subsection (2), the accused person is deemed to have chosen to be tried by General Court Martial.
New choice — as of right
(4) The accused person may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.
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New choice — with consent
(5) The accused person may also, with the written consent of the Director of Military Prosecutions, make a new choice at any time, in which case he or she shall notify the Court Martial Administrator in writing of the new choice.
Two or more accused
(6) If charges are preferred jointly and all of the accused persons do not choose — or are not deemed to have chosen — to be tried by the same type of court martial, they must be tried by a General Court Martial.
Convening of court martial
(7) The Court Martial Administrator shall convene a General Court Martial or Standing Court Martial in accordance with this section.
National Defence
9. The Act is amended by adding the following after section 166: Punishment limitation
166.1 A General Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.
1998, c. 35, s. 42
10. The heading before section 169 and sections 169 to 172 of the Act are repealed.
1998, c. 35, s. 42
11. Section 173 of the Act is replaced by the following:
Jurisdiction
173. A Standing Court Martial may try any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence.
1998, c. 35, s. 42
12. Sections 175 to 178 of the Act are replaced by the following:
Punishment limitation
175. A Standing Court Martial that tries a person other than an officer or a non-commissioned member may only pass a sentence that includes a punishment of imprisonment or a fine.
1998, c. 35, s. 46
13. Section 187 of the Act is replaced by the following:
Preliminary proceedings
187. At any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and
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Défense nationale determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial.
1998, c. 35, s. 46
14. The heading before section 191 and sections 191 to 193 of the Act are replaced by the following: Decisions of General Court Martial
Questions of law
191. The military judge presiding at a General Court Martial determines all questions of law or mixed law and fact arising before or after the commencement of the trial.
Plea of guilty
191.1 At any time after a General Court Martial is convened but before the panel of the court martial assembles, the military judge assigned to preside at the court martial may, on application, receive the accused person’s plea of guilty in respect of any charge and, if there are no other charges remaining before the court martial to which pleas of not guilty have been recorded, determine the sentence.
Decision of panel
192. (1) The members of the panel determine the court martial’s finding and its decision in respect of any other matter or question arising after the commencement of the trial that is not a question of law or mixed law and fact.
Decision
(2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.
Disagreement of panel
192.1 (1) If the military judge presiding at a General Court Martial is satisfied that the members of the panel are unable to agree on a finding and that further retention of the panel would be useless, the military judge may in his or her discretion discharge the panel.
Dissolution of court martial
(2) If a panel is discharged under subsection (1), the court martial is dissolved and the accused person may be dealt with as if the trial had never commenced.
Sentence
193. The military judge presiding at a General Court Martial determines the sentence.
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1998, c. 35, s. 47
15. Paragraphs 196(2)(a) and (b) of the Act are replaced by the following:
National Defence
(a) in the case of a General Court Martial, may order that the court martial (i) continue from the stage at which it was when it was deemed to be adjourned, or (ii) commence again, at the stage immediately following the plea of the accused person, as if no evidence had been introduced; and (b) in the case of a Standing Court Martial, shall commence the court martial again at the stage immediately following the plea of the accused person, as if no evidence had been introduced. 1998, c. 35, s. 47
16. Subsection 196.1(1) of the Act is replaced by the following:
Dissolution
196.1 (1) If, after an accused person has made a plea but before the court martial pronounces its finding, two or more members of the panel die or are for any reason unable to continue to act, the court martial is dissolved.
2007, c. 22, s. 5
17. Paragraph 196.16(2)(a) of the Act is replaced by the following: (a) the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to do so;
1998, c. 35, s. 50; 2005, c. 22, par. 61(b)(F)
18. The portion of subsection 202.12(1) of the Act before paragraph (a) is replaced by the following:
Prima facie case
202.12 (1) If a finding of unfit to stand trial is made by a court martial in respect of an accused person, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to hold an inquiry and determine whether sufficient admissible evidence can be adduced at that time to put the accused person on trial
2005, c. 22, s. 49
19. Subsection 202.121(3) of the Act is replaced by the following:
2007-2008 Obligation of court martial
Défense nationale (3) As soon as practicable after receiving the notice referred to in subsection (2), the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial for the purpose of determining whether an inquiry should be held to determine whether a stay of proceedings should be ordered and to hold, as soon as practicable, the inquiry if the court martial determines that it is appropriate. 20. Subsection 227.03(7) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue. 21. Subsection 227.1(3) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(3) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue. 22. Subsection 227.12(7) of the Act, as enacted by section 4 of chapter 5 of the Statutes of Canada, 2007, is replaced by the following:
Court martial
(7) On receipt of the application, the Chief Military Judge shall cause the Court Martial Administrator to convene a Standing Court Martial to try the issue.
1991, c. 43, s. 23(1)
23. Paragraph 238(1)(b) of the Act is replaced by the following: (b) direct a new trial by court martial on the charge.
1991, c. 43, s. 25
24. (1) Paragraph 239.1(1)(a) of the Act is replaced by the following: (a) direct a new trial by court martial on that charge; or
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1991, c. 43, s. 25
(2) The portion of paragraph 239.1(1)(b) of the Act before subparagraph (i) is replaced by the following:
National Defence
(b) except if the finding is that of a General Court Martial, enter a finding of guilty with respect to the offence for which, in its opinion, the accused person should have been found guilty but for the illegality and 1991, c. 43, s. 25
25. Section 239.2 of the Act is replaced by the following:
Appeal against decision
239.2 On the hearing of an appeal respecting the legality of a decision referred to in paragraph 230.1(d), the Court Martial Appeal Court may, if it allows the appeal, set aside the decision and direct a new trial by court martial on the charge.
1991, c. 43, s. 26
26. Subsection 240.2(1) of the Act is replaced by the following:
Appeal against finding of unfit or not responsible
240.2 (1) On the hearing of an appeal against a finding of unfit to stand trial or not responsible on account of mental disorder, the Court Martial Appeal Court shall, subject to subsection (2), direct a new trial by court martial if it allows the appeal.
1991, c. 43, s. 26
27. Paragraph 240.3(b) of the Act is replaced by the following: (b) except in the case of a disposition made by a General Court Martial, remit the matter to the court martial for a rehearing, in whole or in part, in accordance with any directions that the Court considers appropriate; or REVIEW AND REPORT
Review
28. (1) Within two years after the day on which this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by the committee of either the Senate or the House of Commons or of both Houses of Parliament that is designated or established by the Senate or the House of Commons or by both Houses of Parliament, as the case may be, for that purpose.
2007-2008 Report
Défense nationale (2) Within one year after the review is undertaken, or within any longer period that the Senate or the House of Commons or both Houses of Parliament may authorize, the committee shall submit a report on the review to Parliament, including a statement of any changes that the committee recommends. TRANSITIONAL PROVISION
Reference to General Court Martial
29. For the purposes of paragraphs 239.1(1)(b) and 240.3(b) of the National Defence Act, any reference to a General Court Martial is also a reference to a Disciplinary Court Martial. CONSEQUENTIAL AMENDMENT
R.S., c. G-3
GENEVA CONVENTIONS ACT 30. The definition “court” in section 4 of the Geneva Conventions Act is replaced by the following:
“court” « tribunal »
“court” includes a General Court Martial and a Standing Court Martial convened under the National Defence Act; COORDINATING AMENDMENTS
Bill C-45
31. (1) If Bill C-45, introduced in the 2nd session of the 39th Parliament and entitled An Act to amend the National Defence Act and to make consequential amendments to other Acts (the “other Act”), receives royal assent, then subsections (2) to (12) apply. (2) If section 10 of this Act comes into force before section 45 of the other Act, that section 45 is repealed. (3) If section 10 of this Act comes into force on the same day as section 45 of the other Act, then that section 45 is deemed to have come into force before that section 10. (4) If section 13 of this Act comes into force before section 50 of the other Act, that section 50 is repealed.
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National Defence
(5) If section 13 of this Act comes into force on the same day as section 50 of the other Act, then that section 50 is deemed to have come into force before that section 13. (6) If section 14 of this Act comes into force before section 51 of the other Act, that section 51 is repealed. (7) If section 14 of this Act comes into force on the same day as section 51 of the other Act, then that section 51 is deemed to have come into force before that section 14. (8) If section 14 of this Act comes into force before section 52 of the other Act, that section 52 is repealed. (9) If section 14 of this Act comes into force on the same day as section 52 of the other Act, then that section 52 is deemed to have come into force before that section 14. (10) If section 14 of this Act comes into force before section 53 of the other Act, that section 53 is repealed. (11) If section 14 of this Act comes into force on the same day as section 53 of the other Act, then that section 53 is deemed to have come into force before that section 14. (12) On the first day on which both section 62 of the other Act and section 1 of this Act are in force, the portion of subsection 203.5(2) of the National Defence Act before paragraph (a) is replaced by the following: Panel
(2) In the case of a General Court Martial, the court martial COMING INTO FORCE
After royal assent — 30 days
32. This Act, other than section 31, comes into force 30 days after the day on which it receives royal assent.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 5 An Act to amend the Canada Transportation Act (railway transportation)
ASSENTED TO 28th FEBRUARY, 2008 BILL C-8
SUMMARY This enactment amends the Canada Transportation Act with respect to railway transportation.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 5 An Act to amend the Canada Transportation Act (railway transportation) [Assented to 28th February, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1996, c. 10
CANADA TRANSPORTATION ACT 1. (1) Subsections 27(2) and (3) of the Canada Transportation Act are repealed. (2) Subsection 27(5) of the Act is repealed. 2. Subsection 119(1) of the Act is replaced by the following:
Notice of change of tariff
119. (1) A railway company that proposes to increase a rate in a tariff for the movement of traffic shall publish a notice of the increase at least 30 days before its effective date. 3. The Act is amended by adding the following after section 120:
Unreasonable charges or terms
120.1 (1) If, on complaint in writing to the Agency by a shipper who is subject to any charges and associated terms and conditions for the movement of traffic or for the provision of incidental services that are found in a tariff that applies to more than one shipper other than a tariff referred to in subsection 165(3), the Agency finds that the charges or associated terms and conditions are unreasonable, the Agency may, by order, establish new charges or associated terms and conditions.
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Period of validity
(2) An order made under subsection (1) remains in effect for the period, not exceeding one year, specified in the order.
Factors to be considered
(3) In deciding whether any charges or associated terms and conditions are unreasonable, the Agency shall take into account the following factors:
Canada Transportation
(a) the objective of the charges or associated terms and conditions; (b) the industry practice in setting the charges or associated terms and conditions; (c) in the case of a complaint relating to the provision of any incidental service, the existence of an effective, adequate and competitive alternative to the provision of that service; and (d) any other factor that the Agency considers relevant. Commercially fair and reasonable
(4) Any charges or associated terms and conditions established by the Agency shall be commercially fair and reasonable to the shippers who are subject to them as well as to the railway company that issued the tariff containing them.
Duty to vary tariff
(5) The railway company shall, without delay after the Agency establishes any charges or associated terms and conditions, vary its tariff to reflect those charges or associated terms and conditions.
No variation
(6) The railway company shall not vary its tariff with respect to any charges or associated terms and conditions established by the Agency until the period referred to in subsection (2) has expired.
Clarification
(7) For greater certainty, this section does not apply to rates for the movement of traffic. 4. The Act is amended by adding the following after section 146:
Obligation following return
146.01 (1) If, by reason of the instrument or act by which a railway line or an operating interest in a railway line is transferred through the process set out in sections 143 to 145 or otherwise, the railway line or operating interest in the railway line returns to the railway company that transferred it, the railway company shall, within 60 days after the day on
2007-2008
Transports au Canada which the return takes place, resume operations of the line or follow the process set out in sections 143 to 145.
No condition or obligation
(2) If a railway line or operating interest in a railway line returns to a railway company that transferred it and the company decides to follow the process set out in sections 143 to 145 in respect of the railway line or operating interest, the company is not subject to subsection 142(2) in respect of the railway line or operating interest and has no obligations under this Act in respect of the operation of the railway line. 5. Section 146.1 of the Act is renumbered as subsection 146.1(1) and is amended by adding the following:
Compensation
(2) If a railway company to which subsection 146.01(1) applies does not resume operations on a grain-dependent branch line listed in Schedule I within the period provided for in that subsection and does not enter into an agreement for the sale, lease or other transfer of that railway line, or applicable interest in that railway line, after following the process set out in sections 143 to 145, the railway company shall, beginning on the day after the last day on which its offer could have been accepted under section 145, make the annual payments referred to in subsection (1). 6. The Act is amended by adding the following after section 151: List of Available Sidings
List of available sidings
151.1 (1) A prescribed railway company shall prepare and keep up to date a list of the sidings that it makes available in the Western Division where railway cars that are allocated by the Canadian Grain Commission under subsection 87(2) of the Canada Grain Act can be loaded.
Publication of list
(2) The railway company shall publish the list on its Internet site.
Removal from list
(3) The railway company may remove a siding from the list only after the expiry of 60 days after the publication of a notice of its intention to do so in a newspaper of general circulation in the area where the siding is located.
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Canada Transportation
7. The Act is amended by adding the following after section 169: Mediation
169.1 (1) The parties to a final offer arbitration may, by agreement, refer to a mediator, which may be the Agency, a matter that has been submitted for a final offer arbitration under section 161.
Establishment of roster
(2) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators in any matter referred to it under subsection (1).
Confidentiality of mediation
(3) All matters relating to the mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.
Time limit for completion of mediation
(4) Unless the parties otherwise agree, the mediation shall be completed within 30 days after the matter is referred for mediation.
Effect of mediation on final offer arbitration
(5) The mediation has the effect of (a) staying the conduct of the final offer arbitration for the period of the mediation; and (b) extending the time within which the arbitrator must make a decision in the matter of the final offer arbitration by the period of the mediation.
Mediator not to act in other proceedings
(6) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.
Joint offer of several shippers
169.2 (1) In the case where more than one shipper is dissatisfied with the rate or rates charged or proposed to be charged by a carrier for the movement of goods, or with any conditions associated with the movement of goods, those shippers may, if the matter cannot be resolved between them and the carrier, submit the matter jointly to the Agency for a final offer arbitration, in which case sections 161 to 169 apply, with any modifications that the circumstances require.
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Transports au Canada
Common matter and application of the offer
(2) A matter submitted jointly to the Agency for a final offer arbitration shall be common to all the shippers and the shippers shall make a joint offer in respect of the matter, the terms of which apply to all of them.
Arbitration precluded in certain cases
(3) The Agency shall not have any matter submitted to it for a final offer arbitration under subsection (1) arbitrated unless the shippers demonstrate, to the satisfaction of the Agency, that an attempt has been made to mediate the matter.
Confidentiality of mediation
(4) All matters relating to a mediation shall be kept confidential, unless the parties otherwise agree, and information provided by a party for the purposes of the mediation shall not be used for any other purpose without the consent of that party.
Mediator not to act in other proceedings
(5) The person who acts as mediator may not act in any other proceedings in relation to any matter that was at issue in the mediation.
Matter submitted by more than one shipper
(6) In the case of a matter that is submitted jointly under subsection (1), (a) the period referred to in subsection 161.1(1) is 20 days; (b) the arbitrator may, if he or she considers it necessary, extend any of the periods referred to in subsections 163(3) and (4) and paragraph 164.1(a); and (c) the decision of the arbitrator shall, despite paragraph 165(2)(b), be rendered within 120 days or, in the case of an arbitration conducted in accordance with section 164.1, 90 days after the day on which the submission for the final offer arbitration is received by the Agency unless the parties agree otherwise.
Time limit — preliminary applications
169.3 (1) Despite sections 162 and 162.1, any application filed with the Agency by a carrier in respect of a matter submitted jointly to the Agency under subsection 169.2(1) shall be filed with the Agency no later than seven days after the day on which the joint submission is made.
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Service of copy
(2) A copy of the application shall be served on each of the shippers making the joint submission no later than the day on which the application is required to be filed under subsection (1).
Joint answer
(3) The shippers, no later than five days after the day on which the last shipper was served under subsection (2), shall file with the Agency a joint answer to the application and serve a copy of it on the carrier.
Reply
(4) The carrier, no later than two days after the day on which it was served under subsection (3), shall file with the Agency a reply to the joint answer and serve a copy of it on each of the shippers.
Decision of Agency
(5) The Agency shall issue its decision on the application no later than the day on which the matter is required to be referred to arbitration under subsection 162(1).
Deemed conformity
(6) If no application referred to in subsection (1) is filed within the limit set out in that subsection, the matter submitted jointly is deemed to conform to the requirements of subsection 169.2(2).
Bill C-11
AN ACT TO AMEND THE CANADA TRANSPORTATION ACT AND THE RAILWAY SAFETY ACT AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
Canada Transportation
8. (1) Subsections (2) to (4) apply if Bill C-11, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent. (2) On the later of the day on which this Act receives royal assent and the day on which section 7 of the other Act comes into force — or, if those days are the same day, then on that day — section 36.2 of the Canada Transportation Act is amended by adding the following after subsection (1):
2007-2008 Establishment of roster
Transports au Canada (1.1) The Agency may establish a roster of persons, which may include members and staff of the Agency, to act as mediators or arbitrators. (3) On the later of the day on which this Act receives royal assent and the day on which section 38 of the other Act comes into force — or, if those days are the same day, then on that day — the Canada Transportation Act is amended by adding the following after section 146.01:
Exception
146.02 Despite section 146.01, if a railway line or operating interest in a railway line returns to a railway company referred to in that section and, before the day on which the return takes place, an agreement was in force between the person or entity that owned the railway line or had the operating interest in the railway line immediately before the return and a public passenger service provider as defined in section 87 in respect of the operation of a passenger rail service on that railway line, then, unless the public passenger service provider indicates otherwise before that day, the rights and obligations of the person or entity under the agreement in respect of the operation of that service on that line vest, as of that day, in the railway company and the railway company shall resume operations of the railway line. (4) On the later of the day on which this Act receives royal assent and the day on which section 28 of the other Act comes into force — or, if those days are the same day, then on that day — section 160 of the Canada Transportation Act is replaced by the following:
Rail passenger services
160. Sections 161 to 169 also apply, with any modifications that the circumstances require, in respect of the rates charged or proposed to be charged by, and in respect of any of the conditions associated with the provision of services by, a railway company to any other railway company engaged in passenger rail services, except a public passenger service provider as defined in section 87.
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Canada Transportation
COORDINATING AMENDMENTS Bill C-11
9. (1) Subsections (2) to (4) apply if Bill C-11, introduced in the 1st session of the 39th Parliament and entitled An Act to amend the Canada Transportation Act and the Railway Safety Act and to make consequential amendments to other Acts (referred to in this section as the “other Act”), receives royal assent. (2) On the later of the day on which this Act receives royal assent and the day on which section 7 of the other Act comes into force — or, if those days are the same day, then on that day — subsection 36.2(1) of the Canada Transportation Act is replaced by the following:
Request by all parties
36.2 (1) If sections 36.1 and 169.1 do not apply, the Agency may mediate or arbitrate a dispute relating to any railway matter covered under Part III or IV, or to the application of any rate or charge for the movement of goods by railways or for the provision of incidental services, if requested to do so by all parties to the dispute. (3) If section 5 of this Act comes into force before section 41 of the other Act, section 41 of the other Act is replaced by the following: 41. Subsection 146.1(1) of the French version of the Act is replaced by the following:
Indemnisation
146.1 (1) La compagnie de chemin de fer qui cesse d’exploiter un embranchement tributaire du transport du grain mentionné à l’annexe I, ou une partie d’un tel embranchement, passant dans une municipalité fait à celle-ci trois versements annuels à compter de la date où elle avise l’Office en application du paragraphe 146(1). Chaque versement est égal au produit de 10 000 $ et du nombre de milles de l’embranchement ou de la partie d’embranchement situés dans le territoire de la municipalité.
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Transports au Canada (4) If section 5 of this Act comes into force on the same day as section 41 of the other Act, section 41 of the other Act is deemed to have come into force before section 5 of this Act.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 8 An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)
ASSENTED TO 13th MARCH, 2008 BILL C-9
SUMMARY This enactment implements the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature in Washington on March 18, 1965.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO IMPLEMENT THE CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES (ICSID CONVENTION) 1.
Settlement of International Investment Disputes Act
2. Definitions
3. Interpretation if inconsistency
4. Application
5. Capacity, privileges and immunities of the Centre
6. Binding on Her Majesty
7. Remedies
8. Jurisdiction of superior court
9. Arbitration — exclusion of other remedies
10. Conciliation — without prejudice
11. Designation of panels
12. Coming into force SCHEDULE
56-57 ELIZABETH II —————— CHAPTER 8 An Act to implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) [Assented to 13th March, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title
1. This Act may be cited as the Settlement of International Investment Disputes Act.
Definitions
2. The following definitions apply in this Act.
“award” « sentence »
“Convention” « Convention »
“award” means an award rendered by the arbitral tribunal established under article 37 of the Convention and an interpretation, revision or annulment, if any, of the award under the Convention. “Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, the text of which is set out in the schedule.
Interpretation if inconsistency
3. Despite section 5 of the United Nations Foreign Arbitral Awards Convention Act, in the event of an inconsistency between that Act — or the Commercial Arbitration Act — and this Act or the Convention, this Act or the Convention, as the case may be, prevails to the extent of the inconsistency.
Application
4. This Act applies to awards rendered, arbitration agreements entered into and conciliation proceedings commenced under the Convention before or after the coming into force of this Act.
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Capacity, privileges and immunities of the Centre
5. (1) The International Centre for Settlement of Investment Disputes established under the Convention has the capacity of a natural person and the privileges and immunities set out in articles 19, 20 and 23 and paragraph (1) of article 24 of the Convention.
Privileges and immunities — individuals
(2) A person referred to in article 21 or 22 or paragraph (3) of article 24 of the Convention has the privileges and immunities set out in that article or paragraph, as the case may be.
Non-taxation of foreign nationals
(3) A person referred to in paragraph (2) of article 24 of the Convention who is neither a Canadian citizen nor a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has the privileges and immunities set out in that paragraph.
Certificate of Minister of Foreign Affairs
(4) A certificate purporting to be issued by or under the authority of the Minister of Foreign Affairs and containing a statement of fact relevant to whether a person has privileges or immunities under this Act is to be received in evidence in any proceeding as proof of the fact stated in the certificate without proof of the signature or official character of the person appearing to have signed it.
Binding on Her Majesty
6. This Act is binding on Her Majesty in right of Canada.
Remedies
7. An award is not subject to a remedy except as set out in the Convention.
Jurisdiction of superior court
8. (1) A superior court may recognize and enforce an award.
Recognition and enforcement of awards
(2) The court shall on application recognize and enforce an award as if it were a final judgment of that court.
Stay of enforcement
(3) If the enforcement of an award is stayed under the Convention, the court shall on application stay the enforcement of the award.
Settlement of Internation
2007-2008 Arbitration — exclusion of other remedies
Règlement des différends internati 9. Unless the parties to an arbitration agreement entered into under the Convention agree otherwise, a court or administrative tribunal (a) may not order interim measures for the preservation of a party’s rights or interests before the institution of or during arbitration proceedings; and (b) may not determine a matter that is covered by the agreement.
Conciliation — without prejudice
10. Unless the parties to conciliation proceedings under the Convention agree otherwise, a party may not use the following in any other proceedings, including proceedings before a court, administrative tribunal or arbitrator: (a) a view expressed or a statement, admission or offer of settlement made by the other party in the conciliation proceedings; or (b) the report or recommendations made by the conciliation commission established under article 29 of the Convention.
Designation of panels
11. The Governor in Council may, in accordance with articles 12 to 16 of the Convention, designate persons to the panel of conciliators and the panel of arbitrators.
Coming into force
12. This Act comes into force on a day to be fixed by order of the Governor in Council.
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Settlement of International Inv SCHEDULE (Section 2)
CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES PREAMBLE The Contracting States Considering the need for international cooperation for economic development, and the role of private international investment therein; Bearing in mind the possibility that from time to time disputes may arise in connection with such investment between Contracting States and nationals of other Contracting States; Recognizing that while such disputes would usually be subject to national legal processes, international methods of settlement may be appropriate in certain cases; Attaching particular importance to the availability of facilities for international conciliation or arbitration to which Contracting States and nationals of other Contracting States may submit such disputes if they so desire; Desiring to establish such facilities under the auspices of the International Bank for Reconstruction and Development; Recognizing that mutual consent by the parties to submit such disputes to conciliation or to arbitration through such facilities constitutes a binding agreement which requires in particular that due consideration be given to any recommendation of conciliators, and that any arbitral award be complied with; and Declaring that no Contracting State shall by the mere fact of its ratification, acceptance or approval of this Convention and without its consent be deemed to be under any obligation to submit any particular dispute to conciliation or arbitration, Have agreed as follows:
CHAPTER I INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES SECTION 1 ESTABLISHMENT AND ORGANIZATION Article 1 (1) There is hereby established the International Centre for Settlement of Investment Disputes (hereinafter called the Centre). (2) The purpose of the Centre shall be to provide facilities for conciliation and arbitration of investment disputes between Contracting States and nationals of other Contracting States in accordance with the provisions of this Convention.
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Règlement des différends internationaux Article 2
The seat of the Centre shall be at the principal office of the International Bank for Reconstruction and Development (hereinafter called the Bank). The seat may be moved to another place by decision of the Administrative Council adopted by a majority of twothirds of its members. Article 3 The Centre shall have an Administrative Council and a Secretariat and shall maintain a Panel of Conciliators and a Panel of Arbitrators. SECTION 2 THE ADMINISTRATIVE COUNCIL Article 4 (1) The Administrative Council shall be composed of one representative of each Contracting State. An alternate may act as representative in case of his principal’s absence from a meeting or inability to act. (2) In the absence of a contrary designation, each governor and alternate governor of the Bank appointed by a Contracting State shall be ex officio its representative and its alternate respectively. Article 5 The President of the Bank shall be ex officio Chairman of the Administrative Council (hereinafter called the Chairman) but shall have no vote. During his absence or inability to act and during any vacancy in the office of President of the Bank, the person for the time being acting as President shall act as Chairman of the Administrative Council. Article 6 (1) Without prejudice to the powers and functions vested in it by other provisions of this Convention, the Administrative Council shall: (a) adopt the administrative and financial regulations of the Centre; (b) adopt the rules of procedure for the institution of conciliation and arbitration proceedings; (c) adopt the rules of procedure for conciliation and arbitration proceedings (hereinafter called the Conciliation Rules and the Arbitration Rules); (d) approve arrangements with the Bank for the use of the Bank’s administrative facilities and services; (e) determine the conditions of service of the Secretary-General and of any Deputy Secretary-General; (f) adopt the annual budget of revenues and expenditures of the Centre; (g) approve the annual report on the operation of the Centre. The decisions referred to in sub-paragraphs (a), (b), (c) and (f) above shall be adopted by a majority of two-thirds of the members of the Administrative Council.
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Settlement of International Inv
(2) The Administrative Council may appoint such committees as it considers necessary. (3) The Administrative Council shall also exercise such other powers and perform such other functions as it shall determine to be necessary for the implementation of the provisions of this Convention. Article 7 (1) The Administrative Council shall hold an annual meeting and such other meetings as may be determined by the Council, or convened by the Chairman, or convened by the Secretary-General at the request of not less than five members of the Council. (2) Each member of the Administrative Council shall have one vote and, except as otherwise herein provided, all matters before the Council shall be decided by a majority of the votes cast. (3) A quorum for any meeting of the Administrative Council shall be a majority of its members. (4) The Administrative Council may establish, by a majority of two-thirds of its members, a procedure whereby the Chairman may seek a vote of the Council without convening a meeting of the Council. The vote shall be considered valid only if the majority of the members of the Council cast their votes within the time limit fixed by the said procedure. Article 8 Members of the Administrative Council and the Chairman shall serve without remuneration from the Centre. SECTION 3 THE SECRETARIAT Article 9 The Secretariat shall consist of a Secretary-General, one or more Deputy Secretaries-General and staff. Article 10 (1) The Secretary-General and any Deputy Secretary-General shall be elected by the Administrative Council by a majority of twothirds of its members upon the nomination of the Chairman for a term of service not exceeding six years and shall be eligible for reelection. After consulting the members of the Administrative Council, the Chairman shall propose one or more candidates for each such office. (2) The offices of Secretary-General and Deputy SecretaryGeneral shall be incompatible with the exercise of any political function. Neither the Secretary-General nor any Deputy SecretaryGeneral may hold any other employment or engage in any other occupation except with the approval of the Administrative Council.
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Règlement des différends internationaux
(3) During the Secretary-General’s absence or inability to act, and during any vacancy of the office of Secretary-General, the Deputy Secretary-General shall act as Secretary-General. If there shall be more than one Deputy Secretary-General, the Administrative Council shall determine in advance the order in which they shall act as Secretary-General. Article 11 The Secretary-General shall be the legal representative and the principal officer of the Centre and shall be responsible for its administration, including the appointment of staff, in accordance with the provisions of this Convention and the rules adopted by the Administrative Council. He shall perform the function of registrar and shall have the power to authenticate arbitral awards rendered pursuant to this Convention, and to certify copies thereof. SECTION 4 THE PANELS Article 12 The Panel of Conciliators and the Panel of Arbitrators shall each consist of qualified persons, designated as hereinafter provided, who are willing to serve thereon. Article 13 (1) Each Contracting State may designate to each Panel four persons who may but need not be its nationals. (2) The Chairman may designate ten persons to each Panel. The persons so designated to a Panel shall each have a different nationality. Article 14 (1) Persons designated to serve on the Panels shall be persons of high moral character and recognized competence in the fields of law, commerce, industry or finance, who may be relied upon to exercise independent judgment. Competence in the field of law shall be of particular importance in the case of persons on the Panel of Arbitrators. (2) The Chairman, in designating persons to serve on the Panels, shall in addition pay due regard to the importance of assuring representation on the Panels of the principal legal systems of the world and of the main forms of economic activity. Article 15 (1) Panel members shall serve for renewable periods of six years. (2) In case of death or resignation of a member of a Panel, the authority which designated the member shall have the right to designate another person to serve for the remainder of that member’s term. (3) Panel members shall continue in office until their successors have been designated.
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Settlement of International Inv Article 16
(1) A person may serve on both Panels. (2) If a person shall have been designated to serve on the same Panel by more than one Contracting State, or by one or more Contracting States and the Chairman, he shall be deemed to have been designated by the authority which first designated him or, if one such authority is the State of which he is a national, by that State. (3) All designations shall be notified to the Secretary-General and shall take effect from the date on which the notification is received. SECTION 5 FINANCING THE CENTRE Article 17 If the expenditure of the Centre cannot be met out of charges for the use of its facilities, or out of other receipts, the excess shall be borne by Contracting States which are members of the Bank in proportion to their respective subscriptions to the capital stock of the Bank, and by Contracting States which are not members of the Bank in accordance with rules adopted by the Administrative Council. SECTION 6 STATUS, IMMUNITIES AND PRIVILEGES Article 18 The Centre shall have full international legal personality. The legal capacity of the Centre shall include the capacity: (a) to contract; (b) to acquire and dispose of movable and immovable property; (c) to institute legal proceedings. Article 19 To enable the Centre to fulfil its functions, it shall enjoy in the territories of each Contracting State the immunities and privileges set forth in this Section. Article 20 The Centre, its property and assets shall enjoy immunity from all legal process, except when the Centre waives this immunity. Article 21 The Chairman, the members of the Administrative Council, persons acting as conciliators or arbitrators or members of a Committee appointed pursuant to paragraph (3) of Article 52, and the officers and employees of the Secretariat (a) shall enjoy immunity from legal process with respect to acts performed by them in the exercise of their functions, except when the Centre waives this immunity;
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Règlement des différends internationaux
(b) not being local nationals, shall enjoy the same immunities from immigration restrictions, alien registration requirements and national service obligations, the same facilities as regards exchange restrictions and the same treatment in respect of travelling facilities as are accorded by Contracting States to the representatives, officials and employees of comparable rank of other Contracting States. Article 22 The provisions of Article 21 shall apply to persons appearing in proceedings under this Convention as parties, agents, counsel, advocates, witnesses or experts; provided, however, that subparagraph (b) thereof shall apply only in connection with their travel to and from, and their stay at, the place where the proceedings are held. Article 23 (1) The archives of the Centre shall be inviolable, wherever they may be. (2) With regard to its official communications, the Centre shall be accorded by each Contracting State treatment not less favourable than that accorded to other international organizations. Article 24 (1) The Centre, its assets, property and income, and its operations and transactions authorized by this Convention shall be exempt from all taxation and customs duties. The Centre shall also be exempt from liability for the collection or payment of any taxes or customs duties. (2) Except in the case of local nationals, no tax shall be levied on or in respect of expense allowances paid by the Centre to the Chairman or members of the Administrative Council, or on or in respect of salaries, expense allowances or other emoluments paid by the Centre to officials or employees of the Secretariat. (3) No tax shall be levied on or in respect of fees or expense allowances received by persons acting as conciliators, or arbitrators, or members of a Committee appointed pursuant to paragraph (3) of Article 52, in proceedings under this Convention, if the sole jurisdictional basis for such tax is the location of the Centre or the place where such proceedings are conducted or the place where such fees or allowances are paid. CHAPTER II JURISDICTION OF THE CENTRE Article 25 (1) The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre. When the parties have given their consent, no party may withdraw its consent unilaterally. (2) “National of another Contracting State” means:
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(a) any natural person who had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration as well as on the date on which the request was registered pursuant to paragraph (3) of Article 28 or paragraph (3) of Article 36, but does not include any person who on either date also had the nationality of the Contracting State party to the dispute; and (b) any juridical person which had the nationality of a Contracting State other than the State party to the dispute on the date on which the parties consented to submit such dispute to conciliation or arbitration and any juridical person which had the nationality of the Contracting State party to the dispute on that date and which, because of foreign control, the parties have agreed should be treated as a national of another Contracting State for the purposes of this Convention. (3) Consent by a constituent subdivision or agency of a Contracting State shall require the approval of that State unless that State notifies the Centre that no such approval is required. (4) Any Contracting State may, at the time of ratification, acceptance or approval of this Convention or at any time thereafter, notify the Centre of the class or classes of disputes which it would or would not consider submitting to the jurisdiction of the Centre. The Secretary-General shall forthwith transmit such notification to all Contracting States. Such notification shall not constitute the consent required by paragraph (1). Article 26 Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention. Article 27 (1) No Contracting State shall give diplomatic protection, or bring an international claim, in respect of a dispute which one of its nationals and another Contracting State shall have consented to submit or shall have submitted to arbitration under this Convention, unless such other Contracting State shall have failed to abide by and comply with the award rendered in such dispute. (2) Diplomatic protection, for the purposes of paragraph (1), shall not include informal diplomatic exchanges for the sole purpose of facilitating a settlement of the dispute.
2007-2008
Règlement des différends internationaux CHAPTER III CONCILIATION SECTION 1 REQUEST FOR CONCILIATION Article 28
(1) Any Contracting State or any national of a Contracting State wishing to institute conciliation proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party. (2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to conciliation in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings. (3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register. SECTION 2 CONSTITUTION OF THE CONCILIATION COMMISSION Article 29 (1) The Conciliation Commission (hereinafter called the Commission) shall be constituted as soon as possible after registration of a request pursuant to Article 28. (2) (a) The Commission shall consist of a sole conciliator or any uneven number of conciliators appointed as the parties shall agree. (b) Where the parties do not agree upon the number of conciliators and the method of their appointment, the Commission shall consist of three conciliators, one conciliator appointed by each party and the third, who shall be the president of the Commission, appointed by agreement of the parties. Article 30 If the Commission shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary-General in accordance with paragraph (3) of Article 28, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the conciliator or conciliators not yet appointed. Article 31 (1) Conciliators may be appointed from outside the Panel of Conciliators, except in the case of appointments by the Chairman pursuant to Article 30. (2) Conciliators appointed from outside the Panel of Conciliators shall possess the qualities stated in paragraph (1) of Article 14.
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CONCILIATION PROCEEDINGS Article 32 (1) The Commission shall be the judge of its own competence. (2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Commission, shall be considered by the Commission which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute. Article 33 Any conciliation proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Conciliation Rules in effect on the date on which the parties consented to conciliation. If any question of procedure arises which is not covered by this Section or the Conciliation Rules or any rules agreed by the parties, the Commission shall decide the question. Article 34 (1) It shall be the duty of the Commission to clarify the issues in dispute between the parties and to endeavour to bring about agreement between them upon mutually acceptable terms. To that end, the Commission may at any stage of the proceedings and from time to time recommend terms of settlement to the parties. The parties shall cooperate in good faith with the Commission in order to enable the Commission to carry out its functions, and shall give their most serious consideration to its recommendations. (2) If the parties reach agreement, the Commission shall draw up a report noting the issues in dispute and recording that the parties have reached agreement. If, at any stage of the proceedings, it appears to the Commission that there is no likelihood of agreement between the parties, it shall close the proceedings and shall draw up a report noting the submission of the dispute and recording the failure of the parties to reach agreement. If one party fails to appear or participate in the proceedings, the Commission shall close the proceedings and shall draw up a report noting that party’s failure to appear or participate. Article 35 Except as the parties to the dispute shall otherwise agree, neither party to a conciliation proceeding shall be entitled in any other proceeding, whether before arbitrators or in a court of law or otherwise, to invoke or rely on any views expressed or statements or admissions or offers of settlement made by the other party in the conciliation proceedings, or the report or any recommendations made by the Commission.
2007-2008
Règlement des différends internationaux CHAPTER IV ARBITRATION SECTION 1 REQUEST FOR ARBITRATION Article 36
(1) Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary-General who shall send a copy of the request to the other party. (2) The request shall contain information concerning the issues in dispute, the identity of the parties and their consent to arbitration in accordance with the rules of procedure for the institution of conciliation and arbitration proceedings. (3) The Secretary-General shall register the request unless he finds, on the basis of the information contained in the request, that the dispute is manifestly outside the jurisdiction of the Centre. He shall forthwith notify the parties of registration or refusal to register. SECTION 2 CONSTITUTION OF THE TRIBUNAL Article 37 (1) The Arbitral Tribunal (hereinafter called the Tribunal) shall be constituted as soon as possible after registration of a request pursuant to Article 36. (2) (a) The Tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree. (b) Where the parties do not agree upon the number of arbitrators and the method of their appointment, the Tribunal shall consist of three arbitrators, one arbitrator appointed by each party and the third, who shall be the president of the Tribunal, appointed by agreement of the parties. Article 38 If the Tribunal shall not have been constituted within 90 days after notice of registration of the request has been dispatched by the Secretary-General in accordance with paragraph (3) of Article 36, or such other period as the parties may agree, the Chairman shall, at the request of either party and after consulting both parties as far as possible, appoint the arbitrator or arbitrators not yet appointed. Arbitrators appointed by the Chairman pursuant to this Article shall not be nationals of the Contracting State party to the dispute or of the Contracting State whose national is a party to the dispute. Article 39 The majority of the arbitrators shall be nationals of States other than the Contracting State party to the dispute and the Contracting State whose national is a party to the dispute; provided, however,
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that the foregoing provisions of this Article shall not apply if the sole arbitrator or each individual member of the Tribunal has been appointed by agreement of the parties. Article 40 (1) Arbitrators may be appointed from outside the Panel of Arbitrators, except in the case of appointments by the Chairman pursuant to Article 38. (2) Arbitrators appointed from outside the Panel of Arbitrators shall possess the qualities stated in paragraph (1) of Article 14. SECTION 3 POWERS AND FUNCTIONS OF THE TRIBUNAL Article 41 (1) The Tribunal shall be the judge of its own competence. (2) Any objection by a party to the dispute that that dispute is not within the jurisdiction of the Centre, or for other reasons is not within the competence of the Tribunal, shall be considered by the Tribunal which shall determine whether to deal with it as a preliminary question or to join it to the merits of the dispute. Article 42 (1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. In the absence of such agreement, the Tribunal shall apply the law of the Contracting State party to the dispute (including its rules on the conflict of laws) and such rules of international law as may be applicable. (2) The Tribunal may not bring in a finding of non liquet on the ground of silence or obscurity of the law. (3) The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree. Article 43 Except as the parties otherwise agree, the Tribunal may, if it deems it necessary at any stage of the proceedings, (a) call upon the parties to produce documents or other evidence, and (b) visit the scene connected with the dispute, and conduct such inquiries there as it may deem appropriate. Article 44 Any arbitration proceeding shall be conducted in accordance with the provisions of this Section and, except as the parties otherwise agree, in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. If any question of procedure arises which is not covered by this Section or the Arbitration Rules or any rules agreed by the parties, the Tribunal shall decide the question.
2007-2008
Règlement des différends internationaux Article 45
(1) Failure of a party to appear or to present his case shall not be deemed an admission of the other party’s assertions. (2) If a party fails to appear or to present his case at any stage of the proceedings the other party may request the Tribunal to deal with the questions submitted to it and to render an award. Before rendering an award, the Tribunal shall notify, and grant a period of grace to, the party failing to appear or to present its case, unless it is satisfied that that party does not intend to do so.
Article 46 Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counterclaims arising directly out of the subject-matter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the Centre. Article 47 Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party. SECTION 4 THE AWARD Article 48 (1) The Tribunal shall decide questions by a majority of the votes of all its members. (2) The award of the Tribunal shall be in writing and shall be signed by the members of the Tribunal who voted for it. (3) The award shall deal with every question submitted to the Tribunal, and shall state the reasons upon which it is based. (4) Any member of the Tribunal may attach his individual opinion to the award, whether he dissents from the majority or not, or a statement of his dissent. (5) The Centre shall not publish the award without the consent of the parties. Article 49 (1) The Secretary-General shall promptly dispatch certified copies of the award to the parties. The award shall be deemed to have been rendered on the date on which the certified copies were dispatched. (2) The Tribunal upon the request of a party made within 45 days after the date on which the award was rendered may after notice to the other party decide any question which it had omitted to decide in the award, and shall rectify any clerical, arithmetical or similar error in the award. Its decision shall become part of the award and shall be notified to the parties in the same manner as the award. The periods
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of time provided for under paragraph (2) of Article 51 and paragraph (2) of Article 52 shall run from the date on which the decision was rendered. SECTION 5 INTERPRETATION, REVISION AND ANNULMENT OF THE AWARD Article 50 (1) If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award by an application in writing addressed to the SecretaryGeneral. (2) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. Article 51 (1) Either party may request revision of the award by an application in writing addressed to the Secretary-General on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant’s ignorance of that fact was not due to negligence. (2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered. (3) The request shall, if possible, be submitted to the Tribunal which rendered the award. If this shall not be possible, a new Tribunal shall be constituted in accordance with Section 2 of this Chapter. (4) The Tribunal may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Tribunal rules on such request. Article 52 (1) Either party may request annulment of the award by an application in writing addressed to the Secretary-General on one or more of the following grounds: (a) that the Tribunal was not properly constituted; (b) that the Tribunal has manifestly exceeded its powers; (c) that there was corruption on the part of a member of the Tribunal; (d) that there has been a serious departure from a fundamental rule of procedure; or (e) that the award has failed to state the reasons on which it is based.
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Règlement des différends internationaux
(2) The application shall be made within 120 days after the date on which the award was rendered except that when annulment is requested on the ground of corruption such application shall be made within 120 days after discovery of the corruption and in any event within three years after the date on which the award was rendered. (3) On receipt of the request the Chairman shall forthwith appoint from the Panel of Arbitrators an ad hoc Committee of three persons. None of the members of the Committee shall have been a member of the Tribunal which rendered the award, shall be of the same nationality as any such member, shall be a national of the State party to the dispute or of the State whose national is a party to the dispute, shall have been designated to the Panel of Arbitrators by either of those States, or shall have acted as a conciliator in the same dispute. The Committee shall have the authority to annul the award or any part thereof on any of the grounds set forth in paragraph (1). (4) The provisions of Articles 41-45, 48, 49, 53 and 54, and of Chapters VI and VII shall apply mutatis mutandis to proceedings before the Committee. (5) The Committee may, if it considers that the circumstances so require, stay enforcement of the award pending its decision. If the applicant requests a stay of enforcement of the award in his application, enforcement shall be stayed provisionally until the Committee rules on such request. (6) If the award is annulled the dispute shall, at the request of either party, be submitted to a new Tribunal constituted in accordance with Section 2 of this Chapter. SECTION 6 RECOGNITION AND ENFORCEMENT OF THE AWARD Article 53 (1) The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each party shall abide by and comply with the terms of the award except to the extent that enforcement shall have been stayed pursuant to the relevant provisions of this Convention. (2) For the purposes of this Section, “award” shall include any decision interpreting, revising or annulling such award pursuant to Articles 50, 51 or 52. Article 54 (1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
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(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation. (3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought. Article 55 Nothing in Article 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution. CHAPTER V REPLACEMENT AND DISQUALIFICATION OF CONCILIATORS AND ARBITRATORS Article 56 (1) After a Commission or a Tribunal has been constituted and proceedings have begun, its composition shall remain unchanged; provided, however, that if a conciliator or an arbitrator should die, become incapacitated, or resign, the resulting vacancy shall be filled in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV. (2) A member of a Commission or Tribunal shall continue to serve in that capacity notwithstanding that he shall have ceased to be a member of the Panel. (3) If a conciliator or arbitrator appointed by a party shall have resigned without the consent of the Commission or Tribunal of which he was a member, the Chairman shall appoint a person from the appropriate Panel to fill the resulting vacancy. Article 57 A party may propose to a Commission or Tribunal the disqualification of any of its members on account of any fact indicating a manifest lack of the qualities required by paragraph (1) of Article 14. A party to arbitration proceedings may, in addition, propose the disqualification of an arbitrator on the ground that he was ineligible for appointment to the Tribunal under Section 2 of Chapter IV. Article 58 The decision on any proposal to disqualify a conciliator or arbitrator shall be taken by the other members of the Commission or Tribunal as the case may be, provided that where those members are equally divided, or in the case of a proposal to disqualify a sole conciliator or arbitrator, or a majority of the conciliators or arbitrators, the Chairman shall take that decision. If it is decided that the proposal is well-founded the conciliator or arbitrator to whom the decision relates shall be replaced in accordance with the provisions of Section 2 of Chapter III or Section 2 of Chapter IV.
2007-2008
Règlement des différends internationaux CHAPTER VI COST OF PROCEEDINGS Article 59
The charges payable by the parties for the use of the facilities of the Centre shall be determined by the Secretary-General in accordance with the regulations adopted by the Administrative Council. Article 60 (1) Each Commission and each Tribunal shall determine the fees and expenses of its members within limits established from time to time by the Administrative Council and after consultation with the Secretary-General. (2) Nothing in paragraph (1) of this Article shall preclude the parties from agreeing in advance with the Commission or Tribunal concerned upon the fees and expenses of its members. Article 61 (1) In the case of conciliation proceedings the fees and expenses of members of the Commission as well as the charges for the use of the facilities of the Centre, shall be borne equally by the parties. Each party shall bear any other expenses it incurs in connection with the proceedings. (2) In the case of arbitration proceedings the Tribunal shall, except as the parties otherwise agree, assess the expenses incurred by the parties in connection with the proceedings, and shall decide how and by whom those expenses, the fees and expenses of the members of the Tribunal and the charges for the use of the facilities of the Centre shall be paid. Such decision shall form part of the award. CHAPTER VII PLACE OF PROCEEDINGS Article 62 Conciliation and arbitration proceedings shall be held at the seat of the Centre except as hereinafter provided. Article 63 Conciliation and arbitration proceedings may be held, if the parties so agree, (a) at the seat of the Permanent Court of Arbitration or of any other appropriate institution, whether private or public, with which the Centre may make arrangements for that purpose; or (b) at any other place approved by the Commission or Tribunal after consultation with the Secretary-General.
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DISPUTES BETWEEN CONTRACTING STATES Article 64 Any dispute arising between Contracting States concerning the interpretation or application of this Convention which is not settled by negotiation shall be referred to the International Court of Justice by the application of any party to such dispute, unless the States concerned agree to another method of settlement. CHAPTER IX AMENDMENT Article 65 Any Contracting State may propose amendment of this Convention. The text of a proposed amendment shall be communicated to the Secretary-General not less than 90 days prior to the meeting of the Administrative Council at which such amendment is to be considered and shall forthwith be transmitted by him to all the members of the Administrative Council. Article 66 (1) If the Administrative Council shall so decide by a majority of two-thirds of its members, the proposed amendment shall be circulated to all Contracting States for ratification, acceptance or approval. Each amendment shall enter into force 30 days after dispatch by the depositary of this Convention of a notification to Contracting States that all Contracting States have ratified, accepted or approved the amendment. (2) No amendment shall affect the rights and obligations under this Convention of any Contracting State or of any of its constituent subdivisions or agencies, or of any national of such State arising out of consent to the jurisdiction of the Centre given before the date of entry into force of the amendment. CHAPTER X FINAL PROVISIONS Article 67 This Convention shall be open for signature on behalf of States members of the Bank. It shall also be open for signature on behalf of any other State which is a party to the Statute of the International Court of Justice and which the Administrative Council, by a vote of two-thirds of its members, shall have invited to sign the Convention. Article 68 (1) This Convention shall be subject to ratification, acceptance or approval by the signatory States in accordance with their respective constitutional procedures. (2) This Convention shall enter into force 30 days after the date of deposit of the twentieth instrument of ratification, acceptance or approval. It shall enter into force for each State which subsequently deposits its instrument of ratification, acceptance or approval 30 days after the date of such deposit.
2007-2008
Règlement des différends internationaux Article 69
Each Contracting State shall take such legislative or other measures as may be necessary for making the provisions of this Convention effective in its territories. Article 70 This Convention shall apply to all territories for whose international relations a Contracting State is responsible, except those which are excluded by such State by written notice to the depositary of this Convention either at the time of ratification, acceptance or approval or subsequently. Article 71 Any Contracting State may denounce this Convention by written notice to the depositary of this Convention. The denunciation shall take effect six months after receipt of such notice. Article 72 Notice by a Contracting State pursuant to Articles 70 or 71 shall not affect the rights or obligations under this Convention of that State or of any of its constituent subdivisions or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice was received by the depositary. Article 73 Instruments of ratification, acceptance or approval of this Convention and of amendments thereto shall be deposited with the Bank which shall act as the depositary of this Convention. The depositary shall transmit certified copies of this Convention to States members of the Bank and to any other State invited to sign the Convention. Article 74 The depositary shall register this Convention with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations and the Regulations thereunder adopted by the General Assembly. Article 75 The depositary shall notify all signatory States of the following: (a) signatures in accordance with Article 67; (b) deposits of instruments of ratification, acceptance and approval in accordance with Article 73; (c) the date on which this Convention enters into force in accordance with Article 68; (d) exclusions from territorial application pursuant to Article 70; (e) the date on which any amendment of this Convention enters into force in accordance with Article 66; and (f) denunciations in accordance with Article 71.
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DONE at Washington, in the English, French and Spanish languages, all three texts being equally authentic, in a single copy which shall remain deposited in the archives of the International Bank for Reconstruction and Development, which has indicated by its signature below its agreement to fulfil the functions with which it is charged under this Convention.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 30 An Act to amend the Canadian Human Rights Act
ASSENTED TO 18th JUNE, 2008 BILL C-21
SUMMARY This enactment repeals section 67 of the Canadian Human Rights Act and provides for a statutory review, within five years after the enactment receives royal assent, of the effects of the repeal. It also contains interpretative provisions as well as transitional provisions with respect to aboriginal authorities.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 30 An Act to amend the Canadian Human Rights Act [Assented to 18th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. H-6
CANADIAN HUMAN RIGHTS ACT 1. Section 67 of the Canadian Human Rights Act is repealed.
Aboriginal rights
1.1 For greater certainty, the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Regard to legal traditions and customary laws
1.2 In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.
C. 30
Canadian Hu REVIEW AND REPORT
Comprehensive review
2. (1) Within five years after the day on which this Act receives royal assent, a comprehensive review of the effects of the repeal of section 67 of the Canadian Human Rights Act shall be jointly undertaken by the Government of Canada and any organizations identified by the Minister of Indian Affairs and Northern Development as being, in the aggregate, representative of the interests of First Nations peoples throughout Canada.
Report
(2) A report on the review referred to in subsection (1) shall be submitted to both Houses of Parliament within one year after the day on which the review is undertaken under that subsection. TRANSITIONAL PROVISIONS
Grace period
3. Despite section 1, an act or omission by any First Nation government, including a band council, tribal council or governing authority operating or administering programs or services under the Indian Act, that was made in the exercise of powers or the performance of duties and functions conferred or imposed by or under that Act shall not constitute the basis for a complaint under Part III of the Canadian Human Rights Act if it occurs within 36 months after the day on which this Act receives royal assent.
Study to be undertaken
4. The Government of Canada, together with the appropriate organizations representing the First Nations peoples of Canada, shall, within the period referred to in section 3, undertake a study to identify the extent of the preparation, capacity and fiscal and human resources that will be required in order for First Nations communities and organizations to comply with the Canadian Human Rights Act. The Government of Canada shall report to both Houses of Parliament on the findings of that study before the expiration of the period referred to in section 3.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 18 An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments)
ASSENTED TO 29th MAY, 2008 BILL C-13
SUMMARY This enactment amends various provisions of the Criminal Code in relation to criminal procedure, language of the accused, sentencing and other matters. The amendments respecting criminal procedure provide for, among other things, (a) the use of a means of telecommunication to forward warrants for the purpose of endorsement; (b) changes to the process with respect to the challenge of jurors; (c) a new election for the accused where a preferred indictment has been filed against him or her or where the Supreme Court of Canada orders a new trial; (d) an appeal of a superior court order with respect to things seized lying with the court of appeal; (e) summary dismissal by a single judge of the court of appeal when an appeal has erroneously been filed with that court; and (f) a summary conviction trial with respect to co-accused that can proceed where one of the co-accused does not appear. The amendments respecting the language of the accused clarify the application of provisions related to that matter. The amendments respecting sentencing provide for, among other things, (a) clarifications with respect to the application of impaired driving penalties; (b) the power to order an offender not to communicate with identified persons while in custody and the creation of an offence for failing to comply with the order; (c) the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program; (d) an increase of the maximum fine that can be imposed for a summary conviction offence to $5,000 and a change with respect to the calculation of the period of imprisonment to be imposed in default of payment of a fine; (e) the suspension of a conditional sentence order or a probation order during an appeal; (f) in the case of a person serving a youth sentence who receives an adult sentence, clarification that the remaining portion of the youth sentence is converted to an adult sentence; and (g) the power of a court to order, on application by the Attorney General and after convicting a person of the offence of luring a child by means of a computer system, the forfeiture of things used in relation to that offence.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
The enactment amends the description of the offence of conveying information on betting and book-making so that the offence encompasses the conveying of that information by any means and makes related changes to the exemption provided with respect to the use of a pari-mutuel system. Finally, amendments are also made to reclassify the offence of possession of break and enter instruments into a dual procedure offence.
56-57 ELIZABETH II —————— CHAPTER 18 An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) [Assented to 29th May, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-46
CRIMINAL CODE
1997, c. 18, s. 2
1. Subsection 4(7) of the Criminal Code is replaced by the following:
Proof of service in accordance with provincial laws
(6.1) Despite subsection (6), the service of documents may be proved in accordance with the laws of a province relating to offences created by the laws of that province.
Attendance for examination
(7) Despite subsection (6) or (6.1), the court may require the person who appears to have signed an affidavit, a solemn declaration or a statement in accordance with that subsection to appear before it for examination or crossexamination in respect of the issue of proof of service or of the giving or sending of any notice.
1995, c. 39, s. 139
2. Subsections 117.13(4) and (5) of the Act are repealed.
1994, c. 44, s. 8(1)
3. The portion of subsection 145(3) of the Act before paragraph (a) is replaced by the following:
Failure to comply with condition of undertaking or recognizance
(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to
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comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of
2002, c. 13, s. 7
4. The portion of subsection 164.2(1) of the Act before paragraph (a) is replaced by the following:
Forfeiture of things used for child pornography
164.2 (1) On application of the Attorney General, a court that convicts a person of an offence under section 163.1 or 172.1, in addition to any other punishment that it may impose, may order that any thing — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing 5. Paragraph 202(1)(i) of the Act is replaced by the following: (i) wilfully and knowingly sends, transmits, delivers or receives any message that conveys any information relating to book-making, pool-selling, betting or wagering, or that is intended to assist in book-making, poolselling, betting or wagering; or
1989, c. 2, s. 1(1)
6. Subsection 204(2) of the Act is replaced by the following:
Presumption
(2) For the purposes of paragraph (1)(c), bets made, in accordance with the regulations, in a betting theatre referred to in paragraph (8)(e), or by any means of telecommunication to the racecourse of an association or to such a betting theatre, are deemed to be made on the racecourse of the association. 7. Section 255 of the Act is amended by adding the following after subsection (3):
Interpretation
(3.1) For greater certainty, every one who is liable to the punishment described in subsection (2) or (3) is also liable to the minimum punishment described in paragraph (1)(a).
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2001, c. 37, s. 1
8. (1) Subsections 259(1.1) to (1.4) of the Act are replaced by the following:
Alcohol ignition interlock device program
(1.1) If the offender is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and complies with the conditions of the program, the offender may, subject to subsection (1.2), operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period, unless the court orders otherwise.
Minimum absolute prohibition period
(1.2) An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with an alcohol ignition interlock device until (a) the expiry of a period of (i) for a first offence, 3 months after the day on which sentence is imposed, (ii) for a second offence, 6 months after the day on which sentence is imposed, and (iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or (b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a).
R.S., c. 1 (4th Supp.), s. 18 (Sch. I, item 8)(F)
(2) Paragraph 259(2)(a) of the Act is replaced by the following: (a) during any period that the court considers proper, if the offender is sentenced to imprisonment for life in respect of that offence; (a.1) during any period that the court considers proper, plus any period to which the offender is sentenced to imprisonment, if the offender is liable to imprisonment for life in respect of that offence and if the sentence imposed is other than imprisonment for life;
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(3) Section 259 of the Act is amended by adding the following after subsection (2): Consecutive prohibition periods
(2.1) The court may, when it makes an order under this section prohibiting the operation of a motor vehicle, a vessel, an aircraft or railway equipment, as the case may be, order that the time served under that order be served consecutively to the time served under any other order made under this section that prohibits the operation of the same means of transport and that is in force.
R.S., c. 32 (4th Supp.), s. 62(3)
(4) The portion of subsection 259(4) of the Act before paragraph (a) is replaced by the following:
Operation while disqualified
(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,
R.S., c. 27 (1st Supp.), s. 48
9. Subsection 351(1) of the Act is replaced by the following:
Possession of break-in instrument
351. (1) Every one who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) is guilty of an offence punishable on summary conviction.
1996, c. 31, s. 72
10. Section 481.2 of the Act is replaced by the following:
Offence outside Canada
481.2 Subject to this or any other Act of Parliament, where an act or omission is committed outside Canada and the act or omission is an offence when committed outside
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Code criminel (procédure pé Canada under this or any other Act of Parliament, proceedings in respect of the offence may, whether or not the accused is in Canada, be commenced, and an accused may be charged, tried and punished within any territorial division in Canada in the same manner as if the offence had been committed in that territorial division. 11. (1) Subsection 487(2) of the Act is replaced by the following:
Endorsement of search warrant
(2) If the building, receptacle or place is in another territorial division, the justice may issue the warrant with any modifications that the circumstances require, and it may be executed in the other territorial division after it has been endorsed, in Form 28, by a justice who has jurisdiction in that territorial division. The endorsement may be made on the original of the warrant or on a copy of the warrant transmitted by any means of telecommunication.
1999, c. 5, s. 16(2)
(2) Subsection 487(4) of the Act is replaced by the following:
Effect of endorsement
(4) An endorsement that is made in accordance with subsection (2) is sufficient authority to the peace officers or public officers to whom the warrant was originally directed, and to all peace officers within the jurisdiction of the justice by whom it is endorsed, to execute the warrant and to deal with the things seized in accordance with section 489.1 or as otherwise provided by law.
1995, c. 27, s. 1; 2000, c. 10, s. 13
12. Subsection 487.03(1) of the Act is replaced by the following:
Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
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Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
1998, c. 37, s. 17
13. Subsection 487.055(6) of the Act is repealed.
1994, c. 44, s. 38(8)
14. Subsection 490(17) of the Act is replaced by the following:
Appeal
(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order
Criminal Code (criminal proc
(a) to the court of appeal as defined in section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 apply with any modifications that the circumstances require; or (b) to the appeal court as defined in section 812 in any other case, in which case sections 813 to 828 apply with any modifications that the circumstances require. R.S., c. 27 (1st Supp.), s. 76(2)
15. Subsection 501(5) of the Act is repealed. 16. Section 507.1 of the Act is amended by adding the following after subsection (10):
Meaning of “Attorney General”
(11) In this section, “Attorney General” includes the Attorney General of Canada and his or her lawful deputy in respect of proceedings that could have been commenced at the instance of the Government of Canada and conducted by or on behalf of that Government.
1997, c. 18, s. 59(1)
17. Subsection 509(3) of the Act is repealed.
R.S., c. 27 (1st Supp.), s. 203
18. (1) Subsection 530(3) of the Act is replaced by the following:
Accused to be advised of right
(3) The justice of the peace or provincial court judge before whom an accused first appears shall ensure that they are advised of
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R.S., c. 27 (1st Supp.), s. 203
(2) Subsection 530(5) of the Act is replaced by the following:
Variation of order
(5) An order under this section that a trial be held in one of the official languages of Canada may, if the circumstances warrant, be varied by the court to require that it be held in both official languages of Canada, and vice versa.
Circumstances warranting order directing trial in both official languages
(6) The facts that two or more accused who are to be tried together are each entitled to be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak one of the official languages of Canada and that those official languages are different may constitute circumstances that warrant that an order be granted directing that they be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages of Canada. 19. The Act is amended by adding the following after section 530:
Translation of documents
530.01 (1) If an order is granted under section 530, a prosecutor — other than a private prosecutor — shall, on application by the accused, (a) cause the portions of an information or indictment against the accused that are in an official language that is not that of the accused or that in which the accused can best give testimony to be translated into the other official language; and (b) provide the accused with a written copy of the translated text at the earliest possible time.
Original version prevails
(2) In the case of a discrepancy between the original version of a document and the translated text, the original version shall prevail.
R.S., c. 31 (4th Supp.), s. 94
20. (1) The portion of section 530.1 of the Act before paragraph (a) is replaced by the following:
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If order granted
530.1 If an order is granted under section 530,
R.S., c. 31 (4th Supp.), s. 94
(2) Paragraphs 530.1(d) and (e) of the Act are replaced by the following:
Criminal Code (criminal proc
(c.1) the presiding justice or judge may, if the circumstances warrant, authorize the prosecutor to examine or cross-examine a witness in the official language of the witness even though it is not that of the accused or that in which the accused can best give testimony; (d) the accused has a right to have a justice presiding over the preliminary inquiry who speaks the official language of the accused or both official languages, as the case may be; (e) the accused has a right to have a prosecutor — other than a private prosecutor — who speaks the official language of the accused or both official languages, as the case may be; 21. Section 531 of the Act is replaced by the following: Language used in proceeding
530.2 (1) If an order is granted directing that an accused be tried before a justice of the peace, provincial court judge, judge or judge and jury who speak both official languages, the justice or judge presiding over a preliminary inquiry or trial may, at the start of the proceeding, make an order setting out the circumstances in which, and the extent to which, the prosecutor and the justice or judge may use each official language.
Right of the accused
(2) Any order granted under this section shall, to the extent possible, respect the right of the accused to be tried in his or her official language.
Change of venue
531. Despite any other provision of this Act but subject to any regulations made under section 533, if an order made under section 530 cannot be conveniently complied with in the territorial division in which the offence would otherwise be tried, the court shall, except if that territorial division is in the Province of New Brunswick, order that the trial of the accused be held in another territorial division in the same province.
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21.1 The Act is amended by adding the following after section 533: Review
533.1 (1) Within three years after this section comes into force, a comprehensive review of the provisions and operation of this Part shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
Report
(2) The committee referred to in subsection (1) shall, within a year after a review is undertaken under that subsection or within any further time that may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, submit a report on the review to Parliament, including a statement of any changes that the committee recommends. 22. Section 537 of the Act is amended by adding the following after subsection (1):
Section 715
(1.01) Where a justice grants a request under paragraph (1)(j.1), the Court must inform the accused that the evidence taken during his or her absence could still be admissible under section 715.
2002, c. 13, s. 41
23. Subsections 565(2) and (3) of the Act are replaced by the following:
When direct indictment preferred
(2) If an accused is to be tried after an indictment has been preferred against the accused pursuant to a consent or order given under section 577, the accused is, for the purposes of the provisions of this Part relating to election and re-election, deemed both to have elected to be tried by a court composed of a judge and jury and not to have requested a preliminary inquiry under subsection 536(4) or 536.1(3) and may re-elect to be tried by a judge without a jury without a preliminary inquiry.
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Notice of reelection
(3) Where an accused wishes to re-elect under subsection (2), the accused shall give notice in writing that he wishes to re-elect to a judge or clerk of the court where the indictment has been filed or preferred who shall, on receipt of the notice, notify a judge having jurisdiction or clerk of the court by which the accused wishes to be tried of the accused’s intention to re-elect and send to that judge or clerk the indictment and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, any summons or warrant issued under section 578, or any evidence taken before a coroner, that is in the possession of the first-mentioned judge or clerk.
2002, c. 13, s. 43
24. Section 568 of the Act is replaced by the following:
Attorney General may require trial by jury
568. Even if an accused elects under section 536 or re-elects under section 561 or subsection 565(2) to be tried by a judge or provincial court judge, as the case may be, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge or provincial court judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536(4), unless one has already been held or the reelection was made under subsection 565(2).
2002, c. 13, s. 44
24.1 Subsection 569(1) of the Act is replaced by the following:
Attorney General may require trial by jury — Nunavut
569. (1) Even if an accused elects under section 536.1 or re-elects under section 561.1 or subsection 565(2) to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under
Criminal Code (criminal proc
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Code criminel (procédure pé subsection 536.1(3), unless one has already been held or the re-election was made under subsection 565(2). 25. Section 634 of the Act is amended by adding the following after subsection (2.1):
Supplemental peremptory challenges
(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced. 26. Subsections 640(2) and (3) of the Act are replaced by the following:
Other grounds
(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.
Challenge for cause
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors — sworn and unsworn — from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
Exclusion order
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn.
If challenge not sustained, or if sustained
(3) Where the finding, pursuant to subsection (1), (2) or (2.2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.
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2005, c. 10, subpar. 34(1)(f)(xii)
27. Subsection 667(5) of the French version of the Act is replaced by the following:
Définition de « préposé aux empreintes digitales »
(5) Au présent article, « préposé aux empreintes digitales » s’entend de toute personne désignée à ce titre pour l’application du présent article par le ministre de la Sécurité publique et de la Protection civile.
1997, c. 18, s. 93(2)
28. The portion of subsection 676(1.1) of the Act before paragraph (a) is replaced by the following:
Summary conviction appeals
(1.1) The Attorney General or counsel instructed by the Attorney General may appeal, pursuant to subsection (1), with leave of the court of appeal or a judge of that court, to that court in respect of a verdict of acquittal in a summary offence proceeding or a sentence passed with respect to a summary conviction as if the summary offence proceeding was a proceeding by indictment if
R.S., c. 23 (4th Supp.), s. 5; 1995, c. 22, s. 10 (Sch. I, item 28); 1997, c. 18, s. 97(1) and par. 141(b); 1999, c. 25, s. 15
29. (1) Subsection 683(5) of the Act is replaced by the following:
Power to order suspension
(5) If an appeal or an application for leave to appeal has been filed in the court of appeal, that court, or a judge of that court, may, when the court, or the judge, considers it to be in the interests of justice, order that any of the following be suspended until the appeal has been determined:
Criminal Code (criminal proc
(a) an obligation to pay a fine; (b) an order of forfeiture or disposition of forfeited property; (c) an order to make restitution under section 738 or 739; (d) an obligation to pay a victim surcharge under section 737; (e) a probation order under section 731; and (f) a conditional sentence order under section 742.1.
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Code criminel (procédure pé (5.1) Before making an order under paragraph (5)(e) or (f), the court of appeal, or a judge of that court, may order the offender to enter into an undertaking or recognizance. (2) Section 683 of the Act is amended by adding the following after subsection (6):
Undertaking or recognizance to be taken into account
(7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and the period during which they were imposed.
30. Section 685 of the Act is renumbered as subsection 685(1) and is amended by adding the following: Summary determination of appeals filed in error
(2) If it appears to the registrar that a notice of appeal should have been filed with another court, the registrar may refer the appeal to a judge of the court of appeal for summary determination, and the judge may dismiss the appeal summarily without calling on any person to attend the hearing or to appear for the respondent on the hearing. 31. Section 695 of the Act is amended by adding the following after subsection (1):
Election if new trial
(2) Subject to subsection (3), if a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury or a provincial court judge. The election is deemed to be a re-election within the meaning of subsection 561(5) and subsections 561(5) to (7) apply to it with any modifications that the circumstances require.
Nunavut
(3) If a new trial ordered by the Supreme Court of Canada is to be held before a court composed of a judge and jury in Nunavut, the accused may, with the consent of the prosecutor, elect to have the trial heard before a judge without a jury. The election is deemed to be a
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re-election within the meaning of subsection 561.1(6) and subsections 561.1(6) to (9) apply to it with any modifications that the circumstances require. 32. Subsection 701(3) of the Act is repealed. 1997, c. 18, s. 100
33. Section 701.1 of the Act is replaced by the following:
Service in accordance with provincial laws
701.1 Despite section 701, in any province, service of a document may be made in accordance with the laws of the province relating to offences created by the laws of that province. 34. Section 715 of the Act is amended by adding the following after subsection (2):
Admission of evidence
(2.1) Despite subsections (1) and (2), evidence that has been taken at a preliminary inquiry in the absence of the accused may be admitted as evidence for the purposes referred to in those subsections if the accused was absent further to the permission of a justice granted under paragraph 537(1)(j.1). 35. Section 720 of the Act is renumbered as subsection 720(1) and is amended by adding the following:
Court-supervised programs
(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program.
1995, c. 22, s. 6
36. Subsections 729(4) and (5) of the Act are repealed.
1995, c. 22, s. 6
37. Subsection 732.1(5) of the Act is replaced by the following:
Obligations of court
(5) The court that makes a probation order shall (a) cause a copy of the order to be given to the offender;
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Code criminel (procédure pé (b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender; (c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and (d) take reasonable measures to ensure that the offender understands the order and the explanations.
For greater certainty
(6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.
1995, c. 22, s. 6; 1999, c. 5, s. 33(2)
38. Subsection 734(5) of the Act is replaced by the following:
Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of (a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which (i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and (ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and (b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.
1995, c. 22, s. 6
39. Section 734.2 of the Act is replaced by the following:
Obligations of court
734.2 (1) A court that makes an order under section 734.1 shall
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(a) cause a copy of the order to be given to the offender; (b) explain the substance of sections 734 to 734.8 and 736 to the offender; (c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and (d) take reasonable measures to ensure that the offender understands the order and the explanations. For greater certainty
(2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.
1995, c. 22, s. 6
40. Subsection 742.3(3) of the Act is replaced by the following:
Obligations of court
(3) A court that makes an order under this section shall (a) cause a copy of the order to be given to the offender; (b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender; (c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and (d) take reasonable measures to ensure that the offender understands the order and the explanations.
For greater certainty
(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.
1995, c. 22, s. 6
41. Subsections 742.6(6) and (7) of the Act are repealed. 42. The Act is amended by adding the following after section 743.2:
Noncommunication order
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence,
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Failure to comply with order
(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
2002, c. 1, s. 184
43. (1) Subsection 743.5(1) of the Act is replaced by the following:
Transfer of jurisdiction when person already sentenced under Youth Criminal Justice Act
743.5 (1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act, the remaining portion of the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.
2002, c. 1, s. 184
(2) Subsection 743.5(3) of the Act is replaced by the following:
Sentences deemed to constitute one sentence — section 743.1
(3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the Corrections and Conditional Release Act: (a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and (b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition.
R.S., c. 27 (1st Supp.), s. 171(1)
44. Subsection 787(1) of the Act is replaced by the following:
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General penalty
787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
1997, c. 18, s. 112
45. Subsections 803(2) and (3) of the Act are replaced by the following:
Non-appearance of defendant
(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court
Criminal Code (criminal proc
(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or (b) may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant. Consent of Attorney General required
(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a), no proceedings under section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with.
1994, c. 44, s. 84; 1999, c. 25, s. 25
45.1 Form 12 of the Act is replaced by the following: FORM 12 (Sections 493 and 679) UNDERTAKING GIVEN TO A JUSTICE OR A JUDGE Canada, Province of ...................., (territorial division).
2007-2008
Code criminel (procédure pé I, A.B., of ................, (occupation), understand that I have been charged that (set out briefly the offence in respect of which accused is charged). In order that I may be released from custody, I undertake to attend court on ........... day, the ................ day of ................ A.D. ........, and to attend after that as required by the court in order to be dealt with according to law (or, where date and place of appearance before court are not known at the time undertaking is given, to attend at the time and place fixed by the court and after that as required by the court in order to be dealt with according to law). (and, where applicable) I also undertake to (insert any conditions that are directed) (a) report at (state times) to (name of peace officer or other person designated); (b) remain within (designated territorial jurisdiction); (c) notify (name of peace officer or other person designated) of any change in my address, employment or occupation; (d) abstain from communicating, directly or indirectly, with (identification of victim, witness or other person) except in accordance with the following conditions: (as the justice or judge specifies); (e) deposit my passport (as the justice or judge directs); and (f) (any other reasonable conditions). I understand that failure without lawful excuse to attend court in accordance with this undertaking is an offence under subsection 145(2) of the Criminal Code. Subsections 145(2) and (3) of the Criminal Code state as follows: “(2) Every one who, (a) being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
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Criminal Code (criminal proc
(b) having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge, or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction. (3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.” Dated this ................ day of ................ A.D. ........, at ................ . ..................................... (Signature of accused)
Bill C-2
45.2 (1) If Bill C-2, introduced in the 2nd session of the 39th Parliament and entitled the Tackling Violent Crime Act (the “other Act”), receives royal assent, then subsections (2) to (4) apply.
2007-2008
Code criminel (procédure pé (2) If subsection 21(3) of the other Act comes into force before section 7 of this Act, that section 7 is replaced by the following: 7. Section 255 of the Act is amended by adding the following after subsection (3.2):
Interpretation
(3.3) For greater certainty, everyone who is liable to the punishment described in any of subsections (2) to (3.2) is also liable to the minimum punishment described in paragraph (1)(a). (3) If subsection 21(3) of the other Act comes into force on the same day as section 7 of this Act, then that subsection 21(3) is deemed to have come into force before that section 7 and subsection (2) applies as a consequence. COMING INTO FORCE
Order in council
46. Sections 7, 8, 18 to 21.1, 29, 35, 37 to 40, 42 and 44 come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 19 An Act to establish a Ukrainian Famine and Genocide (“Holodomor”) Memorial Day and to recognize the Ukrainian Famine of 1932-33 as an act of genocide
ASSENTED TO 29th MAY, 2008 BILL C-459
SUMMARY This enactment designates the fourth Saturday in November in each and every year as “Ukrainian Famine and Genocide (“Holodomor”) Memorial Day”.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 19 An Act to establish a Ukrainian Famine and Genocide (“Holodomor”) Memorial Day and to recognize the Ukrainian Famine of 1932-33 as an act of genocide
[Assented to 29th May, 2008] Preamble
WHEREAS the Ukrainian Famine and Genocide of 1932-33 known as the Holodomor was deliberately planned and executed by the Soviet regime under Joseph Stalin to systematically destroy the Ukrainian people’s aspirations for a free and independent Ukraine, and subsequently caused the death of millions of Ukrainians in 1932 and 1933; WHEREAS that forced collectivization by the Soviet regime under Joseph Stalin also caused the death of millions of other ethnic minorities within the former Soviet Union; WHEREAS 2007-08 marks the 75th anniversary of the Ukrainian Famine and Genocide of 1932-33; WHEREAS on November 26, 1998, the President of Ukraine issued a Presidential Decree establishing that the fourth Saturday in November be recognized as a National Day of Remembrance for the victims of this mass atrocity; WHEREAS on June 19, 2003, the Senate of Canada unanimously adopted a motion calling on the Government of Canada to recognize the Ukrainian Famine of 1932-33 as an act of genocide;
C. 19
Ukrainian Famine and Genocide
WHEREAS on November 28, 2006, Ukraine’s Parliament voted to recognize the Ukrainian Famine of 1932-33 as an act of genocide against the Ukrainian people; WHEREAS the parliaments of Argentina, Austria, Estonia, Georgia, Hungary, Lithuania, Poland and the United States of America and the senates of Australia and Canada have recognized the forced Ukrainian Famine of 1932-33 as a genocide against the Ukrainian people; WHEREAS the fourth Saturday in November has been recognized by Ukrainian communities throughout the world as a day to remember the victims of the Ukrainian Famine and Genocide of 1932-33 and to promote the fundamental freedoms of a democratic society; WHEREAS it is recognized that information about the Ukrainian Famine and Genocide of 1932-33 was suppressed, distorted or destroyed by Soviet authorities; WHEREAS it is only now that truthful and accurate information is emerging from the former Soviet Union about the Ukrainian Famine and Genocide of 1932-33; WHEREAS many survivors of the Ukrainian Famine and Genocide of 1932-33 have immigrated to Canada and have made a positive contribution to Canadian society; WHEREAS Canada, as a party to the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, condemns all genocides; AND WHEREAS Canadians cherish democracy, defend human rights, and value the diversity and multicultural nature of Canadian society; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Ukrainian Famine and Genocide (“Holodomor”) Memorial Day Act.
2007-2008
Jour commémoratif de la famine et du g UKRAINIAN FAMINE AND GENOCIDE (“HOLODOMOR”) MEMORIAL DAY
Ukrainian Famine and Genocide (“Holodomor”) Memorial Day
2. Throughout Canada, in each and every year, the fourth Saturday in November shall be known as “Ukrainian Famine and Genocide (“Holodomor”) Memorial Day”.
Not a legal holiday
3. For greater certainty, Ukrainian Famine and Genocide (“Holodomor”) Memorial Day is not a legal holiday or a non-juridical day.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 31 An Act to amend the Canadian Environmental Protection Act, 1999
ASSENTED TO 26th JUNE, 2008 BILL C-33
SUMMARY This enactment amends the Canadian Environmental Protection Act, 1999 to provide for the efficient regulation of fuels. It also provides for a periodic and comprehensive review of the environmental and economic aspects of biofuel production in Canada by a committee of Parliament.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 31 An Act to amend the Canadian Environmental Protection Act, 1999 [Assented to 26th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1999, c. 33
CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 1. Subsection 139(2) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Exceptions
(2) A person does not contravene subsection (1) if (a) the fuel is in transit through Canada, from a place outside Canada to another place outside Canada, and there is written evidence establishing that the fuel is in transit; (b) subject to the regulations, the fuel is produced or sold for export and there is written evidence establishing that the fuel will be exported; (c) subject to the regulations, the fuel is being produced or imported and there is written evidence establishing that the fuel will meet the requirements of subsection (1) before the fuel is used or sold; (d) subject to the regulations, the fuel is being imported in a fuel tank that supplies the engine of a conveyance that is used for transportation by water, land or air; or
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Environmental P
(e) that person is exempted from the application of that subsection by a regulation made under subsection 140(3). 2. (1) The portion of subsection 140(1) of the Act before paragraph (a) is replaced by the following: Regulations
140. (1) The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes of section 139 and may make regulations respecting (2) Subsection 140(1) of the Act is amended by adding the following after paragraph (c): (c.1) the blending of fuels; (3) Paragraph 140(1)(e) of the Act is replaced by the following: (e) the keeping of books and records by persons who produce, sell or import fuel or blend fuels; (4) The portion of paragraph 140(1)(g) of the Act before subparagraph (i) is replaced by the following: (g) the submission by persons who produce, sell or import fuel or blend fuels of information regarding (5) Subparagraph 140(1)(g)(iii) of the Act is replaced by the following: (iii) the adverse effects from the use of the fuel, or any additive contained in the fuel, on the environment, on human life or health, on combustion technology and on emission control equipment, and (6) Subsection 140(1) of the Act is amended by striking out the word “and” at the end of paragraph (i), by adding the word “and” at the end of paragraph (j) and by adding the following after paragraph (j): (k) the submission of reports on the quantity of fuel produced, imported or sold for export. (7) Subsection 140(3) of the Act is replaced by the following:
2007-2008 Exemption
Protection de l’env (3) The Governor in Council may, on the recommendation of the Minister, make regulations exempting from the application of subsection 139(1) any producer or importer in respect of any fuel that they produce or import in quantities of less than 400 m3 per year. (8) Section 140 of the Act is amended by adding the following after subsection (5):
Review
(6) Within one year after this subsection comes into force and every two years thereafter, a comprehensive review of the environmental and economic aspects of biofuel production in Canada should be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be, for that purpose.
Report
(7) The committee referred to in subsection (6) should, within one year after a review is undertaken pursuant to that subsection, submit a report on the review to Parliament, including a statement of any recommendations that the committee makes in respect of biofuel production in Canada. 3. Section 146 of the Act is repealed. 4. Paragraph 218(1)(b) of the Act is replaced by the following: (b) fuels to which this Act applies are being or have been produced or blended, or can be found, in the place; 5. Section 330 of the Act is amended by adding the following after subsection (3.1):
Variation
(3.2) Regulations made under section 93, 140, 145, 167, 177 or 326 may distinguish among any class of persons, works, undertakings, activities or substances, including fuels, that they may establish on the basis of any factor, including (a) quantities of releases; (b) production capacity;
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Environmental P
(c) technology or techniques used or manufacturing process; (d) feedstocks used; (e) in the case of works or undertakings, the date their operation commenced or the date on which any major alterations are completed; (f) the substance or fuel’s source; (g) the substance or fuel’s commercial designation; (h) the substance or fuel’s physical or chemical properties; and (i) the substance or fuel’s conditions of use or place or time of year of use. Limitation of Part 7
(3.3) Nothing in Part 7 is to be construed so as to prevent the making of regulations under Part 5. COMING INTO FORCE
Order in council
6. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 9 An Act to amend the Museums Act and to make consequential amendments to other Acts
ASSENTED TO 13th MARCH, 2008 BILL C-42
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Museums Act and to make consequential amendments to other Acts”.
SUMMARY This enactment amends the Museums Act to establish a corporation called the Canadian Museum for Human Rights and to set out its purpose, capacity and powers. It also makes consequential amendments to other Acts.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 9 An Act to amend the Museums Act and to make consequential amendments to other Acts [Assented to 13th March, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1990, c. 3
MUSEUMS ACT 1. The definition “museum material” in section 2 of the Museums Act is replaced by the following:
“museum material” « matériel de musée »
“museum material” means objects and documentary material, regardless of medium or form, of a type normally kept by a museum for reference or exhibition purposes. 2. The Act is amended by adding the following after section 15: ESTABLISHMENT OF THE CANADIAN MUSEUM FOR HUMAN RIGHTS
Establishment
15.1 (1) There is established a corporation to be called the Canadian Museum for Human Rights.
Affiliated museums
(2) The Canadian Museum for Human Rights shall include any affiliated museums that the Board of the Canadian Museum for Human Rights may, by by-law, establish with the approval of the Governor in Council. PURPOSE, CAPACITY AND POWERS OF THE CANADIAN MUSEUM FOR HUMAN RIGHTS
Purpose
15.2 The purpose of the Canadian Museum for Human Rights is to explore the subject of human rights, with special but not exclusive
C. 9
Muse
reference to Canada, in order to enhance the public’s understanding of human rights, to promote respect for others and to encourage reflection and dialogue. Capacity and powers
15.3 (1) In furtherance of its purpose, the Canadian Museum for Human Rights has, subject to this Act, the capacity of a natural person and, elsewhere than in Quebec, the rights, powers and privileges of a natural person. In particular, but without limiting the generality of the foregoing, the Canadian Museum for Human Rights may (a) collect museum material related to human rights; (b) maintain its collection by preservation, conservation or restoration or the establishment of records or documentation; (c) sell, exchange, give away, destroy or otherwise dispose of museum material in its collection and use any revenue obtained from that disposal to further its collection; (d) lend or borrow museum material on longor short-term loan; (e) organize, sponsor, arrange for or participate in travelling exhibitions, in Canada or internationally, of museum material in its collection or from other sources; (f) undertake or sponsor any research related to its purpose or to museology and communicate the results of that research; (g) provide facilities to permit qualified individuals to use or study its collection; (h) promote knowledge and disseminate information related to its purpose, throughout Canada and internationally, by any appropriate means of education and communication; (i) establish and foster links with other organizations that have a purpose similar to its own; (j) share the expertise of its staff by undertaking or sponsoring training and apprenticeship programs that relate to its purpose;
2007-2008
Mus (k) provide or arrange for professional and technical services to any other organization that has a purpose similar to its own; (l) acquire property by gift, bequest or otherwise and hold in trust or otherwise, expend, invest, administer and dispose of that property; (m) develop, operate and maintain branches or exhibition centres; (n) operate restaurants, lounges, parking facilities, shops and other facilities for the use of the public; (o) lease or otherwise make available any of its facilities to other persons; and (p) charge for goods, services and admission and use the revenue so obtained for its own purposes.
Restriction
(2) The Canadian Museum for Human Rights may not deal with property otherwise than in accordance with the terms, if any, on which it was acquired or is held. 3. (1) Subsections 23(1) and (2) of the Act are replaced by the following:
Director
23. (1) Subject to subsection (1.1), there shall be a Director of each museum who shall be appointed, with the approval of the Governor in Council, by the museum’s Board to hold office during pleasure for a term of not more than five years.
Director of the Canadian Museum for Human Rights
(1.1) The Governor in Council shall, by order, on the recommendation of the Minister, appoint the first Director of the Canadian Museum for Human Rights to hold office during pleasure for a term of not more than five years.
Reappointment
(2) The Director of each museum is eligible to be reappointed, with the approval of the Governor in Council, by the museum’s Board. (2) Subsection 23(5) of the Act is replaced by the following:
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Remuneration
(5) Subject to subsection (5.1), the Director shall be paid by the museum any remuneration that the Board, with the approval of the Governor in Council, may determine.
Remuneration — first Director of the Canadian Museum for Human Rights
(5.1) The first Director of the Canadian Museum for Human Rights shall be paid by that museum for the duration of his or her first term of office any remuneration that the Governor in Council may, by order, on the recommendation of the Minister, determine.
Muse
4. The Act is amended by adding the following before section 25: Preestablishment contracts
24.1 (1) As of the date of its establishment under this Act, each museum shall be bound by any deed, contract or agreement entered into on its behalf by the Minister before its establishment and shall be entitled to the benefits of any such deed, contract or agreement and the Minister shall cease to be bound.
Not retroactive
(2) Subsection (1) does not apply to any museum already established by this Act on the day on which that subsection comes into force. CONSEQUENTIAL AMENDMENTS
R.S., c. A-1 2004, c. 11, s. 22
ACCESS TO INFORMATION ACT 5. Paragraph 68(c) of the Access to Information Act is replaced by the following: (c) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature, the National Museum of Science and Technology or the Canadian Museum for Human Rights by or on behalf of persons or organizations other than government institutions. 6. Schedule I to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”: Canadian Museum for Human Rights Musée canadien des droits de la personne
2007-2008 R.S., c. F-11
Mus FINANCIAL ADMINISTRATION ACT 7. Part I of Schedule III to the Financial Administration Act is amended by adding the following in alphabetical order: Canadian Museum for Human Rights Musée canadien des droits de la personne
R.S., c. M-13; 2000, c. 8, s. 2
PAYMENTS IN LIEU OF TAXES ACT 8. Schedule I to the Payments in Lieu of Taxes Act is amended by adding the following in alphabetical order: Canadian Museum for Human Rights, with respect to real property or immovables that are owned by Her Majesty in right of Canada and whose administration and control are held by the Museum, whether title to the real property or immovables is vested in the name of Her Majesty or in the name of the Museum. 9. Schedule III to the Act is amended by adding the following in alphabetical order: Canadian Museum for Human Rights Musée canadien des droits de la personne
R.S., c. P-21
2004, c. 11, s. 39
PRIVACY ACT 10. Paragraph 69(1)(b) of the Privacy Act is replaced by the following: (b) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of Civilization, the Canadian Museum of Nature, the National Museum of Science and Technology or the Canadian Museum for Human Rights by or on behalf of persons or organizations other than government institutions. 11. The schedule to the Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”:
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Muse
Canadian Museum for Human Rights Musée canadien des droits de la personne 1991, c. 30
PUBLIC SECTOR COMPENSATION ACT 12. Schedule II to the Public Sector Compensation Act is amended by adding the following in alphabetical order: Canadian Museum for Human Rights Musée canadien des droits de la personne
R.S., c. P-36
PUBLIC SERVICE SUPERANNUATION ACT 13. Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Canadian Museum for Human Rights Musée canadien des droits de la personne COMING INTO FORCE
Order in council
14. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 33 An Act to require the development and implementation of a Federal Sustainable Development Strategy and the development of goals and targets with respect to sustainable development in Canada, and to make consequential amendments to another Act
ASSENTED TO 26th JUNE, 2008 BILL C-474
SUMMARY This enactment provides the legal framework for developing and implementing a Federal Sustainable Development Strategy that will make environmental decision-making more transparent and accountable to Parliament. The enactment gives a committee of the Queen’s Privy Council for Canada responsibility for overseeing the development and implementation of the Federal Sustainable Development Strategy. It also provides for the creation of the Sustainable Development Office to develop and maintain systems and procedures to monitor progress on implementation of the Strategy and for the creation of the Sustainable Development Advisory Council to offer the Government of Canada advice on the Strategy. It requires certain departments and agencies to develop and implement sustainable development strategies that contain objectives and action plans for each department and agency, that comply with the Federal Sustainable Development Strategy and that contribute to the attainment of the Strategy’s objectives. It also amends the Auditor General Act to give the Commissioner the mission to monitor the progress that these departments and agencies make in implementing the Federal Sustainable Development Strategy and to assess the Sustainable Development Office’s report of the implementation of the Strategy. As well, it sets out the Commissioner’s powers and obligations.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 33 An Act to require the development and implementation of a Federal Sustainable Development Strategy and the development of goals and targets with respect to sustainable development in Canada, and to make consequential amendments to another Act [Assented to 26th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Federal Sustainable Development Act. INTERPRETATION
Definitions
“Commissioner” « commissaire »
“Minister” « ministre »
“precautionary principle” « principe de la prudence »
“sustainability” « durabilité »
2. The following definitions apply in this Act. “Commissioner” means the Commissioner of the Environment and Sustainable Development appointed under subsection 15.1(1) of the Auditor General Act. “Minister” means the Minister of the Environment. “precautionary principle” means the principle that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. “sustainability” means the capacity of a thing, action, activity, or process to be maintained indefinitely.
2 “sustainable development” « développement durable »
“target” « cible »
C. 33
Federal Sustaina
“sustainable development” means development that meets the needs of the present without compromising the ability of future generations to meet their own needs. “target” means a measurable objective.
PURPOSE Purpose
3. The purpose of this Act is to provide the legal framework for developing and implementing a Federal Sustainable Development Strategy that will make environmental decision-making more transparent and accountable to Parliament.
HER MAJESTY Application
4. This Act and the regulations are binding on Her Majesty in right of Canada. BASIC PRINCIPLE
Basic principle of sustainable development
5. The Government of Canada accepts the basic principle that sustainable development is based on an ecologically efficient use of natural, social and economic resources and acknowledges the need to integrate environmental, economic and social factors in the making of all decisions by government. COMMITTEE
Committee on Sustainable Development
6. A committee of the Queen’s Privy Council for Canada, consisting of a Chairperson and other members of the Queen’s Privy Council for Canada, shall have oversight of the development and implementation of the Federal Sustainable Development Strategy. OFFICE
Sustainable Development Office
7. (1) The Minister shall establish a Sustainable Development Office within the Department of the Environment to develop and maintain systems and procedures to monitor progress on implementation of the Federal Sustainable Development Strategy.
2007-2008 Report
Développem (2) The Office shall, at least once every three years after the day on which this Act comes into force, provide the Minister with a report on the progress of the federal government in implementing the Federal Sustainable Development Strategy. The Minister shall cause the report to be laid before the House of Commons on any of the first 15 days on which that House is sitting after the Minister receives it. SUSTAINABLE DEVELOPMENT ADVISORY COUNCIL
Sustainable Development Advisory Council
8. (1) The Minister shall appoint a Sustainable Development Advisory Council composed of one representative from each province and territory, and three representatives from each of the following: (a) Aboriginal peoples; (b) environmental non-governmental organizations; (c) organizations representative of business; and (d) organizations representative of labour.
Chair
(2) The Minister is the chair of the Sustainable Development Advisory Council.
Remuneration
(3) The representatives appointed to the Sustainable Development Advisory Council shall hold office without remuneration and shall not be reimbursed for expenses incurred in the course of their duties. FEDERAL SUSTAINABLE DEVELOPMENT STRATEGY
Preparation
9. (1) Within two years after this Act comes into force and within every three-year period after that, the Minister shall develop, in accordance with this section, a Federal Sustainable Development Strategy based on the precautionary principle.
Content
(2) The Federal Sustainable Development Strategy shall set out federal sustainable development goals and targets and an implementation strategy for meeting each target and identify the minister responsible for meeting each target.
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Consultation: first draft
(3) The Minister shall submit a draft of the Federal Sustainable Development Strategy to the Sustainable Development Advisory Council, the standing committee of the House of Commons that normally considers matters relating to the environment or to any other committee that the House may designate for the purpose of this section and the public for review and comment, for which the Minister shall allow a period of not less than 120 days.
Consultation: first draft
(4) The Minister shall at the same time submit the draft of the Federal Sustainable Development Strategy to the Commissioner for review and comment as to whether the targets and implementation strategies can be assessed, for which the Minister shall allow a period of not less than 120 days.
Submission to Governor in Council
10. (1) The Minister shall, within the period referred to in subsection 9(1), submit the Federal Sustainable Development Strategy to the Governor in Council for approval as the official Federal Sustainable Development Strategy.
Tabling in each House of Parliament
(2) The Minister shall table the official Federal Sustainable Development Strategy in each House of Parliament within the period referred to in subsection 9(1) or on any of the first 15 days thereafter on which that House is sitting.
Deemed referred to appropriate committee
(3) A Federal Sustainable Development Strategy that is tabled in the House of Commons is deemed to be referred to the standing committee of the House that normally considers matters relating to the environment or to any other committee that the House may designate for the purposes of this section.
Sustainable development strategies of departments and agencies
11. (1) Each Minister presiding over a department named in Schedule I to the Financial Administration Act, or an agency named in the schedule of this Act shall cause the department or agency to prepare a sustainable development strategy containing objectives and plans for the department or agency that complies with and contributes to the Federal Sustainable Development Strategy, appropriate to the department or agency’s mandate and shall
Federal Sustaina
2007-2008
Développem cause the strategy to be laid before the House of Commons within one year after the Federal Sustainable Development Strategy is tabled in that House under section 10.
Updating and tabling
(2) A minister to whom subsection (1) applies shall cause the department’s sustainable development strategy to be updated at least once every three years and shall cause each updated strategy to be laid before the House of Commons on any of the next 15 days on which that House is sitting after the strategy is updated.
Application to other departments and agencies
(3) The Governor in Council may, on the recommendation of a minister presiding over a department not named in Schedule I to the Financial Administration Act, or agency not named in the schedule of this Act, direct that the requirements of subsections (1) and (2) apply in respect of the department or agency.
Regulations
(4) The Governor in Council may, on the recommendation of the Minister, make regulations prescribing the form in which sustainable development strategies are to be prepared and the information required to be contained in them.
Performancebased contracts
12. Performance-based contracts with the Government of Canada shall include provisions for meeting the applicable targets referred to in the Federal Sustainable Development Strategy and the Departmental Sustainable Development Strategies. REGULATIONS
Regulations
13. The Governor in Council may make regulations for the purpose of achieving any of the goals of this Act. TRANSITIONAL PROVISION
Directions
14. The directions made under subsection 24(3) of the Auditor General Act, as this subsection read immediately before the coming into force of section 18 of this Act, remain in force and are deemed to have been made under subsection 11(3) of this Act.
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Federal Sustaina
CONSEQUENTIAL AMENDMENTS R.S., c. A-17
AUDITOR GENERAL ACT 15. (1) The definition “sustainable development strategy” in section 2 of the Auditor General Act is repealed. (2) The definition “category I department” in section 2 of the Act is replaced by the following:
“category I department” « ministère de catégorie I »
“category I department” means (a) any department named in schedule I to the Financial Administration Act; (b) any department in respect of which a direction has been made under subsection 11(3) of the Federal Sustainable Development Act; and (c) any agency set out in the schedule to the Federal Sustainable Development Act. 16. The portion of section 21.1 of the Act before paragraph (a) is replaced by the following:
Purpose
21.1 In addition to carrying out the functions referred to in subsections 23(3) and (4), the purpose of the Commissioner is to provide sustainable development monitoring and reporting on the progress of category I departments towards sustainable development, which is a continually evolving concept based on the integration of social, economic and environmental concerns, and which may be achieved by, among other things, 17. Section 23 of the Act is replaced by the following:
Duty to monitor
23. (1) The Commissioner shall make any examinations and inquiries that the Commissioner considers necessary in order to monitor (a) the extent to which category I departments have contributed to meeting the targets set out in the Federal Sustainable Development Strategy and have met the objectives, and implemented the plans, set out in their own sustainable development strategies laid before the House of Commons under section 11 of the Federal Sustainable Development Act; and
2007-2008
Développem (b) the replies by Ministers required by subsection 22(3).
Commissioner’s report
(2) The Commissioner shall, on behalf of the Auditor General, report annually to the House of Commons concerning anything that the Commissioner considers should be brought to the attention of that House in relation to environmental and other aspects of sustainable development, including (a) the extent to which category I departments have contributed to meeting the targets set out in the Federal Sustainable Development Strategy and have met the objectives, and implemented the plans, set out in their own sustainable development strategies laid before that House under section 11 of the Federal Sustainable Development Act; (b) the number of petitions recorded as required by subsection 22(1), the subjectmatter of the petitions and their status; and (c) the exercising of the authority of the Governor in Council under subsections 11(3) and (4) of the Federal Sustainable Development Act.
Duty to examine
(3) The Commissioner shall examine the report required under subsection 7(2) of the Federal Sustainable Development Act in order to assess the fairness of the information contained in the report with respect to the progress of the federal government in implementing the Federal Sustainable Development Strategy and meeting its targets.
Duty to report
(4) The Commissioner shall include in the report referred to in subsection (2) the results of any assessment conducted under subsection (3) since the last report was laid before the House of Commons under subsection (5).
Submission and tabling of report
(5) The report required by subsection (2) shall be submitted to the Speaker of the House of Commons and shall be laid before that House by the Speaker on any of the next 15 days on which that House is sitting after the Speaker receives it. 18. Section 24 of the Act is repealed.
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Federal Sustaina
19. The schedule to the Act is repealed.
2007-2008
Développement du SCHEDULE (Subsection 11(1))
Atlantic Canada Opportunities Agency Agence de promotion économique du Canada atlantique Canada Border Services Agency Agence des services frontaliers du Canada Canada Revenue Agency Agence du revenu du Canada Canadian International Development Agency Agence canadienne de développement international Economic Development Agency of Canada for the Regions of Quebec Agence de développement économique du Canada pour les régions du Québec Parks Canada Agency Agence Parcs Canada Public Health Agency of Canada Agence de la santé publique du Canada
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 27 An Act respecting a National Peacekeepers’ Day
ASSENTED TO 18th JUNE, 2008 BILL C-287
SUMMARY This enactment establishes a day to honour Canadian Forces peacekeepers.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 27 An Act respecting a National Peacekeepers’ Day [Assented to 18th June, 2008] Preamble
WHEREAS in 1956 the Minister of External Affairs, the Right Honourable Lester B. Pearson, proposed the first United Nations peacekeeping mission and, since that time, Canada has been a leader in keeping the peace around the world, with more than one hundred thousand members of the Canadian Forces participating in peacekeeping and peace support operations along with many members of Canadian police services, diplomats and civilians; WHEREAS one hundred and sixty-four Canadian Forces peacekeepers have lost their lives while keeping the peace around the world in over sixty-six missions; AND WHEREAS on August 9, 1974, nine Canadian Forces peacekeepers were killed when their plane was shot down by a surface-to-air missile while en route from Beirut to Damascus;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the National Peacekeepers’ Day Act.
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National Peac
NATIONAL PEACEKEEPERS’ DAY National Peacekeepers’ Day
2. Throughout Canada, in each and every year, the ninth day of August shall be known as “National Peacekeepers’ Day”.
Not a legal holiday
3. For greater certainty, National Peacekeepers’ Day is not a legal holiday or a nonjuridical day.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 26 An Act to amend the Judges Act
ASSENTED TO 18th JUNE, 2008 BILL C-31
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Judges Act”.
SUMMARY This enactment increases the number of judicial salaries that may be paid under paragraph 24(3)(b) of the Judges Act from thirty to fifty.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 26 An Act to amend the Judges Act [Assented to 18th June, 2008] R.S., c. J-1
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1992, c. 51, s. 7(2)
1. Paragraph 24(3)(b) of the Judges Act is replaced by the following: (b) fifty, in the case of judges appointed to superior courts in the provinces other than appeal courts.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 32 An Act to give effect to the Tsawwassen First Nation Final Agreement and to make consequential amendments to other Acts
ASSENTED TO 26th JUNE, 2008 BILL C-34
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to give effect to the Tsawwassen First Nation Final Agreement and to make consequential amendments to other Acts”.
SUMMARY This enactment gives effect to the Tsawwassen First Nation Final Agreement. It also makes consequential amendments to other Acts.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO GIVE EFFECT TO THE TSAWWASSEN FIRST NATION FINAL AGREEMENT AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
Preamble SHORT TITLE 1.
Tsawwassen First Nation Final Agreement Act
INTERPRETATION 2.
Definitions
3. Status of Agreement AGREEMENT
4. Agreement given effect
5. Inconsistency with Agreement APPROPRIATION
6. Payments out of C.R.F. LANDS
7. Fee simple estate
8. Tax Treatment Agreement given effect
9. Not a treaty
10. Powers of Minister of Fisheries and Oceans
11. Not a treaty
12. Indian Act
13. First Nations Land Management Act
14. Statutory Instruments Act
TAXATION
FISHERIES
APPLICATION OF OTHER ACTS
i APPLICATION OF LAWS OF BRITISH COLUMBIA 15.
Incorporation by reference GENERAL
16. Judicial notice of Agreements
17. Judicial notice of Tsawwassen Laws
18. Orders and regulations
19. Chapters 21 and 24 of Agreement
20. Notice of issues arising
21. Existing interests — Indian Act
22. Existing interests — First Nations Land Management Act
23. Her Majesty not liable
24. Indemnification of Tsawwassen First Nation
25. Documents in land registries
TRANSITIONAL PROVISIONS
CONSEQUENTIAL AMENDMENTS 26.
Access to Information Act
27. First Nations Land Management Act
28. Fisheries Act
29. Payments in Lieu of Taxes Act
30. Privacy Act
31. Bill C-30
32. Bill C-32
33. Order in council
COORDINATING AMENDMENTS
COMING INTO FORCE
56-57 ELIZABETH II —————— CHAPTER 32 An Act to give effect to the Tsawwassen First Nation Final Agreement and to make consequential amendments to other Acts
[Assented to 26th June, 2008]
Preamble
Whereas the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada; Whereas the Tsawwassen First Nation is part of the Coast Salish, an aboriginal people of Canada; Whereas the reconciliation between the prior presence of aboriginal peoples and the assertion of sovereignty by the Crown is of significant social and economic importance to Canadians; Whereas Canadian courts have stated that this reconciliation is best achieved through negotiation; Whereas the Tsawwassen First Nation, the government of Canada and the government of British Columbia have negotiated the Agreement to achieve this reconciliation and to establish a new relationship among them; And whereas the Agreement requires that legislation be enacted by the Parliament of Canada in order for the Agreement to be ratified; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
C. 32
Tsawwassen First Na SHORT TITLE
Short title
1. This Act may be cited as the Tsawwassen First Nation Final Agreement Act. INTERPRETATION
Definitions
“Agreement” « accord »
2. (1) The following definitions apply in this Act. “Agreement” means the Tsawwassen First Nation Final Agreement, between the Tsawwassen First Nation, Her Majesty in right of Canada and Her Majesty in right of British Columbia, including any amendments made to it.
“Tax Treatment Agreement” « accord sur le traitement fiscal »
“Tax Treatment Agreement” means the Tsawwassen Tax Treatment Agreement referred to in clause 22 of Chapter 20 of the Agreement, including any amendments made to it.
Definitions in the Agreement
(2) In this Act, “Former Tsawwassen Reserve”, “Tsawwassen Corporation”, “Tsawwassen First Nation”, “Tsawwassen Government”, “Tsawwassen Lands”, “Tsawwassen Law”, “Tsawwassen Member”, “Tsawwassen Public Institution” and “Tsawwassen Territory” have the same meanings as in Chapter 1 of the Agreement.
Status of Agreement
3. The Agreement is a treaty and a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982. AGREEMENT
Agreement given effect
4. (1) The Agreement is approved, given effect and declared valid and has the force of law.
Rights and obligations
(2) For greater certainty, any person or body has the powers, rights, privileges and benefits conferred on the person or body by the Agreement and shall perform the duties, and is subject to the liabilities, imposed on the person or body by the Agreement.
Third parties
(3) For greater certainty, the Agreement is binding on, and may be relied on by, all persons and bodies.
Inconsistency with Agreement
5. (1) The Agreement prevails over this Act and any other federal law to the extent of any inconsistency between them.
2007-2008 Conflict with Act
Accord définitif concernant la P (2) This Act prevails over any other federal law to the extent of any conflict between them. APPROPRIATION
Payments out of C.R.F.
6. There shall be paid out of the Consolidated Revenue Fund any sums that are required to meet the monetary obligations of Her Majesty in right of Canada under Chapters 4 and 18 of the Agreement. LANDS
Fee simple estate
7. On the effective date of the Agreement, the Tsawwassen First Nation owns the estate in fee simple, as set out in Chapter 4 of the Agreement, in (a) Tsawwassen Lands referred to in clause 1 of Chapter 4 of the Agreement; and (b) Other Tsawwassen Lands referred to in subclause 18.a of that chapter. TAXATION
Tax Treatment Agreement given effect
8. The Tax Treatment Agreement is approved, given effect and declared valid and has the force of law during the period that it is in effect.
Not a treaty
9. The Tax Treatment Agreement does not form part of the Agreement and is not a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982. FISHERIES
Powers of Minister of Fisheries and Oceans
10. Despite section 7 of the Fisheries Act, the Minister of Fisheries and Oceans may, on behalf of Her Majesty in right of Canada, enter into and implement the Tsawwassen First Nation Harvest Agreement referred to in clause 102 of Chapter 9 of the Agreement, including any amendments made to it.
Not a treaty
11. That Harvest Agreement does not form part of the Agreement and is not a treaty or a land claims agreement within the meaning of sections 25 and 35 of the Constitution Act, 1982.
C. 32
Tsawwassen First Na APPLICATION OF OTHER ACTS
Indian Act
First Nations Land Management Act
Exception
Statutory Instruments Act
12. Subject to the provisions of Chapter 3 of the Agreement that deal with the continuing application of the Indian Act, and clauses 16 to 21 of Chapter 20 of the Agreement, the Indian Act does not apply to the Tsawwassen First Nation, Tsawwassen Members, the Tsawwassen Government or Tsawwassen Public Institutions as of the effective date of the Agreement, except for the purpose of determining whether an individual is an Indian. 13. (1) Subject to subsection (2), the First Nations Land Management Act, the Framework Agreement as defined in subsection 2(1) of that Act and the Tsawwassen land code adopted under subsection 6(1) of that Act do not apply in respect of the Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, the Tsawwassen Government or Tsawwassen Public Institutions as of the effective date of the Agreement. (2) Any laws and bylaws of the Tsawwassen First Nation band that were in effect immediately before the effective date of the Agreement continue in effect on the Former Tsawwassen Reserve for 30 days beginning on that date. 14. Tsawwassen Laws and other instruments made under the Agreement are not statutory instruments for the purposes of the Statutory Instruments Act. APPLICATION OF LAWS OF BRITISH COLUMBIA
Incorporation by reference
15. To the extent that a law of British Columbia does not apply of its own force to the Tsawwassen First Nation, Tsawwassen Members, Tsawwassen Lands, the Tsawwassen Government, Tsawwassen Public Institutions or Tsawwassen Corporations because of the exclusive legislative jurisdiction of Parliament set out in Class 24 of section 91 of the Constitution Act, 1867, that law applies to it or to them by virtue of this section, in accordance with the Agreement and subject to this Act and any other Act of Parliament.
2007-2008
Accord définitif concernant la P GENERAL
Judicial notice of Agreements
16. (1) Judicial notice shall be taken of the Agreement and the Tax Treatment Agreement.
Publication of Agreements
(2) The Agreement and the Tax Treatment Agreement shall be published by the Queen’s Printer.
Evidence
(3) A copy of the Agreement or the Tax Treatment Agreement published by the Queen’s Printer is evidence of that agreement and of its contents, and a copy purporting to be published by the Queen’s Printer is deemed to be so published, unless the contrary is shown.
Judicial notice of Tsawwassen Laws
17. (1) Judicial notice shall be taken of Tsawwassen Laws.
Evidence of Tsawwassen laws
(2) A copy of a Tsawwassen Law purporting to be deposited in a public registry of laws referred to in subclause 16.a of Chapter 16 of the Agreement is evidence of that law and of its contents, unless the contrary is shown.
Orders and regulations
18. The Governor in Council may make any orders and regulations that are necessary for the purpose of carrying out any of the provisions of the Agreement or of the Tax Treatment Agreement.
Chapters 21 and 24 of Agreement
19. Despite subsection 4(1), Chapters 21 and 24 of the Agreement are deemed to have effect as of December 8, 2006.
Notice of issues arising
20. (1) If an issue arises in any judicial or administrative proceeding in respect of the interpretation or validity of the Agreement, or the validity or applicability of this Act, the British Columbia Tsawwassen First Nation Final Agreement Act or any Tsawwassen Law, then the issue shall not be decided until the party raising the issue has served notice on the Attorney General of Canada, the Attorney General of British Columbia and the Tsawwassen First Nation.
Content of notice
(2) The notice shall (a) describe the judicial or administrative proceeding; (b) specify what the issue arises in respect of;
C. 32
Tsawwassen First Na
(c) state the day on which the issue is to be argued; (d) give particulars necessary to show the point to be argued; and (e) be served at least 14 days before the day of argument, unless the court or tribunal authorizes a shorter period. Participation in proceedings
(3) In any judicial or administrative proceeding to which subsection (1) applies, the Attorney General of Canada, the Attorney General of British Columbia and the Tsawwassen First Nation may appear and participate in the proceeding as parties with the same rights as any other party.
Saving
(4) For greater certainty, subsections (2) and (3) do not require that an oral hearing be held if one is not otherwise required. TRANSITIONAL PROVISIONS
Existing interests — Indian Act
21. (1) Despite section 12, if an interest in land in the Former Tsawwassen Reserve was granted or approved under the Indian Act and exists on the effective date of the Agreement, the interest continues in effect in accordance with its terms and conditions unless a replacement interest is issued in accordance with Chapter 4 of the Agreement.
Transfer of rights and obligations
(2) On the effective date of the Agreement, the rights and obligations of Her Majesty in right of Canada as grantor in respect of such an interest are transferred to the Tsawwassen First Nation, which assumes those rights and obligations in accordance with the interest’s terms and conditions.
Existing interests — First Nations Land Management Act
22. Despite section 13, if an interest in land in the Former Tsawwassen Reserve was granted or approved under the First Nations Land Management Act and exists on the effective date of the Agreement, the interest continues in effect in accordance with its terms and conditions unless a replacement interest is issued in accordance with Chapter 4 of the Agreement.
Her Majesty not liable
23. (1) For greater certainty, Her Majesty in right of Canada is not liable in respect of anything done or omitted to be done after the
2007-2008
Accord définitif concernant la P effective date of the Agreement by the Tsawwassen First Nation or any person or body authorized by it to act (a) in the exercise of the Tsawwassen First Nation’s rights and obligations referred to in subsection 21(2) in respect of an interest in land referred to in subsection 21(1); or (b) in the exercise of powers, duties and functions in respect of such an interest that arise from Tsawwassen Laws.
Indemnification of Her Majesty
(2) The Tsawwassen First Nation shall indemnify Her Majesty in right of Canada for any loss suffered by Her Majesty in right of Canada as a result of an act or omission referred to in subsection (1).
Indemnification of Tsawwassen First Nation
24. For as long as the First Nations Land Management Act is in force, Her Majesty in right of Canada shall, as of the effective date of the Agreement, indemnify the Tsawwassen First Nation in respect of lands in the Former Tsawwassen Reserve in the same manner and under the same conditions as would be the case if that Act continued to apply to those lands.
Documents in land registries
25. As of the effective date of the Agreement, registrations or records affecting Tsawwassen Lands that are registered or recorded in a land registry under the Indian Act or the First Nations Land Management Act have no effect. CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
ACCESS TO INFORMATION ACT 26. Subsection 13(3) of the Access to Information Act is amended by striking out the word “or” at the end of paragraph (d), by adding the word “or’’ at the end of paragraph (e) and by adding the following after paragraph (e): (f) the Tsawwassen Government, as defined in subsection 2(2) of the Tsawwassen First Nation Final Agreement Act.
8 1999, c. 24
SOR/2003-178, s. 1
R.S., c. F-14
C. 32
Tsawwassen First Na
FIRST NATIONS LAND MANAGEMENT ACT 27. Item 24 of the schedule to the First Nations Land Management Act is repealed. FISHERIES ACT
2000, c. 7, s. 22
28. Subsection 5(4) of the Fisheries Act is replaced by the following:
Laws of certain First Nations
(4) The powers and protections that a fishery officer or fishery guardian has under this or any other Act of Parliament, including the powers and protections of a peace officer under the Criminal Code, apply to a fishery officer or fishery guardian enforcing (a) Nisga’a laws made under the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act; or (b) Tsawwassen Laws, within the meaning of subsection 2(2) of the Tsawwassen First Nation Final Agreement Act, made under chapter 9 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act.
R.S., c. M-13
PAYMENTS IN LIEU OF TAXES ACT 29. The definition “taxing authority” in subsection 2(1) of the Payments in Lieu of Taxes Act is amended by striking out the word “or” at the end of paragraph (g), by adding the word “or’’ at the end of paragraph (h) and by adding the following after paragraph (h): (i) the Tsawwassen Government, as defined in subsection 2(2) of the Tsawwassen First Nation Final Agreement Act, if it levies and collects a real property tax or a frontage or area tax in respect of Tsawwassen Lands, as defined in that subsection.
2007-2008 R.S., c. P-21
Accord définitif concernant la P PRIVACY ACT 30. Subsection 8(7) of the Privacy Act is amended by striking out the word “or” at the end of paragraph (d), by adding the word “or’’ at the end of paragraph (e) and by adding the following after paragraph (e): (f) the Tsawwassen Government, as defined in subsection 2(2) of the Tsawwassen First Nation Final Agreement Act. COORDINATING AMENDMENTS
Bill C-30
31. If Bill C-30, introduced in the 2nd session of the 39th Parliament and entitled the Specific Claims Tribunal Act, receives royal assent, then, on the first day on which both that Act and section 4 of this Act are in force, Part 1 of the schedule to that Act is amended by adding the following in alphabetical order:
Tsawwassen First Nation Final Agreement Act Loi sur l’accord définitif concernant la Première Nation de Tsawwassen Bill C-32
32. (1) Subsections (2) to (5) apply if Bill C-32, introduced in the 2nd session of the 39th Parliament and entitled the Fisheries Act, 2007 (the “other Act”), receives royal assent. (2) On the first day on which both section 29 of the other Act and section 10 of this Act are in force, that section 10 is replaced by the following:
Powers of Minister of Fisheries and Oceans
10. The Minister of Fisheries and Oceans may, on behalf of Her Majesty in right of Canada, enter into and implement the Tsawwassen First Nation Harvest Agreement referred to in clause 102 of Chapter 9 of the Agreement, including any amendments made to it. (3) On the first day on which both section 74 of the other Act and section 2 of this Act are in force, that section 74 is replaced by the following:
C. 32
Laws of certain First Nations
74. The powers and protections that a fishery officer or fishery guardian has under this or any other Act of Parliament, including the powers and protections of a peace officer under the Criminal Code, apply to a fishery officer or fishery guardian enforcing
Tsawwassen First Na
(a) Nisga’a laws made under the Fisheries Chapter of the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act; or (b) Tsawwassen Laws, within the meaning of subsection 2(2) of the Tsawwassen First Nation Final Agreement Act, made under chapter 9 of the Agreement, as defined in subsection 2(1) of that Act, given effect by that Act. (4) If the repeal of subsection 5(4) of the Fisheries Act by section 247 of the other Act comes into force before section 28 of this Act, then that section 28 is repealed. (5) If the repeal of subsection 5(4) of the Fisheries Act by section 247 of the other Act comes into force on the same day as section 28 of this Act, then that section 28 is deemed to have come into force before that repeal. COMING INTO FORCE Order in council
33. This Act, other than sections 19, 31 and 32, comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 22 An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts
ASSENTED TO 18th JUNE, 2008 BILL C-30
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts”.
SUMMARY This enactment establishes the Specific Claims Tribunal, the mandate of which is to decide issues of validity and compensation relating to specific claims of First Nations, after their submission to the Minister of Indian Affairs and Northern Development. The enactment also makes consequential amendments to other Acts and repeals the Specific Claims Resolution Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
TABLE OF PROVISIONS
AN ACT TO ESTABLISH THE SPECIFIC CLAIMS TRIBUNAL AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS Preamble SHORT TITLE 1.
Specific Claims Tribunal Act INTERPRETATION
2. Definitions PURPOSE AND APPLICATION OF ACT
3. Purpose
4. Inconsistency or conflict
5. Application SPECIFIC CLAIMS TRIBUNAL ESTABLISHMENT
6. Tribunal
7. Tenure
8. Role of Chairperson
9. Acting after termination of appointment ADMINISTRATION OF THE TRIBUNAL
10. Registry
11. Functions
12. Rules of the Tribunal
13. Powers of the Tribunal
FUNCTIONS, POWERS AND DUTIES
SPECIFIC CLAIMS 14.
Grounds of a specific claim
15. Exceptions
16. Filing a specific claim HEARINGS AND DECISIONS
17. Application to strike
i 18.
Hearing and decision
19. Limitation
20. Basis and limitations for decision on compensation
21. Unlawful disposition
22. Notice to others
23. Restriction
24. Party status of a First Nation
25. Intervention by persons affected
26. Conduct of hearings
27. Public hearings
28. Right to cross-examine
29. Defences of Crown
30. Withdrawal
31. Evidence not admissible in other proceedings
32. Advance notice of decision on compensation
33. Written reasons and publication
34. Judicial review
35. Release and indemnity
36. Payment of award
37. Abandoned specific claim
38. Public documents GENERAL REGULATIONS
39. Regulations ANNUAL REPORT
40. Annual report REVIEW AND REPORT
41. Review TRANSITIONAL PROVISIONS
42. Existing claims
43. Previous decision not to negotiate CONSEQUENTIAL AMENDMENTS
44-45. 46. 47-49. 50.
Access to Information Act Federal Courts Act Financial Administration Act Privacy Act
ii 51.
Public Service Superannuation Act REPEAL
52. Specific Claims Resolution Act COMING INTO FORCE
53. Coming into force SCHEDULE
56-57 ELIZABETH II —————— CHAPTER 22 An Act to establish the Specific Claims Tribunal and to make consequential amendments to other Acts [Assented to 18th June, 2008] Preamble
Recognizing that it is in the interests of all Canadians that the specific claims of First Nations be addressed; resolving specific claims will promote reconciliation between First Nations and the Crown and the development and self-sufficiency of First Nations; there is a need to establish an independent tribunal that can resolve specific claims and is designed to respond to the distinctive task of adjudicating such claims in accordance with law and in a just and timely manner; the right of First Nations to choose and have access to a specific claims tribunal will create conditions that are appropriate for resolving valid claims through negotiations; the Assembly of First Nations and the Government of Canada have worked together on a legislative proposal from the Government of Canada culminating in the introduction of this Act; Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE
Short title
1. This Act may be cited as the Specific Claims Tribunal Act.
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Specific Clai INTERPRETATION
Definitions
“asset” « élément d’actif »
2. The following definitions apply in this Act. “asset” means tangible property.
“claimant” « revendicateur »
“claimant” means a First Nation whose specific claim has been filed with the Tribunal.
“claim limit” « indemnité maximale »
“claim limit” means the maximum amount under paragraph 20(1)(b).
“Crown” « Sa Majesté » “First Nation” « première nation »
“Crown” means Her Majesty in right of Canada. “First Nation” means (a) a band as defined in subsection 2(1) of the Indian Act; (b) a group of persons that was, but is no longer, a band within the meaning of paragraph (a) and that has, under a land claims agreement, retained the right to bring a specific claim; and (c) a group of persons that was a band within the meaning of paragraph (a), that is no longer a band by virtue of an Act or agreement mentioned in the schedule and that has not released its right to bring a specific claim.
“land claims agreement” « accord sur des revendications territoriales »
“Minister” « ministre »
“party” « partie »
“land claims agreement” has the same meaning as in subsection 35(3) of the Constitution Act, 1982. “Minister” means the Minister of Indian Affairs and Northern Development. “party”, in respect of a specific claim, means any claimant, the Crown or any province or First Nation added as a party under section 23 or 24.
“specific claim” « revendication particulière »
“specific claim” means a claim that is filed under section 14.
“Tribunal” « Tribunal »
“Tribunal” means the Specific Claims Tribunal established by subsection 6(1).
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Tribunal des revendi PURPOSE AND APPLICATION OF ACT
Purpose
3. The purpose of this Act is to establish the Specific Claims Tribunal, the mandate of which is to decide issues of validity and compensation relating to specific claims of First Nations.
Inconsistency or conflict
4. In the event of any inconsistency or conflict between this Act and any other Act of Parliament, this Act prevails to the extent of the inconsistency or conflict.
Application
5. This Act affects the rights of a First Nation only if the First Nation chooses to file a specific claim with the Tribunal and only to the extent that this Act expressly provides. SPECIFIC CLAIMS TRIBUNAL ESTABLISHMENT
Tribunal
6. (1) A tribunal to be known as the Specific Claims Tribunal is established.
Establishment of roster
(2) The Governor in Council shall establish a roster of 6 to 18 superior court judges to act as members of the Tribunal.
Chairperson and other members
(3) The Chairperson and other members shall be appointed from the roster referred to in subsection (2) by the Governor in Council.
Membership
(4) The Tribunal shall consist of (a) no more than six full-time members; or (b) any number of part-time members, or combination of full-time and part-time members, so long as the combined time devoted to their functions and duties does not exceed the combined time that would be devoted by six full-time members.
Tenure
7. (1) Each member shall be appointed for a term not exceeding five years and holds office so long as he or she remains a superior court judge.
Reappointment of members
(2) Each member, on the expiry of the first term of office, is eligible to be reappointed for one further term.
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Role of Chairperson
8. (1) The Chairperson has supervision over and direction of the work of the Tribunal, including
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(a) the allocation of work among the members and the assignment of members to preside at hearings of the Tribunal; and (b) the performance of the functions and duties of the Tribunal. Powers of Chairperson
(2) On application by a party, the Chairperson may order that (a) specific claims be heard together or consecutively if they have issues of law or fact in common; (b) a specific claim is, together with any other specific claim, subject to one claim limit under subsection 20(4); and (c) specific claims be decided together if decisions with respect to the claims could be irreconcilable or if the claims are subject to one claim limit.
Absence or incapacity
(3) If the office of Chairperson is vacant, or the Chairperson is absent or is for any reason unable to act, the powers of the Chairperson shall be exercised and the duties performed by the member who is the senior judge and is able and willing to act.
Acting after termination of appointment
9. (1) Subject to subsection (2), a judge who has ceased to be a member, for any reason other than removal, may, with the authorization of the Chairperson, perform and complete any functions or duties that they would otherwise have had if they had not ceased to be a member and that are in connection with any matter in which that judge became engaged while holding office as a member, and a judge so authorized is, for that purpose, deemed to be a member of the Tribunal.
Limitation period
(2) No judge who has ceased to be a member may, after the expiry of 120 days after ceasing to be a member, take part in the disposition of any matter under the authority granted by the Chairperson under subsection (1).
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ADMINISTRATION OF THE TRIBUNAL Registry
10. (1) There shall be a Registry of the Tribunal consisting of an office in the National Capital Region described in the schedule to the National Capital Act.
Staff
(2) The registrar and any staff that is required for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.
Role of the registrar
(3) The registrar is responsible for the management of the Tribunal’s administrative affairs and the duties of the staff of the Tribunal.
Organization
(4) The staff of the Tribunal shall be organized and the offices shall be operated in any manner that may be provided by the rules referred to in subsection 12(1). FUNCTIONS, POWERS AND DUTIES
Functions
11. (1) The Tribunal is responsible for holding hearings to decide the validity of specific claims and any compensation arising from those claims.
Hearings
(2) A hearing before the Tribunal shall be held before a single member.
Decision
(3) A decision of a member of the Tribunal is a decision of the Tribunal.
Rules of the Tribunal
12. (1) A committee of no more than six Tribunal members, appointed by the Chairperson, may make general rules for carrying out the work of the Tribunal, the management of its internal affairs and the duties of its staff, as well as rules governing its practice and procedures, including rules governing (a) the giving of notice; (b) the presentation of the positions of the parties with respect to issues before the Tribunal and of matters of fact or law on which the parties rely in support of their positions; (c) the summoning of witnesses; (d) the production and service of documents; (e) applications; (f) discovery proceedings;
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(g) the taking and preservation of evidence before the start of a hearing; (h) case management, including pre-hearing conferences and the use of mediation; (i) the introduction of evidence; (j) the imposition of time limits; and (k) costs.
Advisory committee
(2) The committee referred to in subsection (1) may establish an advisory committee of interested parties to advise it in the development of the Tribunal’s rules of practice and procedure, including efficiencies.
Rules respecting costs
(3) The Tribunal’s rules respecting costs shall accord with the rules of the Federal Court, with any modifications that the Tribunal considers appropriate.
Publication of rules
(4) The Tribunal shall make its rules available to the public and, if possible, publish them in the First Nations Gazette.
Effect of failure to publish
(5) Failure to publish the rules in the First Nations Gazette does not affect the validity of the rules.
Powers of the Tribunal
13. (1) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and may (a) determine any questions of law or fact in relation to any matter within its jurisdiction under this Act; (b) receive and accept any evidence, including oral history, and other information, whether on oath or by affidavit or otherwise, that it sees fit, whether or not that evidence or information is or would be admissible in a court of law, unless it would be inadmissible in a court by reason of any privilege under the law of evidence;
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Tribunal des revendi (c) take into consideration cultural diversity in developing and applying its rules of practice and procedure; and (d) award costs in accordance with its rules of practice and procedure.
Costs
(2) The Tribunal shall deduct from any award of costs in favour of the claimant, any amount provided to the claimant by the Crown for the purpose of bringing the claim before the Tribunal. SPECIFIC CLAIMS
Grounds of a specific claim
14. (1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds: (a) a failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown; (b) a breach of a legal obligation of the Crown under the Indian Act or any other legislation — pertaining to Indians or lands reserved for Indians — of Canada or of a colony of Great Britain of which at least some portion now forms part of Canada; (c) a breach of a legal obligation arising from the Crown’s provision or non-provision of reserve lands, including unilateral undertakings that give rise to a fiduciary obligation at law, or its administration of reserve lands, Indian moneys or other assets of the First Nation; (d) an illegal lease or disposition by the Crown of reserve lands; (e) a failure to provide adequate compensation for reserve lands taken or damaged by the Crown or any of its agencies under legal authority; or (f) fraud by employees or agents of the Crown in connection with the acquisition, leasing or disposition of reserve lands.
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Extended meaning of “Crown” — obligations
(2) For the purpose of applying paragraphs (1)(a) to (c) in respect of any legal obligation that was to be performed in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that the legal obligation or any liability relating to its breach or non-fulfilment became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada.
Extended meaning of “Crown” — illegal lease or disposition
(3) For the purpose of applying paragraph (1)(d) in respect of an illegal lease or disposition of reserve land located in an area within Canada’s present boundaries before that area became part of Canada, a reference to the Crown includes the Sovereign of Great Britain and its colonies to the extent that liability for the illegal lease or disposition became — or would, apart from any rule or doctrine that had the effect of limiting claims or prescribing rights against the Crown because of passage of time or delay, have become — the responsibility of the Crown in right of Canada.
Extended meaning of “Crown” — other
(4) For the purpose of applying paragraphs (1)(e) and (f) in respect of reserve lands located in an area within Canada’s present boundaries, a reference to the Crown includes the Sovereign of Great Britain and its colonies for the period before that area became part of Canada.
Exceptions
15. (1) A First Nation may not file with the Tribunal a claim that
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(a) is based on events that occurred within the 15 years immediately preceding the date on which the claim was filed with the Minister;
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Tribunal des revendi (b) is based on a land claims agreement entered into after December 31, 1973, or any related agreement or Act of Parliament; (c) is based on an Act of Parliament or agreement that is mentioned in the schedule, or an Act of Parliament or agreement for the implementation of such an Act or agreement; (d) concerns the delivery or funding of programs or services related to policing, regulatory enforcement, corrections, education, health, child protection or social assistance, or of any similar programs or services; (e) is based on any agreement between the First Nation and the Crown that provides for another mechanism for the resolution of disputes arising from the agreement; (f) is based on, or alleges, aboriginal rights or title; or (g) is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.
Limitation
When other proceedings
(2) Nothing in paragraph (1)(g) prevents a claim that is based on a treaty right to lands or to assets to be used for activities, such as ammunition to be used for hunting or plows to be used for cultivation, from being filed. (3) A First Nation may not file a claim if (a) there are proceedings before a court or tribunal other than the Tribunal that relate to the same land or other assets and could result in a decision irreconcilable with that of the claim, or that are based on the same or substantially the same facts; (b) the First Nation and the Crown are parties to those proceedings; and (c) the proceedings have not been adjourned.
Restrictions
(4) A First Nation may not file a claim if (a) it is not claiming any compensation;
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(b) it is claiming any remedy other than monetary compensation; or (c) the amount of its claim exceeds the claim limit. Filing a specific claim
16. (1) A First Nation may file a claim with the Tribunal only if the claim has been previously filed with the Minister and (a) the Minister has notified the First Nation in writing of his or her decision not to negotiate the claim, in whole or in part; (b) three years have elapsed after the day on which the claim was filed with the Minister and the Minister has not notified the First Nation in writing of his or her decision on whether to negotiate the claim; (c) in the course of negotiating the claim, the Minister consents in writing to the filing of the claim with the Tribunal; or (d) three years have elapsed after the day on which the Minister has notified the First Nation in writing of the Minister’s decision to negotiate the claim, in whole or in part, and the claim has not been resolved by a final settlement agreement.
Form and content of specific claim
(2) For the purpose of subsection (1), the Minister shall (a) establish a reasonable minimum standard to be followed in relation to the kind of information required for any claim to be filed with the Minister, as well as a reasonable form and manner for presenting the information; (b) publish the standard on the Department of Indian Affairs and Northern Development’s Internet site; and (c) notify the First Nation in writing of the date on which the claim was filed with the Minister.
Meeting minimum standard
(3) A claim is to be filed with the Minister only if the information in it meets the minimum standard referred to in paragraph (2)(a) and is presented in the form and manner established under that paragraph.
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Tribunal des revendi HEARINGS AND DECISIONS
Application to strike
17. On application by a party to a specific claim, the Tribunal may, at any time, order that the claim be struck out in whole or in part, with or without leave to amend, on the ground that it (a) is, on its face, not admissible under sections 14 to 16; (b) has not been filed by a First Nation; (c) is frivolous, vexatious or premature; or (d) may not be continued under section 37.
Hearing and decision
18. After providing notice to the parties, the Tribunal shall hold a hearing, at the time and place that it considers most appropriate, into the issue before it and make a decision on that issue.
Limitation
19. In deciding the issue of the validity of a specific claim, the Tribunal shall not consider any rule or doctrine that would have the effect of limiting claims or prescribing rights against the Crown because of the passage of time or delay.
Basis and limitations for decision on compensation
20. (1) The Tribunal, in making a decision on the issue of compensation for a specific claim, (a) shall award monetary compensation only; (b) shall not, despite any other provision in this subsection, award total compensation in excess of $150 million; (c) shall, subject to this Act, award compensation for losses in relation to the claim that it considers just, based on the principles of compensation applied by the courts; (d) shall not award any amount for (i) punitive or exemplary damages, or (ii) any harm or loss that is not pecuniary in nature, including loss of a cultural or spiritual nature; (e) shall award compensation equal to the market value of a claimant’s reserve lands at the time they were taken brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if
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the claimant establishes that those reserve lands were taken under legal authority, but that inadequate compensation was paid; (f) shall award compensation equal to the value of the damage done to reserve lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes that certain of its reserve lands were damaged under legal authority, but that inadequate compensation was paid; (g) shall award compensation equal to the current, unimproved market value of the lands that are the subject of the claim, if the claimant establishes that those lands were never lawfully surrendered, or otherwise taken under legal authority; (h) shall award compensation equal to the value of the loss of use of a claimant’s lands brought forward to the current value of the loss, in accordance with legal principles applied by the courts, if the claimant establishes the loss of use of the lands referred to in paragraph (g); and (i) shall, if it finds that a third party caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, award compensation against the Crown only to the extent that the Crown is at fault for the loss.
For greater certainty
(2) For greater certainty, in awarding the compensation referred to in subsection (1), the Tribunal may consider losses related to activities of an ongoing and variable nature, such as activities related to harvesting rights.
Deduction of benefit
(3) The Tribunal shall deduct from the amount of compensation calculated under subsection (1) the value of any benefit received by
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Tribunal des revendi the claimant in relation to the subject-matter of the specific claim brought forward to its current value, in accordance with legal principles applied by the courts.
One claim limit for related claims
(4) Two or more specific claims shall, for the purpose of paragraph (1)(b), be treated as one claim if they (a) are made by the same claimant and are based on the same or substantially the same facts; or (b) are made by different claimants, are based on the same or substantially the same facts and relate to the same assets.
Equitable apportionment
(5) If claims are treated as one claim under paragraph (4)(b), the Tribunal shall apportion equitably among the claimants the total compensation awarded.
Compensation against province
(6) If the Tribunal finds that a province that has been granted party status caused or contributed to the acts or omissions referred to in subsection 14(1) or the loss arising from those acts or omissions, it may award compensation against the province to the extent that the province was at fault in causing or contributing to the loss.
Unlawful disposition
21. (1) If compensation is awarded under this Act for an unlawful disposition of all of the interests or rights of a claimant in or to land and the interests or rights have never been restored to the claimant, then all of the claimant’s interests in and rights to the land are released, without prejudice to any right of the claimant to bring any proceeding related to that unlawful disposition against a province that is not a party to the specific claim.
Unlawful disposition of partial interest
(2) If compensation is awarded under this Act for the unlawful disposition of a partial interest or right of a claimant in or to reserve land, then the persons who, if the disposition had been lawful, would have had the partial interest or right in or to the land are deemed to have had that interest or right.
Notice to others
22. (1) If the Tribunal’s decision of an issue in relation to a specific claim might, in its opinion, significantly affect the interests of a province, First Nation or person, the Tribunal
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shall so notify them. The parties may make submissions to the Tribunal as to whose interests might be affected. Effect of failure to notify
(2) Failure to provide notice does not invalidate any decision of the Tribunal.
Restriction
23. (1) The Tribunal has jurisdiction with respect to a province only if the province is granted party status.
Party status of a province — mandatory
(2) If the Crown alleges that a province that has been notified under subsection 22(1) is wholly or partly at fault for the claimant’s losses, the Tribunal shall grant the province party status provided that the province certifies in writing that it has taken the steps necessary for it to be bound by decisions of the Tribunal.
Party status of a province — discretionary
(3) If the Crown does not allege that a province that has been notified under subsection 22(1) is wholly or partly at fault for the claimant’s losses, the Tribunal may, on application by the province, grant the province party status if the Tribunal considers it a necessary or proper party and provided that the province certifies in writing that it has taken the steps necessary for it to be bound by decisions of the Tribunal.
Party status of a First Nation
24. The Tribunal may, on application by a First Nation to whom notice under subsection 22(1) is provided, grant the First Nation party status if the Tribunal considers it a necessary or proper party.
Intervention by persons affected
25. (1) A First Nation or person to whom notice under subsection 22(1) is provided may, with leave of the Tribunal, intervene before it, to make representations relevant to the proceedings in respect of any matter that affects the First Nation or person.
Factors
(2) In exercising its discretion under subsection (1), the Tribunal shall consider all relevant factors, including the effect that granting intervenor status would have on the cost and length of the hearing.
Conduct of hearings
26. (1) Subject to this Act, the Tribunal shall conduct its hearings in any manner that it considers fit.
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Limitation
(2) In deciding how to conduct a hearing, the Tribunal shall have regard to any submissions that a party has made regarding the manner in which the hearing is to be conducted and to the importance of achieving an expeditious resolution.
Public hearings
27. (1) Subject to subsection (2), Tribunal hearings shall be public.
Confidential hearings
(2) The Tribunal may, on application by a party, take any measures and make any order that it considers necessary to ensure the confidentiality of a hearing if it is satisfied that the reasons for confidentiality outweigh the societal interest that the hearing be public.
Right to crossexamine
28. A party may cross-examine a witness (a) as of right, if the witness is called by a party adverse in interest; and (b) with leave of the Tribunal, in any other case.
Defences of Crown
29. Subject to section 19, section 24 of the Crown Liability and Proceedings Act applies in respect of a specific claim as if it were a proceeding.
Withdrawal
30. (1) A party may withdraw an issue from the Tribunal at any time before the Tribunal gives its decision on it and, in such a case, the Tribunal shall not render a decision on it.
Costs
(2) The Tribunal may award costs on the withdrawal of an issue from the Tribunal.
Not a bar
(3) Withdrawal of an issue does not bar any subsequent consideration of the issue by the Tribunal.
Evidence not admissible in other proceedings
31. Subject to subsection 34(1), evidence given by any person in the course of a Tribunal hearing, including anything said, any position taken or any admission made, is not admissible in any other proceeding.
Advance notice of decision on compensation
32. The Tribunal shall, not later than 14 days before it renders its decision on the issue of compensation, give notice to the parties and to the Chairperson that the decision will be rendered.
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Written reasons and publication
33. The Tribunal shall give written reasons for its decisions and shall cause the reasons and the decisions to be published in the manner that it considers fit.
Judicial review
34. (1) A decision of the Tribunal is subject to judicial review under section 28 of the Federal Courts Act.
Final and conclusive
(2) Subject to subsection (1), the Tribunal’s decisions are final and conclusive between the parties in all proceedings in any court or tribunal arising out of the same or substantially the same facts and are not subject to review.
Release and indemnity
35. If the Tribunal decides that a specific claim is invalid or awards compensation for a specific claim,
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(a) each respondent is released from any cause of action, claim or liability to the claimant and any of its members of any kind, direct or indirect, arising out of the same or substantially the same facts on which the claim is based; and (b) the claimant shall indemnify each respondent against any amount that the respondent becomes liable to pay as a result of a claim, action or other proceeding for damages brought by the claimant or any of its members against any other person arising out of the same or substantially the same facts. Payment of award
36. (1) An award of compensation against the Crown may, at the discretion of the Crown, be paid by instalments, but the award must be fully paid within five years after the day on which the Tribunal makes its decision.
Interest
(2) The unpaid balance of the award bears simple interest from the date of the award, at a rate equal to the Bank of Canada’s overnight rate on that day plus 2.5%, which shall be paid together with each instalment.
Abandoned specific claim
37. A specific claim is discontinued if the claimant
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(a) commences, before another tribunal or a court, a proceeding against the Crown that is based on the same or substantially the same facts as the claim, or that relates to the same land or other assets as the claim and could result in a decision irreconcilable with that of the claim, unless the claimant immediately has the proceeding adjourned; or (b) takes a new step in, or does not continue to adjourn, a proceeding mentioned in paragraph (a) or in subsection 15(3).
Public documents
38. (1) Subject to subsection (2), documents filed with the Tribunal are public documents.
Confidential documents
(2) The Tribunal, on the application of a party, may take any measures that it considers necessary to ensure the confidentiality of a document if it is satisfied that the interest of a party or a person that the document not be disclosed outweighs the societal interest that it be public. GENERAL REGULATIONS
Regulations
39. The Governor in Council may make regulations adding to Part 2 of the schedule the name of any agreement related to aboriginal self-government. ANNUAL REPORT
Annual report
40. (1) The Chairperson shall submit an annual report on the work of the Tribunal in a fiscal year and its projected activities for the following fiscal year to the Minister within six months after the end of that fiscal year, including the financial statements of the Tribunal and any report on them of the Auditor General of Canada.
Resources
(2) The annual report may include a statement on whether the Tribunal had sufficient resources, including a sufficient number of members, to address its case load in the past fiscal year and whether it will have sufficient resources for the following fiscal year.
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Tabling of report
(3) The Minister shall submit a copy of the report to each House of Parliament on any of the first 30 days on which that House is sitting after the report is submitted to the Minister.
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REVIEW AND REPORT Review
41. (1) Within one year after the fifth anniversary of the coming into force of this Act, the Minister shall undertake a review of the mandate and structure of the Tribunal, of its efficiency and effectiveness of operation and of any other matters related to this Act that the Minister considers appropriate. In carrying out the review, the Minister shall give First Nations an opportunity to make representations.
Report
(2) Within one year after a review is undertaken, the Minister shall cause to be prepared and sign a report that sets out a statement of any changes to this Act, including any changes to the Tribunal’s functions, powers or duties, that the Minister recommends and the representations which have been made by First Nations.
Tabling and referral of report
(3) The Minister shall submit to each House of Parliament a copy of the report on any of the first 90 days on which that House is sitting after the Minister signs the report, and each House shall refer the report to the appropriate committee of that House. TRANSITIONAL PROVISIONS
Existing claims
42. (1) If a First Nation has submitted a claim based on any one or more of the grounds referred to in subsection 14(1) to the Minister before the day on which this Act comes into force containing the kind of information that would meet the minimum standard established under subsection 16(2), or if the claim is being negotiated on the day on which this Act comes into force, the claim is deemed to have been filed with the Minister in accordance with section 16, or the Minister is deemed to have decided to negotiate the claim and to have notified the First Nation in writing of that decision, as the case may be, on the day on which this Act comes into force.
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Tribunal des revendi (2) Within six months after the day on which this Act comes into force, the Minister shall examine all claims — except those that the Minister has notified the First Nation in writing of the Minister’s decision not to negotiate, in whole or in part — that are based on any one or more of the grounds referred to in subsection 14(1) submitted by First Nations to the Minister before the day on which this Act comes into force, and (a) if a claim contains the kind of information that would meet the minimum standard established under subsection 16(2), the Minister shall notify the First Nation in writing that its claim is deemed to have been filed with the Minister in accordance with section 16 on the day on which this Act comes into force; (b) if a claim does not contain that kind of information, the Minister shall request in writing that the First Nation provide the Minister with the missing information; or (c) if a claim is being negotiated, in whole or in part, the Minister shall notify the First Nation in writing that for the purpose of section 16 the date of the Minister’s decision to negotiate the claim is deemed to be the day on which this Act comes into force.
Amended claim — deemed filing date
(3) If a First Nation provides the Minister with the information requested under paragraph (2)(b) (a) within six months after the date of the Minister’s request, its claim is deemed to have been filed with the Minister in accordance with section 16 on the day on which this Act comes into force; or (b) later than six months after the date of the Minister’s request, its claim will be filed with the Minister in accordance with section 16 on the date the requested information is received by the Minister.
Notice of filing date
(4) On receiving the information referred to in paragraph (2)(b), the Minister shall notify the First Nation in writing of the date on which its claim was filed with the Minister.
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Previous decision not to negotiate
43. For greater certainty, if, before the coming into force of this Act, a First Nation has been notified by the Minister of his or her decision not to negotiate a claim, the First Nation may not file that claim with the Tribunal on the basis of that decision but nothing prevents the First Nation from filing the claim with the Minister after the coming into force of this Act.
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CONSEQUENTIAL AMENDMENTS R.S., c. A-1
ACCESS TO INFORMATION ACT 44. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”: Specific Claims Tribunal Tribunal des revendications particulières 45. Schedule II to the Act is amended by adding, in alphabetical order, a reference to Specific Claims Tribunal Act Loi sur le Tribunal des revendications particulières and a corresponding reference to “subsections 27(2) and 38(2)”.
R.S., c. F-7; 2002, c. 8, s. 14
FEDERAL COURTS ACT 46. Subsection 28(1) of the Federal Courts Act is amended by striking out the word “and” at the end of paragraph (p), by adding the word “and” at the end of paragraph (q) and by adding the following after paragraph (q): (r) the Specific Claims Tribunal established by the Specific Claims Tribunal Act.
R.S., c. F-11
FINANCIAL ADMINISTRATION ACT 47. Schedule I.1 to the Financial Administration Act is amended by adding, in alphabetical order in column I, a reference to
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Registry of the Specific Claims Tribunal Greffe du Tribunal des revendications particulières and a corresponding reference in column II to the “Minister of Indian Affairs and Northern Development”. 48. Schedule IV to the Act is amended by adding the following in alphabetical order: Specific Claims Tribunal Tribunal des revendications particulières 49. Part III of Schedule VI to the Act is amended by adding, in alphabetical order in column I, a reference to Registry of the Specific Claims Tribunal Greffe du Tribunal des revendications particulières and a corresponding reference in column II to the “Registrar”. R.S., c. P-21
PRIVACY ACT 50. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading “OTHER GOVERNMENT INSTITUTIONS”: Specific Claims Tribunal Tribunal des revendications particulières
R.S., c. P-36
PUBLIC SERVICE SUPERANNUATION ACT 51. Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Specific Claims Tribunal Tribunal des revendications particulières REPEAL
Repeal
52. The Specific Claims Resolution Act, chapter 23 of the Statutes of Canada, 2003, is repealed.
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Specific Clai COMING INTO FORCE
Coming into force
53. This Act comes into force 120 days after the day on which it receives royal assent.
Tribunal des revendication
2007-2008
SCHEDULE (Section 2, paragraph 15(1)(c) and section 39) PART 1 ACTS RELATED TO SELF-GOVERNMENT
Cree-Naskapi (of Quebec) Act Loi sur les Cris et les Naskapis du Québec Kanesatake Interim Land Base Governance Act Loi sur le gouvernement du territoire provisoire de Kanesatake Mi’kmaq Education Act Loi sur l’éducation des Mi’kmaq Nisga’a Final Agreement Act Loi sur l’Accord définitif nisga’a Sechelt Indian Band Self-Government Act Loi sur l’autonomie gouvernementale de la bande indienne sechelte Tlicho Land Claims and Self-Government Act Loi sur les revendications territoriales et l’autonomie gouvernementale du peuple tlicho Westbank First Nation Self-Government Act Loi sur l’autonomie gouvernementale de la première nation de Westbank Yukon First Nations Self-Government Act Loi sur l’autonomie gouvernementale des premières nations du Yukon PART 2 AGREEMENTS RELATED TO SELF-GOVERNMENT
Carcross/Tagish First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la Première nation de Carcross/Tagish Champagne and Aishihik First Nations Self-Government Agreement Entente sur l’autonomie gouvernementale des Premières Nations de Champagne et de Aishihik Kluane First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la Première nation de Kluane Kwanlin Dun First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la Première nation des Kwanlin Dun Little Salmon/Carmacks Self-Government Agreement Entente sur l’autonomie gouvernementale de la première nation de Little Salmon/Carmacks Nacho Nyak Dun First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la première nation des Nacho Nyak Dun Selkirk First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la première nation de Selkirk
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Specific Claims Tri
Ta’an Kwach’an Council Self-Government Agreement Entente sur l’autonomie gouvernementale du Conseil des Ta’an Kwach’an Teslin Tlingit Council Self-Government Agreement Entente sur l’autonomie gouvernementale du conseil des Tlingits de Teslin Tr’ondek Hwech’in Self-Government Agreement Entente sur l’autonomie gouvernementale des Tr’ondèk Hwëch’in Vuntut Gwitchin First Nation Self-Government Agreement Entente sur l’autonomie gouvernementale de la première nation des Gwitchin Vuntut
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 23 An Act to implement the Kelowna Accord
ASSENTED TO 18th JUNE, 2008 BILL C-292
SUMMARY This enactment requires the Government of Canada to fulfil its obligations under the Kelowna Accord.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 23 An Act to implement the Kelowna Accord
[Assented to 18th June, 2008] Preamble
WHEREAS Parliament recognizes that narrowing and ultimately eliminating the troubling gaps between aboriginal and non-aboriginal Canadians that exist in the areas of education, skills development, health care, housing, access to clean water and employment, as provided for in the Kelowna Accord, are essential to improving the socio-economic conditions of aboriginal people in Canada; AND WHEREAS the Government of Canada entered into the Kelowna Accord with the governments of Canada’s provinces and territories and with Canada’s aboriginal leadership, and it is incumbent upon the Government of Canada to honour its word and its commitments;
NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title
1. This Act may be cited as the Kelowna Accord Implementation Act.
Implementation of Kelowna Accord
2. The Government of Canada shall immediately take all measures necessary to implement the terms of the accord, known as the “Kelowna Accord”, that was concluded on November 25, 2005 at Kelowna, British Columbia, by the Prime Minister of Canada, the first ministers of each of the provinces and territories of Canada and the leaders of the Assembly of First Nations, the Inuit Tapiriit
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Kelowna
Kanatami, the Metis National Council, the Native Womens’ Association of Canada and the Congress of Aboriginal Peoples. Annual report to Parliament
3. At the end of the fiscal year beginning on April 1, 2007, and at the end of each of the next four fiscal years, the Minister of Indian Affairs and Northern Development shall prepare a report reviewing the progress made by the Government of Canada in fulfilling its obligations under the Kelowna Accord during that fiscal year, and shall cause the report to be laid before each House of Parliament within sixty days after the end of the fiscal year or, if that House is not then sitting, on any of the first fifteen days next thereafter that the House is sitting.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 21 An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence
ASSENTED TO 18th JUNE, 2008 BILL C-23
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence”.
SUMMARY This enactment amends the Canada Marine Act to clarify and make technical changes to certain provisions. As well, the amendments (a) modify the Act’s purpose; (b) modify a port authority’s access to federal funding; (c) add provisions regarding the power of a port authority to borrow money; (d) provide additional regulatory powers to the Governor in Council; (e) add provisions regarding port amalgamation; (f) modify provisions regarding the appointment of directors of port authorities; and (g) add a penalty scheme and streamline certain other enforcement provisions. The amendments also include transitional provisions, corrections to other Acts and consequential amendments to other Acts.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
56-57 ELIZABETH II —————— CHAPTER 21 An Act to amend the Canada Marine Act, the Canada Transportation Act, the Pilotage Act and other Acts in consequence [Assented to 18th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1998, c. 10
CANADA MARINE ACT 1. (1) The definitions “droits” and “installations portuaires” in subsection 2(1) of the French version of the Canada Marine Act are repealed. (2) The definitions “goods” and “port authority” in subsection 2(1) of the Act are replaced by the following:
“goods” « marchandises »
“goods” includes personal property and movables, other than ships.
“port authority” « administration portuaire »
“port authority” means a port authority incorporated or continued under this Act. (3) The definitions “fees” and “port facility” in subsection 2(1) of the English version of the Act are replaced by the following:
“fees” « droit »
“port facility” « installation portuaire »
“fees” includes harbour dues, berthage and wharfage, as well as duties, tolls, rates and other charges, but does not include payments made under a lease or licence agreement. “port facility” means a wharf, pier, breakwater, terminal, warehouse or other building or work that is located in, on or adjacent to navigable waters that is used in connection with naviga2
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tion or shipping, land incidental to its use and any land adjacent to navigable waters that is used in connection with navigation or shipping. (4) Paragraph (b) of the definition “owner” in subsection 2(1) of the Act is replaced by the following: (b) in the case of goods, the agent, sender, consignee or bailee of the goods, as well as the carrier of the goods to, on, over or from any real property or immovables to which this Act applies.
(5) Subsection 2(1) of the French version of the Act is amended by adding the following in alphabetical order: « droit » “fees”
« droit » S’entend de toute forme de taxe, péage, contribution ou redevance, notamment pour l’accès, l’accostage et l’amarrage au port, à l’exclusion de toute somme versée au titre d’un bail ou d’un permis.
« installation portuaire » “port facility”
« installation portuaire » Quai, jetée, briselames, terminal, entrepôt ou autre construction situés dans les eaux navigables ou à la surface ou à proximité de celles-ci — y compris les terrains liés à leur utilisation ou adjacents aux eaux navigables — et affectés à la navigation ou au transport par eau. 2. The heading before section 4 of the Act is replaced by the following: PURPOSE 3. (1) The portion of section 4 of the Act before paragraph (b) is replaced by the following:
Purpose of the Act
4. In recognition of the significance of marine transportation to Canada and its contribution to the Canadian economy, the purpose of this Act is to (a) implement marine policies that provide Canada with the marine infrastructure that it needs and that offer effective support for the achievement of national, regional and local
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Loi maritime du Canada, Tran social and economic objectives and will promote and safeguard Canada’s competitiveness and trade objectives; (a.1) promote the success of ports for the purpose of contributing to the competitiveness, growth and prosperity of the Canadian economy; (2) Paragraph 4(h) of the Act is replaced by the following: (h) promote coordination and integration of marine activities with surface and air transportation systems. 4. Subsection 6(2) of the Act is replaced by the following:
Amendment of schedule
(2) The Minister may, by regulation, amend the schedule. 5. (1) The portion of subsection 8(1) of the Act before paragraph (a) is replaced by the following:
Letters patent
8. (1) The Minister may issue letters patent — that take effect on the date stated in them — incorporating a port authority without share capital for the purpose of operating a particular port in Canada if the Minister is satisfied that the port (2) The portion of subsection 8(2) of the Act before paragraph (a) is replaced by the following:
Contents of letters patent
(2) The letters patent shall set out the following: (3) Subparagraph 8(2)(f)(iii) of the Act is replaced by the following: (iii) one individual appointed by the province in which the port is situated, and, in the case of the port wholly or partially located in Vancouver, another individual appointed by the Provinces of Alberta, Saskatchewan and Manitoba acting together, and (4) Paragraph 8(2)(l) of the Act is replaced by the following:
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(l) the limits on the power of the port authority to borrow money on the credit of the port authority for port purposes or a code governing that power, as the case may be; and 6. Section 9 of the Act is replaced by the following: Supplementary letters patent
9. (1) The Minister may, either on the Minister’s own initiative and after giving notice of the proposed changes to the board of directors, or when the board of directors has, by resolution, requested it, issue supplementary letters patent amending the letters patent of a port authority if the Minister is satisfied that the amendment is consistent with this Act, and the supplementary letters patent take effect on the date stated in them.
Notice
(2) Notice must be given in writing and set out a time limit within which the board of directors may comment to the Minister regarding the proposed changes. 7. (1) Subsections 10(1) and (2) of the Act are replaced by the following:
Continuance of harbour commissions
10. (1) If the Minister is satisfied that the criteria set out in subsection 8(1) are met, the Minister may issue in respect of one or more harbour commissions established under the Harbour Commissions Act, letters patent continuing the harbour commission as a port authority that set out the information required by subsection 8(2).
Effect of letters patent
(2) On the day on which the letters patent are issued, the harbour commission becomes a port authority and the Harbour Commissions Act ceases to apply. (2) The portion of subsection 10(3) of the Act before paragraph (a) is replaced by the following:
Rights and obligations preserved — harbour commissions
(3) The rights and obligations of a port authority that was one or more harbour commissions immediately before letters patent were issued are as follows: (3) Paragraph 10(3)(d) of the Act is replaced by the following: (d) the personal property or movable, and any rights related to it, that the harbour commission manages, or the title to which it
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Loi maritime du Canada, Tran holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority; 8. (1) Paragraph 12(3)(d) of the Act is replaced by the following: (d) the personal property or movable, and any rights related to it, that the local port corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority; (2) Paragraph 12(4)(d) of the Act is replaced by the following: (d) the personal property or movable, and any rights related to it, that relate to the port and that the Canada Ports Corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, become the property and rights of the port authority;
9. The Act is amended by adding the following after section 13: AMALGAMATION OF PORT AUTHORITIES Directors
13.1 (1) The Governor in Council may remove any director of an amalgamating port authority during the period that begins on the day on which the Governor in Council requires the amalgamation and ends on the day before the day on which the amalgamation takes effect.
Subsection 14(2.3)
(2) Subsection 14(2.3) does not apply to a director of an amalgamating port authority who holds office on the day on which the Governor in Council requires the amalgamation.
Fees continued
(3) A fee that is in force in respect of a port on the day on which an amalgamation takes effect continues in force for a period that ends on the earlier of the expiry of six months and the day on which it is replaced by a fee fixed under subsection 49(1).
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10. Subsection 14(2) of the Act is replaced by the following: Directors appointed by provinces and municipalities
(1.1) The Governor in Council may appoint a director under paragraph (1)(b) or (c) who has been nominated by the Minister if the position has been vacant for more than one year.
Tenure of office
(2) Directors are appointed to hold office for any term of not more than three years that will ensure as far as possible the expiry in any one year of the terms of office of not more than one half of the directors, the terms being renewable twice only.
Maximum term of office
(2.1) A director shall serve no more than nine consecutive years on the board.
Effective day of appointment
(2.2) A director’s appointment takes effect on the day on which notice of the appointment is received by the port authority.
Extension of term
(2.3) Subject to subsection (2.1), if a successor has not been appointed at the expiry of a director’s term, the director continues to hold office until their term is renewed or their successor is appointed.
Directors appointed by municipalities and provinces
(2.4) Subject to subsection (2.1) and despite subsection (2), the term of office of a director appointed under subsection (1.1) to fill a vacant position under paragraph (1)(b) or (c) expires on the day on which a director is nominated under that paragraph.
2003, c. 22, s. 113(E)
11. Paragraph 16(c) of the Act is replaced by the following: (c) a Senator or a member of the House of Commons; (c.1) an officer or employee of the federal public administration, a federal Crown corporation or a port authority; 12. Paragraph 19(1)(b) of the Act is replaced by the following: (b) is removed for cause by the authority that made the appointment, namely, the Governor in Council, the municipalities or the province or provinces, as the case may be; or 13. The Act is amended by adding the following after section 21:
2007-2008 Delegation
Loi maritime du Canada, Tran 21.1 Subject to the letters patent, the board of directors may delegate the powers to manage the activities of the port authority to a committee of directors or to the officers of the port authority. 14. Section 25 of the Act is replaced by the following:
No appropriation
25. Even if the port authority or subsidiary is an agent of Her Majesty in right of Canada as provided under section 7, no payment to a port authority or a wholly-owned subsidiary of a port authority may be made under an appropriation by Parliament to enable the port authority or subsidiary to discharge an obligation or liability unless (a) the payment (i) is made under the Emergencies Act or any other Act in respect of emergencies, (ii) is a contribution in respect of the capital costs of an infrastructure project, (iii) is a contribution in respect of environmental sustainability, or (iv) is a contribution in respect of security, or (b) the authority for the funding of Her Majesty’s obligations is an agreement that was in existence before March 1, 1999.
15. The Act is amended by adding the following after section 25: Contribution
25.1 The Minister may, with the approval of the Governor in Council given on the recommendation of the Treasury Board and on any terms and conditions specified by the Governor in Council on the recommendation of the Treasury Board, make a contribution under subparagraph 25(a)(iv). 16. Subsection 27(1) of the Act is amended by striking out the word “and” at the end of paragraph (e) and by adding the following after paragraph (f):
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(g) respecting the information and documents to be provided by a port authority to the Minister at the Minister’s request; and (h) respecting the amalgamation of port authorities. 17. (1) Subsection 28(4) of the Act is replaced by the following: Restrictions
(4) A port authority shall not carry on any activity or exercise any power that it is restricted by its letters patent from carrying on or exercising, nor shall it carry on any activity or exercise any power in a manner contrary to its letters patent or this Act. (2) Subsections 28(6) and (7) of the Act are replaced by the following:
Compliance with code
(5.1) If a port authority that is subject to a code governing its power to borrow enters into a contract, or executes any other document, for the borrowing of money, the document shall include an express statement that the borrowing complies with the code.
Duty of directors
(6) The directors of a port authority shall take all necessary measures to ensure (a) that the port authority and any whollyowned subsidiary of the port authority comply with subsections (5) and, if applicable, (5.1); and (b) that any subcontract arising directly or indirectly from a contract to which subsection (5) applies expressly states that the port authority or subsidiary, as the case may be, enters into the contract on its own behalf and not as agent of Her Majesty in right of Canada.
Borrowing limitations may be imposed
(7) If a port authority or a wholly-owned subsidiary of a port authority fails to comply with subsection (5) or (5.1), or the directors of a port authority fail to comply with subsection (6) or section 30.1, the Minister of Finance, on the recommendation of the Minister of Transport, may impose any limitations that the Minister of Finance considers to be in the public interest on the power of the port authority or subsidiary to borrow money, including limitations on the time and terms and conditions of any borrowing.
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Loi maritime du Canada, Tran (3) Subsection 28(13) of the French version of the Act is replaced by the following:
Activités antérieures
(13) La filiale à cent pour cent d’une administration portuaire peut continuer à exercer les pouvoirs et les activités qu’elle exerçait le 1er décembre 1995; les pouvoirs et les activités qu’elle cesse d’exercer après cette date ne peuvent être exercés de nouveau que si les lettres patentes le lui permettent. 18. The Act is amended by adding the following after section 30:
Borrowing policy
30.1 (1) The directors of a port authority that is subject to a code governing its power to borrow shall certify to the Minister that the borrowing policy is in compliance with the code.
Changes to borrowing policy
(2) If there are any changes in respect of the borrowing policy, the directors of the port authority shall certify to the Minister that the policy remains in compliance with the code.
Copy of policy
(3) The directors of the port authority shall provide a copy of the borrowing policy to the Minister if the Minister requests one.
2001, c. 4, s. 139(1)
19. (1) Subsection 31(3) of the Act is replaced by the following:
No security interest in property
(3) Subject to subsection (4), a port authority may not mortgage, hypothecate or otherwise create a security interest in any federal real property or federal immovable that it manages in any way other than to create a security interest in the revenues of that property. (2) Subsection 31(5) of the French version of the Act is replaced by the following:
Définition de « sûreté »
(5) Pour l’application des paragraphes (3) et (4), « sûreté » s’entend d’un droit grevant les biens gérés par une administration portuaire pour garantir l’exécution de ses obligations ou d’un intérêt sur ceux-ci aux mêmes fins. 20. The portion of subsection 37(3) of the Act before paragraph (a) is replaced by the following:
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Remuneration
(3) The annual financial statements shall set out the total remuneration paid in money or in kind to each of the following persons in that year by the port authority or its wholly-owned subsidiary, including any fee, allowance or other benefit:
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21. Section 39 of the Act is replaced by the following: Business plan
39. A port authority shall, within three months after the end of each fiscal year, submit to the Minister, in respect of itself and each of its wholly-owned subsidiaries, a five-year business plan containing any information that the Minister may require, including any material changes in respect of information provided in the previous business plan.
2001, c. 4, s. 140(1)
22. (1) Subsection 44(1) of the French version of the Act is replaced by the following:
Loi sur les immeubles fédéraux et les biens réels fédéraux
44. (1) Pour l’application de la Loi sur les immeubles fédéraux et les biens réels fédéraux, le ministre a la responsabilité des immeubles fédéraux et des biens réels fédéraux qui se trouvent dans le port qu’une administration portuaire exploite en vertu de ses lettres patentes, à l’exception de ceux dont la responsabilité est confiée à un autre membre du Conseil privé de la Reine pour le Canada.
2001, c. 4, s. 140(1)
(2) Subsections 44(2) and (3) of the Act are replaced by the following:
Management
(2) The Minister may, by letters patent or supplementary letters patent, give to a port authority the management of any federal real property or federal immovable that is administered by (a) the Minister under subsection (1); or (b) any other member of the Queen’s Privy Council for Canada, if the Minister has the consent of that other member.
Non-application
(3) If the Minister gives the management of any federal real property or federal immovable to a port authority, the Federal Real Property and Federal Immovables Act does not apply to
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Loi maritime du Canada, Tran that property, other than sections 3, 5, 12 to 14 and 16 to the extent that those sections are not inconsistent with this Act.
2001, c. 4, s. 141
23. (1) Paragraph 45(1)(c) of the Act is replaced by the following: (c) shall undertake and defend any legal proceedings, subject to any instructions that may be provided by the Attorney General of Canada, with respect to that property; and
2001, c. 4, s. 141
(2) Subsection 45(2) of the Act is replaced by the following:
Legal proceedings
(2) A civil, criminal or administrative action or proceeding shall be taken by or against a port authority and not by or against the Crown with respect to (a) any personal property or movable owned by that port authority; (b) any federal real property or federal immovable that it manages; (c) any real property or immovable that it holds; and (d) any act or omission relating to any property referred to in paragraphs (a) to (c).
(3) Section 45 of the Act is amended by adding the following after subsection (3.1): Temporary use
(3.2) A port authority may lease or license any federal real property or federal immovable it manages for temporary use under paragraph 28(2)(a). 24. The Act is amended by adding the following after section 45:
Acquisition of real property and immovables
45.1 (1) Her Majesty in right of Canada may acquire any real property or immovable for the purpose of operating a port at the request of the port authority and the port authority may pay the price of the property in question.
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Removal of management
(2) If the management of the real property or immovable acquired under subsection (1) is removed from the port authority, Her Majesty does not become liable to the port authority for any portion of the price paid by it.
2001, c. 4, s. 141
25. (1) The portion of subsection 46(1) of the French version of the Act before paragraph (a) is replaced by the following:
Disposition d’immeubles fédéraux et de biens réels fédéraux
46. (1) Sous réserve du paragraphe 45(3), une administration portuaire ne peut disposer des immeubles fédéraux et des biens réels fédéraux dont la gestion lui est confiée; elle peut toutefois :
2001, c. 4, s. 141
(2) Paragraph 46(1)(a) of the Act is replaced by the following:
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(a) without the issuance of supplementary letters patent, grant a road allowance, an easement, a real servitude, a right of way or a licence for utilities, services or access; and
2001, c. 4, s. 141
(3) Subparagraph 46(1)(b)(i) of the Act is replaced by the following: (i) exchange that property for other real property or immovables of comparable value, if supplementary letters patent that describe the other property as federal real property or federal immovables have been issued, and
2001, c. 4, s. 141
(4) Subparagraph 46(1)(b)(ii) of the French version of the Act is replaced by the following: (ii) disposer des accessoires fixés à demeure sur des immeubles fédéraux et des biens réels fédéraux.
2001, c. 4, s. 141
(5) Subsection 46(2) of the Act is replaced by the following:
Other real property and immovables
(2) A port authority may dispose of any real property or immovable that it holds, other than federal real property or federal immovables, if supplementary letters patent have been issued, and, without the issuance of supplementary letters patent, it may grant a road allowance, an easement, a real servitude, a right of way or a licence for utilities, services or access.
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Acquisition, lease or license of real property and immovables
(2.1) The port authority may acquire, lease as lessee or license as licensee real property or immovables other than federal real property or federal immovables, if supplementary letters patent have been issued.
Temporary use
(2.2) A port authority may lease or license any real property or immovable it holds, other than federal real property or federal immovables, for temporary use under paragraph 28(2)(b). 26. Section 47 of the Act is replaced by the following:
Navigable Waters Protection Act
47. The Navigable Waters Protection Act does not apply to a work, within the meaning of that Act, that has been exempted by a regulation made under section 62. 27. Subsection 51(3) of the French version of the Act is replaced by the following:
Publication
(3) Le préavis est publié dans un journal à grand tirage du lieu où est situé le port, envoyé par courrier ou par voie électronique aux organisations dont les membres, de l’avis de l’administration portuaire, seront touchés par les droits — nouveaux ou révisés — ainsi qu’à tout utilisateur ou toute personne lui ayant manifesté, au moins dix jours auparavant, le désir de recevoir les préavis exigés par la présente partie; il est aussi inscrit en un endroit accessible sur le réseau communément appelé Internet. 28. Subsection 52(1) of the French version of the Act is replaced by the following:
Plaintes
52. (1) Tout intéressé peut déposer auprès de l’Office une plainte portant qu’un droit fixé aux termes du paragraphe 49(1) opère une discrimination injustifiée; l’Office examine la plainte sans délai et communique ses conclusions à l’administration portuaire qui est liée par cellesci.
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29. Section 53 of the Act is replaced by the following: Fees by contract
53. A port authority may enter into an agreement, that the parties may agree to keep confidential, fixing an amount to be paid to the port authority in respect of the persons and things set out in paragraphs 49(1)(a) to (c) that is different from the fees fixed under those paragraphs. 30. (1) Paragraph 56(1)(a) of the French version of the Act is replaced by the following: a) surveiller la circulation des navires qui se trouvent dans les eaux du port ou s’apprêtent à y entrer; (2) Paragraph 56(1)(d) of the French version of the Act is replaced by the following: d) créer des zones de contrôle de la circulation pour l’application des alinéas a) à c). 31. (1) The portion of subsection 58(1) of the Act before paragraph (a) is replaced by the following:
Traffic control
58. (1) For the purpose of promoting safe and efficient navigation or environmental protection, a port authority may designate a person or a member of a class of persons, each of whom shall be furnished with a certificate of designation, to exercise the following powers with respect to ships about to enter or within the port or an area of the port:
(2) Paragraph 58(1)(b) of the Act is replaced by the following: (b) direct the master, the person in charge of the deck watch or any other person in charge of a ship or the pilot to provide information in respect of the ship specified by the designated person; (3) Paragraph 58(2)(b) of the French version of the Act is replaced by the following:
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Loi maritime du Canada, Tran b) un problème de pollution ou un risque sérieux de pollution dans la zone de contrôle de la circulation; (4) Paragraphs 58(2)(d) and (e) of the French version of the Act are replaced by the following: d) la présence d’obstacles à la navigation dans la zone de contrôle de la circulation; e) la proximité d’un navire apparemment en difficulté ou qui présente un risque de pollution ou un danger pour les personnes et les biens; (5) Paragraph 58(3)(a) of the French version of the Act is replaced by the following: a) dans les cas où il est tenu d’obtenir une autorisation de mouvement, d’entrer dans un port ou dans une zone de contrôle de la circulation de ce port, d’en sortir ou de s’y déplacer sans avoir obtenu une telle autorisation sous le régime du présent article; 32. (1) Paragraph 59(1)(a) of the French version of the Act is replaced by the following: a) soit ne se conforme pas aux pratiques et procédures établies en vertu de l’alinéa 56(1)b) ou n’a pas à bord l’équipement permettant l’utilisation des fréquences déterminées par l’administration portuaire en vertu de cet alinéa; (2) The portion of subsection 59(2) of the Act before paragraph (a) is replaced by the following:
Defence available in certain cases
(2) It is a defence to a charge under subsection (1) that the master, the person in charge of the deck watch or other person in charge of the ship or the pilot (3) Subsection 59(3) of the French version of the Act is replaced by the following:
Preuve d’une infraction par un navire
(3) Lorsqu’un navire est poursuivi pour infraction au présent article, il suffit pour établir l’infraction de prouver que l’acte ou l’omission
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qui la constitue est le fait du capitaine ou d’une autre personne à bord du navire, que celle-ci soit identifiée ou non. 33. Section 61 of the Act is renumbered as subsection 61(1) and is amended by adding the following: Marine transportation security
(2) Subject to any regulations made under the Marine Transportation Security Act, a port authority shall take appropriate measures for the maintenance of marine transportation security. 34. (1) Paragraph 62(1)(c) of the French version of the Act is replaced by the following: c) l’enlèvement ou la disposition, notamment par destruction, de navires ou de toutes parties s’en étant détachées, de bâtiments, d’ouvrages ou d’autres choses qui gênent la navigation dans le port, et le recouvrement des coûts afférents; (2) Subsection 62(1) of the Act is amended by adding the following after paragraph (d): (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the port authority;
2001, c. 4, s. 143
(3) Paragraph 62(1)(h) of the Act is replaced by the following: (h) the obligations of a port authority in respect of federal real property and federal immovables under the management of the port authority. 35. Paragraph 65(1)(a) of the Act is replaced by the following: (a) designate as a public port any navigable waters within the jurisdiction of Parliament and any land covered by the navigable waters, if the land is under the administration of the Minister, including any related foreshore;
2001, c. 4, s. 144
36. Section 66 of the French version of the Act is replaced by the following:
2007-2008 Loi sur les immeubles fédéraux et les biens réels fédéraux
Loi maritime du Canada, Tran 66. (1) Pour l’application de la Loi sur les immeubles fédéraux et les biens réels fédéraux, le ministre a la responsabilité des immeubles fédéraux et des biens réels fédéraux qui font partie des ports publics ou des installations portuaires publiques.
Autres ports et installations
(2) Le ministre n’a pas la responsabilité des immeubles fédéraux et des biens réels fédéraux qui sont placés sous la responsabilité d’un autre membre du Conseil privé de la Reine pour le Canada.
Pouvoir du ministre
(3) Il est entendu que l’abrogation de la désignation de port public ou d’installation portuaire publique est sans effet sur la responsabilité du ministre, en vertu de la Loi sur les immeubles fédéraux et les biens réels fédéraux, à l’égard des immeubles fédéraux et des biens réels fédéraux qui faisaient partie du port ou de l’installation et qui appartiennent à Sa Majesté. 37. Subsection 69(1) of the Act is replaced by the following:
Harbour masters and wharfingers
69. (1) The Minister may appoint as a harbour master or wharfinger for all or part of a public port or public port facility any person who, in the Minister’s opinion, is qualified and assign responsibilities to that person, including the responsibility to collect fees and interest on fees.
2001, c. 4, s. 145
38. Subsection 71(1) of the French version of the Act is replaced by the following:
Baux et permis
71. (1) Par dérogation à la Loi sur les immeubles fédéraux et les biens réels fédéraux, le ministre peut louer les immeubles fédéraux et les biens réels fédéraux qui font ou faisaient partie d’un port public ou d’installations portuaires publiques ou accorder des permis à leur égard qui, comme les baux, doivent être approuvés par le gouverneur en conseil, si leur durée est supérieure à vingt ans.
2001, c. 4, s. 146(1)
39. (1) The portion of subsection 72(1) of the French version of the Act before paragraph (b) is replaced by the following:
Pouvoir de disposition
72. (1) Le ministre peut conclure des ententes en vue :
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a) de la disposition, par vente ou tout autre mode de cession, de la totalité ou d’une partie des immeubles fédéraux et des biens réels fédéraux qui faisaient partie d’un port public ou d’installations portuaires publiques; 2001, c. 4, s. 146(2)
(2) Subsections 72(5) and (6) of the French version of the Act are replaced by the following:
Disposition et transfert
(5) Les dispositions et les transferts peuvent être effectués sous le régime du présent article ou en conformité avec la Loi sur les immeubles fédéraux et les biens réels fédéraux.
Application du droit provincial
(6) La disposition ou le transfert des immeubles fédéraux et des biens réels fédéraux visés au présent article est fait par un acte qui, en vertu des lois de la province où ils sont situés, peut servir à opérer la disposition ou le transfert d’immeubles ou de biens réels entre sujets de droit privé. (3) Subsections 72(7) and (8) of the Act are replaced by the following:
Minister responsible
(8) Subject to any regulations made under section 74, the Minister continues to have the management of public ports and public port facilities that the Minister has not disposed of or transferred. 40. Section 73 of the Act is replaced by the following:
Navigable Waters Protection Act
73. The Navigable Waters Protection Act does not apply to a work, within the meaning of that Act, that has been exempted by a regulation made under section 74. 41. (1) The portion of subsection 74(1) of the French version of the Act before paragraph (a) is replaced by the following:
Règlements
74. (1) Le gouverneur en conseil peut prendre des règlements en vue de la gestion, du contrôle, du développement et de l’utilisation des ports publics et des installations portuaires publiques, notamment dans les domaines suivants : (2) Paragraph 74(1)(c) of the French version of the Act is replaced by the following:
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Loi maritime du Canada, Tran c) l’enlèvement ou la disposition, notamment par destruction, de navires ou de toutes parties s’en étant détachées, de bâtiments, d’ouvrages ou d’autres choses qui gênent la navigation dans ces ports, et le recouvrement des coûts afférents; (3) Subsection 74(1) of the Act is amended by adding the following after paragraph (d): (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the Minister; 42. Paragraph 82(b) of the Act is replaced by the following: (b) the personal property or movable, and any rights related to it, that the Authority administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, other than those set out specifically or by class in the agreement and notice, become the property and rights of the person.
2001, c. 4, s. 148
Loi sur les immeubles fédéraux et les biens réels fédéraux
43. Section 90 of the French version of the Act is replaced by the following: 90. Pour l’application de la Loi sur les immeubles fédéraux et les biens réels fédéraux, le ministre ou tout autre membre du Conseil privé de la Reine pour le Canada est responsable de tous les immeubles fédéraux et biens réels fédéraux qui lui sont transférés en vertu des paragraphes 80(1) ou (2).
2001, c. 4, s. 149
44. Subsection 91(2) of the French version of the Act is replaced by the following:
Procédures
(2) Toute poursuite civile, pénale ou administrative relative à un immeuble ou un bien réel dont la gestion a été confiée à une personne qui a conclu une entente en vertu du paragraphe 80(5) ou à tout autre bien qu’elle détient — ou à tout acte ou omission qui y survient — doit être engagée soit par cette personne, soit contre celle-ci à l’exclusion de la Couronne.
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45. Subsection 94(2) of the French version of the Act is replaced by the following: Plaintes
(2) Tout intéressé peut déposer auprès de l’Office une plainte portant qu’un droit visé au paragraphe (1) opère une discrimination injustifiée; l’Office examine la plainte sans délai et communique ses conclusions au ministre ou à la personne qui a fixé le droit, selon le cas, le ministre et cette personne étant liés par celles-ci.
2001, c. 4, s. 150(F)
46. (1) The portion of subsection 98(1) of the French version of the Act before paragraph (a) is replaced by the following:
Pouvoir réglementaire
98. (1) Le gouverneur en conseil peut prendre des règlements en vue de la gestion, du contrôle, du développement et de l’utilisation de la voie maritime, des immeubles ou biens réels ou des entreprises liés à celle-ci, notamment en ce qui touche : (2) Paragraph 98(1)(c) of the French version of the Act is replaced by the following: c) l’enlèvement ou la disposition, notamment par destruction, de navires ou de toutes parties s’en étant détachées, de bâtiments, d’ouvrages ou d’autres choses qui gênent la navigation dans la voie maritime, et le recouvrement des coûts afférents; (3) Subsection 98(1) of the Act is amended by adding the following after paragraph (d): (d.1) the information or documents that must be provided by the owner or the person in charge of a ship to the Minister or to any person who has entered into an agreement under subsection 80(5); 47. Section 101 of the Act is replaced by the following:
Navigable Waters Protection Act
101. The Navigable Waters Protection Act does not apply to a work, within the meaning of that Act, that has been exempted by a regulation made under section 98. 48. Subsection 107(1) of the French version of the Act is replaced by the following:
2007-2008 Navires
Loi maritime du Canada, Tran 107. (1) Les droits et les intérêts fixés sous le régime de la présente loi à l’égard des navires ou des marchandises doivent être acquittés par le propriétaire ou le responsable du navire ou le propriétaire des marchandises sans préjudice des recours ouverts en droit contre d’autres personnes. 49. Paragraph 115(1)(a) of the Act is replaced by the following: (a) that the ship or the owner or person in charge of the ship or goods has, in respect of the ship or goods, contravened any provision of this Act or the regulations; 50. (1) Paragraph 116(4)(a) of the Act is replaced by the following: (a) security in the amount of $100,000 has been given to, and has been determined satisfactory by, the port authority, the Minister or the person who has entered into an agreement under subsection 80(5), as the case may be; (a.1) the ship has not been charged with an offence under this Act within 30 days after the making of the detention order; (2) The portion of paragraph 116(4)(b) of the French version of the Act before subparagraph (i) is replaced by the following: b) le navire a été accusé d’une infraction à la présente loi dans le délai mentionné à l’alinéa a.1) et : (3) Subparagraph 116(4)(b)(i) of the Act is replaced by the following: (i) security satisfactory to the Minister of not more than $5,000 is given to Her Majesty in right of Canada, or 51. (1) Paragraph 117(1)(d) of the Act is replaced by the following: (d) the security referred to in paragraph 116(4)(a) or (b) has not been given. (2) Paragraph 117(2)(d) of the Act is replaced by the following: (d) the security referred to in paragraph 116(4)(a) or (c) has not been given.
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(3) Paragraph 117(3)(d) of the Act is replaced by the following: (d) the security referred to in paragraph 116(4)(a) or (d) has not been given. 52. Section 121 of the French version of the Act is replaced by the following: Vente de marchandises périssables
121. S’il estime que des marchandises saisies et retenues conformément à la présente loi ou qui ont été abandonnées risquent de se détériorer, l’agent de l’autorité peut en disposer, notamment par vente, selon les modalités et aux prix justifiés par les circonstances. Le produit de la disposition est affecté au paiement des frais qu’elle a occasionnés, ainsi qu’à l’acquittement des sommes dues à l’égard du navire ou des marchandises.
2001, c. 26, s. 279
53. The portion of subsection 122(1) of the French version of the Act before paragraph (a) is replaced by the following:
Privilèges — navires
122. (1) L’administration portuaire, le ministre ou la personne qui a conclu une entente en vertu du paragraphe 80(5) est toujours titulaire d’un privilège sur le navire et sur le produit de toute disposition qui en est faite, pour sa créance; ce privilège a priorité sur tous autres droits et créances, quelle qu’en soit la nature, à la seule exception des créances salariales des membres de l’équipage, visées par la Loi de 2001 sur la marine marchande du Canada, dans les cas suivants : 54. Subsections 127(1) and (2) of the Act are replaced by the following:
Offence and fine
127. (1) A person or ship that contravenes a provision of this Act, except section 107, or of the regulations made under paragraph 27(1)(a), or of the regulations made under this Act for which no penalty is otherwise provided is guilty of an offence and liable to a fine of not more than $5,000 in the case of an individual, and of not more than $50,000 in the case of a corporation or ship.
Proof of offence by ship
(1.1) If a ship is prosecuted for an offence under a provision of this Act, except section 107, or of the regulations, it is sufficient proof that the ship has committed the offence to
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Loi maritime du Canada, Tran establish that the act or omission that constitutes the offence was committed by the master of the ship or any person on board the ship, whether or not the person on board has been identified.
By-laws
(1.2) No person is guilty of an offence under this Act for a contravention of a by-law made under section 30.
Defence
(2) No person or ship shall be found guilty of an offence under this Act if the person or ship establishes that the person or ship exercised due diligence to prevent its commission. 55. Subsection 128(1) of the English version of the Act is replaced by the following:
Separate offence
128. (1) When an offence under this Act is committed by a person or ship on more than one day or is continued by a person or ship for more than one day, it is deemed to be a separate offence for each day on which it is committed or continued. 56. Subsection 129(1) of the Act is replaced by the following:
Order to comply
129. (1) If a person or ship is guilty of an offence under Part 1 or the regulations made under paragraph 27(1)(a), a court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order the person or ship to comply with those provisions for the contravention of which the person or ship is convicted. 57. The Act is amended by adding the following after section 129: ADMINISTRATIVE MONETARY PENALTIES
Definition of “Appeal Tribunal”
129.01 For the purposes of sections 129.06, 129.08 and 129.1 to 129.13, “Appeal Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
Violations
129.02 Every person or ship that contravenes a provision or instruction designated under paragraph 129.03(a) commits a violation and
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is liable to an administrative monetary penalty not exceeding the maximum established by regulation. Regulations
129.03 The Governor in Council may make regulations (a) designating any of the following as a provision or instruction whose contravention may be proceeded with as a violation, namely, (i) any provision of this Act, other than paragraphs 59(1)(d) and 126(b), (ii) any provision of the regulations, or (iii) any instruction that may be given under the regulations; (b) establishing the maximum administrative monetary penalty for a particular violation, which may not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation or ship; (c) establishing criteria to be taken into account in determining the penalty; (d) designating provisions or instructions the contravention of which, if continued on more than one day, constitutes a separate violation in respect of each day during which the violation is continued; (e) respecting the service of the notice that is required to be served under subsection 129.05(1), including the manner and proof of service and the circumstances under which the notice is deemed to be served; and (f) generally, for carrying out the purposes and provisions of this section and sections 129.04 to 129.17.
Criteria for penalty
129.04 The administrative monetary penalty imposed is, in each case, to be determined taking into account (a) the purpose of the penalty, which is to promote compliance with this Act and not to punish; (b) the seriousness of the violation, including the frequency and duration of the conduct;
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Loi maritime du Canada, Tran (c) the history of the person or ship that has been served with the notice of violation with respect to any prior violation or conviction under this Act within the five-year period immediately before the violation; and (d) any other criteria established under paragraph 129.03(c).
Notice of violation
129.05 (1) If an enforcement officer believes on reasonable grounds that a person or ship has committed a violation, the officer may issue, and shall cause to be served on the person or ship, a notice of violation.
Content of notice
(2) The Minister may establish the form and content of notices of violation, but each notice of violation shall (a) name the person or ship believed to have committed the violation; (b) identify the violation; (c) set out the administrative monetary penalty that the person or ship is liable to pay; (d) set out the particulars concerning the time for and manner of paying the penalty and the time for and manner of requesting a review; and (e) inform the person or ship that, if they do not pay the penalty or request a review in accordance with the particulars set out in the notice, they will be deemed to have committed the violation and the penalty set out in the notice will be imposed.
Option
129.06 A person or ship that has been served with a notice of violation shall either pay the penalty set out in the notice or file with the Appeal Tribunal a written request for a review of the facts of the alleged violation or of the amount of the penalty.
Payment of penalty
129.07 If the person or ship pays the penalty in accordance with the particulars set out in the notice of violation, the person or ship is deemed to have committed the violation and proceedings in respect of the violation are ended.
Request for review
129.08 (1) A request for a review shall be filed with the Appeal Tribunal at the address set out in the notice of violation on or before the
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date specified in the notice or within any further time that the Appeal Tribunal, on application, may allow. Time and place for review
(2) On receipt of the request, the Appeal Tribunal shall appoint a time and place for the review and shall so notify, in writing, the Minister and the person or ship that filed the request.
Review procedure
(3) The member of the Appeal Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship that filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden of establishing that a person or ship has committed the violation identified in the notice is on the Minister.
Person or ship not compelled to testify
(5) A person or ship that is alleged to have committed a violation is not required, and may not be compelled, to give any evidence or testimony in the matter.
Failure to pay penalty or request review
129.09 A person or ship that neither pays the penalty nor files a request for a review in accordance with the particulars set out in the notice of violation is deemed to have committed the violation.
Determination by Appeal Tribunal member
129.1 (1) At the conclusion of a review under section 129.08, the member of the Appeal Tribunal who conducts the review shall without delay inform the person or ship and the Minister of the member’s determination on the review.
No violation
(2) If the member determines that the person or ship has not committed the alleged violation, then, subject to section 129.11, no further proceedings may be taken against the person or ship in respect of the alleged violation.
Violation
(3) If the member determines that the person or ship has committed the alleged violation, then the member shall also inform the person or ship and the Minister of the administrative monetary penalty determined by the member to be payable in respect of the violation.
Right of appeal
129.11 (1) The Minister or a person or ship affected by a determination made under section 129.1 may, within 30 days after the determination, appeal it to the Appeal Tribunal.
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Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Appeal Tribunal that is assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.
Obligation to inform
(4) If the appeal panel finds that a person or ship has committed the alleged violation, the panel shall without delay inform the person or ship of the finding and of the administrative monetary penalty determined by the panel to be payable in respect of the violation.
Debts due to Her Majesty
129.12 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction: (a) unless a review of the facts of the alleged violation or the amount of the penalty is requested in accordance with the particulars set out in the notice of violation, the amount of a penalty set out in the notice, beginning on the day on which the notice was served; (b) the amount of a penalty determined by a member of the Appeal Tribunal under section 129.1 or decided by the appeal panel of the Appeal Tribunal under section 129.11, beginning on the day on which the respective determination or decision was made; and (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).
Certificate
129.13 (1) All or part of a debt referred to in section 129.12 in respect of which there is a default of payment may be certified by the Appeal Tribunal at the request of the Minister.
Judgments
(2) On production in any superior court, a certificate made under subsection (1) is to be registered in that court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment
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obtained in that court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration. Directors and officers of corporations
129.14 If a corporation commits a violation, every person who at the time of the commission of the violation was a director or officer of the corporation is a party to and liable for the violation unless the act or omission constituting the violation took place without the person’s knowledge or consent or the person exercised due diligence to prevent the commission of the violation.
Vicarious liability — acts of employees, agents and mandataries
129.15 A person or ship is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against, unless the person or ship establishes that the violation was committed without the person’s or ship’s knowledge or consent.
Violations not offences
129.16 For greater certainty, a violation is not an offence. Accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Due diligence available
129.17 Due diligence is a defence in a proceeding in respect of a violation. GENERAL PROVISIONS
How act or omission may be proceeded with
129.18 If an act or an omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
Time limit
129.19 (1) No proceedings in respect of a violation or a prosecution for an offence may be commenced later than one year after the subjectmatter of the proceedings became known to the Minister.
Certification by Minister
(2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence
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Loi maritime du Canada, Tran of evidence to the contrary, proof that the Minister became aware of the subject-matter on that day. 58. The portion of section 133 of the Act before paragraph (a) is replaced by the following:
Successor rights
133. Where, under section 10, letters patent are issued to a harbour commission continuing it as a port authority, sections 44 to 46 of the Canada Labour Code apply as if 59. Item 16 of Part 1 of the schedule to the English version of the Act is replaced by the following: 16.
Trois-Rivières Port Authority
60. The heading of Part 2 of the schedule to the French version of the Act is replaced by the following: ADMINISTRATIONS PORTUAIRES QUI NE SONT PAS DES ADMINISTRATIONS PORTUAIRES INITIALES 1996, c. 10
CANADA TRANSPORTATION ACT
2007, c. 19, s. 5
61. Subsection 18(2) of the Canada Transportation Act is replaced by the following:
Residence of members
(2) The members appointed under subsection 7(2) shall reside in the National Capital Region described in the schedule to the National Capital Act or within any distance of it that the Governor in Council determines.
R.S., c. P-14
PILOTAGE ACT
2001, c. 26, par. 318(d)
62. Paragraph 48(a) of the French version of the Pilotage Act is replaced by the following: a) à une disposition de la présente partie autre que l’article 15.3; TRANSITIONAL PROVISION
Continued effect
63. Paragraph 25(b) of the Canada Marine Act, as it read immediately before the coming into force of section 14 of this Act, continues
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to apply in respect of a grant under an agreement in existence at the time of the coming into force of that section. CONSEQUENTIAL AMENDMENTS 1994, c. 40
MARINE TRANSPORTATION SECURITY ACT
2004, c. 15, s. 73
64. Section 11.1 of the Marine Transportation Security Act and the heading before it are repealed.
2001, c. 29
TRANSPORTATION APPEAL TRIBUNAL OF CANADA ACT
2007, c. 1, s. 59
65. Subsection 2(3) of the Transportation Appeal Tribunal of Canada Act is replaced by the following:
Jurisdiction in respect of other Acts
(3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act and sections 129.01 to 129.19 of the Canada Marine Act. COMING INTO FORCE
Order in council
66. The provisions of this Act, other than section 64, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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Second Session, Thirty-ninth Parliament, 56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008
CHAPTER 20
An Act to repeal legislation that has not come into force within ten years of receiving royal assent
ASSENTED TO 18th JUNE, 2008 BILL S-207
SUMMARY This enactment provides that any Act or provision of an Act that is to come into force on a date to be fixed by proclamation or order of the Governor in Council must be included in an annual report laid before both Houses of Parliament if it does not come into force by the December 31 that is nine years after royal assent. The Act or provision is repealed if it does not come into force by the following December 31, unless during that year either House resolves that it not be repealed.
L entr qui ann un r Elle déc cett
The enactment applies to all Acts whether introduced in either House as Government bills, private members public bills or private bills that provide for a coming-into-force date to be set by the Governor in Council. It does not apply to Acts or provisions that are to come into force on assent or on a fixed date provided by the Act.
L tées gou nan trée sap vigu
The enactment includes a transitional provision for provisions that were amended during the nine-year period before the enactment comes into force.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
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56-57 ELIZABETH II
CHAPTER 20
An Act to repeal legislation that has not come into force within ten years of receiving royal assent
Loi
[Assented to 18th June, 2008] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
S cons com
Short title
1. This Act may be cited as the Statutes Repeal Act.
1 lois.
Annual report of legislation not in force
2. In every calendar year, the Minister of Justice shall cause to be laid before the Senate and the House of Commons, on any of the first five days on which that House sits, a report listing every Act of Parliament or provision of an Act of Parliament that is to come into force on a day or days to be fixed by proclamation or order of the Governor in Council and that
2 deva les c au c énum sitio gueu décr
(a) was assented to nine years or more before the December 31 immediately preceding the laying of the report; and (b) had not come into force on or before that December 31.
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b v d
Repeal on December 31 following
3. Every Act or provision listed in the annual report is repealed on December 31 of the year in which the report is laid unless it comes into force on or before that December 31 or during that year either House of Parliament adopts a resolution that the Act or provision not be repealed.
3 rapp née soit laut mêm tion
Publication in Canada Gazette
4. The Minister of Justice shall publish each year in the Canada Gazette a list of every Act or provision repealed on the preceding December 31 under this Act.
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C. 20
Statutes Rep
Transitional
5. Section 2 does not apply to any provision amended by an Act that was assented to during the nine calendar years preceding the year this Act comes into force, or to any provision that is necessary for the amended provision to have effect, until the calendar year following the ninth anniversary of that assent.
5 ticle mod née dant prés saire de la la sa
Coming into force
6. This Act comes into force two years after the day on which it receives royal assent.
6 ans
Published under authority of the Senate of Canada
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Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 21
An Act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act
BILL C-9 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment amends the Canada Elections Act with respect to the information included on ballots. It also clarifies and harmonizes certain provisions of that Act and makes a related amendment to the Electoral Boundaries Readjustment Act.
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49-50 ELIZABETH II
CHAPTER 21 An Act to amend the Canada Elections Act and the Electoral Boundaries Readjustment Act [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 2000, c. 9
CANADA ELECTIONS ACT
1. (1) The definition ‘‘political affiliation’’ in subsection 2(1) of the Canada Elections Act is replaced by the following: ‘‘political affiliation’’ « appartenance politique »
‘‘political affiliation’’, in respect of a candidate, means the name of the political party that has endorsed him or her or the word ‘‘independent’’, as the case may be, included in the nomination paper in accordance with subparagraph 66(1)(a)(v). (2) Subparagraph (f)(v) of the definition ‘‘election documents’’ in subsection 2(1) of the English version of the Act is replaced by the following:
Electronic voting process
(v) a packet containing the list of electors used at the polling station, the written authorizations of candidates’ representatives and the used transfer certificates, if any, and 2. Section 18.1 of the Act is replaced by the following: 18.1 The Chief Electoral Officer may carry out studies on voting, including studies respecting alternative voting means, and may devise and test an electronic voting process for future use in a general election or a by-election. Such a process may not be used for an official vote without the prior approval of the committees of the Senate and of the House of Commons that normally consider electoral matters.
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3. Paragraph 32(d) of the English version of the Act is replaced by the following: (d) a registration officer for each registration desk. 4. Subsection 44(2) of the Act is replaced by the following: Contents of Register
(2) The Register of Electors shall contain, for each elector who is included in it, his or her surname, given names, sex, date of birth, civic address, mailing address and any other information that is provided under subsections 49(2), 194(7), 195(7), 223(2), 233(2) and 251(3). 5. Subsection 57(1) of the Act is replaced by the following:
General election — proclamation
57. (1) The Governor in Council shall issue a proclamation in order for a general election to be held.
By-election — order
(1.1) The Governor in Council shall make an order in order for a by-election to be held.
Contents
(1.2) The proclamation or order shall (a) direct the Chief Electoral Officer to issue a writ to the returning officer for each electoral district to which the proclamation or order applies; (b) fix the date of issue of the writ; and (c) fix the date for voting at the election, which date must be at least 36 days after the issue of the writ. 6. Section 58 of the Act is replaced by the following:
Writs forwarded to returning officer
58. The Chief Electoral Officer shall issue a writ in Form 1 of Schedule 1 to the returning officer for the electoral district in which the election is to be held without delay after the proclamation is issued or the order is made by the Governor in Council. 7. Subparagraph 66(1)(a)(v) of the Act is replaced by the following: (v) the name of the political party that has endorsed the prospective candidate or, if none, the prospective candidate’s choice to either have the word ‘‘independent’’ or no designation of political affiliation under his or her name in election documents;
Loi élec 8. Paragraph 67(4)(c) of the Act is replaced by the following: (c) if applicable, an instrument in writing, signed by the leader of the political party or by a person referred to in subsection 383(2), that states that the prospective candidate is endorsed by the party in accordance with section 68. 9. Section 68 of the Act is replaced by the following:
Party may endorse only one candidate per district
68. (1) A political party may endorse only one prospective candidate in each electoral district for a given election.
New endorsement
(2) If, with respect to a particular electoral district, a candidate who has been endorsed by a political party dies before 2:00 p.m. on the 5th day before the closing day for nominations or withdraws in accordance with subsection 74(1), the party may endorse another candidate in that electoral district before the close of nominations. 10. Section 91 of the English version of the Act is replaced by the following:
Publishing false statements to affect election results
91. No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate. 11. Subsection 109(3) of the Act is replaced by the following:
Extra copies
(3) On the request of a registered party or member referred to in subsection (2), the Chief Electoral Officer may provide a maximum of four additional printed copies of the final lists of electors. 12. Subsections 117(2) to (4) of the Act are replaced by the following:
Name of party
(2) The name, in the form referred to in paragraph 366(2)(b), of the political party that has endorsed the candidate shall be listed on the ballot under the name of the candidate if (a) the candidate’s nomination paper includes it; (b) the condition described in paragraph 67(4)(c) is met;
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(c) at the close of nominations, the party is in compliance with sections 366 and 368; and (d) the party has candidates whose nominations have been confirmed in at least 12 electoral districts for the general election or, in the case of a by-election, in the immediately preceding general election. Designation of candidate as independent
(3) The word ‘‘independent’’ shall be listed on the ballot under the name of the candidate who has requested it in accordance with subparagraph 66(1)(a)(v) and may not be so listed in any other case. 13. Section 165 of the Act is replaced by the following:
Prohibition — use of loudspeakers on polling day
165. No person shall use a loudspeaking device within hearing distance of a polling station on polling day for the purpose of promoting or opposing a political party that is listed on the ballot under the name of a candidate or the election of a candidate.
14. (1) Paragraphs 166(1)(a) and (b) of the Act are replaced by the following: (a) post or display in, or on the exterior surface of, a polling place any campaign literature or other material that could be taken as an indication of support for or opposition to a political party that is listed on the ballot under the name of a candidate or the election of a candidate; (b) while in a polling station, wear any emblem, flag, banner or other thing that indicates that the person supports or opposes any candidate or political party that is listed on the ballot under the name of a candidate, or the political or other opinions entertained, or supposed to be entertained, by the candidate or party; and (2) Subsection 166(2) of the Act is replaced by the following:
2001 Exception
Loi élec (2) Despite paragraph (1)(b), a representative of a candidate in a polling station may, in the manner authorized by the Chief Electoral Officer, wear a badge identifying his or her function and the name of the political party that is listed on the ballot under the name of the candidate. 15. Subsection 279(3) of the Act is replaced by the following:
Political affiliation
(3) The deputy returning officer shall not reject a special ballot for the sole reason that the elector has written, in addition to the name of a candidate, the candidate’s political affiliation, if the ballot clearly indicates the elector’s intent. 16. Paragraph 324(a) of the English version of the Act is replaced by the following: (a) the transmission of a message that was transmitted to the public on what is commonly known as the Internet before the blackout period described in that subsection and that was not changed during that period; or 17. Subsection 335(1) of the Act is replaced by the following:
Broadcasting time to be provided to registered parties
335. (1) In the period beginning on the issue of the writs for a general election and ending at midnight on the day before polling day, every broadcaster shall, subject to the regulations made under the Broadcasting Act and the conditions of its licence, make available, for purchase by all registered parties for the transmission of political announcements and other programming produced by or on behalf of the registered parties, six and one-half hours of broadcasting time during prime time on its facilities. 18. The portion of subsection 345(1) of the Act before paragraph (a) is replaced by the following:
Free broadcasting time
345. (1) In the period beginning on the issue of the writs for a general election and ending at midnight on the day before polling day at that election, every network operator shall, subject to the regulations made under the Broadcasting Act and to the conditions of its licence, make available, at no cost, to the
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registered parties and eligible parties referred to in subsection (2), for the transmission of political announcements and other programming produced by or on behalf of those parties, broadcasting time as determined under that subsection if the network formed and operated by the network operator 19. Paragraph 348(a) of the Act is replaced by the following: (a) a rate for broadcasting time made available to the party or candidate, in the period beginning on the issue of the writs and ending at midnight on the day before polling day, that exceeds the lowest rate charged by the person for an equal amount of equivalent time on the same facilities made available to any other person at any time within that period; or 20. (1) Subsection 359(1) of the Act is replaced by the following: Election advertising report
359. (1) Every third party that is required to be registered in accordance with subsection 353(1) shall file an election advertising report in the prescribed form with the Chief Electoral Officer within four months after polling day. (2) Subparagraph 359(2)(a)(ii) of the English version of the Act is replaced by the following: (ii) a list of all election advertising expenses other than those referred to in subparagraph (i) and the time and place of broadcast or publication of the advertisements to which the expenses relate; and (3) Paragraph 359(2)(b) of the Act is replaced by the following: (b) in the case of a by-election, a list of election advertising expenses referred to in subsection 350(4) and the time and place of the broadcast or publication of the advertisements to which the expenses relate. 21. Subparagraphs 403(b)(i) and (ii) of the Act are replaced by the following: (i) a statement, prepared in accordance with generally accepted accounting principles, of its assets and liabilities, includ2001
Loi élec ing any surplus or deficit, at the date of the merger, (ii) an auditor’s report, submitted to the chief agent of the merged party, as to whether the statement presents fairly and in accordance with generally accepted accounting principles the information on which it was based, and 22. Section 441 of the Act is replaced by the following:
Base amount of candidate’s election expenses
441. (1) The base amount of a candidate’s election expenses in an electoral district is the higher of (a) the amount calculated, on the basis of the preliminary lists of electors for the electoral district, in accordance with subsections (3) to (6), and (b) the amount calculated, on the basis of the revised lists of electors for the electoral district, in accordance with subsections (7) to (10).
Death of candidate of registered party
(2) If a candidate for an electoral district whose nomination was endorsed by a registered party dies in the period beginning at 2:00 p.m. on the 5th day before the closing day for nominations and ending on polling day, the base amount for that electoral district is increased by 50 %.
Calculation using preliminary lists of electors
(3) The amount referred to in paragraph (1)(a) is the aggregate of the following amounts, based on the number of the electors on the preliminary lists of electors: (a) $2.07 for each of the first 15,000 electors; (b) $1.04 for each of the next 10,000 electors; and (c) $0.52 for each of the remaining electors.
Fewer electors than average — general election
(4) If the number of electors on the preliminary lists of electors for the electoral district is less than the average number of electors on all preliminary lists of electors in a general election, then, in making a calculation under subsection (3), the number of electors is deemed to be half-way between the number on the preliminary lists of electors for the electoral district and that average number.
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Fewer electors than average — by-election
(5) In the case of a by-election, if the number of electors on the preliminary lists of electors for the electoral district is less than the average number of electors on all revised lists of electors in the immediately preceding general election, then, in making a calculation under subsection (3), the number of electors is deemed to be half-way between the number on the preliminary lists of electors for the electoral district and that average number.
Districts with lower population density
(6) If the number of electors per square kilometre, calculated on the basis of the preliminary lists of electors for the electoral district, is less than 10, the amount calculated under subsection (3) is increased by the lesser of $0.31 per square kilometre and 25 % of that amount.
Calculation using revised list of electors
(7) The amount referred to in paragraph (1)(b) is the aggregate of the following amounts, based on the number of the electors on the revised lists of electors: (a) $2.07 for each of the first 15,000 electors; (b) $1.04 for each of the next 10,000 electors; and (c) $0.52 for each of the remaining electors.
Fewer electors than average — general election
(8) If the number of electors on the revised lists of electors for the electoral district is less than the average number of electors on all revised lists of electors in a general election, then, in making a calculation under subsection (7), the number of electors is deemed to be half-way between the number on the revised lists of electors for the electoral district and that average number.
Fewer electors than average — by-election
(9) In the case of a by-election, if the number of electors on the revised lists of electors for the electoral district is less than the average number of electors on all revised lists of electors in the immediately preceding general election, then, in making a calculation under subsection (7), the number of electors is deemed to be half-way between the number on
Loi élec the revised lists of electors for the electoral district and that average number.
Districts with lower population density
(10) If the number of electors per square kilometre, calculated on the basis of the revised lists of electors for the electoral district, is less than 10, the amount calculated under subsection (7) is increased by the lesser of $0.31 per square kilometre and 25 % of that amount. 23. Section 467 of the French version of the Act is replaced by the following:
Honoraires du vérificateur
467. Sur réception du certificat visé à l’article 465 ou de l’attestation de conformité visée à l’article 466, le receveur général paie au vérificateur, sur le Trésor, une somme au titre des honoraires que celui-ci a facturés, non inférieure à 250 $, représentant 3 % des dépenses électorales du candidat, jusqu’à concurrence de 1 500 $. 24. Section 504 of the Act is replaced by the following:
Judicial proceedings and compliance agreements
504. In the case of judicial proceedings or a compliance agreement involving an eligible party, a registered party or a suspended party, (a) the eligible party, registered party or suspended party is deemed to be a person; and (b) any act or thing done or omitted to be done by an officer, a chief agent or other registered agent of the eligible party, registered party or suspended party, within the scope of their authority to act, is deemed to be an act or thing done or omitted to be done by the eligible party, registered party or suspended party, as the case may be. 25. Subsection 517(7) of the English version of the Act is replaced by the following:
Renegotiation
(7) The Commissioner and the contracting party may renegotiate the terms of the compliance agreement at the request of the Commissioner or contracting party at any time before it is fully executed.
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Electoral campaign return of candidate
R.S., c. E-3
Duties of the commissions
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26. Section 558 of the Act is replaced by the following: 558. For contributions made before September 1, 2000, the official agent shall include in the electoral campaign return in respect of a candidate the information referred to in paragraphs 451(2)(h) and (i), other than the addresses of the contributors. ELECTORAL BOUNDARIES READJUSTMENT ACT
27. Subsection 3(2) of the Electoral Boundaries Readjustment Act is replaced by the following: (2) The ten commissions established pursuant to subsection (1) shall consider and report on the readjustment of the representation of the provinces in the House of Commons required to be made on the completion of each decennial census.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 35
An Act to amend the Air Canada Public Participation Act
BILL C-38 ASSENTED TO 18th DECEMBER, 2001
SUMMARY This enactment amends the Air Canada Public Participation Act to remove the individual shareholder ownership limit on the holding of voting shares of Air Canada by any one person or group of persons acting in concert.
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49-50 ELIZABETH II
CHAPTER 35 An Act to amend the Air Canada Public Participation Act [Assented to 18th December, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. 35 (4th Supp.)
AIR CANADA PUBLIC PARTICIPATION ACT
2000, c. 15, s. 17(1)
1. (1) Paragraph 6(1)(a) of the Air Canada Public Participation Act is repealed.
1994, c. 24, par. 34(1)(a)(F)
(2) Subsection 6(2) of the Act is replaced by the following:
Enforcement of constraint provisions
(2) The regulations made pursuant to subsection 174(6) of the Canada Business Corporations Act apply, with any modifications that the circumstances require, in respect of the Corporation as if the constraints imposed pursuant to paragraph (1)(b) were a constraint referred to in paragraph 174(1)(a) of that Act. (3) The portion of subsection 6(3) of the Act before paragraph (a) is replaced by the following:
Exceptions
(3) No provision imposing constraints pursuant to paragraph (1)(b) and no regulation referred to in subsection (2) apply in respect of voting shares of the Corporation that are held (4) Subsections 6(4) and (5) of the Act are repealed.
C. 35
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Air Canada Publ TRANSITIONAL PROVISION
2. (1) Any provisions of the articles of the Corporation, as that corporation is defined in the Air Canada Public Participation Act, that impose constraints described in paragraph 6(1)(a) of that Act, and any provisions of the by-laws that give effect to those constraints, are, as of the day on which this Act comes into force, deemed to have no further force or effect. (2) The articles of the Corporation may be restated under section 180 of the Canada Business Corporations Act as if they had been amended in accordance with subsection (1). COMING INTO FORCE Coming into force
3. This Act comes into force on a day to be fixed by order of the Governor in Council made on the recommendation of the Minister of Transport.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 34
An Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect
BILL C-40 ASSENTED TO 18th DECEMBER, 2001
SUMMARY The Miscellaneous Statute Law Amendment Program was established in 1975. Since then, nine Acts have been passed (1977, 1978, 1981, 1984, 1987, 1992, 1993, 1994 and 1999). The purpose of the Program is to allow minor amendments of a non-controversial nature to be made to a number of federal statutes without having to wait for particular statutes to be opened up for amendments of a more substantial nature. Anyone may suggest amendments for possible inclusion in a set of proposals, but most of the current proposals have come from government departments or agencies. The Legislation Section of the Department of Justice is responsible for receiving and reviewing proposals. The following criteria are applied to determine whether a suggested amendment may be included in the Proposals tabled in Parliament. The suggested amendment must not (a) be controversial; (b) involve the spending of public funds; (c) prejudicially affect the rights of persons; or (d) create a new offence or subject a new class of persons to an existing offence. The Legislation Section prepares a document entitled ‘‘Proposals for a Miscellaneous Statute Law Amendment Act’’, containing only those proposals that, in its view, meet the Program criteria. This document is tabled in the House of Commons by the Minister of Justice, and referred to the appropriate Standing Committee of the House. Except in 1977, the proposals have also been tabled in the Senate and referred to its Standing Committee on Legal and Constitutional Affairs. Consideration of the proposals by these Committees has always been thorough and non-partisan. If either of these Committees considers a proposal to be controversial, that proposal is dropped. The reports of the Senate Committee have always been adopted by the Senate, but a motion has never been made for concurrence in the reports of the House of Commons. A Miscellaneous Statute Law Amendment Bill is then prepared, based on the reports of the two Committees and containing only proposals approved by both Committees. Passage of the Bill has always been speedy, given the usual understanding that the Bill will receive three readings in each House without debate.
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TABLE OF PROVISIONS
AN ACT TO CORRECT CERTAIN ANOMALIES, INCONSISTENCIES AND ERRORS AND TO DEAL WITH OTHER MATTERS OF A NON-CONTROVERSIAL AND UNCOMPLICATED NATURE IN THE STATUTES OF CANADA AND TO REPEAL CERTAIN PROVISIONS THAT HAVE EXPIRED, LAPSED OR OTHERWISE CEASED TO HAVE EFFECT SHORT TITLE
1. Short title AMENDMENTS
2. Access to Information Act
3. Anti-Personnel Mines Convention Implementation Act
Arctic Waters Pollution Prevention Act
5. Atlantic Canada Opportunities Agency Act
6. 7-8.
An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts Budget Implementation Act, 1997
9-12.
Business Development Bank of Canada Act
13-17. Canada Council Act 18-23. Canada Labour Code 24-25. Canada National Parks Act 26.
Canada Shipping Act
27-29. Canadian Environmental Protection Act, 1999 30-32. Canadian Radio-television and Telecommunications Commission Act 33. Companies’ Creditors Arrangement Act 34-35. Copyright Act 36.
Crimes Against Humanity and War Crimes Act
37-38. Cultural Property Export and Import Act 39.
Electricity and Gas Inspection Act
40. Employment Equity Act
41. Employment Insurance Act
42-46. Energy Monitoring Act 47-48. Financial Administration Act
�� 49-51. Hazardous Materials Information Review Act 52.
Industrial Design Act
53. Migratory Birds Convention Act, 1994
54-57. National Arts Centre Act 58-62. Nuclear Safety and Control Act 63.
Patent Act
64-65. Pension Benefits Division Act 66-77. Pension Benefits Standards Act, 1985 78.
Privacy Act
79-81. Public Service Superannuation Act 82.
Weights and Measures Act
83. Yukon Placer Mining Act
84. Yukon Quartz Mining Act
49-50 ELIZABETH II
CHAPTER 34 An
Act to correct certain anomalies, inconsistencies and errors and to deal with other matters of a non-controversial and uncomplicated nature in the Statutes of Canada and to repeal certain provisions that have expired, lapsed or otherwise ceased to have effect [Assented to 18th December, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Miscellaneous Statute Law Amendment Act, 2001. AMENDMENTS
R.S., c. A-1
Access to Information Act 2. Schedule I to the Access to Information Act is amended by striking out the following under the heading ‘‘Other Government Institutions’’: Petroleum Monitoring Agency Agence de surveillance du secteur pétrolier
1997, c. 33
Anti-Personnel Mines Convention Implementation Act 3. Section 20 of the French version of the Anti-Personnel Mines Convention Implementation Act is replaced by the following:
Modification de l’annexe
20. Dans le cas où la Convention est modifiée, il incombe au ministre de modifier l’annexe en conséquence, par arrêté, dans les plus brefs délais suivant l’entrée en vigueur de la modification. Il fait déposer le texte de celle-ci au Parlement dans les quinze premiers jours de séance de l’une ou l’autre chambre suivant la prise de l’arrêté.
� R.S., c. A-12
C. 34
Miscellaneous Statute L
Arctic Waters Pollution Prevention Act
4. The Arctic Waters Pollution Prevention Act is amended by adding the following after section 3: INCORPORATION BY REFERENCE Incorporation as amended from time to time
3.1 (1) Regulations made under this Act incorporating standards by reference may incorporate them as amended from time to time.
For greater certainty only
(2) Subsection (1) is for greater certainty and does not limit any authority to make regulations incorporating material by reference that exists apart from it.
R.S., c. 41 (4th Supp.), Part I
Atlantic Canada Opportunities Agency Act
5. Section 8 of the Atlantic Canada Opportunities Agency Act is replaced by the following: Shares and related instruments
8. Subject to any regulations, the Minister may acquire, exercise, assign or sell a stock option, share warrant, share or other similar financial instrument obtained as a condition of a loan or contribution made, a guarantee given or loan insurance or credit insurance provided under section 13 or in the course of the collection or enforcement of a debtor’s obligation to the Agency.
1999, c. 28
An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts 6. (1) Subsection 35(11) of the French version of An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts, chapter 28 of the Statutes of Canada, 1999, is replaced by the following:
Loi correcti (11) À l’entrée en vigueur de l’article 54 de la Loi modifiant la législation relative aux institutions financières, chapitre 15 des Lois du Canada (1997), ou à celle de l’alinéa 575(3)b) de la Loi sur les banques, édicté par le paragraphe (1), la dernière en date étant à retenir, l’alinéa 575(3)b) est remplacé par ce qui suit : b) soit consentis à des fins commerciales et dont le capital excède cent mille dollars ou tout autre montant fixé par règlement.
Coming into force
(2) Subsection (1) is deemed to have come into force on June 17, 1999.
1997, c. 26
Budget Implementation Act, 1997 7. Subsection 11(1) of the French version of the Budget Implementation Act, 1997 is renumbered as section 11. 8. The subsection 26(6) of the French version of the Act before section 27 is renumbered as subsection 26(7).
1995, c. 28
Business Development Bank of Canada Act 9. Subsection 14(5) of the French version of the Business Development Bank of Canada Act is replaced by the following:
Achat de biens
(5) Dans le cadre des prêts ou investissements qu’elle fait à une personne, ou des garanties qu’elle lui donne, aux termes du présent article, la Banque peut acquérir, par achat ou autrement, des biens meubles ou immeubles — y compris des comptes clients —, les détenir ou les louer à cette personne et, par la suite, sous réserve de tout droit de rachat, les aliéner, notamment par vente, ou en faire ce qu’elle entend. 10. Section 32 of the Act is replaced by the following:
Restriction
32. The Bank shall not grant a loan, investment or guarantee to a director or officer of the Bank. 11. (1) Subsections 33(1) and (2) of the Act are replaced by the following:
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Disclosure
33. (1) An applicant must disclose in writing to the Bank whether the applicant is an interested person or, if the applicant is a firm or corporation, whether a partner of the firm or a shareholder, director or officer of the corporation is an interested person or a director or officer of the Bank.
Submission of application to Board for approval
(2) If the applicant discloses that the applicant is an interested person, or that a partner, shareholder, director or officer is an interested person or a director or an officer of the Bank, the application must be submitted to the Board for approval before the Bank enters into an agreement to provide the assistance. (2) Paragraph 33(3)(a) of the Act is replaced by the following: (a) a person related to the director as described in paragraph (a), (b) or (c) of the definition ‘‘interested person’’ in section 31; or 12. Section 38 of the Act is replaced by the following:
Use of Bank’s names or initials
R.S., c. C-2
38. Except with the consent in writing of the Bank, a person must not in any prospectus or advertisement, or for any other business purpose, use the name of the Bank or any of the following names or initials: ‘‘Federal Business Development Bank’’, ‘‘Banque fédérale de développement’’, ‘‘Industrial Development Bank’’, ‘‘Banque d’expansion industrielle’’, ‘‘B.D. Canada’’, ‘‘B.D.C.’’, ‘‘B.D.B.C.’’, ‘‘B.F.D.’’ or ‘‘F.B.D.B.’’.
Canada Council Act 13. The long title of the English version of the Canada Council Act is replaced by the following: An Act for the establishment of a Canadian council for the encouragement of the arts 14. Section 1 of the English version of the Act is replaced by the following:
Short title
1. This Act may be cited as the Canada Council for the Arts Act.
2001 1995, c. 29, s. 6
Loi correcti 15. Section 3 of the English version of the Act and the heading before it are replaced by the following: CANADA COUNCIL FOR THE ARTS
Establishment of Council
3. There is hereby established a corporation, to be known as the Canada Council for the Arts, consisting of a Chairperson and Vice-Chairperson and not more than nine other members, to be appointed by the Governor in Council as provided in section 4.
Consequential amendments — other Acts
16. Unless the context requires otherwise, ‘‘Canada Council’’ is replaced by ‘‘Canada Council for the Arts’’ in every Act of Parliament other than the Canada Council for the Arts Act, and more particularly in the following provisions: (a) Schedule I to the Access to Information Act under the heading ‘‘Other Government Institutions’’; (b) Schedule I to the Federal-Provincial Fiscal Arrangements Act; (c) subsection 85(1) of the English version of the Financial Administration Act; (d) Schedule III to the Payments in Lieu of Taxes Act; (e) in the English version of the National Arts Centre Act, (i) subsection 9(1), and (ii) paragraph 9(2)(e); (f) the schedule to the Privacy Act under the heading ‘‘Other Government Institutions’’; and (g) Schedule II to the Public Sector Compensation Act.
Consequential amendments — regulations
17. Unless the context requires otherwise, ‘‘Canada Council’’ is replaced by ‘‘Canada Council for the Arts’’ in every regulation, as defined in section 2 of the Statutory Instruments Act, and more particularly in the following provisions: (a) item 11 of the schedule to the Access to Information Act Heads of Government Institutions Designation Order;
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(b) paragraph 7(b) of the English version of the Garnishment and Attachment Regulations; (c) item 11 of the schedule to the Privacy Act Heads of Government Institutions Designation Order; (d) item 1 of Schedule I to the English version of the Privacy Regulations; (e) the schedule to the English version of the Designation of Certain Portions of the Public Service Order; (f) Schedule I to the Public Service Superannuation Regulations; (g) Schedules III and IV to the English version of the Supplementary Death Benefit Regulations; and (h) Part II of the schedule to the Retirement Compensation Arrangements Regulations, No. 2. R.S., c. L-2
Canada Labour Code
1993, c. 42, s. 22(F)
18. Section 197 of the French version of the Canada Labour Code is replaced by the following:
Majoration pour travail effectué un jour de congé
197. Sauf s’il est occupé à un travail ininterrompu, l’employé qui est tenu de travailler un jour de congé payé touche son salaire normal pour ce jour et, pour les heures de travail fournies, une somme additionnelle correspondant à au moins une fois et demie son salaire normal.
1993, c. 42, s. 23(F)
19. Paragraph 198(a) of the French version of the Act is replaced by the following: a) soit à son salaire normal pour ce jour et, pour les heures de travail fournies, à une somme additionnelle correspondant à au moins une fois et demie son salaire normal; 20. Subsection 202(1) of the French version of the Act is replaced by the following:
Jour férié pendant les 30 premiers jours d’emploi
202. (1) L’employé n’a pas droit à l’indemnité de congé pour un jour férié qui tombe dans ses trente premiers jours de service pour un employeur, mais s’il est tenu de travailler ce jour-là, il a droit, pour les heures de travail fournies, à une somme correspondant à au
Loi correcti moins une fois et demie son salaire normal. Dans le cas où il est occupé à un travail ininterrompu, toutefois, il a seulement droit à son salaire normal pour les heures fournies.
R.S., c. 9 (1st Supp.), s. 10
21. Subsection 209.2(4) of the French version of the Act is replaced by the following:
Continuité d’emploi
(4) Pour le calcul des avantages — autres que les prestations citées au paragraphe (1) — de l’employé en situation de congé sous le régime de la présente section, la durée de l’emploi est réputée ne pas avoir été interrompue, la période de congé n’étant toutefois pas prise en compte.
R.S., c. 9 (1st Supp.), s. 14(3)
22. Subsection 239(3.1) of the French version of the Act is replaced by the following:
Présomption d’emploi ininterrompu
(3.1) Pour le calcul des avantages — autres que les prestations citées au paragraphe (2.1) — de l’employé qui s’absente en raison de maladie ou d’accident et qui remplit les conditions du paragraphe (1), la durée de l’emploi est réputée ne pas avoir été interrompue, la période de congé n’étant toutefois pas prise en compte.
1993, c. 42, s. 33
23. Subsection 239.1(9) of the French version of the Act is replaced by the following:
Présomption d’emploi ininterrompu
(9) Pour le calcul des avantages — autres que les prestations citées au paragraphe (5) — de l’employé qui s’absente en raison d’un accident ou d’une maladie professionnels, la durée de l’emploi est réputée ne pas avoir été interrompue, la période de congé n’étant toutefois pas prise en compte.
2000, c. 32
Canada National Parks Act 24. (1) Section 57 of the Canada National Parks Act and the heading before it are repealed. (2) Subsection (1) is deemed to have come into force on February 18, 2001. 25. Subpart 11(2) of Schedule 1 to the French version of the Act is amended by adding the following after the last paragraph:
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Ladite parcelle renfermant environ 4 345 kilomètres carrés. R.S., c. S-9
Canada Shipping Act
1998, c. 16, s. 15
26. Section 448 of the English version of the Canada Shipping Act is replaced by the following:
Impeding receiver of wrecks
448. Every person who wilfully impedes a receiver of wrecks, a person assisting a receiver of wrecks under subsection 428(1) or a person to whom any powers, duties or functions of a receiver of wrecks have been delegated under section 447.1 in the execution of any duty under this Act, or defaults in appearing or giving evidence before a receiver of wrecks, is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.
1999, c. 33
Canadian Environmental Protection Act, 1999 27. The definition ‘‘transit’’ in subsection 3(1) of the English version of the Canadian Environmental Protection Act, 1999 is replaced by the following
‘‘transit’’ « transit »
‘‘transit’’ means, except for the purposes of sections 139 and 155, the portion of an international transboundary movement of waste or material referred to in subsection 185(1) through the territory of a country that is neither the country of origin nor the country of destination of the movement. 28. Subsection 67(2) of the French version of the Act is replaced by the following:
Condition
(2) Toutefois, dans le cas d’un minéral ou métal, les règlements ne peuvent être pris que si les ministres sont d’avis que l’origine naturelle de celui-ci, ses propriétés et ses particularités, dans l’environnement, sont prises en considération. 29. Paragraph 71(1)(c) of the French version of the Act is replaced by the following: c) sous réserve de l’article 72, envoyer un avis écrit aux personnes qui y sont désignées et qui se livrent, pendant la période qui y est précisée, à une activité comportant
Loi correcti l’importation ou la fabrication de la substance, ou d’un produit la contenant, les obligeant à faire les essais toxicologiques ou autres qui y sont précisés et à lui en envoyer les résultats.
R.S., c. C-22
Canadian Radio-television and Telecommunications Commission Act 30. (1) The definitions ‘‘Chairman’’ and ‘‘Vice-Chairman’’ in section 2 of the English version of the Canadian Radio-television and Telecommunications Commission Act are repealed. (2) Section 2 of the English version of the Act is amended by adding the following in alphabetical order:
‘‘Chairperson’’ « président »
‘‘Chairperson’’ means the Chairperson of the Commission designated by the Governor in Council under subsection 6(1);
‘‘ViceChairperson’’ « vice-président »
‘‘Vice-Chairperson’’ means any Vice-Chairperson of the Commission designated by the Governor in Council under subsection 6(1).
Terminology changes
31. The English version of the Act is amended by replacing ‘‘Chairman’’, ‘‘ViceChairman’’ and ‘‘Vice-Chairmen’’ with ‘‘Chairperson’’, ‘‘Vice-Chairperson’’ and ‘‘Vice-Chairpersons’’, respectively, in the following provisions: (a) section 6 and the heading before it; (b) subsection 7(1); (c) subparagraph 11(1)(c)(i); and (d) subsection 12(2).
Terminology changes — other Acts
32. (1) ‘‘Chairman’’ is replaced by ‘‘Chairperson’’ in the English version of the following provisions: (a) in the Broadcasting Act (i) subsection 18(4), and (ii) subsection 20(1); and (b) subsection 66(2) of the Telecommunications Act.
Terminology changes — regulations
(2) ‘‘Chairman’’ is replaced by ‘‘Chairperson’’ in the following provisions of the following regulations: (a) paragraph 4(2)(a) of the English version of the CRTC Rules of Procedure;
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(b) item 29 of the schedule to the Access to Information Act Heads of Government Institutions Designation Order; (c) item 30 of the schedule to the Privacy Act Heads of Government Institutions Designation Order; and (d) item 29 of the schedule to the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order.
R.S., c. C-36
Companies’ Creditors Arrangement Act
2000, c. 30, s. 156
33. (1) The portion of paragraph 11.4(3)(c) of the English version of the Companies’ Creditors Arrangement Act before subparagraph (i) is replaced by the following: (c) any provision of provincial legislation that has a similar purpose to subsection 224(1.2) of the Income Tax Act, or that refers to that subsection, to the extent that it provides for the collection of a sum, and of any related interest, penalties or other amounts, where the sum (2) Subsection (1) applies to proceedings commenced under the Act after September 29, 1997.
R.S., c. C-42
Copyright Act
1994, c. 47, s. 57(1)
34. Subsection 5(1.01) of the Copyright Act is replaced by the following:
Protection for older works
(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country or a WTO Member after the date of the making or publication of a work shall, as of becoming a Berne Convention country or WTO Member, as the case may be, be deemed to have been a Berne Convention country or WTO Member at the date of the making or publication of the work, subject to subsection (1.02) and section 33.
1997, c. 24, s. 45
35. Paragraph 67.1(4)(a) of the English version of the Act is replaced by the following:
Loi correcti (a) the infringement of the rights, referred to in section 3, to perform a work in public or to communicate it to the public by telecommunication; or
2000, c. 24
Crimes Against Humanity and War Crimes Act 36. Section 43 of the English version of the Crimes Against Humanity and War Crimes Act is replaced by the following: 43. The definition ‘‘offence’’ in section 183 of the Criminal Code is amended by adding, immediately after the reference to ‘‘Export and Import Permits Act,’’, a reference to ‘‘any offence under the Crimes Against Humanity and War Crimes Act,’’.
R.S., c. C-51
Cultural Property Export and Import Act 37. Paragraph 4(2)(a) of the French version of the Cultural Property Export and Import Act is replaced by the following: a) les objets de toute valeur, présentant un intérêt archéologique, préhistorique, historique, artistique ou scientifique, trouvés sur ou dans le sol du Canada, ou dans les limites de la mer territoriale, des eaux internes ou des autres eaux intérieures du Canada;
1995, c. 29, s. 21
38. Paragraph 18(2)(a) of the Act is replaced by the following: (a) up to four other members shall be chosen from among residents of Canada who are or have been officers, members or employees of art galleries, museums, archives, libraries or other collecting institutions in Canada; and
R.S., c. E-4
Electricity and Gas Inspection Act 39. Paragraph 28(1)(n) of the Electricity and Gas Inspection Act is replaced by the following: (n) providing for determination of the quantity, energy density or energy concentration of gas and establishing standards therefor;
�� 1995, c. 44
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40. Subsection 4(8) of the French version of the Employment Equity Act is replaced by the following: Subdélégation
1996, c. 23
(8) Les délégataires visés au paragraphe (7) peuvent, compte tenu des conditions et modalités de la délégation, subdéléguer à une ou plusieurs autres personnes les attributions qui leur ont été ainsi conférées. Employment Insurance Act 41. Paragraph 27(2)(c) of the English version of the Employment Insurance Act is replaced by the following: (c) it is not in the claimant’s usual occupation and is either at a lower rate of earnings or on conditions less favourable than those that the claimant might reasonably expect to obtain, having regard to the conditions that the claimant usually obtained in the claimant’s usual occupation, or would have obtained if the claimant had continued to be so employed.
R.S., c. E-8
Energy Monitoring Act 42. The definition ‘‘Agency’’ in subsection 2(1) of the Energy Monitoring Act is repealed. 43. Section 9 of the Act is repealed.
1994, c. 41, par. 38(1)(b)
44. The heading before section 16 and sections 16 to 29 of the Act are repealed. 45. The Act is amended by adding the following immediately after the heading ‘‘GENERAL’’ after section 15: Reports Regarding Energy Commodities and Energy Enterprises
Reports
29. (1) Subject to subsection (2), the Minister may publish any reports that the Minister considers appropriate and necessary in respect of energy commodities and energy enterprises and their holdings and operations.
2001 Disclosure of certain information only
Loi correcti (2) The Minister shall not disclose in any report published under subsection (1) any statistic, information or documentation obtained by the Minister under this Act or any other Act of Parliament that identifies or permits the identification of the individual, corporation, partnership, trust or organization to which the statistic, information or documentation relates without the written consent of that individual, corporation, partnership, trust or organization. 46. Section 33 of the Act is replaced by the following:
Privilege
33. The statistics, information and documentation obtained by the Minister under this Act, by the Energy Supplies Allocation Board under section 15 or by the persons referred to in paragraphs 34(a) and (b) are privileged and shall not knowingly be or be permitted to be communicated, disclosed or made available without the written consent of the person from whom they were obtained.
R.S., c. F-11
Financial Administration Act
1994, c. 41, s. 25
47. Schedule I.1 to the Financial Administration Act is amended by striking out, in column I, the reference to Petroleum Monitoring Agency Agence de surveillance du secteur pétrolier and the corresponding reference in column II to ‘‘Minister of Natural Resources’’.
1992, c. 1, s. 72; SOR/95-17; 1995, c. 5, s. 28(F)
48. The reference to ‘‘Minister of Transport’’ in column II of Schedule I.1 to the Act, opposite the reference to ‘‘Northern Pipeline Agency’’, is replaced by a reference to ‘‘Minister for International Trade’’.
R.S., c. 24 (3rd Supp.), Part III
Hazardous Materials Information Review Act 49. Subsection 11(3) of the French version of the Hazardous Materials Information Review Act is replaced by the following:
�� Modalités de la demande
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(3) La demande de dérogation est présentée selon les modalités réglementaires et est accompagnée du droit prévu par règlement ou fixé de la manière réglementaire. 50. Subsection 12(2) of the French version of the Act is replaced by the following:
Avis
(2) L’avis visé à l’alinéa (1)a) contient une offre faite à toute partie touchée de présenter auprès de l’agent de contrôle des observations par écrit sur la demande de dérogation et la fiche signalétique ou l’étiquette en cause dans le délai qui est spécifié dans l’avis. 51. Subparagraph 23(1)(b)(i) of the French version of the Act is replaced by the following: (i) du dossier de l’agent de contrôle dont la décision ou l’ordre est frappé d’appel,
R.S., c. I-9
Industrial Design Act 52. Section 19 of the Industrial Design Act and the heading ‘‘Rules, Regulations and Forms’’ before it are repealed.
1994, c. 22
Migratory Birds Convention Act, 1994 53. Paragraph 12(1)(k) of the English version of the Migratory Birds Convention Act, 1994 is replaced by the following: (k) authorizing the Minister to vary or suspend the application of any regulation made under this Act if the Minister considers it necessary to do so for the conservation of migratory birds.
R.S., c. N-3
National Arts Centre Act 54. (1) The definition ‘‘Director’’ in section 2 of the English version of the National Arts Centre Act is repealed. (2) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘President’’ « président »
‘‘President’’ means the President of the Centre appointed under subsection 6(1);
Loi correcti 55. The Act is amended by replacing ‘‘Director’’ with ‘‘President’’ in the following provisions: (a) the heading before section 6 and sections 6 and 7; and (b) sections 13 and 14. 56. Subsection 7(2) of the French version of the Act is amended by replacing ‘‘direction’’ with ‘‘présidence’’.
Consequential amendment — SI/83-114
1997, c. 9
57. Item 59 of the schedule to the Privacy Act Heads of Government Institutions Designation Order is amended by replacing ‘‘Director General/Directeur général’’ in column II with ‘‘President/Président’’.
Nuclear Safety and Control Act 58. (1) Paragraph 21(1)(i) of the French version of the Nuclear Safety and Control Act is replaced by the following: i) accréditer les personnes visées à l’alinéa 44(1)k) pour accomplir leurs fonctions, ou retirer leur accréditation; (2) Paragraph 21(1)(j) of the Act is replaced by the following: (j) authorize the return to work of persons whose dose of radiation has or may have exceeded the prescribed radiation dose limits. 59. Subsection 24(1) of the French version of the Act is replaced by the following:
Catégories
24. (1) La Commission peut établir plusieurs catégories de licences et de permis; chaque licence ou permis autorise le titulaire à exercer celles des activités décrites aux alinéas 26a) à f) que la licence ou le permis mentionne, pendant la durée qui y est également mentionnée. 60. (1) Paragraph 37(2)(b) of the French version of the Act is replaced by the following: b) accréditer les personnes visées à l’alinéa 44(1)k) pour accomplir leurs fonctions, ou retirer leur accréditation;
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(2) Paragraph 37(2)(h) of the Act is replaced by the following: (h) authorize the return to work of persons whose dose of radiation has or may have exceeded the prescribed radiation dose limits. 61. Paragraph 44(1)(l) of the French version of the Act is replaced by the following: l) régir la procédure d’accréditation des personnes visées à l’alinéa k) ou de retrait de leur accréditation et fixer les droits applicables à l’obtention des certificats qui peuvent leur être remis; 62. The Act is amended by adding the following after section 68: Audit
68.1 The accounts and financial transactions of the Commission shall be audited annually by the Auditor General of Canada and a report of the audit shall be made to the Commission and to the Minister.
R.S., c. P-4
Patent Act
1993, c. 15, s. 33
63. Subsection 28.4(2) of the Patent Act is replaced by the following:
Requirements governing request
(2) The request for priority must be made in accordance with the regulations and the applicant must inform the Commissioner of the filing date, country or office of filing and number of each previously regularly filed application on which the request is based.
1992, c. 46, Sch. II
Pension Benefits Division Act 64. Section 14 of the Pension Benefits Division Act is replaced by the following:
Payment out of Consolidated Revenue Fund
14. All amounts payable under this Act shall be paid out of the Consolidated Revenue Fund and be charged to the Consolidated Revenue Fund, to a fund as defined in section 2 of the Public Sector Pension Investment Board Act or to an account or accounts in the accounts of Canada, as provided for by the regulations. 65. Paragraph 16(j) of the Act is replaced by the following:
Loi correcti (j) respecting the charging of amounts payable under this Act to the Consolidated Revenue Fund, to a fund as defined in section 2 of the Public Sector Investment Board Act or to any account or accounts in the accounts of Canada;
R.S., c. 32 (2nd Supp.)
Pension Benefits Standards Act, 1985
1998, c. 12, s. 1(3)
66. The definitions ‘‘former member’’ and ‘‘member’’ in subsection 2(1) of the Pension Benefits Standards Act, 1985 are replaced by the following:
‘‘former member’’ « participant ancien »
‘‘former member’’, in relation to a pension plan, means (a) except in sections 9.2 and 24, a person who, on or after January 1, 1987, has either ceased membership in the plan or retired, (a.1) in section 9.2, a person who has either ceased membership in the plan or retired and has not transferred their pension benefit credit under section 26 before termination of the plan, or (b) in section 24, a person who, before, on or after January 1, 1987, has either ceased membership in the plan or retired;
‘‘member’’ « participant »
‘‘member’’, in relation to a pension plan, means a person who has become a member of the pension plan and has neither ceased membership in the plan nor retired;
1998, c. 12, s. 9
67. (1) Subsection 9.2(4) of the French version of the Act is replaced by the following:
Arbitrage
(4) Sous réserve du paragraphe (5), si plus de la moitié mais moins des deux tiers des membres de chacun des groupes visés au paragraphe (3) ont consenti, l’employeur peut ou doit, selon que l’on se trouve dans la période de validité du régime ou après sa cessation, soumettre la question à l’arbitrage. Il en informe dans tous les cas le surintendant et les personnes faisant partie de ces groupes.
�� 1998, c. 12, s. 9
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(2) The portion of subsection 9.2(5) of the French version of the Act after paragraph (c) is replaced by the following: L’employeur en informe le surintendant et les personnes faisant partie des groupes visés au paragraphe (3).
1998, c. 12, s. 9
(3) Subsection 9.2(7) of the French version of the Act is replaced by the following:
Arbitre
(7) L’arbitre est désigné par l’employeur et les personnes visées au paragraphe (3); en cas de désaccord au terme du délai prévu par règlement, la désignation est faite par le surintendant. 68. (1) The portion of paragraph 17(1)(a) of the French version of the Act before subparagraph (i) is replaced by the following: a) au service d’une prestation de pension différée, qui tient compte de sa période d’emploi et de sa rémunération, jusqu’au moment où sa participation prend fin, dont le mode de calcul et les modalités de paiement sont les mêmes, sous réserve de toute cotisation facultative, que ceux de la prestation de pension immédiate à laquelle il aurait eu droit s’il avait atteint l’âge admissible : (2) The portion of paragraph 17(1)(b) of the French version of the Act before subparagraph (i) is replaced by the following: b) à toute autre prestation ou toute option, qui tiennent compte de sa période d’emploi et de sa rémunération jusqu’au moment où sa participation prend fin, dont le mode de calcul et les modalités de paiement sont les mêmes que ceux de la prestation ou de l’option auxquelles il aurait eu droit s’il avait maintenu sa participation jusqu’à l’âge admissible :
(3) The portion of subsection 17(3) of the French version of the Act before paragraph (a) is replaced by the following:
2001 Acquisition du droit — 1er janvier 1987
Loi correcti (3) Un régime de pension doit prévoir que tout participant, âgé d’au moins quarante-cinq ans, qui travaille de façon continue depuis dix ans pour l’employeur ou qui participe au régime depuis une période ininterrompue de dix ans a droit, à la fin de sa participation, au service d’une prestation de pension différée, qui tient compte de sa période d’emploi et de sa rémunération jusqu’au moment où sa participation prend fin, dont le mode de calcul et les modalités de paiement sont les mêmes, sous réserve de toute cotisation facultative, que ceux de la prestation de pension immédiate à laquelle il aurait eu droit s’il avait atteint l’âge admissible : 69. (1) Paragraph 18(1)(c) of the French version of the Act is replaced by the following: c) que, sous réserve de l’article 26, une personne qui a droit à une prestation visée aux articles 16 ou 17, ou y aurait droit si elle prenait sa retraite ou si sa participation au régime prenait fin, ne peut retirer une partie de ses cotisations à celui-ci, versées en vue d’une telle prestation, sauf les cotisations facultatives, relativement à sa participation à compter du 1er octobre 1967, et que toutes les sommes du fonds de pension imputables à ces cotisations doivent servir, conformément aux dispositions du régime, au service des prestations visées par l’un ou l’autre de ces articles, selon le cas. (2) Paragraph 18(2)(a) of the French version of the Act is replaced by the following: a) le paiement à un participant, à titre d’acquittement partiel de ses créances à compter de la date où sa participation au régime prend fin mais avant qu’il n’ait atteint l’âge admissible, d’un montant global d’au plus vingt-cinq pour cent de la valeur de la prestation de pension différée visée au paragraphe 17(3);
2000, c. 12, s. 256
(3) Paragraph 18(2)(c) of the French version of the Act is replaced by the following: c) que si la prestation de pension annuelle payable est inférieure à quatre pour
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cent — ou à tout autre pourcentage fixé par règlement — du maximum des gains annuels ouvrant droit à pension pour l’année civile au cours de laquelle le participant est décédé ou sa participation a pris fin, les droits à pension peuvent être payés au participant ou à son survivant, selon le cas. 70. Section 20 of the French version of the Act is replaced by the following: Retrait d’argent par les participants
20. Un participant dont la participation à un régime de pension prend fin peut en retirer un montant équivalant à la somme de ses propres cotisations et des intérêts calculés conformément à l’article 19 pour toute période de participation pour laquelle il n’a pas droit à une prestation de pension prévue aux articles 16 ou 17. 71. Subsections 21(1) and (2) of the French version of the Act are replaced by the following:
Droits à pension minimaux
21. (1) Les droits à pension d’un participant à un régime à prestations déterminées doivent, dans le cas où le participant prend sa retraite ou meurt, ou dans le cas où sa participation prend fin, ou ceux de tout participant à un tel régime, dans le cas de la cessation totale ou partielle du régime, être au moins égaux au total des cotisations obligatoires qu’il a dû verser et des intérêts calculés conformément à l’article 19.
Cas particulier
(2) Sous réserve du paragraphe (3) et de l’alinéa 26(3)b), les prestations payables au participant à un régime à prestations déterminées sont augmentées du montant de la prestation de pension pouvant provenir de l’excédent éventuel du total, majoré des intérêts calculés conformément à l’article 19, des cotisations non facultatives versées par le participant après le 31 décembre 1986 sur cinquante pour cent des droits à pension afférents à sa participation après cette date, calculés sans tenir compte du paragraphe (1), si le participant prend sa retraite ou meurt ou si sa participation prend fin après deux années de participation continue. En cas de cessation totale ou partielle du régime, les dispositions de ce paragraphe s’appliquent à tout participant au régime.
Loi correcti
1998, c. 12, s. 15(1); 2000, c. 12, par. 264(a)
72. (1) Subsection 23(1) of the French version of the Act is replaced by the following:
Décès antérieur à l’admission à la retraite anticipée
23. (1) Le survivant du participant actuel ou ancien qui a droit à une prestation de pension différée au titre du paragraphe 17(1), ou du participant actuel qui y aurait droit si sa participation prenait fin, et qui meurt sans avoir droit à la prestation visée au paragraphe 16(2), a droit à la partie des droits à pension, calculés conformément à l’article 21, à laquelle le participant aurait eu droit, à la date de son décès, s’il avait cessé de travailler ce même jour et était toujours vivant, et qui correspond à sa participation au régime après le 31 décembre 1986.
1998, c. 12, s. 15(2)
(2) The portion of subsection 23(3) of the French version of the Act before paragraph (a) is replaced by the following:
Décès d’un participant admissible à la retraite
(3) Le participant actuel ou ancien qui a droit à une prestation de pension différée au titre du paragraphe 17(1), ou le participant actuel qui y aurait droit si sa participation prenait fin, et qui meurt avant le début du service de sa prestation, mais a droit à la prestation visée au paragraphe 16(2), est réputé :
2000, c. 12, s. 259(2)
73. Subsection 25(4) of the French version of the Act is replaced by the following:
Pouvoir de cession au conjoint
(4) Par dérogation au présent article ou au droit provincial des biens, le participant actuel ou ancien peut céder à son époux ou conjoint de fait ou à son ex-époux ou ancien conjoint de fait tout ou partie de ses prestations de pension ou autres ou de ses droits à pension que prévoit le régime, cette cession prenant effet lors du divorce, de l’annulation du mariage, de la séparation ou de l’échec de leur union de fait, selon le cas. Dans le cas d’une telle cession et pour l’application de la présente loi, sauf des paragraphes 21(2) à (6), et relativement à la partie des prestations ou droits cédés : a) le cessionnaire est réputé avoir participé au régime; b) la participation du cessionnaire est réputée avoir pris fin à compter du jour où la cession prend effet.
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L’époux ou conjoint de fait que le cédant peut avoir à l’avenir n’a droit à aucune prestation de pension ou autres ni à aucun droit à pension prévus au régime relativement à la partie ainsi cédée. 1998, c. 12, s. 16(1); 2000, c. 12, par. 264(d)
74. (1) The portion of subsection 26(1) of the French version of the Act before paragraph (a) is replaced by the following:
Transfert avant l’admissibilité à la retraite
26. (1) Le participant dont la participation a pris fin avant qu’il n’ait droit à la prestation visée au paragraphe 16(2), ou son survivant, dans le cas où le participant meurt avant d’y avoir droit, peut, s’il informe l’administrateur de son intention, en la forme réglementaire, dans les quatre-vingt-dix jours suivant l’événement en cause, ou si le surintendant accorde un délai supplémentaire au titre de l’alinéa 28(1)d), dans les soixante jours suivant la remise du relevé visé par cet alinéa :
2000, c. 12, par. 264(d)
(2) The portion of subsection 26(2) of the French version of the Act before paragraph (a) is replaced by the following:
Admissibilité à la retraite
(2) Le régime de pension peut permettre à un participant ou à son survivant, selon le cas, si, après être devenu admissible à la retraite au titre du paragraphe 16(2) mais avant le début du service de la prestation de pension, le participant meurt ou sa participation à un régime de pension prend fin : (3) The portion of subsection 26(3) of the French version of the Act before paragraph (a) is replaced by the following:
Autres dispositions optionnelles
(3) Le régime de pension peut prévoir que, dans le cas où, à un moment donné, un participant meurt ou sa participation prend fin :
2000, c. 12, par. 263(d)
75. Paragraph 28(1)(d) of the Act is replaced by the following: (d) that, where a member of the plan retires, ceases to be a member of the plan or dies, or where the whole or part of the plan is terminated, the administrator shall give to that member (or, in the case of termination, each member) and to the member’s spouse or common-law partner (and, in the case of the member’s death, the member’s legal representative) a written statement, in prescribed form, of the member’s pension
Loi correcti benefits and other benefits payable under the plan, within thirty days, or such longer period as the Superintendent may allow, after the date of the retirement, cessation of membership, death or termination, as the case may be. 76. Paragraph 39(c) of the Act is replaced by the following: (c) prescribing the conditions under which, on the cessation of a member’s membership in a pension plan or on the termination or winding-up of a pension plan, pension benefit credits may be held in trust by the administrator of the plan, or transferred to the administrator of another pension plan or to a registered retirement savings plan of the prescribed kind or to the agency referred to in paragraph 6(1)(d); 77. Subsection 42(2) of the Act is replaced by the following:
Limitation
R.S., c. P-21
(2) Notwithstanding subsection (1), the Pension Benefits Standards Act and the regulations thereunder continue to apply to persons who have, before January 1, 1987, ceased membership in a pension plan or retired.
Privacy Act 78. The schedule to the Privacy Act is amended by striking out the following under the heading ‘‘Other Government Institutions’’: Petroleum Monitoring Agency Agence de surveillance du secteur pétrolier
R.S., c. P-36
Public Service Superannuation Act
1996, c. 18, s. 33
79. Subsection 40.1(1) of the Public Service Superannuation Act is replaced by the following:
Divestiture of service
40.1 (1) Where Her Majesty in right of Canada transfers or otherwise divests Herself of the administration of a service to any person or body, this Act and the regulations made under this Act apply, in the manner and to the extent provided in any regulations made under paragraph 42.1(1)(u), to any contributor who,
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as a result of that transfer or divestiture, ceases to be employed in the Public Service and who, on or after that transfer or divestiture, becomes, directly or through an agent of that person or body, employed by the person or body to whom the service is transferred or divested. 1992, c. 46, s. 21(6)
80. Paragraph 42(1)(pp) of the Act is replaced by the following: (pp) respecting the amount to be paid into the Superannuation Account or the Public Service Pension Fund by any Public Service corporation or other corporation referred to in section 37; 81. Part II of Schedule I to the Act is amended by striking out the following: Petroleum Monitoring Agency Agence de surveillance du secteur pétrolier
R.S., c. W-6
Weights and Measures Act 82. Section 14 of the Weights and Measures Act is replaced by the following:
Replacement or restoration of standards
R.S., c. Y-3
14. If a local standard that is owned by Her Majesty in right of Canada or a reference standard is lost, destroyed, defaced or damaged, the Minister shall take such action as may be necessary to replace or restore the standard. Yukon Placer Mining Act 83. Paragraph 17(2)(g) of the Yukon Placer Mining Act is replaced by the following: (g) within the boundaries of a city, town or village as defined by any ordinance of the Commissioner in Council, unless under regulations made by the Governor in Council; or
R.S., c. Y-4
Yukon Quartz Mining Act
1996, c. 27, par. 10(1)(o)
84. Subsection 43(1) of the Yukon Quartz Mining Act is replaced by the following:
Failure to comply with all formalities
43. (1) Failure on the part of the locator of a mineral claim to comply in every respect with the provisions of this Part does not invalidate the location, if on the facts it
Loi correcti appears to the satisfaction of a mining recorder that the locator has staked out the location as nearly as possible in the required manner, that there has been on the part of the locator an honest attempt to comply with all the provisions of this Part and that the non-observance of any of the requirements of this Part is not likely to mislead other persons who desire to locate claims in the vicinity.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 20
An Act to amend the Parliament of Canada Act, the Members of Parliament Retiring Allowances Act and the Salaries Act
BILL C-28 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Parliament of Canada Act, the Members of Parliament Retiring Allowances Act and the Salaries Act’’.
SUMMARY The main purposes of this enactment are to (a) increase the salaries of members of the Senate and the House of Commons; (b) reduce the accrual and contribution rates in the Members of Parliament Retiring Allowances Act; (c) establish a disability allowance for members over 65; and (d) make consequential adjustments to the Members of Parliament Retiring Allowances Act.
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49-50 ELIZABETH II
CHAPTER 20 An Act to amend the Parliament of Canada Act, the Members of Parliament Retiring Allowances Act and the Salaries Act
[Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. P-1
PARLIAMENT OF CANADA ACT
1. The Parliament of Canada Act is amended by adding the following before the heading ‘‘Sessional Allowances’’ before section 55: Remuneration Reference Amount Reference amount
Retroactive adjustments to reference amount
Adjustment
54.1 (1) Commencing on January 1, 2001, the remuneration reference amount is equal to the amount of the annual salary of the Chief Justice of the Supreme Court of Canada. (2) Adjustments to the remuneration reference amount shall be made retroactively to take into account any retroactive changes in the annual salary of the Chief Justice. 2. (1) The portion of subsection 55(3) of the Act before paragraph (a) is replaced by the following: (3) Subject to subsections (5) and (6) and section 67, for each twelve month period commencing January 1, there shall be paid to each of the members of the Senate and the House of Commons a sessional allowance at the rate per annum that is obtained by multiplying (2) Subsection 55(4) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (a), by striking out the word ‘‘and’’ at the end of paragraph (b) and by repealing paragraph (c).
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(3) The portion of subsection 55(5) of the Act before paragraph (a) is replaced by the following: Sessional allowance for 1984
(5) Subject to section 67, there shall be paid to each of the members of the Senate and the House of Commons for the twelve month period commencing January 1, 1984 a sessional allowance at the rate per annum that is the lesser of (4) Section 55 of the Act is amended by adding the following after subsection (11):
Sessional allowance after January 1, 2001
(12) Notwithstanding anything in this section, the annual sessional allowance that shall be paid, commencing on January 1, 2001, (a) to members of the Senate is equal to 50 per cent of the remuneration reference amount referred to in section 54.1 minus $25,000; and (b) to members of the House of Commons is equal to 50 per cent of the remuneration reference amount referred to in section 54.1. 3. Subsection 57(1) of the Act is replaced by the following:
Deductions for non-attendance
57. (1) A deduction at the rate of $120 per day shall be made from the sessional allowance of a member of either House of Parliament for every day beyond 21 on which the member does not attend a sitting of that House if it sits on that day.
1998, c. 23, ss. 2 to 4
4. Sections 60 to 62 of the Act are replaced by the following:
Presiding officers
60. Commencing on January 1, 2001, there shall be paid to the following members of the Senate or the House of Commons annual salaries equal to the remuneration reference amount referred to in section 54.1 multiplied by the following percentages: (a) the Speaker of the Senate, 17.6 per cent; (b) any member of the Senate occupying the recognized position of Speaker pro tempore of the Senate, 7.3 per cent; (c) the Speaker of the House of Commons, 24 per cent;
Parlement d (d) the Deputy Speaker of the House of Commons, 12.5 per cent; (e) the Deputy Chair of the Committee of the Whole House of Commons, 5.1 per cent; (f) the Assistant Deputy Chair of the Committee of the Whole House of Commons, 5.1 per cent; (g) any member occupying the position of Chair of a Standing Committee of the Senate or of the House of Commons (other than the Liaison Committee of the House of Commons), or of a Standing Joint Committee of Parliament (other than the Standing Joint Committee on the Library of Parliament), 3.6 per cent; and (h) any member occupying the position of Vice-Chair of a Standing Committee of the Senate or of the House of Commons (other than the Liaison Committee of the House of Commons), or of a Standing Joint Committee of Parliament (other than the Standing Joint Committee on the Library of Parliament), 1.9 per cent.
Parliamentary Secretaries
61. Commencing on January 1, 2001, a Parliamentary Secretary shall be paid an annual salary equal to the remuneration reference amount referred to in section 54.1 multiplied by 5.1 per cent.
Additional allowances
62. Commencing on January 1, 2001, there shall be paid to the following members of the Senate or the House of Commons additional annual allowances equal to the remuneration reference amount referred to in section 54.1 multiplied by the following percentages: (a) the member of the Senate occupying the position of Leader of the Government in the Senate, except any such member in receipt of a salary under the Salaries Act, 24 per cent; (b) the member of the Senate occupying the position of Leader of the Opposition in the Senate, 11.5 per cent; (c) the member of the Senate occupying the position of Deputy Leader of the Government in the Senate, 11.5 per cent;
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(d) the member of the Senate occupying the position of Deputy Leader of the Opposition in the Senate, 7.3 per cent; (e) the member of the Senate occupying the position of Government Whip in the Senate, 3.6 per cent; (f) the member of the Senate occupying the position of Opposition Whip in the Senate, 2.2 per cent; (g) the member occupying the position of Leader of the Opposition in the House of Commons, 24 per cent; (h) each member of the House of Commons, other than the Prime Minister or the member occupying the position of Leader of the Opposition in the House of Commons, who is the leader of a party that has a recognized membership of twelve or more persons in the House, 17.1 per cent; (i) each of the members occupying the positions of Chief Government Whip and Chief Opposition Whip in the House of Commons, 9.1 per cent; (j) each of the members occupying the positions of Deputy Government Whip and Deputy Opposition Whip and the position of Whip of a party that has a recognized membership of twelve or more persons in the House of Commons, 3.6 per cent; (k) the member occupying the position of Opposition House Leader in the House of Commons, 12.5 per cent; and (l) the member occupying the position of House Leader of a party that has a recognized membership of twelve or more persons in the House of Commons, 5.1 per cent. 1993, c. 28, s. 78 (Sch. III, s. 119); 2000, c. 9, s. 565
5. Subsections 63(3) and (4) of the Act are repealed. 6. Section 64 of the Act is repealed. 7. Subsection 65(1) of the Act is replaced by the following:
Parlement d
Statement of attendance
65. (1) For each session of Parliament, at the end of each month and at the end of the session, every member of each House of Parliament shall furnish the Clerk of that House with a statement, signed by the member, of the number of days attendance during the month or session, as the case may be, and, in the case of the inclusion of days on which the member has failed to attend by reason of illness, setting out that fact and that the absence was due to that illness and was unavoidable.
1998, c. 23, s. 5
8. Section 66.1 of the Act and the heading before it are repealed.
1991, c. 30, s. 24
9. Sections 67 and 68 of the Act are replaced by the following:
Adjustment of certain salaries and allowances
67. The salaries and allowances payable to members of the Senate and the House of Commons pursuant to subsection 55(12) and sections 60 to 62 that are not a multiple of one hundred dollars shall be rounded to the nearest multiple of one hundred dollars that is lower than the salary or other allowance so determined. 10. (1) Subsection 70(2) of the Act is replaced by the following:
Death or disability
(2) Subject to subsection (2.1) and section 71, where a person who holds a seat in the House of Commons dies or ceases to be a member of the House by reason of any permanent illness or infirmity by which the person is, in the opinion of the Speaker of the House, disabled from performing the person’s duties as a member of the House, there shall be paid to or in respect of the person a severance allowance in accordance with subsection (4).
Exception
(2.1) A severance allowance shall not be paid to or in respect of a person who is entitled to and elects to receive a disability allowance under section 71.1.
2000, c. 27, s. 1(1)
(2) Paragraph 70(4)(b) of the Act is replaced by the following: (b) any salary or allowance under section 60, 61 or 62 of this Act or section 4 of the Salaries Act
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(3) Paragraphs 70(6)(a) and (b) of the Act are replaced by the following: (a) in the case of a person to whom an allowance would not be payable under the Members of Parliament Retiring Allowances Act, one twelfth of the sessional allowance under section 55 and any salary or allowance under section 60, 61 or 62 of this Act or section 4 of the Salaries Act to which the person was entitled immediately before ceasing to be a member, for every year the member was a member, to a maximum of twelve years; and (b) in the case of a person to whom an allowance would be payable under the Members of Parliament Retiring Allowances Act, one twelfth of the sessional allowance under section 55 and any salary or allowance under section 60, 61 or 62 of this Act or section 4 of the Salaries Act to which the person was entitled immediately before ceasing to be a member, for every year the member was a member in the period referred to in subsections 10(1.1) and 32(1.1) of the Members of Parliament Retiring Allowances Act. 11. The Act is amended by adding the following after section 71: Disability Allowance
Entitlement
71.1 (1) A member of the Senate or the House of Commons who resigns by reason of disability may elect to receive an annual disability allowance equal to 70% of the member’s annual salaries and allowances on the date of resignation, if at the time of resignation the member (a) is 65 years of age or over; and (b) is incapable, because of the disability, of performing the member’s duties.
Adjustments
(2) The disability allowance shall be adjusted to take into account changes in the annual salaries and allowances on which the disability allowance was based.
2001 Payment
Parlement d (3) The disability allowance shall be paid (a) in the case of a member of the Senate, until the member revokes the election, attains 75 years of age or dies, whichever is the earliest; or (b) in the case of a member of the House of Commons, until the member revokes the election or dies or the date of the next general election following the member’s resignation, whichever is the earliest.
Regulations
(4) The Governor in Council may make regulations respecting disability allowances, including regulations respecting (a) the determination of eligibility for disability allowances and medical examinations that are required; (b) elections to receive disability allowances and the revocation of elections; and (c) the administration and payment of disability allowances.
Retroactive regulations
(5) Regulations made under subsection (4) may, if they so provide, be retroactive.
1998, c. 23, s. 8
12. Subsection 72(3) of the Act is replaced by the following:
Payments out of C.R.F.
(3) The sessional allowances payable under subsection 55(10), any supplementary severance allowance payable under subsection 70(6) and any disability allowance payable under section 71.1 shall be paid out of the Consolidated Revenue Fund. 13. Paragraph 80(1)(a) of the Act is replaced by the following: (a) to describe or designate a property, place, site or location in the National Capital Region described in the schedule to the National Capital Act other than the area of ground in the City of Ottawa bounded by Wellington Street, the Rideau Canal, the Ottawa River and Kent Street;
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R.S., c. M-5
MEMBERS OF PARLIAMENT RETIRING ALLOWANCES ACT
1992, c. 46, s. 81
14. (1) The definitions ‘‘average annual sessional indemnity’’ and ‘‘salary’’ in subsection 2(1) of the Members of Parliament Retiring Allowances Act are replaced by the following:
‘‘average annual sessional indemnity’’ « moyenne annuelle de l’indemnité de session »
‘‘average annual sessional indemnity’’, with respect to any member, means the average annual sessional indemnity received as a member during any five year period of pensionable service selected by or on behalf of the member, or during any period so selected consisting of consecutive periods of pensionable service totalling five years;
‘‘salary’’ « traitement »
‘‘salary’’ means a salary payable to a member pursuant to section 4 of the Salaries Act or section 60 or 61 of the Parliament of Canada Act, or payable to a member pursuant to an appropriation Act as a minister of state or a minister without portfolio;
1992, c. 46, s. 81
(2) Paragraph (a) of the definition ‘‘sessional indemnity’’ in subsection 2(1) of the Act is replaced by the following: (a) in relation to a period before October 8, 1970, the allowances payable to a member under section 55 and subsection 63(3) of the Parliament of Canada Act, as that subsection read immediately before the coming into force of this paragraph,
1992, c. 46, s. 81
15. Paragraphs 4(1)(a) and (b) of the Act are replaced by the following: (a) the contributions paid pursuant to sections 9 and 11 and contributions made pursuant to subsections 21(7) and 22(3) of the former Act that are paid on or after January 1, 1992; (b) the interest paid in accordance with subparagraphs 11(1)(a)(ii), (a.1)(ii) and (b)(v) and (vi) and paragraph 11(1.1)(b); and
1992, c. 46, s. 81; 2000, c. 27, s. 3
16. (1) Subsections 9(1) and (1.1) of the Act are replaced by the following:
Parlement d
Contributions
9. (1) Commencing on January 1, 2001, a member shall, by reservation from the sessional indemnity of the member, contribute to the Retiring Allowances Account four per cent of that portion of that sessional indemnity that does not exceed the member’s earnings limit for that calendar year.
Contributions
(1.1) Despite subsection 2.3(1), beginning on September 21, 2000 and ending on December 31, 2000, a member who was entitled to elect under sections 2.1 and 2.6 and who did not make an election shall, by reservation from the sessional indemnity of the member, contribute to the Retiring Allowances Account four per cent of the amount payable to the member by way of that sessional indemnity.
1992, c. 46, s. 81
(2) Subsections 9(2) to (4) of the Act are replaced by the following:
Additional contributions
(2) Commencing on January 1, 2001, a member to whom paragraph 12(1)(b) applies who is in receipt of a salary or an annual allowance shall, by reservation from that salary or allowance, contribute to the Retiring Allowances Account an amount equal to four per cent of that portion of that salary or allowance that does not exceed the member’s earnings limit for that year, unless the member elects in respect of that salary or allowance (a) not to contribute under this subsection and has at the same time elected not to contribute under subsection 31(4); or (b) to contribute at a lesser rate than that specified in this subsection.
1992, c. 46, s. 81
17. (1) The portion of subsection 11(1) of the Act before paragraph (b) is replaced by the following:
Contributions in respect of previous sessions
11. (1) Where a member elects to contribute to the Retiring Allowances Account in respect of a previous session, the member shall pay into the Consolidated Revenue Fund (a) if the election is made on or after January 1, 2001 and the member’s sessional indemnity in respect of that previous session exceeds the member’s earnings limit for the calendar year
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(a.1) if the election is made on or after January 1, 1992 and before January 1, 2001, or if the member’s sessional indemnity in respect of that previous session does not exceed the member’s earnings limit for the calendar year and the election is made on or after January 1, 2001, (i) a contribution equal to four per cent of the aggregate of the amounts paid to the member in respect of that previous session (A) by way of sessional indemnity, and (B) by way of salary or annual allowance, if the member so elects to contribute in respect of that salary or annual allowance, and (ii) the interest on that contribution calculated at a rate and in the manner prescribed from the day on which the final payment by way of sessional indemnity, salary or annual allowance, as the case may be, was made to the member in respect of that session to the day on which the election is made; and 2000, c. 27, s. 5(2)
(2) The portion of subsection 11(2) of the Act before paragraph (a) is replaced by the following:
Maximum contribution
(2) Notwithstanding clause (1)(a.1)(i)(B) or subparagraph (1.1)(a)(ii), where the aggregate of amounts paid to a person as a member in respect of one or more previous sessions, or in respect of a particular period, in a calendar year by way of sessional indemnity, salary or annual allowance exceeds
1992, c. 46, s. 81
18. (1) Paragraphs 12(1)(b) and (c) of the Act are replaced by the following:
Parlement d (b) subject to subsection (2), in respect of any amount payable to the member by way of sessional indemnity, after the aggregate of the products obtained by multiplying the number of years of pensionable service to the credit of the member by the multipliers set out in subsection 16(1) and, as applicable, paragraph 36(1)(a) or (b) equals 0.75; or (c) after the member has reached 69 years of age.
1992, c. 46, s. 81
(2) Subsection 12(2) of the Act is replaced by the following:
Exception for one per cent
(2) Commencing on January 1, 2001, a member shall, by reservation from the sessional indemnity payable to the member, continue to contribute under this Part one per cent of that portion of that sessional indemnity that does not exceed the member’s earnings limit for the calendar year, after the aggregate of the products obtained by multiplying the number of years of pensionable service to the credit of the member by the multipliers set out in subsection 16(1) and, as applicable, paragraph 36(1)(a) or (b) equals 0.75.
1992, c. 46, s. 81
19. Subsection 17(4) of the Act is replaced by the following:
Calculation of years of pensionable service after January 1, 1992
(4) For the purposes of paragraph (1)(b), in respect of time spent as a member (a) on or after January 1, 1992, and before January 1, 2001, or any period of pensionable service in respect of which an election under section 10 has been made during that period, a person is, on ceasing to be a member, deemed to have one year of pensionable service to the credit of that person for each amount, equal to four per cent of the sessional indemnity payable to a member of the House of Commons during any calendar year, that the person has, during that calendar year, contributed pursuant to subsection 9(2) or elected to contribute pursuant to clause 11(1)(a)(i)(B), as it read before the coming into force of this paragraph, or pursuant to clause 11(1)(a.1)(i)(B); and
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(b) on or after January 1, 2001, or any period of pensionable service in respect of which an election under section 10 has been made on or after that date, a person is, on ceasing to be a member, deemed to have one year of pensionable service to the credit of that person for each amount, equal to four per cent of the sessional indemnity payable to the person as a member of the Senate or the House of Commons, as the case may be, during any calendar year, that the person has, during that calendar year, contributed pursuant to subsection 9(2) or elected to contribute pursuant to subparagraph 11(1)(a)(i). Exception
(4.1) Subsection (4), as it read before the coming into force of this subsection, applies in respect of a period of pensionable service to a member’s credit pursuant to an election referred to in subsection 36(4).
1992, c. 46, s. 81
20. Paragraph 27(1)(b) of the Act is replaced by the following: (b) the interest paid in accordance with section 33;
1992, c. 46, s. 81; 1995, c. 30, s. 7; 2000, c. 27, s. 6
21. Section 31 of the Act is replaced by the following:
Contributions
31. (1) Commencing on January 1, 2001, a member shall, by reservation from the sessional indemnity of the member, contribute to the Compensation Arrangements Account (a) if the member has not reached 69 years of age, four per cent of that portion of the sessional indemnity payable to the member that exceeds the member’s earnings limit for the calendar year and 3 per cent of the total sessional indemnity payable to the member; or (b) if the member has reached 69 years of age, seven per cent of the amount of the member’s sessional indemnity.
Contributions
(2) Despite subsection 2.3(1), beginning on September 21, 2000 and ending on December 31, 2000, a member who was entitled to elect under sections 2.1 and 2.6 and who did not make an election shall, by reservation from
Parlement d the sessional indemnity of the member, contribute to the Compensation Arrangements Account five per cent of the amount payable to the member by way of sessional indemnity if the member has not reached 71 years of age or nine per cent of that amount if the member has reached 71 years of age.
Additional contribution — members under maximum accrual
(3) A member to whom paragraph 12(1)(b) does not apply and who is in receipt of a salary or an annual allowance shall, commencing on January 1, 2001, unless the member elects not to contribute under this subsection, by reservation from that salary or annual allowance, contribute to the Compensation Arrangements Account an amount equal to 7 per cent of the amount payable to the member by way of that salary or annual allowance.
Additional contribution — members who have reached maximum accrual
(4) A member to whom paragraph 12(1)(b) applies and who is in receipt of a salary or an annual allowance shall, commencing on January 1, 2001, unless the member elects not to contribute under this subsection and has at the same time elected not to contribute under subsection 9(2), by reservation from that salary or annual allowance, contribute to the Compensation Arrangements Account an amount equal to (a) 3 per cent of that portion of the amount payable to the member by way of salary or annual allowance that is less than the member’s earnings limit for the calendar year; and (b) 7 per cent of the amount that exceeds the member’s earnings limit for that year.
2000, c. 27, s. 7(1)
22. Subsection 32(1.1) of the Act is replaced by the following:
Election to contribute in respect of previous period
(1.1) A member who is required to make contributions under subsection 31(2) may, within one year after September 21, 2000, elect to contribute under this Part to the Compensation Arrangements Account in respect of the period that consists of the period during which that member was a member but was not required to make contributions and the period in respect of which that member was paid a withdrawal allowance under subsection 2.3(2).
�� 1995, c. 30, s. 8(1)
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23. (1) The portion of paragraph 33(1)(a) of the Act before subparagraph (i) is replaced by the following: (a) in the case of a member who, before July 13, 1995, makes an election under subsection 32(1) in respect of amounts paid as a member of the House of Commons, a contribution equal to seven per cent if the member has not reached 71 years of age at the time of the making of the election, or equal to eleven per cent if the member has reached that age at that time, of the aggregate of amounts paid to the member as a member of the House of Commons in respect of that previous session
1995, c. 30, s. 8(1)
(2) The portion of paragraph 33(1)(a.1) of the Act before subparagraph (i) is replaced by the following: (a.1) in the case of a member who, on or after July 13, 1995 and before January 1, 2001, makes an election under subsection 32(1) in respect of amounts paid as a member of the House of Commons, a contribution equal to five per cent if the member has not reached 71 years of age at the time of the making of the election, or equal to nine per cent if the member has reached that age at that time, of the aggregate of amounts paid to the member as a member of the House of Commons in respect of that previous session
1992, c. 46, s. 81; 1995, c. 30, s. 8(2)
(3) Subparagraphs 33(1)(b)(i) to (iii) of the Act are replaced by the following: (i) where the election was made on or after July 13, 1995 and before January 1, 2001, a contribution equal to three per cent if the member has not reached 71 years of age at the time of the making of the election, or equal to seven per cent if the member has reached that age at that time, of the aggregate of amounts paid to the member as a member of the Senate in respect of that previous session by way of sessional indemnity, (ii) where the election was made before July 13, 1995, a contribution equal to seven per cent if the member has not
Parlement d reached 71 years of age at the time of the making of the election, or equal to eleven per cent if the member has reached that age at that time, of the aggregate of amounts paid to that member as a member of the Senate in respect of that previous session by way of salary or annual allowance, if the member so elects to contribute in respect of that salary or annual allowance under this subparagraph and, where applicable, subsection (2), and (iii) where the election was made on or after July 13, 1995 and before January 1, 2001, a contribution equal to five per cent if the member has not reached 71 years of age at the time of the making of the election, or equal to nine per cent if the member has reached that age at that time, of the aggregate of amounts paid to that member as a member of the Senate in respect of that previous session by way of salary or annual allowance, if the member so elects to contribute in respect of that salary or annual allowance under this subparagraph and, where applicable, subsection (2); and
1992, c. 46, s. 81
(4) The portion of subsection 33(2) of the English version of the Act before paragraph (a) is replaced by the following:
Maximum contribution
(2) Notwithstanding subparagraphs (1)(a)(ii), (a.1)(ii) and (b)(ii), in the case of a person who has not reached 71 years of age at the time of the making of the election, where the aggregate of amounts paid to the person as a member in respect of one or more previous sessions in a calendar year by way of sessional indemnity, salary or annual allowance exceeds
1995, c. 30, s. 8(3)
(5) Paragraph 33(2)(c) of the Act is replaced by the following: (c) in the case of an election made before July 13, 1995, a contribution equal to eleven per cent of the excess amount and, in the case of an election made on or after that date and before January 1, 2001, a contribution equal to nine per cent of the excess amount, and
��
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(6) Section 33 of the Act is amended by adding the following after subsection (3): Contributions for previous sessions
(4) If a member elects on or after January 1, 2001 to contribute to the Compensation Arrangements Account in respect of a previous session, the member shall pay contributions and interest into the Consolidated Revenue Fund in accordance with the regulations.
1992, c. 46, s. 81
24. (1) Paragraph 34(1)(b) of the Act is replaced by the following: (b) subject to subsections (2) and (2.1), in respect of any amount payable to the member by way of sessional indemnity after the aggregate of the products obtained by multiplying the number of years of pensionable service to the credit of the member by the multipliers set out in subsection 16(1) and, as applicable, paragraph 36(1)(a) or (b) equals 0.75.
1992, c. 46, s. 81
(2) Subsection 34(2) of the Act is replaced by the following:
Exception if member has reached 69 years of age
(2) Commencing on January 1, 2001, a member who has reached 69 years of age shall, by reservation from the sessional indemnity payable to that member, continue to contribute under this Part one per cent of the amount payable to the member by way of sessional indemnity after the aggregate of the products obtained by multiplying the number of years of pensionable service to the credit of the member by the multipliers set out in subsection 16(1) and, as applicable, paragraph 36(1)(a) or (b) equals 0.75.
Exception for 1 per cent
(2.1) Commencing on January 1, 2001, a member to whom subsection 12(2) applies shall contribute to the Compensation Arrangements Account 1 per cent of that portion of the member’s sessional indemnity for the calendar year that exceeds the member’s earnings limit for that year.
1995, c. 30, s. 9(2)
25. (1) Paragraph 36(1)(a) of the Act is replaced by the following: (a) in respect of contributions made as a member of the House of Commons, (i) where the person has not reached 60 years of age,
Parlement d (A) 0.05 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 1992 and before July 13, 1995, (B) 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than pursuant to an election referred to in clause (A), and (C) 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001, otherwise than pursuant to an election referred to in clause (A) or (B), (ii) subject to subparagraphs (iii) and (iv), where the person has reached 60 years of age, (A) 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 1992 and before July 13, 1995, (B) 0.02 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than pursuant to an election referred to in clause (A), and (C) 0.01 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001, otherwise than pursuant to an election referred to in clause (A) or (B),
��
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Parliament (iii) where the person has reached 71 years of age and contributed after that, (A) 0.05 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, in the period commencing on the later of the 71st birthday and January 1, 1992 and ending on July 12, 1995, and (B) 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made, in the period commencing on the later of the 71st birthday and July 13, 1995 and ending on December 31, 2000, or in respect of which an election was made during that period, other than contributions made pursuant to an election referred to in clause (A), and (iv) where the person has reached 69 years of age and contributed after that, 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the later of the 69th birthday and January 1, 2001, or in respect of which an election was made on or after that date, other than contributions made pursuant to an election referred to in subparagraph (iii); and
1995, c. 30, s. 9(2)
(2) Subparagraph 36(1)(b)(iii) of the Act is replaced by the following: (iii) where the person has reached 69 years of age and contributed after that, 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the 69th birthday, otherwise than pursuant to an election made before that birthday.
1995, c. 30, s. 9(2)
(3) Subsection 36(2) of the Act is replaced by the following:
Special case
(2) For the purposes of calculating the compensation allowance payable under subsection (1) to a person who, on or after July 13, 1995 and before January 1, 2001, elected to
Parlement d contribute under this Part in respect of any session or part of a session before that date, the multipliers referred to in paragraph (1)(a) shall, in lieu of the numbers set out in that paragraph, be (a) where the person has not reached 60 years of age, 0.04; (b) subject to paragraph (c), where the person has reached 60 years of age, 0.02; and (c) where the person has reached 71 years of age and contributed thereafter, 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the 71st birthday, otherwise than pursuant to an election made before that birthday.
Special case
(3) For the purposes of calculating the compensation allowance payable under subsection (1) to a person who, on or after January 1, 2001, elected to contribute under this Part in respect of any session or part of a session before that date, the multipliers referred to in paragraph (1)(a) shall, in lieu of the numbers set out in that paragraph, be (a) where the person has not reached 60 years of age, 0.03; (b) subject to paragraph (c), where the person has reached 60 years of age, 0.01; and (c) where the person has reached 69 years of age and contributed after that, 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the 69th birthday, otherwise than pursuant to an election made before that birthday.
Exception
(4) Clauses (1)(a)(i)(B), (ii)(B) and (iii)(B) and subsection (2) shall apply instead of clauses (1)(a)(i)(C) and (ii)(C), subparagraph (1)(a)(iv) and subsection (3) in respect of a period of pensionable service to a member’s credit pursuant to an election made under subsection 10(1) or 32(1) on or after November 27, 2000 and before November 27, 2001, or under subsection 10(1.1) or 32(1.1).
�� 1995, c. 30, s. 10(1)
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26. (1) Paragraphs 37(2)(a) and (b) of the Act are replaced by the following: (a) the average annual sessional indemnity of the person multiplied by the same number of years or portions of years of pensionable service to the credit of the person as is calculated for the purposes of paragraph 17(1)(b) in accordance with subsections 17(4) and (5), multiplied by (i) where the person has not reached 60 years of age, (A) 0.05 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 1992 and before July 13, 1995, (B) 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than pursuant to an election referred to in clause (A), and (C) 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001, otherwise than pursuant to an election referred to in clause (A) or (B), (ii) subject to subparagraphs (iii) and (iv), where the person has reached 60 years of age, (A) 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 1992 and before July 13, 1995, (B) 0.02 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than pursuant to an election referred to in clause (A), and
Parlement d (C) 0.01 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after January 1, 2001, otherwise than pursuant to an election referred to in clause (A) or (B), (iii) where the person has reached 71 years of age and contributed after that, (A) 0.05 for the years or portions of years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, in the period commencing on the later of the 71st birthday and January 1, 1992 and ending on July 12, 1995, and (B) 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made, in the period commencing on the later of the 71st birthday and July 13, 1995 and ending on December 31, 2000, or in respect of which an election was made during that period, other than contributions made pursuant to an election referred to in clause (A), and (iv) where the person has reached 69 years of age and contributed after that, 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the later of the 69th birthday and January 1, 2001, or in respect of which an election was made on or after that date, other than contributions made pursuant to an election referred to in subparagraph (iii); and (b) the average annual sessional indemnity of the person multiplied by the number of years of pensionable service calculated in accordance with subsections (3) and (4), multiplied by (i) 0.05 for the years of pensionable service calculated by reference to those contributions made, or in respect of
��
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Parliament which an election was made, on or after January 1, 1992 and before July 13, 1995, (ii) 0.04 for the years of pensionable service calculated by reference to those contributions made, or in respect of which an election was made, on or after July 13, 1995 and before January 1, 2001, otherwise than pursuant to an election referred to in subparagraph (i), and (iii) 0.03 for the years of pensionable service calculated by reference to those contributions made, otherwise than pursuant to an election referred to in subparagraph (i) or (ii), on or after January 1, 2001.
1995, c. 30, s. 10(2)
(2) Subsection 37(3) of the Act is replaced by the following:
Years of pensionable service
(3) For the purposes of paragraph (2)(b), a person, on ceasing to be a member, is deemed to have one year of pensionable service to the credit of that person for (a) each amount, equal to eleven per cent of the sessional indemnity payable to a member of the House of Commons during any calendar year, that the person has, during that calendar year, contributed or elected to contribute before July 13, 1995 pursuant to paragraph 31(2)(b) or subsection 31(3) or 33(2) as those provisions read before the coming into force of this paragraph or, if the person had reached 71 years of age at the time of making the election, pursuant to subparagraph 33(1)(a)(ii) or (b)(ii); (b) each amount, equal to nine per cent of the sessional indemnity payable to a member of the House of Commons during any calendar year, that the person has, during that calendar year, contributed or elected to contribute on or after July 13, 1995 and before January 1, 2001 pursuant to a provision referred to in paragraph (a); and (c) each amount, equal to seven per cent of the sessional indemnity payable to the person as a member of the Senate or the House of Commons, as the case may be, during any calendar year, that the person has, on or after January 1, 2001, contributed
Parlement d or elected to contribute under subsection 31(3) or (4) or 33(4), other than amounts paid under subsection 33(4) in respect of sessional indemnity or as interest.
1995, c. 30, s. 10(3)
(3) Subsection 37(5) of the Act is replaced by the following:
Special case
(5) For the purposes of calculating the additional compensation allowance payable under subsection (2) to a person who, on or after July 13, 1995 and before January 1, 2001, elected to contribute under this Part in respect of any session or part of a session before January 1, 2001, (a) the multipliers referred to in paragraph (2)(a) shall, in lieu of the numbers set out therein, be (i) where the person has not reached 60 years of age, 0.04, (ii) subject to subparagraph (iii), where the person has reached 60 years of age, 0.02, and (iii) where the person has reached 71 years of age and contributed thereafter, 0.04 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the 71st birthday, otherwise than pursuant to an election made before that birthday; and (b) the multipliers referred to in paragraph (2)(b) shall, in lieu of the numbers set out in that paragraph, be 0.04.
Special case
(6) For the purposes of calculating the additional compensation allowance payable under subsection (2) to a person who, on or after January 1, 2001, elected to contribute under this Part in respect of any session or part of a session before that date, the multipliers referred to in subsection (2) shall, in lieu of the numbers set out in that subsection, be (a) where the person has not reached 60 years of age, 0.03; (b) subject to paragraph (c), where the person has reached 60 years of age, 0.01; and
��
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(c) where the person has reached 69 years of age and contributed after that, 0.03 for the years or portions of years of pensionable service calculated by reference to those contributions made on or after the 69th birthday, otherwise than pursuant to an election made before that birthday. Exception
(7) Clauses (2)(a)(i)(B), (ii)(B) and (iii)(B), subparagraph (2)(b)(ii), paragraph (3)(b) and subsection (4) shall apply instead of clauses (2)(a)(i)(C) and (ii)(C), subparagraphs (2)(a)(iv) and (b)(iii), paragraph (3)(c) and subsection (5) in respect of a period of pensionable service to a member’s credit pursuant to an election made under subsection 10(1) or 32(1) on or after November 27, 2000 and before November 27, 2001, or under subsection 10(1.1) or 32(1.1).
27. The Act is amended by adding the following after section 60: Persons in receipt of disability allowance
60.1 (1) For the purposes of this Act, a person who is entitled to and elects to receive a disability allowance under section 71.1 of the Parliament of Canada Act is deemed to remain a member until the person’s entitlement to that allowance ceases.
Contributions
(2) The contributions that the member is required to make under this Act shall be made by reservation from the member’s disability allowance, commencing on the day that the allowance becomes payable, and shall be calculated in respect of the salaries and allowances on which the disability allowance is based.
1992, c. 46, s. 81
28. Paragraph 64(1)(l) of the Act is replaced by the following: (l) prescribing, for the purposes of sections 9, 11, 12, 31, 33 and 34, the manner of determining a portion of the earnings limit of a member for a calendar year; (l.1) respecting the determination of the amounts of contributions and interest to be paid by members under subsection 33(4);
2001 R.S., c. S-3
Parlement d SALARIES ACT
1998, c. 23, ss. 15 and 16
29. Sections 4 and 5 of the Salaries Act are replaced by the following:
Prime Minister’s annual salary
4. (1) Commencing on January 1, 2001, the Prime Minister’s annual salary is equal to the remuneration reference amount referred to in section 54.1 of the Parliament of Canada Act, multiplied by 50 per cent.
Salaries of ministers
(2) Commencing on January 1, 2001, the annual salary of the following ministers, being members of the Queen’s Privy Council for Canada, is equal to the remuneration reference amount referred to in section 54.1 of the Parliament of Canada Act, multiplied by 24 per cent: (a) the Minister of Justice and Attorney General; (b) the Minister of National Defence; (c) the Minister of National Revenue; (d) the Minister of Finance; (e) the Minister of Transport; (f) the President of the Queen’s Privy Council for Canada; (g) the Minister of Agriculture and AgriFood; (h) the Minister of Labour; (i) the Minister of Veterans Affairs; (j) the Associate Minister of National Defence; (k) the Solicitor General of Canada; (l) the Minister of Indian Affairs and Northern Development; (m) the President of the Treasury Board; (n) the Minister of the Environment; (o) the Leader of the Government in the Senate; (p) the Minister of Fisheries and Oceans; (q) the Minister for International Trade; (r) the Minister for International Cooperation; (s) the Minister of Western Economic Diversification;
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(t) the Member of the Queen’s Privy Council for Canada appointed by Commission under the Great Seal to be the Minister for the purposes of the Atlantic Canada Opportunities Agency Act; (u) the Minister of Citizenship and Immigration; (v) the Minister of Natural Resources; (w) the Minister of Industry; (x) the Minister of Foreign Affairs; (y) the Minister of Public Works and Government Services; (z) the Minister of Canadian Heritage; (z.1) the Minister of Health; and (z.2) the Minister of Human Resources Development. Salaries of ministers of State
(3) Commencing on January 1, 2001, the annual salary of each minister of State, being a member of the Queen’s Privy Council for Canada, who presides over a ministry of State is equal to the remuneration reference amount referred to in section 54.1 of the Parliament of Canada Act, multiplied by 24 per cent. APPLICATION
Amendments apply to members who make an election and to future members
30. (1) The provisions of the Parliament of Canada Act, the Members of Parliament Retiring Allowances Act and the Salaries Act, as amended by this Act, apply (a) to any member of the Senate or the House of Commons who files an election in writing with the Clerk of that House, within 90 days after the day on which this section comes into force, to have them apply to the member; and (b) to any person who becomes a member of the Senate or the House of Commons after the day on which this section comes into force.
Failure to elect
(2) The provisions amended or repealed by this Act, other than paragraph 80(1)(a) of the Parliament of Canada Act as enacted by section 13, apply to any member who
Parlement d fails to make an election under paragraph (1)(a) as they read immediately before the day on which this section comes into force.
Deemed election
(3) A member who dies before making an election under paragraph (1)(a) is deemed to have elected immediately before the member’s death to have the provisions referred to in subsection (1) apply to the member.
Election irrevocable
(4) An election under paragraph (1)(a) is irrevocable.
Coming into force
31. The provisions of this Act come into force, or are deemed to have come into force, on a day or days to be fixed by order of the Governor in Council.
COMING INTO FORCE
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, T hirty-seventh Parliament, 49-50 E lizabeth II, 2001
STAT UT E S OF C A NA DA 2001
C H A PT E R 36
A n A ct to amend the Parliament of C anada A ct (Parliamentary Poet L aureate)
Lo
BIL L S-10
PR
A SSE NT E D T O 18th DE C E M BE R , 2001
SA
S U M M A RY T his enactment creates the position of Parliamentary Poet L aureate.
All parliamentary publications are available on the Parliamentary Internet Parlementaire at the following address: http://www.parl.gc.ca
49-50 E L IZA BE T H II
C H A PT E R 36 An Act to amend the Parliament of Canada Act (Parliamentary Poet Laureate)
Lo
[A ssented to 18th D ecember, 2001]
R.S., c. P-1
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
m ne
1. T he Parliament of C anada Act is amended by adding the following after section 75:
m de
Parliamentary Poet Laureate
75.1 (1) There is hereby established the position of Parliamentary Poet Laureate, the holder of which is an officer of the Library of Parliament
Selection
(2) The Speaker of the Senate and the Speaker of the House of Commons, acting together, shall select the Parliamentary Poet Laureate from a list of three names submitted in confidence by a committee chaired by the Parliamentary Librarian and also composed of the National Librarian, the National Archivist of Canada, the Commissioner of Official Languages for Canada, and the Chair of the Canada Council.
Term
(3) The Parliamentary Poet Laureate holds office for a term not exceeding two years, at the pleasure of the Speaker of the Senate and the Speaker of the House of Commons acting together.
du pe
la co m no bi ail Bi na of Co
po de Sé co
C . 36
2 Roles and responsibilities
P arliament of C anada A ct (P arlia
(4) The Parliamentary Poet Laureate may (a) write poetry, especially for use in Parliament on occasions of state; (b) sponsor poetry readings; (c) give advice to the Parliamentary Librarian regarding the collection of the Library and acquisitions to enrich its cultural holdings; and (d) perform such other related duties as are requested by either Speaker or the Parliamentary Librarian
Published under authority of the Speaker of the House of Commons
Pu
Available from: Public Works and Government Services Canada Publishing, Ottawa, Canada K1A 0S9
En Tra Ot
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 22
An Act to amend the Farm Credit Corporation Act and to make consequential amendments to other Acts
BILL C-25 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment amends the Farm Credit Corporation Act by (a) changing the name of the Corporation to Farm Credit Canada and making consequential amendments to other Acts and to regulations; (b) providing that the primary focus of the Corporation is on farming operations, including family farms; (c) authorizing the Corporation to provide business services, as well as financial services, and to provide loans and guarantees to businesses related to farming, as well as to farming operations, including family farms; (d) extending the Corporation’s capabilities in the provision of financial services by means of the incorporation of subsidiaries, lease financing and equity financing, either directly or through arrangements with other persons or bodies; (e) authorizing the Corporation to enter into agreements for the management of financial risk and to pledge securities or cash or give deposits as security for the performance of its obligations under those agreements; and (f) making improvements in corporate governance by designating the President of the Corporation as its chief executive officer and by providing for the appointment of an acting Chairperson and an acting President.
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49-50 ELIZABETH II
CHAPTER 22 An Act to amend the Farm Credit Corporation Act and to make consequential amendments to other Acts [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1993, c. 14
FARM CREDIT CORPORATION ACT
1. The long title of the Farm Credit Corporation Act is replaced by the following: An Act respecting Farm Credit Canada
Short title
‘‘Corporation’’ « Société »
2. Section 1 of the Act is replaced by the following: 1. This Act may be cited as the Farm Credit Canada Act. 3. (1) The definition ‘‘Corporation’’ in section 2 of the Act is replaced by the following: ‘‘Corporation’’ means Farm Credit Canada continued by subsection 3(1); (2) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘business related to farming’’ « entreprise liée à l’agriculture »
‘‘business related to farming’’ means a business that primarily produces, transports, stores, distributes, supplies, processes or adds value to inputs to or outputs from farming operations;
‘‘subsidiary’’ « filiale »
‘‘subsidiary’’ has the same meaning as in subsection 83(6) of the Financial Administration Act;
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C. 22
Farm Credit C
4. Subsection 3(1) of the Act is replaced by the following: Corporation continued
3. (1) The Farm Credit Corporation, established by section 3 of the Farm Credit Act, is continued as a body corporate under the name Farm Credit Canada. 5. (1) Subsection 4(1) of the Act is replaced by the following:
Purpose
4. (1) The purpose of the Corporation is to enhance rural Canada by providing specialized and personalized business and financial services and products to farming operations, including family farms, and to those businesses in rural Canada, including small and medium-sized businesses, that are businesses related to farming. The primary focus of the activities of the Corporation shall be on farming operations, including family farms. (2) Subparagraph 4(2)(a)(iii) of the Act is replaced by the following: (iii) to pay costs associated with carrying on a farming operation or a business related to farming, (3) Subparagraph 4(2)(a)(v) of the Act is replaced by the following: (v) to acquire, develop or improve real or personal property used or to be used in a business related to farming; (4) Subsection 4(2) of the Act is amended by adding the following after paragraph (f): (f.1) provide business services and products that complement those available from the public and private sectors; (f.2) procure the incorporation, dissolution or amalgamation of subsidiaries and acquire or dispose of any shares in them; (f.3) provide lease financing for assets used or to be used in a farming operation or a business related to farming; (f.4) acquire and dispose of short- or medium-term equity interests in farming operations or in businesses related to farming, within parameters that are satisfactory to the Minister of Finance;
Société du cré (f.41) dispose of farmland acquired by it, provided that the disposal is at fair market value and is done as quickly as possible, and in any case no longer than five years, after the acquisition; (f.5) provide its business and financial services and products, including loans, guarantees, lease financing and equity investments, directly, through arrangements with other persons or bodies or, in the case of financial services, as a member of a financing syndicate;
6. (1) Subsections 7(1) and (2) of the Act are replaced by the following: Chairperson and President
7. (1) The Governor in Council shall appoint a Chairperson of the Board and a President of the Corporation for such terms as the Governor in Council considers appropriate.
Chief executive officer
(2) The President is the chief executive officer and is responsible for the supervision of the business of the Corporation. (2) Subsection 7(4) of the Act is replaced by the following:
Acting Chairperson
(4) If the Chairperson is absent or unable to act or if the office of Chairperson is vacant, the Board may authorize a director to act as Chairperson and that director has all of the duties and may exercise all of the powers of the Chairperson during the absence, inability or vacancy. (3) Section 7 of the Act is amended by adding the following after subsection (5):
Acting President
(6) If the President is absent or unable to act or if the office of President is vacant, the Board may authorize an officer or employee of the Corporation to act as President and that officer or employee has all of the duties and may exercise all of the powers of the President during the absence, inability or vacancy. A person may not act as President for a period of more than 90 days without the approval of the Governor in Council.
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7. Section 14 of the Act is replaced by the following: Financial management
14. (1) The Corporation may enter into any transaction for the financial management of the Corporation, including any instrument or agreement for the management of financial risks, such as interest rate or currency exchange agreements, options, futures contracts and any other similar agreements.
Pledging assets
(2) Notwithstanding section 100 of the Financial Administration Act, the Corporation may pledge any securities or cash held by it or give deposits as security for the performance of its obligations under any financial management instrument or agreement.
TRANSITIONAL PROVISIONS References
8. Every reference to the Farm Credit Corporation in any deed, contract, agreement, instrument or other document executed by the Farm Credit Corporation in its own name is to be read as a reference to Farm Credit Canada, unless the context requires otherwise.
Continuation of property and rights
9. (1) All rights and property of the Farm Credit Corporation continue to be the rights and property of Farm Credit Canada.
Continuation of obligations and liabilities
(2) All obligations and liabilities of the Farm Credit Corporation continue to be the obligations and liabilities of Farm Credit Canada.
Continuation of legal proceedings
(3) Any action, suit or other legal proceeding to which the Farm Credit Corporation is a party that is pending in any court immediately before the day on which this Act comes into force may be continued by or against Farm Credit Canada in like manner and to the same extent as it could have been continued by or against the Farm Credit Corporation.
Société du cré CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act 10. Schedule I to the Access to Information Act is amended by striking out the following under the heading ‘‘Other Government Institutions’’: Farm Credit Corporation Société du crédit agricole 11. Schedule I to the Act is amended by adding the following in alphabetical order under the heading ‘‘Other Government Institutions’’: Farm Credit Canada Financement agricole Canada
R.S., c. F-8; 1995, c. 17, s. 45(1)
Federal-Provincial Fiscal Arrangements Act 12. Schedule I to the Federal-Provincial Fiscal Arrangements Act is amended by striking out the following: Farm Credit Corporation Société du crédit agricole 13. Schedule I to the Act is amended by adding the following in alphabetical order: Farm Credit Canada Financement agricole Canada
R.S., c. F-11
Financial Administration Act 14. Part I of Schedule III to the Financial Administration Act is amended by striking out the following: Farm Credit Corporation Société du crédit agricole 15. Part I of Schedule III to the Act is amended by adding the following in alphabetical order: Farm Credit Canada Financement agricole Canada
� R.S., c. M-13; 2000, c. 8, s. 2
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Farm Credit C Payments in Lieu of Taxes Act
16. Schedule III to the Payment in Lieu of Taxes Act is amended by striking out the following: Farm Credit Corporation Société du crédit agricole 17. Schedule III to the Act is amended by adding the following in alphabetical order: Farm Credit Canada Financement agricole Canada R.S., c. P-21
Privacy Act 18. The schedule to the Privacy Act is amended by striking out the following under the heading ‘‘Other Government Institutions’’: Farm Credit Corporation Société du crédit agricole 19. The schedule to the Act is amended by adding the following in alphabetical order under the heading ‘‘Other Government Institutions’’: Farm Credit Canada Financement agricole Canada
R.S., c. P-36
Public Service Superannuation Act 20. Part III of Schedule I to the Public Service Superannuation Act is amended by striking out the following: Farm Credit Corporation Société du crédit agricole 21. Part III of Schedule I to the Act is amended by adding the following in alphabetical order: Farm Credit Canada Financement agricole Canada
Société du cré Regulations and other Instruments
References in regulations, etc.
22. Every reference to ‘‘Farm Credit Corporation’’ is replaced by a reference to ‘‘Farm Credit Canada’’, and every reference to ‘‘Société du crédit agricole’’ or ‘‘Société de crédit agricole’’ is replaced by a reference to ‘‘Financement agricole Canada’’, with any grammatical modifications or changes in order that are required, in regulations, as defined in section 2 of the Statutory Instruments Act, and in any other instrument made in the execution of a power conferred by or under an Act of Parliament or by or under the authority of the Governor in Council, and more particularly in the following provisions with the changes indicated: (a) section 7100 of the Income Tax Regulations, with the French version of that reference being placed in alphabetical order; (b) paragraph 8604(u) of the Income Tax Regulations; (c) the schedule to the Designation of Certain Portions of the Public Service Order, with the French version of that reference being placed in alphabetical order; (d) Schedule I to the Public Service Superannuation Regulations, with the French version of that reference being placed in alphabetical order; (e) item 39 of the schedule to the English version of the Access to Information Act Heads of Government Institutions Designation Order; (f) item 100 of the schedule to the French version of the Access to Information Act Heads of Government Institutions Designation Order, with that item being renumbered and placed as item 75.1; (g) item 42 of the schedule to the English version of the Privacy Act Heads of Government Institutions Designation Order; (h) item 105 of the schedule to the French version of the Privacy Act Heads of Government Institutions Designation Or�
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der, with that item being renumbered and placed as item 79.1; (i) item 43 of the schedule to the English version of the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order, made by Order in Council P.C. 1993-1073 of May 25, 1993 and registered as SI/93-81; (j) item 104 of the schedule to the French version of the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order, made by Order in Council P.C. 1993-1073 of May 25, 1993 and registered as SI/93-81, with that item being renumbered and placed as item 75.1; and (k) paragraph 13(c) of the Crown Corporation General Regulations, 1995.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 23
An Act to establish a foundation to fund sustainable development technology
BILL C-4 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment establishes the Canada Foundation for Sustainable Development Technology with the objects and purposes of funding projects to develop and demonstrate new technologies to promote sustainable development, including technologies to address climate change and air quality issues.
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TABLE OF PROVISIONS
AN ACT TO ESTABLISH A FOUNDATION TO FUND SUSTAINABLE DEVELOPMENT TECHNOLOGY
SHORT TITLE
1. Short title
2. Definitions
INTERPRETATION
ESTABLISHMENT OF FOUNDATION
3. Foundation incorporated
4. Foundation not agent of Her Majesty
5. Objects and purposes of Foundation
6. Capacity
7. Head office
8. Canada Business Corporations Act
9. Board of directors
10. Terms of office of directors
11. Director representation and experience
12. Remuneration and expenses for directors
DIRECTORS
MEMBERS
13. Membership
14. Terms of members
15. Member representation and experience
16. Expenses for members
17. Staff
STAFF
OPERATIONS
18. Administrative expenses
19. Funding for eligible projects
20. Donations to Foundation
21. Investment policies
22. Investments
23. Borrowing prohibited
24. Delegation by board
�� FINANCIAL MATTERS AND AUDIT
25. Operating and capital budgets
26. Auditor
27. Auditor’s report
28. Audit committee ANNUAL MEETING
29. Annual meeting
30. Annual report
31. Public meeting
ANNUAL REPORT
WINDING-UP
32. Property to be divided
33. Official Languages Act applies
34. Mandatory by-laws
GENERAL
DESIGNATION AND AMENDMENTS CONSEQUENTIAL ON IT
35. Designation by Governor in Council
36-39. Consequential Amendments COMING INTO FORCE
40. Coming into force
49-50 ELIZABETH II
CHAPTER 23 An Act to establish a foundation to fund sustainable development technology
[Assented to 14th June, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Canada Foundation for Sustainable Development Technology Act.
Definitions
2. The definitions in this section apply in this Act.
‘‘board’’ « conseil »
‘‘board’’ means the board of directors of the Foundation appointed under section 9.
‘‘Chairperson’’ « président »
‘‘Chairperson’’ means the Chairperson of the board appointed under paragraph 9(2)(a).
‘‘director’’ « administrateur »
‘‘director’’ means a person who is on the board and includes the Chairperson.
‘‘eligible project’’ « travaux admissibles »
‘‘eligible project’’ means a project carried on, or to be carried on, primarily in Canada by an eligible recipient to develop and demonstrate new technologies to promote sustainable development, including technologies to address climate change and air quality issues.
‘‘eligible recipient’’ « bénéficiaire admissible »
‘‘eligible recipient’’ means an entity that (a) is established in Canada and carries on or, in the opinion of the board, is capable of carrying on eligible projects;
INTERPRETATION
(b) meets the criteria of eligibility established in any agreement entered into between Her Majesty in right of Canada and the Foundation for provision of
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Canada Foundation for Sustain funding by Her Majesty to the Foundation; and (c) has legal capacity or is composed of organizations, each of which has legal capacity.
‘‘employee or agent of Her Majesty in right of a province’’ « fonctionnaire ou mandataire de Sa Majesté du chef d’une province »
‘‘employee or agent of Her Majesty in right of a province’’ does not include an employee or agent of Her Majesty in right of a province whose duties and functions in that capacity are restricted to work in a university, college or other educational institution.
‘‘Foundation’’ « Fondation »
‘‘Foundation’’ means the Canada Foundation for Sustainable Development Technology established by section 3.
‘‘member’’ « membre »
‘‘member’’ means a person who is a member of the Foundation.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the purposes of this Act.
‘‘not-for-profit organization’’ « organisation sans but lucratif »
‘‘not-for-profit organization’’ means a corporation, society, association, university, research institute, organization or body no part of whose income is payable to or otherwise available for the personal benefit of any of its proprietors, members or shareholders.
‘‘special resolution’’ « résolution extraordinaire »
‘‘special resolution’’ means a resolution of the members passed by a majority of not less than two thirds of the votes cast by the members who voted on the resolution at a meeting of members or signed by all the members entitled to vote on the resolution.
‘‘sustainable development’’ « développement durable »
‘‘sustainable development’’ means development that meets the needs of the present without compromising the ability of future generations to meet their own needs. ESTABLISHMENT OF FOUNDATION
Foundation incorporated
3. A corporation without share capital is established, to be called the Canada Foundation for Sustainable Development Technology, consisting of its members and directors.
Foundation not agent of Her Majesty
4. The Foundation is not an agent of Her Majesty.
Fondation du Canada pour l’appui tech
Objects and purposes of Foundation
5. The objects and purposes of the Foundation are to provide funding to eligible recipients for eligible projects.
Capacity
6. For the purposes of carrying out its objects and purposes, the Foundation has the capacity and, subject to this Act, the rights, powers and privileges of a natural person.
Head office
7. The head office of the Foundation shall be in a place in Canada designated by the Governor in Council.
Canada Business Corporations Act
8. (1) The following provisions of the Canada Business Corporations Act apply, with any modifications that the circumstances require, to the Foundation and its directors, members, officers and employees as if the Foundation were a corporation incorporated under that Act, this Act were its articles of incorporation and its members were its shareholders: (a) section 16 (by-law not required to confer powers on Foundation, restriction on powers of Foundation and validity of acts of Foundation); (b) subsection 21(1) (access to Foundation’s records by members and creditors); (c) section 23 (corporate seal not needed to validate instrument); (d) subsections 103(1) to (4) (powers of directors to make and amend by-laws, members’ approval of by-laws and effective date of by-laws); (e) subsection 105(1) (qualifications of directors); (f) subsection 108(2) (resignation of director); (g) section 110 (right of director to attend members’ meetings and statements by retiring directors); (h) subsections 114(1) and (2) (place of directors’ meetings and quorum); (i) section 116 (validity of acts of directors and officers); (j) section 117 (validity of directors’ resolutions not passed at meeting); (k) section 120 (conflict of interest of directors);
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Canada Foundation for Sustain
(l) subsection 122(1) (duty of care of directors and officers); (m) section 123 (directors’ dissents); (n) subsections 124(1) to (4) (indemnification of directors and insurance for directors’ liability); (o) paragraph 133(b) (special meetings of members); (p) section 155 (financial statements); (q) section 158 (approval of financial statements by directors); (r) section 159 (sending financial statements to members before annual meeting and penalty for failure); (s) section 161 (qualifications of auditor); (t) section 168 (rights and duties of auditor); (u) section 169 (examination by auditor); (v) section 170 (right of auditor to information); (w) subsections 171(3) to (9) (duty and administration of audit committee and penalty for failure to comply); (x) section 172 (qualified privilege in defamation for auditor’s statements); and (y) subsections 257(1) and (2) (certificates of Foundation as evidence).
Description with crossreferences
(2) The descriptive words in parentheses that follow a reference to a provision of the Canada Business Corporations Act in subsection (1) form no part of that subsection but are inserted for convenience of reference only.
Canada Corporations Act
(3) The Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, does not apply to the Foundation.
DIRECTORS Board of directors
9. (1) There shall be a board of directors of the Foundation that shall supervise the management of the business and affairs of the Foundation and, subject to the by-laws of the Foundation, exercise all its powers.
2001 Appointment of directors
Fondation du Canada pour l’appui tech (2) Subject to subsection (4), the board consists of (a) the Chairperson of the board appointed by the Governor in Council on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry; (b) six persons appointed by the Governor in Council on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry; and (c) eight persons appointed by the members in accordance with subsection 13(5) and the by-laws of the Foundation.
Eligibility for directors
(3) A person is not eligible to be appointed as a director if the person (a) is a member of the Senate, the House of Commons or the legislature of a province; (b) is an employee or agent of Her Majesty in right of Canada or in right of a province; (c) does not ordinarily reside in Canada; or (d) is disqualified under subsection 105(1) of the Canada Business Corporations Act.
Initial organization
(4) If the Chairperson is appointed before directors have been appointed under paragraph (2)(c), the Chairperson and any other directors that may have been appointed under paragraph (2)(b) constitute the board until directors are appointed under paragraph (2)(c) and may (a) undertake the organization of the Foundation including the appointment of officers and employees; (b) make banking arrangements for the Foundation; (c) enact organizational by-laws for the Foundation; and
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C. 23
Canada Foundation for Sustain
(d) receive on behalf of the Foundation any moneys paid to the Foundation. Limitation
(5) Until directors are appointed under paragraph (2)(c), the Foundation shall not provide any funding from the funds of the Foundation or enter into any agreements or arrangements, or review any applications, for or in respect of funding to be provided from the funds of the Foundation.
Foundation not owned by Crown
(6) The operation of the Foundation under subsection (4) by the Chairperson and any directors appointed under paragraph (2)(b) shall not, despite subsection 83(2) of the Financial Administration Act, result in the Foundation being considered, for the purposes of Part X of that Act or for any other purpose, to be wholly owned directly by Her Majesty in right of Canada.
Terms of office of directors
10. (1) Subject to subsections (2) and (3), the Chairperson and the directors shall be appointed to hold office during good behaviour for terms not exceeding five years.
Removal from office
(2) The Chairperson and any director appointed under paragraph 9(2)(b) may be removed for cause by the Governor in Council. Any director appointed under paragraph 9(2)(c) may be removed for cause by a special resolution.
Continuation in office
(3) Except where they cease to be directors under subsection (6), directors shall continue to hold office until their successors are appointed.
Additional terms of office
(4) A director is eligible to be reappointed for one or more terms not exceeding five years each.
Term of replacements
(5) A person appointed to fill a vacancy in the office of a director who has ceased to hold office before the expiry of the director’s term of office shall be appointed to hold office for the unexpired portion of that term.
Ceasing to be director
(6) A director ceases to be a director when the director (a) dies; (b) resigns; (c) is appointed to the Senate; (d) is elected to the House of Commons or to the legislature of a province;
Fondation du Canada pour l’appui tech (e) becomes an employee or agent of Her Majesty in right of Canada or in right of a province; (f) ceases to be ordinarily resident in Canada; (g) becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or (h) is removed from office under subsection (2).
Director representation and experience
11. The appointment of directors shall be made having regard to the following considerations: (a) the need to ensure, as far as possible, that at all times the board will be representative of (i) persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address climate change and air quality issues, (ii) the business community, and (iii) not-for-profit organizations; (b) the importance of having a board that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and (c) the need for a board that has sufficient knowledge of technologies that promote sustainable development.
Remuneration and expenses for directors
12. (1) From the funds of the Foundation, the directors (a) may be paid remuneration that is fixed by the Foundation’s by-laws; and (b) are entitled to be paid reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.
Directors not to profit
(2) Except as provided under subsection (1), no director shall profit or gain any income or acquire any property from the Foundation or its activities.
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Canada Foundation for Sustain MEMBERS
Membership
13. (1) There shall be 15 members of the Foundation.
First members
(2) On the coming into force of this section, the Governor in Council shall without delay appoint seven persons as members of the Foundation, on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry.
First meeting
(3) As soon as possible after the appointment of the seven members under subsection (2), the Minister shall make arrangements for a first meeting of those members.
Appointing balance of first members
(4) At the first meeting of the seven members appointed under subsection (2), or at a meeting held as soon after that meeting as possible, those members shall appoint eight further members of the Foundation.
Appointment of first directors under paragraph 9(2)(c)
(5) The members shall appoint the first directors under paragraph 9(2)(c) at a meeting held as soon as possible after the eight further members are appointed under subsection (4).
Appointment of successor members
(6) The appointment of a person as a member to succeed a person whose term as a member expires shall be made by the members at a meeting of members.
Filling vacancies
(7) The appointment of a person as a member to fill a vacancy in the membership caused by a person ceasing to be a member before the member’s term as a member expires shall be made by the members at a meeting of members.
Eligibility for members
(8) A person is not eligible to be appointed as a member if the person (a) is a member of the Senate, the House of Commons or the legislature of a province; (b) is an employee or agent of Her Majesty in right of Canada or in right of a province; (c) is a director; (d) does not ordinarily reside in Canada; or (e) is disqualified under subsection 105(1) of the Canada Business Corporations Act.
Fondation du Canada pour l’appui tech
Terms of members
14. (1) Subject to subsections (2) and (3), members shall be appointed to hold office during good behaviour for terms not exceeding five years.
Removal from office
(2) Any member appointed under subsection 13(2) may be removed for cause by the Governor in Council. Any member appointed under subsection 13(4), (6) or (7) may be removed for cause by a special resolution.
Continuation in office
(3) Except where they cease to be members under subsection (6), members shall continue to hold office until their successors are appointed.
Additional terms of office
(4) A member is eligible to be reappointed for one or more terms not exceeding five years each.
Term of Replacements
(5) A person appointed to fill a vacancy in the office of a member who has ceased to hold the office before the expiry of the member’s term of office shall be appointed to hold office for the unexpired portion of that term.
Ceasing to be member
(6) A member ceases to be a member when the member (a) dies; (b) resigns; (c) is appointed to the Senate; (d) is elected to the House of Commons or to the legislature of a province; (e) is appointed as a director; (f) becomes an employee or agent of Her Majesty in right of Canada or in right of a province; (g) ceases to be ordinarily resident in Canada; (h) becomes disqualified under subsection 105(1) of the Canada Business Corporations Act; or (i) is removed from office under subsection (2).
�� Member representation and experience
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Canada Foundation for Sustain
15. The appointment of members shall be made having regard to the following considerations: (a) the need to ensure, as far as possible, that at all times the membership will be representative of (i) persons engaged in the development and demonstration of technologies to promote sustainable development, including technologies to address climate change and air quality issues, (ii) the business community, and (iii) not-for-profit organizations; (b) the importance of having membership that is representative of various regions of Canada and includes men and women who are able to contribute to the achievement of the objects and purposes of the Foundation; and (c) the need for a membership that has sufficient knowledge of technologies that promote sustainable development.
Expenses for members
16. (1) Members shall serve without remuneration but are entitled to be paid from the funds of the Foundation reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence.
Members not to profit
(2) Except as provided under subsection (1), no member shall profit or gain any income or acquire any property from the Foundation or its activities. STAFF
Staff
17. (1) The board may appoint any officers, employees and agents of the Foundation that it considers necessary to carry out the objects and purposes of the Foundation.
Designation of offices
(2) Subject to the by-laws of the Foundation, the board may designate the offices of the Foundation and specify the duties and functions of each office.
Directors and members not employees or agents
(3) Directors and members are not eligible to be employees or agents of the Foundation.
2001 Not part of public service of Canada
Fondation du Canada pour l’appui tech (4) The directors, members, officers, employees and agents of the Foundation are not, because of being directors, members, officers, employees or agents of the Foundation, part of the public service of Canada.
OPERATIONS Administrative expenses
18. From its funds, the Foundation may pay salaries and wages of its officers and employees, rent for its accommodation, remuneration for its directors and agents, reimbursement to the directors and members for reasonable travel and living expenses incurred by them in the performance of their duties under this Act while absent from their ordinary place of residence, and other costs and expenses of carrying on the business of the Foundation.
Funding for eligible projects
19. (1) From its funds, the Foundation may provide funding to eligible recipients to be used by them solely for the purposes of eligible projects in accordance with any terms and conditions specified by the Foundation in respect of the funding, including terms and conditions as to repayment of the funding, intellectual property rights and the maximum amount and proportion of funding for eligible projects to be provided by the Foundation.
Agreement with eligible recipient
(2) The Foundation shall enter into an agreement with an eligible recipient respecting, among other things, (a) the manner in which the Foundation will make advances in respect of funding to the eligible recipient and when those advances will be made; (b) any terms or conditions on which the funding will be provided, including those terms and conditions referred to in subsection (1); (c) the evaluation of the eligible recipient’s performance in achieving the objectives of the eligible project and the evaluation of the results of the project, including the potential performance of the technology that is developed and demonstrated by the project; and (d) if the eligible recipient is composed of organizations, each of which has legal capacity, the requirement for those orga��
C. 23
Canada Foundation for Sustain
nizations to be jointly and severally or solidarily liable for the obligations of that eligible recipient. Foundation not to acquire an interest
(3) In providing funding to an eligible recipient in respect of an eligible project, the Foundation shall not acquire any interest, whether through the acquisition of share capital, a partnership interest or otherwise, in any research infrastructure acquired by the eligible recipient for the project.
Donations to Foundation
20. (1) Subject to subsection (3), the Foundation may accept conditional or unconditional donations of money.
Use of donations
(2) All money donated to the Foundation, and any income arising from the investment of that money, shall be used by the Foundation in carrying out its objects and purposes in accordance with the terms and conditions of any agreement for provision of funding entered into between a donor and the Foundation.
Conditional donations
(3) The Foundation shall not accept a donation of money that is made on the condition that the Foundation use the money or any income arising from the investment of the money for any purpose that is not within the objects and purposes of the Foundation.
Exception
(4) Subsection (3) does not apply if the conditions of a donation of money merely restrict or direct the manner of investing the money until it can be used to provide funding to eligible recipients for eligible projects.
Investment policies
21. The board shall establish investment policies, standards and procedures that a reasonably prudent person would apply in respect of a portfolio of investments to avoid undue risk of loss and obtain a reasonable return, having regard to the Foundation’s obligations and anticipated obligations.
Investments
22. (1) Subject to any conditions of a donation restricting the investment of money donated until it can be used to provide funding to eligible recipients for eligible projects, the Foundation shall invest its funds, and reinvest any income from those funds, in accordance
Fondation du Canada pour l’appui tech with the investment policies, standards and procedures established by the board.
Incorporation of other corporations
(2) The Foundation shall not cause any corporation to be incorporated or participate in the incorporation of a corporation or become a partner in a partnership.
Control of corporation
(3) Except for the investment of its funds, the Foundation shall not carry on any business for gain or profit and shall not hold or acquire any interest in any corporation or enterprise.
Borrowing prohibited
23. (1) The Foundation shall not borrow money, issue any debt obligations or securities, give any guarantees to secure a debt or other obligation of another person or mortgage, pledge or otherwise encumber property of the Foundation.
Real property or immovables
(2) The Foundation shall not purchase or accept a donation of real property or immovables.
Delegation by board
24. (1) Subject to subsection (2), the board may delegate to the Chairperson, a committee of directors or an officer of the Foundation any of the powers or rights of the board.
Restrictions on delegation
(2) The board shall not delegate any power or right of the board (a) to enact, amend or repeal by-laws; (b) to authorize the provision of funding to eligible recipients for eligible projects; (c) to appoint directors to, or fill vacancies on, a committee of the board; (d) to appoint officers of the Foundation or fix their remuneration; (e) to accept donations; (f) to approve the annual financial statements or reports of the Foundation; or (g) to submit to the members any matter requiring the approval of the members.
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Canada Foundation for Sustain FINANCIAL MATTERS AND AUDIT
Operating and capital budgets
25. (1) The board shall cause an operating budget and a capital budget to be prepared for each fiscal year of the Foundation and shall submit those budgets to the members for consideration at the annual meeting of members.
Books of account
(2) The board shall cause books of account and other records to be kept and shall establish financial and management controls, information systems and management practices that will ensure that the business and affairs of the Foundation are carried on, and the financial, human and physical resources of the Foundation are managed effectively, efficiently and economically.
Information systems
(3) The books of account and other records of the Foundation shall be maintained in a way that will ensure that the assets of the Foundation are properly protected and controlled and that its business and affairs are carried on in compliance with this Act and, in particular, in such a way that they will show (a) descriptions and book values of all investments of the Foundation; and (b) the eligible recipients who have received, or are about to receive, funding from the Foundation in respect of eligible projects, the nature and extent of the projects and the amount of the funding.
Auditor
Qualifications of auditor
26. (1) At the first meeting of the members, and in any subsequent fiscal year at the annual meeting, the members shall appoint an auditor for the Foundation for the fiscal year and fix, or authorize the board to fix, the auditor’s remuneration. (2) The auditor shall be (a) a natural person who (i) is a member in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province, (ii) has at least five years experience at a senior level in carrying out audits, (iii) is ordinarily resident in Canada, and
Fondation du Canada pour l’appui tech (iv) is independent of the board, the directors, the members and the officers of the Foundation; or (b) a firm of accountants of which the member or employee jointly designated by the board and the firm to conduct the audit of the books and records of the Foundation on behalf of the firm meets the qualifications set out in paragraph (a).
Continuation of auditor
(3) If an auditor is not appointed at the annual general meeting in any fiscal year, the auditor for the preceding fiscal year continues in office until a successor is appointed.
Removal of auditor
(4) The members may by a special resolution remove an auditor from office.
Ceasing to hold office
(5) An auditor ceases to hold office when the auditor (a) dies; (b) resigns; (c) is removed from office under subsection (4); or (d) no longer meets the requirements under subsection (2).
Replacement
(6) The members may, at a meeting of the members, appoint an auditor to fill any vacancy in the office of the auditor but, if the members fail to fill the vacancy at that meeting or if no meeting of the members is convened without delay after the vacancy occurs, the board may appoint an auditor.
Unexpired term
(7) An auditor appointed to fill a vacancy in the office holds office for the unexpired term of the predecessor in the office.
Auditor’s report
27. The auditor shall, within four months after the end of each fiscal year, complete the audit of the books and records of the Foundation for the fiscal year and submit a report of the audit to the members.
Audit committee
28. (1) The board shall appoint an audit committee consisting of not fewer than three directors and fix the duties and functions of the committee.
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(2) In addition to any other duties and functions that it is required to perform, the audit committee shall cause internal audits to be conducted to ensure compliance by the officers and employees of the Foundation with management and information systems and controls established by the board. ANNUAL MEETING
Annual meeting
29. The board shall call an annual meeting of members not later than six months after the end of each fiscal year of the Foundation for the purpose of (a) examining the audited financial statements and the report of the auditor on those statements for the preceding fiscal year; (b) examining the annual report of the Foundation for the preceding fiscal year; (c) examining the operating budget and the capital budget submitted by the board under subsection 25(1); (d) considering and confirming, rejecting or amending by-laws made by the board or amendments to or the repeal of by-laws made by the board; (e) appointing an auditor under subsection 26(1); and (f) considering any other matter respecting the operations of the Foundation. ANNUAL REPORT
Annual report
30. (1) The Foundation shall, within five months after the end of each fiscal year, prepare an annual report in both official languages of its activities during the preceding fiscal year and include in the report (a) its financial statements for the year as approved by the board and the report of the auditor respecting those statements; (b) a detailed statement of its investment activities during the year, its investment portfolio as at the end of the year and its investment policies, standards and procedures; (c) a detailed statement of its funding activities; (d) a statement of its plans for fulfilling its objects and purposes for the next year; and
Fondation du Canada pour l’appui tech (e) an evaluation of the overall results achieved by the funding of eligible projects by the Foundation during the year in review, and since the inception of the Foundation.
Consideration of report
(2) Before the annual report of the Foundation for a fiscal year is distributed to the public it shall be approved by the board and examined by the members at a meeting of the members.
Distribution of report
(3) After the annual report of the Foundation for a fiscal year is approved as required under subsection (2), the report shall be made public in accordance with the by-laws of the Foundation and a copy shall be sent to the Minister who shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it.
Public meeting
31. (1) After it publishes its annual report for a fiscal year, the Foundation shall convene a public meeting at a city in Canada selected by the board to consider the report and other matters relating to the activities of the Foundation during the year.
Notice of meeting
(2) At least 30 days before the date of a meeting convened under subsection (1) to consider the Foundation’s annual report for a fiscal year, the Foundation shall give notice of the time and place of the meeting in accordance with the by-laws of the Foundation. WINDING-UP
Property to be divided
32. If the Foundation is wound up or dissolved, its property remaining after its debts and obligations have been satisfied shall be liquidated and the moneys arising from the liquidation shall be distributed among all the eligible recipients that have received funding from the Foundation and that are, as of the day the distribution begins, still carrying on projects to develop and demonstrate new technologies to promote sustainable development, to be used by them for the purpose of those projects. Each of those eligible recipients shall receive an amount that is the same proportion of the moneys arising from the liquidation as the total funding received by
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that eligible recipient from the Foundation is of the total of all funding that has been provided by the Foundation to all of those eligible recipients. GENERAL Official Languages Act applies
33. The Official Languages Act applies to the Foundation as if it were a federal institution.
Mandatory by-laws
34. The Foundation shall include in its by-laws provisions (a) entitling an eligible recipient that has made an application for funding from the Foundation to request the board to make a ruling as to the possible conflict of interest of a director in the consideration or disposal of the application; (b) establishing procedures to be followed by the board in responding to the request and giving the ruling; (c) determining the fiscal year of the Foundation; (d) requiring the creation of advisory committees, including technical advisory committees, and their mandates; and (e) fixing the remuneration for directors.
DESIGNATION AND AMENDMENTS CONSEQUENTIAL ON IT Designation by Governor in Council
35. (1) The Governor in Council may, by order, designate, for the purposes of this Act, any corporation incorporated under Part II of the Canada Corporations Act, being chapter C-32 of the Revised Statutes of Canada, 1970.
Sections 36 to 39 apply
(2) If an order is made under subsection (1), sections 36 to 39 apply as of the day on which that order is made. 36. (1) The definitions ‘‘board’’ and ‘‘Foundation’’ in section 2 are replaced by the following:
‘‘board’’ « conseil »
‘‘board’’ means the board of directors of the Foundation.
2001 ‘‘Foundation’’ « Fondation »
Fondation du Canada pour l’appui tech ‘‘Foundation’’ means the Canada Foundation for Sustainable Development Technology referred to in section 3. (2) Section 2 is amended by adding the following in alphabetical order:
‘‘corporation’’ « société »
‘‘corporation’’ means the corporation described in the order made under subsection 35(1). 37. Section 3 and the heading before it are replaced by the following: CONTINUATION OF THE CORPORATION
Continuation
3. (1) The corporation is continued as a corporation without share capital, to be called the Canada Foundation for Sustainable Development Technology, consisting of the Foundation’s members and directors.
Powers, duties and functions
(2) If under any Act of Parliament, any instrument made under an Act of Parliament or any contract, licence or other document, a power, duty or function is vested in or exercisable by the corporation, the power, duty or function is vested in or exercisable by the Foundation.
References
(3) Every reference to the corporation in any deed, contract, agreement or other document executed by the corporation shall, unless the context otherwise requires, be read as a reference to the Foundation.
Rights and obligations
(4) All rights and property of the corporation and all obligations of the corporation are transferred to the Foundation.
Commencement of legal proceedings
(5) Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the corporation may be brought against the Foundation in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the corporation.
Continuation of legal proceedings
(6) Any action, suit or other legal proceeding to which the corporation is party pending in any court immediately before the day on which this section comes into force may be continued by or against the Foundation in like manner and to the same extent as it could have been continued by or against the corporation.
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By-laws
(7) Every by-law of the corporation is, to the extent that it is not inconsistent with this Act, a by-law of the Foundation.
Officers and employees
(8) Nothing in this Act affects the status of any person who, immediately before the day on which this section comes into force, was an officer or employee of the corporation except that, as of that day, the person is an officer or employee, as the case may be, of the Foundation.
Continuation of board of directors of corporation
Members of the corporation Appointing of members First members
38. Subsection 9(1) is replaced by the following: 9. (1) The board of directors of the corporation ceases to exist and there shall be a board of directors of the Foundation that shall supervise the management of the business and affairs of the Foundation and, subject to the by-laws of the Foundation, exercise all its powers. 39. Subsections 13(1) and (2) are replaced by the following: 13. (1) The persons who are members of the corporation cease to be members of the corporation. (1.1) There shall be 15 members of the Foundation. (2) The Governor in Council shall without delay appoint seven persons as members of the Foundation, on the recommendation of the Minister, as proposed by the Minister of Natural Resources and the Minister of the Environment, after consultation with the Minister of Industry. COMING INTO FORCE
Coming into force
40. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 37
An Act to amend the Criminal Code (alcohol ignition interlock device programs)
BILL C-46 ASSENTED TO 18th DECEMBER, 2001
SUMMARY This enactment amends the Criminal Code to allow the court to authorize repeat offenders subject to driving prohibition orders to drive, if they register in a provincial alcohol ignition interlock device program. The enactment provides that no authorization has effect until a minimum period of prohibition has been completed of 3, 6 or 12 months for a first, second or subsequent offence, respectively.
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49-50 ELIZABETH II
CHAPTER 37 An Act to amend the Criminal Code (alcohol ignition interlock device programs)
[Assented to 18th December, 2001] R.S., c. C-46
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1999, c. 32, s. 5(1)
1. Subsection 259(1.1) of the Criminal Code is replaced by the following:
Alcohol ignition interlock device program
(1.1) In making the order, the court may authorize the offender to operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period if the offender registers in an alcohol ignition interlock device program established under the law of the province in which the offender resides.
Minimum absolute prohibition period
(1.2) The authorization has no effect until the expiry of a period fixed by the court (a) of at least 3 months, for a first offence; (b) of at least 6 months, for a second offence; and (c) of at least 12 months, for each subsequent offence.
Change of province of residence
(1.3) The authorization applies to an offender who becomes resident in another province and registers in a program referred to in subsection (1.1) in that province.
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Crimina
(1.4) The authorization has no effect during any period that the offender is not registered in a program referred to in subsection (1.1).
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 33
An Act to amend the Export Development Act and to make consequential amendments to other Acts
BILL C-31 ASSENTED TO 18th DECEMBER, 2001
SUMMARY This enactment amends the Export Development Act by (a) changing the name of the Corporation to Export Development Canada and making consequential amendments to other Acts and to regulations; (b) enabling the Board to delegate its powers and duties to committees that it may establish, other than the executive committee; (c) requiring the Corporation, before entering into a transaction that is related to a project, to determine, in accordance with a directive established by the Board, whether the project is likely to have adverse environmental effects and, if such is the case, whether the Corporation is justified in entering into the transaction; (d) requiring the Auditor General to audit the design and implementation of the directive established by the Board, at least once every five years; (e) providing that the Canadian Environmental Assessment Act cannot be made to apply to certain activities of the Corporation; (f) providing that an environmental assessment is not required under the Canadian Environmental Assessment Act where the Minister for International Trade, the Minister of Finance or the Governor in Council exercise certain powers with respect to the Corporation; and (g) enabling the Board to make by-laws respecting the establishment of a pension plan for the officers and employees of the Corporation and their dependants.
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49-50 ELIZABETH II
CHAPTER 33 An Act to amend the Export Development Act and to make consequential amendments to other Acts [Assented to 18th December, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. E-20
EXPORT DEVELOPMENT ACT
1993, c. 26, s. 1
1. The long title of the Export Development Act is replaced by the following: An Act to establish Export Development Canada and to support and develop trade between Canada and other countries and Canada’s competitiveness in the international market-place
Titre abrégé
2. Section 1 of the French version of the Act is replaced by the following: 1. Loi sur le développement des exportations. 3. (1) The definitions ‘‘Chairman’’ and ‘‘Vice-Chairman’’ in section 2 of the English version of the Act are repealed. (2) The definition ‘‘Corporation’’ in section 2 of the Act is replaced by the following:
‘‘Corporation’’ « Société »
‘‘Corporation’’ means Export Development Canada, the corporation established by section 3; (3) Section 2 of the English version of the Act is amended by adding the following in alphabetical order:
‘‘Chairperson’’ Version anglaise seulement
‘‘Chairperson’’ means the Chairperson of the Board;
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Export Dev
‘‘Vice-chairperson’’ means the Vice-chairperson of the Board. 4. Section 3 of the Act is replaced by the following:
Corporation established
3. A corporation is hereby established, to be known as Export Development Canada, consisting of a Board of Directors composed of fifteen directors, including a Chairperson and a President. 5. The heading before section 7 of the Act is replaced by the following: Committees of the Board 6. The Act is amended by adding the following after section 7:
Other committees
7.1 The Board may establish any other committee and that committee may exercise any powers and perform any duties of the Board delegated to it by the Board. 7. Subsection 8(2) of the Act is replaced by the following:
Management of Corporation vested in President
(2) The President is the chief executive officer of the Corporation and has on behalf of the Board the direction and management of the business of the Corporation, with authority to act in the conduct of the business of the Corporation in all matters that are not by this Act or the by-laws of the Corporation specifically reserved to the Board or any committee of the Board.
1993, c. 26, s. 4(2)
8. Subsection 10(3) of the Act is replaced by the following:
Limit of liability
(3) Subject to subsections (3.1) and (4), the contingent liability of the Corporation in respect of the principal amount owing under all outstanding arrangements entered into under paragraph (1.1)(b) shall at no time exceed the greater of (a) an amount equal to ten times the authorized capital of the Corporation, and (b) seventeen billion, five hundred million dollars.
Appropriation Act
(3.1) The amount referred to in paragraph (3)(b) may be varied in an appropriation Act.
Expansion des 9. The Act is amended by adding the following after section 10: Environmental Effects
Requirement
10.1 (1) Before entering, in the exercise of its powers under subsection 10(1.1), into a transaction that is related to a project, the Corporation must determine, in accordance with the directive referred to in subsection (2), (a) whether the project is likely to have adverse environmental effects despite the implementation of mitigation measures; and (b) if such is the case, whether the Corporation is justified in entering into the transaction.
Directive
(2) The Board shall issue a directive respecting the determination referred to in subsection (1), which directive may (a) define the words and expressions that the Board considers necessary for the application of that subsection, including the words and expressions ‘‘transaction’’, ‘‘project’’, ‘‘adverse environmental effects’’ and ‘‘mitigation measures’’; (b) establish the criteria that the Corporation must apply in making the determination; and (c) establish exceptions specifically or by any class, as defined by the Board, to the Corporation’s obligation to make the determination.
Statutory Instruments Act
(3) The directive is not a statutory instrument for the purposes of the Statutory Instruments Act. 10. (1) Paragraph 16(a) of the Act is replaced by the following: (a) for the regulation of its proceedings, including the delegation of any of its powers and duties to any committee of the Board and the fixing of quorums for meetings of the Board and any committee of the Board; (2) Paragraph 16(d) of the Act is replaced by the following: (d) delegating, subject to any terms and conditions specified in the by-laws and
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despite any delegation of such authority to any committee of the Board, to any one or more officers of the Corporation, jointly or severally, any authority to authorize the Corporation to exercise a power under this Act that is given specifically to the Board by any provision of this Act; (d.1) respecting (i) the establishment, management and administration of a pension plan for the officers and employees of the Corporation and their dependants, (ii) the contributions to be made by the Corporation to the associated pension fund, (iii) the provision of benefits under the pension plan, (iv) the payment of pensions, and (v) the investment of the assets of the fund; and 11. Section 21 of the Act is renumbered as subsection 21(1) and is amended by adding the following: Report re directive
(2) As auditor of the Corporation, the Auditor General must, at least once every five years, audit the design and the implementation of the directive referred to in subsection 10.1(2) and submit a report on the audit to the Board and to the Minister. The Auditor General must submit the report to each House of Parliament on any of the first thirty days on which it is sitting after the report is completed. 12. The Act is amended by adding the following after section 24:
Canadian Environmental Assessment Act: s. 5(1)
24.1 (1) Subsection 5(1) of the Canadian Environmental Assessment Act does not apply where the Minister or the Minister of Finance exercises a power or performs a duty or function under this Act or any regulation made under it, or exercises a power of authorization or approval with respect to the Corporation under any other Act of Parliament or any regulation made under it.
Subsection 5(2)
(2) Subsection 5(2) of the Canadian Environmental Assessment Act does not apply where the Governor in Council exercises a power of authorization or approval under
Expansion des regulations made under this Act, or where the Governor in Council exercises a power of authorization or approval with respect to the Corporation under any other Act of Parliament or regulations made under it.
Subsection 8(1)
(3) Subsection 8(1) of the Canadian Environmental Assessment Act does not apply to the Corporation.
Use of Corporation’s name or initials
24.2 (1) Except with the written consent of the Corporation, no person shall in any prospectus or advertisement, or for any other business purpose, use the following names and initials: ‘‘Export Development Canada’’, ‘‘Exportation et développement Canada’’, ‘‘Export Development Corporation’’, ‘‘Société pour l’expansion des exportations’’, ‘‘E.D.C.’’, ‘‘EDC’’, ‘‘S.E.E.’’ and ‘‘SEE’’.
Offence
(2) A person who contravenes subsection (1) is guilty of an offence and liable on summary conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding six months, or to both.
Replacing ‘‘Chairman’’ and ‘‘ViceChairman’’ with ‘‘Chairperson’’ and ‘‘Vice-chairperson’’
13. The English version of the Act is amended by replacing the words ‘‘Chairman’’ and ‘‘Vice-Chairman’’ with the words ‘‘Chairperson’’ and ‘‘Vice-chairperson’’, respectively, wherever they occur in the following provisions: (a) section 4; (b) section 6; (c) subsection 7(1); and (d) subsection 9(2). TRANSITIONAL PROVISIONS
Powers, duties and functions
14. Wherever, under any Act of Parliament, any instrument made under an Act of Parliament or any contract, lease, licence or other document, a power, duty or function is vested in or exercisable by the Export Development Corporation, that power, duty or function is vested in or exercisable by Export Development Canada.
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References
15. Every reference to the Export Development Corporation in any deed, contract or other document executed by the Export Development Corporation in its own name shall, unless the context otherwise requires, be read as a reference to Export Development Canada.
Rights and obligations transferred
16. All rights and property of the Export Development Corporation, rights and property held in its name or held in trust for it and all its obligations and liabilities are deemed to be rights, property, obligations and liabilities of Export Development Canada.
Continuation of legal proceedings
17. Any legal proceeding to which the Export Development Corporation is party pending in any court immediately before the day on which this section comes into force may be continued by or against Export Development Canada in the same manner and to the same extent as it could have been continued by or against the Export Development Corporation. CONSEQUENTIAL AMENDMENTS
R.S., c. B-7; R.S., c. 24 (1st Supp.), s. 3
Bretton Woods and Related Agreements Act
1998, c. 21, s. 130
18. (1) Subsection 8.3(7) of the Bretton Woods and Related Agreements Act is replaced by the following:
Export Development Canada
(7) Export Development Canada may, on the request of the Minister of Finance, act as agent of the Minister of Finance for the purpose of providing financial assistance to any foreign state under this section.
1998, c. 21, s. 130
(2) Paragraph 8.3(8)(b) of the Act is replaced by the following: (b) to compensate Export Development Canada for its services as agent of the Minister of Finance under subsection (7) in accordance with any agreement between Export Development Canada and the Minister of Finance.
2001 R.S., c. F-8; 1995, c. 17, s. 45(1)
Expansion des Federal-Provincial Fiscal Arrangements Act 19. Schedule I to the Federal-Provincial Fiscal Arrangements Act is amended by striking out the following: Export Development Corporation Société pour l’expansion des exportations 20. Schedule I to the Act is amended by adding the following in alphabetical order: Export Development Canada Exportation et développement Canada
R.S., c. F-11
Financial Administration Act 21. Part I of Schedule III to the Financial Administration Act is amended by striking out the following: Export Development Corporation Société pour l’expansion des exportations 22. Part I of Schedule III to the Act is amended by adding the following in alphabetical order: Export Development Canada Exportation et développement Canada
R.S., c. M-13; 2000, c. 8, s. 2
Payments in Lieu of Taxes Act
23. Schedule IV to the Payments in Lieu of Taxes Act is amended by striking out the following: Export Development Corporation Société pour l’expansion des exportations 24. Schedule IV to the Act is amended by adding the following in alphabetical order: Export Development Canada Exportation et développement Canada
� R.S., c. P-21
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Export Dev Privacy Act
25. The schedule to the Privacy Act is amended by striking out the following under the heading ‘‘Other Government Institutions’’: Export Development Corporation Société pour l’expansion des exportations 26. The schedule to the Act is amended by adding the following in alphabetical order under the heading ‘‘Other Government Institutions’’: Export Development Canada Exportation et développement Canada R.S., c. P-36 SOR/2000-168
Public Service Superannuation Act 27. Part III of Schedule I to the Public Service Superannuation Act is amended by striking out the following: Export Development Corporation Société pour l’expansion des exportations 28. Part III of Schedule I to the Act is amended by adding the following in alphabetical order: Export Development Canada Exportation et développement Canada Other Federal Acts 29. Unless the context requires otherwise, every reference to ‘‘Export Development Corporation’’ is replaced by a reference to ‘‘Export Development Canada’’ in any other Act of Parliament, with any grammatical modifications that are required. Regulations and Other Instruments 30. Unless the context requires otherwise, every reference to ‘‘Export Development Corporation’’ is replaced by a reference to ‘‘Export Development Canada’’, and every reference to ‘‘Société pour l’expansion des exportations’’ is replaced by a reference to ‘‘Exportation et développement Canada’’, with any grammatical modifications or changes in order that are required, in regulations, as defined in section 2 of the Statutory Instruments Act, and in any other
Expansion des instrument made in execution of a power conferred by or under an Act of Parliament or by or under the authority of the Governor in Council, and more particularly in the following provisions with the changes indicated: (a) clause (c)(i)(E) of the definition ‘‘specified international finance trust’’ in subsection 5000(7) of the Income Tax Regulations; (b) the schedule to the Designation of Certain Portions of the Public Service Order, with the French version of that reference being placed in alphabetical order; (c) Schedule I to the Public Service Superannuation Regulations, with the French version of that reference being placed in alphabetical order; (d) item 41 of the schedule to the English version of the Privacy Act Heads of Government Institutions Designation Order; (e) item 108 of the schedule to the French version of the Privacy Act Heads of Government Institutions Designation Order, with that item being renumbered and placed as item 79.1; (f) item 42 of the schedule to the English version of the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order, made by Order in Council P.C. 1993-1073 of May 25, 1993 and registered as SI/93-81; (g) item 110 of the schedule to the French version of the Canadian Security Intelligence Service Act Deputy Heads of the Public Service of Canada Order, made by Order in Council P.C. 1993-1073 of May 25, 1993 and registered as SI/93-81, with that item being renumbered and placed as item 75.1; (h) paragraph (b) of Order in Council P.C. 1993-1454 made on June 25, 1993 and registered as SI/93-108; (i) the long title and section 1 of the Export Development Corporation Exercise of Certain Powers Regulations; and
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(j) paragraph 13(b) of the Crown Corporation General Regulations, 1995.
31. Unless the context requires otherwise, every reference to ‘‘Loi sur l’expansion des exportations’’ is replaced by a reference to ‘‘Loi sur le développement des exportations’’ in the French version of regulations, as defined in section 2 of the Statutory Instruments Act, made under any Act of Parliament and more particularly in the following provisions: (a) paragraph (a) of the French version of Order in Council P.C. 1993-1454 made on June 25, 1993 and registered as SI/93-108; and (b) the definition ‘‘Loi’’ in section 2 of the French version of the Export Development Canada Exercise of Certain Powers Regulations. COMING INTO FORCE Coming into force
32. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 27
An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger
BILL C-11 ASSENTED TO 1st NOVEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger’’.
SUMMARY This enactment replaces the existing Immigration Act, providing clearer, modern legislation to ensure that Canada’s immigration and refugee protection system is able to respond to new challenges and opportunities. The enactment provides for (a) objectives that reflect the values of Canadian society; (b) effective reporting to Parliament through a complete, consolidated annual report; (c) agreements that facilitate cooperation with provinces and foreign states; (d) a description of the major classes of foreign nationals — economic class, family class, and Convention refugees and persons in similar circumstances; (e) recognition of Canada’s commitment to the principle of the ‘‘best interest of the child’’; (f) clear, objective residency requirements for permanent residents; (g) a strong, effective refugee protection program that incorporates the protection grounds of the Geneva Convention and the Convention Against Torture and the grounds of risk to life or of cruel and unusual treatment or punishment; (h) a more efficient refugee determination process through greater use of single member panels; (i) a Refugee Appeal Division within the Immigration and Refugee Board to enhance fairness and consistency in decision-making; (j) tightened ineligibility provisions for serious criminals, security threats and repeat claimants who seek access to the refugee protection process of the Immigration and Refugee Board; (k) formalization of a pre-removal risk assessment to review changed circumstances related to risk of return; (l) inadmissibility provisions for criminals, persons who constitute security threats, violators of human rights and persons who should not be allowed into Canada because of fraud, misrepresentation, financial reasons or health concerns;
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(m) clear detention criteria with authority to further clarify detention grounds in regulations; (n) enhanced procedures for dealing with security threats through admissibility hearings and the security certificate process; (o) offences for human smuggling and trafficking with a maximum penalty of life in prison; (p) penalties for assisting in obtaining immigration status by fraud or misrepresentation; and (q) an immigration appeal system that enhances integrity and effectiveness while maintaining fairness and legal safeguards.
TABLE OF PROVISIONS
AN ACT RESPECTING IMMIGRATION TO CANADA AND THE GRANTING OF REFUGEE PROTECTION TO PERSONS WHO ARE DISPLACED, PERSECUTED OR IN DANGER SHORT TITLE
1. Short title
2. Definitions
INTERPRETATION
OBJECTIVES AND APPLICATION
3. Objectives — immigration ENABLING AUTHORITY
4. Minister
5. Regulations
6. Designation of officers AGREEMENTS
7. International agreements
8. Federal-provincial agreements
9. Sole provincial responsibility — permanent residents
10. Consultations with the provinces PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS BEFORE ENTERING CANADA AND SELECTION Requirements Before Entering Canada
11. Application before entering Canada Selection of Permanent Residents
12. Family reunification Sponsorship of Foreign Nationals
13. Right to sponsor family member Regulations
14. Regulations
�� DIVISION 2 EXAMINATION 15.
Examination by officer
16. Obligation — answer truthfully
17. Regulations DIVISION 3 ENTERING AND REMAINING IN CANADA Entering and Remaining
18. Examination by officer
19. Right of entry of citizens and Indians
20. Obligation on entry Status and Authorization to Enter
21. Permanent resident
22. Temporary resident
23. Entry to complete examination or hearing
24. Temporary resident permit
25. Humanitarian and compassionate considerations
26. Regulations
Rights and Obligations of Permanent and Temporary Residents 27.
Right of permanent residents
28. Residency obligation
29. Right of temporary residents
30. Work and study in Canada Status Document
31. Status document Regulations
32. Regulations DIVISION 4 INADMISSIBILITY
33. Rules of interpretation
34. Security
35. Human or international rights violations
36. Serious criminality
37. Organized criminality
38. Health grounds
39. Financial reasons
40. Misrepresentation
41. Non-compliance with Act
�� 42.
Inadmissible family member
43. Regulations DIVISION 5 LOSS OF STATUS AND REMOVAL Report on Inadmissibility
44. Preparation of report Admissibility Hearing by the Immigration Division
45. Decision Loss of Status
46. Permanent resident
47. Temporary resident Enforcement of Removal Orders
48. Enforceable removal order
49. In force
50. Stay
51. Void — permanent residence
52. No return without prescribed authorization Regulations
53. Regulations DIVISION 6 DETENTION AND RELEASE
54. Competent jurisdiction
55. Arrest and detention with warrant
56. Release — officer
57. Review of detention
58. Release — Immigration Division
59. Incarcerated foreign nationals
60. Minor children
61. Regulations DIVISION 7 RIGHT OF APPEAL
62. Competent jurisdiction
63. Right to appeal — visa refusal of family class
64. No appeal for inadmissibility
65. Humanitarian and compassionate considerations
66. Disposition
67. Appeal allowed
68. Removal order stayed
69. Dismissal
�� 70.
Decision binding
71. Reopening appeal DIVISION 8 JUDICIAL REVIEW
72. Application for judicial review
73. Right of Minister
74. Judicial review
75. Rules DIVISION 9 PROTECTION OF INFORMATION
Examination on Request by the Minister and the Solicitor General of Canada 76.
Definitions
77. Referral of certificate
78. Judicial consideration
79. Proceedings suspended
80. Determination that certificate is reasonable
81. Effect of determination — removal order Detention
82. Detention of permanent resident
83. Review of decision for detention
84. Release
85. Inconsistency
Consideration During an Admissibility Hearing or an Immigration Appeal 86.
Application for non-disclosure — Immigration Appeal Division Consideration During Judicial Review
87. Application for non-disclosure — Court DIVISION 10 GENERAL PROVISIONS Loans
88. Loans Fees
89. Regulations Social Insurance Number Cards
90. Minister directs special cards to be issued
� Representation 91.
Regulations Material Incorporated in Regulations
92. Incorporated material
93. Statutory Instruments Act Report to Parliament
94. Annual report to Parliament PART 2 REFUGEE PROTECTION DIVISION 1
REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION 95.
Conferral of refugee protection
96. Convention refugee
97. Person in need of protection
98. Exclusion — Refugee Convention DIVISION 2
CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION Claim for Refugee Protection 99.
Claim Examination of Eligibility to Refer Claim
100. Referral to Refugee Protection Division
101. Ineligibility
102. Regulations Suspension or Termination of Consideration of Claim
103. Suspension
104. Notice of ineligible claim Extradition Procedure
105. Suspension if proceeding under Extradition Act Claimant Without Identification
106. Credibility Decision on Claim for Refugee Protection
107. Decision Cessation of Refugee Protection
108. Rejection
� Applications to Vacate 109.
Vacation of refugee protection Appeal to Refugee Appeal Division
110. Appeal
111. Decision DIVISION 3 PRE-REMOVAL RISK ASSESSMENT Protection
112. Application for protection
113. Consideration of application
114. Effect of decision Principle of Non-refoulement
115. Protection
116. Regulations PART 3 ENFORCEMENT Human Smuggling and Trafficking
117. Organizing entry into Canada
118. Offence — trafficking in persons
119. Disembarking persons at sea
120. Penalties
121. Aggravating factors Offences Related to Documents
122. Documents
123. Penalty General Offences
124. Contravention of Act
125. Penalties
126. Counselling misrepresentation
127. Misrepresentation
128. Penalties
129. Offences relating to officers Proceeds of Crime
130. Possession of property obtained by certain offences
131. Counselling offence
132. Part XII.2 of the Criminal Code applicable
�� Prosecution of Offences 133.
Deferral
134. Defence — incorporation by reference
135. Offences outside Canada
136. Venue Forfeiture
137. Forfeiture Officers Authorized to Enforce Act
138. Powers of peace officer
139. Search
140. Seizure
141. Oaths and evidence
142. Duties of peace officers to execute orders
143. Authority to execute warrants and orders
Peace Officers
Ticketable Offences 144.
Prosecution of designated offences Debt Due to Her Majesty
145. Debts due Collection of Debts Due to Her Majesty
146. Certificates
147. Garnishment Transportation Companies
148. Obligation of operators of vehicles and facilities
149. Use of information
150. Regulations PART 4 IMMIGRATION AND REFUGEE BOARD Composition of Board
151. Immigration and Refugee Board
152. Composition
153. Chairperson and other members
154. Disposition after member ceases to hold office
155. Disposition if member unable to take part
156. Immunity and no summons
�� Head Office and Staff 157.
Head office
158. Personnel
159. Chairperson
160. Absence, incapacity or vacancy
161. Rules
Duties of Chairperson
Functioning of Board
Provisions that Apply to All Divisions 162.
Sole and exclusive jurisdiction
163. Composition of panels
164. Presence of parties
165. Powers of a commissioner
166. Proceedings — all Divisions
167. Right to counsel
168. Abandonment of proceeding
169. Decisions and reasons Refugee Protection Division
170. Proceedings Refugee Appeal Division
171. Proceedings Immigration Division
172. Composition
173. Proceedings Immigration Appeal Division
174. Court of record
175. Proceedings Remedial and Disciplinary Measures
176. Request
177. Measures
178. Appointment of inquirer
179. Powers
180. Staff
181. Exceptions to public hearing
182. Rules of evidence
183. Right to be heard
184. Report to Minister
185. Transmission of report to Governor in Council
186. Rights not affected
�� PART 5 TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND RELATED AMENDMENTS, COORDINATING AMENDMENTS, REPEALS AND COMING INTO FORCE Transitional Provisions 187.
Definition of ‘‘former Act’’
188. Continuation
189. Powers
190. Application of this Act
191. Convention Refugee Determination Division
192. Immigration Appeal Division
193. Continuation by Immigration Division
194. Refugee Protection Division
195. Convention Refugee Determination Division
196. Appeals
197. Stays
198. Refugee Protection Division
199. Redetermination
200. Exclusion
201. Regulations Consequential and Related Amendments
202. Access to Information Act
203. Agricultural Marketing Programs Act
204-205. Animal Pedigree Act 206.
Bank Act
207. Budget Implementation Act, 1998
208. Business Development Bank of Canada Act
209. Canada Business Corporations Act
210. Canada Customs and Revenue Agency Act
211-214. Canada Elections Act 215.
Canada Labour Code
216-218. Canada Shipping Act 219.
Canada Student Financial Assistance Act
220. Canada Student Loans Act
221-222. Canada Transportation Act 223-226. Canadian Security Intelligence Service Act 227.
Chemical Weapons Convention Implementation Act
227.1-232.Citizenship Act 233. 234.
Comprehensive Nuclear Test-Ban Treaty Implementation Act Cooperative Credit Associations Act
� 235-241. Copyright Act 242-243. Corrections and Conditional Release Act 244-247. Criminal Code 248-249. Emergencies Act 250-252. Extradition Act 253.
Foreign Publishers Advertising Services Act
254. Income Tax Act
255. Insurance Companies Act
256-258. International Centre for Human Rights and Democratic Development Act 259. Investment Canada Act 260.
Labour Adjustment Benefits Act
261. Mutual Legal Assistance in Criminal Matters Act
262. National Energy Board Act
263-267. Old Age Security Act 268.
Pilotage Act
269. Privacy Act
270. Proceeds of Crime (Money Laundering) Act
271. Trade-marks Act
272. Trust and Loan Companies Act
273. Terminology Coordinating Amendments
273.1
Bill S-2
274. Repeals
Repeals
Coming Into Force 275.
Coming into force SCHEDULE
49-50 ELIZABETH II
CHAPTER 27 An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger [Assented to 1st November, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Immigration and Refugee Protection Act.
Definitions
2. (1) The definitions in this subsection apply in this Act.
‘‘Board’’ « Commission »
‘‘Board’’ means the Immigration and Refugee Board, which consists of the Refugee Protection Division, Refugee Appeal Division, Immigration Division and Immigration Appeal Division.
‘‘Convention Against Torture’’ « Convention contre la torture »
‘‘Convention Against Torture’’ means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, signed at New York on December 10, 1984. Article 1 of the Convention Against Torture is set out in the schedule.
‘‘foreign national’’ « étranger »
‘‘foreign national’’ means a person who is not a Canadian citizen or a permanent resident, and includes a stateless person.
‘‘permanent resident’’ « résident permanent »
‘‘permanent resident’’ means a person who has acquired permanent resident status and has not subsequently lost that status under section 46.
‘‘Refugee Convention’’ « Convention sur les réfugiés »
‘‘Refugee Convention’’ means the United Nations Convention Relating to the Status of Refugees, signed at Geneva on July 28, 1951, and the Protocol to that Convention,
INTERPRETATION
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signed at New York on January 31, 1967. Sections E and F of Article 1 of the Refugee Convention are set out in the schedule. Act includes regulations
(2) Unless otherwise indicated, references in this Act to ‘‘this Act’’ include regulations made under it.
OBJECTIVES AND APPLICATION Objectives — immigration
3. (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect the health and safety of Canadians and to maintain the security of Canadian society;
Immigration et prote (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.
Objectives — refugees
(2) The objectives of this Act with respect to refugees are (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals.
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(3) This Act is to be construed and applied in a manner that (a) furthers the domestic and international interests of Canada; (b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs; (c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations; (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; (e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and (f) complies with international human rights instruments to which Canada is signatory.
ENABLING AUTHORITY Minister
4. The Minister responsible for the administration of this Act is the member of the Queen’s Privy Council designated as such by the Governor in Council.
Regulations
5. (1) Except as otherwise provided, the Governor in Council may make any regulation that is referred to in this Act or that prescribes any matter whose prescription is referred to in this Act.
Tabling and referral of proposed regulations
(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116 and 150 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.
Alteration of proposed regulation
(3) A proposed regulation that has been laid before each House of Parliament under subsection (2) does not need to be so laid again, whether or not it has been altered.
Immigration et prote
Making of regulations
(4) The Governor in Council may make the regulation at any time after the proposed regulation has been laid before each House of Parliament under subsection (2).
Designation of officers
6. (1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.
Delegation of powers
(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.
Exception
(3) Nothwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a). AGREEMENTS
International agreements
7. The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of a foreign state or with an international organization for the purposes of this Act.
Federalprovincial agreements
8. (1) The Minister, with the approval of the Governor in Council, may enter into an agreement with the government of any province for the purposes of this Act. The Minister must publish, once a year, a list of the federal-provincial agreements that are in force.
Consistency with agreement
(2) Subject to subsection (3) but despite the other provisions of this Act, the following must be consistent with the federal-provincial agreements: (a) the selection and sponsorship of, and the acquisition of status by, foreign nationals under this Act; and (b) regulations governing those matters, including regulations respecting the examination in Canada of applications to become a permanent resident, or respecting the foreign nationals who may be selected on the basis of an investment in Canada.
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Inadmissibility not limited
(3) Subsection (2) is not to be interpreted as limiting the application of any provision of this Act concerning inadmissibility to Canada.
Sole provincial responsibility — permanent residents
9. (1) Where a province has, under a federal-provincial agreement, sole responsibility for the selection of a foreign national who intends to reside in that province as a permanent resident, the following provisions apply to that foreign national, unless the agreement provides otherwise: (a) the foreign national, unless inadmissible under this Act, shall be granted permanent resident status if the foreign national meets the province’s selection criteria; (b) the foreign national shall not be granted permanent resident status if the foreign national does not meet the province’s selection criteria; (c) the foreign national shall not be granted permanent resident status contrary to the provisions of the law of the province governing the number of foreign nationals who may settle in the province as permanent residents, whether that number is an estimate or a maximum, or governing the distribution of that number among classes of foreign nationals; and (d) conditions imposed in accordance with the law of the province have the same force and effect as if they were made under this Act, if they are imposed on a foreign national on or before the grant of permanent resident status.
Sole provincial responsibility — appeals
(2) If a federal-provincial agreement gives a province sole responsibility to establish and apply financial criteria with respect to undertakings that sponsors living in that province may make in respect of a foreign national who applies to become a permanent resident, then, unless the agreement provides otherwise, the existence of a right of appeal under the law of that province respecting rejections by provincial officials of applications for sponsorship, for reasons of failing to meet financial criteria or failing to comply with a prior undertaking, prevents the sponsor, except on humanitarian and compassionate grounds, from appealing
Immigration et prote under this Act against a refusal, based on those reasons, of a visa or permanent resident status.
Consultations with the provinces
10. (1) The Minister may consult with the governments of the provinces on immigration and refugee protection policies and programs, in order to facilitate cooperation and to take into consideration the effects that the implementation of this Act may have on the provinces.
Required consultations
(2) The Minister must consult with the governments of the provinces respecting the number of foreign nationals in each class who will become permanent residents each year, their distribution in Canada taking into account regional economic and demographic requirements, and the measures to be undertaken to facilitate their integration into Canadian society. PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS BEFORE ENTERING CANADA AND SELECTION Requirements Before Entering Canada
Application before entering Canada
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
If sponsor does not meet requirements
(2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act. Selection of Permanent Residents
Family reunification
12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.
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Economic immigration
(2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
Refugees
(3) A foreign national, inside or outside Canada, may be selected as a person who under this Act is a Convention refugee or as a person in similar circumstances, taking into account Canada’s humanitarian tradition with respect to the displaced and the persecuted. Sponsorship of Foreign Nationals
Right to sponsor family member
13. (1) A Canadian citizen or permanent resident may, subject to the regulations, sponsor a foreign national who is a member of the family class.
Group right to sponsor
(2) A group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province, and an unincorporated organization or association under federal or provincial law, or any combination of them may, subject to the regulations, sponsor a Convention refugee or a person in similar circumstances.
Obligation
(3) An undertaking relating to sponsorship is binding on the person who gives it.
Instructions of Minister
(4) An officer shall apply the regulations on sponsorship referred to in paragraph 14(2)(e) in accordance with any instructions that the Minister may make. Regulations
Regulations
14. (1) The regulations may provide for any matter relating to the application of this Division, and may define, for the purposes of this Act, the terms used in this Division.
Regulations
(2) The regulations may prescribe, and govern any matter relating to, classes of permanent residents or foreign nationals, including the classes referred to in section 12, and may include provisions respecting (a) selection criteria, the weight, if any, to be given to all or some of those criteria, the procedures to be followed in evaluating all or some of those criteria and the circumstances in which an officer may substitute for those criteria their evaluation of the likelihood of a foreign national’s ability to become economically established in Canada;
Immigration et prote (b) applications for visas and other documents and their issuance or refusal, with respect to foreign nationals and their family members; (c) the number of applications that may be processed or approved in a year, the number of visas and other documents that may be issued in a year, and the measures to be taken when that number is exceeded; (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; (e) sponsorships, undertakings, and penalties for failure to comply with undertakings; (f) deposits or guarantees of the performance of obligations under this Act that are to be given by any person to the Minister; and (g) any matter for which a recommendation to the Minister or a decision may or must be made by a designated person, institution or organization with respect to a foreign national or sponsor. DIVISION 2 EXAMINATION
Examination by officer
15. (1) An officer is authorized to proceed with an examination where a person makes an application to the officer in accordance with this Act.
Provincial criteria
(2) In the case of a foreign national referred to in subsection 9(1), an examination of whether the foreign national complies with the applicable selection criteria shall be conducted solely on the basis of documents delivered by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria.
Inspection
(3) An officer may board and inspect any means of transportation bringing persons to Canada, examine any person carried by that means of transportation and any record or document respecting that person, seize and remove the record or document to obtain copies or extracts and hold the means of
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transportation until the inspection and examination are completed. Instructions
(4) The officer shall conduct the examination in accordance with any instructions that the Minister may give.
Obligation — answer truthfully
16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
Obligation — relevant evidence
(2) In the case of a foreign national, (a) the relevant evidence referred to in subsection (1) includes photographic and fingerprint evidence; and (b) the foreign national must submit to a medical examination on request.
Evidence relating to identity
(3) An officer may require or obtain from a permanent resident or a foreign national who is arrested, detained or subject to a removal order, any evidence — photographic, fingerprint or otherwise — that may be used to establish their identity or compliance with this Act.
Regulations
17. The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting the conduct of examinations. DIVISION 3 ENTERING AND REMAINING IN CANADA Entering and Remaining
Examination by officer
18. (1) Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.
Transit
(2) Subsection (1) also applies to persons who, without leaving Canada, seek to leave an area at an airport that is reserved for passengers who are in transit or who are waiting to depart Canada.
Immigration et prote
Right of entry of citizens and Indians
19. (1) Every Canadian citizen within the meaning of the Citizenship Act and every person registered as an Indian under the Indian Act has the right to enter and remain in Canada in accordance with this Act, and an officer shall allow the person to enter Canada if satisfied following an examination on their entry that the person is a citizen or registered Indian.
Right of entry of permanent residents
(2) An officer shall allow a permanent resident to enter Canada if satisfied following an examination on their entry that they have that status.
Obligation on entry
20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence; and (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.
Provincial criteria
(2) A foreign national referred to in subsection 9(1) must also establish, to become a permanent resident, that they hold a document issued by the province indicating that the competent authority of the province is of the opinion that the foreign national complies with the province’s selection criteria. Status and Authorization to Enter
Permanent resident
21. (1) A foreign national becomes a permanent resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(a) and subsection 20(2) and is not inadmissible.
Protected person
(2) Except in the case of a person described in subsection 112(3) or a person who is a member of a prescribed class of persons, a person whose application for protection has been finally determined by the Board to be a Convention refugee or to be a person in need of protection, or a person whose application
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for protection has been allowed by the Minister, becomes, subject to any federal-provincial agreement referred to in subsection 9(1), a permanent resident if the officer is satisfied that they have made their application in accordance with the regulations and that they are not inadmissible on any ground referred to in section 34 or 35, subsection 36(1) or section 37 or 38. Temporary resident
22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible.
Dual intent
(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
Entry to complete examination or hearing
23. An officer may authorize a person to enter Canada for the purpose of further examination or an admissibility hearing under this Part.
Temporary resident permit
24. (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
Exception
(2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.
Instructions of Minister
(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the
Immigration et prote opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
Provincial criteria
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.
Regulations
26. The regulations may provide for any matter relating to the application of sections 18 to 25, and may include provisions respecting (a) entering, remaining in and re-entering Canada; (b) permanent resident status or temporary resident status, including acquisition of that status; (c) the circumstances in which all or part of the considerations referred to in section 24 may be taken into account; (d) conditions that may or must be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals; and (e) deposits or guarantees of the performance of obligations under this Act that are to be given to the Minister. Rights and Obligations of Permanent and Temporary Residents
Right of permanent residents
27. (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act.
Conditions
(2) A permanent resident must comply with any conditions imposed under the regulations.
Residency obligation
28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
Application
(2) The following provisions govern the residency obligation under subsection (1): (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are
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(b) it is sufficient for a permanent resident to demonstrate at examination (i) if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; (ii) if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. Right of temporary residents
29. (1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.
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Obligation — temporary resident
(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.
Work and study in Canada
30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
Minor children
(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.
Status Document Status document
31. (1) A permanent resident and a protected person shall be provided with a document indicating their status.
Effect
(2) For the purposes of this Act, unless an officer determines otherwise (a) a person in possession of a status document referred to in subsection (1) is presumed to have the status indicated; and (b) a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status.
Travel document
(3) A permanent resident outside Canada who is not in possession of a status document indicating permanent resident status shall, following an examination, be issued a travel document if an officer is satisfied that (a) they comply with the residency obligation under section 28; (b) an officer has made the determination referred to in paragraph 28(2)(c); or (c) they were physically present in Canada at least once within the 365 days before the examination and they have made an appeal under subsection 63(4) that has not been finally determined or the period for making such an appeal has not yet expired.
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Regulations
32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting (a) classes of temporary residents, such as students and workers; (b) selection criteria for each class of foreign national and for their family members, and the procedures for evaluating all or some of those criteria; (c) anything referred to in paragraph (b) for which a decision or recommendation may or must be made by a designated person, institution or organization; (d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study; (e) the residency obligation under section 28, including rules for calculating applicable days and periods; and (f) the circumstances in which a document indicating status or a travel document may or must be issued, renewed or revoked. DIVISION 4 INADMISSIBILITY
Rules of interpretation
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government;
Immigration et prote (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
Exception
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
Human or international rights violations
35. (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; (b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or (c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
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Exception
(2) Paragraphs (1)(b) and (c) do not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
Serious criminality
36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
Criminality
(2) A foreign national is inadmissible on grounds of criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence; (b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or
Immigration et prote (d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
Application
(3) The following provisions govern subsections (1) and (2): (a) an offence that may be prosecuted either summarily or by way of indictment is deemed to be an indictable offence, even if it has been prosecuted summarily; (b) inadmissibility under subsections (1) and (2) may not be based on a conviction in respect of which a pardon has been granted and has not ceased to have effect or been revoked under the Criminal Records Act, or in respect of which there has been a final determination of an acquittal; (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; (d) a determination of whether a permanent resident has committed an act described in paragraph (1)(c) must be based on a balance of probabilities; and (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.
Organized criminality
37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence
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outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. Application
(2) The following provisions govern subsection (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (b) paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.
Health grounds
38. (1) A foreign national is inadmissible on health grounds if their health condition (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; or (c) might reasonably be expected to cause excessive demand on health or social services.
Exception
(2) Paragraph (1)(c) does not apply in the case of a foreign national who (a) has been determined to be a member of the family class and to be the spouse, common-law partner or child of a sponsor within the meaning of the regulations; (b) has applied for a permanent resident visa as a Convention refugee or a person in similar circumstances; (c) is a protected person; or (d) is, where prescribed by the regulations, the spouse, common-law partner, child or other family member of a foreign national referred to in any of paragraphs (a) to (c).
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Financial reasons
39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.
Misrepresentation
40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or witholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation; (c) on a final determination to vacate a decision to allow the claim for refugee protection by the permanent resident or the foreign national; or (d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
Application
(2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
Non-compliance with Act
41. A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act; and
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(b) in the case of a permanent resident, through failing to comply with subsection 27(2) or section 28. Inadmissible family member
42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or (b) they are an accompanying family member of an inadmissible person.
Regulations
43. The regulations may provide for any matter relating to the application of this Division, may define, for the purposes of this Act, any of the terms used in this Division, and may include provisions respecting the circumstances in which a class of permanent residents or foreign nationals is exempted from any of the provisions of this Division. DIVISION 5 LOSS OF STATUS AND REMOVAL Report on Inadmissibility
Preparation of report
44. (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
Conditions
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign
Immigration et prote national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order. Admissibility Hearing by the Immigration Division
Decision
45. The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions: (a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident; (b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act; (c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible. Loss of Status
Permanent resident
46. (1) A person loses permanent resident status (a) when they become a Canadian citizen; (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28; (c) when a removal order made against them comes into force; or (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection.
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Permanent resident
(2) A person who ceases to be a citizen under paragraph 10(1)(a) of the Citizenship Act, other than in the circumstances set out in subsection 10(2) of that Act, becomes a permanent resident.
Temporary resident
47. A foreign national loses temporary resident status (a) at the end of the period for which they are authorized to remain in Canada; (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or (c) on cancellation of their temporary resident permit. Enforcement of Removal Orders
Enforceable removal order
48. (1) A removal order is enforceable if it has come into force and is not stayed.
Effect
(2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.
In force
49. (1) A removal order comes into force on the latest of the following dates: (a) the day the removal order is made, if there is no right to appeal; (b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and (c) the day of the final determination of the appeal, if an appeal is made.
In force — claimants
(2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates: (a) the day the claim is determined to be ineligible only under paragraph 101(1)(e); (b) in a case other than that set out in paragraph (a), seven days after the claim is determined to be ineligible; (c) 15 days after notification that the claim is rejected by the Refugee Protection Division, if no appeal is made, or by the Refugee Appeal Division, if an appeal is made;
Immigration et prote (d) 15 days after notification that the claim is declared withdrawn or abandoned; and (e) 15 days after proceedings are terminated as a result of notice under paragraph 104(1)(c) or (d).
Stay
50. A removal order is stayed (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order; (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed; (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction; (d) for the duration of a stay under paragraph 114(1)(b); and (e) for the duration of a stay imposed by the Minister.
Void — permanent residence
51. A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident.
No return without prescribed authorization
52. (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.
Return to Canada
(2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister. Regulations
Regulations
53. The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting (a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals; (b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national;
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(c) the circumstances in which status may be restored; (d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act; (e) the effect and enforcement of removal orders; (f) the effect of a pardon under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and (g) the financial obligations that may be imposed with respect to a removal order. DIVISION 6 DETENTION AND RELEASE Immigration Division
54. The Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.
Arrest and detention with warrant
55. (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
Arrest and detention without warrant
(2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person, (a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.
Detention on entry
(3) A permanent resident or a foreign national may, on entry into Canada, be detained if an officer (a) considers it necessary to do so in order for the examination to be completed; or
Immigration et prote (b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security or for violating human or international rights.
Notice
(4) If a permanent resident or a foreign national is taken into detention, an officer shall without delay give notice to the Immigration Division.
Release — officer
56. An officer may order the release from detention of a permanent resident or a foreign national before the first detention review by the Immigration Division if the officer is of the opinion that the reasons for the detention no longer exist. The officer may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer considers necessary.
Review of detention
57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention.
Further review
(2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention.
Presence
(3) In a review under subsection (1) or (2), an officer shall bring the permanent resident or the foreign national before the Immigration Division or to a place specified by it.
Release — Immigration Division
58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security or
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for violating human or international rights; or (d) the Minister is of the opinion that the identity of the foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity.
Detention — Immigration Division
(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada.
Conditions
(3) If the Immigration Division orders the release of a permanent resident or a foreign national, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a guarantee for compliance with the conditions.
Incarcerated foreign nationals
59. If a warrant for arrest and detention under this Act is issued with respect to a permanent resident or a foreign national who is detained under another Act of Parliament in an institution, the person in charge of the institution shall deliver the inmate to an officer at the end of the inmate’s period of detention in the institution.
Minor children
60. For the purposes of this Division, it is affirmed as a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child.
Regulations
61. The regulations may provide for the application of this Division, and may include provisions respecting (a) grounds for and conditions and criteria with respect to the release of persons from detention;
Immigration et prote (b) factors to be considered by an officer or the Immigration Division; and (c) special considerations that may apply in relation to the detention of minor children. DIVISION 7 RIGHT OF APPEAL
Competent jurisdiction
62. The Immigration Appeal Division is the competent Division of the Board with respect to appeals under this Division.
Right to appeal — visa refusal of family class
63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.
Right to appeal — visa and removal order
(2) A foreign national who holds a permanent resident visa may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
Right to appeal — removal order
(3) A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision at an examination or admissibility hearing to make a removal order against them.
Right of appeal — residency obligation
(4) A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28.
Right of appeal — Minister
(5) The Minister may appeal to the Immigration Appeal Division against a decision of the Immigration Division in an admissibility hearing.
No appeal for inadmissibility
64. (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
Serious criminality
(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years.
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Misrepresentation
(3) No appeal may be made under subsection 63(1) in respect of a decision that was based on a finding of inadmissibility on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child.
Humanitarian and compassionate considerations
65. In an appeal under subsection 63(1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class and that their sponsor is a sponsor within the meaning of the regulations.
Disposition
66. After considering the appeal of a decision, the Immigration Appeal Division shall (a) allow the appeal in accordance with section 67; (b) stay the removal order in accordance with section 68; or (c) dismiss the appeal in accordance with section 69.
Appeal allowed
67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, (a) the decision appealed is wrong in law or fact or mixed law and fact; (b) a principle of natural justice has not been observed; or (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Effect
(2) If the Immigration Appeal Division allows the appeal, it shall set aside the original decision and substitute a determination that, in its opinion, should have been made, including the making of a removal order, or refer the matter to the appropriate decision-maker for reconsideration.
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Removal order stayed
68. (1) To stay a removal order, the Immigration Appeal Division must be satisfied, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
Effect
(2) Where the Immigration Appeal Division stays the removal order (a) it shall impose any condition that is prescribed and may impose any condition that it considers necessary; (b) all conditions imposed by the Immigration Division are cancelled; (c) it may vary or cancel any non-prescribed condition imposed under paragraph (a); and (d) it may cancel the stay, on application or on its own initiative.
Reconsideration
(3) If the Immigration Appeal Division has stayed a removal order, it may at any time, on application or on its own initiative, reconsider the appeal under this Division.
Termination and cancellation
(4) If the Immigration Appeal Division has stayed a removal order against a permanent resident or a foreign national who was found inadmissible on grounds of serious criminality or criminality, and they are convicted of another offence referred to in subsection 36(1), the stay is cancelled by operation of law and the appeal is terminated.
Dismissal
69. (1) The Immigration Appeal Division shall dismiss an appeal if it does not allow the appeal or stay the removal order, if any.
Minister’s Appeal
(2) In the case of an appeal by the Minister respecting a permanent resident or a protected person, other than a person referred to in subsection 64(1), if the Immigration Appeal Division is satisfied that, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, it may make and may stay the applicable removal order, or dismiss the appeal, despite being satisfied of a matter set out in paragraph 67(1)(a) or (b).
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Decision binding
Examination suspended
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(3) If the Immigration Appeal Division dismisses an appeal made under subsection 63(4) and the permanent resident is in Canada, it shall make a removal order. 70. (1) An officer, in examining a permanent resident or a foreign national, is bound by the decision of the Immigration Appeal Division to allow an appeal in respect of the foreign national. (2) If the Minister makes an application for leave to commence an application for judicial review of a decision of the Immigration Appeal Division with respect to a permanent resident or a foreign national, an examination of the permanent resident or the foreign national under this Act is suspended until the final determination of the application. 71. The Immigration Appeal Division, on application by a foreign national who has not left Canada under a removal order, may reopen an appeal if it is satisfied that it failed to observe a principle of natural justice. DIVISION 8
Application for judicial review
Application
JUDICIAL REVIEW 72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. (2) The following provisions govern an application under subsection (1): (a) the application may not be made until any right of appeal that may be provided by this Act is exhausted; (b) subject to paragraph 169(f), notice of the application shall be served on the other party and the application shall be filed in the Registry of the Federal Court—Trial Division (‘‘the Court’’) within 15 days, in the case of a matter arising in Canada, or within 60 days, in the case of a matter arising outside Canada, after the day on which the applicant is notified of or otherwise becomes aware of the matter; (c) a judge of the Court may, for special reasons, allow an extended time for filing and serving the application or notice;
Immigration et prote (d) a judge of the Court shall dispose of the application without delay and in a summary way and, unless a judge of the Court directs otherwise, without personal appearance; and (e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.
Right of Minister
73. The Minister may make an application for leave to commence an application for judicial review with respect to any decision of the Refugee Appeal Division, whether or not the Minister took part in the proceedings before the Refugee Protection Division or Refugee Appeal Division.
Judicial review
74. Judicial review is subject to the following provisions: (a) the judge who grants leave shall fix the day and place for the hearing of the application; (b) the hearing shall be no sooner than 30 days and no later than 90 days after leave was granted, unless the parties agree to an earlier day; (c) the judge shall dispose of the application without delay and in a summary way; and (d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.
Rules
75. (1) Subject to the approval of the Governor in Council, the Chief Justice of the Federal Court may make rules governing the practice and procedure in relation to applications for leave to commence an application for judicial review, for judicial review and for appeals. The rules are binding despite any rule or practice that would otherwise apply.
Inconsistencies
(2) In the event of an inconsistency between this Division and any provision of the Federal Court Act, this Division prevails to the extent of the inconsistency.
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Examination on Request by the Minister and the Solicitor General of Canada Definitions
76. The definitions in this section apply in this Division.
‘‘information’’ « renseignements »
‘‘information’’ means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.
‘‘judge’’ « juge »
‘‘judge’’ means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice.
Referral of certificate
77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court—Trial Division, which shall make a determination under section 80.
Effect of referral
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
Judicial consideration
78. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circum2001
Immigration et prote stances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
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(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. Proceedings suspended
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
Proceedings resumed
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.
Determination that certificate is reasonable
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
Determination that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
Determination not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
Effect of determination — removal order
81. If a certificate is determined to be reasonable under subsection 80(1), (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible; (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
Immigration et prote (c) the person named in it may not apply for protection under subsection 112(1). Detention
Detention of permanent resident
82. (1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
Mandatory detention
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
Review of decision for detention
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
Further reviews
(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
Order for continuation
(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
Release
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
Judicial release
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the
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release will not pose a danger to national security or to the safety of any person. Inconsistency
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency. Consideration During an Admissibility Hearing or an Immigration Appeal
Application for nondisclosure — Immigration Appeal Division
86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.
Procedure
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to ‘‘judge’’ be read as a reference to the applicable Division of the Board. Consideration During Judicial Review
Application for nondisclosure — Court
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
Procedure
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require. DIVISION 10 GENERAL PROVISIONS Loans
Loans
88. (1) The Minister of Finance may, from time to time, advance to the Minister out of the Consolidated Revenue Fund, up to the maximum amount that is prescribed, sums that the Minister may require in order to make loans for the purposes of this Act.
Regulations
(2) The regulations may provide for any matter relating to the application of this section, and may include provisions respecting classes of persons to whom, and the purposes for which, the loans may be made.
Immigration et prote Fees
Regulations
89. The regulations may govern fees for services provided in the administration of this Act, and cases in which fees may be waived by the Minister or otherwise, individually or by class. Social Insurance Number Cards
Minister directs special cards to be issued
90. The Minister may direct the Canada Employment Insurance Commission to issue to persons, other than Canadian citizens or permanent residents, Social Insurance Number Cards, by which the holders of such cards are identified as persons who may be required under this Act to obtain authorization to work in Canada.
Representation Regulations
91. The regulations may govern who may or may not represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board. Material Incorporated in Regulations
Incorporated material
92. (1) A regulation may incorporate by reference the following material: (a) material produced by a person or body other than the Governor in Council; (b) material referred to in paragraph (a) that has been subsequently adapted or edited in order to facilitate its incorporation for the purposes of the regulation; (c) material that has been developed jointly with another government or government agency for the purpose of harmonizing the regulation with other laws; and (d) material that is technical or explanatory in nature, such as specifications, classifications, illustrations or graphs, as well as examples that may assist in the application of the regulation.
Amended from time to time
(2) Material may be incorporated by reference on a specified date or as amended from time to time.
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Incorporated material is not a regulation
(3) For greater certainty, material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.
Statutory Instruments Act
93. Instructions given by the Minister under this Act and guidelines issued by the Chairperson under paragraph 159(1)(h) are not statutory instruments for the purposes of the Statutory Instruments Act. Report to Parliament
Annual report to Parliament
Contents of report
94. (1) The Minister must, on or before November 1 of each year or, if a House of Parliament is not then sitting, within the next 30 days on which that House is sitting after that date, table in each House of Parliament a report on the operation of this Act in the preceding calendar year. (2) The report shall include a description of (a) the activities and initiatives taken concerning the selection of foreign nationals, including measures taken in cooperation with the provinces; (b) in respect of Canada, the number of foreign nationals who became permanent residents, and the number projected to become permanent residents in the following year; (b.1) in respect of Canada, the linguistic profile of foreign nationals who became permanent residents; (c) in respect of each province that has entered into a federal-provincial agreement described in subsection 9(1), the number, for each class listed in the agreement, of persons that became permanent residents and that the province projects will become permanent residents there in the following year; (d) the number of temporary resident permits issued under section 24, categorized according to grounds of inadmissibility, if any; (e) the number of persons granted permanent resident status under subsection 25(1); and (f) a gender-based analysis of the impact of this Act.
Immigration et prote PART 2
REFUGEE PROTECTION
DIVISION 1
REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION Conferral of refugee protection
95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection.
Protected person
(2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4).
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
Exclusion — Refugee Convention
98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. DIVISION 2 CONVENTION REFUGEES AND PERSONS IN NEED OF PROTECTION Claim for Refugee Protection
Claim
99. (1) A claim for refugee protection may be made in or outside Canada.
Immigration et prote
Claim outside Canada
(2) A claim for refugee protection made by a person outside Canada must be made by making an application for a visa as a Convention refugee or a person in similar circumstances, and is governed by Part 1.
Claim inside Canada
(3) A claim for refugee protection made by a person inside Canada must be made to an officer, may not be made by a person who is subject to a removal order, and is governed by this Part.
Permanent resident
(4) An application to become a permanent resident made by a protected person is governed by Part 1. Examination of Eligibility to Refer Claim
Referral to Refugee Protection Division
100. (1) An officer shall, within three working days after receipt of a claim referred to in subsection 99(3), determine whether the claim is eligible to be referred to the Refugee Protection Division and, if it is eligible, shall refer the claim in accordance with the rules of the Board.
Decision
(2) The officer shall suspend consideration of the eligibility of the person’s claim if (a) a report has been referred for a determination, at an admissibility hearing, of whether the person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality; or (b) the officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
Consideration of claim
(3) The Refugee Protection Division may not consider a claim until it is referred by the officer. If the claim is not referred within the three-day period referred to in subsection (1), it is deemed to be referred, unless there is a suspension or it is determined to be ineligible.
Duty of claimant
(4) The burden of proving that a claim is eligible to be referred to the Refugee Protection Division rests on the claimant, who must answer truthfully all questions put to them. If the claim is referred, the claimant must produce all documents and information as required by the rules of the Board.
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101. (1) A claim is ineligible to be referred to the Refugee Protection Division if (a) refugee protection has been conferred on the claimant under this Act; (b) a claim for refugee protection by the claimant has been rejected by the Board; (c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned; (d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country; (e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
Serious criminality
(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years.
2001 Regulations
Immigration et prote 102. (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; (b) making a list of those countries and amending it as necessary; and (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e).
Factors
(2) The following factors are to be considered in designating a country under paragraph (1)(a): (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (c) its human rights record; and (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.
Review
(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country. Suspension or Termination of Consideration of Claim
Suspension
103. (1) Proceedings of the Refugee Protection Division and of the Refugee Appeal Division are suspended on notice by an officer that (a) the matter has been referred to the Immigration Division to determine whether the claimant is inadmissible on grounds of
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security, violating human or international rights, serious criminality or organized criminality; or (b) an officer considers it necessary to wait for a decision of a court with respect to a claimant who is charged with an offence under an Act of Parliament that may be punished by a maximum term of imprisonment of at least 10 years. Continuation
(2) On notice by an officer that the suspended claim was determined to be eligible, proceedings of the Refugee Protection Division and of the Refugee Appeal Division shall continue.
Notice of ineligible claim
104. (1) An officer may, with respect to a claim that is before the Refugee Protection Division or, in the case of paragraph (d), that is before or has been determined by the Refugee Protection Division or the Refugee Appeal Division, give notice that an officer has determined that (a) the claim is ineligible under paragraphs 101(1)(a) to (e); (b) the claim is ineligible under paragraph 101(1)(f); (c) the claim was referred as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter and that the claim was not otherwise eligible to be referred to that Division; or (d) the claim is not the first claim that was received by an officer in respect of the claimant.
Termination and nullification
(2) A notice given under the following provisions has the following effects: (a) if given under any of paragraphs (1)(a) to (c), it terminates pending proceedings in the Refugee Protection Division respecting the claim; and (b) if given under paragraph (1)(d), it terminates proceedings in and nullifies any decision of the Refugee Protection Division or the Refugee Appeal Division respecting a claim other than the first claim.
Immigration et prote Extradition Procedure
Suspension if proceeding under Extradition Act
105. (1) The Refugee Protection Division and Refugee Appeal Division shall not commence, or shall suspend, consideration of any matter concerning a person against whom an authority to proceed has been issued under section 15 of the Extradition Act with respect to an offence under Canadian law that is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, until a final decision under the Extradition Act with respect to the discharge or surrender of the person has been made.
Continuation if discharge under Extradition Act
(2) If the person is finally discharged under the Extradition Act, the proceedings of the applicable Division may be commenced or continued as though there had not been any proceedings under that Act.
Rejection if surrender under Extradition Act
(3) If the person is ordered surrendered by the Minister of Justice under the Extradition Act and the offence for which the person was committed by the judge under section 29 of that Act is punishable under an Act of Parliament by a maximum term of imprisonment of at least 10 years, the order of surrender is deemed to be a rejection of a claim for refugee protection based on paragraph (b) of Section F of Article 1 of the Refugee Convention.
Final decision
(4) The deemed rejection referred to in subsection (3) may not be appealed, and is not subject to judicial review except to the extent that a judicial review of the order of surrender is provided for under the Extradition Act.
Limit if no previous claim
(5) If the person has not made a claim for refugee protection before the order of surrender referred to in subsection (3), the person may not do so before the surrender. Claimant Without Identification
Credibility
106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
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Decision on Claim for Refugee Protection Decision
107. (1) The Refugee Protection Division shall accept a claim for refugee protection if it determines that the claimant is a Convention refugee or person in need of protection, and shall otherwise reject the claim.
No credible basis
(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim. Cessation of Refugee Protection
Rejection
108. (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances: (a) the person has voluntarily reavailed themself of the protection of their country of nationality; (b) the person has voluntarily reacquired their nationality; (c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality; (d) the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or (e) the reasons for which the person sought refugee protection have ceased to exist.
Cessation of refugee protection
(2) On application by the Minister, the Refugee Protection Division may determine that refugee protection referred to in subsection 95(1) has ceased for any of the reasons described in subsection (1).
Effect of decision
(3) If the application is allowed, the claim of the person is deemed to be rejected.
Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
Immigration et prote Applications to Vacate
Vacation of refugee protection
109. (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or witholding material facts relating to a relevant matter.
Rejection of application
(2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection.
Allowance of application
(3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified.
Appeal to Refugee Appeal Division Appeal
110. (1) A person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection, or a decision of the Refugee Protection Division rejecting an application by the Minister for a determination that refugee protection has ceased or an application by the Minister to vacate a decision to allow a claim for refugee protection.
Restriction on appeals
(2) A determination that a refugee protection claim has been withdrawn or abandoned may not be appealed.
Procedure
(3) The Refugee Appeal Division shall proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept written submissions from the Minister, the person who is the subject of the appeal, and a representative or agent of the United Nations High Commissioner for Refugees, and any other person described in the rules of the Board.
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111. (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate.
Referrals
(2) The Refugee Appeal Division shall make the referral described in paragraph (1)(c) if it is of the opinion that a hearing is required or if it has allowed an appeal by the Minister that was based on a question of the claimant’s credibility. DIVISION 3 PRE-REMOVAL RISK ASSESSMENT Protection
Application for protection
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
Exception
(2) Despite subsection (1), a person may not apply for protection if (a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act; (b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible; (c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or (d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or re2001
Immigration et prote jected, or their application for protection was rejected.
Restriction
(3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1).
Consideration of application
113. Consideration of an application for protection shall be as follows: (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; (b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required; (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be re��
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Effect of decision
114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
Cancellation of stay
(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.
Vacation of determination
(3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or witholding material facts on a relevant matter, the Minister may vacate the decision.
Effect of vacation
(4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected. Principle of Non-refoulement
Protection
115. (1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
Exceptions
(2) Subsection (1) does not apply in the case of a person (a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada; or
Immigration et prote (b) who is inadmissible on grounds of security, violating human or international rights or organized criminality if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.
Removal of refugee
(3) A person, after a determination under paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent to the country from which the person came to Canada, but may be sent to another country if that country is designated under subsection 102(1) or if the country from which the person came to Canada has rejected their claim for refugee protection.
Regulations
116. The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting procedures to be followed with respect to applications for protection and decisions made under section 115, including the establishment of factors to determine whether a hearing is required. PART 3 ENFORCEMENT Human Smuggling and Trafficking
Organizing entry into Canada
117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.
Penalties — fewer than 10 persons
(2) A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and
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(b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. Penalty — 10 persons or more
(3) A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.
No proceedings without consent
(4) No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.
Offence — trafficking in persons
118. (1) No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion.
Definition of ‘‘organize’’
(2) For the purpose of subsection (1), ‘‘organize’’, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.
Disembarking persons at sea
119. A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act.
Penalties
120. A person who contravenes section 118 or 119 is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both.
Aggravating factors
121. (1) The court, in determining the penalty to be imposed under subsection 117(2) or (3) or section 120, shall take into account whether (a) bodily harm or death occurred during the commission of the offence; (b) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization; (c) the commission of the offence was for profit, whether or not any profit was realized; and
Immigration et prote (d) a person was subjected to humiliating or degrading treatment, including with respect to work or health conditions or sexual exploitation as a result of the commission of the offence.
Definition of ‘‘criminal organization’’
(2) For the purposes of paragraph (1)(b), ‘‘criminal organization’’ means an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence. Offences Related to Documents
Documents
122. (1) No person shall, in order to contravene this Act, (a) possess a passport, visa or other document, of Canadian or foreign origin, that purports to establish or that could be used to establish a person’s identity; (b) use such a document, including for the purpose of entering or remaining in Canada; or (c) import, export or deal in such a document.
Proof of offence
Penalty
(2) Proof of the matters referred to in subsection (1) in relation to a forged document or a document that is blank, incomplete, altered or not genuine is, in the absence of evidence to the contrary, proof that the person intends to contravene this Act. 123. (1) Every person who contravenes (a) paragraph 122(1)(a) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to five years; and (b) paragraph 122(1)(b) or (c) is guilty of an offence and liable on conviction on indictment to a term of imprisonment of up to 14 years.
Aggravating factors
(2) The court, in determining the penalty to be imposed, shall take into account whether
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(a) the commission of the offence was for the benefit of, at the direction of or in association with a criminal organization as defined in subsection 121(2); and (b) the commission of the offence was for profit, whether or not any profit was realized. General Offences Contravention of Act
124. (1) Every person commits an offence who (a) contravenes a provision of this Act for which a penalty is not specifically provided or fails to comply with a condition or obligation imposed under this Act; (b) escapes or attempts to escape from lawful custody or detention under this Act; or (c) employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.
Deemed knowledge
(2) For the purposes of paragraph (1)(c), a person who fails to exercise due diligence to determine whether employment is authorized under this Act is deemed to know that it is not authorized.
Due diligence defence
(3) A person referred to in subsection 148(1) shall not be found guilty of an offence under paragraph (1)(a) if it is established that they exercised all due diligence to prevent the commission of the offence.
Penalties
125. A person who commits an offence under subsection 124(1) is liable (a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both; or (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
Counselling misrepresentation
126. Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that
Immigration et prote induces or could induce an error in the administration of this Act is guilty of an offence.
Misrepresentation
127. No person shall knowingly (a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; (b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or (c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.
Penalties
128. A person who contravenes a provision of section 126 or 127 is guilty of an offence and liable (a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or (b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.
Offences relating to officers
129. (1) Every person is guilty of an offence who (a) being an officer or an employee of the Government of Canada, knowingly makes or issues any false document or statement, or accepts or agrees to accept a bribe or other benefit, in respect of any matter under this Act or knowingly fails to perform their duties under this Act; (b) gives or offers to give a bribe or consideration to, or makes an agreement or arrangement with, an officer to induce the officer not to perform their duties under this Act; (c) falsely personates an officer or by any act or omission leads any person to believe that the person is an officer; or
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(d) obstructs or impedes an officer in the performance of the officer’s duties under this Act. Punishment
(2) Every person who is guilty of an offence under subsection (1) is liable (a) on conviction on indictment, to a fine of not more than $50,000 or to imprisonment for a term of not more than five years, or to both; or (b) on summary conviction, to a fine of not more than $10,000 or to imprisonment for a term of not more than six months, or to both.
Proceeds of Crime Possession of property obtained by certain offences
130. (1) No person shall possess any property or any proceeds of any property knowing that all or any part of the property or of those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (2) or section 117, 118, 119, 122, 124, 126, 127, 129 or 131.
Laundering proceeds of certain offences
(2) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing or believing that all or part of that property or those proceeds was obtained or derived directly or indirectly as a result of the commission of an offence under subsection (1) or section 117, 118, 119, 122, 124, 126, 127, 129 or 131.
Punishment
(3) Every person who contravenes subsection (1) or (2) commits an offence and is liable (a) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than 10 years, or to both; or (b) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both.
Immigration et prote
Counselling offence
131. Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124, 129 or 130, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person.
Part XII.2 of the Criminal Code applicable
132. Sections 462.3 and 462.32 to 462.5 of the Criminal Code apply, with any modifications that the circumstances require, in respect of proceedings for an offence contrary to section 117, 118, 119, 122, 124, 126, 127, 129, 130 or 131. Prosecution of Offences
Deferral
133. A person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under section 122, paragraph 124(1)(a) or section 127 of this Act or under section 57, paragraph 340(c) or section 354, 366, 368, 374 or 403 of the Criminal Code, in relation to the coming into Canada of the person, pending disposition of their claim for refugee protection or if refugee protection is conferred.
Defence — incorporation by reference
134. No person may be found guilty of an offence or subjected to a penalty for the contravention of a provision of a regulation that incorporates material by reference, unless it is proved that, at the time of the alleged contravention, (a) the material was reasonably accessible to the person; (b) reasonable steps had been taken to ensure that the material was accessible to persons likely to be affected by the regulation; or (c) the material had been published in the Canada Gazette.
Offences outside Canada
135. An act or omission that would by reason of this Act be punishable as an offence if committed in Canada is, if committed outside Canada, an offence under this Act and may be tried and punished in Canada.
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Venue
136. (1) A proceeding in respect of an offence under this Act may be instituted, tried and determined at the place in Canada where the offence was committed or at the place in Canada where the person charged with the offence is or has an office or place of business at the time of the institution of those proceedings.
Where commission outside Canada
(2) A proceeding in respect of an offence under this Act that is committed outside Canada may be instituted, tried and determined at any place in Canada. Forfeiture
Forfeiture
137. (1) A court that convicts a person of an offence under this Act may, in addition to any other punishment imposed, order that any offence-related property seized in relation to the offence be forfeited to Her Majesty in right of Canada.
Regulations
(2) The regulations may define the expression ‘‘offence-related property’’ for the purposes of this section, may provide for any matter relating to the application of this section, and may include provisions respecting the return to their lawful owner, disposition, or disposition of the proceeds of disposition, of offence-related property that has been seized. Officers Authorized to Enforce Act
Powers of peace officer
138. (1) An officer, if so authorized, has the authority and powers of a peace officer — including those set out in sections 487 to 492.2 of the Criminal Code — to enforce this Act, including any of its provisions with respect to the arrest, detention or removal from Canada of any person.
Temporary assistants
(2) An officer may, in cases of emergency, employ a person to assist the officer in carrying out duties under this Act. That person has the authority and powers of the officer for a period of no more than 48 hours, unless approved by the Minister.
Search
139. (1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person
Immigration et prote (a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or (b) has committed, or possesses documents that may be used in the commission of, an offence referred to in section 117, 118 or 122.
Search by person of same sex
(2) A search of a person under this section must be performed by a person of the same sex as the person being searched. If an officer of the same sex is not available, any suitable person of the same sex may be authorized by an officer to perform the search.
Seizure
140. (1) An officer may seize and hold any means of transportation, document or other thing if the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure is necessary to prevent its fraudulent or improper use or to carry out the purposes of this Act.
Interpretation
(2) Despite subsection 42(2) of the Canada Post Corporation Act, a thing or document that is detained under the Customs Act and seized by an officer is not in the course of post for the purposes of the Canada Post Corporation Act.
Regulations
(3) The regulations may provide for any matter relating to the application of this section and may include provisions respecting the deposit of security as a guarantee to replace things that have been seized or that might otherwise be seized, and the return to their lawful owner, and the disposition, of things that have been seized.
Oaths and evidence
141. Every officer has the authority to administer oaths and to take and receive evidence under oath on any matter arising out of this Act.
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Duties of peace officers to execute orders
142. Every peace officer and every person in immediate charge or control of an immigrant station shall, when so directed by an officer, execute any warrant or written order issued under this Act for the arrest, detention or removal from Canada of any permanent resident or foreign national.
Authority to execute warrants and orders
143. A warrant issued or an order to detain made under this Act is, notwithstanding any other law, sufficient authority to the person to whom it is addressed or who may receive and execute it to arrest and detain the person with respect to whom the warrant or order was issued or made. Ticketable Offences
Prosecution of designated offences
144. (1) In addition to other procedures set out in this Act or in the Criminal Code for commencing a proceeding, proceedings in respect of any offence that is prescribed by regulation may be commenced in accordance with this section.
Procedure
(2) An officer may commence a proceeding by (a) completing a ticket that consists of a summons portion and an information portion; (b) delivering the summons portion of the ticket to the accused or mailing it to the accused at the accused’s latest known address; and (c) filing the information portion of the ticket with a court of competent jurisdiction before or as soon as practicable after the summons portion has been delivered or mailed.
Content of ticket
(3) The summons and information portions of a ticket must (a) set out a description of the offence and the time and place of its alleged commission; (b) include a statement, signed by the officer, that there are reasonable grounds to believe that the accused committed the offence;
Immigration et prote (c) set out the amount of the prescribed fine for the offence and the manner in which and period within which it must be paid; (d) include a statement that, if the accused pays the fine within the period set out in the ticket, a conviction will be entered and recorded against the accused; and (e) include a statement that if the accused wishes to plead not guilty or for any other reason fails to pay the fine within the period set out in the ticket, the accused must appear in the court and at the time set out in the ticket.
Consequences of payment
(4) Payment of the fine by the accused within the period set out in the ticket constitutes a plea of guilty to the offence described in the ticket and, following the payment, (a) a conviction shall be entered against the accused and no further action shall be taken against the accused in respect of that offence; and (b) any thing seized from the accused under this Act relating to the offence described in the ticket, or any proceeds realized from its disposition, are forfeited to Her Majesty in right of Canada and may be disposed of as the Minister directs.
Regulations
(5) The regulations may provide for any matter relating to the application of this section, and may include provisions prescribing (a) the offences referred to in subsection (1) and the manner in which those offences may be described in tickets; and (b) the amount of the fine, not exceeding $10,000, for a prescribed offence.
Debt Due to Her Majesty Debts due
145. (1) The following amounts are debts due to Her Majesty in right of Canada payable on demand: (a) a debt incurred by Her Majesty for which any person is liable under this Act; (b) an amount that a person has agreed to pay as a deposit or guarantee of performance of an obligation under this Act;
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(c) the costs incurred in removing a prescribed foreign national from Canada; (d) an amount that is ordered to be paid under section 147 on account of an unpaid liability; and (e) an amount referred to in paragraph 148(1)(g). Debts due — sponsors
Recovery of debt
(2) Subject to any federal-provincial agreement, an amount that a sponsor is required to pay under the terms of an undertaking is payable on demand to Her Majesty in right of Canada and Her Majesty in right of the province concerned and may be recovered by Her Majesty in either or both of those rights. (3) A debt may be recovered at any time.
Collection of Debts Due to Her Majesty Certificates
146. (1) An amount or part of an amount payable under this Act that has not been paid may be certified by the Minister (a) without delay, if the Minister is of the opinion that the person liable for that amount is attempting to avoid payment; and (b) in any other case, on the expiration of 30 days after the default.
Judgments
(2) The certificate is to be filed and registered in the Federal Court and, when registered, has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate plus interest to the day of payment.
Costs
(3) The costs of registering the certificate are recoverable in the same manner as if they had been included in the certificate.
Garnishment
147. (1) If the Minister is of the opinion that a person is or is about to become liable to make a payment to a person liable to make a payment under this Act, the Minister may, by written notice, order the first person to pay to the Receiver General, on account of the second person’s liability, all or part of the money otherwise payable to the second person.
2001 Applicability to future payments
Immigration et prote (2) If the Minister, under subsection (1), orders an employer to pay to the Receiver General money otherwise payable to an employee as remuneration, (a) the order is applicable to all future payments of remuneration until the liability is satisfied; and (b) the employer shall pay to the Receiver General out of each payment of remuneration the amount that the Minister stipulates in the notice.
Discharge of liability
(3) The receipt of the Minister is a good and sufficient discharge of the original liability to the extent of the payment.
Regulations
(4) The regulations may provide for any matter relating to the application of this section. Transportation Companies
Obligation of operators of vehicles and facilities
148. (1) A person who owns or operates a vehicle or a transportation facility, and an agent for such a person, must, in accordance with the regulations, (a) not carry to Canada a person who is prescribed or does not hold a prescribed document, or who an officer directs not be carried; (b) hold the prescribed documentation of a person whom it carries to Canada until an examination begins, present the person for examination and hold the person until the examination is completed; (c) arrange for a medical examination and medical treatment and observation of a person it carries to Canada; (d) provide prescribed information, including documentation and reports; (e) provide facilities for the holding and examination of persons being carried to Canada; (f) carry from Canada a person whom it has carried to or caused to enter Canada and who is prescribed or whom an officer directs to be carried;
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(g) pay for all prescribed costs and fees relating to paragraphs (a), (b), (c) and (f); and (h) provide security for compliance with its obligations under paragraphs (a) to (g). Seizure of security for compliance
(2) If a person who owns or operates a vehicle or a transportation facility, or an agent of such a person, fails to comply with an obligation under this Act, all or part of any security provided by the person and any vehicle or other prescribed good owned or operated by the person may be detained, seized or forfeited to Her Majesty in right of Canada.
Use of information
149. The following provisions govern information provided under paragraph 148(1)(d): (a) the information may be used only for the purposes of this Act or to identify a person for whom a warrant of arrest has been issued in Canada; and (b) notice that the information was used must be given to the person to whom it relates.
Regulations
150. The regulations may provide for any matter relating to the purposes of sections 148 and 149, may define, for the purposes of this Act, terms used in those sections and may include provisions respecting (a) the requirements and procedures applicable to a person who owns or operates a vehicle or a transportation facility; (b) the costs and fees for which a person who owns or operates a vehicle or a transportation facility is liable; (c) the procedures to be followed when a vehicle or other security is detained, seized, forfeited to Her Majesty in right of Canada or returned; and (d) the procedures by which a person may make claim that their interest in a vehicle or other good is not affected by it being detained, seized or forfeited to Her Majesty in right of Canada.
Immigration et prote PART 4 IMMIGRATION AND REFUGEE BOARD
Composition of Board Immigration and Refugee Board
151. The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division.
Composition
152. The Board is composed of a Chairperson and other members as are required to ensure the proper functioning of the Board.
Chairperson and other members
153. (1) The Chairperson and members of the Refugee Protection Division, Refugee Appeal Division and Immigration Appeal Division (a) are appointed to the Board by the Governor in Council, to hold office during good behaviour for a term not exceeding seven years, subject to removal by the Governor in Council at any time for cause, to serve in a regional or district office of the Board; (b) shall swear the oath or give the solemn affirmation of office set out in the rules of the Board; (c) are eligible for reappointment in the same or another capacity; (d) shall receive the remuneration that may be fixed by the Governor in Council; (e) are entitled to be paid reasonable travel and living expenses incurred while absent in the course of their duties, in the case of a full-time member, from their ordinary place of work or, in the case of a part-time member, while absent from their ordinary place of residence; (f) are deemed to be employed in the public service of Canada for the purposes of the Public Service Superannuation Act, the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act;
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(g) may not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions under this Act; and (h) if appointed as full-time members, must devote the whole of their time to the performance of their duties under this Act. Deputy Chairperson and Assistant Deputy Chairpersons
(2) One Deputy Chairperson for each Division referred to in subsection (1) and not more than 10 Assistant Deputy Chairpersons are to be designated by the Governor in Council from among the full-time members of those Divisions.
Full-time and part-time appointments
(3) The Chairperson and the Deputy Chairpersons and Assistant Deputy Chairpersons of the Divisions referred to in subsection (1) are appointed on a full-time basis and the other members are appointed on a full-time or part-time basis.
Qualification
(4) The Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Divisions referred to in subsection (1) must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec.
Disposition after member ceases to hold office
154. A former member of the Board, within eight weeks after ceasing to be a member, may make or take part in a decision on a matter that they heard as a member, if the Chairperson so requests. For that purpose, the former member is deemed to be a member.
Disposition if member unable to take part
155. If a member of a three-member panel is unable to take part in the disposition of a matter that the member has heard, the remaining members may make the disposition and, for that purpose, are deemed to constitute the applicable Division.
Immunity and no summons
156. The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act: (a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and
Immigration et prote (b) they are not competent or compellable to appear as a witness in any civil proceedings. Head Office and Staff
Head office
157. (1) The head office of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act.
Residence — Chairperson
(2) The Chairperson must live in the National Capital Region or within reasonable commuting distance of it.
Personnel
158. The Executive Director and other personnel necessary for the proper conduct of the business of the Board shall be appointed in accordance with the Public Service Employment Act, and the personnel are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act. Duties of Chairperson
Chairperson
159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (a) has supervision over and direction of the work and staff of the Board; (b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Protection Division, the Refugee Appeal Division and the Immigration Appeal Division; (c) may at any time, notwithstanding paragraph 153(1)(a), assign a member, other than a member of the Immigration Division, to work in another regional or district office in order to satisfy operational requirements, but an assignment may not exceed 90 days without the approval of the Governor in Council; (d) designates from among the full-time members of the Board coordinating members for a Division, other than the Immigration Division; (e) assigns administrative functions to the members of the Board; (f) apportions work among the members of the Board and fixes the place, date and time of proceedings;
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(g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay; (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; and (i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter. Delegation
(2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, other than a member of the Immigration Division, except that (a) powers conferred under subsection 161(1) may not be delegated; (b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board; and (c) powers in relation to the Immigration Division may only be delegated to the Director General, directors or members of that Division.
Absence, incapacity or vacancy
160. In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Minister may authorize one of the Deputy Chairpersons or any other member of the Board to act as Chairperson. Functioning of Board
Rules
161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;
Immigration et prote (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules.
Tabling in Parliament
(2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council.
Provisions that Apply to All Divisions Sole and exclusive jurisdiction
162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
Procedure
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
Composition of panels
163. Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.
Presence of parties
164. Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.
Powers of a commissioner
165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.
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166. Proceedings before a Division are to be conducted as follows: (a) subject to the other provisions of this section, proceedings must be held in public; (b) on application or on its own initiative, the Division may conduct a proceeding in private, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public, (ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or (iii) a real and substantial risk that matters involving public security will be disclosed; (c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Immigration Division concerning a claimant of refugee protection, proceedings concerning cessation and vacation applications and proceedings before the Refugee Appeal Division must be held in private; (d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so; (e) despite paragraphs (b) and (c), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim to refugee protection; and (f) despite paragraph (e), the representative or agent may not observe any part of the
Immigration et prote proceedings that deals with information protected under subsection 86(1), or with information in respect of which an application has been made and not rejected under subsection 86(1).
Right to counsel
167. (1) Both a person who is the subject of Board proceedings and the Minister may, at their own expense, be represented by a barrister or solicitor or other counsel.
Representation
(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.
Abandonment of proceeding
168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so.
Abuse of process
(2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules.
Decisions and reasons
169. In the case of a decision of a Division, other than an interlocutory decision: (a) the decision takes effect in accordance with the rules; (b) reasons for the decision must be given; (c) the decision may be rendered orally or in writing, except a decision of the Refugee Appeal Division, which must be rendered in writing; (d) if the Refugee Protection Division rejects a claim, written reasons must be provided to the claimant and the Minister; (e) if the person who is the subject of proceedings before the Board or the Minister requests reasons for a decision within 10 days of notification of the decision, or in circumstances set out in the rules of the Board, the Division must provide written reasons; and
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(f) the period in which to apply for judicial review with respect to a decision of the Board is calculated from the giving of notice of the decision or from the sending of written reasons, whichever is later. Refugee Protection Division Proceedings
170. The Refugee Protection Division, in any proceeding before it, (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; (b) must hold a hearing; (c) must notify the person who is the subject of the proceeding and the Minister of the hearing; (d) must provide the Minister, on request, with the documents and information referred to in subsection 100(4); (e) must give the person and the Minister a reasonable opportunity to present evidence, question witnesses and make representations; (f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene; (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; and (i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge. Refugee Appeal Division
Proceedings
171. In the case of a proceeding of the Refugee Appeal Division, (a) the Minister may, after giving notice within the period that is required by the rules, intervene in the appeal, including for the purpose of filing submissions;
Immigration et prote (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court. Immigration Division
Composition
172. (1) The Immigration Division consists of the Director General and other directors and members necessary to carry out its functions and who are employed in accordance with the Public Service Employment Act.
Powers
(2) The Director General and the directors of the Immigration Division have all the powers and may carry out the duties and functions of members of the Division.
Proceedings
173. The Immigration Division, in any proceeding before it, (a) must, where practicable, hold a hearing; (b) must give notice of the proceeding to the Minister and to the person who is the subject of the proceeding and hear the matter without delay; (c) is not bound by any legal or technical rules of evidence; and (d) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances. Immigration Appeal Division
Court of record
174. (1) The Immigration Appeal Division is a court of record and shall have an official seal, which shall be judicially noticed.
Powers
(2) The Immigration Appeal Division has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents and the enforcement of its orders.
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175. (1) The Immigration Appeal Division, in any proceeding before it, (a) must, in the case of an appeal under subsection 63(4), hold a hearing; (b) is not bound by any legal or technical rules of evidence; and (c) may receive and base a decision on evidence adduced in the proceedings that it considers credible or trustworthy in the circumstances.
Presence of permanent resident
(2) In the case of an appeal by a permanent resident under subsection 63(4), the Immigration Appeal Division may, after considering submissions from the Minister and the permanent resident and if satisfied that the presence of the permanent resident at the hearing is necessary, order the permanent resident to physically appear at the hearing, in which case an officer shall issue a travel document for that purpose. Remedial and Disciplinary Measures
Request
176. (1) The Chairperson may request the Minister to decide whether any member, except a member of the Immigration Division, should be subject to remedial or disciplinary measures for a reason set out in subsection (2).
Reasons
(2) The request is to be based on the reason that the member has become incapacitated from the proper execution of that office by reason of infirmity, has been guilty of misconduct, has failed in the proper execution of that office or has been placed, by conduct or otherwise, in a position that is incompatible with due execution of that office.
Measures
177. On receipt of the request, the Minister may take one or more of the following measures: (a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary; (b) refer the matter for mediation, if the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation; (c) request of the Governor in Council that an inquiry be held under section 178; or
Immigration et prote (d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this section or sections 178 to 185.
Appointment of inquirer
178. On receipt of a request referred to in paragraph 177(c), the Governor in Council may, on the recommendation of the Minister of Justice, appoint a judge of a superior court to conduct an inquiry.
Powers
179. The judge has all the powers, rights and privileges that are vested in a superior court, including the power (a) to issue a summons requiring any person to appear at the time and place mentioned in the summons to testify about all matters within that person’s knowledge relative to the inquiry and to produce any document or thing relative to the inquiry that the person has or controls; and (b) to administer oaths and examine any person on oath.
Staff
180. The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.
Exceptions to public hearing
181. (1) An inquiry must be held in public. However, the judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternate measures, the judge is satisfied that there is (a) a real and substantial risk that matters involving public security will be disclosed; (b) a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or (c) a serious possibility that the life, liberty or security of a person will be endangered.
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Confidentiality of application
(2) If the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (1).
Rules of evidence
182. (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.
Intervenors
(2) An interested party may, with leave of the judge, intervene in an inquiry on any terms and conditions that the judge considers appropriate.
Right to be heard
183. The member who is the subject of the inquiry shall be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and shall be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.
Report to Minister
184. (1) After an inquiry has been completed, the judge must submit a report containing the judge’s findings and recommendations, if any, to the Minister.
Recommendations
(2) The judge may, for any of the reasons set out in subsection 176(2), recommend in the report that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken.
Transmission of report to Governor in Council
185. If the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council who may, if the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.
Rights not affected
186. Nothing in sections 176 to 185 affects any right or power of the Governor in Council in relation to the removal of a member from office for cause.
Immigration et prote PART 5 TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND RELATED AMENDMENTS, COORDINATING AMENDMENTS, REPEALS AND COMING INTO FORCE Transitional Provisions
Definition of ‘‘former Act’’
187. For the purposes of sections 188 to 201, ‘‘former Act’’ means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.
Continuation
188. (1) The Immigration and Refugee Board continued by section 57 of the former Act is hereby continued.
Chairperson, Deputy Chairpersons, Assistant Deputy Chairpersons
(2) The Chairperson, Deputy Chairpersons and Assistant Deputy Chairpersons appointed under the former Act continue in the same capacity with the Board until the expiry or revocation of their respective appointments.
Continuation — members
(3) A member appointed under the former Act to the Convention Refugee Determination Division or the Immigration Appeal Division continues in office as a member of the Board until the expiry or revocation of their appointment.
Executive Director
(4) The person who, on the coming into force of this section, held the office of Executive Director of the Board is deemed to have been appointed to that office under section 158, without prejudice to any salary and benefits he or she may receive by virtue of having held that office before that coming into force.
Powers
189. Sections 94.6, 102.001 to 102.003 and 107.1 of the former Act are, despite paragraph 274(a), deemed not to be repealed and the Minister may exercise any of the powers described in those sections with respect to any business or fund that was approved by the Minister before the coming into force of paragraph 274(a).
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Application of this Act
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
Convention Refugee Determination Division
191. Every application, proceeding or matter before the Convention Refugee Determination Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under the former Act by the Refugee Protection Division of the Board.
Immigration Appeal Division
192. If a notice of appeal has been filed with the Immigration Appeal Division immediately before the coming into force of this section, the appeal shall be continued under the former Act by the Immigration Appeal Division of the Board.
Continuation by Immigration Division
193. Every application, proceeding or matter before the Adjudication Division under the former Act that is pending or in progress immediately before the coming into force of this section, in respect of which substantive evidence has been adduced but no decision has been made, shall be continued under this Act by the Immigration Division of the Board.
Refugee Protection Division
194. In cases referred to in section 191, a decision by the Refugee Protection Division following a hearing that has been commenced by the Convention Refugee Determination Division is not subject to an appeal under section 110.
Convention Refugee Determination Division
195. A decision made by the Convention Refugee Determination Division before the coming into force of this section is not subject to an appeal under section 110.
Appeals
196. Despite section 192, an appeal made to the Immigration Appeal Division before the coming into force of this section shall be discontinued if the appellant has not been granted a stay under the former Act and the appeal could not have been made because of section 64 of this Act.
Immigration et prote
Stays
197. Despite section 192, if an appellant who has been granted a stay under the former Act breaches a condition of the stay, the appellant shall be subject to the provisions of section 64 and subsection 68(4) of this Act.
Refugee Protection Division
198. The Refugee Protection Division has jurisdiction to consider decisions of the Convention Refugee Determination Division that are set aside by the Federal Court or the Supreme Court of Canada, and shall dispose of those matters in accordance with the provisions of this Act.
Redetermination
199. Sections 112 to 114 apply to a redetermination of a decision set aside by the Federal Court with respect to an application for landing as a member of the post-determination refugee claimants in Canada class within the meaning of the Immigration Regulations, 1978.
Exclusion
200. Subsection 31(1) does not apply with respect to persons who were permanent residents, within the meaning of the former Act, on the coming into force of this section.
Regulations
201. The regulations may provide for measures regarding the transition between the former Act and this Act, including measures regarding classes of persons who will be subject in whole or in part to this Act or the former Act and measures regarding financial and enforcement matters.
Consequential and Related Amendments
R.S., c. A-1
Access to Information Act 202. Paragraph 4(1)(b) of the Access to Information Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
�� 1997, c. 20
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Agricultural Marketing Programs Act 203. The portion of the definition ‘‘producer’’ in subsection 2(1) of the Agricultural Marketing Programs Act after paragraph (d) is replaced by the following: For the purposes of Parts I and IV, ‘‘producer’’ includes a person or entity mentioned in any of paragraphs (a) to (d) that is entitled to a crop or a share in it as landlord, vendor, mortgagee or hypothecary creditor on a date specified for the purposes of this definition in an advance guarantee agreement. In this definition, ‘‘permanent resident’’ has the same meaning as in subsection 2(1) of the Immigration and Refugee Protection Act.
R.S., c. 8 (4th Supp.)
Animal Pedigree Act 204. Subsection 7(2) of the Animal Pedigree Act is replaced by the following:
Qualifications of applicants
Eligibility
1991, c. 46
(2) A person is qualified to apply to form an association if the person is eighteen years of age or more and is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. 205. Subsection 40(2) of the Act is replaced by the following: (2) Only a Canadian citizen ordinarily resident in Canada or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may be a director of the Corporation. Bank Act 206. Paragraph (c) of the definition ‘‘resident Canadian’’ in section 2 of the Bank Act is replaced by the following: (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which the individual first became eligible to apply for Canadian citizenship;
2001 1998, c. 21
Immigration et prote Budget Implementation Act, 1998 207. Paragraph 27(1)(a) of the Budget Implementation Act, 1998 is replaced by the following: (a) are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
1995, c. 28
Business Development Bank of Canada Act
208. (1) Paragraph 6(6)(a) of the Business Development Bank of Canada Act is replaced by the following: (a) neither a Canadian citizen nor a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; (2) Paragraph 6(6)(c) of the Act is replaced by the following: (c) a permanent resident, within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, who has been ordinarily resident in Canada for more than one year after first becoming eligible to apply for Canadian citizenship;
R.S., c. C-44; 1994, c. 24, s. 1(F)
Canada Business Corporations Act
209. Paragraph (c) of the definition ‘‘resident Canadian’’ in subsection 2(1) of the Canada Business Corporations Act is replaced by the following: (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which he or she first became eligible to apply for Canadian citizenship;
�� 1999, c. 17
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Canada Customs and Revenue Agency Act
210. Paragraph 16(2)(a) of the Canada Customs and Revenue Agency Act is replaced by the following: (a) is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; 2000, c. 9
Canada Elections Act 211. Paragraph 331(b) of the Canada Elections Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
212. Paragraph 354(2)(d) of the Act is replaced by the following: (d) a person who is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; 213. Paragraph 358(a) of the Act is replaced by the following: (a) a person who is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; 214. Paragraph 404(1)(a) of the Act is replaced by the following: (a) a person who is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; R.S., c. L-2
Canada Labour Code
1998, c. 26, s. 2
215. Subsection 10(4) of the Canada Labour Code is replaced by the following:
2001 Requirement for appointment
Immigration et prote (4) The members of the Board must be Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
R.S., c. S-9
Canada Shipping Act
1998, c. 16, s. 1(4)
216. Paragraph (a) of the definition ‘‘qualified person’’ in section 2 of the Canada Shipping Act is replaced by the following: (a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or
R.S., c. 6 (3rd Supp.), s. 13
217. Subsection 125(2) of the Act is replaced by the following:
Citizenship of applicants
(2) A certificate shall not be granted under this Part to an applicant who is not a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
R.S., c. 6 (3rd Supp.), s. 84
218. Subparagraph 712(3)(b)(i) of the Act is replaced by the following: (i) are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in the case of an individual, or
1994, c. 28
Canada Student Financial Assistance Act 219. Paragraph (a) of the definition ‘‘qualifying student’’ in subsection 2(1) of the Canada Student Financial Assistance Act is replaced by the following: (a) who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act,
�� R.S., c. S-23
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220. Paragraph (a) of the definition ‘‘qualifying student’’ in subsection 2(1) of the Canada Student Loans Act is replaced by the following: (a) who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, 1996, c. 10
Canada Transportation Act 221. The portion of subsection 7(2) of the Canada Transportation Act after paragraph (b) is replaced by the following: each of whom must, on appointment or reappointment and while serving as a member, be a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
2000, c. 15, s. 1
222. The definition ‘‘Canadian’’ in subsection 55(1) of the Act is replaced by the following:
‘‘Canadian’’ « Canadien »
‘‘Canadian’’ means a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, a government in Canada or an agent of such a government or a corporation or other entity that is incorporated or formed under the laws of Canada or a province, that is controlled in fact by Canadians and of which at least seventy-five per cent, or such lesser percentage as the Governor in Council may by regulation specify, of the voting interests are owned and controlled by Canadians;
R.S., c. C-23
Canadian Security Intelligence Service Act 223. The portion of section 14 of the Canadian Security Intelligence Service Act after paragraph (b) is replaced by the following:
Immigration et prote that is relevant to the exercise of any power or the performance of any duty or function by that Minister under the Citizenship Act or the Immigration and Refugee Protection Act.
224. Subparagraph 16(1)(b)(ii) of the Act is replaced by the following: (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or
225. Subparagraph 38(c)(ii) of the Act is replaced by the following: (ii) reports made to the Committee pursuant to section 19 of the Citizenship Act, and 226. Paragraphs 55(a) and (b) of the Act are replaced by the following: (a) a statement under section 46 of this Act, subsection 45(6) of the Canadian Human Rights Act or subsection 19(5) of the Citizenship Act; or (b) a report under paragraph 52(1)(b), subsection 52(2) or section 53 of this Act, subsection 46(1) of the Canadian Human Rights Act or subsection 19(6) of the Citizenship Act.
1995, c. 25
Chemical Weapons Convention Implementation Act 227. Section 22 of the Chemical Weapons Convention Implementation Act is replaced by the following:
Offence outside Canada
22. Every individual who commits, outside Canada, an act or omission that would, if committed in Canada, be an offence under this Act, shall, if the individual is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, be deemed to have committed that act or omission in Canada.
�� R.S., c. C-29
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227.1 The portion of paragraph 2(2)(c) of the Citizenship Act before subparagraph (i) is replaced by the following: (c) a person against whom a removal order has been made remains under that order 228. (1) The portion of paragraph 5(1)(c) of the Act before subparagraph (i) is replaced by the following: (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: (2) Paragraph 5(1)(f) of the Act is replaced by the following: (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. (3) Paragraph 5(2)(a) of the Act is replaced by the following: (a) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and is the minor child of a citizen if an application for citizenship is made to the Minister by a person authorized by regulation to make the application on behalf of the minor child; or 229. Paragraphs 11(1)(c) and (d) of the Act are replaced by the following: (c) is not under a removal order; and (d) has become a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and has, since having ceased to be a citizen and become a permanent resident, resided in Canada for at least one year immediately preceding the date of the application. 1995, c. 15, s. 23
230. Subsections 14(1.1) and (1.2) of the Act are replaced by the following:
Immigration et prote
Interruption of proceedings
(1.1) Where an applicant is a permanent resident who is the subject of an admissibility hearing under the Immigration and Refugee Protection Act, the citizenship judge may not make a determination under subsection (1) until there has been a final determination whether, for the purposes of that Act, a removal order shall be made against that applicant.
1999, c. 31, s. 42
231. Paragraph 22(1)(e) of the Act is replaced by the following: (e) if the person has not obtained the authorization to return to Canada required under subsection 52(1) of the Immigration and Refugee Protection Act; or 232. Paragraph 35(3)(a) of the Act is replaced by the following: (a) prohibits, annuls or restricts the taking or acquisition directly or indirectly of, or the succession to, any interest in real property located in a province by a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
1998, c. 32
Comprehensive Nuclear Test-Ban Treaty Implementation Act 233. Subsection 19(2) of the Comprehensive Nuclear Test-Ban Treaty Implementation Act is replaced by the following:
Canadian inspectors
(2) Despite subsection (1), inspectors who are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act only have the privileges and immunities granted in accordance with paragraph 17(b) and subsection 18(1).
1991, c. 48
Cooperative Credit Associations Act 234. Paragraph (c) of the definition ‘‘resident Canadian’’ in section 2 of the Cooperative Credit Associations Act is replaced by the following: (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except
��
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Immigration and R a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which the individual first became eligible to apply for Canadian citizenship;
R.S., c. C-42
Copyright Act
1997, c. 24, s. 14
235. Clause 15(2)(b)(i)(A) of the Copyright Act is replaced by the following: (A) if a natural person, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Rome Convention country, or
1997, c. 24, s. 14
236. Subsection 17(4) of the Act is replaced by the following:
Exception
(4) If so requested by a country that is a party to the North American Free Trade Agreement, the Minister may, by a statement published in the Canada Gazette, grant the benefits conferred by this section, subject to any terms and conditions specified in the statement, to performers who are nationals of that country or another country that is a party to the Agreement or are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and whose performer’s performances are embodied in works other than the prescribed cinematographic works referred to in subsection (3).
1997, c. 24, s. 14
237. The portion of paragraph 18(2)(a) of the Act before subparagraph (i) is replaced by the following: (a) the maker of the sound recording was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Berne
Immigration et prote Convention country, a Rome Convention country or a country that is a WTO Member, or, if a corporation, had its headquarters in one of the foregoing countries,
1997, c. 24, s. 14
238. (1) Paragraph 20(1)(a) of the Act is replaced by the following: (a) the maker was, at the date of the first fixation, a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, or a citizen or permanent resident of a Rome Convention country, or, if a corporation, had its headquarters in one of the foregoing countries; or
1997, c. 24, s. 14
(2) Subsection 20(2) of the Act is replaced by the following:
Exception
(2) Notwithstanding subsection (1), if the Minister is of the opinion that a Rome Convention country does not grant a right to remuneration, similar in scope and duration to that provided by section 19, for the performance in public or the communication to the public of a sound recording whose maker, at the date of its first fixation, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if a corporation, had its headquarters in Canada, the Minister may, by a statement published in the Canada Gazette, limit the scope and duration of the protection for sound recordings whose first fixation is done by a maker who is a citizen or permanent resident of that country or, if a corporation, has its headquarters in that country.
1997, c. 24, s. 14
239. (1) The portion of subsection 22(1) of the Act after paragraph (b) and before paragraph (c) is replaced by the following: that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in
��
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Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette,
1997, c. 24, s. 14
(2) The portion of subsection 22(2) of the Act after paragraph (b) and before paragraph (d) is replaced by the following: that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette, (c) grant the benefits conferred by this Part to performers, makers of sound recordings or broadcasters that are citizens, subjects or permanent residents of or, if corporations, have their headquarters in that country, as the case may be, to the extent that that country grants that those benefits to performers, makers of sound recordings or broadcasters that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, and
1997, c. 24, s. 50
240. (1) Subparagraph (a)(i) of the definition ‘‘eligible maker’’ in section 79 of the Act is replaced by the following: (i) the maker, at the date of that first fixation, if a corporation, had its headquarters in Canada or, if a natural
Immigration et prote person, was a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
1997, c. 24, s. 50
(2) Subparagraph (a)(i) of the definition ‘‘eligible performer’’ in section 79 of the Act is replaced by the following: (i) the performer was, at the date of the first fixation of the sound recording, a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and
1997, c. 24, s. 50
241. (1) The portion of subsection 85(1) of the Act before paragraph (a) is replaced by the following:
Reciprocity
85. (1) Where the Minister is of the opinion that another country grants or has undertaken to grant to performers and makers of sound recordings that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette,
1997, c. 24, s. 50
(2) The portion of subsection 85(2) of the Act before paragraph (b) is replaced by the following:
Reciprocity
(2) Where the Minister is of the opinion that another country neither grants nor has undertaken to grant to performers or makers of sound recordings that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada, as the case may be, whether by treaty, convention, agreement or law, benefits substantially equivalent to those conferred by this Part, the Minister may, by a statement published in the Canada Gazette, (a) grant the benefits conferred by this Part to performers or makers of sound record��
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ings that are citizens, subjects or permanent residents of or, if corporations, have their headquarters in that country, as the case may be, to the extent that that country grants those benefits to performers or makers of sound recordings that are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or, if corporations, have their headquarters in Canada; and 1992, c. 20
Corrections and Conditional Release Act
1999, c. 18, s. 87
242. Subsection 128(3) of the Corrections and Conditional Release Act is replaced by the following:
Deeming
(3) Despite subsection (1), for the purposes of paragraph 50(b) of the Immigration and Refugee Protection Act and section 40 of the Extradition Act, the sentence of an offender who has been released on parole, statutory release or an unescorted temporary absence is deemed to be completed unless the parole or statutory release has been suspended, terminated or revoked or the unescorted temporary absence is suspended or cancelled or the offender has returned to Canada before the expiration of the sentence according to law.
Removal order
(4) Despite this Act or the Prisons and Reformatories Act, an offender against whom a removal order has been made under the Immigration and Refugee Protection Act is ineligible for day parole or an unescorted temporary absence until the offender is eligible for full parole.
Parole inoperative where parole eligibility date in future
(5) If, before the full parole eligibility date, a removal order is made under the Immigration and Refugee Protection Act against an offender who has received day parole or an unescorted temporary absence, on the day that the removal order is made, the day parole or unescorted temporary absence becomes inoperative and the offender shall be reincarcerated.
Exception
(6) An offender referred to in subsection (4) is eligible for day parole or an unescorted temporary absence if the removal order is stayed under paragraph 50(a), 66(b) or
Immigration et prote 114(1)(b) of the Immigration and Refugee Protection Act.
Exception
(7) Where the removal order of an offender referred to in subsection (5) is stayed under paragraph 50(a), 66(b) or 114(1)(b) of the Immigration and Refugee Protection Act on a day prior to the full parole eligibility of the offender, the unescorted temporary absence or day parole of that offender is resumed as of the day of the stay. 243. Section 159 of the Act is replaced by the following:
Eligibility
159. A person is eligible to be appointed as Correctional Investigator or to continue in that office only if the person is a Canadian citizen ordinarily resident in Canada or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who is ordinarily resident in Canada.
R.S., c. C-46
Criminal Code
1997, c. 16, s. 1
244. Subsection 7(4.1) of the Criminal Code is replaced by the following:
Offence in relation to sexual offences against children
(4.1) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
R.S., c. 29 (4th Supp.), s. 17
245. The reference to ‘‘sections 94.1 and 94.2 (organizing entry into Canada), 94.4 (disembarking persons at sea) and 94.5 (counselling false statements) of the Immigration Act’’ in the definition ‘‘offence’’ in section 183 of the Act is replaced by a reference to ‘‘sections 117 (organizing entry into Canada), 118 (trafficking in persons), 119 (disembarking persons at sea), 122 (offences related to documents), 126 (counselling misrepresentation) and 129 (offences relating to officers) of the Immigration and Refugee Protection Act’’.
��
C. 27
Immigration and R
246. The definition ‘‘enterprise crime offence’’ in section 462.3 of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b.1) and by adding the following after that paragraph: (b.2) an offence against section 117, 118, 119, 122, 124, 126, 127, 129, 130 or 131 of the Immigration and Refugee Protection Act, or 1996, c. 31, s. 68
247. Subparagraph 477.1(a)(ii) of the Act is replaced by the following: (ii) is committed by or in relation to a person who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
R.S., c. 22 (4th Supp.)
Emergencies Act 248. Paragraph 4(b) of the Emergencies Act is replaced by the following: (b) providing for the detention, imprisonment or internment of Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
1992, c. 49, s. 125
249. Paragraphs 30(1)(g) and (h) of the Act are replaced by the following: (g) the regulation or prohibition of travel outside Canada by Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and of admission into Canada of other persons; (h) the removal from Canada of persons, other than (i) Canadian citizens, (ii) permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and (iii) protected persons within the meaning of subsection 95(2) of that Act who are not inadmissible under that Act on grounds of
Immigration et prote (A) security, violating human or international rights or serious criminality, or (B) criminality and who have not been convicted of any offence under any Act of Parliament for which a term of imprisonment of more than six months has been imposed, or five years or more may be imposed;
1999, c. 18
Extradition Act 250. Subsection 40(2) of the Extradition Act is replaced by the following:
When refugee claim
(2) Before making an order under subsection (1) with respect to a person who has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall consult with the minister responsible for that Act. 251. Subsection 48(2) of the Act is replaced by the following:
When refugee claim
(2) When the Minister orders the discharge of a person and the person has made a claim for refugee protection under the Immigration and Refugee Protection Act, the Minister shall send copies of all relevant documents to the minister responsible for that Act. 252. (1) Subsection 75(1) of the Act is replaced by the following:
Special authorization
75. (1) The Minister may, in order to give effect to a request for consent to transit, authorize a person in a State or entity who is inadmissible under the Immigration and Refugee Protection Act to come into Canada at a place designated by the Minister and to go to and remain in a place in Canada so designated for the period specified by the Minister. The Minister may make the authorization subject to any conditions that the Minister considers desirable. (2) Subsection 75(3) of the Act is replaced by the following:
�� Non-compliance with conditions of authorization
1999, c. 23
C. 27
Immigration and R
(3) A person in respect of whom an authorization is granted under subsection (1) and who is found in a place in Canada other than the place designated in the authorization or in any place in Canada after the expiry of the period of time specified in the authorization or who fails to comply with some other condition of the authorization is, for the purposes of the Immigration and Refugee Protection Act, deemed to be a person who entered Canada as a temporary resident and remains in Canada after the period authorized for their stay. Foreign Publishers Advertising Services Act 253. (1) Paragraph (b) of the definition ‘‘Canadian’’ in section 2 of the Foreign Publishers Advertising Services Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; (2) Paragraph (c) of the definition ‘‘Canadian Corporation’’ in section 2 of the Act is replaced by the following: (c) whose chairperson or other presiding officer and more than half of whose directors or other similar officers are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
R.S., c. 1 (5th Supp.)
Income Tax Act 254. Subparagraphs (e)(i) to (iii) of the definition ‘‘eligible individual’’ in section 122.6 of the Income Tax Act are replaced by the following: (i) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, (ii) is a temporary resident within the meaning of the Immigration and Refugee Protection Act, who was resident in Canada throughout the 18 month period preceding that time, or
Immigration et prote (iii) is a protected person within the meaning of the Immigration and Refugee Protection Act,
1991, c. 47
Insurance Companies Act 255. Paragraph (c) of the definition ‘‘resident Canadian’’ in subsection 2(1) of the Insurance Companies Act is replaced by the following: (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which the individual first became eligible to apply for Canadian citizenship;
R.S., c. 54 (4th Supp.)
International Centre for Human Rights and Democratic Development Act 256. Subsection 13(1) of the International Centre for Human Rights and Democratic Development Act is replaced by the following:
Canadian citizens or permanent residents
13. (1) The Chairman, the Vice-Chairman, the President and six other directors must be Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. 257. (1) Subsection 17(2) of the Act is replaced by the following:
Canadian citizens or permanent residents
(2) A majority of the members of the executive committee must be Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. (2) Subsection 17(6) of the Act is replaced by the following:
Quorum
(6) Three members of the executive committee, a majority of whom are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, constitute a quorum at any meeting of the committee.
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Immigration and R
258. Subsection 20(2) of the Act is replaced by the following: Quorum
R.S., c. 28 (1st Supp.)
(2) Seven directors, at least five of whom are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, constitute a quorum at any meeting of the Board. Investment Canada Act 259. Paragraph (b) of the definition ‘‘Canadian’’ in section 3 of the Investment Canada Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has been ordinarily resident in Canada for not more than one year after the time at which he or she first became eligible to apply for Canadian citizenship,
R.S., c. L-1
Labour Adjustment Benefits Act 260. Paragraph 14(1)(a) of the Labour Adjustment Benefits Act is replaced by the following: (a) the employee is a Canadian citizen resident in Canada or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
R.S., c. 30 (4th Supp.)
Mutual Legal Assistance in Criminal Matters Act
1999, c. 18, s. 123
261. (1) Subsection 40(1) of the Mutual Legal Assistance in Criminal Matters Act is replaced by the following:
Special authorization
40. (1) The Minister may, in order to give effect to a request of a Canadian competent authority, authorize a person in a state or entity who is inadmissible under the Immigration and Refugee Protection Act to come into Canada at a place designated by the Minister and to go to and remain in a place in Canada so designated for the period of time specified by the Minister, and the Minister may make the authorization subject to any conditions that the Minister considers desirable.
Immigration et prote (2) Subsection 40(3) of the Act is replaced by the following:
Non-compliance with conditions of authorization
(3) A person to whom an authorization is granted under subsection (1) who is found in a place in Canada other than the place designated in the authorization or in any place in Canada after the expiration of the period of time specified in the authorization or who fails to comply with some other condition of the authorization shall, for the purposes of the Immigration and Refugee Protection Act, be deemed to be a person who entered Canada as a temporary resident and remains after the period authorized for their stay.
R.S., c. N-7
National Energy Board Act
1990, c. 7, s. 3(2)
262. Subsection 3(4) of the National Energy Board Act is replaced by the following:
Eligibility
(4) A person is not eligible to be appointed or to continue as a member of the Board if that person is not a Canadian citizen or permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or is, as owner, shareholder, director, officer, partner or otherwise, engaged in the business of producing, selling, buying, transmitting, exporting, importing or otherwise dealing in hydrocarbons or electricity or holds any bond, debenture or other security of a corporation engaged in any such business.
R.S., c. O-9
Old Age Security Act
1996, c. 18, s. 50
263. Paragraph (b) of the definition ‘‘specially qualified individual’’ in section 2 of the Old Age Security Act is replaced by the following: (b) for the month of January 2001 or an earlier month, where, before March 7, 1996, the person was residing in Canada as a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;
1996, c. 18, s. 51(1)
264. Subparagraph 11(7)(e)(ii) of the Act is replaced by the following:
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Immigration and R (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act in respect of whom an undertaking by a sponsor is in effect as provided in that Act and regulations under that Act.
1996, c. 18, s. 53(1)
265. Subparagraph 19(6)(d)(ii) of the Act is replaced by the following: (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act in respect of whom an undertaking by a sponsor is in effect as provided in that Act and regulations under that Act.
1998, c. 21, s. 115(2)
266. Subparagraph 21(9)(c)(ii) of the Act is replaced by the following: (ii) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act in respect of whom an undertaking by a sponsor is in effect as provided in that Act and regulations under that Act.
1997, c. 40, s. 102; 2000, c. 12, par. 207(1)(l)
267. Paragraph 33.11(b) of the Act is replaced by the following: (b) the Minister of Citizenship and Immigration and officers and employees of the Department of Citizenship and Immigration may make available to the Minister or a public officer of the Department of Human Resources Development any information that was obtained in the administration of the Immigration and Refugee Protection Act that relates to an applicant, a beneficiary or a spouse or common-law partner of an applicant or beneficiary, if the information is necessary for the administration of this Act; and
R.S., c. P-14
Pilotage Act 268. Paragraph 22(2)(b) of the Pilotage Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has not been ordinarily resident in Canada for six years or who has been ordinarily resident in Canada for six years or more and is shown,
Immigration et prote to the satisfaction of the Authority, not to have become a Canadian citizen as a result of circumstances beyond the control of the applicant.
R.S., c. P-21
Privacy Act 269. The portion of subsection 12(1) of the Privacy Act before paragraph (a) is replaced by the following:
Right of access
2000, c. 17
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to Proceeds of Crime (Money Laundering) Act 270. Paragraph 55(3)(d) of the Proceeds of Crime (Money Laundering) Act is replaced by the following: (d) the Department of Citizenship and Immigration, if the Centre also determines that the information would promote the objective set out in paragraph 3(1)(i) of the Immigration and Refugee Protection Act and is relevant to determining whether a person is a person described in sections 34 to 42 of that Act or to an offence under any of sections 117 to 119, 126 or 127 of that Act;
R.S., c. T-13
Trade-marks Act
1994, c. 47, s. 192
271. Paragraph 11.17(2)(b) of the Trademarks Act is replaced by the following: (b) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has been ordinarily resident in Canada for not more than one year after the time at which the permanent resident first became eligible to apply for Canadian citizenship; and
��� 1991, c. 45
C. 27
Immigration and R Trust and Loan Companies Act
272. Paragraph (c) of the definition ‘‘resident Canadian’’ in section 2 of the Trust and Loan Companies Act is replaced by the following: (c) a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which the individual first became eligible to apply for Canadian citizenship; Terminology Terminology
273. Unless the context requires otherwise, ‘‘Immigration Act’’ is replaced by ‘‘Immigration and Refugee Protection Act’’ in (a) any regulation, as defined in section 2 of the Statutory Instruments Act; and (b) any other instrument made (i) in the execution of a power conferred by or under an Act of Parliament, or (ii) by or under the authority of the Governor in Council. Coordinating Amendments
Bill S-2
273.1 (1) Subsections (2) and (3) apply if Bill S-2, introduced in the first session of the 37th Parliament and entitled the Marine Liability Act (referred to in this section as the ‘‘other Act’’), receives royal assent. (2) On the coming into force of section 1 of this Act, subparagraph 88(4)(b)(i) of the other Act is replaced by the following: (i) are Canadian citizens or permanent residents of Canada within the meaning of subsection 2(1) of the Immigration and Refugeee Protection Act, in the case of an individual, or
Immigration et prote (3) If section 127 of the other Act comes into force before section 218 of this Act comes into force, then section 218 of this Act is repealed.
Repeals
Repeals 274. The following Acts are repealed: (a) the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985; (b) An Act to amend the Immigration Act and other Acts in consequence thereof, chapter 49 of the Statutes of Canada, 1992; (c) An Act to amend the Immigration Act and the Citizenship Act and to make a consequential amendment to the Customs Act, chapter 15 of the Statutes of Canada, 1995; and (d) An Act to amend the Citizenship Act and the Immigration Act, chapter 22 of the Statutes of Canada, 1997.
Coming into force
Coming Into Force 275. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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Immigration and Refugee SCHEDULE (Subsection 2(1))
SECTIONS E AND F OF ARTICLE 1 OF THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country. F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations. ARTICLE 1 OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT 1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 26
An Act respecting shipping and navigation and to amend the Shipping Conferences Exemption Act, 1987 and other Acts
BILL C-14 ASSENTED TO 1st NOVEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act respecting shipping and navigation and to amend the Shipping Conferences Exemption Act, 1987 and other Acts’’.
SUMMARY This enactment overhauls and replaces the Canada Shipping Act, other than the portions that concern liability, with modernized legislation that will promote the safety and economic performance of the commercial marine industry as well as ensure the safety of those who use pleasure craft. Key changes to the existing legislation include improvements to provisions to protect and support efficient crews, ensure passenger and vessel safety and protect the environment. A new administrative penalties scheme provides an alternative means for dealing with certain contraventions. The enactment clarifies the marine responsibilities between the Department of Transport and the Department of Fisheries and Oceans. The enactment organizes the contents, updates the terminology and streamlines substantive requirements to make the law much clearer and easier to understand. The enactment amends the Shipping Conferences Exemption Act, 1987 to inject greater competition within shipping conferences, to streamline the administration of the Act and to ensure that Canadian legislation covering international liner shipping conferences remains in harmony with that of Canada’s major trading partners.
��� ������������� ������������ ��� ��������� �� ��� ������������� �������� ������������� �� ��� ��������� �������� ���������������������
TABLE OF PROVISIONS
AN ACT RESPECTING SHIPPING AND NAVIGATION AND TO AMEND THE SHIPPING CONFERENCES EXEMPTION ACT, 1987 AND OTHER ACTS
SHORT TITLE
1. Short title INTERPRETATION
2. Definitions
3. Descriptive cross-references
4. Regulations PART 1 GENERAL Her Majesty
5. Binding on Her Majesty Objectives
6. Objectives of Act Application
7. Exclusion
8. Application of this Part Ministerial Responsibility
9. Role of Minister of Transport Powers of Ministers
10. General Inspections by Marine Safety Inspectors and Others
11. Appointment of marine safety inspectors
12. Authorizing others to inspect
13. Audit Authorized Representative
14. Authorized representative Adjudicators
15. Appointment
�� Canadian Maritime Documents 16.
Application
17. Period of validity
18. Production of document
19. Lost documents
20. Suspension, cancellation and refusal to renew
21. Issuance of documents to foreign vessels
22. Foreign documents
Other Documents
General Prohibitions 23.
Destruction of documents, fraud, obstruction and movement of detained vessel Tonnage Measurers
24. Appointment of tonnage measurers
25. Fees and travel expenses Marine Technical Review Board
26. Establishment
27. Striking panels
28. Application International Conventions, Protocols and Resolutions
29. Schedule 1
30. Additions to Schedule 1 or 2
31. Deletions from Schedule 1 or 2 Incorporation by Reference
32. Externally produced material
33. Defence Orders and Directions
34. In writing Regulations
35. Regulations — Minister of Transport Fees
36. Debt due to Her Majesty Offences and Punishment
37. Contravention of section 23
38. Contravention of regulations made under par. 35(1)(d) or (3)(a)
39. Contravention of Act
40. Contravention of Act or regulations
�� PART 2 REGISTRATION, LISTING AND RECORDING Interpretation 41.
Definition of ‘‘Minister’’
42. Appointment of Chief Registrar
43. Duties and powers of Chief Registrar
44. Registrars
45. Immunity
Canadian Register of Vessels and Registrars
Registration, Listing and Recording 46.
Mandatory registration of vessels
47. Optional registration
48. Bare-boat chartered vessels
49. Vessels under construction
50. Vessels built outside Canada Application
51. Application Names of Vessels
52. Before registration or listing Ownership of Vessels
53. Shares
54. Certificates of registry
55. Provisional certificates
56. Lost certificates
Certificates
Marking 57.
Marking Notifying Chief Registrar
58. Notification of changes Maintenance of Register
59. Amendments Suspension, Cancellation and Reinstatement of Registration
60. Suspension and cancellation
61. Registration of mortgages not affected
62. Reinstatement
�� Custody of Certificates of Registry and Provisional Certificates 63.
Carrying on board Rights and Obligations
64. Right to fly Canadian flag Mortgages
65. Mortgage of vessel or share
66. Entry of discharge of mortgage
67. Priority of mortgages
68. Mortgagee not treated as owner
69. Mortgagee has power of sale
70. Mortgage not affected by bankruptcy
71. Transfer of mortgages
72. Transmission of interest of mortgagee Transfers of Vessels or Shares in Vessels
73. Transfer
74. Order for sale on acquisition by an unqualified person
75. Power of court to prohibit transfer Entries
76. Copies of entries Regulations
77. Regulations Offences and Punishment
78. Contravention of Act or regulations
79. Contravention of Act or regulations PART 3 PERSONNEL Interpretation
80. Definition of ‘‘Minister’’ Application
81. Canadian vessels Masters
82. Presentation of documents
83. Detention of persons
� Stowaways and Other Persons 84.
Liable for discipline Contract of Employment
85. Masters’ contracts Liens and Claims
86. Liens
87. Positions on board Canadian vessels
88. Eligibility
89. Acceptance of foreign certificates
Certificates
Medical or Optometric Information 90.
Minister to be provided with information Articles of Agreement, Discharge and Record of Sea Service
91. Articles of agreement
92. Discharge
93. Record of sea service
94. Return and payment of expenses
95. Desertion or serious violation of contract
Return of Crew Members
Births and Deaths 96.
Informing the Minister
97. Death of crew member Obligation of Persons Who Provide Crew Members
98. If an agreement to provide crew members Resolution of Disputes
99. Adjudication by Minister Regulations
100. Regulations
101. Contravention of Act or regulations
102. Contravention of Act
103. Contravention of Act or regulations
Offences and Punishment
� PART 4 SAFETY Interpretation 104.
Definition of ‘‘Minister’’ Application
105. Canadian vessels and foreign vessels Authorized Representatives
106. General duties Masters
107. Obtaining Canadian maritime documents
108. Exemptions
109. Safety of persons
110. Carrying excess number of persons
111. Compliance with directions
112. Information to be sent respecting dangers to navigation Crew
113. Carrying out duties and reporting
114. Compliance with directions Passengers
115. Compliance with directions Authorized Representatives, Masters, Crew Members and Other Persons
116. When boarding a vessel prohibited
117. Tampering and vandalism
118. Jeopardizing safety Construction of Vessels
119. In accordance with plans Regulations
120. Regulations Offences and Punishment
121. Contravention of Act or regulations
122. Contravention of subsection 110(2)
123. Contravention of Act
124. When compliance agreement in effect
�� PART 5 NAVIGATION SERVICES Interpretation 125.
Definitions Vessel Traffic Services
126. Entering, leaving or proceeding within a VTS Zone
127. Variations from requirements or conditions Aids to Navigation
128. Aids to navigation vest in Her Majesty
129. Obligation to report damage Search and Rescue
130. Designation of rescue coordinators
131. Answering distress signal
132. Assistance
133. Aircraft treated as if vessel Sable Island
134. Presence on Island Enforcement
135. Designation Regulations
136. Regulations Offences and Punishment
137. Contravention of Act
138. Contravention of Act or regulations
139. Contravention of section 134 PART 6 INCIDENTS, ACCIDENTS AND CASUALTIES Interpretation
140. Definitions Application
141. Vessels
�� Salvage International Convention on Salvage, 1989 142.
Salvage Convention Salvage by Crown Vessels
143. When salvage services may be claimed
144. Governor in Council may accept offers of settlement Limitation of Time for Salvage Proceedings
145. Proceedings within two years Aircraft
146. Aircraft treated as if vessel Rights Not Affected
147. Salvage
148. Duty of masters in collision
Obligations in Case of Collisions
Inquiry into Causes of Death 149.
Inquiry into cause of death on board
150. Regulations — Minister
Regulations
Offences and Punishment 151.
Contravention of paragraph 148(a) or the regulations
152. Contravention of Act or regulations PART 7 WRECK Interpretation
153. Definitions
154. Designation
Designation of Receivers of Wreck
Found Wreck 155.
Duty of persons taking possession of wreck
156. Salvage award
157. Prohibition
158. Delivery of wreck or proceeds of disposition
159. Interpleader in case of wreck Disposition of Wreck
160. When wreck may be disposed of
�� 161.
Unpaid salvage, fees, expenses
162. Release of wreck Regulations
163. Regulations — Minister Offences and Punishment
164. Contravention of Act or regulations PART 8
POLLUTION PREVENTION AND RESPONSE — DEPARTMENT OF FISHERIES AND OCEANS Interpretation 165.
Definitions Application
166. Application Discharges of Oil
167. Vessels — requirements
168. Oil handling facilities — requirements
169. Certificate of designation
170. Statement of fees
171. Prescribed procedures, equipment and resources
Response Organizations
Advisory Councils 172.
Advisory councils
173. Review and report by Minister
Report to Parliament
Pollution Prevention Officers 174.
Designation
175. Powers — general
176. Assistance to pollution prevention officer Detention of Vessels
177. Detention
178. Interference with service
179. Direction to move a detained vessel Response Measures
180. Minister may take necessary measures
181. Civil or criminal liability
� Regulations 182.
Regulations Offences and Punishment
183. Contravention of Act
184. Contravention of Act or regulations PART 9 POLLUTION PREVENTION — DEPARTMENT OF TRANSPORT Interpretation
185. Definitions Application
186. Application Pollution Incidents
187. Discharge of pollutant prohibited
188. Implementation of oil pollution emergency plan Directions to Vessels
189. Powers in case of discharge Regulations
190. Regulations Offences and Punishment
191. Contravention of Act or regulations
192. Contravention of directions
193. Court orders PART 10 PLEASURE CRAFT Interpretation
194. Definitions Inspections
195. Designation
196. Designation
� 197.
Manufacturers and importers
198. Powers
199. Operation prohibited Investigations
200. Stopping and boarding vessels Safe Operation of Pleasure Craft
201. Duty Pleasure Craft Licences
202. Licensing of pleasure craft
203. Application
204. Licence number
205. Defacing, etc., licence number
206. Lost documents Regulations
207. Regulations Offences and Punishment
208. Contravention of Act
209. Contravention of Act or regulations PART 11 ENFORCEMENT — DEPARTMENT OF TRANSPORT Interpretation
210. Definitions Inspections
211. Authorized persons and organizations
212. Seizure Clearance
213. No departure without clearance
214. Granting clearance Voyage with a Person on Board without Their Consent
215. Prohibition Reporting of Alleged Contraventions
216. Reasonable grounds
217. Inspection
�� 218.
Prohibition Investigations
219. Investigations
220. Search and seizure without warrant Analysis and Examination
221. Submission Detention of Vessels
222. Optional detention
223. Interference with service
224. Direction to move a detained vessel
225. Distress on vessel for sums ordered to be paid
226. Abandoned vessels
Sale of Vessels
Foreign Vessels in Contravention of International Conventions 227.
Minister’s powers Administrative Penalties Interpretation
228. Definition of ‘‘violation’’ Assurances of Compliance and Notices of Violation
229. If reasonable grounds to believe a violation
230. Deemed violation
231. When assurance of compliance complied with
232. Notice of violation Choice of Proceedings
233. How contravention may be proceeded with
234. Debts due to Her Majesty
235. Certificate of default
Recovery of Debts
Rules of Law about Violations 236.
Violations are not offences
237. Common law principles
238. Vicarious liability — Canadian maritime document holders General Provisions
239. Notations removed
240. Disclosure of notations of violations
241. Limitation period
242. Certificate of Minister
�� 243.
When compliance agreement in effect Regulations
244. Regulations
245. Contravention of Act
246. Contravention of Act or regulations
Offences and Punishment
PART 12 MISCELLANEOUS Goods 247.
Definition of ‘‘carrier’’
248. Carrier’s lien
249. Sale or other disposition of goods
250. Responsibility for goods
251. Actions in rem
Stevedoring
Proof of Offences by Vessels 252.
Proof of offence
253. Damage to environment and risk of death or harm to persons
Offences
Due Diligence 254.
Persons Prohibitions on Conviction
255. Court order Summary Conviction Proceedings
256. Limitation period Jurisdiction
257. Jurisdiction in case of offences
258. Jurisdiction over vessels lying off coasts Damage Occasioned by Foreign Vessels
259. Power to detain foreign vessel that has caused damage
260. Defence available in certain cases
Defence
Depositions in Legal Proceedings 261.
Depositions received when witness cannot be produced
�� Procedure 262.
Examination of persons before trial
263. No stay of proceedings without order
264. Jurisdiction
265. Documents admissible in evidence
266. Admissibility of documents in evidence
267. Document entries as proof Application of Fines
268. Paid to Receiver General Crown Liability
268.1
Crown not relieved State of War or Armed Conflict
269. Prohibition of shipment of articles of war PART 13 TRANSITIONAL
270. Decisions that cease to have effect
271. Acquired rights — registered vessels
272. Acquired rights — licensed vessels
273. Certificates remain in force
274. Regulations remain in force PART 14
CONSEQUENTIAL AND COORDINATING AMENDMENTS Consequential Amendments 275.
Bank Act
276-279. Canada Marine Act 280.
Canada-Newfoundland Atlantic Accord Implementation Act
281. Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
282. Canada Transportation Act
283. Canadian Environmental Protection Act, 1999
284. Canadian Transportation Accident Investigation and Safety Board Act
285. Carriage of Goods by Water Act
�� 286.
Citizenship Act
287-288. Coastal Fisheries Protection Act 289-292. Coasting Trade Act 293.
Contraventions Act
294. Criminal Code
295-298. Crown Liability and Proceedings Act 299.
Customs Act
300-302. Fisheries Act 303.
Great Lakes Fisheries Convention Act
304. Health of Animals Act
305. Canada Labour Code
306. Marine Transportation Security Act
307-310. Merchant Seamen Compensation Act 311.
National Defence Act
312. Non-smokers’ Health Act
313. Northwest Territories Waters Act
314. Nuclear Safety and Control Act
315. Canada Oil and Gas Operations Act
316-318. Pilotage Act 319-320. Canada Shipping Act 321.
Yukon Waters Act Coordinating Amendments
322. Bill C-10
323. Bill C-11
324. Bill S-2 PART 15 AMENDMENTS TO THE SHIPPING CONFERENCES EXEMPTION ACT, 1987
325-330. Amendments PART 16 AMENDMENTS TO THE CANADIAN ENVIRONMENTAL PROCTECTION ACT, 1999 331.
Amendments
�� PART 17 REPEALS AND COMING INTO FORCE Repeals 332-333. Repeals Coming into Force 334.
Coming into force SCHEDULES 1 TO 3
49-50 ELIZABETH II
CHAPTER 26 An Act respecting shipping and navigation and to amend the Shipping Conferences Exemption Act, 1987 and other Act
[Assented to 1st November, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Canada Shipping Act, 2001.
Definitions
2. The definitions in this section apply in this Act.
‘‘adjudicator’’ « arbitre »
‘‘adjudicator’’ means a person appointed under subsection 15(1).
‘‘authorized representative’’ « représentant autorisé »
‘‘authorized representative’’ means, in respect of a Canadian vessel, the person referred to in subsection 14(1) and, in respect of a foreign vessel, the master.
‘‘bare-boat charter’’ « affrètement coque nue »
‘‘bare-boat charter’’ means a vessel charter agreement under which the charterer has complete possession and control of the vessel, including the right to appoint its master and crew.
‘‘Canadian maritime document’’ « document maritime canadien »
‘‘Canadian maritime document’’ means a licence, permit, certificate or other document that is issued by the Minister of Transport under Part 1 (General), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) to verify that the person to whom or vessel to which it is issued has met requirements under that Part.
‘‘Canadian vessel’’ « bâtiment canadien »
‘‘Canadian vessel’’ means a vessel registered or listed under Part 2 (Registration, Listing and Recording).
INTERPRETATION
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‘‘foreign vessel’’ « bâtiment étranger »
‘‘foreign vessel’’ means a vessel that is not a Canadian vessel or a pleasure craft.
‘‘government vessel’’ « bâtiment d’État »
‘‘government vessel’’ means a vessel that is owned by and is in the service of Her Majesty in right of Canada or a province or that is in the exclusive possession of Her Majesty in that right.
‘‘gross tonnage’’ « jauge brute »
‘‘gross tonnage’’ means the volume of a vessel as determined by a tonnage measurer or calculated in accordance with the regulations made under paragraph 77(h).
‘‘master’’ « capitaine »
‘‘master’’ means the person in command and charge of a vessel. It does not include a licensed pilot, within the meaning of section 1.1 of the Pilotage Act, while the pilot is performing pilotage duties under that Act.
‘‘oil handling facility’’ « installation de manutention d’hydrocarbures »
‘‘oil handling facility’’ means a facility, including an oil terminal, that is used in the loading or unloading of petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products, to or from vessels.
‘‘passenger’’ « passager »
‘‘passenger’’ means a person carried on a vessel by the owner or operator, other than (a) a person carried on a Safety Convention vessel who is (i) the master, a member of the crew or a person employed or engaged in any capacity on board the vessel on the business of that vessel, or (ii) under one year of age; (b) a person carried on a vessel that is not a Safety Convention vessel who is (i) the master, a member of the crew or a person employed or engaged in any capacity on board the vessel on the business of that vessel, or (ii) a guest on board the vessel, if the vessel is used exclusively for pleasure and the guest is carried on it without remuneration or any object of profit; (c) a person carried on a vessel in pursuance of the obligation on the master to carry shipwrecked, distressed or other persons or by reason of any circum2001
Marine marchande stances that neither the master nor the owner could have prevented; or (d) a person of a prescribed class.
‘‘pleasure craft’’ « embarcation de plaisance »
‘‘pleasure craft’’ means a vessel that is used for pleasure and does not carry passengers, and includes a vessel of a prescribed class.
‘‘prescribed’’ Version anglaise seulement
‘‘prescribed’’ means prescribed by regulations made by the Governor in Council.
‘‘qualified person’’ « personne qualifiée »
‘‘qualified person’’ means (a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration Act; or (b) a corporation incorporated under the laws of Canada or a province.
‘‘Register’’ « Registre »
‘‘Register’’ means the Canadian Register of Vessels established under section 43.
‘‘Safety Convention vessel’’ « bâtiment assujetti à la Convention sur la sécurité »
‘‘Safety Convention vessel’’ means a vessel in respect of which the International Convention for the Safety of Life at Sea, listed in Schedule 1, applies.
‘‘vessel’’ « bâtiment »
‘‘vessel’’ means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water, without regard to method or lack of propulsion, and includes such a vessel that is under construction. It does not include a floating object of a prescribed class.
‘‘wages’’ « gages »
‘‘wages’’ includes emoluments.
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Descriptive cross-references
Regulations
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3. If, in any provision of this Act, a reference to another provision of this Act is followed by words in parentheses that are or purport to be descriptive of the subject-matter of the provision referred to, those words form no part of the provision in which they occur but are inserted for convenience of reference only. 4. The Governor in Council may (a) on the recommendation of the Minister of Transport and the Minister of Fisheries and Oceans, make regulations prescribing classes of vessels for the purpose of the definition ‘‘pleasure craft’’ in section 2; and (b) on the recommendation of the Minister of Transport, make regulations prescribing anything else that may be prescribed under section 2. PART 1 GENERAL
Binding on Her Majesty
Objectives of Act
Her Majesty 5. Except as otherwise provided, this Act is binding on Her Majesty in right of Canada or a province. Objectives 6. The objectives of this Act are to (a) protect the health and well-being of individuals, including the crews of vessels, who participate in marine transportation and commerce; (b) promote safety in marine transportation and recreational boating; (c) protect the marine environment from damage due to navigation and shipping activities; (d) develop a regulatory scheme that encourages viable, effective and economical marine transportation and commerce;
Marine marchande (e) promote an efficient marine transportation system; (f) develop a regulatory scheme that encourages the viable, effective and economical use of Canadian waters by recreational boaters; (g) ensure that Canada can meet its international obligations under bilateral and multilateral agreements with respect to navigation and shipping; (h) encourage the harmonization of marine practices; and (i) establish an effective inspection and enforcement program. Application
Exclusion
7. (1) Notwithstanding any other provision of this Act, this Act does not apply in respect of a vessel, facility or aircraft that belongs to the Canadian Forces or a foreign military force or in respect of any other vessel, facility or aircraft that is under the command, control or direction of the Canadian Forces.
Regulations
(2) The Governor in Council may, on the recommendation of the Minister of Transport, make regulations varying or excluding the application, in respect of government vessels, of any provision of this Act.
Conflicts with foreign rules
(3) Regulations made under this Act do not, unless they expressly provide otherwise, apply in respect of a Canadian vessel in the waters of a country other than Canada if the regulations are inconsistent with a law of that country that, by its terms, applies in respect of the vessel when in the waters of that country.
Application of this Part
8. This Part applies in respect of Canadian vessels everywhere and in respect of foreign vessels in Canadian waters, but regulations made under paragraph 35(1)(d) in respect of pollution apply, if they so state, in respect of foreign vessels in waters in the exclusive economic zone of Canada.
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Role of Minister of Transport
9. Except as otherwise provided in this Act, the Minister of Transport is responsible for the administration of this Act. Powers of Ministers
General
10. (1) The Minister of Transport or the Minister of Fisheries and Oceans may, with respect to that Minister’s responsibilities under this Act, (a) establish consultative bodies; (b) issue bulletins, guidelines and standards; and (c) enter into agreements or arrangements respecting the administration or enforcement of any provision of this Act or the regulations and authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under this Act that are specified in the agreement or arrangement.
Exemption power of Ministers
(2) The Minister of Transport or the Minister of Fisheries and Oceans may, with respect to that Minister’s responsibilities under this Act, exempt for a specified period any authorized representative, master, vessel, class of vessels, operator of an oil handling facility, oil handling facility or class of oil handling facility from the application of any provision of this Act or the regulations, subject to any conditions that that Minister considers appropriate, if that Minister is of the opinion that the exemption is in the interest of preventing damage to property or the environment or is in the interest of public health or safety.
Exemption
(3) Subject to any conditions that the Minister of Transport considers appropriate, the Minister may exempt for a specified period any vessel, or class of vessels, that is en route through Canadian waters but is not en route to or departing from a port in Canada, from the application of any provision of Part 3 (Personnel), 4 (Safety) or 9 (Pollution Prevention — Department of Transport) if the Minister is of the opinion that the provision is substantially similar to a provision of the laws
Marine marchande of another state to which the vessel or class of vessels is subject.
Publication
(4) Notice of every exemption granted under subsection (2) or (3) must be published in the Canada Gazette.
Authorization
(5) The Minister of Transport or the Minister of Fisheries and Oceans may authorize any person employed in the public service of Canada or any police officer, police constable, constable or other person employed for the preservation and maintenance of the public peace, or any class of any of those persons, that that Minister considers proper to exercise any of the powers and perform any of the duties and functions that may be or are required to be exercised or performed by that Minister under this Act. Inspections by Marine Safety Inspectors and Others
Appointment of marine safety inspectors
11. (1) Marine safety inspectors are appointed or deployed under the Public Service Employment Act.
Authorizations
(2) The Minister of Transport may authorize a marine safety inspector to exercise any power or perform any duty or function of the Minister under this Act, including quasi-judicial powers and the administration of examinations referred to in subsection 16(2), or to carry out inspections under section 211, including the following: (a) inspections of hulls; (b) inspections of machinery; (c) inspections of equipment; (d) inspections respecting the protection of the marine environment for the purpose of Part 9 (Pollution Prevention — Department of Transport); and (e) inspections of cargo.
Certificate
(3) The Minister of Transport must furnish every marine safety inspector with a certificate of designation authorizing the inspector to carry out inspections under section 211 or to exercise any power or perform any duty or function of the Minister under this Act, including any quasi-judicial powers.
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Duties and powers
(4) A marine safety inspector may exercise only those powers and perform only those duties and functions that are referred to in the inspector’s certificate of designation.
Immunity
(5) Marine safety inspectors are not personally liable for anything they do or omit to do in good faith under this Act.
Authorizing others to inspect
12. (1) The Minister of Transport may authorize any person, classification society or other organization to issue any Canadian maritime document under this Act or to carry out inspections under section 211 if the Minister determines that the person, classification society or other organization is qualified to issue the document or carry out the inspection.
Certificate of authorization
(2) The Minister of Transport must furnish the person, classification society or other organization with a certificate of authorization specifying the documents they are authorized to issue, the inspections they are authorized to carry out and any limitations on the powers they may exercise under subsection 211(4).
Inspection records
(3) A person, classification society or other organization authorized to carry out inspections must keep a record of each inspection in the form and manner specified by the Minister of Transport and, on request, provide the record to the Minister.
Delivery of report
(4) A person, classification society or other organization that does not, in respect of anything that they were authorized to inspect, issue a certificate because the requirements of the regulations have not been met must deliver their report in respect of that inspection to a marine safety inspector.
Immunity
(5) The person, classification society or other organization is not personally liable for anything they do or omit to do in good faith under this Act.
Audit
13. The Minister of Transport may authorize any person or class of persons to audit inspections carried out under section 211. The auditor may exercise the powers under that section of the person, classification society or
Marine marchande other organization whose inspections are being audited.
Authorized Representative Authorized representative
14. (1) Every Canadian vessel must have a person — the authorized representative — who is responsible under this Act for acting with respect to all matters relating to the vessel that are not otherwise assigned by this Act to any other person.
Authorized representative
(2) Subject to subsections (3) and (4), the authorized representative of a Canadian vessel is the owner of the vessel or, in the case of a vessel described in section 48 (a bare-boat chartered vessel), the bare-boat charterer.
Representative if more than one owner
(3) In the case of a Canadian vessel that is owned by more than one person, the owners must appoint one of themselves as the authorized representative.
Representative of foreign corporation
(4) In the case of a Canadian vessel that is owned by a corporation incorporated under the laws of a state other than Canada, the authorized representative must be (a) a subsidiary of the corporation incorporated under the laws of Canada or a province; (b) an employee or a director in Canada of a branch office of the corporation that is carrying on business in Canada; or (c) a ship management company incorporated under the laws of Canada or a province.
Acts or omissions of authorized representative binding
(5) The owner of a Canadian vessel is bound by the acts or omissions of their authorized representative with respect to the matters referred to in subsection (1). Adjudicators
Appointment
15. (1) The Minister of Transport may appoint persons to conduct independent reviews under subsection 16(6) (notice of refusal to issue or renew), 20(5) (suspension, cancellation or non-renewal of Canadian maritime documents), 231(3) (notices of default), 232(2) (notices of violation) or 239(3) (removal of notations of violations).
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(2) For the purposes of this Act, each adjudicator has and may exercise the powers of a person appointed as a commissioner under Part I of the Inquiries Act. Canadian Maritime Documents
Application
16. (1) An application for a Canadian maritime document must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister of Transport.
Further evidence
(2) In addition to the specified information or documents, the Minister of Transport may (a) require that an applicant provide evidence, including declarations, that the Minister considers necessary to establish that the requirements for the issuance of the document have been met; (b) if the Canadian maritime document is in respect of a person, (i) set an examination that the person must undergo, and (ii) administer the examination; and (c) if the document is in respect of a vessel, require that the vessel or its machinery or equipment undergo any inspections that the Minister considers necessary to establish that the requirements for the issuance of the document have been met.
Cheating
(3) No person shall cheat on an examination referred to in paragraph (2)(b).
Refusal to issue
(4) The Minister of Transport may refuse to issue a Canadian maritime document if (a) the applicant has not met the requirements for the issuance of the document; (b) the applicant has acted fraudulently or improperly or has misrepresented a material fact; (c) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it; (d) the applicant has not paid a fee set under paragraph 35(1)(g) in respect of the issuance of the document or has not paid a fine or penalty imposed on them under this Act; or
Marine marchande (e) in the case of a Canadian maritime document applied for under Part 3 (Personnel) by a master or crew member, (i) the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or (ii) the master or crew member has been found guilty of an offence related to their duties on a vessel or has committed a violation in respect of which a notice of violation was issued under paragraph 229(1)(b).
Notice after refusal to issue
(5) The Minister of Transport must, immediately after refusing to issue a Canadian maritime document, give the applicant a notice confirming the refusal and providing all relevant information concerning the grounds on which the Minister has refused to issue it.
Review of decision
(6) A master or crew member whose application for a Canadian maritime document under Part 3 (Personnel) has been refused on a ground set out in any of paragraphs (4)(a), (b), (c) and (e) may, within 30 days after the day on which notice is given to them of the refusal, request that an adjudicator review the refusal.
Period of validity
17. (1) Every Canadian maritime document is valid for the period specified by the Minister of Transport. The Minister may, on application made before a document expires and in the form and manner specified by the Minister, extend the period if the Minister is satisfied that it is not feasible to issue a new document before the document expires.
Possession
(2) Except as otherwise provided by this Act or the regulations, no person, other than the person to whom it was issued or their representative, shall possess a Canadian maritime document issued under Part 3 (Personnel).
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Production of document
18. Every holder of a Canadian maritime document shall produce it to the Minister of Transport on demand.
Lost documents
19. If a Canadian maritime document is mislaid, lost or destroyed, the Minister of Transport may issue a replacement document on application made by the holder of the document in the form and manner and including the information and accompanied by the documents specified by the Minister.
Suspension, cancellation and refusal to renew
20. (1) Subject to subsection (2), the Minister of Transport may suspend, cancel or refuse to renew a Canadian maritime document if the Minister is satisfied that (a) the requirements for the issuance of the document are no longer met; (b) a term or condition attached to the document has been contravened; (c) the document was obtained by any fraudulent or improper means or misrepresentation of any material fact; (d) the holder of the document has not paid a fine or penalty imposed on them under this Act; (e) the holder of the document has contravened a provision of this Act or the regulations that the Minister of Transport is responsible for administering; (f) in the case of a Canadian maritime document issued under Part 3 (Personnel) to a master or crew member, (i) the master or crew member is incompetent or has committed an act of misconduct, (ii) the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or (iii) the master or crew member has been found guilty of an offence related to their duties on a vessel; or (g) in the case of a refusal to renew, (i) the applicant has not paid a fee set under paragraph 35(1)(g) in respect of the issuance of the document, or
Marine marchande (ii) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it.
Notice before suspension or cancellation
(2) The Minister of Transport must, before suspending or cancelling a Canadian maritime document issued under Part 3 (Personnel), give the holder 30 days notice of the proposed suspension or cancellation and provide the holder with all relevant information concerning the grounds on which the Minister proposes to suspend or cancel it.
Exception
(3) The Minister of Transport may suspend or cancel a Canadian maritime document issued under Part 3 (Personnel) without complying with subsection (2) if, on ex parte application by the Minister, an adjudicator determines that complying with that subsection is not in the interest of public safety.
Notice after suspension or cancellation
(4) Except in the case of the suspension or cancellation of a Canadian maritime document under subsection (2), the Minister of Transport must, immediately after suspending, cancelling or refusing to renew a Canadian maritime document, give the holder a notice confirming the suspension, cancellation or refusal and providing all relevant information concerning the grounds on which the Minister has suspended, cancelled or refused to renew it.
Review
(5) The holder may, within 30 days after the day on which the notice is given, request that an adjudicator review the suspension, cancellation or refusal, unless it was on the ground set out in paragraph (1)(d) or subparagraph (1)(g)(i).
Review
(6) If the holder, within 30 days after the day on which the notice is given, requests that an adjudicator conduct a review of the proposed suspension or cancellation, the proposed suspension or cancellation is stayed until the review is concluded.
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C. 26
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(7) If a Canadian maritime document is suspended or cancelled, the person who held it shall return it on demand to the Minister of Transport. Other Documents
Issuance of documents to foreign vessels
21. The Minister of Transport may, at the request of the government of a state to which an international convention or protocol listed in Schedule 1 applies, issue in respect of a vessel registered in that state any document provided for by the convention or protocol, other than a Canadian maritime document, if the Minister is satisfied, in the same manner as in the case of a Canadian vessel, that the document may properly be issued. A document issued under this section must contain a statement that it has been issued at the request of that government.
Foreign documents
22. The Minister of Transport may refuse to accept a foreign document required for the operation of a foreign vessel if in the Minister’s opinion the conditions under which the document was issued do not comply with international agreements to which Canada is a signatory. General Prohibitions
Destruction of documents, fraud, obstruction and movement of detained vessel
23. No person shall (a) wilfully destroy a document that is required under this Act to be kept; (b) make or cause to be made a false entry in a log book required under this Act to be kept with intent to mislead or wilfully omit to make an entry; (c) wilfully obstruct any inspector or other person or classification society or other organization that is exercising powers or performing duties under this Act; (d) knowingly provide false or misleading information or make a false or misleading statement, either orally or in writing, to a person, classification society or other organization that is exercising powers or performing duties under this Act; or
Marine marchande (e) except as authorized under this Act, wilfully move a vessel that has been detained under this Act.
Tonnage Measurers Appointment of tonnage measurers
24. The Minister of Transport may appoint persons, to be known as tonnage measurers, to calculate vessels’ tonnage under this Act.
Fees and travel expenses
25. A tonnage measurer may withhold the tonnage certificate in respect of a vessel until the person requesting it pays the tonnage measurer’s fees and travel expenses. The Minister of Transport may set limits on the fees and travel expenses that may be charged.
Marine Technical Review Board Establishment
26. (1) For the purpose of ensuring the safety of the marine industry, the Marine Technical Review Board is hereby established to make decisions on applications for an exemption from, or the replacement of, any requirement under the regulations in respect of a Canadian vessel or in respect of the issuance of a Canadian maritime document to a person, other than one with respect to fees.
Members of the Board
(2) The Board consists of a Chair, a National Vice-Chair and a maximum of five Regional Vice-Chairs.
Chair
(3) The Chair is appointed by the Minister of Transport and must be an employee of the Department of Transport who has expertise in marine matters.
Vice-Chairs
(4) The Vice-Chairs are appointed by the Chair and must be employees of the Department of Transport who have expertise in marine matters.
Delegation
(5) The Chair may delegate the Chair’s powers and duties to the National Vice-Chair.
Absence or incapacity
(6) In the event of the absence or incapacity of the Chair or if the office of Chair is vacant, the National Vice-Chair may exercise all the powers and perform all the duties of the Chair.
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Striking panels
27. (1) When an application is made under subsection 28(1), the Chair must strike a panel of at least three persons.
Constitution
(2) Each panel consists of the Chair and the persons appointed by the Chair.
Expertise
(3) Any person to be appointed to a panel, other than a Vice-Chair, must have expertise in the matter in respect of which the panel is struck.
Fee and expenses
(4) Each panellist may be paid (a) an amount fixed by the Minister of Transport for each day or part of a day that the panellist is performing duties under section 28, unless they are employed in the public service of Canada; and (b) reasonable travel and living expenses incurred by the panellist in the course of their duties under section 28.
Casting vote
(5) Matters before a panel are decided by a majority of the members of the panel. The Chair has a second vote in the case of a tie.
Panel decisions
(6) For greater certainty, a decision of a panel is a decision of the Marine Technical Review Board.
Application
28. (1) Any person may, in respect of a requirement set out in a provision of the regulations made under this Act that applies in respect of a Canadian vessel or in respect of the issuance of a Canadian maritime document to a person, apply to the Marine Technical Review Board for a decision to exempt the applicant from the requirement or to replace it with another requirement.
Form and manner
(2) An application must be made in the form and manner, include the information and be accompanied by the documents specified by the Board.
Further evidence
(3) In addition to the specified information and documents, the Board may require an applicant to provide evidence, including declarations, that the Board considers necessary.
Grant of application
(4) If the panel struck to decide the application is satisfied that the exemption or replacement is in the public interest and would not jeopardize marine safety or the marine
Marine marchande environment and, in the case of an application to replace a requirement with respect to safety, the replacement would result in an equivalent or greater level of safety, the panel is to issue a decision granting the application, subject to any conditions and for the period that the panel considers appropriate.
Applicant to be notified Publication
(5) The Chair is to notify the applicant of the decision to grant or deny the application. (6) If the decision is to grant the application, the Chair must publish the decision in the manner that the Chair considers appropriate.
Duty to inform
(7) If a person has reason to believe that a decision to grant an application was based on false or misleading information or that the information provided with the application has changed, the person shall inform the Chair without delay.
Decisions based on false or misleading information
(8) If the Chair has reason to believe that a decision to grant an application was based on false or misleading information or that the information provided with the application has changed, the Chair may strike a panel in accordance with section 27 and the panel may confirm, cancel or vary the decision.
Contravention
(9) A contravention of a requirement that is substituted for another requirement as a result of a panel decision under subsection (4) is deemed to be a contravention of the original requirement.
Rules
(10) The Board must make rules respecting its procedure, with the approval of the Minister of Transport.
Annual report
(11) As soon as feasible after the end of each fiscal year, the Chair must submit to the Minister of Transport a report of the Board’s operations in that year.
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International Conventions, Protocols and Resolutions Schedule 1
29. (1) Schedule 1 lists the international conventions, protocols and resolutions that Canada has signed that relate to matters that are within the scope of this Act and that the Minister of Transport has determined should be brought into force, in whole or in part, in Canada by regulation.
Schedule 2
(2) Schedule 2 lists the international conventions, protocols and resolutions that Canada has signed that relate to matters that are within the scope of this Act and that the Minister of Fisheries and Oceans has determined should be brought into force, in whole or in part, in Canada by regulation.
Codes and guidelines
(3) A convention or protocol includes any code or guideline that is attached to it.
Additions to Schedule 1 or 2
30. (1) The Governor in Council may, by order, add international conventions, protocols and resolutions described in subsection 29(1) to Schedule 1 or described in subsection 29(2) to Schedule 2.
Order to be tabled and referred
(2) The Minister of Transport is to cause a copy of each order related to Schedule 1 and the Minister of Fisheries and Oceans is to cause a copy of each order related to Schedule 2, together with a description of the objectives of the convention, protocol or resolution, to be laid before each House of Parliament on any of the first 10 days on which that House is sitting after the order is made. The order stands referred to the appropriate standing committee of each House.
Deletions from Schedule 1 or 2
31. The Governor in Council may, by order, delete an international convention, protocol or resolution from Schedule 1 or 2 or amend Schedule 1 or 2 if the amendment would not, in the opinion of the Governor in Council, result in a material substantive change.
Marine marchande Incorporation by Reference
Externally produced material
32. (1) A regulation made under this Act may incorporate by reference material produced by a person or body other than the Minister who recommended to the Governor in Council that the regulation be made, including by (a) an organization established for the purpose of writing standards, including an organization accredited by the Standards Council of Canada; (b) an industrial or a trade organization; or (c) a government, a government agency or an international body.
Reproduced or translated material
(2) A regulation made under this Act may incorporate by reference material that the Minister who recommended to the Governor in Council that the regulation be made reproduces or translates from material produced by a person or body other than that Minister (a) with any adaptations of form and reference that will facilitate its incorporation into the regulation; or (b) in a form that sets out only the parts of the material that apply for the purposes of the regulation.
Jointly produced material
(3) A regulation made under this Act may incorporate by reference material that the Minister who recommended to the Governor in Council that the regulation be made produces jointly with another government or government agency for the purpose of harmonizing the regulation with other laws.
Internally produced standards
(4) A regulation made under this Act may incorporate by reference technical or explanatory material that the Minister who recommended to the Governor in Council that the regulation be made produces, such as (a) specifications, classifications, illustrations, graphs and other information of a technical nature; and (b) test methods, procedures, operational standards, safety standards and performance standards of a technical nature.
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Incorporation as amended from time to time
(5) Material may be incorporated by reference as amended from time to time.
Incorporated material is not a regulation
(6) Material that is incorporated by reference in a regulation made under this Act is not a regulation for the purposes of the Statutory Instruments Act.
For greater certainty
(7) Subsections (1) to (6) are for greater certainty and do not limit any authority to make regulations incorporating material by reference that exists apart from those subsections.
Defence
33. For greater certainty, no person or vessel may be convicted of an offence or subjected to a penalty for the contravention of a provision of a regulation made under this Act that incorporates material by reference unless it is proved that, at the time of the alleged contravention, (a) the material was reasonably accessible to the person or vessel; (b) reasonable steps had been taken to ensure that the material was accessible to persons or vessels likely to be affected by the regulation; or (c) the material had been published in the Canada Gazette. Orders and Directions
In writing
34. (1) If this Act requires or authorizes an order or a direction to be given or made by the Minister of Transport to a person who is not an official of the Department of Transport, the order or direction must be given or made in writing.
Statutory Instruments Act
(2) An order or direction referred to in subsection (1) is deemed not to be a statutory instrument for the purposes of the Statutory Instruments Act. Regulations
Regulations — Minister of Transport
35. (1) The Governor in Council may, on the recommendation of the Minister of Transport, make regulations (a) respecting the appointment of adjudicators, including their qualifications;
Marine marchande (b) respecting the issuance, amendment, suspension, reinstatement, cancellation or renewal of Canadian maritime documents; (c) respecting reviews under subsection 16(6) (notice of refusal to issue or renew) or 20(5) (suspension or cancellation of Canadian maritime documents); (d) implementing, in whole or in part, an international convention, protocol or resolution that is listed in Schedule 1, as amended from time to time, including regulations (i) implementing it in respect of persons, vessels or oil handling facilities to which it does not apply, (ii) establishing stricter standards than it sets out, or (iii) establishing additional or complementary standards to those it sets out if the Governor in Council is satisfied that the additional or complementary standards meet the objectives of the convention, protocol or resolution; (e) respecting record keeping, information management and reporting for the purposes of this Part or Part 2 (Registration, Listing or Recording), 3 (Personnel), 4 (Safety), 6 (Incidents, Accidents and Casualties), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport); (f) respecting the form and manner of giving notice under this Part or Part 2 (Registration, Listing or Recording), 3 (Personnel), 4 (Safety), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport); and (g) respecting the setting and payment of fees for services provided in the administration of this Part or Part 2 (Registration, Listing or Recording), 3 (Personnel), 4 (Safety), 6 (Incidents, Accidents and Casualties), 9 (Pollution Prevention — Department of Transport) or 11 (Enforcement — Department of Transport) or the regulations made under any of those Parts.
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Aircraft
(2) For greater certainty, regulations made under paragraph (1)(d) in respect of preventing collisions may apply to aircraft on or over Canadian waters.
Regulations — Minister of Fisheries and Oceans
(3) The Governor in Council may, on the recommendation of the Minister of Fisheries and Oceans, make regulations (a) implementing, in whole or in part, an international convention, protocol or resolution that is listed in Schedule 2, as amended from time to time, including regulations (i) implementing it in respect of persons, vessels or oil handling facilities to which it does not apply, (ii) establishing stricter standards than it sets out, or (iii) establishing additional or complementary standards to those it sets out if the Governor in Council is satisfied that the additional or complementary standards meet the objectives of the convention, protocol or resolution; (b) respecting record keeping, information management and reporting for the purposes of Part 5 (Navigation Services), 7 (Wreck), 8 (Pollution Prevention and Response — Department of Fisheries and Oceans) or 10 (Pleasure Craft); (c) respecting the form and manner of giving notice under Part 5 (Navigation Services), 7 (Wreck), 8 (Pollution Prevention and Response — Department of Fisheries and Oceans) or 10 (Pleasure Craft); and (d) respecting the setting and payment of fees for services provided in the administration of Part 5 (Navigation Services), 7 (Wreck), other than section 163, 8 (Pollu2001
Marine marchande tion Prevention and Response — Department of Fisheries and Oceans) or 10 (Pleasure Craft) or the regulations made under any of those Parts.
Fees Debt due to Her Majesty
36. (1) All fees imposed under paragraph 35(1)(g) or (3)(d) and interest payable on those fees constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.
Payment of fees
(2) If a fee is imposed under paragraph 35(1)(g) or (3)(d) (a) in respect of a pleasure craft that is not a Canadian vessel, its owner is liable for payment of the fee and any interest payable on it; (b) in respect of a Canadian vessel, the authorized representative and the master are jointly and severally or solidarily liable for payment of the fee and any interest payable on it; and (c) in respect of a foreign vessel, its owner and the authorized representative are jointly and severally or solidarily liable for payment of the fee and any interest payable on it.
Seizure and detention for charges
(3) If the amount of a fee, or of interest due on it, owed by an authorized representative of a Canadian vessel or by the owner of a foreign vessel, has not been paid, the Minister who recommended making the regulation under paragraph 35(1)(g) or (3)(d) may, in addition to any other remedy available for the collection of the amount and whether or not a judgment for the collection of the amount has been obtained, apply to the Federal Court for an order authorizing that Minister to seize, detain and sell any vessel belonging to the authorized representative or the owner, as the case may be. The Court may make the order on the terms that the Court considers appropriate.
Release on security
(4) A Minister who obtains an order under subsection (3) must release a seized vessel from detention if security in a form satisfactory to that Minister for the amount in respect of
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which the vessel was seized is deposited with the Minister. Offences and Punishment Contravention of section 23
37. Every person who contravenes section 23 (destruction of documents, fraud, obstruction, false or misleading information or statement, movement of detained vessel) commits an offence and is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Contravention of regulations made under paragraph 35(1)(d) or (3)(a)
38. (1) Every person who, or vessel or oil handling facility that, contravenes a provision of the regulations made under paragraph 35(1)(d) or (3)(a) commits an offence and is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Exception
(2) If a court sentencing a person, vessel or oil handling facility under subsection (1) for contravening a provision of the regulations made under paragraph 35(1)(d) or (3)(a) is of the opinion that the provision that the person, vessel or facility contravened is equivalent to a provision of the regulations made under another provision of this Act and if the punishment provided under this Act for contravening that provision of the regulations is less than the punishment provided under subsection (1), the person, vessel or oil handling facility is liable to that lesser punishment.
Contravention of Act
39. (1) Every person commits an offence who contravenes (a) subsection 17(2) (improper possession of a Canadian maritime document); or (b) subsection 28(7) (inform Chair without delay).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
2001 Contravention of Act or regulations
Marine marchande 40. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) subsection 16(3) (cheating on an exam); (b) section 18 (failure to produce Canadian maritime document); (c) subsection 20(7) (failure to return suspended or cancelled Canadian maritime document); and (d) a provision of the regulations made under paragraph 35(1)(e) or (3)(b).
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000. PART 2 REGISTRATION, LISTING AND RECORDING Interpretation
Definition of ‘‘Minister’’
41. In this Part, ‘‘Minister’’ means the Minister of Transport. Canadian Register of Vessels and Registrars
Appointment of Chief Registrar
42. An officer, to be known as the Chief Registrar, is to be appointed or deployed under the Public Service Employment Act.
Duties and powers of Chief Registrar
43. (1) The Chief Registrar is responsible for establishing and maintaining a register to be known as the Canadian Register of Vessels. The Chief Registrar is to divide the Register into parts, including a small vessel register, for the classes of vessels that the Chief Registrar specifies.
Records
(2) The Register is to contain records of the information and documents specified by the Chief Registrar in respect of a Canadian vessel, including its description, its official number, the name and address of its owner and, except in the case of a vessel registered in the small vessel register, details of all mortgages registered in respect of it.
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Registrars
44. (1) The Chief Registrar may appoint the registrars that the Chief Registrar considers necessary.
Duties of registrars
(2) A registrar is to perform the duties and fulfil the responsibilities that the Chief Registrar assigns to the registrar.
Immunity
45. The Chief Registrar and the registrars are not personally liable for anything they do or omit to do in good faith under this Act.
Registration, Listing and Recording Mandatory registration of vessels
46. (1) A vessel must be registered under this Part if it (a) is not a pleasure craft; (b) is wholly owned by qualified persons; and (c) is not registered, listed or otherwise recorded in a foreign state.
Obligation of owner
(2) Every owner of a vessel described in subsection (1) shall ensure that it is registered under this Part.
Mandatory registration — government vessels
(3) Every government vessel must be registered under this Part.
Optional registration
47. Unless they are registered, listed or otherwise recorded in a foreign state, the following vessels may be registered under this Part: (a) a pleasure craft that is wholly owned by qualified persons; (b) a vessel that is owned by a corporation incorporated under the laws of a foreign state if one of the following is acting with respect to all matters relating to the vessel, namely, (i) a subsidiary of the corporation incorporated under the laws of Canada or a province, (ii) an employee or a director in Canada of a branch office of the corporation that is carrying on business in Canada, or
Marine marchande (iii) a ship management company incorporated under the laws of Canada or a province; and (c) a vessel that is in the exclusive possession of a qualified person under a financing agreement under which the person will acquire ownership on completion of the agreement.
Bare-boat chartered vessels
48. A vessel that is registered in a foreign state and that is bare-boat chartered exclusively to a qualified person may be listed under this Part as a bare-boat chartered vessel for the duration of the charter if, for the duration of the charter, the registration is suspended in respect of the right to fly the flag of that state.
Vessels under construction
49. A vessel that is about to be built or that is under construction in Canada may be temporarily recorded in the Register as a vessel being built in Canada.
Vessels built outside Canada
50. Notwithstanding sections 46 to 48, the Minister may direct the Chief Registrar to refuse to register or list a vessel built outside Canada. Application
Application
51. (1) An application for the registration, listing or recording of a vessel must be made in the form and manner, include the information and be accompanied by the documents specified by the Chief Registrar.
Further evidence
(2) In addition to the specified information and documents, the Chief Registrar may require an applicant to provide evidence, including declarations, that the Chief Registrar considers necessary to establish that a vessel is required or entitled to be registered or is entitled to be listed or recorded.
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Before registration or listing
52. (1) registered named in the Chief listed.
Approval of names
(2) The Chief Registrar may, on application, approve the name of a vessel before it is registered or listed and approve a change in the name of a Canadian vessel.
Disallowance of names
(3) The Chief Registrar must disallow a name if
Every vessel, other than one to be in the small vessel register, must be the form and manner specified by Registrar before it is registered or
(a) it is the same as the name of a Canadian vessel; (b) it is likely, in the opinion of the Chief Registrar, to be confused with the name of a Canadian vessel or with a distress signal; (c) it is likely, in the opinion of the Chief Registrar, to be offensive to members of the public; or (d) its use is prohibited under an Act of Parliament. Requiring renaming
(4) The Minister may order that a Canadian vessel be renamed if the Minister considers that its name would prejudice the international reputation of Canada.
Ownership of Vessels Shares
53. (1) For the purposes of registration, the property in a vessel is divided into 64 shares.
Registered owners
(2) Subject to subsections (3) and (4), only owners or joint owners of a vessel or of one or more shares in a vessel may be registered in the Register as owners of the vessel or shares, as the case may be.
Registered owners — financing agreements
(3) In the case of a vessel described in paragraph 47(c) (a vessel subject to a financing agreement), the persons referred to in that paragraph are to be registered in the Register as the owners of the vessel.
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Bare-boat charterers
(4) In the case of a vessel described in section 48 (a bare-boat chartered vessel), no person may be registered in the Register as an owner of the vessel.
Registration of joint owners
(5) No more than five persons may be registered in the Register as joint owners of a vessel or a share in a vessel.
Disposition of registered joint interests
(6) A registered jointly owned interest in a vessel or a share in a vessel may be disposed of only by the joint owners acting together.
Registration of fractions prohibited
(7) No person may be registered as the owner of a fractional part of a share in a vessel.
No effect on beneficial owners
(8) This section does not affect the beneficial interests of a person represented by or claiming through an owner of a vessel or a share in a vessel.
Trusts not recognized
(9) No notice of a trust may be entered in the Register. Certificates
Certificates of registry
54. (1) If the Chief Registrar is satisfied that all of the requirements of registration or listing have been met with respect to a vessel, the Chief Registrar must register or list the vessel, as the case may be, in the Register and issue a certificate of registry.
Information
(2) Every certificate of registry in respect of a vessel must contain the information specified by the Chief Registrar, including (a) its description; (b) its official number; and (c) the name and address of (i) in the case of a vessel described in paragraph 47(b) (a vessel owned by a foreign corporation), the authorized representative, (ii) in the case of a vessel described in section 48 (a bare-boat chartered vessel), the bare-boat charterer, and (iii) in any other case, its owner and the authorized representative.
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Period of validity
(3) Every certificate of registry is valid for the period specified by the Chief Registrar.
Provisional certificates
55. (1) The Chief Registrar may, on application, issue a provisional certificate in respect of a vessel that is required or entitled to be registered under this Part if (a) the vessel is in a foreign port and a person intends to register it under this Part; or (b) the vessel is in a port in Canada and the Chief Registrar is satisfied that permission to operate the vessel should be granted before a certificate of registry can be issued.
Issuance
(2) The Chief Registrar may, on application, issue a provisional certificate in respect of a vessel that is not required or entitled to be registered under this Part if the Chief Registrar is satisfied that the vessel needs to undergo sea trials.
Validity
(3) A provisional certificate is valid for the purpose and the period specified by the Chief Registrar.
Application
(4) An application for a provisional certificate must be made in the form and manner, include the information and be accompanied by the documents specified by the Chief Registrar.
Lost certificates
56. If a certificate of registry or provisional certificate is mislaid, lost or destroyed, the Chief Registrar must issue a replacement certificate of registry or provisional certificate, as the case may be, on application made by the authorized representative in the form and manner and including the information and accompanied by the documents specified by the Chief Registrar.
Marine marchande Marking
Marking
57. (1) The authorized representative of a Canadian vessel shall, in the form and manner specified by the Chief Registrar, mark the vessel with its official number and any other information that the Chief Registrar specifies.
Validity of certificate of registry
(2) A vessel’s certificate of registry is not valid until the vessel has been marked in accordance with subsection (1).
Maintenance of markings
(3) The authorized representative shall ensure that the vessel is kept marked.
Defacing, etc., markings
(4) No person shall wilfully deface, alter, conceal or remove the markings of a Canadian vessel. Notifying Chief Registrar
Notification of changes
58. (1) The authorized representative of a Canadian vessel shall notify the Chief Registrar within 30 days after any of the following occurs: (a) the vessel is lost, wrecked or removed from service; (b) there has been a change in the owner’s, the authorized representative’s or a registered mortgagee’s name or address; (c) the information provided with the application under section 51 has changed; or (d) in the case of a vessel described in section 48 (a bare-boat chartered vessel), (i) the right to fly the flag of the foreign state is reinstated, or (ii) the charterer ceases to have complete control and possession of the vessel.
Notification of alterations
(2) If a Canadian vessel is altered to the extent that it no longer corresponds with its description or particulars set out on the certificate of registry, the authorized representative shall, within 30 days after the alteration, notify the Chief Registrar and provide the Chief Registrar with the relevant information and documents.
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(3) If for any reason a Canadian vessel does not have an authorized representative, its owner shall (a) notify the Chief Registrar of that fact as soon as possible in the circumstances; and (b) notify the Chief Registrar within 30 days after any event referred to in subsection (1) or (2) occurs.
Notification of completion of construction
(4) Within 30 days after completion of the construction of a vessel that is recorded as being built in Canada, the person in whose name the vessel is recorded shall notify the Chief Registrar of that fact and of the name and address of its owner. Maintenance of Register
Amendments
59. The Chief Registrar may amend the Register or a certificate of registry to give effect to changes of which the Chief Registrar has been notified under section 58 or to correct any clerical errors or obvious mistakes.
Suspension, Cancellation and Reinstatement of Registration Suspension and cancellation
60. (1) Subject to the regulations, the Chief Registrar may suspend or cancel the registration or listing of a Canadian vessel if (a) it is not marked in accordance with subsection 57(1); (b) its certificate of registry has expired; (c) it does not have an authorized representative; or (d) section 58 has not been complied with.
Cancellation
(2) Subject to the regulations, the Chief Registrar must cancel the registration or listing of a Canadian vessel if (a) it has been lost, wrecked or removed from service; (b) it is no longer required or entitled to be registered or entitled to be listed under this Part; or
Marine marchande (c) in the case of a registered vessel, a tonnage certificate provided by a tonnage measurer indicates that the vessel should be re-registered.
Notice before cancellation
(3) If a Canadian vessel is not required or entitled to be registered under this Part after its ownership changes, the Chief Registrar must, before cancelling its registration under paragraph (2)(b), give the owners and registered mortgagees (a) notice of the change in ownership; and (b) an opportunity that, in the opinion of the Chief Registrar, is sufficient to transfer the vessel or shares in the vessel to a qualified person or to make an application under section 74.
Cancellation of registration
(4) Except in the case of a vessel described in paragraph 47(c) (a vessel subject to a financing agreement), the Chief Registrar must cancel the registration of a vessel if a person who acquires the vessel or a share in it does not, within the prescribed period, provide evidence that satisfies the Chief Registrar that the vessel is required or entitled to be registered under this Part.
Registration of mortgages not affected
61. The cancellation of the registration of a vessel does not affect the registration of mortgages in respect of the vessel.
Reinstatement
62. The Chief Registrar may reinstate the registration or listing of a vessel if, in the Chief Registrar’s opinion, the registration or listing of the vessel should not have been cancelled.
Custody of Certificates of Registry and Provisional Certificates Carrying on board
63. (1) Subject to subsection (3), no person shall operate a vessel in respect of which a certificate of registry or provisional certificate has been issued unless the certificate is on board.
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Delivery of certificate
(2) A person who is in possession of a vessel’s certificate of registry or provisional certificate shall deliver it to the person who is entitled to operate the vessel.
Delivery of certificate
(3) A person who is in possession of a certificate of registry or a provisional certificate issued under this Part shall deliver it to the Chief Registrar on request.
Detention of certificate
(4) A certificate of registry or provisional certificate is not subject to detention because of any title to, lien on, charge on or interest in the vessel that is claimed by an owner, a mortgagee, a charterer or an operator of the vessel, or by any other person.
Rights and Obligations Right to fly Canadian flag
64. (1) A Canadian vessel has the right to fly the Canadian flag.
Obligation to fly flag
(2) The master of a Canadian vessel, other than one registered in the small vessel register, shall ensure that it flies the Canadian flag (a) when signalled to do so by a government vessel or a vessel under the command of the Canadian Forces; or (b) when entering or leaving, or while moored at or anchored in, a port.
Exception
(3) The Chief Registrar may, on application, suspend the registration of a Canadian vessel in respect of the right to fly the Canadian flag while the vessel is shown on the registry of a foreign state as a bare-boat chartered vessel. Mortgages
Mortgage of vessel or share
65. (1) The owner of a vessel registered under this Part other than in the small vessel register, of a share in such a vessel or of a vessel recorded as being built in Canada may give the vessel or share, as the case may be, as security for a mortgage to be registered under this Part.
Marine marchande
Filing of mortgage
(2) A mortgage is to be filed with the Chief Registrar in the form and manner specified by the Chief Registrar.
Date and time of registration
(3) A mortgage is to be registered in the order in which it is filed, indicating the date and time of registration.
Entry of discharge of mortgage
66. On receipt of satisfactory evidence that a mortgage has been discharged, the Chief Registrar is to enter the discharge in the Register.
Priority of mortgages
67. (1) If more than one mortgage is registered in respect of the same vessel or share in a vessel, a mortgage registered before another mortgage has priority over that other mortgage.
Consent to change in priority
(2) The priority of mortgages may be changed if all of the mortgagees file their written consent with the Chief Registrar.
Mortgagee not treated as owner
68. A mortgage of a vessel or a share in a vessel does not have the effect of the mortgagee becoming, or the mortgagor ceasing to be, the owner of the vessel, except to the extent necessary to make the vessel or share available as security under the mortgage.
Mortgagee has power of sale
69. (1) A mortgagee of a vessel or a share in a vessel has the absolute power, subject to any limitation set out in the registered mortgage, to sell the vessel or the share.
Restriction
(2) If there is more than one registered mortgage of the same vessel or share, a subsequent mortgagee may not, except under an order of the Federal Court or of a court of competent jurisdiction whose rules provide for in rem procedure in respect of vessels, sell the vessel or share without the agreement of every prior mortgagee.
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Mortgage not affected by bankruptcy
70. The mortgage of a vessel or a share in a vessel is not affected by the bankruptcy of the mortgagor after the date of the registration of the mortgage, and the mortgage is to be preferred to any right, claim or interest in the vessel or share of the other creditors of the bankrupt or any trustee or assignee on their behalf.
Transfer of mortgages
71. (1) A registered mortgage of a vessel or a share in a vessel may be transferred to any person, in which case the instrument effecting the transfer must be filed in the form and manner specified by the Chief Registrar.
Entry of particulars
(2) The Chief Registrar is to enter the particulars of the transfer in the Register.
Transmission of interest of mortgagee
72. (1) If the interest of a mortgagee in a vessel or a share in a vessel is transmitted on death or bankruptcy, or by any lawful means other than by a transfer under section 71, the person to whom the interest is transmitted must file with the Chief Registrar the evidence of the transmission that the Chief Registrar specifies.
Entry of particulars
(2) The Chief Registrar is to enter the particulars of the transmission in the Register. Transfers of Vessels or Shares in Vessels
Transfer
73. If the ownership of a Canadian vessel or a share in one changes and the vessel is still required or entitled to be registered under this Part, (a) the owner must provide the Chief Registrar with the evidence, including declarations, that the Chief Registrar considers necessary to establish that the vessel is required or entitled to be so registered; and (b) the Chief Registrar must amend the Register and the vessel’s certificate of registry to reflect the change.
Order for sale on acquisition by an unqualified person
74. If an unqualified person acquires a Canadian vessel, other than a vessel described in paragraph 47(b) (a vessel owned by a foreign corporation), a vessel described in paragraph 47(c) (a vessel subject to a financ2001
Marine marchande ing agreement) or a vessel described in section 48 (a bare-boat chartered vessel), or a share in one, any interested person may apply to the Federal Court, or any court of competent jurisdiction whose rules provide for in rem procedure in respect of vessels, for an order that the vessel or share, as the case may be, be sold to a qualified person.
Power of court to prohibit transfer
75. On the application of an interested person, the Federal Court, or any court of competent jurisdiction whose rules provide for in rem procedure in respect of vessels, may make an order prohibiting any dealing with a Canadian vessel or a share in one for a specified period.
Entries Copies of entries
76. A person may examine or obtain copies of any entries in the Register with respect to a vessel. Regulations
Regulations
77. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations (a) respecting the registration, listing and recording of vessels; (b) respecting the issuance and renewal of certificates of registry; (c) respecting the suspension and cancellation of the registration or listing of a Canadian vessel; (d) respecting the naming and marking of vessels; (e) respecting the port of registration; (f) respecting the form and manner of notifying the Chief Registrar under section 58; (g) respecting the evidence that owners of vessels previously registered in a foreign state must provide to prove that the vessels are no longer registered in the foreign state; (h) respecting the calculation of the tonnage of vessels and the issuance of certificates of tonnage; and
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(i) prescribing anything that may be prescribed under this Part.
Offences and Punishment Contravention of Act or regulations
78. (1) Every person commits an offence who contravenes (a) subsection 57(4) (wilfully defacing, altering, concealing or removing markings); or (b) a provision of the regulations made under paragraph 77(h).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Contravention of Act or regulations
79. (1) Every person commits an offence who contravenes (a) subsection 46(2) (register vessel); (b) an order made under subsection 52(4) (renaming of vessel); (c) subsection 57(1) (mark vessel); (d) subsection 57(3) (maintenance of markings); (e) subsection 58(1) (notify changes — authorized representative);
of
(f) subsection 58(2) (notify of alteration — authorized representative); (g) subsection 58(3) (notify if no authorized representative — owner); (h) subsection 58(4) (notify of completion of construction); (i) subsection 63(1) (operation of vessel without a certificate on board); (j) subsection 63(2) (deliver certificate to person entitled to operate vessel); (k) subsection 63(3) (deliver certificate to Chief Registrar); (l) subsection 64(2) (fly Canadian flag); or (m) a provision of the regulations made under any of paragraphs 77(a) to (g).
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Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000.
Continuing offence
(3) If an offence under paragraph (1)(a) or (c) is committed or continued on more than one day, the person who committed it is liable to be convicted for a separate offence for each day on which it is committed or continued. PART 3 PERSONNEL Interpretation
Definition of ‘‘Minister’’
80. In this Part, ‘‘Minister’’ means the Minister of Transport. Application
Canadian vessels
81. This Part applies in respect of Canadian vessels, other than pleasure craft, everywhere. Subsections 86(2) to (4) also apply in respect of foreign vessels in Canadian waters.
Masters Presentation of documents
82. (1) The master of a Canadian vessel shall ensure that every person who is employed in a position on board presents to the master all Canadian maritime documents that they are required under this Part to have for that position.
Sufficient and competent staff
(2) No master of a Canadian vessel shall operate it unless it is staffed with a crew that is sufficient and competent for the safe operation of the vessel on its intended voyage, and is kept so staffed during the voyage.
Obstruction prohibited
(3) No crew member shall wilfully obstruct a master’s operation of a Canadian vessel unless the master is, without just cause, putting at risk the safety of the vessel or of any person on board.
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Detention of persons
83. (1) The master of a Canadian vessel may detain any person on board if the master has reasonable grounds to believe that it is necessary to do so to maintain good order and discipline on the vessel or for the safety of the vessel or of persons or property on board. The detention may last only as long as necessary to maintain order and discipline or to ensure the safety of persons or property.
Custody
(2) The master of a Canadian vessel on a voyage may take into custody without warrant any person on board who the master has reasonable grounds to believe has committed an offence under this Act or any other Act of Parliament, and must as soon as feasible deliver that person to a peace officer.
Use of force on a voyage
(3) The master of a Canadian vessel on a voyage is justified in using as much force as the master believes on reasonable grounds is necessary for the purpose of maintaining good order and discipline on the vessel, but the master must not use force that is intended or is likely to cause death or grievous bodily harm unless the master believes on reasonable grounds that it is necessary for self-preservation or the preservation of anyone on the vessel from death or grievous bodily harm.
Stowaways and Other Persons Liable for discipline
84. Every person whom the master of a Canadian vessel is compelled to take on board and convey, and every person who stows away on a Canadian vessel or hides in cargo that is subsequently loaded on a Canadian vessel, is, as long as the person remains on board, subject to the same rules and orders for preserving discipline, and to the same punishments for contravening the rules or orders constituting or tending to a breach of discipline, as are crew members. Contract of Employment
Masters’ contracts
85. (1) In every contract of employment between the authorized representative and the master of a Canadian vessel there is implied, notwithstanding any agreement to the contrary, an obligation on the authorized representative that the authorized representative and every agent charged with loading the
Marine marchande vessel, preparing it for a voyage or sending it on a voyage use all reasonable means to ensure its seaworthiness for the voyage when the voyage commences and to keep the vessel in a seaworthy condition during the voyage.
Crew members’ contracts
(2) In every contract of employment between the authorized representative and a crew member of a Canadian vessel there is implied, notwithstanding any agreement to the contrary, an obligation on the authorized representative that the authorized representative, the master and every agent charged with loading the vessel, preparing it for a voyage or sending it on a voyage use all reasonable means to ensure its seaworthiness for the voyage when the voyage commences and to keep the vessel in a seaworthy condition during the voyage.
Exception
(3) Nothing in this section subjects the authorized representative of a Canadian vessel to any liability by reason of the vessel’s being sent to sea in an unseaworthy condition if sending the vessel to sea in that condition was reasonable and justifiable in order to mitigate unsafe circumstances.
Liens and Claims Liens
86. (1) The master, and each crew member, of a Canadian vessel has a maritime lien against the vessel for claims that arise in respect of their employment on the vessel, including in respect of wages and costs of repatriation that are payable to the master or crew member under any law or custom.
Foreign liens
(2) The master and each crew member of a vessel on whom a maritime lien against the vessel is conferred by a jurisdiction other than Canada in respect of employment on the vessel has a maritime lien against the vessel.
Liens for necessaries
(2.1) The master of a Canadian vessel has a maritime lien against the vessel for claims that arise in respect of disbursements made or liabilities incurred by the master for necessaries on account of the vessel.
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Claims
(3) The master, and each crew member, of a vessel may maintain an action against the vessel in the Federal Court, or any court of competent jurisdiction whose rules provide for in rem procedure in respect of vessels, for claims in respect of which a lien is conferred by subsection (1), (2) or (2.1) .
Priority
(4) Liens conferred by subsection (1) or (2) rank in priority to all other claims, secured or unsecured, against the vessel, other than (a) claims for costs relating to the arrest and the judicial sale of the vessel; or (b) any lien arising from a claim for salvage in respect of the vessel.
Priority — liens for necessaries
(5) Liens conferred by subsection (2.1) rank in priority to all other claims, secured or unsecured, against the vessel, other than (a) liens conferred by subsection (1) or (2); (b) claims for costs relating to the arrest and the judicial sale of the vessel; or (c) any lien arising from a claim for salvage in respect of the vessel.
Certificates Positions on board Canadian vessels
87. Every person who is employed on board a Canadian vessel in a position in respect of which a certificate is required under this Part shall hold the certificate and comply with its terms and conditions.
Eligibility
88. (1) Only a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration Act may hold a certificate of competency that is issued under this Part.
Foreign certificates of competency
(2) The Minister may, on application by a person described in subsection (1), issue a certificate of competency in respect of certain requirements under this Act to the holder of a certificate of competency that was issued under the laws of a foreign state if the Minister is satisfied that the requirements under those laws for the foreign certificate meet or exceed the requirements under this Act. Before
Marine marchande issuing the certificate, the Minister may require that the holder take an examination set by the Minister.
Acceptance of foreign certificates
89. (1) If the government of a foreign state has entered into a reciprocal arrangement with the Government of Canada to accept certificates of competency issued under this Part in lieu of certificates of competency of that state and if the Minister is satisfied that the requirements under the laws of the foreign state for a certificate of competency meet or exceed the requirements under this Act, the Minister may direct, subject to any conditions that the Minister specifies, that the foreign certificate may be accepted in lieu of a certificate of competency issued under this Part.
Suspension or cancellation
(2) A foreign certificate that is accepted under subsection (1) may, in so far only as concerns its validity in Canada, be suspended or cancelled by the Minister as though it were a Canadian maritime document, and the holder of any certificate so suspended or cancelled must deliver it to the Minister, who must then return it to the authority that issued it. Medical or Optometric Information
Minister to be provided with information
90. (1) If a physician or an optometrist believes on reasonable grounds that the holder of a certificate issued under this Part has a medical or optometric condition that is likely to constitute a hazard to maritime safety, the physician or optometrist shall inform the Minister without delay of that opinion and the reasons for it.
Patient to advise
(2) The holder of a certificate issued under this Part in respect of which standards of medical or optometric fitness are required shall, before being examined by a physician or an optometrist, advise the physician or optometrist that they hold the certificate.
Use by Minister
(3) The Minister may use any information provided under subsection (1) for the purpose of determining whether the holder of a certificate meets the requirements in respect of that certificate.
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No proceedings shall lie
(4) No legal, disciplinary or other proceedings lie against a physician or optometrist for anything they do in good faith in compliance with this section.
Deemed consent
(5) The holder of a certificate is deemed, for the purposes of this section, to have consented to the Minister being informed under subsection (1) in the circumstances referred to in that subsection. Articles of Agreement, Discharge and Record of Sea Service
Articles of agreement
91. (1) The master of a vessel who is required by the regulations made under this Part to enter into articles of agreement shall (a) ensure that every crew member has entered into and received articles of agreement, in the form and manner specified by the Minister, with respect to their position on the vessel; and (b) display, in a location that is accessible to the crew, the provisions of the articles of agreement that are common to each crew member.
Information
(2) The articles of agreement between the master and a crew member must state the surname and other names of the crew member, the respective rights and obligations of each of the parties and any other information required by the regulations made under this Part.
Discharge
92. When a crew member of a Canadian vessel is discharged, the authorized representative shall provide the member with a certificate of discharge in the form and manner specified by the Minister.
Record of sea service
93. (1) The authorized representative and every crew member of a Canadian vessel shall each maintain, in the form and manner and for the period specified by the Minister, a record of sea service of the member.
Copies to the Minister
(2) On request, the authorized representative shall provide the Minister with a copy of, or an extract from, a crew member’s record of sea service.
Marine marchande Return of Crew Members
Return and payment of expenses
94. (1) Subject to the regulations and except in the case of desertion or mutual agreement, if a crew member is left behind when a Canadian vessel sails or is shipwrecked, the authorized representative shall ensure that arrangements are made to return the crew member to the place where they first came on board or to another place to which they have agreed, and pay the expenses of returning the crew member as well as all expenses, including medical expenses, that the crew member reasonably incurs before being returned.
Exception if insurance
(2) The authorized representative is not responsible to pay any expenses covered by insurance for which the authorized representative paid.
If authorized representative does not comply
(3) If the authorized representative does not comply with subsection (1), the Minister may act in place of the authorized representative and any expenses incurred by the Minister constitute a debt due to Her Majesty in right of Canada by the authorized representative and may be recovered as such in a court of competent jurisdiction.
Desertion or serious violation of contract
95. If a crew member deserts a Canadian vessel or has committed a serious violation of their contract of employment, the authorized representative or, if the authorized representative entered into an agreement with another person to provide the crew member, that person may return the crew member to the place where they first came on board or to another place on which they and the authorized representative or the other person, as the case may be, have agreed. The expenses of returning the crew member may be deducted from any remuneration due to them. Births and Deaths
Informing the Minister
96. The authorized representative of a Canadian vessel must, in the form and manner specified by the Minister , inform the Minister of every birth or death on board.
Death of crew member
97. (1) Subject to any other law, if a crew member of a Canadian vessel dies, the master shall
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(a) without delay inform the Minister or a diplomatic or consular officer of Canada of the circumstances surrounding the death; and (b) at the option of the person, if any, whom the crew member identified as a contact in case of emergency, arrange to bury or cremate the body or, if the person and the master agree on a place to return the body to, return it to that place. Cremation or burial
(2) If the contact person referred to in paragraph (1)(b) cannot be consulted within a reasonable period, the master shall, subject to any other law, bury or cremate the body, taking into account the deceased’s wishes if known.
Exceptional circumstances
(3) If, in the opinion of the master, it is not feasible, because of the type of voyage or the lack of facilities, to follow the wishes of the contact person referred to in paragraph (1)(b) or of the deceased crew member, the master shall, subject to any other law, bury or cremate the body.
Property of a deceased crew member
(4) The authorized representative of a Canadian vessel shall give any property that belonged to a deceased crew member and was on board to the contact person referred to in paragraph (1)(b) or the deceased crew member’s estate or succession. Obligation of Persons Who Provide Crew Members
If an agreement to provide crew members
98. If the authorized representative of a Canadian vessel entered into an agreement with another person to provide crew members, that other person shall, in lieu of the authorized representative or the master with respect to those crew members, comply with the obligation of the authorized representative or master set out in (a) paragraph 91(1)(a) (enter into articles); (b) section 92 (provide certificate of discharge); (c) subsection 93(1) (maintain record of sea service); (d) subsection 93(2) (provide copy of record of sea service); and
Marine marchande (e) subsection 94(1) (pay expenses), except in respect of any expenses covered by insurance for which that other person or the authorized representative paid. Resolution of Disputes
Adjudication by Minister
99. The Minister may, on the request of the authorized representative and a crew member of a Canadian vessel, adjudicate any dispute between them that arises under this Part. The Minister’s decision is binding on the parties. Regulations
Regulations
100. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations (a) specifying the positions that shall be occupied on board Canadian vessels, or classes of Canadian vessels, their minimum number and the types and classes of Canadian maritime documents that persons in those positions shall hold; (b) specifying the requirements in respect of any position on board Canadian vessels or classes of Canadian vessels; (c) specifying the types and classes of certificates that may be issued in respect of positions on board Canadian vessels or classes of Canadian vessels; (d) respecting the qualifications required of applicants for any type or class of certificate specified under paragraph (c), including their medical fitness, minimum age, degree of knowledge, skill, training and experience; (e) respecting the manner of determining whether a person meets the requirements specified under paragraph (b) in respect of a position or the qualifications required under paragraph (d) for any type or class of certificate of competency or other Canadian maritime document; (f) specifying the terms and conditions of certificates of competency or other Canadian maritime documents issued under this Part;
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(g) specifying the circumstances in which ensuring arrangements for a crew member’s return and paying their expenses are not required for the purpose of subsection 94(1); (h) respecting persons who enter into agreements to provide crew members, including requiring that those persons be licensed; (i) specifying the Canadian vessels or classes of Canadian vessels in respect of which the master shall enter into articles of agreement with crew members; (j) specifying the information that must be contained in articles of agreement; (k) specifying what constitutes a serious violation of a contract of employment; (l) respecting any occupational health or safety matter on board a vessel that is not regulated by the Canada Labour Code; and (m) respecting the payment and allotment of crew members’ wages.
Offences and Punishment Contravention of Act or regulations
101. (1) Every person commits an offence who contravenes (a) subsection 82(2) (operating a vessel without sufficient and competent crew); (b) subsection 82(3) (wilfully obstructing the operation of a vessel); or (c) a provision of the regulations made under any of paragraphs 100(a) to (i) and (k) to (m).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Marine marchande
Continuing offence
(3) If an offence under subsection (1) is committed or continued on more than one day, the person who committed it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Contravention of Act
102. (1) Every person commits an offence who contravenes (a) section 87 (hold certificate or document and comply with its terms and conditions); (b) subsection 90(1) (inform Minister of medical opinion); (c) subsection 90(2) (inform that holder of a certificate); (d) subsection 94(1) (pay expenses); (e) subsection 97(1), (2), (3) or (4) (take measures following a death); or (f) paragraph 98(e) (failure to pay expenses).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Contravention of Act or regulations
103. (1) Every person commits an offence who contravenes (a) subsection 82(1) (ensure employees present Canadian maritime documents); (b) paragraph 91(1)(a) (enter into articles); (c) paragraph 91(1)(b) (display articles); (d) section 92 (provide certificate of discharge); (e) subsection 93(1) (maintain record of sea service); (f) subsection 93(2) (provide copy of record of sea service); (g) paragraph 98(a) (enter into articles); (h) paragraph 98(b) (provide certificate of discharge); (i) paragraph 98(c) (maintain record of sea service);
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(j) paragraph 98(d) (provide copy of record of sea service); or (k) a provision of the regulations made under paragraph 100(j).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000. PART 4 SAFETY
Definition of ‘‘Minister’’
Interpretation 104. In this Part, ‘‘Minister’’ means the Minister of Transport.
Canadian vessels and foreign vessels
Application 105. This Part applies in respect of Canadian vessels, other than pleasure craft, everywhere and in respect of foreign vessels in Canadian waters.
General duties
Authorized Representatives 106. (1) The authorized representative of a Canadian vessel shall (a) ensure that the vessel and its machinery and equipment meet the requirements of the regulations made under this Part; (b) develop procedures for the safe operation of the vessel and for dealing with emergencies; and (c) ensure that the crew and passengers receive safety training.
Duties re Canadian maritime documents
(2) The authorized representative of a Canadian vessel shall ensure that (a) the vessel and its machinery and equipment are inspected for the purpose of
Marine marchande obtaining all of the Canadian maritime documents that are required under this Part; and (b) every term or condition attached to a Canadian maritime document issued in respect of the vessel or its machinery or equipment is met. Masters
Obtaining Canadian maritime documents
107. The master of a Canadian vessel shall, before the vessel embarks on a voyage from a port in Canada, ensure that all of the Canadian maritime documents required under this Part have been obtained.
Exemptions
108. (1) If the master of a Canadian vessel has had the vessel or its machinery or equipment inspected by an authority of a foreign state and that authority has issued a certificate that certifies that the vessel, machinery or equipment meets certain requirements of that state and the Minister is satisfied that those requirements meet or exceed the requirements for a Canadian maritime document required under this Part, the Minister may grant an exemption, for the period specified by the Minister, from the obligation to comply with subsection 106(2) and section 107 with respect to that certificate.
Issuance of certificates by foreign states
(2) The Minister may request the government of a state that is a party to a convention, protocol or resolution listed in Schedule 1 respecting the safety of vessels or of persons who are on board or are loading or unloading vessels to issue in respect of a Canadian vessel any certificate provided for by the convention, protocol or resolution. A certificate issued as a result of such a request and containing a statement that it has been so issued has effect for the purposes of this Act as if it had been issued under this Part and may be suspended or cancelled as though it were a Canadian maritime document.
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Safety of persons
109. (1) The master of a vessel shall take all reasonable steps to ensure the safety of the vessel and of persons who are on board or are loading or unloading it while using equipment on it.
Protection from hazards
(2) If the master of a vessel is informed of a safety hazard, the master shall, unless the master determines that the hazard does not exist, take reasonable measures to protect the vessel and persons on board from the hazard, including eliminating it if feasible. If it is not feasible to eliminate it, the master of a Canadian vessel shall notify the authorized representative.
Carrying excess number of persons
110. (1) The master of a vessel shall ensure that the number of persons carried on board is not more than the number of persons authorized to be on board under any certificate issued under this Part or under an international convention or protocol listed in Schedule 1.
Submerging load lines
(2) The master of a vessel shall ensure that the applicable load lines on the vessel are not submerged.
Exception to subsection (1)
(3) Subsection (1) does not apply in respect of a person carried on board a vessel in pursuance of the obligation on the master to carry shipwrecked or distressed persons.
Compliance with directions
111. Every master shall comply with any direction given to the master by a marine safety inspector to cease any operation or procedure that, in the inspector’s opinion, poses an undue risk because of unsafe conditions.
Information to be sent respecting dangers to navigation
112. If the master of a Canadian vessel encounters dangerous ice, a dangerous derelict or other direct danger to navigation, a tropical storm, winds of a force of 10 or more on the Beaufort scale for which no storm warning has been received or subfreezing air temperatures associated with gale force winds and causing severe ice accretion on the superstructure of the vessel, the master shall give notice to all vessels in the vicinity and the prescribed authorities on shore of the danger.
Marine marchande
Crew Carrying out duties and reporting
113. Every crew member on board a vessel shall (a) carry out their duties and functions in a manner that does not jeopardize the safety of the vessel or of any person on board; (b) report to the master any safety hazards of which they become aware; (c) report to the master any change in their circumstances that could affect their ability to carry out their duties and functions safely; and (d) comply with lawful directions given by the master.
Compliance with directions
114. Every crew member on board a vessel shall comply with any direction given to them by a marine safety inspector to cease any operation or procedure that, in the inspector’s opinion, poses an undue risk because of unsafe conditions. Passengers
Compliance with directions
115. (1) Every passenger on board a vessel shall comply with any direction that is given to them by the master or a crew member to carry out the provisions of this Act or the regulations.
Compliance with direction to leave a vessel
(2) Every passenger on board a vessel shall comply with a direction to leave the vessel that is given to them by the master before the vessel embarks on a voyage. Authorized Representatives, Masters, Crew Members and Other Persons
When boarding a vessel prohibited
116. Subject to sections 135 (stopping and boarding a vessel), 175 (pollution prevention officers’ powers), 196 and 198 (pleasure craft inspections), 200 (stopping and boarding a vessel) and 211 (inspections) and to any other Act of Parliament, no person shall go or attempt to go on board a vessel or to leave or attempt to leave one (a) without the permission or against the orders of the master or the person in charge of embarkation or disembarkation; or
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(b) if there is no safe means of embarkation or disembarkation or every such means has been blocked.
Tampering and vandalism
117. No person shall tamper with or vandalize a vessel or its machinery, equipment or notices or plans relating to emergency procedures, safety or navigation.
Jeopardizing safety
118. No person shall take any action that might jeopardize the safety of a vessel or of persons on board. Construction of Vessels
In accordance with plans
119. Subject to the regulations, no person shall construct, manufacture or alter a vessel of a prescribed class otherwise than in accordance with plans approved by the Minister as having met the requirements of the regulations respecting the design and construction of vessels of that class.
Regulations Regulations
120. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the safety of vessels or classes of vessels and of persons on board or loading or unloading a vessel, including regulations (a) respecting the design, construction, manufacture and maintenance of vessels or classes of vessels; (b) specifying the machinery, equipment and supplies that are required or prohibited on board vessels or classes of vessels; (c) respecting the design, construction, manufacture, maintenance, storage, testing, approval, arrangement and use of a vessel’s or a class of vessels’ machinery, equipment and supplies; (d) respecting the requirements that vessels, or classes of vessels, and their machinery and equipment must meet;
Marine marchande (e) requiring the obtaining of certificates certifying that any of the requirements referred to in paragraph (d) are met; (f) specifying the terms and conditions of certificates issued under this Part; (g) respecting inspections and the testing of vessels, or classes of vessels, and their machinery, equipment and supplies; (h) respecting load lines and draught marks on vessels or classes of vessels; (i) respecting procedures and practices that must be followed; (j) respecting compulsory routes and recommended routes; (k) regulating or prohibiting the operation of vessels for the purpose of protecting persons, vessels, artificial islands, installations, structures, works, shore areas or environmentally sensitive areas; (l) respecting the prevention of collisions in Canadian waters or waters in the exclusive economic zone of Canada; (m) respecting arrangements for ensuring communication between persons in different parts of a vessel and between persons on board and other persons; (n) respecting information and documents that must be supplied to the master and kept on board vessels or classes of vessels; (o) respecting the marking of vessels and the posting of notices, plans and Canadian maritime documents to show information relating to safety and to emergency procedures; (p) respecting the number of passengers that may be on board a vessel and their safety; (q) respecting the illumination of docks or wharfs at which vessels are berthed; (r) respecting shore-based gangways; (s) respecting cargo; and (t) prescribing anything that may be prescribed under this Part.
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Application of regulations
(2) Regulations made under this section apply in respect of vessels that are capable of engaging in the drilling for, or the production, conservation or processing of, oil or gas only if the regulations so state and were made on the joint recommendation of the Minister and the Minister of Natural Resources.
Aircraft
(3) Despite section 105, regulations referred to in paragraph (1)(k) or (l) may be made in respect of aircraft on or over Canadian waters.
Pleasure craft
(4) Despite section 105, regulations referred to in paragraph (1)(j), (k) or (l) may be made in respect of pleasure craft that are in Canadian waters.
Contraventions of regulations
(5) Despite section 105, paragraph 121(1)(s) applies in respect of contraventions of regulations made under subsection (3) or (4). Offences and Punishment
Contravention of Act or regulations
121. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) paragraph 106(1)(a) (ensure vessel meets requirements); (b) paragraph 106(1)(b) (develop emergency procedures); (c) paragraph 106(1)(c) (ensure training); (d) paragraph 106(2)(a) (ensure vessel inspected); (e) paragraph 106(2)(b) (ensure terms and conditions met); (f) section 107 (obtain certificates); (g) subsection 109(1) (ensure safety);
Marine marchande (h) subsection 109(2) (protect from hazards and notify authorized representative); (i) subsection 110(1) (too many persons); (j) section 111 (master to comply with direction); (k) section 112 (inform of danger); (l) paragraph 113(a) (carry out duties and functions safely); (m) paragraph 113(b) (report safety hazards); (n) paragraph 113(c) (report change in circumstances); (o) paragraph 113(d) (comply with lawful direction given by master); (p) section 117 (tampering or vandalism); (q) section 118 (jeopardizing safety); (r) section 119 (constructing, manufacturing or altering a vessel not in accordance with approved plans); and (s) a provision of the regulations made under this Part.
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Contravention of subsection 110(2)
122. Every person who contravenes subsection 110(2) (submerged load lines) commits an offence and is liable on summary conviction to a fine of not more than $500,000 in respect of each centimetre or part of a centimetre that the applicable load line is submerged or to imprisonment for a term of not more than 18 months, or to both.
Contravention of Act
123. (1) Every person commits an offence who contravenes
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(a) section 114 (comply with direction); (b) subsection 115(1) (passenger to comply with direction); (c) subsection 115(2) (passenger to comply with direction to leave vessel); (d) paragraph 116(a) (boarding or attempting to board without permission); or (e) paragraph 116(b) (boarding or attempting to board after safety barriers are in place). Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
When compliance agreement in effect
124. If an offence under any of sections 121 to 123 is committed while an agreement or arrangement is in effect between the Minister and the authorized representative of a Canadian vessel that provides that inspections of the vessel to ensure compliance with a provision referred to in subsection 121(1), section 122 or subsection 123(1) will be carried out by the authorized representative or a person or an organization acting on their behalf, the amount of any fine imposed under that section may be doubled. PART 5 NAVIGATION SERVICES Interpretation
Definitions
125. The definitions in this section apply in this Part.
‘‘aid to navigation’’ « aide à la navigation »
‘‘aid to navigation’’ means a buoy, beacon, lighthouse, landmark, radio aid to marine navigation or any other structure or device installed, built or maintained in or on water or on land for the purpose of assisting with marine navigation.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Fisheries and Oceans.
‘‘VTS Zone’’ « zone STM »
‘‘VTS Zone’’ means a Vessel Traffic Services Zone established under paragraph 136(1)(a) .
Marine marchande Vessel Traffic Services
Entering, leaving or proceeding within a VTS Zone
126. (1) Subject to subsection (4), no vessel of a prescribed class shall (a) enter, leave or proceed within a VTS Zone without having previously obtained a clearance under this section; or (b) proceed within a VTS Zone unless able to maintain direct communication with a marine communications and traffic services officer in accordance with the regulations.
Marine communications and traffic services officers
(2) The Minister may designate as marine communications and traffic services officers persons in the public service of Canada who meet the requirements specified by the Minister.
Powers of officers
(3) Subject to any regulations made under section 136, to any other Act of Parliament governing ports or harbours and to the regulations or by-laws made under such an Act, for the purpose of promoting safe and efficient navigation or environmental protection, a marine communications and traffic services officer may, with respect to any vessel of a prescribed class that is about to enter or is within a VTS Zone, (a) grant a clearance to the vessel to enter, leave or proceed within the VTS Zone; (b) direct the master, pilot or person in charge of the deck watch of the vessel to provide, in the manner and at any time that may be specified in the direction, any pertinent information in respect of the vessel that may be specified in the direction; (c) direct the vessel to use any radio frequencies in communications with coast stations or any other vessel that may be specified in the direction; and (d) direct the vessel, at the time, between the times or before or after any event that may be specified in the direction, (i) to leave the VTS Zone,
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If vessel unable to communicate
(4) If a vessel (a) is unable to obtain a clearance required by subsection (1) because of an inability to establish direct communication with a marine communications and traffic services officer, or (b) after obtaining a clearance, is unable to maintain direct communication with a marine communications and traffic services officer, the vessel may, subject to subsection (6), nevertheless proceed on its route.
Communication and obtaining clearance
(5) The master shall (a) in the circumstances described in subsection (4), take all reasonable measures to communicate with a marine communications and traffic services officer as soon as possible; and (b) in the circumstances described in paragraph (4)(a), obtain a clearance as soon as possible after direct communication is established.
Equipment failure
(6) In the circumstances described in subsection (4), if the master is unable to establish or maintain direct communication because of an equipment failure on the vessel, the vessel shall (a) if it is in a port or anchorage where the equipment can be repaired, remain there until it is able to establish communication in accordance with the regulations; and (b) if it is not in a port or anchorage where the equipment can be repaired, proceed to the nearest reasonably safe port or anchorage on its route when it is safe to do so and
Marine marchande remain there until it is able to establish communication in accordance with the regulations.
Variations from requirements or conditions
127. (1) The Minister may, on request, vary in respect of a vessel a requirement or condition made under paragraph 136(1)(b) or (c) if the Minister is satisfied that the varied requirement or condition would result in an equivalent or greater level of safety.
Contravention
(2) A contravention of a requirement that is varied under subsection (1) is deemed to be a contravention of the original requirement. Aids to Navigation
Aids to navigation vest in Her Majesty
128. All aids to navigation acquired, installed, built or maintained at the expense of a province before it became a part of Canada, or at the expense of the Government of Canada, and all buildings and other works relating to those aids, are vested in Her Majesty in right of Canada and are under the control and management of the Minister.
Obligation to report damage
129. (1) If a vessel, or anything towed by a vessel, runs down, moves, damages or destroys an aid to navigation in Canadian waters, the person in charge of the vessel shall, without delay, make a report to a marine communications and traffic services officer or, if that is not feasible, to an officer of the Canadian Coast Guard.
Obligation to report — navigation hazard
(2) A person in charge of a vessel in Canadian waters who discovers an uncharted hazard to navigation, or discovers that an aid to navigation is missing, out of position or malfunctioning, shall make a report without delay to a marine communications and traffic services officer or, if that is not feasible, to an officer of the Canadian Coast Guard.
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Canada Ship Search and Rescue
Designation of rescue coordinators
130. (1) The Minister may designate persons as rescue coordinators to organize search and rescue operations.
Power of rescue coordinators
(2) On being informed that a person, a vessel or an aircraft is in distress or is missing in Canadian waters or on the high seas off any of the coasts of Canada under circumstances that indicate that they may be in distress, a rescue coordinator may (a) direct all vessels within an area that the rescue coordinator specifies to report their positions; (b) direct any vessel to take part in a search for that person, vessel or aircraft or to otherwise render assistance; (c) give any other directions that the rescue coordinator considers necessary to carry out search and rescue operations for that person, vessel or aircraft; and (d) use any lands if it is necessary to do so for the purpose of saving the life of a shipwrecked person.
Duty to comply
(3) Every vessel or person on board a vessel in Canadian waters and every vessel or person on board a vessel in any waters that has a master who is a qualified person shall comply with a direction given to it or them under subsection (2).
Answering distress signal
131. (1) Subject to this section, the master of a vessel in Canadian waters and every qualified person who is the master of a vessel in any waters, on receiving a signal from any source that a person, a vessel or an aircraft is in distress, shall proceed with all speed to render assistance and shall, if possible, inform the persons in distress or the sender of the signal.
Distress signal — no assistance
(2) If the master is unable or, in the special circumstances of the case, considers it unreasonable or unnecessary to proceed to the assistance of a person, a vessel or an aircraft in distress, the master is not required to
Marine marchande proceed to their assistance and is to enter the reason in the official log book of the vessel.
Ships requisitioned
(3) The master of any vessel in distress may requisition one or more of any vessels that answer the distress call to render assistance. The master of a requisitioned vessel in Canadian waters and every qualified person who is the master of a requisitioned vessel in any waters shall continue to proceed with all speed to render assistance to the vessel in distress.
Release from obligation
(4) The master of a vessel shall be released from the obligation imposed by subsection (1) when the master learns that another vessel is complying with a requisition referred to in subsection (3).
Further release
(5) The master of a vessel shall be released from an obligation imposed by subsection (1) or (3) if the master is informed by the persons in distress or by the master of another vessel that has reached those persons that assistance is no longer necessary.
Assistance
132. The master of a vessel in Canadian waters and every qualified person who is the master of a vessel in any waters shall render assistance to every person who is found at sea and in danger of being lost.
Aircraft treated as if vessel
133. Sections 130 to 132 apply in respect of aircraft on or over Canadian waters as they apply in respect of vessels in Canadian waters, with any modifications that the circumstances require. Sable Island
Presence on Island
134. No person shall be present on Sable Island unless the person (a) has been so authorized in writing by the Minister and meets any terms and conditions specified in the authorization; (b) is there to perform duties on behalf of the Government of Canada; or (c) landed on the Island because of adverse weather conditions or the wreck or distress of a vessel or an aircraft that the person was on.
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Canada Ship Enforcement
Designation
135. (1) The Minister may designate any person or class of persons for the purposes of enforcing this Part.
Stopping and boarding a vessel
(2) A person, or a member of a class of persons, designated under subsection (1) who has reasonable grounds to believe that an offence has been committed or is about to be committed under this Part by a vessel or any person on board a vessel may stop and board the vessel and take any reasonable action to ensure public safety or protect the public interest. Regulations
Regulations — Minister
136. (1) The Governor in Council may, on the recommendation of the Minister, make regulations (a) establishing VTS Zones within Canadian waters or in a shipping safety control zone prescribed under the Arctic Waters Pollution Prevention Act; (b) respecting the information to be provided and the procedures and practices to be followed by vessels that are about to enter, leave or proceed within a VTS Zone; (c) respecting the conditions under which a clearance under section 126 is to be granted; (d) defining the expression ‘‘about to enter’’ for the purpose of this Part; (e) respecting aids to navigation in Canadian waters; (f) respecting the administration and control of Sable Island; (g) respecting the safety of persons on Canadian waters for the purposes of sporting, recreational or public events or activities; (h) specifying classes of persons, or appointing persons, to ensure compliance with regulations made under paragraph (f) or (g) and specifying their powers and duties; (i) respecting maritime search and rescue; and
Marine marchande (j) prescribing anything that may be prescribed under this Part.
Regulations — Minister and Minister of Transport
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Transport, make regulations regulating or prohibiting the navigation, anchoring, mooring or berthing of vessels for the purposes of promoting the safe and efficient navigation of vessels and protecting the public interest and the environment. Offences and Punishment
Contravention of Act
137. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) subsection 131(1) (assist persons in distress); (b) subsection 131(3) (comply with requisition to assist person in distress); or (c) section 132 (assist a person found at sea).
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Defence
(3) No person on board a vessel may be convicted of an offence under paragraph (1)(a), (b) or (c) if they had reasonable grounds to believe that compliance with subsection 131(1) or (3) or section 132, as the case may be, would have imperilled life, the vessel or another vessel.
Contravention of Act or regulations
138. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) paragraph 126(1)(a) (entering, leaving or proceeding within a VTS Zone without a clearance); (b) paragraph 126(1)(b) (proceeding within a VTS Zone when unable to maintain direct communication);
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(c) a direction given under paragraph 126(3)(b), (c) or (d) (to provide information, to use radio frequencies or to leave, refrain from entering, proceed to or remain in a VTS Zone); (d) paragraph 126(5)(a) (take all reasonable measures to communicate); (e) paragraph 126(5)(b) (obtain clearance); (f) subsection 126(6) (remain at port or proceed to safe port); (g) subsection 129(1) (report disturbance of aid to navigation); (h) subsection 129(2) (report navigation hazard); (i) subsection 130(3) (comply with direction of rescue coordinator); or (j) a provision of the regulations made under this Part.
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Defence available in certain cases
(3) No vessel or person on board a vessel may be convicted of contravening subsection 126(1) (entering, leaving or proceeding within a VTS Zone) or a provision of the regulations made under paragraph 136(1)(b) if they had reasonable grounds to believe that compliance with that provision would have imperilled life, the vessel, another vessel or any property.
Vessel may be detained
(4) If the Minister or a person authorized by the Minister for the purpose of this subsection believes on reasonable grounds that an offence referred to in subsection (1) has been committed by or in respect of a vessel, the Minister or that person may make a detention order in respect of the vessel, and section 222 (detention of vessels) applies to the detention order, with any modifications that the circumstances require.
2001 Contravention of section 134
Marine marchande 139. Every person who contravenes section 134 (unauthorized presence on Sable Island) commits an offence and is liable on summary conviction to a fine of not more than $10,000.
PART 6 INCIDENTS, ACCIDENTS AND CASUALTIES Interpretation Definitions
140. The definitions in this section apply in this Part.
‘‘Crown vessel’’ « bâtiment appartenant à Sa Majesté »
‘‘Crown vessel’’ means a vessel that is owned by or is in the exclusive possession of Her Majesty in right of Canada.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Transport. Application
Vessels
141. This Part applies in respect of vessels registered, listed, recorded or licensed under this Act, wherever they are, and in respect of all other vessels in Canadian waters.
Salvage International Convention on Salvage, 1989 Salvage Convention
142. (1) Subject to the reservations that Canada made and that are set out in Part 2 of Schedule 3, the International Convention on Salvage, 1989, signed at London on April 28, 1989 and set out in Part 1 of Schedule 3, is approved and declared to have the force of law in Canada.
Inconsistent laws
(2) In the event of an inconsistency between the Convention and this Act or the regulations, the Convention prevails to the extent of the inconsistency.
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Canada Ship Salvage by Crown Vessels
When salvage services may be claimed
143. (1) In the case of salvage services rendered by or with the aid of a Crown vessel, Her Majesty in right of Canada and the master and crew members may claim salvage for salvage services only if the vessel is a tug or is specially equipped with a salvage plant.
Rights and limitations
(2) In respect of salvage services that may be claimed under subsection (1), (a) Her Majesty has the same rights and remedies in respect of salvage services as any other salvor would have had if the vessel had belonged to that other salvor; and (b) no claim for salvage services by the master or a crew member of a Crown vessel may be finally adjudicated unless the consent of the Governor in Council to the prosecution of the claim is proved.
Time for giving consent
(3) For the purpose of paragraph (2)(b), the consent of the Governor in Council may be given at any time before final adjudication.
Evidence of consent
(4) Any document that purports to give the consent of the Governor in Council for the purpose of paragraph (2)(b) is evidence of that consent.
Claim dismissed if no consent
(5) If a claim by the master or a crew member is prosecuted and the consent of the Governor in Council is not proved, the claim must be dismissed with costs.
Governor in Council may accept offers of settlement
144. (1) The Governor in Council may, on the recommendation of the Attorney General of Canada, accept, on behalf of Her Majesty in right of Canada and the master or a crew member, offers of settlement made with respect to claims for salvage services rendered by Crown vessels.
Distribution
(2) The proceeds of a settlement made under subsection (1) must be distributed in the manner that the Governor in Council specifies.
Marine marchande Limitation of Time for Salvage Proceedings
Proceedings within two years
145. (1) No action in respect of salvage services may be commenced more than two years after the date that the salvage services were rendered.
Extension of period by court
(2) The court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend the period described in subsection (1) to the extent and on the conditions that it thinks fit. Aircraft
Aircraft treated as if vessel
146. The provisions of this Part with respect to salvage apply in respect of aircraft on or over Canadian waters as they apply in respect of vessels, with any modifications that the circumstances require. Rights Not Affected
Salvage
147. Compliance with section 130 (direction of rescue coordinator), 131 (distress signals) or 132 (assisting a person found at sea) does not affect the right of a master or of any other person to salvage.
Obligations in Case of Collisions Duty of masters in collision
148. If vessels collide, the master or person in charge of each vessel shall, if and in so far as they can to do so without endangering their vessel, crew or passengers, (a) render to the other vessel, its master, crew and passengers the assistance that may be necessary to save them from any danger caused by the collision, and to stay by the other vessel until the master or person has determined that it has no need of further assistance; and (b) give the name of their vessel, if any, the name and address of its authorized representative, if any , and any other prescribed information to the master or person in charge of the other vessel.
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Canada Ship Inquiry into Causes of Death
Inquiry into cause of death on board
149. (1) If a person dies on board a Canadian vessel, on the vessel’s arrival at a port in Canada, the Minister is to endeavour to ascertain the cause of death and, for that purpose, may hold an inquiry .
Powers of Minister
(2) For the purpose of the inquiry, the Minister has the powers of a commissioner under Part I of the Inquiries Act and may, if it appears to the Minister to be necessary for the purpose of the inquiry, (a) go on board any vessel and inspect it or any part of it, or any of its machinery, equipment or cargo, while not detaining the vessel for longer than necessary from proceeding on a voyage; and (b) enter and inspect any premises at any reasonable time.
Warrant required to enter living quarters
(3) Living quarters may not be entered under subsection (2) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (4).
Authority to issue warrant
(4) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the Minister to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters (a) is necessary for the purpose of an inquiry; and (b) has been refused or there are reasonable grounds for believing that it will be refused.
Use of force
(5) In executing a warrant, the Minister may not use force unless the Minister is accompanied by a peace officer and the use of force has been specifically authorized in the warrant.
Marine marchande Regulations
Regulations — Minister
150. (1) The Governor in Council may, on the recommendation of the Minister, make regulations (a) respecting the reporting of accidents or dangerous occurrences happening to or on board vessels, whether or not attended with loss of life; (b) removing any reservation from Part 2 of Schedule 3 that Canada withdraws; (c) respecting the use of photographs, film, video recordings or electronic images of the human remains of victims of accidents involving a wrecked vessel or an aircraft wrecked in waters; and (d) prescribing anything that may be prescribed under this Part.
Regulations — Minister and Minister of Canadian Heritage
(2) The Governor in Council may, on the recommendation of the Minister and the Minister of Canadian Heritage, make regulations respecting the salvage of wreck or classes of wreck specified by regulations made under paragraph 163(2)(a). Offences and Punishment
Contravention of paragraph 148(a) or the regulations
151. (1) Every person commits an offence who contravenes (a) paragraph 148(a) (render assistance after a collision); or (b) a provision of the regulations made under paragraph 150(1)(a).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Contravention of Act or regulations
152. (1) Every person commits an offence who contravenes (a) paragraph 148(b) (failure to provide information after a collision); or (b) a provision of the regulations made under paragraph 150(1)(c) or subsection 150(2).
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(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000.
PART 7 WRECK Interpretation Definitions
153. The definitions in this section apply in this Part.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Fisheries and Oceans.
‘‘wreck’’ « épave »
‘‘wreck’’ includes (a) jetsam, flotsam, lagan and derelict and any other thing that was part of or was on a vessel wrecked, stranded or in distress; and (b) aircraft wrecked in waters and anything that was part of or was on an aircraft wrecked, stranded or in distress in waters.
Designation of Receivers of Wreck Designation
154. (1) The Minister may designate persons or classes of persons as receivers of wreck.
Authorization
(2) A receiver of wreck may authorize any person or class of persons to exercise any of their powers and perform any of their duties.
Immunity
(3) Receivers of wreck, and persons authorized or within a class of persons authorized under subsection (2), are not personally liable for anything they do or omit to do in good faith under this Part.
Marine marchande Found Wreck
Duty of persons taking possession of wreck
155. (1) Any person who finds and takes possession of wreck in Canada, or who brings wreck into Canada, the owner of which is not known, shall, as soon as feasible, (a) report it to a receiver of wreck and provide the information and documents requested; and (b) take any measures with respect to the wreck that the receiver of wreck directs, including (i) delivering it to the receiver of wreck within the period specified by the receiver, or (ii) keeping it in their possession in accordance with the instructions of the receiver.
Notice
(2) If wreck has been reported under paragraph (1)(a), a receiver of wreck may take the action that the receiver considers reasonable to determine the owner of the wreck, including giving notice of the wreck in the manner that the receiver considers appropriate.
Discretion
(3) A receiver of wreck is not required to take any measures, or to direct that any measures be taken, with respect to wreck.
Salvage award
156. (1) A person who is referred to in subsection 155(1) and who has complied with that subsection is entitled to a salvage award determined by the receiver.
Nature of award
(2) The salvage award may be the wreck, part of the wreck or all or part of the proceeds of its disposition.
Prohibition
157. No person shall possess, conceal, destroy, sell or otherwise dispose of wreck that the person knows has not been reported to a receiver of wreck under paragraph 155(1)(a) or use any means to disguise or conceal the fact that anything is such wreck.
Delivery of wreck or proceeds of disposition
158. A receiver of wreck must release wreck or pay the proceeds of its disposition under subsection 160(1) to a person who claims ownership of the wreck and (a) submits, in the form and manner specified by the Minister, a claim to the receiver
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within 90 days after the wreck was reported under paragraph 155(1)(a); (b) establishes their claim to the satisfaction of the receiver; and (c) pays or delivers the salvage award determined by the receiver, and pays the receiver’s fees and expenses.
Interpleader in case of wreck
159. (1) When two or more persons claim wreck or proceeds of wreck, or when a person disputes the amount or value of the salvage award determined by the receiver, any court having jurisdiction in civil matters to the value or amount in question may hear and determine the matter.
Maximum award
(2) A salvage award that a court makes under subsection (1) may not exceed the value of the wreck. Disposition of Wreck
When wreck may be disposed of
160. (1) A receiver of wreck may dispose of or destroy wreck, or authorize its disposition or destruction, (a) after 90 days following the date that the wreck was reported under paragraph 155(1)(a); or (b) at any time if, in the receiver’s opinion, the value of the wreck is less than $5,000, the storage costs would likely exceed the value of the wreck or the wreck is perishable or poses a threat to public health or safety.
Proceeds held by receiver of wreck
(2) The proceeds, if any, of a disposition under paragraph (1)(b) must be held by the receiver of wreck for not less than 90 days after the date that the wreck was reported under paragraph 155(1)(a).
Payment to CRF
(3) The proceeds of a disposition under subsection (1) must be paid, less the salvage award, fees and expenses, to the Receiver General, to form part of the Consolidated Revenue Fund (a) if no claim has been submitted in accordance with paragraph 158(a); or
Marine marchande (b) if a claim has not been established within the period that the receiver of wreck considers appropriate.
Unpaid salvage, fees, expenses
161. If a person has established a claim to wreck, but has not paid or delivered the salvage award and has not paid the fees and expenses due within 30 days after notice is given by the receiver of wreck, the receiver may dispose of or destroy all or part of the wreck and, if it is disposed of, must pay, from the proceeds of the disposition, the expenses of the disposition and the salvage award, fees and expenses, and release any remaining wreck and pay any proceeds to that person.
Release of wreck
162. On disposal or release of wreck or payment of the proceeds of its disposition by a receiver of wreck under this Part, the receiver, and any person authorized or a member of a class of persons authorized under subsection 154(2), is discharged from all liability in respect of the wreck.
Regulations Regulations — Minister
163. (1) The Governor in Council may, on the recommendation of the Minister, make regulations (a) exempting any geographical area from the application of this Part; and (b) for carrying out the purposes and provisions of this Part.
Regulations — Minister and Minister of Canadian Heritage
(2) The Governor in Council may, on the joint recommendation of the Minister and the Minister of Canadian Heritage, make regulations (a) specifying wreck or classes of wreck that have heritage value; (b) respecting the protection and preservation of wreck or classes of wreck that have heritage value, and providing for issuing permits to access such wreck; (c) authorizing the designation of enforcement officers to ensure compliance with the regulations made under this Part and specifying their powers and duties;
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(d) authorizing the Minister and the Minister of Canadian Heritage to jointly enter into agreements or arrangements respecting the administration or enforcement of any provision of the regulations made under this subsection and to authorize any person or organization with whom an agreement or arrangement is entered into to exercise the powers or perform the duties under those regulations that are specified in the agreement or arrangement; (e) exempting wreck or any class of wreck that has heritage value from the application of any provision of this Part; (f) exempting any geographical area from the application of regulations made under paragraph (b) or (c); and (g) respecting the setting and payment of fees, and the determination and payment of expenses, for services provided in the administration of regulations made under this subsection. Debt due to Her Majesty
(3) All fees and expenses set under paragraph (2)(g) and interest payable on those fees and expenses constitute a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction. Offences and Punishment
Contravention of Act or regulations
164. (1) Every person commits an offence who contravenes (a) paragraph 155(1)(a) (report wreck); (b) paragraph 155(1)(b) (take directed measures regarding wreck); (c) section 157 (possessing, concealing, destroying or disposing of wreck); or (d) a provision of the regulations made under this Part.
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
2001 Prosecutions
Marine marchande (3) In a prosecution under this Part, it is not necessary to identify the wreck as the property of a particular person or as coming from a particular vessel.
PART 8 POLLUTION PREVENTION AND RESPONSE — DEPARTMENT OF FISHERIES AND OCEANS Interpretation Definitions
165. The definitions in this section apply in this Part.
‘‘discharge’’ « rejet »
‘‘discharge’’ means a discharge of a pollutant from a vessel, or a discharge of oil from an oil handling facility engaged in loading to or unloading from a vessel, that directly or indirectly results in the pollutant entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Fisheries and Oceans.
‘‘oil’’ « hydrocarbures »
‘‘oil’’ means petroleum in any form, including crude oil, fuel oil, sludge, oil refuse and refined products.
‘‘oil pollution incident’’ « événement de pollution par les hydrocarbures » ‘‘pollutant’’ « polluant »
‘‘oil pollution incident’’ means an occurrence, or a series of occurrences having the same origin, that results or is likely to result in a discharge of oil. ‘‘pollutant’’ means (a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans; and (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state, that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is
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Canada Ship detrimental to their use by humans or by an animal or a plant that is useful to humans.
It includes oil and any substance or class of substances that is prescribed for the purpose of this Part to be a pollutant. ‘‘pollution damage’’ « dommages dus à la pollution »
‘‘pollution damage’’, in relation to a vessel or an oil handling facility, means loss or damage outside the vessel or oil handling facility caused by contamination resulting from a discharge from the vessel or facility.
‘‘response organization’’ « organisme d’intervention »
‘‘response organization’’ means a qualified person to whom the Minister issues a certificate of designation under subsection 169(1).
Application Application
166. (1) Except as otherwise provided in this Part, this Part applies in respect of vessels in Canadian waters or waters in the exclusive economic zone of Canada and in respect of oil handling facilities in Canada.
Exclusion
(2) This Part does not apply in respect of a vessel that is on location and engaged in the exploration or drilling for, or the production, conservation or processing of, oil or gas in an area described in paragraph 3(a) or (b) of the Canada Oil and Gas Operations Act.
Definition of ‘‘oil’’ and ‘‘gas’’
(3) In subsection (2), ‘‘oil’’ and ‘‘gas’’ have the same meaning as in section 2 of the Canada Oil and Gas Operations Act.
Discharges of Oil Vessels — requirements
167. (1) Subject to subsection (2), every prescribed vessel or vessel of a prescribed class shall (a) have an arrangement with a response organization in respect of a quantity of oil that is at least equal to the total amount of oil that the vessel carries, both as cargo and
Marine marchande as fuel, to a prescribed maximum quantity, and in respect of waters where the vessel navigates or engages in a marine activity; and (b) have on board a declaration, in the form specified by the Minister of Transport, that (i) identifies the name and address of the vessel’s insurer or, in the case of a subscription policy, the name and address of the lead insurer who provides pollution insurance coverage in respect of the vessel, (ii) confirms that the arrangement has been made, and (iii) identifies every person who is authorized to implement the arrangement.
Certain provisions do not apply to certain vessels
(2) Paragraph (1)(a) and subparagraphs (1)(b)(ii) and (iii) do not apply in respect of a vessel that is in prescribed waters.
Exemption
(3) The Minister may exempt, subject to any conditions that the Minister considers appropriate, for a specified period any vessel, or class of vessels, that is en route through waters referred to in subsection 166(1), from the application of any provision of this Part if the Minister is of the opinion that the vessel or class of vessels is subject to a provision of the laws of another state that provides for standards that are equivalent to or stricter than the standards provided for in the provision of this Part.
Publication
(4) Notice of every exemption must be published in the Canada Gazette.
Oil handling facilities — requirements
168. (1) The operator of an oil handling facility of a prescribed class shall (a) have an arrangement with a response organization in respect of any quantity of oil that is, at any time, involved in being loaded or unloaded to or from a vessel at the oil handling facility, to a prescribed maximum quantity; (b) have on site a declaration in the form specified by the Minister that (i) describes the manner in which the operator will comply with the regulations made under paragraph 182(a),
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Canada Ship (ii) confirms that the arrangement has been made, and (iii) identifies every person who is authorized to implement the arrangement and the oil pollution emergency plan referred to in paragraph (d);
(c) have on site an oil pollution prevention plan that meets the prescribed requirements to prevent a discharge of oil during the loading or unloading of a vessel; (d) have on site an oil pollution emergency plan that meets the prescribed requirements to respond to a discharge of oil during the loading or unloading of a vessel; and (e) have the prescribed procedures, equipment and resources available for immediate use in the event of a discharge of oil during the loading or unloading of a vessel.
Certain provisions do not apply to prescribed classes
(2) Paragraph (1)(a) and subparagraphs (1)(b)(ii) and (iii) do not apply in respect of prescribed classes of oil handling facilities.
Duty to take reasonable measures — oil handling facilities
(3) The operator of an oil handling facility referred to in subsection (1) shall take reasonable measures to implement (a) the oil pollution prevention plan referred to in paragraph (1)(c); and (b) in respect of an oil pollution incident, the oil pollution emergency plan referred to in paragraph (1)(d).
Marine marchande Response Organizations
Certificate of designation
169. (1) The Minister may, in respect of any geographic area and in respect of a prescribed quantity of oil, issue a certificate of designation as a response organization to a qualified person who makes an application.
Application
(2) An application for a certificate must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister.
Further evidence
(3) In addition to the specified information and documents, the Minister may require that an applicant (a) provide evidence, including declarations, that the Minister considers necessary to establish that the requirements for the issuance of the certificate have been met; and (b) undergo any examinations and have its installations undergo any inspections that the Minister considers necessary to establish that the requirements for the issuance of the certificate have been met.
Period of validity
(4) Every certificate is valid for the period specified by the Minister.
Refusal to issue or renew
(5) The Minister may refuse to issue or renew a certificate if the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it.
Suspension and cancellation
(6) The Minister may suspend or cancel a certificate in the circumstances and on the grounds set out in the regulations.
Statement of fees
170. (1) A response organization, or a qualified person who makes an application under subsection 169(1), must notify the Minister, in the form and manner and including the information and accompanied by the documents specified by the Minister, of the fees that they propose to charge in relation to an arrangement referred to in paragraph 167(1)(a) or 168(1)(a).
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Notice
(2) A response organization, or a qualified person who makes an application under subsection 169(1), must give notice of the proposed fees in the prescribed manner.
Charging fees
(3) A response organization may not charge the fees before the expiry of 30 days after the notice is given.
Fee review
(4) On the application of any interested person in the prescribed manner within 30 days after the notice is given, the Minister is to review the reasonableness of the proposed fees.
Assistance
(5) The Minister may appoint a person to assist in the review. The person has all the powers of a commissioner under Part I of the Inquiries Act.
Order to amend or eliminate fee
(6) The Minister may, by order, amend or eliminate a fee reviewed under subsection (4). The order comes into effect on the first day that the fee is charged.
Notice of order
(7) The response organization affected by the order must give notice of it in the prescribed manner.
Prescribed procedures, equipment and resources
171. Every response organization shall (a) have a response plan that meets the prescribed requirements; (b) have the prescribed equipment and resources at the site set out in the response plan; (c) provide or arrange for prescribed training to prescribed classes of persons; (d) undertake and participate in prescribed activities to evaluate the response plan or its implementation; (e) on the request of a vessel or the operator of an oil handling facility with which the response organization has an arrangement referred to in paragraph 167(1)(a) or 168(1)(a), as the case may be, implement a response consistent with the response plan; and (f) on the request of the Minister or an advisory council established under section
Marine marchande 172, provide information regarding any of the matters referred to in paragraphs (a) to (e).
Advisory Councils Advisory councils
172. (1) The Minister may establish an advisory council in respect of any geographic area for the purpose of advising the Minister with respect to this Part.
Members
(2) Each advisory council is to be composed of no more than seven members who are appointed to the council by the Minister and who, in the Minister’s opinion, can represent the communities and interests potentially affected by an oil spill in that area.
Term
(3) Each member of an advisory council is to be appointed for a term of not more than three years and is eligible for reappointment.
President
(4) An advisory council must elect one of its members to be its president.
Honoraria and expenses
(5) The members of an advisory council may be paid the honoraria that the Minister considers appropriate and may be paid any reasonable travel, living and child care expenses incurred by them when engaged on the business of the council while absent from their ordinary place of residence.
Recommendations
(6) An advisory council is to advise and may make recommendations to the Minister.
Meetings in public
(7) Advisory council meetings must be open to the public unless the council is satisfied that a public meeting would not be in the public interest, in which case the meeting or any part of it may be held in private. Report to Parliament
Review and report by Minister
173. Every five years, the Minister must review the operation of sections 167 to 172 and have laid before each House of Parliament a report setting out the results of the review.
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Designation
174. (1) The Minister may designate any persons or classes of persons as pollution prevention officers in respect of vessels, oil handling facilities, response organizations or responses to discharges or threats of discharges, and may limit in any manner the Minister considers appropriate the powers that the officer may exercise under this Part.
Certificate of designation
(2) The Minister must furnish every pollution prevention officer with a certificate of designation and, if the officer’s powers are limited under subsection (1), the certificate must specify the powers that the officer may exercise.
Immunity
(3) Pollution prevention officers are not personally liable for anything they do or omit to do in good faith under this Part.
Powers — general
175. (1) A pollution prevention officer may (a) direct a vessel, if it is about to enter or is within waters in respect of which this Part applies, to provide the officer with any information that the officer considers appropriate for the administration of this Part; (b) direct any vessel that is within or about to enter waters in respect of which this Part applies and that the officer believes on reasonable grounds is carrying a pollutant to proceed through those waters by the route, and at a speed not in excess of the speed, that the officer may specify; (c) direct a vessel that is required to have a shipboard oil pollution emergency plan under the regulations to provide information concerning it and its implementation; (d) direct the operator of an oil handling facility to provide any document that the operator is required under this Part to have on site;
Marine marchande (e) direct a response organization to provide any document that the organization is required under this Part to have; (f) inspect an oil handling facility to determine whether its equipment and resources meet the requirements of this Part; and (g) inspect the equipment and resources of a response organization to determine whether its equipment and resources meet the requirements of this Part.
Powers — discharge of pollutant
(2) If the pollution prevention officer believes on reasonable grounds that a vessel may discharge, or may have discharged, a pollutant, the officer may (a) direct a vessel that is within or about to enter waters in respect of which this Part applies to proceed through those waters by the route, and at a speed not in excess of the speed, that the officer may specify; (b) go on board and take samples of any substance that the officer believes may be the pollutant; (c) if the vessel is within or about to enter waters in respect of which this Part applies, direct the vessel to (i) proceed to the place within waters in respect of which this Part applies that the officer may select, by the route and in the manner that the officer may direct, and to moor, anchor or remain there for any reasonable period that the officer may specify, (ii) proceed out of waters in respect of which this Part applies by the route and in the manner that the officer may direct, or (iii) remain outside waters in respect of which this Part applies; and (d) if the officer is informed that a substantial quantity of a pollutant has entered or been discharged in waters in respect of which this Part applies, or if on reasonable
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grounds the officer is satisfied that a grave and imminent danger of a substantial discharge of a pollutant in those waters exists, declare an emergency zone, of an area that is reasonable with regard to the seriousness of the situation, and (i) direct any vessel within that emergency zone to report its position to the officer, (ii) direct any vessel not to enter or not to leave the emergency zone, and (iii) direct any vessel within the emergency zone in respect of routes, speed limits and pilotage and equipment requirements. Disposition of samples
(3) An officer who takes a sample under paragraph (2)(b) may dispose of it in any manner that they consider appropriate or may submit it for analysis or examination to a person designated by the Minister of Transport under subsection 221(1).
Certificate or report
(4) A person who has made an analysis or examination may issue a certificate or report that sets out the results of the analysis or examination.
Certificate
(5) Subject to subsections (6) and (7), the certificate or report is admissible in evidence in any proceeding related to an offence under this Part and, in the absence of any evidence to the contrary, is proof of the statements contained in the certificate or report without proof of the signature or the official character of the person appearing to have signed it.
Attendance of analyst
(6) The party against whom the certificate or report is produced may, with leave of the court, require for the purposes of cross-examination the attendance of the person who issued it.
Notice
(7) The certificate or report may be admitted in evidence only if the party who intends to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.
2001 Assistance to pollution prevention officer
Marine marchande 176. (1) For the purpose of exercising their powers under this Part, a pollution prevention officer may (a) board any vessel or enter any premises or other place at any reasonable time; (b) direct any person to provide reasonable assistance or put into operation or cease operating any machinery or equipment; (c) direct any person to provide any information that the officer may reasonably require in the administration of this Part; (d) direct any person to produce for inspection, or for the purpose of making copies or taking extracts, any log book or other document; (e) take photographs and make video recordings and sketches; (f) use or cause to be used any computer system or data processing system at the place to examine any data contained in, or available to, the system; (g) reproduce or cause to be reproduced any record from the data in the form of a print-out or other intelligible output; (h) take any document or other thing from the place where the inspection is being carried out for examination or, in the case of a document, copying; and (i) use or cause to be used any copying equipment in the place where the inspection is being carried out to make copies of any documents.
Limitation
(2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (3).
Authority to issue warrant
(3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing a pollution prevention officer to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by
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information on oath that entry to the living quarters (a) is necessary for any purpose related to the carrying out of the officer’s powers under this Part; and (b) has been refused or there are reasonable grounds for believing that it will be refused. Use of force
(4) No officer executing a warrant may use force unless they are accompanied by a peace officer and the use of force is specifically authorized in the warrant.
Return of documents and things
(5) Documents or other things taken under paragraph (1)(h) must be returned as soon as feasible after they are no longer required for the inspection or for any proceedings that may result from it. Detention of Vessels
Detention
177. (1) If a pollution prevention officer believes on reasonable grounds that an offence under this Part has been committed by or in respect of a vessel, the officer may make a detention order in respect of the vessel.
Order to be in writing
(2) A detention order made under this section must be in writing and be addressed to every person empowered to grant clearance in respect of the vessel.
Detention order to be served on master
(3) Notice of a detention order made under this section in respect of a vessel must be served on the master (a) by delivering a copy of the notice personally to the master; or (b) if service cannot reasonably be effected in the manner provided in paragraph (a), by leaving a copy of the notice with the person who is, or appears to be, in charge of the vessel or, if there is no such person, by fixing a copy of the notice to a prominent part of the vessel.
Contents of notice
(4) The notice must (a) indicate the measures to ensure compliance with this Part that must be taken for the detention order to be rescinded; and (b) if an indictment has been preferred in respect of the offence, indicate the amount
Marine marchande and form of security that, pending outcome of any proceedings related to indictment, must be deposited with Minister for the detention order to rescinded.
Foreign state to be notified
Rescission of orders
the the the be
(5) If a vessel in respect of which a detention order is made under this section is registered in a foreign state, that state is to be notified that the order was made. (6) A pollution prevention officer must (a) rescind a detention order made under this section if the officer is satisfied that the measures indicated in the notice referred to in subsection (4) have been taken and, if applicable, security in the amount and form indicated in the notice referred to in that subsection has been deposited with the Minister; and (b) notify, in the form and manner specified by the Minister, the master and the persons referred to in subsection (2) of the rescission.
Duty of persons empowered to give clearance
(7) No person to whom a detention order made under this section is addressed shall, after notice of the order is received by them, grant clearance to the vessel in respect of which the order was made unless they have been notified that the order has been rescinded under subsection (6).
Movement of vessel prohibited
(8) Subject to section 179, no person shall move a vessel that is subject to a detention order made under this section.
Liability for expenses
(9) The authorized representative or, if there is no authorized representative, the owner of a vessel that is detained under this section is liable for all expenses incurred in respect of the detained vessel.
Return of security
(10) The Minister, after proceedings in respect of which security was deposited are concluded, (a) may apply the security to reimburse Her Majesty in right of Canada, either fully or partially, if any of the expenses or any fine has not been paid; and
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(b) is to return the security, or any part of it that remains if it is applied under paragraph (a), if all expenses and any fine imposed have been paid. Interference with service
178. No person shall wilfully interfere with the service of a notice of a detention order.
Direction to move a detained vessel
179. The Minister may (a) on application made by the authorized representative or, if there is no authorized representative, the owner of a detained vessel in the form and manner specified by the Minister, permit the master to move it in accordance with the directions of the Minister; (b) on application made by the owner of a dock or wharf or by the person in charge of a harbour at which a detained vessel is situated in the form and manner specified by the Minister, direct the person who is, or appears to be, in charge of the vessel to move the vessel in accordance with the directions of the Minister; and (c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the vessel, authorize the applicant to move the vessel in accordance with the Minister’s directions and at the expense of the authorized representative or, if there is no authorized representative, the owner.
Response Measures Minister may take necessary measures
180. (1) If the Minister believes on reasonable grounds that a vessel or an oil handling facility has discharged, is discharging or is likely to discharge a pollutant, the Minister may (a) take the measures that the Minister considers necessary to repair, remedy, minimize or prevent pollution damage from the vessel or oil handling facility, including, in
Marine marchande the case of a vessel, the removal or destruction of the vessel and its contents, and may sell or otherwise dispose of the vessel and its contents; (b) monitor the measures taken by any person to repair, remedy, minimize or prevent pollution damage from the vessel or oil handling facility; or (c) if the Minister considers it necessary to do so, direct any person or vessel to take measures referred to in paragraph (a) or to refrain from doing so.
Application of proceeds of disposition
(2) The proceeds from the sale or other disposal of a vessel or its contents under paragraph (1)(a) must be applied towards meeting the costs and expenses incurred in taking the measures under that paragraph, and any surplus must be paid to the vessel’s owner or the owner of the contents of the vessel, as the case may be.
Compensation
(3) Compensation shall be paid by Her Majesty in right of Canada for the services of any vessel or person, other than a vessel or the operator of an oil handling facility that had discharged, was discharging or was likely to discharge a pollutant, that has complied with a direction issued under paragraph (1)(c).
Civil or criminal liability
181. (1) A person who is directed to take or refrain from taking measures under paragraph 180(1)(c) is not personally liable, either civilly or criminally, in respect of any act or omission in the course of complying with the direction or doing anything incidental to it, unless it is shown that the person’s conduct was not reasonable in the circumstances.
Civil or criminal liability
(2) Response organizations and persons who have been designated in writing by the Minister as approved responders are not personally liable, either civilly or criminally, in respect of any act or omission occurring or arising during the course of a response operation unless it is shown that the act or omission was committed with the intent to cause loss or damage, or recklessly and with the knowledge that loss or damage would probably result.
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Exception
(3) Nothing in subsection (1) exempts or lessens the liability of the owner of a vessel for the occurrence that necessitated the response operation.
Definition of ‘‘response operation’’
(4) In this section, ‘‘response operation’’ means the activities undertaken following a discharge, or a grave and imminent threat of a discharge, from a vessel, including activities related to or connected with surveillance of and assessing areas of pollution, mobilizing and demobilizing response equipment and resources, protective booming, containment, recovery, dispersal or destruction of the pollutant, shoreline mitigation and restoration, transporting and disposing of recovered pollutant or waste materials and planning and supervising activities related to the response operation.
Regulations Regulations
182. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations (a) respecting the circumstances in which operators of oil handling facilities shall report discharges or anticipated discharges of pollutants, the manner of making the reports and the persons to whom the reports shall be made; (b) respecting the issuance, amendment, suspension, reinstatement, cancellation or renewal of certificates referred to in section 169; (c) respecting the purposes for which fees may be charged in relation to an arrangement referred to in paragraph 167(1)(a) or 168(1)(a) and the manner in which response organizations and persons who make an application under subsection 169(1) must calculate proposed fees before notifying the Minister of the fees under subsection 170(1); (d) respecting the establishment by response organizations of committees of persons who have arrangements with them
Marine marchande and the provision to the committees of information regarding fees and proposed fees; and (e) prescribing anything that by this Part is to be prescribed. Offences and Punishment
Contravention of Act
183. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) paragraph 167(1)(a) (have an arrangement); (b) paragraph 168(1)(a) (have an arrangement); (c) paragraph 168(1)(e) (have procedures, equipment and resources available for immediate use); (d) paragraph 168(3)(a) (implement oil pollution prevention plan); (e) paragraph 168(3)(b) (implement oil pollution emergency plan); (f) paragraph 171(b) (have equipment and resources at the site); (g) paragraph 171(e) (implement response plan); (h) a direction given under paragraph 175(2)(a), (c) or (d) (direction resulting from a discharge or possible discharge of pollutant); (i) subsection 177(7) (giving clearance to detained vessel); (j) subsection 177(8) (moving detained vessel); (k) section 178 (wilfully interfering with service of notice); or (l) a direction given under paragraph 180(1)(c) (to take measures or refrain from doing so).
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than eighteen months, or to both.
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184. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) paragraph 167(1)(b) (have a declaration on board); (b) paragraph 168(1)(b) (have a declaration on site); (c) paragraph 168(1)(c) (have oil pollution prevention plan on site); (d) paragraph 168(1)(d) (have oil pollution emergency plan on site); (e) paragraph 171(a) (have a response plan); (f) paragraph 171(c) (provide or arrange for training); (g) paragraph 171(d) (undertake and participate in activities to evaluate response plan); (h) paragraph 171(f) (provide information); (i) a direction given under paragraph 175(1)(a) (to provide information officer considers appropriate); (j) a direction given under paragraph 175(1)(b) (to proceed by a route and not in excess of a speed); (k) a direction given under paragraph 175(1)(c) (to provide information relating to pollution plan); (l) a direction given under paragraph 175(1)(d) or (e) (to provide documents); (m) a direction given under paragraph 176(1)(b) (to provide reasonable assistance); (n) a direction given under paragraph 176(1)(c) or (d) (to provide information or to produce documents for inspection); and (o) a provision of the regulations made under this Part.
Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Marine marchande PART 9 POLLUTION PREVENTION — DEPARTMENT OF TRANSPORT
Interpretation Definitions
185. The definitions in this section apply in this Part.
‘‘discharge’’ « rejet »
‘‘discharge’’ means a discharge of a pollutant that directly or indirectly results in the pollutant entering waters, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
‘‘Minister’’ « ministre » ‘‘oil pollution incident’’ « événement de pollution par les hydrocarbures »
‘‘Minister’’ means the Minister of Transport.
‘‘pollutant’’ « polluant »
‘‘pollutant’’ means
‘‘oil pollution incident’’ means an occurrence, or a series of occurrences having the same origin, that results or is likely to result in a discharge of oil.
(a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans; and (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state, that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans. It includes oil and any substance or class of substances that is prescribed for the purpose of Part 8 (Pollution Prevention and Response — Department of Fisheries and Oceans) to be a pollutant.
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Application
186. (1) Subject to subsection (2), this Part applies in respect of vessels in Canadian waters or waters in the exclusive economic zone of Canada.
Exclusion
(2) This Part does not apply in respect of a discharge of oil or gas from a vessel that is on location and engaged in the exploration or drilling for, or the production, conservation or processing of, oil or gas in an area described in paragraph 3(a) or (b) of the Canada Oil and Gas Operations Act, in so far as the discharge emanates from those activities.
Definition of ‘‘oil’’ and ‘‘gas’’
(3) In subsection (2), ‘‘oil’’ and ‘‘gas’’ have the same meaning as in section 2 of the Canada Oil and Gas Operations Act.
Pollution Incidents Discharge of pollutant prohibited
187. No person or vessel shall discharge a prescribed pollutant, except in accordance with the regulations made under this Part or a permit granted under Division 3 of Part 7 of the Canadian Environmental Protection Act, 1999.
Implementation of oil pollution emergency plan
188. If a vessel is required by the regulations to have a shipboard oil pollution emergency plan, the vessel shall take reasonable measures to implement the plan in respect of an oil pollution incident.
Directions to Vessels Powers in case of discharge
189. If the Minister believes on reasonable grounds that a vessel may discharge, or may have discharged, a prescribed pollutant, the Minister may (a) direct a vessel, if it is about to enter or is within waters to which this Part applies, to provide the Minister with any information that the Minister considers appropriate for the administration of this Part;
Marine marchande (b) direct a vessel that is required to have on board a declaration described in paragraph 167(1)(b) to provide information concerning it; (c) direct a vessel that is within or about to enter waters in respect of which this Part applies to proceed through those waters by the route and in the manner that the Minister may specify; and (d) direct the vessel to proceed to the place that the Minister may select, by the route and in the manner that the Minister may specify, and to (i) unload the pollutant, or (ii) moor, anchor or remain there for any reasonable period that the Minister may specify. Regulations
Regulations
190. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting the protection of the marine environment, including regulations (a) prescribing pollutants for the purpose of sections 187 and 189 and respecting the circumstances in which such pollutants may be discharged; (b) respecting the circumstances in which persons on board vessels shall report discharges or anticipated discharges, the manner of making the reports and the persons to whom the reports shall be made; (c) respecting the carrying of pollutants on board a vessel, whether as cargo or fuel; (d) respecting the control and prevention of pollution of the air by vessels; (e) respecting reception facilities for oily residues, chemical residues, garbage and sewage; (f) respecting the control and management of ballast water; (g) for preventing or reducing the release by vessels into waters of aquatic organisms or pathogens that, if released into those waters, could create hazards to human health, harm organisms, damage amenities, impair biological diversity or interfere with legitimate uses of the waters;
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(h) respecting the design, construction, manufacture and maintenance of vessels or classes of vessels; (i) specifying the machinery, equipment and supplies that must be on board vessels or classes of vessels; (j) respecting the design, construction, manufacture, maintenance, storage, testing, arrangement and use of vessels’ or classes of vessels’ machinery, equipment and supplies; (k) respecting the requirements that vessels, or classes of vessels, and their machinery and equipment must meet; (l) requiring the obtaining of certificates certifying that any of the requirements referred to in paragraph (k) are met; and (m) respecting inspections and the testing of vessels, or classes of vessels, and their machinery, equipment and supplies.
Application of regulations
(2) Regulations made under subsection (1) apply in respect of vessels that are capable of engaging in the drilling for, or the production, conservation or processing of, oil or gas only if the regulations so state and were made on the joint recommendation of the Minister and the Minister of Natural Resources.
Offences and Punishment Contravention of Act or regulations
191. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) section 187 (discharge of a pollutant); (b) section 188 (implement shipboard oil pollution emergency plan);
Marine marchande (c) a direction given under subparagraph 189(d)(i) (proceed to a place and unload a pollutant); and (d) a provision of the regulations made under this Part.
Punishment
(2) Every person or vessel that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Continuing offence
(3) If an offence under paragraph (1)(a) is committed or continued on more than one day, the person or vessel that committed it is liable to be convicted for a separate offence for each day on which it is committed or continued.
Factors to be considered
(4) In determining the punishment under subsection (2), the court may have regard to the following factors: (a) the harm or risk of harm caused by the offence; (b) an estimate of the total costs of clean-up, of harm caused, and of the best available mitigation measures; (c) the remedial action taken, or proposed to be taken, by the offender to mitigate the harm; (d) whether the discharge or anticipated discharge was reported in accordance with the regulations made under paragraph 190(1)(b); (e) any economic benefits accruing to the offender that, but for the offence, the offender would not have received; and (f) any evidence from which the court may reasonably conclude that the offender has a history of non-compliance with legislation designed to prevent or to minimize pollution.
Contravention of directions
192. (1) Every vessel commits an offence that contravenes (a) a direction given under paragraph 189(a) or (b) (to provide information); (b) a direction given under paragraph 189(c) (to proceed by a specified route); or
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(c) a direction given under subparagraph 189(d)(ii) (to proceed to a place and remain there). Punishment
(2) Every vessel that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000.
Court orders
193. If an offender is convicted of an offence under this Part, in addition to imposing any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects: (a) prohibiting the offender from performing any act or engaging in any activity that may result in the continuation or repetition of the offence; (b) directing the offender to publish the facts relating to the conviction; (c) directing the offender to submit to the Minister, on application by the Minister made within three years after the date of the conviction, any information with respect to the offender’s activities that the court considers appropriate and just in the circumstances; (d) in the case of a discharge, directing the offender to pay an amount for the purpose of conducting research into the ecological use and disposal of the pollutant in respect of which the offence was committed; and (e) requiring the offender to comply with any other reasonable conditions that the court considers appropriate and just in the circumstances for securing the offender’s good conduct and preventing the offender from repeating the same offence or committing other offences. PART 10 PLEASURE CRAFT Interpretation
Definitions
194. The definitions in this section apply in this Part.
2001 ‘‘enforcement officer’’ « agent de l’autorité »
Marine marchande ‘‘enforcement officer’’ means (a) a member of the Royal Canadian Mounted Police; (b) a member of any harbour or river police force; (c) a member of any provincial, county or municipal police force; and (d) any person, or member of a class of persons, designated under subsection 196(1).
‘‘inspector’’ « inspecteur »
‘‘inspector’’ means a pleasure craft safety inspector designated under subsection 195(1).
‘‘licence’’ « permis »
‘‘licence’’ means a licence issued for a pleasure craft under this Part.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Fisheries and Oceans.
Inspections Designation
195. (1) The Minister may designate persons or classes of persons as pleasure craft safety inspectors.
Certificate
(2) The Minister must furnish every inspector with a certificate of designation as a pleasure craft safety inspector authorizing the inspector to carry out inspections under sections 196 and 198.
Immunity
(3) Inspectors are not personally liable for anything they do or omit to do in good faith under this Part.
Designation
196. (1) The Minister may designate persons or classes of persons as enforcement officers.
Inspections — general
(2) An enforcement officer may inspect a pleasure craft or any of its machinery or equipment for the purpose of ensuring compliance with any provision of this Part, other than section 197, or the regulations made under this Part, other than the regulations made under paragraph 207(1)(f), (g), (i) or (j).
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Inspections — structural integrity
(3) An inspector may inspect a pleasure craft or any of its machinery or equipment for structural integrity or compliance with the regulations made under any of paragraphs 207(1)(f) to (m).
Powers
(4) Enforcement officers acting under subsection (2) and inspectors acting under subsection (3) may (a) stop or board the craft at any reasonable time; (b) direct any person to put into operation or cease operating any machinery or equipment on the craft; (c) direct that the craft not be moved until the inspection is completed; (d) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that it does not meet the requirements of this Part or the regulations made under this Part or exposes any person to serious danger, and direct that it not be operated until it meets those requirements or no longer exposes any person to serious danger; and (e) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that the operator does not meet the requirements of the regulations made under this Part, and direct that the operator not operate it until the operator meets those requirements.
Duty to assist
(5) The owner or person in charge of a pleasure craft and every person on board shall (a) give an officer or inspector all reasonable assistance to enable them to carry out an inspection and exercise any power conferred by this section; and (b) produce to an officer or inspector any document, or provide them with any information, that the officer or inspector may reasonably require, for the administration
Marine marchande of this Part or Part 5 (Navigation Services) or the regulations made under either of those Parts.
Manufacturers and importers
197. (1) Every manufacturer, builder or importer of a pleasure craft shall ensure that it is constructed in accordance with the regulations.
Vendors
(2) No person shall, in the course of a commercial enterprise , sell a pleasure craft that does not display a plate or label if required to do so by the regulations made under paragraph 207(1)(h).
Powers
198. (1) An inspector may, for the purpose of ensuring that a manufacturer, importer or vendor is in compliance with section 197, (a) enter any place, other than a dwellinghouse, where the inspector has reasonable grounds to believe a pleasure craft is located; (b) examine anything that the inspector finds and take samples of it; (c) conduct any tests or analyses and take any measurements; (d) inspect any books, records, electronic data or other documents that the inspector believes may contain information that is relevant to the inspection; (e) use or cause to be used any computer system in the place where the inspection is being carried out to examine any data contained in or available to the computer system; (f) reproduce or cause to be reproduced any record from the data in the form of a print-out or other intelligible output; (g) take any document or other thing from the place where the inspection is being carried out for examination or, in the case of a document, copying; and (h) use or cause to be used any copying equipment in the place where the inspection is being carried out to make copies of any documents.
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(2) When an inspector carries out an inspection under subsection (1), the importer, manufacturer or vendor of the pleasure craft, or the owner or person in control of a place where the pleasure craft is located, shall (a) give the inspector all reasonable assistance to enable them to carry out the inspection and exercise any power conferred by this section; and (b) produce to the inspector any document, or provide them with any information, that the inspector may reasonably require for the administration of this Part or the regulations made under this Part.
Return of documents and things
(3) Documents or other things obtained or taken under paragraph (1)(g) must be returned as soon as feasible after they are no longer required for the inspection or for any proceedings that may result from it.
Disposition of samples
(4) An inspector who takes a sample under paragraph (1)(b) may dispose of it in any manner that they consider appropriate.
Operation prohibited
199. If an inspector considers that a pleasure craft does not meet the requirements of this Part or the regulations made under this Part, the inspector may direct any person not to operate it until it meets those requirements.
Investigations Stopping and boarding vessels
200. An enforcement officer who has reasonable grounds to believe that an offence has been committed or is about to be committed under this Part by a pleasure craft or any person on board a vessel may stop and board the craft or vessel and take any reasonable action to ensure public safety or protect the public interest.
Safe Operation of Pleasure Craft Duty
201. Every operator of a pleasure craft shall ensure that it meets the requirements of the regulations made under this Part.
Marine marchande Pleasure Craft Licences
Licensing of pleasure craft
202. (1) If a pleasure craft is required by regulations made under this Part to be licensed, the owner of the craft shall not operate it, or permit it to be operated, unless it is licensed.
Transfer of licence
(2) When the ownership of a pleasure craft referred to in subsection (1) changes, the new owner shall not operate the craft, or permit it to be operated, until the licence for that craft is transferred to the new owner in accordance with the regulations.
Application
203. (1) An application for a licence or for the transfer of a licence must be made in the form and manner, include the information and be accompanied by the documents specified by the Minister.
Issuance of licence
(2) The Minister may issue or transfer a licence to an applicant if the Minister is satisfied that all the requirements under subsection (1) have been met.
Licence number
204. No owner of a pleasure craft in respect of which a pleasure craft licence has been issued shall operate it or allow it to be operated unless the licence number is marked on the craft and maintained in the form and manner specified by the Minister.
Defacing, etc., licence number
205. No person shall deface, alter, conceal or remove the licence number that is marked on a pleasure craft.
Lost documents
206. If a pleasure craft licence is mislaid, lost or destroyed, the Minister, on application made by the holder of the licence in the form and manner and including the information and accompanied by the documents specified by the Minister, may issue a replacement licence.
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Regulations
207. (1) The Governor in Council may, on the recommendation of the Minister, make regulations respecting pleasure craft licensing and the safety of pleasure craft or classes of pleasure craft and of persons on board, including regulations (a) respecting the issuance, cancellation or transfer of pleasure craft licences; (b) respecting qualifications, including medical fitness, minimum age, degree of knowledge, skill, training and experience, for operators of pleasure craft or classes of pleasure craft, and the evidence required to prove compliance with those qualifications; (c) respecting the operation of pleasure craft or classes of pleasure craft; (d) respecting training courses and examinations for pleasure craft operators, including the designation and accreditation of persons or organizations that provide them; (e) respecting the issuance, cancellation or suspension of documents that demonstrate compliance with any regulations made under paragraph (b) or (d); (f) respecting the design, construction or manufacture of pleasure craft or classes of pleasure craft; (g) respecting the issuance or cancellation of plates or labels in respect of pleasure craft that comply with regulations made under paragraph (f); (h) requiring that plates or labels referred to in paragraph (g) be displayed and specifying the manner in which they must be displayed; (i) prohibiting the construction, manufacture, sale, lease, importation or operation of pleasure craft that do not meet the requirements of regulations made under paragraph (f); (j) requiring owners, builders, manufacturers, importers or vendors of pleasure craft to modify their pleasure craft, at their own expense, in order to comply with regulations made under paragraph (f);
Marine marchande (k) respecting hull identification or serial numbers that identify pleasure craft; (l) specifying the machinery and equipment that are required or prohibited on pleasure craft or classes of pleasure craft; (m) respecting the design, construction, manufacture, maintenance, storage, testing, approval, arrangement and use of a pleasure craft’s or a class of pleasure craft’s machinery and equipment; (n) respecting the requirements that pleasure craft, or classes of pleasure craft, and their machinery and equipment must meet; (o) respecting documents that must be kept on board pleasure craft or classes of pleasure craft; and (p) respecting the reporting of accidents involving pleasure craft.
Regulations — pollution
(2) The Governor in Council may, on the recommendation of the Minister, make regulations (a) regulating or prohibiting the discharge of pollutants from pleasure craft; and (b) regulating noise emissions from pleasure craft engines. Offences and Punishment
Contravention of Act
208. (1) Every person commits an offence who contravenes (a) subsection 197(1) (ensure a pleasure craft is constructed in accordance with the regulations); or (b) subsection 197(2) (selling a pleasure craft without a plate or label).
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Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both.
Contravention of Act or regulations
209. (1) Every person commits an offence who contravenes (a) a direction given under any of paragraphs 196(4)(b) to (e) (to operate or cease operating machinery or equipment, to not move a pleasure craft or to move a pleasure craft to a safe place); (b) subsection 196(5) (give reasonable assistance, produce documents or provide information); (c) subsection 198(2) (give reasonable assistance, produce documents or provide information); (d) a direction given under section 199 (not to operate a pleasure craft); (e) section 201 (ensure that a pleasure craft meets the requirements of the regulations); (f) section 202 (obtain a licence for a pleasure craft); (g) section 204 (operating pleasure craft without licence number marked); (h) section 205 (defacing, altering, concealing or removing licence number); or (i) a provision of the regulations made under this Part.
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $10,000.
PART 11 ENFORCEMENT — DEPARTMENT OF TRANSPORT Interpretation Definitions
210. The definitions in this section apply in this Part.
Marine marchande
‘‘Minister’’ « ministre » ‘‘relevant provision’’ « disposition visée »
‘‘Minister’’ means the Minister of Transport.
Authorized persons and organizations
211. (1) A marine safety inspector referred to in section 11 or a person, classification society or other organization authorized to carry out inspections under section 12 may, for the purpose of ensuring compliance with a relevant provision, board any vessel or enter any premises or other place at any reasonable time and carry out any inspection that the inspector, person, classification society or other organization considers necessary and that the Minister has authorized them to carry out. (2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant or for the purpose of ensuring that the vessel complies with a relevant provision.
‘‘relevant provision’’ means a provision of the Act or the regulations that the Minister is responsible for administering, other than a provision of the regulations made under subsection 136(2) in so far as it applies in respect of vessels that are not Canadian vessels or foreign vessels .
Inspections
Living quarters
Stopping a vessel
(3) For the purpose of carrying out an inspection, a marine safety inspector may direct the master of a vessel to stop the vessel or proceed to the place that the inspector may select, and to moor, anchor or remain there for any reasonable period that the inspector may specify.
Inspections
(4) In carrying out an inspection, a marine safety inspector or, subject to any limitations set out under subsection 12(2) in their certificate of authorization, a person, classification society or other organization authorized to carry out inspections may (a) direct any person to answer reasonable questions, provide reasonable assistance or put into operation or cease operating any machinery or equipment on a vessel being inspected; (b) direct the master of a vessel to prohibit or limit access to any part of the vessel for as long as specified;
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(c) direct the master of a vessel not to move the vessel until the inspection is completed; (d) direct the master of a vessel to muster the crew or to carry out any emergency or safety procedure required by the regulations; (e) direct any person who is at the place where the inspection is being carried out to produce for inspection, or for the purpose of making copies or taking extracts, any document that they are required to have under a relevant provision; (f) take photographs and make video recordings and sketches; (g) take or remove for analysis samples of any material or substance or any biological, chemical or physical agents or substances; (h) use or cause to be used any computer system or data processing system at the place where the inspection is being carried out to examine any data contained in, or available to, the system; (i) reproduce or cause to be reproduced any record from the data in the form of a print-out or other intelligible output; (j) take any document or other thing from the place where the inspection is being carried out for examination or, in the case of a document, copying; and (k) use or cause to be used any copying equipment in the place where the inspection is being carried out to make copies of any documents.
Disposition of samples
(5) A person who, or organization that, takes a sample under paragraph (4)(g) may dispose of it in any manner that the person or organization considers appropriate.
Return of documents and things
(6) Documents or other things taken under paragraph (4)(j) must be returned as soon as feasible after they are no longer required for the purpose for which they were taken.
2001 Seizure
Marine marchande 212. (1) During an inspection, a marine safety inspector may seize and detain anything (a) by means of which or in relation to which the inspector believes on reasonable grounds that a relevant provision has been contravened; or (b) that the inspector believes on reasonable grounds will afford evidence in respect of a contravention of a relevant provision.
Storage or removal
(2) An inspector may direct the person in charge of the place where something was seized to store it in that place or may remove it to any other place.
Return of things or forfeiture
(3) Any thing seized must be returned as soon as feasible after it is no longer needed for any proceedings unless it cannot be brought into compliance with the relevant provisions and the Minister directs that it not be returned, in which case it is forfeited to Her Majesty in right of Canada after it is no longer needed for any proceedings and may be disposed of at the expense of the person from whom it was seized.
Clearance No departure without clearance
213. Subject to the regulations, no vessel shall depart from a port in Canada unless clearance has been granted.
Granting clearance
214. Any person who is authorized under an Act of Parliament to grant clearance of a vessel at a port in Canada is not to grant it unless satisfied that the master has all of the documents required under this Act for the clearance.
Voyage with a Person on Board without Their Consent Prohibition
215. No master shall proceed on a voyage with a person on board who is exercising powers or performing duties relating to the administration or enforcement of a relevant provision unless the person consents.
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Reasonable grounds
216. (1) An individual who has reasonable grounds to believe that a person or vessel has contravened or intends to contravene a relevant provision may notify the Minister of the particulars of the matter and may request that their identity be kept confidential with respect to the notification.
Confidentiality
(2) The identity of an individual to whom the Minister has provided an assurance of confidentiality may be disclosed by the Minister only in accordance with the Privacy Act .
Inspection
217. (1) On being notified under subsection 216(1), the Minister is to determine whether an inspection should be carried out by a marine safety inspector.
Costs
(2) If a marine safety inspector determines that the individual who notified the Minister did not have reasonable grounds to believe that a person or vessel had contravened or had intended to contravene a relevant provision, the individual is liable to pay the costs of the inspection.
Prohibition
218. (1) No employer shall dismiss, suspend, demote, discipline, harass or otherwise disadvantage an employee, or deny an employee a benefit of employment, by reason that (a) the employee, acting in good faith and on the basis of reasonable belief, disclosed to the Minister that the employer or any other person had contravened or had intended to contravene a relevant provision; (b) the employee, acting in good faith and on the basis of reasonable belief, refused or stated an intention of refusing to do anything that is a contravention of a relevant provision; (c) the employee, acting in good faith and on the basis of reasonable belief, did or stated an intention of doing anything that is required to be done in order that a contravention of a relevant provision not be committed; or (d) the employer believes that the employee will do anything referred to in paragraph (a), (b) or (c).
Marine marchande
Saving
(2) Nothing in this section impairs any right of an employee either at law or under an employment contract or collective agreement.
Definitions
(3) In this section, ‘‘employee’’ includes an independent contractor and ‘‘employer’’ has a corresponding meaning. Investigations
Investigations
219. (1) The Minister may appoint any person to investigate a shipping casualty or an alleged contravention of a relevant provision.
Limitation
(2) A person appointed under subsection (1) may not make findings as to the causes and contributing factors of a shipping casualty that has been or is being investigated by the Canadian Transportation Accident Investigation and Safety Board or that that Board has informed the Minister they propose to investigate.
Definition of ‘‘shipping casualty’’
(3) In this section, ‘‘shipping casualty’’ means (a) any accident or incident associated with a vessel; and (b) any situation or condition that the Minister has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).
Search and seizure without warrant
220. (1) If the conditions for obtaining a warrant under section 487 of the Criminal Code exist in respect of the contravention of a relevant provision but by reason of exigent circumstances it would not be feasible to obtain one, a marine safety inspector may exercise the powers of search and seizure provided in that section without a warrant.
Living quarters
(2) A marine safety inspector may not search living quarters without a warrant unless the inspector first obtains the consent of the occupant.
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(3) In the course of a search under subsection (1) or section 487 of the Criminal Code, a marine safety inspector has all the powers referred to in subsection 211(4) (inspections).
Analysis and Examination Submission
221. (1) A marine safety inspector may submit to a person designated by the Minister, for analysis or examination, anything seized or any sample taken under this Part.
Certificate or report
(2) A person who has made an analysis or examination may issue a certificate or report that sets out the results of the analysis or examination.
Certificate
(3) Subject to subsections (4) and (5), the certificate or report is admissible in evidence in any proceeding related to the contravention of a relevant provision and, in the absence of any evidence to the contrary, is proof of the statements contained in the certificate or report without proof of the signature or the official character of the person appearing to have signed it.
Attendance of analyst
(4) The party against whom the certificate or report is produced may, with leave of the court, require for the purposes of cross-examination the attendance of the person who issued it.
Notice
(5) The certificate or report may be admitted in evidence only if the party who intends to produce it has given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report. Detention of Vessels
Optional detention
222. (1) If a marine safety inspector believes on reasonable grounds that a contravention of a relevant provision has been committed by or in respect of a vessel or that the vessel is not seaworthy, the inspector may make a detention order in respect of the vessel.
Mandatory detention — unsafe vessels
(2) The inspector must make a detention order if the contravention is a contravention of section 110 (too many passengers) or the inspector also believes on reasonable grounds that the vessel is unsafe, that it is unfit to carry
Marine marchande passengers or crew members or that its machinery or equipment is defective in any way so as to expose persons on board to serious danger.
Mandatory detention — foreign vessels
(3) If an information has been laid, an indictment has been preferred or a notice of violation has been issued or an assurance of compliance has been entered into under section 229 in respect of a contravention of a relevant provision that is alleged to have been committed by or in respect of a foreign vessel, a marine safety inspector must make a detention order in respect of the vessel.
Order to be in writing
(4) A detention order made under this section must be in writing and be addressed to every person empowered to grant clearance in respect of the vessel.
Detention order to be served on master
(5) Notice of a detention order made under this section in respect of a vessel must be served on the master (a) by delivering a copy of the notice personally to the master; or (b) if service cannot reasonably be effected in the manner provided in paragraph (a), by leaving a copy of the notice with the person who is, or appears to be, in charge of the vessel or, if there is no such person, by fixing a copy of the notice to a prominent part of the vessel.
Contents of notice
(6) The notice must (a) indicate the measures to ensure compliance with the relevant provision or to render the vessel seaworthy that must be taken for the detention order to be rescinded; (b) in the case of a foreign vessel, if an information has been laid, an indictment has been preferred or a notice of violation has been issued or an assurance of compliance has been entered into under section 229 in respect of a contravention of a relevant provision, indicate the amount and form of security that, pending the outcome of any proceedings related to the information, indictment or notice, must be deposited with the Minister for the detention order to be rescinded; and
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(c) in the case of a Canadian vessel, if an indictment has been preferred in respect of a contravention of a relevant provision, indicate the amount and form of security that, pending the outcome of any proceedings related to the indictment, must be deposited with the Minister for the detention order to be rescinded. Foreign state to be notified
Rescission of orders
(7) If a vessel in respect of which a detention order is made under this section is registered in a foreign state, that state is to be notified that the order was made. (8) A marine safety inspector must (a) rescind a detention order made under this section if the inspector is satisfied that the measures indicated in the notice referred to in subsection (6) have been taken and, if applicable, security in the amount and form indicated in the notice referred to in that subsection has been deposited with the Minister; and (b) notify, in the form and manner specified by the Minister, the master and the persons referred to in subsection (4) of the rescission.
Duty of persons empowered to give clearance
(9) No person to whom a detention order made under this section is addressed shall, after notice of the order is received by them, grant clearance to the vessel in respect of which the order was made unless they have been notified that the order has been rescinded under subsection (8).
Movement of vessel prohibited
(10) Subject to section 224, no person shall move a vessel that is subject to a detention order made under this section.
Liability for expenses
(11) The authorized representative of a vessel that is detained under this section is liable for all expenses incurred in respect of the detained vessel.
Return of security
(12) The Minister, after proceedings in respect of which security was deposited are concluded, (a) may apply the security to reimburse Her Majesty in right of Canada, either fully or partially, if any of the expenses or any fine or penalty has not been paid; and
Marine marchande (b) is to return the security, or any part of it that remains if it is applied under paragraph (a), if all expenses and any fine or penalty imposed have been paid.
Interference with service
223. No person shall wilfully interfere with the service of a notice of a detention order.
Direction to move a detained vessel
224. The Minister may (a) on application made by the authorized representative of a detained vessel in the form and manner specified by the Minister, permit the master to move it in accordance with the directions of the Minister; (b) on application made by the owner of a dock or wharf or by the person in charge of a harbour at which a detained vessel is situated in the form and manner specified by the Minister, direct the person who is, or appears to be, in charge of the vessel to move the vessel in accordance with the directions of the Minister; and (c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the vessel, authorize the applicant to move the vessel in accordance with the Minister’s directions and at the expense of the authorized representative.
Sale of Vessels Distress on vessel for sums ordered to be paid
225. A court, justice of the peace or provincial court judge that orders the authorized representative of a vessel to pay any fine, crew member’s wages or other sum of money may, if payment is not made in accordance with the order, order the seizure and sale of the vessel or its machinery or equipment.
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Abandoned vessels
226. (1) The Minister may sell a vessel that is deemed abandoned under the regulations and may, by bill of sale, give the purchaser a valid title to it free from any mortgage or other claim on the vessel that exists at the time of the sale.
Vessel may be seized and sold if fine or penalty not paid
(2) At any time after a fine is imposed under a relevant provision against, or a certificate registered under subsection 235(2) (registration in Federal Court) in respect of, a vessel or its authorized representative, the Minister may, while the fine or debt remains unpaid, seize the vessel and, after giving notice to the authorized representative, sell it and, by bill of sale, give the purchaser a valid title to the vessel free from any mortgage or other claim on the vessel that exists at the time of the sale.
Proceeds of sale
(3) Any surplus remaining from the proceeds of a sale is to be distributed in accordance with the regulations after satisfying the following claims in the following order: (a) the cost of the seizure and sale; (b) any claim for salvage in respect of the vessel; (c) the claims of masters and crew members for wages; (c.1) the claims of masters for disbursements made or liabilities incurred for necessaries on account of the vessel; (d) the amount of any fine imposed or debt due under a relevant provision; and (e) the cost of returning masters and crew members to the place where they first came on board or to another place to which they and the Minister have agreed.
If proceeds insufficient
(4) If the proceeds of sale of a vessel are insufficient to satisfy the claims described in subsection (3), the Minister may proceed for the balance owing against
Marine marchande (a) the authorized representative, in the case of a Canadian vessel; and (b) the owner, in the case of a foreign vessel. Foreign Vessels in Contravention of International Conventions
Minister’s powers
227. (1) If the Minister has reasonable grounds to believe that a foreign vessel is in contravention of an international convention or protocol listed in Schedule 1, the Minister may (a) if the vessel has not entered Canadian waters, direct the vessel not to enter Canadian waters; (b) if the vessel has entered Canadian waters but is not in a port in Canada, direct the vessel to leave Canadian waters; and (c) if the vessel is in a port in Canada, direct the vessel to leave Canadian waters, subject to any terms and conditions that the Minister may specify.
Limitation
(2) The Minister may not give a direction under subsection (1) if, in the Minister’s opinion, doing so would put the safety of the vessel, any person on board or the environment at imminent risk.
Notification
(3) If the Minister gives a direction under subsection (1) in respect of a vessel, the Minister must notify the state where the vessel is registered of the direction given and the reason for it. Administrative Penalties Interpretation
Definition of ‘‘violation’’
228. In sections 229 to 244, ‘‘violation’’ means a contravention of a relevant provision that is designated as a violation by the regulations made under this Part. Assurances of Compliance and Notices of Violation
If reasonable grounds to believe a violation
229. (1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may (a) enter into an assurance of compliance with the person or vessel that
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Canada Ship (i) identifies the violation and provides that the person or vessel will comply with the provision to which the violation relates within the period and be subject to the terms and conditions that are specified in the assurance, (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and (iii) sets out the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or
(b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out (i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay, (ii) the period within which the penalty must be paid or a review of the notice requested, and (iii) particulars of the manner in which the penalty must be paid or a review requested. Extension of period
(2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person with whom or vessel with which the assurance of compliance was entered into is unable to comply with it because of reasons beyond the person’s or vessel’s control.
Short-form descriptions in notices of violation
(3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.
Deemed violation
230. (1) A person who, or vessel that, enters into an assurance of compliance is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.
Marine marchande
Request for review
(2) A person who, or vessel that, enters into an assurance of compliance may, within 48 hours after the assurance is signed and before a notice of default is served under subsection 231(2), request a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 232(1) of the facts of the violation and the amount of the penalty is deemed to have been requested.
When assurance of compliance complied with
231. (1) If the Minister is satisfied that an assurance of compliance has been complied with, the Minister must cause a notice to that effect to be served on the person or vessel and, on the service of the notice, (a) no further proceedings may be taken against the person or vessel with respect to the violation in respect of which the assurance was entered into; and (b) any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel.
When assurance of compliance not complied with
(2) If the Minister is of the opinion that a person who, or vessel that, has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person or vessel to the effect that, unless an adjudicator determines under subsection (3) that the assurance has been complied with, (a) the person or vessel is liable to pay double the amount of the penalty set out in the assurance; or (b) the security deposited under subparagraph 229(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
Review of notice of default
(3) A person or vessel served with a notice of default may, within 30 days after being served and in the prescribed manner, request a review by an adjudicator of the facts of the non-compliance with the assurance of compliance.
Burden of proof
(4) In the case of a review of the facts of a non-compliance, (a) the burden is on the Minister to establish, on a balance of probabilities, that the person or vessel named in the notice did not comply with the assurance of compliance; and
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(b) the person is not required and may not be compelled to give any evidence or testimony in the matter. Certain defences not available
(5) A person or vessel named in a notice of default does not have a defence by reason that the person or vessel exercised due diligence to comply with the assurance of compliance.
No set off
(6) On the service of a notice of default, the person or vessel served has no right of set-off against any amount spent by the person or vessel under the assurance of compliance.
Return of security
(7) Any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel if (a) a notice of default is served under paragraph (2)(a) and the person or vessel pays double the amount of the penalty; or (b) an adjudicator determines under subsection (3) that the assurance has been complied with.
Notice of violation
232. (1) A person or vessel served with a notice of violation must pay the amount of the penalty or may, within 30 days after being served and in the prescribed manner, request a review by an adjudicator of the facts of the violation or the amount of the penalty.
Burden of proof
(2) In the case of a review of the facts of a violation, (a) the burden is on the Minister to establish, on a balance of probabilities, that the person or vessel named in the notice of violation committed the violation; and (b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.
When review not requested
(3) If a review is not requested of the facts of the violation, the person or vessel is deemed to have committed the violation in respect of which the notice was served.
Marine marchande Choice of Proceedings
How contravention may be proceeded with
233. If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.
Recovery of Debts Debts due to Her Majesty
234. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction: (a) unless a review of the amount of the penalty is requested under subsection 232(1), the amount of a penalty set out in a notice of violation, from the time the notice is served; (b) the amount that a notice of default served under subsection 231(2) provides that a person is liable to pay, from the time the notice is served; (c) the amount of a penalty determined by an adjudicator on a review under subsection 232(1), from the time the adjudicator gives their decision; and (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
Certificate of default
235. (1) A debt referred to in section 234 in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.
Judgments
(2) On production to the Federal Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration.
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Violations are not offences
236. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Common law principles
237. Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under a relevant provision applies in respect of a violation to the extent that it is not inconsistent with this Act.
Vicarious liability — Canadian maritime document holders
238. (1) The holder of a Canadian maritime document is liable for a violation that is committed in respect of any matter that relates to an activity or a requirement under that document, whether or not the person or vessel that actually committed the violation is identified or proceeded against in accordance with this Act.
Vicarious liability — acts of employees and agents
(2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee’s employment or within the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act. General Provisions
Notations removed
239. (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs the Minister is to remove every notation of violation or default, and every suspension or cancellation of or refusal to issue or renew a Canadian maritime document on prescribed grounds, from any records that the Minister may keep respecting a person or vessel: (a) the person or vessel pays every penalty that the person or vessel is liable to pay under a notice of violation, a notice of default or an adjudicator’s decision; (b) a suspension on prescribed grounds of a Canadian maritime document issued to the person or vessel ends;
Marine marchande (c) the Minister cancels, on prescribed grounds, a Canadian maritime document issued to the person or vessel; and (d) the Minister refuses, on prescribed grounds, to issue a Canadian maritime document to the person or vessel or to renew a Canadian maritime document issued to the person or vessel.
Duty to notify
(2) The Minister is to give a person or vessel notice of a decision not to remove a notation in respect of the person or vessel and providing all relevant information concerning the grounds on which the Minister has refused to remove it.
Review
(3) The person may, within 30 days after the day on which the notice is given, request that an adjudicator review the decision.
Disclosure of notations of violations
240. The Minister shall keep a public record of notations of violations or default kept on any record that the Minister may keep respecting the person or vessel.
Limitation period
241. No notice of violation may be issued more than two years after the day on which the Minister becomes aware of the contravention.
Certificate of Minister
242. A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day.
When compliance agreement in effect
243. If a violation arising out of the contravention of any provision of Part 4 or the regulations made under that Part is committed while an agreement or arrangement is in effect between the Minister and the authorized representative of a Canadian vessel that provides that inspections of the vessel to ensure compliance with that provision will be carried out by the authorized representative or a person or an organization acting on their behalf, the penalty or range of penalties fixed under paragraph 244(h) in respect of the violation is doubled.
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Canada Ship Regulations
Regulations
244. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations (a) respecting clearances for departure from a port in Canada; (b) respecting the investigation of shipping casualties, the alleged contravention of a relevant provision or an incident that involved a vessel and that, in the opinion of the Minister, jeopardized the safety of persons; (c) respecting the detention of vessels, including the review of detention orders; (d) specifying the circumstances in which a vessel is deemed abandoned; (e) respecting the sale of a vessel under section 226, including measures that must be taken before the vessel is sold and the manner of establishing, and the priority of payment of, claims against the vessel; (f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision that is an offence under this Act; (g) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued; (h) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine if the violation were proceeded with by way of summary conviction; (i) respecting reviews under subsection 231(3) (notices of default), 232(2) (notices of violation) or 239(3) (removal of notations of violations); (j) respecting the service of documents required or authorized to be served under this Part, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served; and
Marine marchande (k) prescribing anything that by this Part is to be prescribed.
Offences and Punishment Contravention of Act
245. (1) Every person commits an offence who contravenes (a) a direction given under subsection 211(3) (to stop a vessel or proceed as specified); (b) a direction given under any of paragraphs 211(4)(a) to (e) (to answer reasonable questions, to provide reasonable assistance, to prohibit or limit access to part of a vessel, to operate or cease operating machinery or equipment, to not move a vessel, to muster crew or carry out emergency or safety procedures or to produce documents); (c) section 215 (proceed to sea with a person without their consent); (d) subsection 218(1) (disciplining employee); (e) subsection 222(9) (giving clearance to detained vessel); (f) subsection 222(10) (moving detained vessel); (g) section 223 (wilfully interfering with service of notice); or (h) a direction given under subsection 227(1) (not to enter or to leave Canadian waters).
Punishment
(2) Every person who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Contravention of Act or regulations
246. (1) Every person who, or vessel that, contravenes any of the following commits an offence: (a) a direction given under subsection 212(2) (to store something);
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(b) section 213 (departing without clearance); and (c) a provision of the regulations made under this Part. Punishment
(2) Every person who, or vessel that, commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both. PART 12 MISCELLANEOUS Goods
Definition of ‘‘carrier’’
247. In sections 248 and 250, ‘‘carrier’’ means a person with whom a shipper of goods enters into a contract of carriage of the goods by water.
Carrier’s lien
248. (1) A carrier has, on goods carried under a contract of carriage, a lien for any amount that is due to the carrier under the contract for freight or costs of storing, disposing of or preserving the goods.
Notice of lien to owner of goods
(2) Before exercising a lien, a carrier must give notice of it to the owner of the goods, specifying the amount claimed and the particulars of the claim.
Notice of lien to third parties
(3) If the carrier places the goods in the custody of a third party and gives the third party notice of the lien and the third party does not retain them until notified by the carrier that the lien is discharged or does not return them to the carrier, the third party is liable to the carrier. The third party may charge the carrier for storing the goods or for any reasonable action taken to preserve them or to protect property or human life from damage they may cause.
Third party’s protection
(4) A third party who retains goods until notified by the carrier that the lien is discharged or who returns them to the carrier is not liable to the owner of the goods, regardless of whether the lien claimed by the carrier is valid.
2001 Sale or other disposition of goods
Marine marchande 249. (1) If an owner of goods does not take delivery of the goods after notice of delivery has been given or fails to discharge a lien after it is exercised, the carrier may (a) sell them by public auction at any time that is 90 days after the notice of delivery is given and 10 days after giving notice of the time and place of the auction in a newspaper that is circulated in the vicinity of the auction; or (b) if the goods are perishable or pose a threat to public health or safety, sell or otherwise dispose of them in the manner and for the price that is reasonable in the circumstances after giving notice of the sale or other disposition to the owner of the goods.
Application of proceeds of disposition
(2) The proceeds of the disposition must be credited toward payment of the amounts due or payable under the contract of carriage or any other amounts reasonably incurred for storing, disposing of or preserving the goods. Any surplus must be paid to the owner of the goods.
Responsibility for goods
250. Subject to the Carriage of Goods by Water Act, carriers must use due care and diligence in the safe-keeping and punctual conveyance of goods delivered to them for carriage by water.
Stevedoring Actions in rem
251. (1) A person who has contracted with the authorized representative or a bare-boat charterer of a vessel in Canada to provide stevedoring may maintain an action in rem in the Federal Court, or any court of competent jurisdiction whose rules provide for in rem procedure in respect of vessels, for a claim in respect of the stevedoring.
Limitation
(2) The right of action in rem referred to in subsection (1) may be exercised only while the vessel is chartered to the bare-boat charterer and only if the bare-boat charterer is joined as a defendant.
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Does not affect other rights
(3) For greater certainty, nothing in this section limits the right of a person to maintain an action in rem for stevedoring under Canadian maritime law, within the meaning of subsection 2(1) of the Federal Court Act.
Definition of ‘‘stevedoring’’
(4) In this section, ‘‘stevedoring’’ includes trimming, lighterage and the supply of any goods or services in relation to stevedoring.
Proof of Offences by Vessels Proof of offence
252. (1) In a prosecution of a vessel for an offence under this Act, it is sufficient proof that the vessel has committed the offence to establish that the act or omission that constitutes the offence was committed by the master or any person on board, other than a person carrying out an inspection under this Act or a pollution prevention officer, whether or not the person on board has been identified.
Directions
(2) For the purpose of prosecuting a vessel for contravening a direction given under this Act, a direction given to the master, a crew member or any person on board who is, or appears to be, in charge of the vessel, is deemed to have been given to the vessel.
Offences Damage to environment and risk of death or harm to persons
253. (1) Every person is guilty of an offence and liable on conviction on indictment to a fine or to imprisonment for a term of not more than five years, or to both, who, in committing an offence under this Act, (a) intentionally or recklessly causes a disaster that results in the loss of life or serious damage to the environment; or (b) shows wanton or reckless disregard for the lives or safety of other persons and thereby causes a risk of death or bodily harm to another person.
Criminal negligence
(2) Every person who, in committing offence under this Act, shows wanton reckless disregard for the lives or safety other persons and thereby causes death
an or of or
Marine marchande bodily harm to another person is subject to prosecution and punishment under section 220 or 221 of the Criminal Code. Due Diligence
Persons
254. (1) No person may be found guilty of an offence under this Act if the person establishes that they exercised due diligence to prevent its commission.
Vessels
(2) No vessel may be found guilty of an offence under this Act if the person who committed the act or omission that constitutes the offence establishes that they exercised due diligence to prevent its commission. Prohibitions on Conviction
Court order
255. If a person is convicted of an offence under this Act, the court may, in addition to any other punishment it may impose, make an order (a) if the person is the holder of a Canadian maritime document, prohibiting the person from doing any act or thing authorized by the document at all times while the document is in force or for the period or at the times and places that may be specified in the order; or (b) prohibiting the person from operating a vessel or providing services essential to the operation of a vessel for the period or at the times and places that may be specified in the order. Summary Conviction Proceedings
Limitation period
256. (1) Proceedings by way of summary conviction under this Act may be instituted within two years after the day on which the Minister of Transport or the Minister of Fisheries and Oceans, as the case may be, becomes aware of the subject-matter of the proceedings.
Certificate of Minister
(2) A document that purports to have been issued by the Minister referred to in subsection (1), and that certifies the day on which that Minister became aware of the subject-matter of the proceedings, is admissible in evidence without proof of the signature or official character of the person appearing to have
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signed the document and is evidence that the Minister became aware of the subject-matter on that day. Defendant outside Canada
(3) If the proceedings cannot be commenced within two years because the proposed defendant is outside Canada, the proceedings may be commenced not later than two months after they arrive in Canada. Jurisdiction
Jurisdiction in case of offences
257. (1) For the purpose of giving jurisdiction under this Act, every offence is deemed to have been committed and every cause of complaint to have arisen either in the place where the offence actually was committed or arose, or in any place where the offender or person or vessel complained against may be.
Presumption of jurisdiction
(2) If, in a legal proceeding under this Act, a question arises as to whether a vessel or person is within any of the provisions of this Act or the regulations, the vessel or person is deemed to be within those provisions unless the contrary is proved.
Jurisdiction over vessels lying off coasts
258. (1) If a district within which a court, justice of the peace or provincial court judge has jurisdiction either under this Act or under any other Act or at common law, for any purpose whatever, is situated on the coast of a sea, or abuts on or projects into navigable waters, the court, justice or provincial court judge has jurisdiction over any vessel on, or lying or passing off, that coast or in or near those navigable waters, and over all persons on board, in the same manner as if the vessel or persons were within the limits of the original jurisdiction of the court, justice or provincial court judge.
Added power of courts
(2) The jurisdiction under this section is in addition to and not in derogation of any jurisdiction or power of a court under the Criminal Code.
Marine marchande Damage Occasioned by Foreign Vessels
Power to detain foreign vessel that has caused damage
259. If the Federal Court is satisfied that damage or loss has in any part of the world been caused to property that belongs to Her Majesty in right of Canada or a province or to a qualified person by the fault, in whole or in part, of a vessel that is registered in a foreign state and that is at the time of the application in Canadian waters, on ex parte application the Federal Court may issue an order requiring any person named by the Court to detain the vessel until the applicant has been compensated for the damage or loss or until security, in the form and amount approved by the Court, is deposited with the Court.
Defence Defence available in certain cases
260. It is a defence in proceedings under this Act for contravening a direction that the vessel to which or person to whom the direction was given (a) believed on reasonable grounds that complying with the direction would have imperilled life, the environment or any vessel or property; and (b) notified the person who gave the direction, as soon as feasible, of the contravention and of the reasons for it. Depositions in Legal Proceedings
Depositions received when witness cannot be produced
261. (1) A deposition of a witness is admissible in evidence in the course of a proceeding under this Act if (a) the testimony of the witness is required in relation to the subject-matter of the proceeding and the witness cannot be found in Canada; (b) the deposition was made on oath outside Canada in relation to the same subject-matter before a justice or magistrate of another state or before a diplomatic or consular officer of Canada or a person recognized by Her Majesty in right of Canada as a diplomatic or consular officer of another
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state, and the deposition is signed by the justice, magistrate or officer; and (c) in the case of a criminal proceeding, the deposition was made in the presence of the person accused and that fact is certified by the justice, magistrate or officer. Certificate as evidence
(2) It is not necessary in any case to prove the signature or official character of the person who appears to have signed the deposition, and in a criminal proceeding a certificate under this section is, unless the contrary is proved, sufficient evidence that the deposition was made in the presence of the person accused.
Certified copies
(3) A copy of the deposition or an extract from one is admissible in evidence if it purports to be signed and certified as a true copy or extract by the justice, magistrate or officer. Procedure
Examination of persons before trial
262. (1) A crew member who is likely to be obliged to leave the province in which an offence under this Act is prosecuted, or a witness who is sick, infirm or about to leave the province, may be examined before a commissioner for oaths or other proper authority in the same manner that a deposition is taken in a civil case.
Use of examination
(2) An examination under subsection (1) may be used at the trial or proceeding in respect of which it was taken if the crew member or witness is unable to attend or cannot be produced.
No stay of proceedings without order
263. The proceedings on a conviction or an order may not be stayed by reason of an application to remove the conviction or order to a superior court or of a notice of such an application unless the court or judge to whom the application is made or is to be made orders a stay of proceedings on special cause being shown.
Jurisdiction
264. If there is no judge having jurisdiction in respect of writs of certiorari resident at or near the place where a conviction or an order is made, in the Province of Ontario, a judge of
Marine marchande the Ontario Superior Court of Justice, in the Provinces of Nova Scotia and British Columbia, a judge of the Supreme Court, in the Province of Prince Edward Island or Newfoundland, a judge of the Trial Division of the Supreme Court, or, in the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, a judge of the Court of Queen’s Bench, has power to hear and determine an application for a stay of proceedings on the conviction or order.
Documents admissible in evidence
265. (1) A document made, given or issued under this Act and appearing to be signed by the Minister of Transport, the Minister of Fisheries and Oceans, the Chief Registrar or a registrar, a marine safety inspector, the Chair of the Marine Technical Review Board, a marine communications and traffic services officer, a person exercising powers under subsection 135(2), a pleasure craft safety inspector or an enforcement officer is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the document without proof of the signature or official character of the person appearing to have signed the document.
Copies or extracts
(2) A copy of or an extract from any record or other document that is made, given or issued under this Act by a person referred to in subsection (1) and that appears to have been certified under the signature of that person as a true copy or extract is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.
Admissibility of documents in evidence
266. A document that this Act declares to be admissible in evidence is, on its production from the proper custody, admissible in evidence in any court or before any person having by law or consent of the parties authority to receive evidence, and, in the absence of any evidence to the contrary, is proof of the
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matters stated in the document without proof of the signature or the official character of the person appearing to have signed it. Document entries as proof
267. In an action or proceeding under this Act, an entry in a record required under this Act to be kept is, in the absence of evidence to the contrary, proof of the matters stated as against the person who made the entry or was required to keep the record or, if the record was kept in respect of a vessel, against the authorized representative or master. Application of Fines
Paid to Receiver General
268. (1) Subject to subsection (2), all fines imposed under this Act must, despite any other Act, be paid to the Receiver General and deposited to the credit of the Consolidated Revenue Fund.
Application of fines
(2) A court, justice of the peace or provincial court judge who imposes a fine under this Act may direct that the whole or a portion of it may (a) be applied in compensating a person for any wrong or damage that may have been caused by the act or default in respect of which the fine was imposed; (b) be applied in or toward payment of the expenses of the proceedings; or (c) be paid to the provincial, municipal or local authority bearing in whole or in part the expense of prosecuting the contravention of this Act in respect of which the fine was imposed.
Crown Liability Crown not relieved
268.1 Subsections 11(5) and 12(5), section 45 and subsections 154(3), 174(3) and 195(3) do not, by reason of section 10 of the Crown Liability and Proceedings Act, relieve the Crown of liability in respect of a tort or extracontractual civil liability to which the Crown would otherwise be subject.
Marine marchande State of War or Armed Conflict
Prohibition of shipment of articles of war
269. (1) No person shall, during a prescribed period, (a) discharge from a Canadian vessel a prescribed article in any prescribed territory or within the territorial waters adjacent to the territory; (b) tranship on the high seas such an article from a Canadian vessel to any vessel bound for such a territory; (c) take on board or carry on a Canadian vessel such an article consigned to or destined for a place in such a territory; or (d) take on board or carry on any other vessel in Canadian waters such an article consigned to or destined for a place in such a territory.
Powers if contravention suspected
(2) Any person, or member of a class of persons, designated by the Minister of Transport or the Minister of National Defence for the purposes of this section, who has reason to suspect that a vessel is contravening or has contravened subsection (1) may (a) direct the master to stop the vessel or proceed to the place that the person may select, and to moor, anchor or remain there for any reasonable period that the person may specify; (b) board the vessel; (c) direct the master to produce any documents relating to any cargo that is being carried or has been carried on the vessel; (d) search the vessel, examine the cargo and direct the master or a member of the crew to open any package or parcel that the person suspects contains articles prescribed for the purposes of subsection (1); and (e) make any other examination or inquiry that the person considers necessary to determine whether subsection (1) is being or has been contravened.
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Power to take vessel
(3) If the person has reasonable grounds to believe that subsection (1) is being or has been contravened, the person may take the vessel to the nearest or most convenient port in order that the alleged contravention may be adjudicated by a court of competent jurisdiction.
Regulations
(4) The Governor in Council may, on the recommendation of the Minister of Transport, make regulations (a) prescribing any territory in which there is a state of war or armed conflict; (b) prescribing anything else that may be prescribed under this section; (c) exempting, in the case of any territory prescribed under paragraph (a), an article or class of articles from the application of this section; and (d) for carrying out the purposes and provisions of this section.
Contraventions
(5) Every person who contravenes subsection (1) or a direction made under paragraph (2)(a) or (c) commits an offence and is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Authorized representative or master
(6) If a person on a vessel commits an offence under this section and the authorized representative or master authorized or acquiesced in the offence, the authorized representative or master is guilty of an offence and liable on conviction to the penalty provided for by this Act in respect of the offence committed by the person whether or not the person has been prosecuted.
PART 13 TRANSITIONAL Decisions that cease to have effect
270. Decisions of the Board of Steamship Inspection that were made under the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, cease to have effect five years after section 26 comes into force.
Marine marchande
Acquired rights — registered vessels
271. (1) Every vessel registered in Canada when Part 2 comes into force is deemed to be registered under that Part until its ownership changes.
Expiry of certificates of registry
(2) A certificate of registry issued under the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, expires no later than February 25, 2003.
Grace period
(3) A vessel that was not required to be registered under the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, and that is required by subsection 46(1) to be registered under Part 2 has two years after that Part comes into force to comply with that requirement.
Acquired rights — licensed vessels
272. Every vessel, other than a pleasure craft, licensed under section 108 of the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, when Part 2 comes into force is deemed to be registered in the small vessel register referred to in subsection 43(1) until (a) the earlier of the date the vessel’s ownership changes and five years after Part 2 comes into force; or (b) in the case of a vessel that was issued a licence under that Act, the expiry date of the licence.
Certificates remain in force
273. Subject to the provisions of this Act or the regulations respecting the suspension or cancellation of Canadian maritime documents, certificates issued under Part II, III or V of the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, remain in force for the purpose for which they were issued.
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Regulations remain in force
274. (1) Regulations made under the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985, other than under any of the provisions listed in section 332 of this Act , remain in force and are deemed to have been made under this Act, in so far as they are not inconsistent with this Act, until they are repealed.
Regulations
(2) The Governor in Council may, on the recommendation of the Minister of Transport or the Minister of Fisheries and Oceans, repeal any regulations referred to in subsection (1).
Validity periods of certificates
(3) Any certificate’s period of validity that is provided for in a regulation referred to in subsection (1) is deemed to have been specified by the Minister under subsection 17(1).
Canadian ships
(4) Every reference to ‘‘Canadian ship’’ or ‘‘Canadian ships’’ in the regulations referred to in subsection (1) shall be read as a reference to ‘‘Canadian vessel’’ or ‘‘Canadian vessels’’, respectively.
Pleasure craft
(5) Every vessel that, immediately before the coming into force of Part 10, was a pleasure craft within the meaning of section 2 of the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1985 (‘‘that Act’’), is deemed to be a pleasure craft within the meaning of section 2 of this Act until the Small Vessel Regulations made under that Act are repealed or the vessel is no longer a pleasure craft within the meaning of section 2 of that Act, whichever occurs first.
Offence
(6) Every person who, or vessel that, contravenes a regulation that is in force under subsection (1) commits an offence and is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.
Marine marchande PART 14 CONSEQUENTIAL AND COORDINATING AMENDMENTS Consequential Amendments
1991, c. 46
Bank Act 275. Subsections 428(5) and (6) of the Bank Act are replaced by the following:
Security on fishing vessels
Effect of registration of security
1998, c. 10
(5) If security has been given to a bank under paragraph 427(1)(o) on a fishing vessel that is recorded or registered under the Canada Shipping Act, 2001, the rights and powers of the bank do not have priority over any rights that are subsequently acquired in the vessel and are recorded or registered under that Act unless a copy of the document giving the security, certified by an officer of the bank to be a true copy, has been recorded or registered under that Act in respect of the vessel before the recording or registration under that Act of those rights. (6) A copy of the document giving the security described in subsection (5), certified by an officer of the bank, may be recorded or registered under the Canada Shipping Act, 2001 as if it were a mortgage given under that Act and, on the recording or registration of the document, the bank, in addition to and without limitation of any other rights or powers vested in or conferred on it, has all the rights and powers in respect of the vessel that it would have if the security were a mortgage recorded or registered under that Act. Canada Marine Act 276. Subsection 56(3) of the Canada Marine Act is replaced by the following:
Consistency
(3) Subject to any regulations made under section 62, practices and procedures established by a port authority under subsection (1) shall not be inconsistent with national standards and practices for marine vessel traffic services, in particular those established under the Canada Shipping Act, 2001.
277. Paragraph 58(2)(f) of the Act is replaced by the following:
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(f) the proximity of a ship navigating in an unsafe manner or with improperly functioning navigation equipment or radio equipment, or without charts or publications required by regulations made under paragraph 120(1)(b) of the Canada Shipping Act, 2001; 278. The portion of subsection 120(1) of the Act before paragraph (a) is replaced by the following: Payment of proceeds
120. (1) If a ship is sold under an order, the proceeds of the sale shall be applied first to satisfy claims for wages of crew members under the Canada Shipping Act, 2001 and then to satisfy the following claims in order of priority: 279. The portion of subsection 122(1) of the Act before paragraph (a) is replaced by the following:
Lien on ships
1987, c. 3
122. (1) A port authority, the Minister or a person who has entered into an agreement under subsection 80(5), as the case may be, has at all times a lien on a ship and on the proceeds of its disposition for an amount owing to the port authority, the Minister or the person, and the lien has priority over all other rights, interests, claims and demands, other than claims for wages of crew members under the Canada Shipping Act, 2001, if the amount is owing in respect of Canada-Newfoundland Atlantic Accord Implementation Act
1992, c. 35, s. 73(1)
280. Subsection 160(1) of the CanadaNewfoundland Atlantic Accord Implementation Act is replaced by the following:
Definition of ‘‘spill’’
160. (1) In sections 161 to 165, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part XVI of the Canada Shipping Act applies.
Marine marchande
1988, c. 28
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
1992, c. 35, s. 110(1)
281. Subsection 165(1) of the CanadaNova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Definition of ‘‘spill’’
165. (1) In sections 166 to 170, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part XVI of the Canada Shipping Act applies.
1996, c. 10
Canada Transportation Act 282. The definition ‘‘export’’ in section 147 of the Canada Transportation Act is replaced by the following:
‘‘export’’ « exportation »
1999, c. 33
‘‘export’’, in respect of grain, means shipment by a vessel, as defined in section 2 of the Canada Shipping Act, 2001, to any destination outside Canada and shipment by any other mode of transport to the United States for use of the grain in that country and not for shipment out of that country;
Canadian Environmental Protection Act, 1999 283. Section 277 of the Canadian Environmental Protection Act, 1999 is repealed.
1989, c. 3
Canadian Transportation Accident Investigation and Safety Board Act 284. Section 61 of the Canadian Transportation Accident Investigation and Safety Board Act is repealed.
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285. Section 6 of the Carriage of Goods by Water Act is replaced by the following: Other statutory limitations of liability
6. Nothing in this Act affects the operation of sections 574 to 583 of the Canada Shipping Act or the operation of any other enactment limiting the liability of the owners of ships or vessels.
R.S., c. C-29
Citizenship Act 286. Paragraph 2(2)(a) of the Citizenship Act is replaced by the following: (a) a person is deemed to be born in Canada if the person is born on a Canadian vessel as defined in section 2 of the Canada Shipping Act, 2001, or on an aircraft registered in Canada under the Aeronautics Act and regulations made under that Act;
R.S., c. C-33
Coastal Fisheries Protection Act
1998, c. 16, s. 29
287. The definition ‘‘Canadian fishing vessel’’ in section 2 of the Coastal Fisheries Protection Act is replaced by the following:
‘‘Canadian fishing vessel’’ « bateau de pêche canadien »
‘‘Canadian fishing vessel’’ means a fishing vessel (a) that is registered or licensed under the Canada Shipping Act, 2001, or (b) that is not registered or licensed under the Canada Shipping Act, 2001 or under the laws of another state but is owned by one or more persons each of whom is (i) a Canadian citizen, (ii) in the case of a vessel that is not required to be registered or licensed under that Act, a person resident and domiciled in Canada, or (iii) a corporation incorporated under the laws of Canada or a province, having its principal place of business in Canada;
Marine marchande
1990, c. 44, s. 18(2)
288. Section 19 of the Act is replaced by the following:
Jurisdiction of courts
19. All courts, justices of the peace and provincial court judges in Canada have the same jurisdiction with respect to offences under this Act as they have under sections 257 and 258 of the Canada Shipping Act, 2001 with respect to offences under that Act, and those sections apply to offences under this Act in the same manner and to the same extent as they apply to offences under the Canada Shipping Act, 2001.
1992, c. 31
Coasting Trade Act
1998, c. 16, s. 30
289. The definitions ‘‘Canadian ship’’, ‘‘master’’ and ‘‘ship’’ in subsection 2(1) of the Coasting Trade Act are replaced by the following:
‘‘Canadian ship’’ « navire canadien »
‘‘Canadian ship’’ means a ship registered or listed under Part 2 of the Canada Shipping Act, 2001 and in respect of which all duties and taxes imposed under the Customs Tariff and the Excise Tax Act have been paid;
‘‘master’’ « capitaine »
‘‘master’’, in relation to a ship, has the same meaning as in section 2 of the Canada Shipping Act, 2001;
‘‘ship’’ « navire »
‘‘ship’’ has the same meaning as ‘‘vessel’’ in section 2 of the Canada Shipping Act, 2001;
290. Paragraph 3(2)(e) of the Act is replaced by the following: (e) engaged, with the approval of a person designated as a pollution prevention officer under section 174 of the Canada Shipping Act, 2001 or authorized under paragraph 11(2)(d) of that Act to carry out inspections, in activities related to a marine pollution emergency, or to a risk of a marine pollution emergency.
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291. Sections 29 and 30 of the Act are repealed. 292. Subsection 31(2) of the Act is repealed. 1992, c. 47 1996, c. 7, s. 7
R.S., c. C-46
Contraventions Act 293. Subsection 17(4) of the Contraventions Act is repealed. Criminal Code 294. Section 44 of the Criminal Code is repealed.
R.S., c. C-50; 1990, c. 8, s. 21
Crown Liability and Proceedings Act
1990, c. 8, s. 22
295. The definition ‘‘Crown ship’’ in section 2 of the Crown Liability and Proceedings Act is replaced by the following:
‘‘Crown ship’’ « navire de l’État »
‘‘Crown ship’’ means a Crown vessel as defined in section 140 of the Canada Shipping Act, 2001; 296. Subsection 5(1) of the Act is replaced by the following:
Civil salvage
5. (1) Subject to subsection (2), the law relating to civil salvage, whether of life or property, applies in relation to salvage services rendered in assisting any Crown ship or aircraft, or in saving life from a Crown ship or aircraft, or in saving any cargo or apparel belonging to the Crown, in the same manner as if the ship, aircraft, cargo or apparel belonged to a private person.
1998, c. 16, s. 32
297. Subsection 6(2) of the Act is replaced by the following:
Ascertaining tonnage of ship
(2) If, for the purposes of any proceedings under this Act, it is necessary to ascertain the tonnage of a ship that has not been determined by a tonnage measurer appointed under section 24 of the Canada Shipping Act, 2001, the tonnage of the ship must be determined by a tonnage measurer appointed under that section. 298. Subsection 7(1) of the Act is replaced by the following:
Marine marchande
Limitation period for salvage proceedings
7. (1) Section 145 of the Canada Shipping Act, 2001 applies in respect of salvage services rendered to Crown ships or aircraft as it applies in respect of salvage services rendered to other ships or aircraft.
R.S., c. 1 (2nd Supp.)
Customs Act 299. The portion of subsection 16(2) of the Customs Act before paragraph (a) is replaced by the following:
Report of wreck and liability for duties
(2) If any wreck that has come into Canada from outside Canada is released to a person under section 158 of the Canada Shipping Act, 2001, that person
R.S., c. F-14
Fisheries Act 300. Subsection 38(7) of the Fisheries Act is replaced by the following:
Inconsistent orders
(7) Any requirement or direction of an inspector under this section that is inconsistent with any direction of a marine safety inspector under the Canada Shipping Act, 2001 is void to the extent of the inconsistency. 301. Subsection 42(7) of the Act is replaced by the following:
Exception
(7) Subsections (1) to (3) do not apply in respect of any deposit of a deleterious substance that, within the meaning of Part 8 or 9 of the Canada Shipping Act, 2001, constitutes a discharge of a pollutant caused by or otherwise attributable to a vessel.
1990, c. 44, s. 18(2)
302. Section 88 of the Act is replaced by the following:
Jurisdiction of courts
88. All courts and justices in Canada have the same jurisdiction with respect to offences under this Act as they have under sections 257 and 258 of the Canada Shipping Act, 2001 with respect to offences under that Act, and those sections apply to offences under this Act in the same manner and to the same extent as they apply to offences under the Canada Shipping Act, 2001.
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R.S., c. F-17
Great Lakes Fisheries Convention Act
1990, c. 44, s. 18(2)
303. Section 6 of the Great Lakes Fisheries Convention Act is replaced by the following:
Jurisdiction of courts
6. All courts, justices of the peace and provincial court judges in Canada have the same jurisdiction with respect to offences under regulations made under section 4 as they have under sections 257 and 258 of the Canada Shipping Act, 2001 with respect to offences under that Act, and those sections apply to offences under regulations made under section 4 in the same manner and to the same extent as they apply to offences under the Canada Shipping Act, 2001.
1990, c. 21
Health of Animals Act 304. Paragraph 20(a) of the Health of Animals Act is replaced by the following: (a) the provisions of the Canada Shipping Act, 2001 respecting inspections authorized under paragraph 11(2)(e) of that Act to be carried out,
R.S., c. L-2
Canada Labour Code
1998, c. 20, s. 29
305. Paragraph 127(2)(a) of the Canada Labour Code is replaced by the following: (a) an aircraft, a vessel, rolling stock or a pipeline, if the accident or incident is being investigated under the Aeronautics Act, the Canada Shipping Act, 2001 or the Canadian Transportation Accident Investigation and Safety Board Act; or
1994, c. 40
Marine Transportation Security Act 306. The definition ‘‘Canadian ship’’ in subsection 2(1) of the Marine Transportation Security Act is replaced by the following:
‘‘Canadian ship’’ « navire canadien »
‘‘Canadian ship’’ means a vessel registered under the Canada Shipping Act, 2001 or registered in Canada before August 1, 1936 under the Merchant Shipping Act, 1894 of the Parliament of the United Kingdom, 57-58 Victoria, chapter 60, and all Acts adding to or amending that Act;
2001 R.S., c. M-6
Marine marchande Merchant Seamen Compensation Act 307. (1) The definitions ‘‘seaman’’ and ‘‘ship’’ in subsection 2(1) of the Merchant Seamen Compensation Act are replaced by the following:
‘‘seaman’’ « marin »
‘‘seaman’’ means every person, except pilots, apprenticed pilots and fishers, employed or engaged on (a) a ship registered in Canada under the Canada Shipping Act, 2001, or (b) a ship chartered by demise to a person resident in Canada or having their principal place of business in Canada, when the ship is engaged in trading on a foreign voyage or on a home-trade voyage, and, if so ordered by the Governor in Council, includes a seaman engaged in Canada and employed on a ship that is registered outside Canada and operated by a person resident in Canada or having their principal place of business in Canada when that ship is so engaged;
‘‘ship’’ « navire »
‘‘ship’’ means a vessel as defined in section 2 of the Canada Shipping Act, 2001.
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: ‘‘foreign voyage’’ « voyage de long cours »
‘‘foreign voyage’’ means a voyage extending beyond the area of a home-trade voyage and not being an inland or minor waters voyage;
‘‘home-trade voyage’’ « voyage de cabotage »
‘‘home-trade voyage’’ means a voyage, not being an inland or minor waters voyage, between places within the following areas, namely, Canada, the United States other than Hawaii, St. Pierre and Miquelon, the West Indies, Mexico, Central America and the northeast coast of South America, in the course of which a ship does not go south of the sixth parallel of north latitude;
‘‘inland voyage’’ « voyage en eaux internes »
‘‘inland voyage’’ means a voyage, not being a minor waters voyage, on the inland waters
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of Canada together with such part of any lake or river forming part of the inland waters of Canada as lies within the United States or on Lake Michigan; ‘‘minor waters of Canada’’ « eaux secondaires du Canada »
‘‘minor waters of Canada’’ means all inland waters of Canada other than Lakes Ontario, Erie, Huron, including Georgian Bay, and Superior and the St. Lawrence River east of a line drawn from Father Point to Point Orient, and includes all bays, inlets and harbours of or on those lakes and Georgian Bay and the sheltered waters on the seacoasts of Canada that the Minister of Transport may specify;
‘‘minor waters voyage’’ « voyage en eaux secondaires »
‘‘minor waters voyage’’ means a voyage within the following limits, namely, the minor waters of Canada together with the part of any lake or river forming part of the minor waters of Canada that lies within the United States;
308. Paragraph 31(1)(c) of the Act is replaced by the following: (c) if the expenses of burial of a seaman are paid by an employer under section 93 of the Canada Shipping Act, 2001 following any accident in respect of which compensation is payable under this Act, the amount of the expenses shall be deducted from the amount payable under paragraphs (a) and (b); 309. Subsection 42(2) of the Act is replaced by the following: No compensation if wages paid
(2) No compensation is payable in respect of the period during which an employer is, under the Canada Shipping Act, 2001, or otherwise, liable for the payment of wages and to defray the expenses of maintenance of an injured seaman. 310. Section 47 of the Act is replaced by the following:
Medical aid under one Act only
47. Notwithstanding anything in this Act, a seaman entitled to medical aid under Part 3 of the Canada Shipping Act, 2001, or under any other Act that provides similar benefits, is not
Marine marchande entitled to medical aid under this Act during the period and to the extent that medical aid is furnished under that Part or that other Act.
R.S., c. N-5
National Defence Act 311. Section 266 of the National Defence Act is repealed.
R.S., c. 15 (4th Supp.)
Non-smokers’ Health Act
1996, c. 10, s. 247
312. Subsection 2(2) of the Non-smokers’ Health Act is replaced by the following:
Application outside Canada
(2) This Act, except section 10, applies outside Canada in respect of a work space on an aircraft, train or motor vehicle being operated between Canada and another country by a Canadian, as defined in section 55 of the Canada Transportation Act, or a work space on a vessel registered or listed under the Canada Shipping Act, 2001 that is being operated between Canada and another country, to the extent that compliance with this Act within the territory of another jurisdiction does not result in the contravention of the laws of that jurisdiction.
1992, c. 39
Northwest Territories Waters Act 313. The portion of the definition ‘‘use’’ in section 2 of the Northwest Territories Waters Act after paragraph (c) is replaced by the following: but does not include a use connected with shipping activities that are governed by the Canada Shipping Act, 2001;
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Canada Ship Nuclear Safety and Control Act
314. Section 54 of the Nuclear Safety and Control Act is repealed. R.S., c. O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
1992, c. 35, s. 22(1)
315. Subsection 24(1) of the Canada Oil and Gas Operations Act is replaced by the following:
Definition of ‘‘spill’’
24. (1) In sections 25 to 28, ‘‘spill’’ means a discharge, emission or escape of oil or gas, other than one that is authorized pursuant to the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part XVI of the Canada Shipping Act applies.
R.S., c. P-14
Pilotage Act 316. Section 2 of the Pilotage Act is replaced by the following:
Definitions
1.1 The definitions in this section apply in this Act.
‘‘apprentice pilot’’ « apprentipilote »
‘‘apprentice pilot’’ means a person who is training to become a licensed pilot.
‘‘licence’’ « brevet »
‘‘licence’’ means a licence issued by an Authority under section 22.
‘‘licensed pilot’’ « pilote breveté »
‘‘licensed pilot’’ means a person who holds a valid licence.
‘‘pilot’’ « pilote »
‘‘pilot’’ means any person who does not belong to a ship and who has the conduct of it.
‘‘ship’’ « navire »
‘‘ship’’ includes any description of vessel or boat used or designed for use in navigation, without regard to method or lack of propulsion.
Marine marchande PART 1 PILOTAGE Interpretation
Definitions
2. The definitions in this section apply in this Part.
‘‘Authority’’ « Administration »
‘‘Authority’’ means a Pilotage Authority established by section 3.
‘‘Canadian waters’’ « eaux canadiennes »
‘‘Canadian waters’’ means the territorial sea of Canada and all internal waters of Canada.
‘‘compulsory pilotage’’ « pilotage obligatoire »
‘‘compulsory pilotage’’ means, in respect of a ship, the requirement that the ship be under the conduct of a licensed pilot or the holder of a pilotage certificate.
‘‘compulsory pilotage area’’ « zone de pilotage obligatoire »
‘‘compulsory pilotage area’’ means an area of water in which ships are subject to compulsory pilotage.
‘‘Minister’’ « ministre » ‘‘pilotage certificate’’ « certificat de pilotage »
‘‘Minister’’ means the Minister of Transport. ‘‘pilotage certificate’’ means a certificate issued by an Authority under section 22.
317. The Act is amended by adding the following after section 53: PART 2 LOWER ST. LAWRENCE PILOTS’ PENSIONS Interpretation Definitions
54. The definitions in this section apply in this Part.
‘‘Authority’’ « Administration »
‘‘Authority’’ means the Laurentian Pilotage Authority.
‘‘CPBSL’’ « CPBSL »
‘‘CPBSL’’ means the Corporation of the Lower St. Lawrence Pilots established by letters patent under Part II of the Canada Corporations Act, chapter 53 of the Revised Statutes of Canada, 1952, as amended by chapter 52 of the Statutes of Canada, 1964-65, a body corporate contracting with the Authority for the services of pilots under this Act, or any
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successor of the Corporation that carries on similar functions. ‘‘CPHQ’’ « CPHQ »
‘‘CPHQ’’ means the Corporation of Pilots for and below the Harbour of Quebec, established by chapter 123 of the Statutes of the Province of Canada, 1860 (23 Vict., c. 123).
‘‘eligible pilot’’ « pilote admissible »
‘‘eligible pilot’’ means a person (a) who became a member of the CPHQ and was licensed by the Authority as a pilot before 1994; or (b) who, on December 31, 1993, was an apprentice pilot and who, during 1994, became a member of the CPHQ and was licensed by the Authority as a pilot.
‘‘fund’’ « Fonds »
‘‘fund’’ means the fund established by chapter 12 of the Statutes of the Province of Lower Canada, 1805 (45 George III, c. 12) and continued by chapter 114 of the Statutes of the Province of Canada, 1848-49 (12 Vict., c. 114), as amended.
‘‘pension plan’’ « régime de pension »
‘‘pension plan’’ means the plan established by the CPHQ for the administration of the fund.
‘‘Société’’ « Société »
‘‘Société’’ means the general partnership composed of the members of the CPBSL and called Les Pilotes du Bas Saint-Laurent, or its successor, and includes any predecessor of the Société that carried on similar functions on behalf of those members.
Part III of Canada Corporations Act
55. (1) The CPHQ is deemed to be a corporation to which section 158 of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applies.
Management of fund
(2) Notwithstanding the provisions of any Act relating to the CPHQ, the CPHQ has, and is deemed to have had at all times, the powers necessary for the administration of the pension plan on behalf of the CPBSL, including the power to
Marine marchande (a) determine and receive the amounts payable into the fund by the CPBSL for the purpose of sustaining the fund; (b) manage and invest moneys paid into the fund; (c) determine the persons eligible to receive benefits from the fund, the amount they are to receive as benefits, when the payments of the benefits are to commence and the frequency of the payments; and (d) pay from the fund the benefits so determined and any amounts required for the management of the fund. Pension Benefits Standards Act, 1985
Application of Act
56. The Pension Benefits Standards Act, 1985 applies in respect of the pension plan and, for that purpose, the CPBSL is deemed to be the employer of eligible pilots and the administrator of the plan, and eligible pilots are deemed to be employees of the CPBSL. Income Tax Act
Status of CPHQ
57. For the purposes of paragraph 149(1)(o.1) of the Income Tax Act, the CPHQ is deemed to have been incorporated solely for the administration of a registered pension plan within the meaning of that Act and to have operated at all times solely for that purpose.
Taxation of pension contributions
58. For any taxation year in respect of which the pension plan is a registered pension plan for the purposes of the Income Tax Act, sums paid into the fund by the CPBSL shall not be included in the income of an eligible pilot or in the income of the Société for the purposes of that Act.
Provisions re registered pension plans
59. (1) For the purposes of the provisions of the Income Tax Act and the Income Tax Regulations that relate to registered pension plans, (a) the CPBSL is deemed to have been the employer of an eligible pilot and an eligible pilot is deemed to have been an employee of the CPBSL throughout any period, either before or after the coming into force of this Part, during which the eligible pilot was a
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Canada Ship
member of the CPBSL and held a pilot’s licence from the Authority, whether suspended or not, or served as an apprentice pilot to obtain a pilot’s licence for District No. 2 designated by the Authority; (b) an eligible pilot is deemed to have been employed and to have rendered services on a full-time basis throughout any year if the number of pilotage tours credited to the pilot for the year is not less than 90 % of the average number of tours for pilots in the year, determined by the Société on the basis of the total number of paid tours for pilots in the year, and is otherwise deemed to have been employed and to have been rendering services on a part-time basis throughout the year, with the proportion of full-time service being determined as the proportion of the number of tours so credited to the average number of tours for pilots; (c) any period authorized by the CPBSL during which an eligible pilot was not available to perform services as a pilot, otherwise than by reason of illness or disability for more than 12 months, is deemed to be a period throughout which the pilot did not render services to the CPBSL by reason of leave of absence; (d) the period of employment of an eligible pilot by the CPBSL includes any period before 1994 during which the pilot (i) was enrolled at the Institut de Marine de Rimouski or any other educational institution accredited by the Authority, or (ii) served as an officer of a ship, to the extent that the period was credited under the pension plan before 1994; (e) the fees paid to an eligible pilot by the Société, either before or after the coming into force of this Part, are deemed to have been paid by the CPBSL and to be remuneration of the eligible pilot and, for the purposes of section 147.1 of the Income Tax Act, to be part of the pilot’s compensation; (f) any amount paid to the fund by the CPBSL is deemed to be a contribution made by the CPBSL and not by an eligible pilot;
Marine marchande (g) the pension plan is deemed to be a grandfathered plan; (h) for the purposes of paragraph 8503(3)(e) and subsection 8509(3) of the Income Tax Regulations, all benefits provided under the pension plan in respect of periods before 1992 are deemed to be acceptable to the Minister of National Revenue to the extent that (i) the periods were credited under the pension plan before 1994, and (ii) the benefits could have been provided under the terms of the pension plan as they read at the end of 1993; (i) subsection 8504(6) of the Income Tax Regulations does not apply in respect of benefits credited under the pension plan before 1994; (j) the past service pension adjustment (PSPA) of an eligible pilot with respect to the CPBSL for the year in which this Part comes into force shall be determined as if the eligible pilot’s provisional PSPA with respect to the CPBSL that is associated with the registration of the pension plan under section 147.1 of the Income Tax Act were nil, to the extent that the provisional PSPA relates to benefits provided under the pension plan in respect of years after 1993; (k) for each particular year that is after 1993 and before 1998, (i) the pension adjustment of an eligible pilot with respect to the CPBSL shall be determined as if the pension plan had been a registered pension plan in that particular year and as if all benefits provided to the pilot for that particular year had accrued on a current-service basis, and (ii) information returns reporting the pension adjustment so determined must have been filed, not later than September 9, 1998, with the Minister of National Revenue in the form and manner authorized by that Minister; (l) if the pension plan is registered under section 147.1 of the Income Tax Act within
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120 days, or any longer period that is acceptable to the Minister of National Revenue, after June 11, 1998, the assets of the fund are deemed to have been transferred to the fund from a registered pension plan; (m) the CPHQ shall assume the obligations of the employer under Part LXXXIV of the Income Tax Regulations with respect to eligible pilots; and (n) the requirement of certification under paragraph 147.1(10)(a) of the Income Tax Act does not apply in relation to benefits provided under the pension plan before 1994 in respect of the years 1990, 1991, 1992 and 1993.
Additional benefits
(2) For greater certainty, paragraph (1)(h) does not apply so as to prevent additional benefits from being provided, by way of an amendment to the pension plan after 1993, in respect of the periods referred to in subparagraph (1)(h)(i).
Part X.1 tax
(3) For the purposes of Part X.1 of the Income Tax Act, the cumulative excess amount of an eligible pilot in respect of registered retirement savings plans at any time before July, 1998 shall be determined as if each of the following amounts were nil: (a) any pension adjustment of the pilot referred to in paragraph (1)(k); and (b) the pilot’s provisional PSPA, within the meaning of the Income Tax Regulations, with respect to the CPBSL that is associated with the registration of the pension plan under section 147.1 of the Income Tax Act.
Marine marchande Regulations
Regulations
60. The Governor in Council, on the recommendation of the Minister of Finance, may make regulations for carrying out the purposes and provisions of this Part. 318. The Act is amended by replacing the word ‘‘Act’’ with the word ‘‘Part’’ in the following provisions: (a) subsection 14(3); (b) subsection 26(1); (c) the portion of section 41 before paragraph (a); (d) paragraph 48(a); and (e) sections 49 to 51.
R.S., c. S-9
Canada Shipping Act
1998, c. 16, s. 3
319. Subsection 52(3) of the Canada Shipping Act is replaced by the following:
Exemption from registration
(3) Ships exempt from registration under this Act before this Part comes into force continue to be exempt until two years or, in the case of a pleasure craft, six years after this Part comes into force.
R.S., c. 6 (3rd Supp.), s. 84
320. The definition ‘‘pollutant’’ in section 673 of the Act is replaced by the following:
‘‘pollutant’’ « polluant »
‘‘pollutant’’ means (a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans, and (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or a plant that is useful to humans,
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and includes oil and any substance or class of substances identified by the regulations as a pollutant for the purposes of this Part; 1992, c. 40
Yukon Waters Act 321. The portion of the definition ‘‘use’’ in section 2 of the Yukon Waters Act after paragraph (c) is replaced by the following: but does not include a use connected with shipping activities that are governed by the Canada Shipping Act, 2001;
Coordinating Amendments Bill C-10
322. (1) If Bill C-10, introduced in the 1st session of the 37th Parliament and entitled the Canada National Marine Conservation Areas Act (the ‘‘other Act’’), receives royal assent, then the provisions mentioned in subsections (2) to (4) are amended as provided in those subsections. (2) On the later of the coming into force of section 1 of this Act and subsection 16(3) of the other Act, subsection 16(3) of the other Act is replaced by the following:
Marine matters
(3) Regulations under this section that restrict or prohibit marine navigation or activities related to marine safety, to the extent that such regulations can be made on the recommendation of the Minister of Transport under the Canada Shipping Act, 2001 or the Arctic Waters Pollution Prevention Act, may only be made on the recommendation of the Minister and the Minister of Transport.
(3) On the later of the coming into force of section 1 of this Act and subsection 16(5) of the other Act, subsection 16(5) of the other Act is replaced by the following:
2001 Conflicts
Marine marchande (5) Regulations referred to in subsection (2), (3) or (4) prevail over regulations made under the Fisheries Act, the Coastal Fisheries Protection Act, the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act, the Navigable Waters Protection Act or the Aeronautics Act to the extent of any conflict between them. (4) On the later of the coming into force of section 1 of this Act and subsection 29(4) of the other Act, subsection 29(4) of the other Act is replaced by the following:
Exception
(4) No measures may be directed to be taken under subsection (2) to prevent or mitigate any degradation or injury if action may be taken under the Canada Shipping Act, 2001, the Arctic Waters Pollution Prevention Act or the Canadian Environmental Protection Act, 1999, to prevent or mitigate the same degradation or injury.
Bill C-11
323. (1) If Bill C-11, introduced in the 1st session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (referred to in this section as the ‘‘other Act’’), receives royal assent, then the provisions mentioned in subsections (2) to (4) are amended as provided in those subsections. (2) If the heading before section 216 and sections 216 to 218 of the other Act are not in force when section 1 of this Act comes into force, then the heading before section 216 and sections 216 to 218 of the other Act are replaced by the following: Canada Shipping Act, 2001 216. Paragraph (a) of the definition ‘‘qualified person’’ in section 2 of the Canada Shipping Act, 2001 is replaced by the following: (a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or 217. Subsection 88(1) of the Act is replaced by the following:
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Eligibility
88. (1) Only a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may hold a certificate of competency that is issued under this Part.
R.S., c. S-9
Canada Shipping Act
R.S., c. 6 (3rd Supp.), s. 84
218. Subparagraph 712(3)(b)(i) of the Canada Shipping Act is replaced by the following: (i) are Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, in the case of an individual, or
(3) If paragraph (a) of the definition ‘‘qualified person’’ in section 2 of this Act is not in force when section 1 of the other Act comes into force, then that paragraph is replaced by the following: (a) a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act; or (4) If subsection 88(1) of this Act is not in force when section 1 of the other Act comes into force, then that subsection is replaced by the following: Eligibility
88. (1) Only a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act may hold a certificate of competency that is issued under this Part.
Bill S-2
324. (1) If Bill S-2, introduced in the 1st session of the 37th Parliament and entitled the Marine Liability Act (the ‘‘other Act’’), receives royal assent, then the provisions mentioned in subsections (2) to (11) are amended as provided in those subsections. (2) On the later of the coming into force of section 105 of this Act and subsections 29(1) and (2) of the other Act, subsections 29(1) and (2) of the other Act are replaced by the following:
2001 Passenger claims, no Canadian maritime document
Marine marchande 29. (1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship for which no Canadian maritime document is required under Part 4 of the Canada Shipping Act, 2001 is the greater of (a) 2,000,000 units of account, and (b) the number of units of account calculated by multiplying 175,000 units of account by the number of passengers on board the ship.
Passenger claims, no contract of carriage
(2) Notwithstanding Article 6 of the Convention, the maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on a ship otherwise than under a contract of passenger carriage is the greater of (a) 2,000,000 units of account, and (b) 175,000 units of account multiplied by (i) the number of passengers that the ship is authorized to carry according to its certificate under Part 4 of the Canada Shipping Act, 2001, or (ii) if no certificate is required under that Part, the number of persons on board the ship.
(3) On the later of the coming into force of section 250 of this Act and section 42 of the other Act, section 42 of the other Act is replaced by the following: Other statutory limitations of liability
42. Nothing in this Part affects the operation of any other Part of this Act, or section 250 of the Canada Shipping Act, 2001, or a provision of any other Act or regulation that limits the liability of owners of ships.
(4) On the later of the coming into force of section 165 of this Act and subsection 51(1) of the other Act, subparagraph 51(1)(b)(ii) of the other Act is replaced by the following:
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Canada Ship (ii) a response organization within the meaning of section 165 of the Canada Shipping Act, 2001,
(5) On the later of the coming into force of section 180 of this Act and subsection 51(1) of the other Act, subparagraphs 51(1)(c)(i) and (ii) of the other Act are replaced by the following: (i) by the Minister of Fisheries and Oceans in respect of measures taken under paragraph 180(1)(a) of the Canada Shipping Act, 2001, in respect of any monitoring under paragraph 180(1)(b) of that Act or in relation to any direction given under paragraph 180(1)(c) of that Act, or (ii) by any other person in respect of measures the person was directed to take or refrain from taking under paragraph 180(1)(c) of the Canada Shipping Act, 2001, (6) On the later of the coming into force of section 11 of this Act and subsection 103(2) of the other Act, subsection 103(2) of the other Act is replaced by the following:
Detention of ship
(2) A marine safety inspector who is authorized under paragraph 11(2)(d) of the Canada Shipping Act, 2001 to carry out inspections under section 211 of that Act and who has reasonable grounds for believing that an offence under subsection (1) has been committed in respect of a ship may make a detention order in respect of that ship, and
Marine marchande section 222 of that Act applies to the detention order with any modifications that the circumstances require. (7) On the later of the coming into force of section 250 of this Act and section 130 of the other Act, section 250 of this Act is replaced by the following:
Responsibility for goods
250. Subject to Part 5 of the Marine Liability Act, carriers must use due care and diligence in the safe-keeping and punctual conveyance of goods delivered to them for carriage by water.
(8) On the later of the coming into force of section 280 of this Act and section 110 of the other Act, subsection 160(1) of the Canada-Newfoundland Atlantic Accord Implementation Act is replaced by the following: Definition of ‘‘spill’’
160. (1) In sections 161 to 165, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part 6 of the Marine Liability Act applies.
(9) On the later of the coming into force of section 281 of this Act and section 111 of the other Act, subsection 165(1) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following: Definition of ‘‘spill’’
165. (1) In sections 166 to 170, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part 6 of the Marine Liability Act applies.
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(10) On the later of the coming into force of section 315 of this Act and section 117 of the other Act, subsection 24(1) of the Canada Oil and Gas Operations Act is replaced by the following: Definition of ‘‘spill’’
24. (1) In sections 25 to 28, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a vessel to which Part 8 or 9 of the Canada Shipping Act, 2001 applies or a ship to which Part 6 of the Marine Liability Act applies.
(11) On the later of the coming into force of section 180 of this Act and sections 126 and 127 of the other Act, the heading before section 673 and sections 673 to 676 of the Canada Shipping Act are repealed.
PART 15 R.S., c. 17 (3rd Supp.)
AMENDMENTS TO THE SHIPPING CONFERENCES EXEMPTION ACT, 1987
1992, c. 1, s. 128
325. Subsection 2(2) of the Shipping Conferences Exemption Act, 1987 is replaced by the following:
Filing of documents
(2) For the purposes of this Act, a document may be filed with or given to the Agency in paper form or electronic form, and is deemed not to have been filed with or given to the Agency until it has actually been received by the Agency. 326. (1) Paragraphs 4(3)(a) to (c) of the Act are replaced by the following: (a) provides that any member of the conference may, after giving to the other members of the conference five days written notice, or such lesser number of days written notice as may be specified in the conference
Marine marchande agreement, of the member’s intention to do so, take independent action; (b) provides that, when a member of the conference gives notice as described in paragraph (a), any other member of the conference may, after giving to the other members of the conference notice in writing of the member’s intention to do so, take the same independent action as soon as the first independent action becomes effective; and (c) provides that, when a member of the conference gives notice as described in paragraph (a), the members of the conference shall publish or cause to be published the new rate or service item in a tariff not later than five days after the day on which the notice is received by the members of the conference. (2) Section 4 of the Act is amended by adding the following after subsection (3):
Exception re service contracts
(3.1) The terms and conditions established by a conference agreement under paragraph (1)(c) shall not have the effect of preventing a member of the conference from negotiating or entering into a service contract on terms and conditions that the member considers appropriate and without having to give notice to the other members or having to divulge the terms and conditions of the contract. 327. (1) Paragraph 6(1)(b) of the Act is replaced by the following: (b) a copy of every service contract to which the member is a party, except a service contract referred to in subsection 4(3.1); (2) Subsection 6(1) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (c) and by replacing paragraphs (d) to (f) with the following: (d) a copy of each standard form of loyalty contract approved by the members of the conference, and of every amendment to such a standard form of loyalty contract. (3) Subsection 6(2) of the Act is repealed.
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328. Section 7 of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (c) and by replacing paragraphs (d) and (e) with the following: (d) paragraph 6(1)(d) shall be filed with the Agency not later than the day on which the standard form of loyalty contract becomes effective or, in the case of an amendment to that standard form, not later than thirty days after the day on which the amendment becomes effective.
1992, c. 1, s. 126
329. Sections 18 and 19 of the Act are replaced by the following:
Office in Canada
18. Members of a conference shall maintain jointly an office in that region of Canada where they operate. INSPECTION OF DOCUMENTS
Availability of certain documents
19. (1) Members of a conference shall collectively make available to the public, in electronic form at all times, and at the conference’s offices during regular business hours, for inspection or for purchase at a reasonable price, copies of (a) all documents in force, other than service contracts, that have been filed pursuant to section 6; (b) all tariffs in force; and (c) all notices in force that have been given pursuant to section 9 or 10.
Inspection at member’s office
Contents of tariff
(2) Every member of a conference shall make available to the public for inspection, at all that member’s principal offices in Canada during regular business hours, copies of all tariffs in force and of all notices that have been given pursuant to section 10 relating to an amendment to such a tariff. (3) Each tariff shall set out (a) the rates that may be assessed by a member of a conference who uses the tariff in connection with the transportation of goods other than the rates that may be assessed by that member under any service contract; (b) the places from and to which every rate referred to in paragraph (a) applies;
Marine marchande (c) every rule and regulation that in any way determines the calculation of any rate set out in the tariff or affects or alters any term or condition for the transportation of goods; and (d) the address of the office maintained pursuant to section 18 to which communications respecting the tariff or negotiation of rates with the members of the conference may be directed. 330. Subsection 24(1) of the Act is replaced by the following:
Non-compliance with Act or regulations
24. (1) If a member of a conference fails to comply with an obligation imposed on the member by this Act or the regulations, that member is guilty of an offence punishable on summary conviction and liable to a fine not exceeding $10,000 for each offence. PART 16
1999, c. 33
AMENDMENTS TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999 331. (1) The definition ‘‘engine’’ in section 149 of the Canadian Environmental Protection Act, 1999 is replaced by the following:
‘‘engine’’ « moteur »
‘‘engine’’ means any prescribed internal combustion engine, but does not include (a) an engine designed to propel an aircraft as defined in subsection 3(1) of the Aeronautics Act; (b) an engine designed to propel rolling stock as defined in section 6 of the Canada Transportation Act; or (c) a marine compression-ignition engine that is rated at 37 kW or more and is designed to propel a vessel. (2) Paragraph (c) of the definition ‘‘vehicle’’ in section 149 of the Act is replaced by the following: (c) a vessel that is fitted, for the purpose of propulsion, with a marine compression-ignition engine that is rated at 37 kW or more.
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(3) Section 149 of the Act is amended by adding the following in alphabetical order: ‘‘vessel’’ « bâtiment »
‘‘vessel’’ means a boat, ship or craft designed, used or capable of being used solely or partly for navigation in, on, through or immediately above water.
PART 17 REPEALS AND COMING INTO FORCE
Repeals Repeal of certain provisions of R.S., c. S-9
332. The provisions of the Canada Shipping Act, other than sections 565 to 567, 571 and 572, the heading before section 574, sections 574 to 583, Part XIV, the heading before section 677 and sections 677, 677.1, 679 to 723 and 724 to 727, are repealed on a day or days to be fixed by order of the Governor in Council.
Repeal
333. The Maritime Code Act, chapter 41 of the Statutes of Canada, 1977-78, is repealed. Coming into Force
Coming into force
334. (1) The provisions of this Act, other than sections 319 and 322 to 332, come into force on a day or days to be fixed by order of the Governor in Council.
Shipping Conferences Exemption Act, 1987
(2) Sections 325 to 330 come into force on the ninetieth day after this Act is assented to.
Marine marchande du Can
SCHEDULE 1 (Sections 2 and 21, subsection 29(1), sections 30 and 31, paragraph 35(1)(d) and subsections 108(2), 110(1) and 227(1)) INTERNATIONAL CONVENTIONS AND PROTOCOLS — MINISTER OF TRANSPORT 1.
Minimum Age (Sea) Convention, 1920
2. Unemployment Indemnity (Shipwreck) Convention, 1920
3. Medical Examination of Young Persons (Sea) Convention, 1921
4. Minimum Age (Trimmers and Stokers), 1921
5. Marking of Weight (Packages Transported by Vessels) Convention, 1926
6. Seaman’s Articles of Agreement Convention, 1926
7. Protection of Accidents (Dockers) Convention (revised), 1932
8. Minimum Age (Sea) Convention (Revised), 1936
9. Certification of Able Seamen Convention, 1946
10. Certification of Ships’ Cooks Convention, 1946
11. Food and Catering (Ship’s Crews) Convention, 1946
12. Medical Examination (Seafarers) Convention, 1946
13. Seafarers’ Identity Documents Convention 1958
14. Convention on Facilitation of International Maritime Traffic, 1965
15. International Convention on Load Lines, 1966
16. International Convention on Tonnage Measurement of Ships, 1969
17. Convention on the International Regulations for Preventing Collisions at Sea, 1972
18. International Convention for the Prevention of Pollution from Ships, 1973
19. International Convention for the Safety of Life At Sea of 1974
20. Convention on the International Maritime Satellite Organization (INMARSAT), 1976
21. Merchant Shipping (Minimum Standards) Convention, 1976
22. International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978
23. Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships
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24. Protocol of 1978 relating to the International Convention for the Safety of Life At Sea of 1974
25. Convention for the Suppression of Unlawful Act Against the Safety of Maritime Navigation, 1988
26. Protocol of 1988 relating to the International Convention for the Safety of Life At Sea of 1974
27. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf
28. Protocol of 1988 relating to the International Convention on Load Lines, 1966
29. International Convention on Oil Pollution Preparedness Response and Cooperation, 1990
30. Protocol of 1997 relating to the International Convention for the Prevention of Pollution from Ships
Marine marchande du Can SCHEDULE 2 (Subsection 29(2), sections 30 and 31 and paragraph 35(3)(a))
INTERNATIONAL CONVENTIONS AND PROTOCOLS — MINISTER OF FISHERIES AND OCEANS 1.
International Convention on Maritime Search and Rescue, 1979
2. International Convention on Oil Pollution Preparedness Response and Cooperation, 1990
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SCHEDULE 3 (Subsection 142(1) and paragraph 150(1)(b)) SALVAGE PART 1 INTERNATIONAL CONVENTION ON SALVAGE, 1989 THE STATES PARTIES TO THE PRESENT CONVENTION, RECOGNIZING the desirability of determining by agreement uniform international rules regarding salvage operations, NOTING that substantial developments, in particular the increased concern for the protection of the environment, have demonstrated the need to review the international rules presently contained in the Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea, done at Brussels, 23 September 1910, CONSCIOUS of the major contribution which efficient and timely salvage operations can make to the safety of vessels and other property in danger and to the protection of the environment, CONVINCED of the need to ensure that adequate incentives are available to persons who undertake salvage operations in respect of vessels and other property in danger, HAVE AGREED as follows: CHAPTER I - GENERAL PROVISIONS Article 1 Definitions For the purpose of this Convention: (a) Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever. (b) Vessel means any ship or craft, or any structure capable of navigation. (c) Property means any property not permanently and intentionally attached to the shoreline and includes freight at risk. (d) Damage to the environment means substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents. (e) Payment means any reward, remuneration or compensation due under this Convention. (f) Organization means the International Maritime Organization. (g) Secretary-General means the Secretary-General of the Organization.
Marine marchande du Can Article 2 Application of the Convention
This Convention shall apply whenever judicial or arbitral proceedings relating to matters dealt with in this Convention are brought in a State Party. Article 3 Platforms and drilling units This Convention shall not apply to fixed or floating platforms or to mobile offshore drilling units when such platforms or units are on location engaged in the exploration, exploitation or production of sea-bed mineral resources. Article 4 State-owned vessels 1 Without prejudice to article 5, this Convention shall not apply to warships or other non-commercial vessels owned or operated by a State and entitled, at the time of salvage operations, to sovereign immunity under generally recognized principles of international law unless that State decides otherwise. 2 Where a State Party decides to apply the Convention to its warships or other vessels described in paragraph 1, it shall notify the Secretary-General thereof specifying the terms and conditions of such application. Article 5 Salvage operations controlled by public authorities 1 This Convention shall not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities. 2 Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations. 3 The extent to which a public authority under a duty to perform salvage operations may avail itself of the rights and remedies provided for in this Convention shall be determined by the law of the State where such authority is situated. Article 6 Salvage contracts 1 This Convention shall apply to any salvage operations save to the extent that a contract otherwise provides expressly or by implication.
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2 The master shall have the authority to conclude contracts for salvage operations on behalf of the owner of the vessel. The master or the owner of the vessel shall have the authority to conclude such contracts on behalf of the owner of the property on board the vessel. 3 Nothing in this article shall affect the application of article 7 nor duties to prevent or minimize damage to the environment. Article 7 Annulment and modification of contracts A contract or any terms thereof may be annulled or modified if: (a) the contract has been entered into under undue influence or the influence of danger and its terms are inequitable; or (b) the payment under the contract is in an excessive degree too large or too small for the services actually rendered.
CHAPTER II - PERFORMANCE OF SALVAGE OPERATIONS Article 8 Duties of the salvor and of the owner and master 1 The salvor shall owe a duty to the owner of the vessel or other property in danger: (a) to carry out the salvage operations with due care; (b) in performing the duty specified in subparagraph (a), to exercise due care to prevent or minimize damage to the environment; (c) whenever circumstances reasonably require, to seek assistance from other salvors; and (d) to accept the intervention of other salvors when reasonably requested to do so by the owner or master of the vessel or other property in danger; provided however that the amount of his reward shall not be prejudiced should it be found that such a request was unreasonable. 2 The owner and master of the vessel or the owner of other property in danger shall owe a duty to the salvor: (a) to co-operate fully with him during the course of the salvage operations; (b) in so doing, to exercise due care to prevent or minimize damage to the environment; and (c) when the vessel or other property has been brought to a place of safety, to accept redelivery when reasonably requested by the salvor to do so.
Marine marchande du Can Article 9 Rights of coastal States
Nothing in this Convention shall affect the right of the coastal State concerned to take measures in accordance with generally recognized principles of international law to protect its coastline or related interests from pollution or the threat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences, including the right of a coastal State to give directions in relation to salvage operations. Article 10 Duty to render assistance 1 Every master is bound, so far as he can do so without serious danger to his vessel and persons thereon, to render assistance to any person in danger of being lost at sea. 2 The States Parties shall adopt the measures necessary to enforce the duty set out in paragraph 1. 3 The owner of the vessel shall incur no liability for a breach of the duty of the master under paragraph 1. Article 11 Co-operation A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provisions of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general. CHAPTER III - RIGHTS OF SALVORS Article 12 Conditions for reward 1 Salvage operations which have had a useful result give right to a reward. 2 Except as otherwise provided, no payment is due under this Convention if the salvage operations have had no useful result. 3 This chapter shall apply, notwithstanding that the salved vessel and the vessel undertaking the salvage operations belong to the same owner.
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Canada Shipping, 2 Article 13
Criteria for fixing the reward 1 The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below: (a) the salved value of the vessel and other property; (b) the skill and efforts of the salvors in preventing or minimizing damage to the environment; (c) the measure of success obtained by the salvor; (d) the nature and degree of the danger; (e) the skill and efforts of the salvors in salving the vessel, other property and life; (f) the time used and expenses and losses incurred by the salvors; (g) the risk of liability and other risks run by the salvors or their equipment; (h) the promptness of the services rendered; (i) the availability and use of vessels or other equipment intended for salvage operations; (j) the state of readiness and efficiency of the salvor’s equipment and the value thereof. 2 Payment of a reward fixed according to paragraph 1 shall be made by all of the vessel and other property interests in proportion to their respective salved values. However, a State Party may in its national law provide that the payment of a reward has to be made by one of these interests, subject to a right of recourse of this interest against the other interests for their respective shares. Nothing in this article shall prevent any right of defence. 3 The rewards, exclusive of any interest and recoverable legal costs that may be payable thereon, shall not exceed the salved value of the vessel and other property. Article 14 Special compensation 1 If the salvor has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under article 13 at least equivalent to the special compensation assessable in accordance with this article, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses as herein defined.
Marine marchande du Can
2 If, in the circumstances set out in paragraph 1, the salvor by his salvage operations has prevented or minimized damage to the environment, the special compensation payable by the owner to the salvor under paragraph 1 may be increased up to a maximum of 30 % of the expenses incurred by the salvor. However, the tribunal, if it deems it fair and just to do so and bearing in mind the relevant criteria set out in article 13, paragraph 1, may increase such special compensation further, but in no event shall the total increase be more than 100 % of the expenses incurred by the salvor. 3 Salvor’s expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses reasonably incurred by the salvor in the salvage operation and a fair rate for equipment and personnel actually and reasonably used in the salvage operation, taking into consideration the criteria set out in article 13, paragraph 1(h), (i) and (j). 4 The total special compensation under this article shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salvor under article 13. 5 If the salvor has been negligent and has thereby failed to prevent or minimize damage to the environment, he may be deprived of the whole or part of any special compensation due under this article. 6 Nothing in this article shall affect any right of recourse on the part of the owner of the vessel. Article 15 Apportionment between salvors 1 The apportionment of a reward under article 13 between salvors shall be made on the basis of the criteria contained in that article. 2 The apportionment between the owner, master and other persons in the service of each sailing vessel shall be determined by the law of the flag of that vessel. If the salvage has not been carried out from a vessel, the apportionment shall be determined by the law governing the contract between the salvor and his servants. Article 16 Salvage of persons 1 No remuneration is due from persons whose lives are saved, but nothing in this article shall affect the provisions of national law on this subject. 2 A salvor of human life, who has taken part in the services rendered on the occasion of the accident giving rise to salvage, is entitled to a fair share of the payment awarded to the salvor for salving the vessel or other property or preventing or minimizing damage to the environment.
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Canada Shipping, 2 Article 17
Services rendered under existing contracts No payment is due under the provisions of this Convention unless the services rendered exceed what can be reasonably considered as due performance of a contract entered into before the danger arose. Article 18 The effect of salvor’s misconduct A salvor may be deprived of the whole or part of the payment due under this Convention to the extent that salvage operations have become necessary or more difficult because of fault or neglect on his part or if the salvor has been guilty of fraud or other dishonest conduct. Article 19 Prohibition of salvage operations Services rendered notwithstanding the express and reasonable prohibition of the owner or master of the vessel or the owner of any other property in danger which is not and has not been on board the vessel shall not give rise to payment under this Convention. CHAPTER IV - CLAIMS AND ACTIONS Article 20 Maritime lien 1 Nothing in this Convention shall affect the salvor’s maritime lien under any international convention or national law. 2 The salvor may not enforce his maritime lien when satisfactory security for his claim, including interest and costs, has been duly tendered or provided. Article 21 Duty to provide security 1 Upon the request of the salvor a person liable for payment due under this Convention shall provide satisfactory security for the claim, including interest and costs of the salvor. 2 Without prejudice to paragraph 1, the owner of the salved vessel shall use his best endeavours to ensure that the owners of the cargo provide satisfactory security for the claims against them including interest and costs before the cargo is released.
Marine marchande du Can
3 The salved vessel and other property shall not, without the consent of the salvor, be removed from the port or place at which they first arrive after the completion of the salvage operations until satisfactory security has been put up for the salvor’s claim against the relevant vessel or property. Article 22 Interim payment 1 The tribunal having jurisdiction over the claim of the salvor may, by interim decision, order that the salvor shall be paid on account such amount as seems fair and just, and on such terms including terms as to security where appropriate, as may be fair and just according to the circumstances of the case. 2 In the event of an interim payment under this article the security provided under article 21 shall be reduced accordingly. Article 23 Limitation of actions 1 Any action relating to payment under this Convention shall be time-barred if judicial or arbitral proceedings have not been instituted within a period of two years. The limitation period commences on the day on which the salvage operations are terminated. 2 The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration to the claimant. This period may in the like manner be further extended. 3 An action for indemnity by a person liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs, if brought within the time allowed by the law of the State where proceedings are instituted. Article 24 Interest The right of the salvor to interest on any payment due under this Convention shall be determined according to the law of the State in which the tribunal seized of the case is situated. Article 25 State-owned cargoes Unless the State owner consents, no provision of this Convention shall be used as a basis for the seizure, arrest or detention by any legal process of, nor for any proceedings in rem against, non-commercial cargoes owned by a State and entitled, at the time of the salvage operations, to sovereign immunity under generally recognized principles of international law.
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Canada Shipping, 2 Article 26 Humanitarian cargoes
No provision of this Convention shall be used as a basis for the seizure, arrest or detention of humanitarian cargoes donated by a State, if such State has agreed to pay for salvage services rendered in respect of such humanitarian cargoes. Article 27 Publication of arbitral awards States Parties shall encourage, as far as possible and with the consent of the parties, the publication of arbitral awards made in salvage cases. CHAPTER V - FINAL CLAUSES Article 28 Signature, ratification, acceptance, approval and accession 1 This Convention shall be open for signature at the Headquarters of the Organization from 1 July 1989 to 30 June 1990 and shall thereafter remain open for accession. 2 States may express their consent to be bound by this Convention by: (a) signature without reservation as to ratification, acceptance or approval; or (b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or (c) accession. 3 Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Secretary-General. Article 29 Entry into force 1 This Convention shall enter into force one year after the date on which 15 States have expressed their consent to be bound by it. 2 For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect one year after the date of expression of such consent.
Marine marchande du Can Article 30 Reservations
1 Any State may, at the time of signature, ratification, acceptance, approval or accession, reserve the right not to apply the provisions of this Convention: (a) when the salvage operation takes place in inland waters and all vessels involved are of inland navigation; (b) when the salvage operations take place in inland waters and no vessel is involved; (c) when all interested parties are nationals of that State; (d) when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the sea-bed.
2 Reservations made at the time of signature are subject to confirmation upon ratification, acceptance or approval. 3 Any State which has made a reservation to this Convention may withdraw it at any time by means of a notification addressed to the Secretary-General. Such withdrawal shall take effect on the date the notification is received. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date the notification is received by the Secretary-General, the withdrawal shall take effect on such later date. Article 31 Denunciation 1 This Convention may be denounced by any State Party at any time after the expiry of one year from the date on which this Convention enters into force for that State. 2 Denunciation shall be effected by the deposit of an instrument of denunciation with the Secretary-General. 3 A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after the receipt of the instrument of denunciation by the Secretary-General. Article 32 Revision and amendment 1 A conference for the purpose of revising or amending this Convention may be convened by the Organization.
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2 The Secretary-General shall convene a conference of the States Parties to this Convention for revising or amending the Convention, at the request of eight States Parties, or one fourth of the States Parties, whichever is the higher figure. 3 Any consent to be bound by this Convention expressed after the date of entry into force of an amendment to this Convention shall be deemed to apply to the Convention as amended. Article 33 Depositary 1 This Convention shall be deposited with the SecretaryGeneral. 2 The Secretary-General shall: (a) inform all States which have signed this Convention or acceded thereto, and all Members of the Organization, of: (i) each new signature or deposit of an instrument of ratification, acceptance, approval or accession together with the date thereof; (ii) the date of the entry into force of this Convention; (iii) the deposit of any instrument of denunciation of this Convention together with the date on which it is received and the date on which the denunciation takes effect; (iv) any amendment adopted in conformity with article 32; (v) the receipt of any reservation, declaration or notification made under this Convention; (b) transmit certified true copies of this Convention to all States which have signed this Convention or acceded thereto.
3 As soon as this Convention enters into force, a certified true copy thereof shall be transmitted by the Depositary to the Secretary-General of the United Nations for registration and publication in accordance with Article 102 of the Charter of the United Nations. Article 34 Languages This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic. IN WITNESS WHEREOF the undersigned being duly authorized by their respective Governments for that purpose have signed this Convention. DONE AT LONDON this twenty-eighth day of April one thousand nine hundred and eighty-nine.
Marine marchande du Can ATTACHMENT 1
Common Understanding concerning Articles 13 and 14 of the International Convention on Salvage, 1989 It is the common understanding of the Conference that, in fixing a reward under article 13 and assessing special compensation under article 14 of the International Convention on Salvage, 1989 the tribunal is under no duty to fix a reward under article 13 up to the maximum salved value of the vessel and other property before assessing the special compensation to be paid under article 14. ATTACHMENT 2 Resolution requesting the amendment of the York-Antwerp Rules, 1974 THE INTERNATIONAL CONFERENCE ON SALVAGE, 1989, HAVING ADOPTED the International Convention on Salvage, 1989, CONSIDERING that payments made pursuant to article 14 are not intended to be allowed in general average, REQUESTS the Secretary-General of the International Maritime Organization to take the appropriate steps in order to ensure speedy amendment of the York-Antwerp Rules, 1974, to ensure that special compensation paid under article 14 is not subject to general average. ATTACHMENT 3 Resolution on international co-operation for the implementation of the International Convention on Salvage, 1989 THE INTERNATIONAL CONFERENCE ON SALVAGE, 1989, IN ADOPTING the International Convention on Salvage, 1989 (hereinafter referred to as ‘‘The Convention’’), CONSIDERING IT DESIRABLE that as many States as possible should become Parties to the Convention, RECOGNIZING that the entry into force of the Convention will represent an important additional factor for the protection of the marine environment, CONSIDERING that the international publicizing and wide implementation of the Convention is of the utmost importance for the attainment of its objectives, I RECOMMENDS: (a) that the Organization promote public awareness of the Convention through the holding of seminars, courses or symposia;
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(b) that training institutions created under the auspices of the Organization include the study of the Convention in their corresponding courses of study. II REQUESTS: (a) Members States to transmit to the Organization the text of the laws, orders, decrees, regulations and other instruments that they promulgate concerning the various matters falling within the scope of application of the Convention; (b) Member States, in consultation with the Organization, to promote the giving of help to those States requesting technical assistance for the drafting of laws, orders, decrees, regulations and other instruments necessary for the implementation of the Convention; and (c) the Organization to notify Member States of any communication it may receive under paragraph II(a). PART 2 CANADA’S RESERVATIONS The Government of Canada reserves the right not to apply the provisions of the International Convention on Salvage, 1989 when the property involved is maritime cultural property of prehistoric, archaeological or historic interest and is situated on the seabed.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 32
An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts
BILL C-24 ASSENTED TO 18th DECEMBER, 2001
SUMMARY The enactment amends the Criminal Code by (a) providing additional protection to members of the Senate and the House of Commons and persons who play a role in the administration of criminal justice from certain acts of intimidation directed against them or their families; (b) providing law enforcement officers and other persons acting at their direction with circumscribed protection from criminal liability for certain otherwise illegal acts committed in the course of an investigation or enforcement of an Act of Parliament; (c) extending the application of its proceeds of crime provisions to indictable offences under the Criminal Code and other Acts of Parliament, with a few exceptions; (d) extending the application of its provisions relating to offence-related property to indictable offences under the Criminal Code; (e) providing for the management, by judicial order, of proceeds of crime and offence-related property, whether seized or restrained; and (f) providing broader measures for investigation and prosecution in connection with organized crime by expanding the concepts of criminal organization and criminal organization offence and by creating three new offences relating to participation in the activities — legal and illegal — of criminal organizations, and to the actions of their leaders.
The enactment also amends the Mutual Legal Assistance in Criminal Matters Act to allow the enforcement in Canada of search warrants, restraint orders and orders of forfeiture from foreign jurisdictions.
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49-50 ELIZABETH II
CHAPTER 32 An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts [Assented to 18th December, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-46
CRIMINAL CODE
1997, c. 23, s. 1
1. (1) The definitions ‘‘acte de gangstérisme’’ and ‘‘gang’’ in section 2 of the French version of the Criminal Code are repealed. (2) The definition ‘‘offence-related property’’ in section 2 of the Act is replaced by the following:
1997, c. 23, s. 1
‘‘offence-related property’’ « bien infractionnel »
‘‘offence-related property’’ means any property, within or outside Canada, (a) by means or in respect of which an indictable offence under this Act is committed, (b) that is used in any manner in connection with the commission of an indictable offence under this Act, or
1997, c. 23, s. 1
‘‘criminal organization’’ « organisation criminelle »
(c) that is intended for use for the purpose of committing an indictable offence under this Act; (3) The definition ‘‘criminal organization’’ in section 2 of the English version of the Act is replaced by the following: ‘‘criminal organization’’ has the same meaning as in subsection 467.1(1);
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(4) Paragraph (a) of the definition ‘‘criminal organization offence’’ in section 2 of the English version of the Act is replaced by the following: (a) an offence under section 467.12 or 467.13, or a serious committed for the benefit of, direction of, or in association criminal organization, or
467.11, offence at the with, a
(5) Section 2 of the Act is amended by adding the following in alphabetical order: ‘‘justice system participant’’ « personne associée au système judiciaire »
‘‘justice system participant’’ means (a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and (b) a person who plays a role in the administration of criminal justice, including (i) the Solicitor General of Canada and a Minister responsible for policing in a province, (ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court, (iii) a judge and a justice, (iv) a juror and a person who is summoned as a juror, (v) an informant, a prospective witness, a witness under subpoena and a witness who has testified, (vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition ‘‘peace officer’’, (vii) a civilian employee of a police force, (viii) a person employed in the administration of a court, (ix) a public officer within the meaning of subsection 25.1(1) and a person acting at the direction of such an officer,
Code criminel (crime organi (x) an employee of the Canada Customs and Revenue Agency who is involved in the investigation of an offence under an Act of Parliament, (xi) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and (xii) an employee and a member of the National Parole Board and of a provincial parole board;
‘‘serious offence’’ « infraction grave »
‘‘serious offence’’ has the same meaning as in subsection 467.1(1);
1997, c. 23, s. 2
(6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« infraction d’organisation criminelle » ‘‘criminal organization offence’’
« infraction d’organisation criminelle » a) Soit une infraction prévue aux articles 467.11, 467.12 ou 467.13 ou une infraction grave commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle; b) soit le complot ou la tentative en vue de commettre une telle infraction ou le fait d’en être complice après le fait ou d’en conseiller la perpétration.
« organisation criminelle » ‘‘criminal organization’’
« organisation criminelle » S’entend au sens du paragraphe 467.1(1). 2. The Act is amended by adding the following after section 25:
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Definitions
25.1 (1) The following definitions apply in this section and sections 25.2 to 25.4.
‘‘competent authority’’ « autorité compétente »
‘‘competent authority’’ means, with respect to a public officer or a senior official, (a) in the case of a member of the Royal Canadian Mounted Police, the Solicitor General of Canada, personally; (b) in the case of a member of a police service constituted under the laws of a province, the Minister responsible for policing in the province, personally; and (c) in the case of any other public officer or senior official, the Minister who has responsibility for the Act of Parliament that the officer or official has the power to enforce, personally.
‘‘public officer’’ « fonctionnaire public »
‘‘public officer’’ means a peace officer, or a public officer who has the powers of a peace officer under an Act of Parliament.
‘‘senior official’’ « fonctionnaire supérieur »
‘‘senior official’’ means a senior official who is responsible for law enforcement and who is designated under subsection (5).
Principle
(2) It is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and, to that end, to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences.
Designation of public officers
(3) A competent authority may designate public officers for the purposes of this section and sections 25.2 to 25.4.
Condition — civilian oversight
(3.1) A competent authority referred to in paragraph (a) or (b) of the definition of that term in subsection (1) may not designate any public officer under subsection (3) unless there is a public authority composed of persons who are not peace officers that may review the public officer’s conduct.
Code criminel (crime organi
Declaration as evidence
(3.2) The Governor in Council or the lieutenant governor in council of a province, as the case may be, may designate a person or body as a public authority for the purposes of subsection (3.1), and that designation is conclusive evidence that the person or body is a public authority described in that subsection.
Considerations
(4) The competent authority shall make designations under subsection (3) on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally, rather than in relation to any particular investigation or enforcement activity.
Designation of senior officials
(5) A competent authority may designate senior officials for the purposes of this section and sections 25.2 to 25.4.
Emergency designation
(6) A senior official may designate a public officer for the purposes of this section and sections 25.2 to 25.4 for a period of not more than 48 hours if the senior official is of the opinion that (a) by reason of exigent circumstances, it is not feasible for the competent authority to designate a public officer under subsection (3); and (b) in the circumstances of the case, the public officer would be justified in committing an act or omission that would otherwise constitute an offence. The senior official shall without delay notify the competent authority of the designation.
Conditions
(7) A designation under subsection (3) or (6) may be made subject to conditions, including conditions limiting (a) the duration of the designation; (b) the nature of the conduct in the investigation of which a public officer may be justified in committing, or directing another person to commit, acts or omissions that would otherwise constitute an offence; and (c) the acts or omissions that would otherwise constitute an offence and that a public officer may be justified in committing or directing another person to commit.
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Justification for acts or omissions
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(8) A public officer is justified in committing an act or omission — or in directing the commission of an act or omission under subsection (10) — that would otherwise constitute an offence if the public officer (a) is engaged in the investigation of an offence under, or the enforcement of, an Act of Parliament or in the investigation of criminal activity; (b) is designated under subsection (3) or (6); and (c) believes on reasonable grounds that the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.
Requirements for certain acts
(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property, or in directing the commission of an act or omission under subsection (10), unless, in addition to meeting the conditions set out in paragraphs (8)(a) to (c), he or she (a) is personally authorized in writing to commit the act or omission — or direct its commission — by a senior official who believes on reasonable grounds that committing the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties; or
Code criminel (crime organi (b) believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to (i) preserve the life or safety of any person, (ii) prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or (iii) prevent the imminent loss or destruction of evidence of an indictable offence.
Person acting at direction of public officer
(10) A person who commits an act or omission that would otherwise constitute an offence is justified in committing it if (a) a public officer directs him or her to commit that act or omission and the person believes on reasonable grounds that the public officer has the authority to give that direction; and (b) he or she believes on reasonable grounds that the commission of that act or omission is for the purpose of assisting the public officer in the public officer’s law enforcement duties.
Limitation
(11) Nothing in this section justifies (a) the intentional or criminally negligent causing of death or bodily harm to another person; (b) the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or (c) conduct that would violate the sexual integrity of an individual.
Protection, defences and immunities unaffected
(12) Nothing in this section affects the protection, defences and immunities of peace officers and other persons recognized under the law of Canada.
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Compliance with requirements
(13) Nothing in this section relieves a public officer of criminal liability for failing to comply with any other requirements that govern the collection of evidence.
Exception: offences under Controlled Drugs and Substances Act
(14) Nothing in this section justifies a public officer or a person acting at his or her direction in committing an act or omission — or a public officer in directing the commission of an act or omission — that constitutes an offence under a provision of Part I of the Controlled Drugs and Substances Act or of the regulations made under it.
Public officer to file report
25.2 Every public officer who commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) or (b) shall, as soon as is feasible after the commission of the act or omission, file a written report with the appropriate senior official describing the act or omission.
Annual report
25.3 (1) Every competent authority shall publish or otherwise make available to the public an annual report for the previous year that includes, in respect of public officers and senior officials designated by the competent authority, (a) the number of designations made under subsection 25.1(6) by the senior officials; (b) the number of authorizations made under paragraph 25.1(9)(a) by the senior officials; (c) the number of times that acts and omissions were committed in accordance with paragraph 25.1(9)(b) by the public officers; (d) the nature of the conduct being investigated when the designations referred to in paragraph (a) or the authorizations referred to in paragraph (b) were made or when the acts or omissions referred to in paragraph (c) were committed; and (e) the nature of the acts or omissions committed under the designations referred to in paragraph (a), under the authorizations referred to in paragraph (b) and in the manner described in paragraph (c).
Limitation
Code criminel (crime organi
(2) The annual report shall not contain any information the disclosure of which would (a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament; (b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer; (c) endanger the life or safety of any person; (d) prejudice a legal proceeding; or (e) otherwise be contrary to the public interest.
Written notification to be given
25.4 (1) When a public officer commits an act or omission — or directs the commission by another person of an act or omission — under paragraph 25.1(9)(a) or (b), the senior official with whom the public officer files a written report under section 25.2 shall, as soon as is feasible after the report is filed, and no later than one year after the commission of the act or omission, notify in writing any person whose property was lost or seriously damaged as a result of the act or omission.
Limitation
(2) The competent authority may authorize the senior official not to notify the person under subsection (1) until the competent authority is of the opinion that notification would not (a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament; (b) compromise the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer; (c) endanger the life or safety of any person;
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(d) prejudice a legal proceeding; or (e) otherwise be contrary to the public interest. 1997, c. 23, s. 2
3. Subsection 82(2) of the French version of the Act is replaced by the following:
Possession liée aux activités d’une organisation criminelle
(2) Quiconque, sans excuse légitime, dont la preuve lui incombe, fabrique ou a en sa possession ou sous sa garde ou son contrôle une substance explosive au profit ou sous la direction d’une organisation criminelle, ou en association avec elle, est coupable d’un acte criminel et passible d’un emprisonnement maximal de quatorze ans. 4. The definition ‘‘offence’’ in section 183 of the Act is replaced by the following:
‘‘offence’’ « infraction »
‘‘offence’’ means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to (a) any of the following provisions of this Act, namely, (i) section 47 (high treason), (ii) section 51 (intimidating Parliament or a legislature), (iii) section 52 (sabotage), (iv) section 57 (forgery, etc.), (v) section 61 (sedition), (vi) section 76 (hijacking), (vii) section 77 (endangering safety of aircraft or airport), (viii) section 78 (offensive weapons, etc., on aircraft), (ix) section 78.1 (offences against maritime navigation or fixed platforms), (x) section 80 (breach of duty), (xi) section 81 (using explosives), (xii) section 82 (possessing explosives), (xiii) section 96 (possession of weapon obtained by commission of offence), (xiv) section 99 (weapons trafficking),
Code criminel (crime organi (xv) section 100 (possession for purpose of weapons trafficking), (xvi) section 102 (making automatic firearm), (xvii) section 103 (importing or exporting knowing it is unauthorized), (xviii) section 104 (unauthorized importing or exporting), (xix) section 119 (bribery, etc.), (xx) section 120 (bribery, etc.), (xxi) section 121 (fraud on government), (xxii) section 122 (breach of trust), (xxiii) section 123 (municipal corruption), (xxiv) section 132 (perjury), (xxv) section 139 (obstructing justice), (xxvi) section 144 (prison breach), (xxvii) etc.),
subsection
145(1)
(escape,
(xxviii) paragraph 163(1)(a) (obscene materials), (xxix) section 163.1 (child pornography), (xxx) section 184 (unlawful interception), (xxxi) section 191 (possession of intercepting device), (xxxii) subsection 201(1) (keeping gaming or betting house), (xxxiii) paragraph 202(1)(e) (pool-selling, etc.), (xxxiv) subsection 210(1) (keeping common bawdy house), (xxxv) subsection 212(1) (procuring), (xxxvi) subsection 212(2) (procuring), (xxxvii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years), (xxxviii) subsection 212(4) (offence — prostitution of person under eighteen),
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Criminal Code (organized cr (xxxix) section 235 (murder), (xl) section 264.1 (uttering threats), (xli) section 267 (assault with a weapon or causing bodily harm), (xlii) section 268 (aggravated assault), (xliii) section 269 (unlawfully causing bodily harm), (xliv) section 271 (sexual assault), (xlv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), (xlvi) section 273 (aggravated sexual assault), (xlvii) section 279 (kidnapping), (xlviii) section 279.1 (hostage taking), (xlix) section 280 (abduction of person under sixteen), (l) section 281 (abduction of person under fourteen), (li) section 282 (abduction in contravention of custody order), (lii) section 283 (abduction), (liii) section 318 (advocating genocide), (liv) section 327 (possession of device to obtain telecommunication facility or service), (lv) section 334 (theft), (lvi) section 342 (theft, forgery, etc., of credit card), (lvii) section 342.1 (unauthorized use of computer), (lviii) section 342.2 (possession of device to obtain computer service), (lix) section 344 (robbery), (lx) section 346 (extortion), (lxi) section 347 (criminal interest rate), (lxii) section 348 (breaking and entering), (lxiii) section 354 (possession of property obtained by crime),
Code criminel (crime organi (lxiv) section 356 (theft from mail), (lxv) section 367 (forgery), (lxvi) section 368 (uttering forged document), (lxvii) section 372 (false messages), (lxviii) section 380 (fraud), (lxix) section 381 (using mails to defraud), (lxx) section 382 (fraudulent manipulation of stock exchange transactions), (lxxi) section 423.1 (intimidation of justice system participant or journalist), (lxxii) section 424 (threat to commit offences against internationally protected person), (lxxiii) section 426 (secret commissions), (lxxiv) section 430 (mischief), (lxxv) section 431 (attack on premises, residence or transport of internationally protected person), (lxxvi) section 433 (arson), (lxxvii) section 434 (arson), (lxxviii) section 434.1 (arson), (lxxix) section 435 (arson for fraudulent purpose), (lxxx) section 449 (making counterfeit money), (lxxxi) section 450 (possession, etc., of counterfeit money), (lxxxii) section 452 (uttering, etc., counterfeit money), (lxxxiii) section 462.31 (laundering proceeds of crime), (lxxxiv) subsection 462.33(11) (acting in contravention of restraint order), (lxxxv) section 467.11 (participation in criminal organization), (lxxxvi) section 467.12 (commission of offence for criminal organization), or
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(b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency Act, (c) any of the following provisions of the Competition Act, namely, (i) section 45 (conspiracy) in relation to any of the matters referred to in paragraphs 45(4)(a) to (d) of that Act, (ii) section 47 (bid-rigging), or (iii) subsection telemarketing),
52.1(3)
(deceptive
(d) any of the following provisions of the Controlled Drugs and Substances Act, namely, (i) section 5 (trafficking), (ii) section 6 (importing and exporting), or (iii) section 7 (production), (e) section 3 (bribing a foreign public official) of the Corruption of Foreign Public Officials Act, (e.1) the Crimes Against Humanity and War Crimes Act, (f) any of the following provisions of the Customs Act, namely, (i) section 153 (false statements), or (ii) section 159 (smuggling), (g) any of the following provisions of the Excise Act, namely, (i) section 158 (unlawful distillation of spirits), (ii) section 163 (unlawful selling of spirits), (iii) subsection 233(1) (unlawful packaging or stamping), or (iv) subsection 240(1) (unlawful possession or sale of manufactured tobacco or cigars), (h) any of the following provisions of the Export and Import Permits Act, namely,
Code criminel (crime organi (i) section 13 (export or attempt to export), (ii) section 14 (import or attempt to import), (iii) section 15 (diversion, etc.), (iv) section 16 (no transfer of permits), (v) section 17 (false information), or (vi) section 18 (aiding and abetting), (i) any of the following provisions of the Immigration Act, namely, (i) section 94.1 (organizing entry into Canada), (ii) section 94.2 (organizing entry into Canada), (iii) section 94.4 (disembarking persons at sea), or (iv) section 94.5 (counselling false statements), or (j) section 3 (spying) of the Official Secrets Act, and includes any other offence that there are reasonable grounds to believe is a criminal organization offence;
1997, c. 23, s. 4
5. Subsection 185(1.1) of the Act is replaced by the following:
�� Exception for criminal organization
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(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; or (b) an offence committed for the benefit of, at the direction of, or in association with, a criminal organization.
1997, c. 23, s. 5
6. Subsection 186(1.1) of the Act is replaced by the following:
Exception for criminal organization
(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; or (b) an offence committed for the benefit of, at the direction of, or in association with, a criminal organization.
1997, c. 23, s. 6
7. Section 186.1 of the Act is replaced by the following:
Time limitation in relation to criminal organizations
186.1 Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; or (b) an offence committed for the benefit of, at the direction of, or in association with, a criminal organization.
1997, c. 23, s. 7
8. Subsection 196(5) of the Act is replaced by the following:
Exception for criminal organization
(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to
Code criminel (crime organi (a) an offence under section 467.11, 467.12 or 467.13, or (b) an offence committed for the benefit of, at the direction of, or in association with, a criminal organization, and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
1997, c. 23, s. 8
9. (1) Subsection 231(6.1) of the French version of the Act is replaced by the following:
Usage d’explosifs par une organisation criminelle
(6.1) Indépendamment de toute préméditation, le meurtre que commet une personne est assimilé à un meurtre au premier degré lorsque la mort est causée au cours de la perpétration ou de la tentative de perpétration d’une infraction prévue à l’article 81 au profit ou sous la direction d’une organisation criminelle, ou en association avec elle. (2) Section 231 of the Act is amended by adding the following after subsection (6.1):
Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an offence under section 423.1.
2000, c. 12, par. 95(b)
10. Subsection 423(1) of the Act is replaced by the following:
Intimidation
423. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing, (a) uses violence or threats of violence to that person or his or her spouse or commonlaw partner or children, or injures his or her property;
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(b) intimidates or attempts to intimidate that person or a relative of that person by threats that, in Canada or elsewhere, violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any of them will be damaged; (c) persistently follows that person; (d) hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him or her in the use of them; (e) with one or more other persons, follows that person, in a disorderly manner, on a highway; (f) besets or watches the place where that person resides, works, carries on business or happens to be; or (g) blocks or obstructs a highway. 11. The Act is amended by adding the following after section 423: Intimidation of a justice system participant or a journalist
423.1 (1) No person shall, without lawful authority, engage in conduct referred to in subsection (2) with the intent to provoke a state of fear in (a) a group of persons or the general public in order to impede the administration of criminal justice; (b) a justice system participant in order to impede him or her in the performance of his or her duties; or (c) a journalist in order to impede him or her in the transmission to the public of information in relation to a criminal organization.
Prohibited conduct
(2) The conduct referred to in subsection (1) consists of (a) using violence against a justice system participant or a journalist or anyone known to either of them or destroying or causing damage to the property of any of those persons; (b) threatening to engage in conduct described in paragraph (a) in Canada or elsewhere;
Code criminel (crime organi (c) persistently or repeatedly following a justice system participant or a journalist or anyone known to either of them, including following that person in a disorderly manner on a highway; (d) repeatedly communicating with, either directly or indirectly, a justice system participant or a journalist or anyone known to either of them; and (e) besetting or watching the place where a justice system participant or a journalist or anyone known to either of them resides, works, attends school, carries on business or happens to be.
Punishment
(3) Every person who contravenes this section is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years. 12. (1) Section 462.3 of the Act is renumbered as subsection 462.3(1).
R.S., c. 42 (4th Supp.), s. 2; 1993, c. 46, s. 5; 1994, c. 44, s. 29; 1995, c. 39, s. 151; 1997, c. 18, s. 27, c. 23, s. 9; 1998, c. 34, s. 9(1); 1999, c. 5, ss. 13, 52
(2) The definition ‘‘enterprise crime offence’’ in subsection 462.3(1) of the Act is repealed.
1996, c. 19, s. 68(2)
(3) The definition ‘‘designated substance offence’’ in subsection 462.3(1) of the English version of the Act is repealed.
R.S., c. 42 (4th Supp.), s. 2; 1993, c. 37, par. 32(b); 1996, c. 19, par. 70(b)
(4) The definition ‘‘proceeds of crime’’ in subsection 462.3(1) of the Act is replaced by the following:
‘‘proceeds of crime’’ « produits de la criminalité »
‘‘proceeds of crime’’ means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of (a) the commission in Canada of a designated offence, or (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
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1996, c. 19, s. 68(2)
(5) The definition ‘‘infraction désignée’’ in subsection 462.3(1) of the French version of the Act is replaced by the following:
« infraction désignée » ‘‘designated offence’’
« infraction désignée » a) Soit tout acte criminel prévu à la présente loi ou une autre loi fédérale, à l’exception des actes criminels désignés par règlement; b) soit le complot ou la tentative en vue de commettre un tel acte ou le fait d’en être complice après le fait ou d’en conseiller la perpétration. (6) Subsection 462.3(1) of the English version of the Act is amended by adding the following in alphabetical order:
‘‘designated offence’’ « infraction désignée »
‘‘designated offence’’ means (a) an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation, or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a); (7) Section 462.3 of the Act is amended by adding the following after subsection (1):
Regulations
(2) The Governor in Council may make regulations prescribing indictable offences that are excluded from the definition ‘‘designated offence’’ in subsection (1).
Powers of Attorney General of Canada
(3) Notwithstanding the definition ‘‘Attorney General’’ in section 2, the Attorney General of Canada may exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act in respect of a designated offence where the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of
Code criminel (crime organi Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act.
Powers of Attorney General of a province
(4) Subsection (3) does not affect the authority of the Attorney General of a province to conduct proceedings in respect of a designated offence or to exercise any of the powers or perform any of the duties and functions assigned to the Attorney General by or under this Act.
R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(c)
13. Paragraphs 462.31(1)(a) and (b) of the Act are replaced by the following: (a) the commission in Canada of a designated offence; or (b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
1997, c. 18, s. 29
14. (1) Subsection 462.32(1) of the Act is replaced by the following:
Special search warrant
462.32 (1) Subject to subsection (3), where a judge, on application of the Attorney General, is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in any building, receptacle or place, within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction, the judge may issue a warrant authorizing a person named in the warrant or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection. (2) Section 462.32 of the Act is amended by adding the following after subsection (4):
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(4.1) Subject to this or any other Act of Parliament, a peace officer who has seized anything under a warrant issued by a judge under this section may, with the written consent of the Attorney General, on being issued a receipt for it, return the thing seized to the person lawfully entitled to its possession, if (a) the peace officer is satisfied that there is no dispute as to who is lawfully entitled to possession of the thing seized; (b) the peace officer is satisfied that the continued detention of the thing seized is not required for the purpose of forfeiture; and (c) the thing seized is returned before a report is filed with the clerk of the court under paragraph (4)(b).
1993, c. 37, s. 21(1); 1997, c. 18, s. 30(2)
15. (1) Subsection 462.33(3) of the Act is replaced by the following:
Restraint order
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that there exists within the province in which the judge has jurisdiction or any other province, any property in respect of which an order of forfeiture may be made under subsection 462.37(1) or 462.38(2), in respect of a designated offence alleged to have been committed within the province in which the judge has jurisdiction, make an order prohibiting any person from disposing of, or otherwise dealing with any interest in, the property specified in the order otherwise than in such manner as may be specified in the order.
1993, c. 37, s. 21(2); 1996, c. 16, par. 60(1)(d)
(2) Subsection 462.33(3.1) of the Act is replaced by the following:
Property outside Canada
(3.1) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
R.S., c. 42 (4th Supp.), s. 2
(3) Subsection 462.33(7) of the Act is replaced by the following:
2001 Undertakings by Attorney General
Code criminel (crime organi (7) Before making an order under subsection (3), a judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to (a) the making of an order in respect of property situated within or outside Canada; and (b) the execution of an order in respect of property situated within Canada. 16. The Act is amended by adding the following after section 462.33:
Management order
462.331 (1) With respect to property seized under section 462.32 or restrained under section 462.33, other than a controlled substance within the meaning of the Controlled Drugs and Substances Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, where a judge is of the opinion that the circumstances so require, the judge may (a) appoint a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge; and (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).
Appointment of Minister of Public Works and Government Services
(2) When the Attorney General of Canada so requests, a judge appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.
Power to manage
(3) The power to manage or otherwise deal with property under subsection (1) includes (a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and (b) in the case of property that has little or no value, the power to destroy that property.
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Application for destruction order
(4) Before a person appointed to manage property destroys property that has little or no value, he or she shall apply to a court for a destruction order.
Notice
(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.
Manner of giving notice
(6) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.
Order
(7) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.
When management order ceases to have effect
(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant or forfeited to Her Majesty.
Application to vary conditions
(9) The Attorney General may at any time apply to the judge to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).
R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(d)
17. (1) Subparagraph 462.34(6)(a)(i) of the Act is replaced by the following:
1997, c. 18, subpar. 140(d)(i)
(2) Paragraph 462.34(6)(b) of the Act is replaced by the following:
(i) a person charged with a designated offence, or
(b) in any other case, that the applicant is the lawful owner of or lawfully entitled to possession of the property and appears innocent of any complicity in a designated offence or of any collusion in relation to such an offence, and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property,
Code criminel (crime organi
1996, c. 19, s. 69
(3) Subsection 462.34(7) of the Act is replaced by the following:
Saving provision
(7) Section 354 of this Act does not apply to a person who comes into possession of any property or thing that, pursuant to an order made under paragraph (4)(c), was returned to any person after having been seized or was excluded from the application of a restraint order made under subsection 462.33(3).
R.S., c. 42 (4th Supp.), s. 2
18. Section 462.36 of the Act is replaced by the following:
Forwarding to clerk where accused to stand trial
462.36 Where a judge issues a warrant under section 462.32 or makes a restraint order under section 462.33 in respect of any property, the clerk of the court shall, when an accused is ordered to stand trial for a designated offence, cause to be forwarded to the clerk of the court to which the accused has been ordered to stand trial a copy of the report filed pursuant to paragraph 462.32(4)(b) or of the restraint order in respect of the property.
R.S., c. 42 (4th Supp.), s. 2; 1992, c. 1, s. 60 (Sch. I, item 29) (F); 1995, c. 22, s. 10 (Sch. I, items 15, 16); 1999, c. 5, s. 15(F)
19. Subsections 462.37(1) and (2) of the Act are replaced by the following:
Order of forfeiture of property on conviction
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Proceeds of crime derived from other offences
(2) Where the evidence does not establish to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an
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order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property. Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
R.S., c. 42 (4th Supp.), s. 2
20. (1) Subsection 462.38(1) of the Act is replaced by the following:
Application for forfeiture
462.38 (1) Where an information has been laid in respect of a designated offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2) in respect of any property.
R.S., c. 42 (4th Supp.), s. 2
(2) Paragraph 462.38(2)(b) of the Act is replaced by the following: (b) proceedings in respect of a designated offence committed in relation to that property were commenced, and (3) Section 462.38 of the Act is amended by adding the following after subsection (2):
Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
R.S., c. 42 (4th Supp.), s. 2
(4) The portion of subsection 462.38(3) of the Act before paragraph (a) is replaced by the following:
Person deemed absconded
(3) For the purposes of this section, a person shall be deemed to have absconded in connection with a designated offence if
R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(f)
21. Section 462.39 of the Act is replaced by the following:
Inference
462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of
Code criminel (crime organi all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
R.S., c. 42 (4th Supp.), s. 2
22. (1) Paragraph 462.41(2)(c) of the Act is replaced by the following: (c) set out the designated offence charged and a description of the property.
1997, c. 18, subpar. 140(d)(ii)
(2) Paragraph 462.41(3)(a) of the Act is replaced by the following: (a) a person who is charged with, or was convicted of, a designated offence, or
1997, c. 18, subpar. 140(d)(iii)
23. (1) Paragraph 462.42(1)(a) of the Act is replaced by the following: (a) a person who is charged with, or was convicted of, a designated offence that was committed in relation to the property forfeited, or
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R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(i)
(2) Subsection 462.42(4) of the English version of the Act is replaced by the following:
Order declaring interest not subject to forfeiture
(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant is not a person referred to in paragraph (1)(a) or (b) and appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and extent of the interest. 24. Section 462.43 of the Act is renumbered as subsection 462.43(1) and is amended by adding the following:
Property outside Canada
(2) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(j)
25. Section 462.47 of the Act is replaced by the following:
No civil or criminal liability incurred by informants
462.47 For greater certainty but subject to section 241 of the Income Tax Act, a person is justified in disclosing to a peace officer or the Attorney General any facts on the basis of which that person reasonably suspects that any property is proceeds of crime or that any person has committed or is about to commit a designated offence.
R.S., c. 42 (4th Supp.), s. 2; 1996, c. 19, par. 70(k); 1997, c. 23, s. 10(1)
26. (1) Subsection 462.48(1) of the Act is replaced by the following:
2001 Definition of ‘‘designated substance offence’’
Code criminel (crime organi 462.48 (1) In this section, ‘‘designated substance offence’’ means (a) an offence under Part I of the Controlled Drugs and Substances Act, except subsection 4(1) of that Act; or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a).
Disclosure of income tax information
(1.1) The Attorney General may make an application in accordance with subsection (2) for an order for disclosure of information under subsection (3), for the purposes of an investigation in relation to (a) a designated substance offence; (b) an offence against section 354 or 462.31 where the offence is alleged to have been committed in relation to any property, thing or proceeds obtained or derived directly or indirectly as a result of (i) the commission in Canada of a designated substance offence, or (ii) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated substance offence; or (c) an offence against section 467.11, 467.12 or 467.13 or a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, such an offence.
R.S., c. 42 (4th Supp.), s. 2
(2) The portion of subsection 462.48(2) of the English version of the Act before paragraph (a) is replaced by the following:
Application
(2) An application under subsection (1.1) shall be made ex parte in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or a person specially designated by the Attorney General for that purpose deposing to the following matters, namely,
1997, c. 23, s. 10(2)
(3) Paragraph 462.48(2)(d) of the Act is replaced by the following:
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(d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of an offence referred to in paragraph (1.1)(a), (b) or (c) and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to the investigation for the purposes of which the application is made. R.S., c. 42 (4th Supp.), s. 2
(4) The portion of subsection 462.48(3) of the English version of the Act before paragraph (a) is replaced by the following: (3) Where the judge to whom an application under subsection (1.1) is made is satisfied
1997, c. 23, s. 11
27. Section 467.1 of the Act is replaced by the following:
Definitions
467.1 (1) The following definitions apply in this Act.
‘‘criminal organization’’ « organisation criminelle »
‘‘criminal organization’’ means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.
‘‘serious offence’’ « infraction grave »
‘‘serious offence’’ means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
Code criminel (crime organi
Facilitation
(2) For the purposes of this section and section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
Commission of offence
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition ‘‘serious offence’’ in subsection (1).
Participation in activities of criminal organization
467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (a) the criminal organization actually facilitated or committed an indictable offence; (b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence; (c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or (d) the accused knew the identity of any of the persons who constitute the criminal organization.
Factors
(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused (a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;
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(b) frequently associates with any of the persons who constitute the criminal organization; (c) receives any benefit from the criminal organization; or (d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization. Commission of offence for criminal organization
467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.
Instructing commission of offence for criminal organization
467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (a) an offence other than the offence under subsection (1) was actually committed; (b) the accused instructed a particular person to commit an offence; or (c) the accused knew the identity of all of the persons who constitute the criminal organization.
Sentences to be served consecutively
467.14 A sentence imposed on a person for an offence under section 467.11, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
Code criminel (crime organi
1997, c. 23, s. 11
28. Section 467.2 of the Act is replaced by the following:
Powers of the Attorney General of Canada
467.2 (1) Notwithstanding the definition of ‘‘Attorney General’’ in section 2, the Attorney General of Canada may conduct proceedings in respect of (a) an offence under section 467.11; or (b) another criminal organization offence where the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act. For those purposes, the Attorney General of Canada may exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act.
Powers of the Attorney General of a province
(2) Subsection (1) does not affect the authority of the Attorney General of a province to conduct proceedings in respect of an offence referred to in section 467.11, 467.12 or 467.13 or to exercise any of the powers or perform any of the duties and functions assigned to the Attorney General by or under this Act. 29. (1) Section 486 of the Act is amended by adding the following after subsection (1.4):
Protection of justice system participants
(1.5) For the purposes of subsection (1) and for greater certainty, the ‘‘proper administration of justice’’ includes ensuring the protection of justice system participants who are involved in the proceedings.
1997, c. 16, ss. 6(2) and (3)
(2) Subsections 486(2.11) and (2.2) of the Act are replaced by the following:
Testimony outside court room
(2.101) Notwithstanding section 650, where an accused is charged with an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, the presiding judge or justice, as the case may be, may order that any witness testify (a) outside the court room, if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and
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(b) outside the court room or behind a screen or other device that would allow the witness not to see the accused, if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness. Same procedure for opinion
(2.11) Where the judge or justice is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under subsection (2.1) or (2.101) should be made in respect of that complainant or witness, the judge or justice shall order that the complainant or witness testify pursuant to that subsection.
Condition of exclusion
(2.2) A complainant or witness shall not testify outside the court room pursuant to subsection (2.1), (2.101) or (2.11) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the complainant or witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
1999, c. 25, s. 2(3)
(3) Subsection 486(4.1) of the Act is replaced by the following:
Ban on publication, etc.
(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness — or, in the case of an offence under section 423.1 or a criminal organization offence, the identity of a justice system participant who is involved in the proceedings — or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
1999, c. 25, s. 2(3)
(4) Paragraphs 486(4.7)(b) to (e) of the Act are replaced by the following: (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their
Code criminel (crime organi security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
1999, c. 25, s. 2(3)
(5) Paragraph 486(4.9)(c) of the Act is replaced by the following: (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
1997, c. 23, s. 15
30. (1) The portion of subsection 490.1(1) of the Act before paragraph (a) is replaced by the following:
Order of forfeiture of property on conviction
490.1 (1) Subject to sections 490.3 to 490.41, where a person is convicted of an indictable offence under this Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall
1997, c. 23, s. 15
(2) Subsections 490.1(2) and (3) of the Act are replaced by the following:
Property related to other offences
(2) Subject to sections 490.3 to 490.41, where the evidence does not establish to the satisfaction of the court that the indictable offence under this Act of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.
Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
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Appeal
(3) A person who has been convicted of an indictable offence under this Act or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.
1997, c. 23, s. 15
31. (1) Subsections 490.2(1) and (2) of the Act are replaced by the following:
Application for in rem forfeiture
490.2 (1) Where an information has been laid in respect of an indictable offence under this Act, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).
Order of forfeiture of property
(2) Subject to sections 490.3 to 490.41, where an application is made to a judge under subsection (1) and the judge is satisfied (a) beyond a reasonable doubt that any property is offence-related property, (b) that proceedings in respect of an indictable offence under this Act in relation to the property referred to in paragraph (a) were commenced, and (c) that the accused charged with the offence has died or absconded, the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).
1997, c. 23, s. 15
(2) The portion of subsection 490.2(3) of the English version of the Act before paragraph (a) is replaced by the following:
Accused deemed absconded
(3) For the purpose of subsection (2), an accused is deemed to have absconded in connection with the indictable offence if
1997, c. 23, s. 15
(3) Paragraph 490.2(3)(a) of the French version of the Act is replaced by the following: a) elle a fait l’objet d’une dénonciation l’accusant de l’acte criminel; (4) Section 490.2 of the Act is amended by adding the following after subsection (4):
Code criminel (crime organi
Property outside Canada
(4.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
1997, c. 23, s. 15
32. (1) Paragraph 490.4(2)(c) of the Act is replaced by the following: (c) set out the offence charged and a description of the property.
1997, c. 23, s. 15
(2) Paragraph 490.4(3)(a) of the Act is replaced by the following: (a) a person who was charged with an indictable offence under this Act, or
33. The Act is amended by adding the following after section 490.4: Notice
Manner of giving notice
490.41 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited. (2) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and
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(c) set out the offence charged and a description of the property. Non-forfeiture of property
(3) Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
Factors in relation to dwelling-house
(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1) or 490.2(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider (a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and (b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence.
1997, c. 23, s. 15
34. (1) Paragraphs 490.5(1)(a) and (b) of the Act are replaced by the following: (a) in the case of property forfeited pursuant to an order made under subsection 490.1(1), a person who was convicted of the indictable offence in relation to which the property was forfeited, (b) in the case of property forfeited pursuant to an order made under subsection 490.2(2), a person who was charged with the indictable offence in relation to which the property was forfeited, or
1997, c. 23, s. 15
(2) Paragraph 490.5(4)(a) of the Act is replaced by the following:
Code criminel (crime organi (a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and
1997, c. 23, s. 15
35. (1) Paragraph 490.8(2)(a) of the Act is replaced by the following: (a) the indictable offence to which the offence-related property relates;
1997, c. 23, s. 15
(2) Subsection 490.8(3) of the Act is replaced by the following:
Restraint order
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order.
Property outside Canada
(3.1) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require.
1997, c. 23, s. 15
(3) Paragraph 490.8(8)(a) of the Act is replaced by the following: (a) an order is made under subsection 490(9) or (11), 490.4(3) or 490.41(3) in relation to the property; or 36. The Act is amended by adding the following after section 490.8:
Management order
490.81 (1) With respect to offence-related property other than a controlled substance within the meaning of the Controlled Drugs and Substances Act, on application of the Attorney General or of any other person with the written consent of the Attorney General, a judge or justice in the case of offence-related property seized under section 487, or a judge in the case of offence-related property restrained under section 490.8, may, where he or she is of the opinion that the circumstances so require, (a) appoint a person to take control of and to manage or otherwise deal with all or part
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of the property in accordance with the directions of the judge or justice; and (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a). Appointment of Minister of Public Works and Government Services
(2) When the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.
Power to manage
(3) The power to manage or otherwise deal with property under subsection (1) includes (a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and (b) in the case of property that has little or no value, the power to destroy that property.
Application for destruction order
(4) Before a person appointed to manage property destroys property that has little or no value, he or she shall apply to a court for a destruction order.
Notice
(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.
Manner of giving notice
(6) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.
Order
(7) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.
When management order ceases to have effect
(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant or forfeited to Her Majesty.
2001 Application to vary conditions
Code criminel (crime organi (9) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject, but may not apply to vary an appointment made under subsection (2). 37. (1) Subsection 515(4.1) of the Act is amended by adding the following after paragraph (b): (b.1) an offence under section 423.1 (intimidation of a justice system participant),
1999, c. 25, s. 8(4)
(2) The portion of subsection 515(4.2) of the Act before paragraph (a) is replaced by the following:
Additional conditions
(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence described in section 264 or 423.1 or an offence in the commission of which violence against a person was used, threatened or attempted, the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order
1997, c. 23, s. 16
(3) Subparagraph 515(6)(a)(ii) of the Act is replaced by the following: (ii) that is an offence under section 467.11, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization,
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1992, c. 41, s. 1; 1998, c. 9, s. 5
38. Subsections 631(3) to (5) of the Act are replaced by the following:
To be drawn by clerk of court
(3) The clerk of the court shall, in open court, draw out the cards referred to in subsection (1), one after another, and shall call out the name and number on each card as it is drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury after allowing for orders to excuse, challenges and directions to stand by where (a) the array of jurors is not challenged; or (b) the array of jurors is challenged but the judge does not direct a new panel to be returned.
Where name not to be called
(3.1) On application by the prosecutor or on its own motion, the court, or a judge of the court, before which the jury trial is to be held, if it is satisfied that it is in the best interest of the administration of justice to do so, including in order to protect the privacy or safety of the members of the jury, may order that, for the purposes of subsection (3), the clerk of the court shall only call out the number on each card.
Juror and other persons to be sworn
(4) The clerk of the court shall swear each member of the jury in the order in which his or her card was drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.
Drawing additional cards if necessary
(5) Where the number of persons who answer under subsection (3) or (3.1) is not sufficient to provide a full jury, the clerk of the court shall proceed in accordance with subsections (3), (3.1) and (4) until twelve jurors are sworn.
Ban on publication, etc.
(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if an order under subsection (3.1) has been made, make an order directing that the identity of a juror or any information that could disclose their
Code criminel (crime organi identity shall not be published in any document or broadcast in any way, if the court or judge is satisfied that such an order is necessary for the proper administration of justice.
1992, c. 41, s. 2
39. The portion of section 632 of the Act before paragraph (a) is replaced by the following:
Excusing jurors
632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of
1992, c. 41, s. 2
40. Section 633 of the Act is replaced by the following:
Stand by
633. The judge may direct a juror who has been called pursuant to subsection 631(3) or (3.1) to stand by for reasons of personal hardship or any other reasonable cause.
1992, c. 41, s. 3
41. Section 641 of the Act is replaced by the following:
Calling jurors who have stood by
641. (1) Where a full jury has not been sworn and no cards remain to be drawn, the cards of those who have been directed to stand by shall be drawn again in the order in which their cards were drawn and they shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.
Other jurors becoming available
(2) Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor may require the cards of those jurors to be put into and drawn from the box in accordance with section 631, and those jurors shall be challenged, directed to stand by, excused or sworn, as the case may be, before the jurors who were originally directed to stand by are called again.
1992, c. 41, s. 5
42. Subsections 643(1) and (2) of the Act are replaced by the following:
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Who shall be jury
643. (1) The twelve jurors whose cards are drawn and who are sworn in accordance with this Part shall be the jury to try the issues of the indictment, and the jurors so drawn and sworn shall be kept apart until the jury gives its verdict or until it is discharged. Their cards shall then be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.
Same jury may try another issue by consent
(2) The court may try an issue with the same jury in whole or in part that previously tried or was drawn to try another issue, without the jurors being sworn again, but if the prosecutor or the accused objects to any of the jurors or the court excuses any of the jurors, the court shall order those persons to withdraw and shall direct that the required number of cards to make up a full jury be drawn and, subject to the provisions of this Part relating to challenges, orders to excuse and directions to stand by, the persons whose cards are drawn shall be sworn.
R.S., c. 27 (1st Supp.), s. 133
43. Subsection 645(5) of the Act is replaced by the following:
Questions reserved for decision in a trial with a jury
(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
1997, c. 23, s. 17
44. Subparagraph 718.2(a)(iv) of the French version of the Act is replaced by the following: (iv) que l’infraction a été commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle;
1997, c. 23, s. 18
45. Subsection 743.6(1.1) of the Act is replaced by the following:
Power of court to delay parole
(1.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on
Code criminel (crime organi conviction for a criminal organization offence other than an offence under section 467.11, 467.12 or 467.13, the court may order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for an offence under section 467.11, 467.12 or 467.13, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
1997, c. 23, s. 19
46. (1) Subsection 810.01(1) of the Act is replaced by the following:
Fear of criminal organization offence, etc.
810.01 (1) A person who fears on reasonable grounds that another person will commit an offence under section 423.1 or a criminal organization offence may, with the consent of the Attorney General, lay an information before a provincial court judge. (2) Subsection 810.01(3) of the Act is replaced by the following:
Adjudication
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, includ��
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ing the conditions set out in subsection (5), that the provincial court judge considers desirable for preventing the commission of an offence referred to in subsection (1). Review of sections 25.1 to 25.4 of the Criminal Code
46.1 Within three years after this section comes into force, a review of sections 25.1 to 25.4 of the Criminal Code and their operation shall be undertaken by any committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for that purpose. CONSEQUENTIAL AMENDMENTS
1996, c. 19
Controlled Drugs and Substances Act 47. The definition ‘‘offence-related property’’ in subsection 2(1) of the Controlled Drugs and Substances Act is replaced by the following:
‘‘offence-related property’’ « bien infractionnel »
‘‘offence-related property’’ means, with the exception of a controlled substance, any property, within or outside Canada, (a) by means of or in respect of which a designated substance offence is committed, (b) that is used in any manner in connection with the commission of a designated substance offence, or (c) that is intended for use for the purpose of committing a designated substance offence;
1997, c. 18, par. 140(b), (c)(i); 1999, c. 5, s. 48
48. Sections 8 and 9 of the Act are repealed.
1996, c. 19, s. 93.2
49. (1) Subsections 14(3) and (4) of the Act are replaced by the following:
Restraint order
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in such manner as may be specified in the order.
2001 Property outside Canada
Code criminel (crime organi (4) A restraint order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require. (2) Paragraph 14(9)(a) of the Act is replaced by the following: (a) an order is made under subsection 19(3) or 19.1(3) of this Act or subsection 490(9) or (11) of the Criminal Code in relation to the property; or 50. The Act is amended by adding the following after section 14:
Management order
14.1 (1) On application of the Attorney General or of any other person with the written consent of the Attorney General, a justice in the case of offence-related property seized under section 11, or a judge in the case of offence-related property restrained under section 14, may, where he or she is of the opinion that the circumstances so require, (a) appoint a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge or justice; and (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).
Appointment of Minister of Public Works and Government Services
(2) When the Attorney General of Canada so requests, a judge or justice appointing a person under subsection (1) shall appoint the Minister of Public Works and Government Services.
Power to manage
(3) The power to manage or otherwise deal with property under subsection (1) includes (a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and (b) in the case of property that has little or no value, the power to destroy that property.
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Application for destruction order
(4) Before a person appointed to manage property destroys property that has little or no value, he or she shall apply to a court for a destruction order.
Notice
(5) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (6) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.
Manner of giving notice
(6) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.
Order
(7) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.
When management order ceases to have effect
(8) A management order ceases to have effect when the property that is the subject of the management order is returned in accordance with the law to an applicant or forfeited to Her Majesty.
Application to vary conditions
(9) The Attorney General may at any time apply to the judge or justice to cancel or vary any condition to which a management order is subject but may not apply to vary an appointment made under subsection (2).
51. (1) The portion of subsection 16(1) of the Act before paragraph (a) is replaced by the following: Order of forfeiture of property on conviction
16. (1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (2) Subsection 16(2) of the Act is replaced by the following:
Code criminel (crime organi
Property related to other offences
(2) Subject to sections 18 to 19.1, where the evidence does not establish to the satisfaction of the court that the designated substance offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.
Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require. 52. (1) The portion of subsection 17(2) of the Act before paragraph (a) is replaced by the following:
Order of forfeiture of property
(2) Subject to sections 18 to 19.1, where an application is made to a judge under subsection (1) and the judge is satisfied
(2) Section 17 of the Act is amended by adding the following after subsection (4): Property outside Canada
(5) An order may be issued under this section in respect of property situated outside Canada, with any modifications that the circumstances require. 53. The Act is amended by adding the following after section 19:
Notice
19.1 (1) Where all or part of offence-related property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwellinghouse, before making an order of forfeiture, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who resides in the dwelling-house and is a member of the immediate family of the person charged with or convicted of the indictable offence under this Act in relation to which the property would be forfeited.
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(2) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and (c) set out the offence charged and a description of the property.
Non-forfeiture of real property
(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part.
Factors in relation to dwelling-house
(4) Where all or part of the property that would otherwise be forfeited under subsection 16(1) or 17(2) is a dwelling-house, when making a decision under subsection (3), the court shall also consider (a) the impact of an order of forfeiture on any member of the immediate family of the person charged with or convicted of the offence, if the dwelling-house was the member’s principal residence at the time the charge was laid and continues to be the member’s principal residence; and (b) whether the member referred to in paragraph (a) appears innocent of any complicity in the offence or of any collusion in relation to the offence. 54. Section 23 of the Act and the heading before it are repealed. 55. Section 55 of the Act is amended by adding the following after subsection (2):
2001 Regulations pertaining to law enforcement under other Acts of Parliament
Code criminel (crime organi (2.1) The Governor in Council, on the recommendation of the Solicitor General of Canada, may, for the purpose of an investigation or other law enforcement activity conducted under another Act of Parliament, make regulations authorizing a member of a police force or other person under the direction and control of such a member to commit an act or omission — or authorizing a member of a police force to direct the commission of an act or omission — that would otherwise constitute an offence under Part I or the regulations and, without restricting the generality of the foregoing, may make regulations (a) authorizing the Solicitor General of Canada, or the provincial minister responsible for policing in a province, to designate a police force within the Solicitor General’s jurisdiction or the minister’s jurisdiction, as the case may be, for the purposes of this subsection; (b) exempting, on such terms and conditions as may be specified in the regulations, a member of a police force that has been designated pursuant to paragraph (a) and other persons acting under the direction and control of the member from the application of any provision of Part I or the regulations; (c) respecting the issuance, suspension, cancellation, duration and terms and conditions of a certificate, other document or, in exigent circumstances, an approval to obtain a certificate or other document, that is issued to a member of a police force that has been designated pursuant to paragraph (a) for the purpose of exempting the member from the application of Part I or the regulations; (d) respecting the detention, storage, disposal or other dealing with any controlled substance or precursor; (e) respecting records, reports, electronic data or other documents in respect of a controlled substance or precursor that are required to be kept and provided by any person or class of persons; and (f) prescribing forms for the purposes of the regulations.
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References to prior enactments
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56. Section 61 of the Act is replaced by the following: 61. Any reference in a designation by the Solicitor General of Canada under Part VI of the Criminal Code to an offence contrary to the Narcotic Control Act or Part III or IV of the Food and Drugs Act or any conspiracy or attempt to commit or being an accessory after the fact or any counselling in relation to such an offence shall be deemed to be a reference to an offence contrary to section 5 (trafficking), 6 (importing and exporting) or 7 (production) of this Act, as the case may be, or a conspiracy or attempt to commit or being an accessory after the fact or any counselling in relation to such an offence.
1992, c. 20
Corrections and Conditional Release Act
1996, c. 19, s. 64
57. Paragraphs 3(d) and (e) of Schedule II to the Corrections and Conditional Release Act are repealed.
1998, c. 34
Corruption of Foreign Public Officials Act 58. Sections 4 to 7 of the Corruption of Foreign Public Officials Act are repealed.
2000, c. 24
Personal consent of Attorney General
Crimes Against Humanity and War Crimes Act 59. Subsection 9(3) of the Crimes Against Humanity and War Crimes Act is replaced by the following: (3) No proceedings for an offence under any of sections 4 to 7 of this Act, or under section 354 or subsection 462.31(1) of the Criminal Code in relation to property or proceeds obtained or derived directly or indirectly as a result of the commission of an offence under this Act, may be commenced without the personal consent in writing of the Attorney General or Deputy Attorney General of Canada, and those proceedings may be conducted only by the Attorney General of Canada or counsel acting on their behalf. 60. The heading before section 27 and sections 27 to 29 of the Act are repealed.
Code criminel (crime organi 61. Section 31 of the Act is replaced by the following:
Credits to Fund
31. The Minister of Public Works and Government Services shall pay into the Crimes Against Humanity Fund (a) the net amount received from the disposition of any property referred to in subsections 4(1) to (3) of the Seized Property Management Act that is (i) proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code, obtained or derived directly or indirectly as a result of the commission of an offence under this Act, and (ii) forfeited to Her Majesty and disposed of by that Minister; and (b) any amount paid or recovered as a fine imposed under subsection 462.37(3) of the Criminal Code in substitution for the property referred to in paragraph (a).
R.S., c. 1 (2nd Supp.)
Customs Act
1993, c. 25, s. 89; 1997, c. 18, ss. 119, 120
62. The heading before section 163.1 and sections 163.1 to 163.3 of the Customs Act are repealed.
R.S., c. E-14
Excise Act
1993, c. 25, s. 31
63. Section 2.1 of the Excise Act is replaced by the following:
Possession
2.1 For the purposes of subsections 225(1) and (3) and 235(3), section 239.1 and subsections 240(1) and (2), where one of two or more persons, with the knowledge and consent of the rest, has anything in the person’s possession, it shall be deemed to be in the custody and possession of each and all of them.
1993, c. 25, s. 38; 1997, c. 18, ss. 121, 122
64. The heading before section 126.1 and sections 126.1 to 126.3 of the Act are repealed.
�� R.S., c. 30 (4th Supp.)
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Mutual Legal Assistance in Criminal Matters Act 65. The Mutual Legal Assistance in Criminal Matters Act is amended by adding the following after section 9.2: Foreign Orders for Restraint, Seizure and Forfeiture of Property in Canada
Orders for restraint or seizure
9.3 (1) When a written request is presented to the Minister by a state or entity, other than the International Criminal Court referred to in section 9.1, for the enforcement of an order for the restraint or seizure of property situated in Canada issued by a court of criminal jurisdiction of the state or entity, the Minister may authorize the Attorney General of Canada or an attorney general of a province to make arrangements for the enforcement of the order.
Filing of order
(2) On receipt of an authorization, the Attorney General of Canada or an attorney general of a province may file a copy of the order with the superior court of criminal jurisdiction of the province in which the property that is the subject of the order is believed to be located. On being filed, the order shall be entered as a judgment of that court and may be executed anywhere in Canada.
Conditions
(3) Before filing an order, the Attorney General of Canada or an attorney general of a province must be satisfied that (a) the person has been charged with an offence within the jurisdiction of the state or entity; and (b) the offence would be an indictable offence if it were committed in Canada.
Effect of registered order
(4) On being filed, (a) an order for the seizure of proceeds of crime may be enforced as if it were a warrant issued under subsection 462.32(1) of the Criminal Code; (b) an order for the restraint of proceeds of crime may be enforced as if it were an order made under subsection 462.33(3) of the Criminal Code;
Code criminel (crime organi (c) an order for the seizure of offence-related property may be enforced as if it were a warrant issued under subsection 487(1) of the Criminal Code or subsection 11(1) of the Controlled Drugs and Substances Act, as the case may be; and (d) an order for the restraint of offence-related property may be enforced as if it were an order made under subsection 490.8(3) of the Criminal Code or subsection 14(3) of the Controlled Drugs and Substances Act, as the case may be.
Filing of amendments
(5) When an order is filed under subsection (2), a copy of any amendments made to the order may be filed in the same way as the order, and the amendments do not, for the purpose of this Act, have effect until they are registered.
Orders of forfeiture
9.4 (1) When a written request is presented to the Minister by a state or entity, other than the International Criminal Court referred to in section 9.1, for the enforcement of an order of forfeiture of property situated in Canada issued by a court of criminal jurisdiction of the state or entity, the Minister may authorize the Attorney General of Canada or an attorney general of a province to make arrangements for the enforcement of the order.
Grounds for refusal of request
(2) The Minister shall refuse the request if he or she (a) has reasonable grounds to believe that the request has been made for the purpose of punishing a person by reason of their race, sex, sexual orientation, religion, nationality, ethnic origin, language, colour, age, mental or physical disability or political opinion; (b) is of the opinion that enforcement of the order would prejudice an ongoing proceeding or investigation; (c) is of the opinion that enforcement of the order would impose an excessive burden on the resources of federal, provincial or territorial authorities; (d) is of the opinion that enforcement of the order might prejudice Canada’s security, national interest or sovereignty; or
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(e) is of the opinion that refusal of the request is in the public interest. Filing of order
(3) On receipt of an authorization, the Attorney General of Canada or an attorney general of a province may file a copy of the order with the superior court of criminal jurisdiction of the province in which all or part of the property that is the subject of the order is believed to be located. On being filed, the order shall be entered as a judgment of that court and may be executed anywhere in Canada.
Deemed filing
(4) An order that is filed under subsection (3) by an attorney general of a province is deemed to be filed by the Attorney General of Canada.
Conditions
(5) Before filing an order, the Attorney General of Canada or an attorney general of a province must be satisfied that (a) the person has been convicted of an offence within the jurisdiction of the state or entity; (b) the offence would be an indictable offence if it were committed in Canada; and (c) the conviction and the order are not subject to further appeal.
Effect of registered order
(6) From the date it is filed under subsection (3), subject to subsection (4), (a) an order of forfeiture of proceeds of crime has the same effect as if it were an order under subsection 462.37(1) or 462.38(2) of the Criminal Code; and (b) an order for the forfeiture of offence-related property has the same effect as if it were an order under subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act, as the case may be.
Filing of amendments
(7) When an order is filed under subsection (3), a copy of any amendments made to the order may be filed in the same way as the order, and the amendments do not, for the purpose of this Act, have effect until they are registered.
2001 Notice
Code criminel (crime organi (8) When an order has been filed under subsection (3), (a) an order of forfeiture of proceeds of crime shall not be executed before notice in accordance with subsection 462.41(2) of the Criminal Code has been given to any person who, in the opinion of the court, appears to have a valid interest in the property; and (b) an order of forfeiture of offence-related property shall not be executed before (i) notice in accordance with subsection 490.41(2) of the Criminal Code or section 19.1(2) of the Controlled Drugs and Substances Act has been given to any person who resides in a dwelling-house that is offence-related property and who is a member of the immediate family of the person charged with or convicted of the offence in relation to which property would be forfeited, and (ii) notice in accordance with subsection 490.4(2) of the Criminal Code or subsection 19(2) of the Controlled Drugs and Substances Act has been given to any person who, in the opinion of the court, appears to have a valid interest in the property.
Application of Criminal Code
(9) Subsection 462.41(3) and section 462.42 of the Criminal Code apply, with any modifications that the circumstances require, to a person who claims an interest in proceeds of crime, and subsections 490.4(3) and 490.41(3) and section 490.5 of the Criminal Code and subsections 19(3) and 20(4) of the Controlled Drugs and Substances Act apply, with any modifications that the circumstances require, to a person who claims an interest in offence-related property.
Presumption
(10) A person who is convicted of an offence in relation to which an order of forfeiture is issued by a court of criminal jurisdiction of a state or entity is deemed to be a person referred to in paragraph 462.41(3)(a) or 462.42(1)(a) of the Criminal Code.
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(11) The provisions of the Seized Property Management Act apply in respect of all property forfeited under this section. 66. (1) Subsection 18(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (b), by adding the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) order a person named in it to answer any question and to produce any record or thing to the person designated under paragraph (c) in accordance with the laws of evidence and procedure in the state or entity that presented the request. (2) Subsection 18(3) of the Act is replaced by the following:
Designation of judge
(3) For greater certainty, under paragraph (2)(c), a judge who makes an order under subsection (1) may designate himself or herself — either alone or with another person, including another judge — or may designate another person, including another judge.
2000, c. 24, s. 63(2)
(3) Subsection 18(7) of the Act is replaced by the following:
Refusal to comply
(7) A person named in an order made under subsection (1) may refuse to answer any question or to produce a record or thing to the person designated under paragraph (2)(c) if (a) answering the question or producing the record or thing would disclose information that is protected by the Canadian law of non-disclosure of information or privilege; (b) requiring the person to answer the question or to produce the record or thing would constitute a breach of a privilege recognized by a law in force in the state or entity that presented the request; or (c) answering the question or producing the record or thing would constitute the commission by the person of an offence against a law in force in the state or entity that presented the request.
Code criminel (crime organi
R.S., c. N-5
National Defence Act
1998, c. 35, s. 1(4)
67. (1) The definitions ‘‘acte de gangstérisme’’ and ‘‘gang’’ in subsection 2(1) of the French version of the National Defence Act are repealed.
1998, c. 35, s. 1(4)
(2) The definitions ‘‘criminal organization’’ and ‘‘criminal organization offence’’ in subsection 2(1) of the English version of the Act are replaced by the following:
‘‘criminal organization’’ « organisation criminelle »
‘‘criminal organization’’ has the same meaning as in subsection 467.1(1) of the Criminal Code;
‘‘criminal organization offence’’ « infraction d’organisation criminelle »
‘‘criminal organization offence’’ means (a) an offence under section 467.11, 467.12 or 467.13 of the Criminal Code, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or (b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: ‘‘serious offence’’ « infraction grave »
‘‘serious offence’’ means an offence under this Act or an indictable offence under any other Act of Parliament, for which the maximum punishment is imprisonment for five years or more, or an offence that is prescribed by regulation under subsection 467.1(4) of the Criminal Code; (4) Subsection 2(1) of the French version of the Act is amended by adding the following in alphabetical order:
« infraction d’organisation criminelle » ‘‘criminal organization offence’’
« infraction d’organisation criminelle »
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a) Soit une infraction prévue aux articles 467.11, 467.12 ou 467.13 du Code criminel ou une infraction grave commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle; b) soit le complot ou la tentative en vue de commettre une telle infraction ou le fait d’en être complice après le fait ou d’en conseiller la perpétration. « organisation criminelle » ‘‘criminal organization’’
« organisation criminelle » S’entend au sens du paragraphe 467.1(1) du Code criminel.
1998, c. 35, s. 36
68. Subsection 140.4(3) of the French version of the Act is replaced by the following:
Exception dans le cas d’une organisation criminelle
(3) Par dérogation au paragraphe 120(1) de la Loi sur le système correctionnel et la mise en liberté sous condition, la cour martiale peut ordonner que la personne condamnée sur déclaration de culpabilité sous le régime de la présente loi pour une infraction d’organisation criminelle à une peine d’emprisonnement minimale de deux ans — y compris une peine d’emprisonnement à perpétuité à condition que cette peine n’ait pas constitué un minimum en l’occurrence — purge, avant d’être admissible à la libération conditionnelle totale, la moitié de sa peine jusqu’à concurrence de dix ans.
1991, c. 26
Proceeds of Crime (money laundering) Act
1996, c. 19, s. 84
69. Section 2 of the Proceeds of Crime (money laundering) Act is replaced by the following:
Object of Act
2. The object of this Act is to establish record-keeping requirements in the financial field in order to facilitate the investigation and prosecution of offences under subsection 462.31(1) of the Criminal Code.
Code criminel (crime organi
2000, c. 17
Proceeds of Crime (Money Laundering) Act
2000, c. 24, s. 76.1(1)
70. The definition ‘‘money laundering offence’’ in section 2 of the Proceeds of Crime (Money Laundering) Act is replaced by the following:
‘‘money laundering offence’’ « infraction de recyclage des produits de la criminalité »
‘‘money laundering offence’’ means an offence under subsection 462.31(1) of the Criminal Code.
71. Subsection 18(2) of the Act is replaced by the following: Return of seized currency or monetary instruments
(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the person from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code. 72. The definition ‘‘judge’’ in subsection 60(17) of the Act is replaced by the following:
‘‘judge’’ « juge »
1993, c. 37
‘‘judge’’ means a provincial court judge as defined in section 2 of the Criminal Code or a judge as defined in subsection 462.3(1) of that Act. Seized Property Management Act 73. (1) The definition ‘‘enterprise crime offence’’ in section 2 of the Seized Property Management Act is repealed.
1996, c. 19, s. 85
(2) The definition ‘‘designated substance offence’’ in section 2 of the English version of the Act is repealed.
1996, c. 19, s. 85
(3) The definitions ‘‘proceeds of crime’’, ‘‘restrained property’’ and ‘‘seized property’’ in section 2 of the Act are replaced by the following:
‘‘proceeds of crime’’ « produits de la criminalité »
‘‘proceeds of crime’’ has the same meaning as in subsection 462.3(1) of the Criminal Code;
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‘‘restrained property’’ « biens bloqués »
‘‘restrained property’’ means any property that is the subject of a restraint order made under section 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act;
‘‘seized property’’ « biens saisis »
‘‘seized property’’ means any property seized under the authority of any Act of Parliament or pursuant to any warrant or any rule of law in connection with any designated offence;
1996, c. 19, s. 85
(4) The definition ‘‘infraction désignée’’ in section 2 of the French version of the Act is replaced by the following:
« infraction désignée » ‘‘designated offence’’
« infraction désignée » S’entend au sens du paragraphe 462.3(1) du Code criminel.
(5) Section 2 of the English version of the Act is amended by adding the following in alphabetical order: ‘‘designated offence’’ « infraction désignée »
‘‘designated offence’’ has the same meaning as in subsection 462.3(1) of the Criminal Code;
1996, c. 19, s. 86
74. (1) The portion of section 3 of the Act before subparagraph (b)(ii) is replaced by the following: 3. The purposes of this Act are
Purposes of Act
(a) to authorize the Minister to provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of property in connection with designated offences, or property that is or may be proceeds of crime or offence-related property; (b) to authorize the Minister to manage certain property (i) seized in connection with designated offences, (2) Subparagraph 3(b)(iii) of the Act is replaced by the following: (iii) restrained pursuant to a restraint order made under section 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act; 1997, c. 18, s. 135(F)
75. Paragraphs 4(1)(a) and (b) of the Act are replaced by the following:
Code criminel (crime organi (a) seized under a warrant issued under section 462.32 or 487 of the Criminal Code or section 11 of the Controlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 462.331(2) or 490.81(2) of the Criminal Code or subsection 14.1(2) of the Controlled Drugs and Substances Act, as the case may be; (b) subject to a restraint order made under section 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 462.331(2) or 490.81(2) of the Criminal Code or subsection 14.1(2) of the Controlled Drugs and Substances Act, as the case may be;
76. Subsection 5(1) of the Act is replaced by the following: Transfer of property
5. (1) Every person who has control of any property that is subject to a management order issued under subsection 462.331(1) or 490.81(1) of the Criminal Code, subsection 14.1(1) of the Controlled Drugs and Substances Act or subsection 7(1) of this Act shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property or any part of the property that is needed as evidence or is necessary for the purposes of an investigation. 77. Subsection 7(2) of the Act is replaced by the following:
Power to manage
(2) The power of the Minister in respect of any seized property that is the subject of a management order includes (a) in the case of perishable or rapidly depreciating property, the power to make an interlocutory sale of that property; and (b) in the case of property that has little or no value, the power to destroy that property.
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Application for destruction order
(2.1) Before the Minister destroys property that has little or no value, he or she shall apply to a court for a destruction order.
Notice
(2.2) Before making a destruction order in relation to any property, a court shall require notice in accordance with subsection (2.3) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.
Manner of giving notice
(2.3) A notice shall (a) be given or served in the manner that the court directs or that may be specified in the rules of the court; and (b) be of any duration that the court considers reasonable or that may be specified in the rules of the court.
Order
(2.4) A court may order that the property be destroyed if it is satisfied that the property has little or no value, whether financial or other.
1996, c. 19, s. 89(1)
78. Paragraph 9(a) of the Act is replaced by the following: (a) provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of any property in connection with designated offences, or any property that is or may be proceeds of crime or offence-related property;
1996, c. 19, s. 91
79. Paragraph 11(a) of the Act is replaced by the following: (a) the proceeds of disposition of (i) property forfeited to Her Majesty pursuant to subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act, or (ii) property that is or was the subject of a management order and that was forfeited pursuant to subsection 490(9) of the Criminal Code and the proceeds arising from the disposition of property by that foreign state, and
Code criminel (crime organi COORDINATING AMENDMENTS
2000, c. 17
80. On the later of the coming into force of subparagraph 11(a)(i) of the Seized Property Management Act, as enacted by section 96 of the Proceeds of Crime (Money Laundering) Act, and section 79 of this Act, subparagraph 11(a)(i) of the Seized Property Management Act is replaced by the following: (i) property forfeited to Her Majesty under subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) Act, or
Bill C-11
81. (1) If Bill C-11, introduced in the 1st session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent, then the provisions mentioned in subsections (2) and (3) are amended as provided in those subsections.
Criminal Code — section 183 replaced
(2) On the later of the coming into force of section 4 of this Act and section 245 of the other Act, the definition ‘‘offence’’ in section 183 of the Criminal Code is replaced by the following:
‘‘offence’’ « infraction »
‘‘offence’’ means an offence contrary to, any conspiracy or attempt to commit or being an accessory after the fact in relation to an offence contrary to, or any counselling in relation to an offence contrary to (a) any of the following provisions of this Act, namely, (i) section 47 (high treason), (ii) section 51 (intimidating Parliament or a legislature),
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Criminal Code (organized cr (iii) section 52 (sabotage), (iv) section 57 (forgery, etc.), (v) section 61 (sedition), (vi) section 76 (hijacking), (vii) section 77 (endangering safety of aircraft or airport), (viii) section 78 (offensive weapons, etc., on aircraft), (ix) section 78.1 (offences against maritime navigation or fixed platforms), (x) section 80 (breach of duty), (xi) section 81 (using explosives), (xii) section 82 (possessing explosives), (xiii) section 96 (possession of weapon obtained by commission of offence), (xiv) section 99 (weapons trafficking), (xv) section 100 (possession for purpose of weapons trafficking), (xvi) section 102 (making automatic firearm), (xvii) section 103 (importing or exporting knowing it is unauthorized), (xviii) section 104 (unauthorized importing or exporting), (xix) section 119 (bribery, etc.), (xx) section 120 (bribery, etc.), (xxi) section 121 (fraud on government), (xxii) section 122 (breach of trust), (xxiii) section 123 (municipal corruption), (xxiv) section 132 (perjury), (xxv) section 139 (obstructing justice), (xxvi) section 144 (prison breach), (xxvii) etc.),
subsection
145(1)
(escape,
(xxviii) paragraph 163(1)(a) (obscene materials), (xxix) section 163.1 (child pornography),
Code criminel (crime organi (xxx) section 184 (unlawful interception), (xxxi) section 191 (possession of intercepting device), (xxxii) subsection 201(1) (keeping gaming or betting house), (xxxiii) paragraph 202(1)(e) (pool-selling, etc.), (xxxiv) subsection 210(1) (keeping common bawdy house), (xxxv) subsection 212(1) (procuring), (xxxvi) subsection 212(2) (procuring), (xxxvii) subsection 212(2.1) (aggravated offence in relation to living on the avails of prostitution of a person under the age of eighteen years), (xxxviii) subsection 212(4) (offence — prostitution of person under eighteen), (xxxix) section 235 (murder), (xl) section 264.1 (uttering threats), (xli) section 267 (assault with a weapon or causing bodily harm), (xlii) section 268 (aggravated assault), (xliii) section 269 (unlawfully causing bodily harm), (xliv) section 271 (sexual assault), (xlv) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), (xlvi) section 273 (aggravated sexual assault), (xlvii) section 279 (kidnapping), (xlviii) section 279.1 (hostage taking), (xlix) section 280 (abduction of person under sixteen), (l) section 281 (abduction of person under fourteen), (li) section 282 (abduction in contravention of custody order), (lii) section 283 (abduction), (liii) section 318 (advocating genocide),
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Criminal Code (organized cr (liv) section 327 (possession of device to obtain telecommunication facility or service), (lv) section 334 (theft), (lvi) section 342 (theft, forgery, etc., of credit card), (lvii) section 342.1 (unauthorized use of computer), (lviii) section 342.2 (possession of device to obtain computer service), (lix) section 344 (robbery), (lx) section 346 (extortion), (lxi) section 347 (criminal interest rate), (lxii) section 348 (breaking and entering), (lxiii) section 354 (possession of property obtained by crime), (lxiv) section 356 (theft from mail), (lxv) section 367 (forgery), (lxvi) section 368 (uttering forged document), (lxvii) section 372 (false messages), (lxviii) section 380 (fraud), (lxix) section 381 (using mails to defraud), (lxx) section 382 (fraudulent manipulation of stock exchange transactions), (lxxi) section 423.1 (intimidation of justice system participant or journalist), (lxxii) section 424 (threat to commit offences against internationally protected person), (lxxiii) section 426 (secret commissions), (lxxiv) section 430 (mischief), (lxxv) section 431 (attack on premises, residence or transport of internationally protected person), (lxxvi) section 433 (arson), (lxxvii) section 434 (arson),
Code criminel (crime organi (lxxviii) section 434.1 (arson), (lxxix) section 435 (arson for fraudulent purpose), (lxxx) section 449 (making counterfeit money), (lxxxi) section 450 (possession, etc., of counterfeit money), (lxxxii) section 452 (uttering, etc., counterfeit money), (lxxxiii) section 462.31 (laundering proceeds of crime), (lxxxiv) subsection 462.33(11) (acting in contravention of restraint order), or (lxxxv) section 467.11 (participation in criminal organization), (lxxxvi) section 467.12 (commission of offence for criminal organization), or (lxxxvii) section 467.13 (instructing commission of offence for criminal organization), (b) section 198 (fraudulent bankruptcy) of the Bankruptcy and Insolvency Act, (c) any of the following provisions of the Competition Act, namely, (i) section 45 (conspiracy) in relation to any of the matters referred to in paragraphs 45(4)(a) to (d) of that Act, (ii) section 47 (bid-rigging), or (iii) subsection telemarketing),
52.1(3)
(deceptive
(d) any of the following provisions of the Controlled Drugs and Substances Act, namely, (i) section 5 (trafficking), (ii) section 6 (importing and exporting), or (iii) section 7 (production), (e) section 3 (bribing a foreign public official) of the Corruption of Foreign Public Officials Act, (e.1) the Crimes Against Humanity and War Crimes Act,
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(f) either of the following provisions of the Customs Act, namely, (i) section 153 (false statements), or (ii) section 159 (smuggling), (g) any of the following provisions of the Excise Act, namely, (i) section 158 (unlawful distillation of spirits), (ii) section 163 (unlawful selling of spirits), (iii) subsection 233(1) (unlawful packaging or stamping), or (iv) subsection 240(1) (unlawful possession or sale of manufactured tobacco or cigars), (h) any of the following provisions of the Export and Import Permits Act, namely, (i) section 13 (export or attempt to export), (ii) section 14 (import or attempt to import), (iii) section 15 (diversion, etc.), (iv) section 16 (no transfer of permits), (v) section 17 (false information), or (vi) section 18 (aiding and abetting), (i) any of the following provisions of the Immigration and Refugee Protection Act, namely, (i) section 117 (organizing entry into Canada), (ii) section 118 (trafficking in persons), (iii) section 119 (disembarking persons at sea), (iv) section 122 (offences related to documents), (v) section 126 (counselling misrepresentation), or (vi) section 129 (offences relating to officers), or (j) section 3 (spying) of the Official Secrets Act,
Code criminel (crime organi and includes any other offence that there are reasonable grounds to believe is a criminal organization offence;
Immigration and Refugee Protection Act — sections 130, 131, 132 and 246
(3) On the latest of the coming into force of subsections 12(5) and (6) of this Act and section 130 of the other Act,
(a) section 130 of the other Act is repealed; (b) section 131 of the other Act is replaced by the following: Counselling offence
131. Every person who knowingly induces, aids or abets or attempts to induce, aid or abet any person to contravene section 117, 118, 119, 122, 124 or 129, or who counsels a person to do so, commits an offence and is liable to the same penalty as that person. (c) section 132 of the other Act is repealed; and (d) section 246 of the other Act is repealed.
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Bill C-15
82. (1) If Bill C-15, introduced in the 1st session of the 37th Parliament and entitled the Criminal Law Amendment Act, 2001 (the ‘‘other Act’’), receives royal assent, then the provisions mentioned in subsections (2) to (4) are amended as provided in those subsections.
Criminal Code — section 462.47 (French version) replaced
(2) On the later of the coming into force of section 25 of this Act and section 25 of the other Act, section 462.47 of the French version of the Criminal Code is replaced by the following:
Nullité des actions contre les informateurs
462.47 Il est entendu que, sous réserve de l’article 241 de la Loi de l’impôt sur le revenu, aucune action ne peut être intentée contre une personne pour le motif qu’elle aurait révélé à un agent de la paix ou au procureur général des faits sur lesquels elle se fonde pour avoir des motifs raisonnables de soupçonner que des biens sont des produits de la criminalité ou pour croire qu’une autre personne a commis une infraction désignée ou s’apprête à le faire.
Criminal Code — subsection 515(4.1) (French version) replaced
(3) On the later of the coming into force of subsection 37(1) of this Act and section 32 of the other Act, subsection 515(4.1) of the French version of the Criminal Code is replaced by the following:
Condition additionnelle
(4.1) Lorsqu’il rend une ordonnance en vertu du paragraphe (2) dans le cas d’une infraction perpétrée avec usage, tentative ou menace de violence contre autrui, de l’infraction visée aux articles 264 (harcèlement criminel) ou 423.1 (intimidation d’une personne associée au système judiciaire), d’une infraction aux paragraphes 5(1) ou (2), 6(1) ou (2) ou 7(1) de la Loi réglementant certaines drogues et autres substances ou d’une infraction relative à une arme à feu, une arbalète, une arme prohibée, une arme à autorisation restreinte, un dispositif prohibé, des munitions, des munitions prohibées ou des substances explosives, le juge de paix doit, s’il en arrive à la conclusion qu’il est souhaitable de le faire pour la sécurité du prévenu, de la victime ou de toute autre personne, assortir l’ordonnance d’une condition lui interdisant, jusqu’à ce qu’il soit jugé conformément à la
Code criminel (crime organi loi, d’avoir en sa possession de tels objets ou l’un ou plusieurs de ceux-ci.
Criminal Code — subsections 631(3) to (6) replaced
(4) On the later of the coming into force of section 38 of this Act and section 62 of the other Act, subsections 631(3) to (6) of the Criminal Code are replaced by the following:
Alternate jurors
(2.1) If the judge considers it advisable in the interests of justice to have one or two alternate jurors, the judge shall so order before the clerk of the court draws out the cards under subsection (3) or (3.1).
To be drawn by clerk of court
(3) The clerk of the court shall, in open court, draw out the cards referred to in subsection (1), one after another, and shall call out the name and number on each card as it is drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by where (a) the array of jurors is not challenged; or (b) the array of jurors is challenged but the judge does not direct a new panel to be returned.
Where name not to be called
(3.1) On application by the prosecutor or on its own motion, the court, or a judge of the court, before which the jury trial is to be held, if it is satisfied that it is in the best interest of the administration of justice to do so, including in order to protect the privacy or safety of the members of the jury and alternate jurors, may order that, for the purposes of subsection (3), the clerk of the court shall only call out the number on each card.
Juror and other persons to be sworn
(4) The clerk of the court shall swear each member of the jury, and any alternate jurors, in the order in which his or her card was drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.
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Drawing additional cards if necessary
(5) If the number of persons who answer under subsection (3) or (3.1) is not sufficient to provide a full jury and the number of alternate jurors ordered by the judge, the clerk of the court shall proceed in accordance with subsections (3), (3.1) and (4) until twelve jurors and any alternate jurors are sworn.
Ban on publication, etc.
(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if an order under subsection (3.1) has been made, make an order directing that the identity of a juror or alternate juror or any information that could disclose their identity shall not be published in any document or broadcast in any way, if the court or judge is satisfied that such an order is necessary for the proper administration of justice. COMING INTO FORCE
Coming into force
83. The provisions of this Act, other than sections 80 to 82, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 18
An Act to amend the Eldorado Nuclear Limited Reorganization and Divestiture Act and the Petro-Canada Public Participation Act
BILL C-3 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment relates to the mandatory provisions in the articles of Cameco Corporation (formerly Eldorado Nuclear Limited) and PetroCanada. The enactment provides that the articles of Cameco Corporation will have to contain a 15% individual non-resident share ownership limit for voting shares as well as a cap on aggregate non-resident share ownership voting rights of 25%. The enactment also provides that the articles of Petro-Canada will have to be amended to allow for a 20% individual share ownership limit, while the aggregate non-resident share ownership limits will be eliminated. In addition, the prohibition on the sale, transfer or disposal of all or substantially all of Petro-Canada’s upstream and downstream assets will be replaced with a similar prohibition on the sale, transfer or disposal of all or substantially all of its assets, without distinguishing between the upstream and downstream sectors of activity.
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49-50 ELIZABETH II
CHAPTER 18 An Act to amend the Eldorado Nuclear Limited Reorganization and Divestiture Act and the Petro-Canada Public Participation Act [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1988, c. 41
ELDORADO NUCLEAR LIMITED REORGANIZATION AND DIVESTITURE ACT
1. (1) Subparagraph 5(1)(b)(ii) of the Eldorado Nuclear Limited Reorganization and Divestiture Act is replaced by the following: (ii) to prevent any one non-resident, together with the associates thereof, from holding, beneficially owning or controlling, directly or indirectly, otherwise than by way of security only, voting securities to which are attached more than fifteen per cent of the votes that may ordinarily be cast to elect directors of the new corporation;
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Eldorado and P
(2) Paragraph 5(1)(c) of the Act is replaced by the following: (c) provisions respecting the counting or prorating of votes cast at any meeting of shareholders of the new corporation and attached to voting securities of the new corporation that are held, beneficially owned or controlled, directly or indirectly, by non-residents so as to limit the counting of those votes to not more than twenty-five per cent of the total number of votes cast by shareholders at that meeting;
1991, c. 10
PETRO-CANADA PUBLIC PARTICIPATION ACT
2. (1) Paragraphs 9(1)(a) to (c) of the Petro-Canada Public Participation Act are replaced by the following: (a) provisions imposing constraints on the issue, transfer and ownership, including joint ownership, of voting shares of PetroCanada to prevent any one person, together with the associates of that person, from holding, beneficially owning or controlling, directly or indirectly, otherwise than by way of security only, in the aggregate voting shares to which are attached more than twenty per cent of the votes that may ordinarily be cast to elect directors of Petro-Canada, other than votes that may be so cast by or on behalf of the Minister;
(2) Paragraph 9(1)(d) of the Act is replaced by the following: (d) provisions preventing Petro-Canada from selling, transferring or otherwise disposing of, whether by one transaction or event or several related transactions or events, all or substantially all of its assets to any one person or group of associated persons or to non-residents, otherwise than by way of security only in connection with the financing of Petro-Canada; (3) Paragraph 9(1)(f) of the Act is replaced by the following:
Eldorado et P (f) provisions respecting the enforcement of the constraints imposed pursuant to paragraph (a); and (4) The portion of subsection 9(4) of the Act before paragraph (a) is replaced by the following:
Exceptions
(4) No provision imposing constraints pursuant to paragraph (1)(a) applies in respect of voting shares of Petro-Canada that are held
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 30
An Act to implement agreements, conventions and protocols concluded between Canada and Slovenia, Ecuador, Venezuela, Peru, Senegal, the Czech Republic, the Slovak Republic and Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income
BILL S-31 ASSENTED TO 18th DECEMBER, 2001
SUMMARY The purpose of this enactment is to implement income tax treaties — income tax conventions or agreements and protocols thereto — that have been concluded with Slovenia, Ecuador, Venezuela, Peru, Senegal, the Czech Republic, the Slovak Republic and Germany. Parts 1 to 7 of this enactment implement tax treaties with Slovenia, Ecuador, Venezuela, Peru, Senegal, the Czech Republic and the Slovak Republic. This is the first time that Canada has concluded a tax treaty with any of these States. It should be noted, however, that the tax treaty between the Government of Canada and the Government of the Czech and Slovak Federal Republic, signed on August 30, 1990, currently applies between Canada and the Czech Republic and Slovak Republic, respectively. Part 8 of this enactment amends the Canada–Germany Tax Convention Act, 1982 to implement a new treaty, replacing the tax agreement with Germany that is currently in force. The tax treaties implemented by this enactement reflect efforts to update and expand Canada’s network of tax treaties so as to obtain results in conformity with current Canadian tax policy. These treaties are generally patterned on the Model Double Taxation Convention prepared by the Organisation for Economic Co-operation and Development. Income tax treaties have two main objectives: the avoidance of double taxation and the prevention of fiscal evasion. Since they contain taxation rules that are different from the provisions of the Income Tax Act, they become effective only after an Act giving them precedence over domestic legislation is passed by Parliament.
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TABLE OF PROVISIONS
AN ACT TO IMPLEMENT AGREEMENTS, CONVENTIONS AND PROTOCOLS CONCLUDED BETWEEN CANADA AND SLOVENIA, ECUADOR, VENEZUELA, PERU, SENEGAL, THE CZECH REPUBLIC, THE SLOVAK REPUBLIC AND GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
SHORT TITLE
1. Short title
PART 1 CANADA–SLOVENIA INCOME TAX CONVENTION
2. Citation of Part 1
3. Definition of ‘‘Convention’’
4. Convention approved
5. Inconsistent laws — general rule
6. Regulations
7. Publication of notice
PART 2 CANADA–ECUADOR INCOME TAX CONVENTION
8. Citation of Part 2
9. Definition of ‘‘Convention’’
10. Convention approved
11. Inconsistent laws — general rule
12. Regulations
13. Publication of notice
PART 3 CANADA–VENEZUELA INCOME TAX CONVENTION
14. Citation of Part 3
�� 15.
Definition of ‘‘Convention’’
16. Convention approved
17. Inconsistent laws — general rule
18. Regulations
19. Publication of notice
PART 4 CANADA–PERU INCOME TAX CONVENTION
20. Citation of Part 4
21. Definition of ‘‘Convention’’
22. Convention approved
23. Inconsistent laws — general rule
24. Regulations
25. Publication of notice
PART 5 CANADA–SENEGAL INCOME TAX CONVENTION
26. Citation of Part 5
27. Definition of ‘‘Convention’’
28. Convention approved
29. Inconsistent laws — general rule
30. Regulations
31. Publication of notice
PART 6 CANADA–CZECH REPUBLIC INCOME TAX CONVENTION
32. Citation of Part 6
33. Definition of ‘‘Convention’’
34. Convention approved
35. Inconsistent laws — general rule
36. Regulations
37. Publication of notice
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PART 7 CANADA–SLOVAK REPUBLIC INCOME TAX AGREEMENT
38. Citation of Part 7
39. Definition of ‘‘Agreement’’
40. Agreement approved
41. Inconsistent laws — general rule
42. Regulations
43. Publication of notice
PART 8 CANADA–GERMANY INCOME TAX AGREEMENT
44-46. Canada–Germany Tax Agreement Act, 1982 47.
Agreement approved SCHEDULES 1 TO 8
49-50 ELIZABETH II
CHAPTER 30 An
Act to implement agreements, conventions and protocols concluded between Canada and Slovenia, Ecuador, Venezuela, Peru, Senegal, the Czech Republic, the Slovak Republic and Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income
[Assented to 18th December, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Income Tax Conventions Implementation Act, 2001. PART 1
Citation of Part 1
CANADA–SLOVENIA INCOME TAX CONVENTION 2. This Part may be cited as the Canada– Slovenia Income Tax Convention Act, 2001.
Definition of ‘‘Convention’’
3. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Republic of Slovenia set out in Schedule 1.
Convention approved
4. The Convention is approved and has the force of law in Canada during the period that the Convention, by its terms, is in force. 5. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Convention and the provisions of any other law, the provisions of this Part and the Convention prevail to the extent of the inconsistency.
Inconsistent laws — general rule
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Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
6. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
7. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination. PART 2 CANADA–ECUADOR INCOME TAX CONVENTION
Citation of Part 2
8. This Part may be cited as the Canada– Ecuador Income Tax Convention Act, 2001.
Definition of ‘‘Convention’’
9. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Republic of Ecuador set out in Part 1 of Schedule 2, as amended by the protocol set out in Part 2 of that Schedule.
Convention approved
10. The Convention is approved and has the force of law in Canada during the period that the Convention, by its terms, is in force.
Inconsistent laws — general rule
11. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Convention and the provisions of any other law, the provisions of this Part and the Convention prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Conventions fis
Regulations
12. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
13. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination. PART 3 CANADA–VENEZUELA INCOME TAX CONVENTION
Citation of Part 3
14. This Part may be cited as the Canada– Venezuela Income Tax Convention Act, 2001.
Definition of ‘‘Convention’’
15. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Bolivarian Republic of Venezuela set out in Part 1 of Schedule 3, as amended by the Protocol set out in Part 2 of that Schedule.
Convention approved
16. The Convention is approved and has the force of law in Canada during the period that, by its terms, it is in force.
Inconsistent laws — general rule
17. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or of the Convention and the provisions of any other law, the provisions of this Part and of the Convention prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
18. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
19. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the
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Income Tax Con
Canada Gazette within 60 days after its entry into force or termination.
PART 4
CANADA–PERU INCOME TAX CONVENTION Citation of Part 4
20. This Part may be cited as the Canada– Peru Income Tax Convention Act, 2001.
Definition of ‘‘Convention’’
21. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Republic of Peru set out in Part 1 of Schedule 4, as amended by the protocol set out in Part 2 of that Schedule.
Convention approved
22. The Convention is approved and has the force of law in Canada during the period that the Convention, by its terms, is in force.
Inconsistent laws — general rule
23. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Convention and the provisions of any other law, the provisions of this Part and the Convention prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
24. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
25. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination.
Conventions fis PART 5 CANADA–SENEGAL INCOME TAX CONVENTION
Citation of Part 5
26. This Part may be cited as the Canada– Senegal Income Tax Convention Act, 2001.
Definition of ‘‘Convention’’
27. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Republic of Senegal set out in Schedule 5.
Convention approved
28. The Convention is approved and has the force of law in Canada during the period that the Convention, by its terms, is in force.
Inconsistent laws — general rule
29. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Convention and the provisions of any other law, the provisions of this Part and the Convention prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
30. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
31. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination. PART 6 CANADA–CZECH REPUBLIC INCOME TAX CONVENTION
Citation of Part 6
32. This Part may be cited as the Canada– Czech Republic Income Tax Convention Act, 2001.
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Income Tax Con
Definition of ‘‘Convention’’
33. In this Part, ‘‘Convention’’ means the Convention between the Government of Canada and the Government of the Czech Republic set out in Schedule 6.
Convention approved
34. The Convention is approved and has the force of law in Canada during the period that the Convention, by its terms, is in force.
Inconsistent laws — general rule
35. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Convention and the provisions of any other law, the provisions of this Part and the Convention prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Convention and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
36. The Minister of National Revenue may make any regulations that are necessary for carrying out the Convention or for giving effect to any of its provisions.
Publication of notice
37. The Minister of Finance shall cause a notice of the day on which the Convention enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination. PART 7 CANADA–SLOVAK REPUBLIC INCOME TAX AGREEMENT
Citation of Part 7
38. This Part may be cited as the Canada– Slovak Republic Income Tax Agreement Act, 2001.
Definition of ‘‘Agreement’’
39. In this Part, ‘‘Agreement’’ means the Agreement between the Government of Canada and the Government of the Slovak Republic set out in Schedule 7.
Agreement approved
40. The Agreement is approved and has the force of law in Canada during the period that the Agreement, by its terms, is in force.
Conventions fis
Inconsistent laws — general rule
41. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Part or the Agreement and the provisions of any other law, the provisions of this Part and the Agreement prevail to the extent of the inconsistency.
Inconsistent laws — exception
(2) In the event of any inconsistency between the provisions of the Agreement and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.
Regulations
42. The Minister of National Revenue may make any regulations that are necessary for carrying out the Agreement or for giving effect to any of its provisions.
Publication of notice
43. The Minister of Finance shall cause a notice of the day on which the Agreement enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination. PART 8 CANADA–GERMANY INCOME TAX AGREEMENT
1980-81-82-83, c. 156
Canada–Germany Tax Agreement Act, 1982 44. Section 3 of the Canada–Germany Tax Agreement Act, 1982 is amended by adding the following after subsection (2):
Inconsistent laws — exception
(2.1) Despite subsection (2), in the event of any inconsistency between the provisions of the Agreement and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency. 45. Section 4 of the Act is replaced by the following:
Publication of notice
4. The Minister of Finance shall cause a notice of the day on which the Agreement enters into force and of the day on which it ceases to have effect to be published in the Canada Gazette within 60 days after its entry into force or termination .
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46. (1) The Agreement and Protocol set out in Schedules I and II to the Act are replaced by the Agreement and the Protocol set out respectively in Parts 1 and 2 of Schedule 8.
Agreement approved
(2) Subsection (1) comes into force on the day following the day on which the Agreement set out in Part 1 of Schedule 8 enters into force. 47. The Agreement set out in Part 1 of Schedule 8, as amended by the Protocol set out in Part 2 of that Schedule, is approved and has the force of law in Canada during the period that, by its terms, it is in force.
Conventions fiscales SCHEDULE 1 (Section 3)
CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF SLOVENIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL
The Government of Canada and the Government of the Republic of Slovenia, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows: ARTICLE 1 Personal Scope This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income and on capital imposed on behalf of Canada and on behalf of Slovenia or of its political subdivisions or local authorities, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are: (a) in the case of Canada: the taxes imposed by the Government of Canada under the Income Tax Act, (hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of the Republic of Slovenia: (i) the tax on profits of legal persons; (ii) the tax on income of individuals, including wages and salaries, income from agricultural activities, income from business and income from immovable and movable property; (hereinafter referred to as ‘‘Slovenian tax’’).
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4. The Convention shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the taxes mentioned in paragraph 3. The competent authorities of the Contracting States shall notify each other of any important changes which have been made in their respective taxation laws. ARTICLE 3 General Definitions 1. For the purposes of this Convention, unless the context otherwise requires: (a) the term ‘‘Canada’’ used in a geographical sense, means the territory of Canada, including: (i) any area beyond the territorial sea of Canada which, in accordance with international law and the laws of Canada, is an area within which Canada may exercise rights with respect to the seabed and subsoil and their natural resources; (ii) the sea and airspace above every area referred to in subparagraph (i) in respect of any activity carried on in connection with the exploration for or the exploitation of the natural resources referred to therein; (b) the term ‘‘Slovenia’’ means the Republic of Slovenia and, when used in a geographical sense, the territory of the Republic of Slovenia, including the sea area, the seabed and subsoil adjacent to the territorial sea of the Republic of Slovenia, if the Republic of Slovenia may exercise its sovereign rights and jurisdiction in accordance with its domestic legislation and international law; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or Slovenia; (d) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ means respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (e) the term ‘‘person’’ includes an individual, a company and any other body of persons and, in the case of Canada, the term also includes a trust; (f) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (g) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative;
Conventions fiscales (ii) in the case of Slovenia, the Ministry of Finance of the Republic of Slovenia or its authorized representative;
(h) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership and association deriving its status as such from the laws in force in a Contracting State; (i) the term ‘‘international traffic’’ means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State.
2. As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State for the purposes of the taxes to which the Convention applies. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means: (a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of management, place of incorporation or any other criterion of a similar nature; (b) that State or a political subdivi-sion or local authority thereof or any agency or instrumentality of any such State, subdivision or authority. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available; if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests); (b) if the State in which the individual has his centre of vital interests cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode;
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(c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, it shall be deemed to be a resident only of the State of which it is a national. 4. Where by reason of the provisions of paragraph 1 a person other than an individual or a company is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to such person. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; and (f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources. 3. The term ‘‘permanent establishment’’ shall likewise encompass: (a) a building site, a construction, assembly or installation project or supervisory activities in connection therewith, but only where such site, project or activities continue for a period of more than twelve months; (b) the furnishing of services, including consultancy services, by an enterprise of a Contracting State through its employees or other personnel in the other Contracting State, but only where such activities (for the same or related projects) continue with or without interruptions for a period exceeding nine months within any twelve month period.
Conventions fiscales
4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research, or for similar activities of a preparatory or auxiliary character for the enterprise; (f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e) provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 5. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 6 applies — is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. 7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
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Income Tax Convention ARTICLE 6
Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State. 2. For the purposes of this Convention, the term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant taxation law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. 3. In determining the profits of a permanent establishment, there shall be allowed those deductible expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere.
Conventions fiscales
4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary. The method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article. 5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 7. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of paragraph 1 and of Article 7, profits derived by an enterprise of a Contracting State from a voyage of a ship or aircraft where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State may be taxed in that other State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. 4. In this Article, the term ‘‘operation of ships or aircraft in international traffic’’ by an enterprise, includes the charter or rental of ships or aircraft, and the rental of containers and related equipment, by that enterprise provided that such charter or rental is incidental to the operation by that enterprise of ships or aircraft in international traffic.
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Income Tax Convention ARTICLE 9 Associated Enterprises
1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other. 3. A Contracting State shall not change the profits of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its national laws and, in any case, after six years from the end of the year in which the profits which would be subject to such change would, but for the conditions referred to in paragraph 1, have accrued to that enterprise. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
Conventions fiscales
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the dividends the tax so charged shall not exceed: (a) except in the case of dividends paid by a non-residentowned investment corporation that is a resident of Canada, 5 per cent of the gross amount of the dividends if the beneficial owner is a company that: (i) controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends where that company is a resident of Canada; (ii) holds directly at least 25 per cent of the capital of the company paying the dividends where that company is a resident of Slovenia; (b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. 4. The provisions of paragraph 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the earnings of a company attributable to a permanent establishment in that State, a tax in addition to the tax which would be chargeable on the earnings of
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a company which is a national of that State, provided that any additional tax so imposed shall not exceed 5 per cent of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the profits, including any gains, attributable to a permanent establishment in a Contracting State in a year and previous years after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits by that State. 7. The provisions of paragraph 6 shall also apply with respect to earnings derived from the alienation of immovable property in one of the Contracting States by a company carrying on a trade in immovable property, whether or not it has a permanent establishment in that State, but only insofar as these earnings may be taxed by that State under the provisions of Article 6 or paragraph 1 of Article 13. ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2: (a) interest arising in a Contracting State and paid in respect of indebtedness of the government of that State or of a political subdivision or local authority thereof shall, provided that the interest is beneficially owned by a resident of the other Contracting State, be taxable only in that other State; (b) interest arising in Slovenia and paid to a resident of Canada shall be taxable only in Canada if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by the Export Development Corporation; (c) interest arising in Canada and paid to a resident of Slovenia shall be taxable only in Slovenia if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by the Slovenian Export Company (Slovenska izvozna druzba); and (d) interest arising in a Contracting State and paid to a resident of the other Contracting State which was constituted and is operated exclusively to administer or provide benefits under one or more pension, retirement or other employee benefits plans shall not be taxable in the first-mentioned State provided that:
Conventions fiscales (i) the resident is the beneficial owner of the interest and is generally exempt from tax in the other State; and (ii) the interest is not derived from carrying on a trade or a business or from a related person.
4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. Penalty charges for late payment shall not be regarded as interest for the purposes of this Article. 5. The provisions of paragraphs 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
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2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the royalties the tax so charged shall not exceed 10 per cent of the gross amount of the royalties. 3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including payments of any kind in respect of motion picture films and works on film, videotape, tape or other means of reproduction for use in connection with television or radio, for the use of, or the right to use any patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
Conventions fiscales ARTICLE 13 Capital Gains
1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other Contracting State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base may be taxed in that other Contracting State. 3. Gains from the alienation of ships or aircraft operated, or containers used, in international traffic by an enterprise of a Contracting State or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that Contracting State. 4. Gains derived by a resident of a Contracting State from the alienation of: (a) shares (other than shares listed on an approved stock exchange in the other Contracting State) forming part of a substantial interest in the capital stock of a company the value of which shares is derived principally from immovable property situated in that other State; or (b) a substantial interest in a partnership, trust or estate, the value of which is derived principally from immovable property situated in that other State, may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ includes the shares of a company referred to in subparagraph (a) or an interest in a partnership, trust or estate referred to in subparagraph (b) but does not include any property, other than rental property, in which the business of the company, partnership, trust or estate is carried on.
5. Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4 shall be taxable only in the Contracting State of which the alienator is a resident. 6. The provisions of paragraph 5 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State if the gains accrued while the individual was a resident of the first-mentioned State.
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Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless the individual has a fixed base regularly available in the other Contracting State for the purpose of performing the activities. If the individual has or had such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and (b) the remuneration is paid by, or on behalf of, a person who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the person has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
Conventions fiscales ARTICLE 16 Directors’ Fees
Directors’ fees and other similar payments derived by a resident of a Contracting State in that resident’s capacity as a member of the board of directors of a company which is a resident of the other Contracting State, may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. 3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by a resident of the other Contracting State in the context of a visit in the first-mentioned State of a non-profit organization of the other State, provided the visit is substantially supported by public funds. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions arising in Canada and paid to a resident of Slovenia may also be taxed in Canada and according to the law of Canada. However, in the case of periodic pension payments, other than social security benefits, the tax so charged shall not exceed the lesser of: (a) 15 per cent of the gross amount of the pension payments that exceed in the aggregate twelve thousand Canadian dollars in any taxation year; and (b) the rate determined by reference to the amount of tax that the recipient of the payment would otherwise be required to pay for the year on the total amount of the periodic pension payments received by him in the year, if he were resident in Canada.
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3. Notwithstanding the provisions of paragraph 1, pensions paid by, or out of funds created by, the Government of Slovenia or a political subdivision or a local authority thereof to an individual who is a resident of Canada shall be taxable only in Slovenia. 4. Annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the law of that State; but the tax so charged shall not exceed 10 per cent of the portion thereof that is subject to tax in that State. However, this limitation does not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other alienation of an annuity, or to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of any person who acquired the contract. 5. Alimony and other similar payments arising in a Contracting State and paid to a resident of the other Contracting State who is subject to tax therein in respect thereof, shall be taxable only in that other State. ARTICLE 19 Government Service 1. (a) Salaries, wages and similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. (b) However, such salaries, wages or similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of paragraph 1 shall not apply to salaries, wages and similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 Students Payments which a student, apprentice or business trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Conventions fiscales ARTICLE 21 Other Income
1. Subject to the provisions of paragraph 2, items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State. 2. However, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the State in which it arises, and according to the law of that State. Where such income is income from an estate or a trust, other than a trust to which contributions were deductible, the tax so charged shall, provided that the income is taxable in the Contracting State in which the beneficial owner is a resident, not exceed 15 per cent of the gross amount of the income. ARTICLE 22 Capital 1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State, may be taxed in that other State. 2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State. 3. Capital represented by ships and aircraft operated by an enterprise of a Contracting State in international traffic and by movable property pertaining to the operation of such ships and aircraft, shall be taxable only in that State. 4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State. ARTICLE 23 Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in
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Slovenia on profits, income or gains arising in Slovenia shall be deducted from any Canadian tax payable in respect of such profits, income or gains; (b) subject to the existing provisions of the law of Canada regarding the taxation of income from a foreign affiliate and to any subsequent modification of those provisions — which shall not affect the general principle hereof — for the purpose of computing Canadian tax, a company which is a resident of Canada shall be allowed to deduct in computing its taxable income any dividend received by it out of the exempt surplus of a foreign affiliate which is a resident of Slovenia; (c) where in accordance with any provision of this Convention income derived or capital owned by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.
2. In the case of Slovenia, double taxation shall be avoided as follows: (a) where a resident of Slovenia derives income or owns capital which, in accordance with the provisions of this Convention, may be taxed in Canada, Slovenia shall allow: (i) as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Canada; (ii) as a deduction from the tax on capital of that resident, an amount equal to the capital tax paid in Canada; such deduction shall in no case exceed that portion of the income tax or capital tax which has been computed before making the deduction which is attributable to the income or capital, as the case may be, which may be taxed in Canada; (b) where in accordance with any provision of this Convention income derived or capital owned by a resident of Slovenia is exempt from tax in Slovenia, Slovenia may nevertheless, in calculating the amount of tax on the remaining income or capital of such resident, take into account the exempted income or capital.
3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Convention shall be deemed to arise from sources in that other State.
Conventions fiscales ARTICLE 24 Non-discrimination
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to individuals who are not residents of one or both of the Contracting States. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. 4. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable capital of such enterprise, be deductible under the same conditions as if they had been contracted to a resident of the first-mentioned State. 5. The provisions of paragraph 4 shall not affect the operation of any provision of the taxation laws of a Contracting State: (a) relating to the deductibility of interest and which is in force on the date of signature of the Convention (including any subsequent modification of such provisions that does not change the general nature thereof); or (b) adopted after such date by a Contracting State and which is designed to ensure that a person who is not a resident of that State does not enjoy, under the laws of that State, a tax treatment that is more favourable than that enjoyed by residents of that State. 6. The provisions of this Article shall apply to taxes covered by the Convention.
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Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, submit the case in writing to the competent authority of the Contracting State of which that person is a resident. The case must be submitted within two years from the first notification of the action resulting in taxation not in accordance with the provisions of this Convention. 2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual Convention with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Convention. 3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. 4. The competent authorities of the Contracting States may consult together for the elimination of double taxation in cases not provided for in the Convention and may communicate with each other directly for the purpose of applying the Convention. ARTICLE 26 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention, and for the prevention of fiscal evasion. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement in respect of, or the determination of appeals in relation to, taxes. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. 2. Nothing in paragraph 1 shall be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws and the administrative practice of that or of the other Contracting State;
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(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public). ARTICLE 27 Diplomatic Agents and Consular Officers Nothing in this Convention shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special Conventions.
ARTICLE 28 Miscellaneous Rules 1. It is understood, that the provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded by the laws of a Contracting State in the determination of the tax imposed by that State. 2. Nothing in the Convention shall be construed as preventing a Contracting State from imposing a tax on amounts included in the income of a resident of a Contracting State with respect to a partnership, trust, or controlled foreign company, in which the resident has an interest. 3. The Convention shall not apply to any company, trust or partnership that is a resident of a Contracting State and is beneficially owned or controlled directly or indirectly by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust or partnership by that State is substantially lower than the amount that would be imposed by that State if all of the shares of the capital stock of the company or all of the interests in the trust or partnership, as the case may be, were beneficially owned by one or more individuals who were residents of that State.
4. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is resident of one of the Contracting States or who is temporarily present in that State, to a pension plan that is recognized for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognized for tax purposes in that first-mentioned State, provided that:
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(a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before that individual became a resident of or temporarily present in the first-mentioned State; and (b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognized for tax purposes by that State. For the purposes of this paragraph, ‘‘pension plan’’ includes a pension plan created under the social security system in a Contracting State.
5. For purposes of paragraph 3 of Article XXII (Consultation) of the General Convention on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. ARTICLE 29 Entry into Force 1. This Convention shall be ratified and the instruments of ratification shall be exchanged as soon as possible. 2. The Convention shall enter into force 60 days after the exchange of the instruments of ratification and its provisions shall have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after the first day of January in the calendar year next following that in which the exchange of instruments of ratification takes place; and (b) in respect of other taxes for taxation years beginning on or after the first day of January in the calendar year next following that in which the exchange of instruments of ratification takes place. ARTICLE 30 Termination This Convention shall continue in effect indefinitely but either Contracting State may, on or before June 30 of any calendar year after the fifth year from the date of entry into force of the Convention, give to the other Contracting State a notice of
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termination in writing through diplomatic channels; in such event, the Convention shall cease to have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after the first day of January of the next following calendar year; and (b) in respect of other taxes for taxation years beginning on or after the first day of January of the next following calendar year. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Convention. DONE in duplicate at Ljubljana, this 15th day of September 2000, in the English, French and Slovenian languages, each version being equally authentic. FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE REPUBLIC OF SLOVENIA
Pierre Pettigrew
Zvonko Ivanusic
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CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF ECUADOR FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of Canada and the Government of the Republic of Ecuador, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, have agreed as follows: I. SCOPE OF THE CONVENTION ARTICLE 1 Persons Covered This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income imposed on behalf of each Contracting State, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income, including taxes on gains from the alienation of movable or immovable property. 3. The existing taxes to which the Convention shall apply are, in particular: (a) in the case of Canada: the income taxes imposed by the Government of Canada under the Income Tax Act, hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of Ecuador: the income taxes imposed by the Government of Ecuador under the Internal Tax Regime Law (Ley de Régimen Tributario Interno), hereinafter referred to as ‘‘Ecuadorian tax’’.
Conventions fiscales
4. The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. II. DEFINITIONS ARTICLE 3 General Definitions 1. For the purposes of this Convention, unless the context otherwise requires: (a) the term ‘‘Canada’’ used in a geographical sense, means the territory of Canada; (b) the term ‘‘Ecuador’’ means the Republic of Ecuador; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or Ecuador; (d) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State, (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; (e) the term ‘‘person’’ includes an individual, an estate, a trust, a legal person and any other body of persons; (f) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (g) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (h) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative, (ii) in the case of Ecuador, the Director General of the Internal Revenue Service; (i) the term ‘‘international traffic’’ means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except where the ship or aircraft is operated solely between places within the other Contracting State.
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2. As regards the application of the Convention at any time by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over the meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means (a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of incorporation, place of management or any other criterion of a similar nature; however, the term does not include any person who is liable to tax in that State in respect only of income from sources in that State; and (b) that State or a political subdivision or local authority thereof or any agency or instrumentality of any such State, subdivision or authority. 2. Where by reason of the provisions of paragraph 1, an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available; if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests); (b) if the State in which the individual’s centre of vital interests cannot be determined, or if there is not a permanent home available in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; (c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
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3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, then its status shall be determined as follows: (a) it shall be deemed to be a resident only of the State of which it is a national; (b) if it is a national of neither of the States the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to the person. In the absence of such agreement, the person shall not be entitled to claim any relief or exemption from tax provided by the Convention. 4. Where by reason of the provisions of paragraph 1 a person other than an individual or a company is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention. In the absence of such agreement, such person shall not be entitled to claim any relief or exemption from tax provided by the Convention. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory, a workshop or an assembly plant; and (e) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources. 3. The term ‘‘permanent establishment’’ shall also include: (a) a building site or construction or installation project and supervisory activities in connection therewith, but only if such site, project or activities last more than six months; and (b) the furnishing of services, including consulting services, by an enterprise of a Contracting State through employees or other individuals engaged by the enterprise for such purposes in the other Contracting State, but only where such activities
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continue (for the same or a connected project) within that State for a period or periods aggregating more than 183 days within any twelve month period. For the purposes of computing the time period or periods in this paragraph, the duration of activities carried on by an enterprise shall include activities carried on by associated enterprises, within the meaning of Article 9, if the activities between the associated enterprises are connected.
4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; (f) the maintenance of a fixed place of business solely for any combination of activities mentioned in the preceding subparagraphs provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 5. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 6 applies — is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
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6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. III. TAXATION OF INCOME ARTICLE 6 Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property, including income from agriculture or forestry, situated in the other Contracting State may be taxed in that other State. 2. For the purposes of this Convention, the term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant tax law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
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2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment and with all other related persons. 3. In the determination of the profits of a permanent establishment, there shall be allowed as deductions those expenses which are incurred for the purposes of the permanent establishment including executive and general administrative expenses so incurred whether in the State in which the permanent establishment is situated or elsewhere, provided that such expenses are deductible under the taxation law of that State. 4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 6. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of paragraph 1 and Article 7, profits derived from the operation of ships or aircraft used principally to transport passengers or goods exclusively between places in a Contracting State may be taxed in that State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. 4. In this Article, (a) the term ‘‘profits’’ includes (i) gross receipts and revenues derived directly from the operation of ships or aircraft in international traffic, and
Conventions fiscales (ii) interest on amounts generated directly by the operation of ships or aircraft in international traffic provided that the interest is incidental to such operation;
(b) the term ‘‘operation of ships or aircraft in international traffic’’ by an enterprise includes (i) the charter or rental of ships or aircraft, and (ii) the rental of containers and related equipment, by that enterprise provided that such charter or rental is incidental to the operation by that enterprise of ships or aircraft in international traffic.
ARTICLE 9 Associated Enterprises 1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any income which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, has not so accrued, may be included in the income of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the income of an enterprise of that State — and taxes accordingly — income on which an enterprise of the other Contracting State has been charged to tax in that other State and the income so included is income which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of tax charged therein on that income. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.
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3. A Contracting State shall not change the income of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the income which would be subject to such change would, but for the conditions referred to in paragraph 1, have accrued to that enterprise. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: (a) except in the case of dividends paid by a non-residentowned investment corporation that is a resident of Canada, 5 per cent of the gross amount of the dividends if the beneficial owner is a company that controls directly or indirectly at least 25 per cent of the voting power in the company paying the dividends; and (b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means income from shares, ‘‘jouissance’’ shares or ‘‘jouissance’’ rights or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the taxation law of the State of which the company making the distribution is a resident. 4. The provisions of paragraph 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
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5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the alienation of immovable property situated in that State by a company carrying on a trade in immovable property or on the earnings of a company attributable to a permanent establishment in that State, a tax in addition to the tax which would be chargeable on the earnings of a company which is a national of that State, except that any additional tax so imposed shall not exceed 5 per cent of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the earnings attributable to the alienation of such immovable property situated in a Contracting State as may be taxed by that State under the provisions of Article 6 or of paragraphs 1 or 4 of Article 13, and the profits, including any gains, attributable to a permanent establishment in a Contracting State in a year or previous years after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits in that State.
ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises, and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
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3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State shall be exempt from tax in that State if: (a) it is paid to the Government of the other Contracting State or to a political subdivision or local authority thereof or the Central Bank of that State; (b) it is paid to a resident of Canada in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by the Export Development Corporation; and (c) it is paid to a resident of Ecuador in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by an organization which is specified and agreed in letters exchanged between the competent authorities of the Contracting States. 4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the taxation law of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 8 or 10. 5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
Conventions fiscales ARTICLE 12 Royalties
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficiary owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed: (a) 10 per cent of the gross amount of the royalties for the use of, or the right to use, industrial, commercial or scientific equipment; (b) 15 per cent of the gross amount of the royalties in all other cases. 3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case, the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
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6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has or had in the other Contracting State or of movable property pertaining to a fixed base that is or was available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State. 3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or from movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State. 4. Gains derived by a resident of the Contracting State from the alienation of: (a) shares, the value of which is derived principally from immovable property situated in the other State, or (b) an interest in a partnership or trust, the value of which is derived principally from immovable property situated in that other State, may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include any property, other than rental property, in which the business of the company, partnership or trust is carried on. 5. Gains derived from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting State of which the alienator is a resident. 6. The provisions of paragraph 5 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and has been a resident of the first-mentioned State at any time during the five years immediately preceding the alienation of the property.
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7. Where an individual who ceases to be a resident of a Contracting State and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. ARTICLE 14 Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional or similar services shall be taxable only in that State unless such services are performed or were performed in the other Contracting State and (a) the income is attributable to a fixed base which the individual has or had regularly available in that other State; or (b) such individual is present or was present in that other State for a period or periods exceeding in the aggregate 183 days in any consecutive twelve month period. In such case, the income attributable to the services may be taxed in that other State in accordance with principles similar to those of Article 7 for determining the amount of business profits and attributing business profits to a permanent establishment.
2. The term ‘‘professional services’’ includes especially independent scientific, literary, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
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2. Notwithstanding the provisions of paragraph 1, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State. 3. Notwithstanding the preceding provisions of this Article, salaries, wages and other remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State, shall be taxable only in that State unless the salaries, wages and other remuneration are derived by a resident of the other Contracting State. ARTICLE 16 Directors’ Fees Directors’ fees and other similar payments derived by a resident of a Contracting State in that resident’s capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. 3. The provisions of paragraph 2 shall not apply if it is established that neither the entertainer or the sportsperson nor persons related thereto, participate directly or indirectly in the profits of the person referred to in that paragraph.
Conventions fiscales ARTICLE 18 Pensions and Annuities
1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise, and according to the law of that State. However, in the case of periodic pension payments, the tax so charged shall not exceed the lesser of: (a) 15 per cent of the gross amount of such periodic pension payments paid to the recipient in the calendar year concerned that exceeds twelve thousand Canadian dollars or its equivalent in Ecuadorian currency; and (b) the rate determined by reference to the amount of tax that the recipient of the payment would otherwise be required to pay for the year on the total amount of the periodic pension payments received by the individual in the year, if the individual were a resident of the Contracting State in which the payment arises. 3. Annuities, other than pensions, arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the portion thereof that is subject to tax in that State. However this limitation does not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other alienation of an annuity or to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of any person who acquired the contract. 4. Notwithstanding anything in the Convention: (a) war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of a war) arising in a Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in that other State to the extend that they will be exempt from tax if received by a resident of the first-mentioned State; and (b) alimony and other similar payments arising in a Contracting State and paid to a resident of the other Contracting State who is subject to tax therein in respect thereof shall be taxable only in that other State.
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1. (a) Salaries, wages and similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority in any other State shall be taxable only in the first-mentioned State. (b) However, such salaries, wages and similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of paragraph 1 shall not apply to salaries, wages and similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 Students Payments which a student, apprentice or business trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, if such payments arise from sources outside that State. ARTICLE 21 Other Income Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention may be taxed in the State in which they arise and according to the law of that State. Where such income is income from an estate or trust, other than a trust to which contributions were deductible, the tax so charged shall, if the income is taxable in the Contracting State in which the beneficial owner is a resident, not exceed 15 per cent of the gross amount of the income.
Conventions fiscales IV. METHODS FOR ELIMINATION OF DOUBLE TAXATION ARTICLE 22 Elimination of Double Taxation
1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the laws of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Ecuador on profits, income or gains arising in Ecuador shall be deducted from any Canadian tax payable in respect of such profits, income or gains; (b) subject to the existing provisions of the laws of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — where a company which is a resident of Ecuador pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Ecuador by that first-mentioned company in respect of the profits out of which such dividend is paid; and (c) where, in accordance with any provision of the Convention, income derived by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income, take into account the exempted income. 2. In the case of Ecuador, double taxation shall be avoided as follows: (a) residents of Ecuador may credit against the Ecuadorian tax on income arising in Canada the income tax paid in Canada in an amount not exceeding the tax payable in Ecuador on such income; and (b) subject to the provisions of Ecuadorian law, companies which are residents of Ecuador may also credit against the Ecuadorian tax the income tax paid in Canada on the profits out of which the dividends are paid. 3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Convention shall be deemed to arise from sources in that other State.
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V. SPECIAL PROVISIONS ARTICLE 23 Non-discrimination 1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. 2. The taxation on a permanent establishment which a resident of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on residents of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. 4. Companies which are residents of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which other similar companies which are residents of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected. 5. In this Article, the term ‘‘taxation’’ means taxes which are the subject of this Convention. ARTICLE 24 Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action which gives rise to taxation not in accordance with the Convention. 2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention.
Conventions fiscales
3. A Contracting State shall not, after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the taxable period in which the income concerned has accrued, increase the tax base of a resident of either of the Contracting States by including therein items of income which have also been charged to tax in the other Contracting State. This paragraph shall not apply in the case of fraud, wilful default or neglect. 4. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. For this purpose, they may communicate with each other directly for the purpose of applying the Convention. 5. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities pursuant to the preceding paragraphs of this Article, and the difficulty or doubt is the result of an assessment by one or both Contracting States, the case may, if both competent authorities and the taxpayer agree be submitted for arbitration provided that the taxpayer agrees in writing to be bound by the decision of the arbitration board. The decision of the arbitration board in a particular case shall be binding on both States with respect to that case. The procedure shall be established in an exchange of notes between the Contracting States. ARTICLE 25 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention or of the domestic laws in the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement in respect of, or the determination of appeals in relation to the taxes in that State. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
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2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved, even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested, such as depositions of witnesses and copies of unedited original documents (including books, papers, statements, records, accounts or writings), to the same extent such depositions and documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes. ARTICLE 26 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State that is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Convention to be a resident only of the sending State if that individual is liable in the sending State to the same obligations in relation to tax on total income as are residents of that sending State. 3. The Convention shall not apply to international organisations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State or group of States, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total income as are residents thereof.
Conventions fiscales ARTICLE 27 Miscellaneous Rules
1. The provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded (a) by the laws of a Contracting State in the determination of the tax imposed by that State; or (b) by any other agreement entered into by a Contracting State. 2. Nothing in the Convention shall be construed as preventing a Contracting State from imposing a tax on amounts included in the income of a resident of that State with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest. 3. The Convention shall not apply to any company, trust, partnership or other entity that is a resident of a Contracting State and is beneficially owned or controlled, directly or indirectly, by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust, partnership or other entity by that State is substantially lower than the amount that would be imposed by that State if all of the shares of the capital stock of the company or all of the interests in the trust, partnership and other entity, as the case may be, were beneficially owned by one or more individuals who were residents of that State. 4. For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 4 of Article 24 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
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5. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is a resident of a Contracting State or who is temporarily present in that State to a pension plan that is recognised for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognised for tax purposes in that first-mentioned State, if (a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before that individual became a resident of or temporarily present in the first-mentioned State; and (b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognised for tax purposes by that State. For the purposes of this paragraph, ‘‘pension plan’’ includes a pension plan created under the social security system in a Contracting State.
VI. FINAL PROVISIONS ARTICLE 28 Entry Into Force 1. The Governments of the Contracting States shall notify each other, through diplomatic channels, that the constitutional requirements for the entry into force of this Convention have been complied with. 2. The Convention shall enter into force upon the date of the later of the notifications referred to in paragraph 1 and its provisions shall have effect: (a) in respect of tax withheld at the source on amounts paid or credited, on or after the first day of January in the calendar year next following that in which the Convention enters into force; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January in the calendar year next following that in which the Convention enters into force.
Conventions fiscales ARTICLE 29 Termination
This Convention shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Convention, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year as from the fifth year following that in which the Convention enters into force. In such event, the Convention shall cease to have effect: (a) in respect of tax withheld at the source on amounts paid or credited, on or after the first day of January of the next following calendar year; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January of the next following calendar year. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Convention. DONE in duplicate at Quito, this 28th day of June, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE REPUBLIC OF ECUADOR
John G. Kneale
Heinz Moeller Freile
PART 2 PROTOCOL At the moment of signing the Convention this day concluded between the Government of Canada and the Government of the Republic of Ecuador for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, the undersigned have agreed upon the following provisions which shall be an integral part of the Convention. 1. The Convention shall not apply to the tax on Monetary Transactions (Impuesto a la Circulaci«n de Capitales).
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2. With reference to subparagraph (b) of paragraph 2 of Article 12, in the event that pursuant to an agreement or convention concluded with a country that is a member of the Organisation for Economic Co-operation and Development, after the date of signature of the Convention, Ecuador agrees to a rate of tax on royalties referred to in that subparagraph (b) that is lower than 15 per cent, the following shall apply for the purposes of that subparagraph: (a) to the extent that such lower rate applies to: (i) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or other artistic work (but not including royalties in respect of motion picture films nor royalties in respect of works on film or videotape or other means of reproduction for use in connection with television), or (ii) royalties for the use of, or the right to use, computer software or any patent or for information concerning industrial, commercial or scientific experience (but not including any such royalty provided in connection with a rental or franchise agreement), that lower rate shall automatically apply in similar circumstances. (b) to the extent that such lower rate applies to other royalties referred to in that subparagraph, the greater of such lower rate and the rate of 10 per cent shall automatically apply in similar circumstances.
3. With reference to paragraph 3 of Article 12, it is understood that the term ‘‘royalties’’ includes payments for the use of, or the right to use, rights of breeders of new varieties of plants. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Protocol. DONE in duplicate at Quito, this 28th day of June, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT CANADA
FOR THE GOVERNMENT OF OF THE REPUBLIC OF ECUADOR
John G. Kneale
Heinz Moeller Freile
Conventions fiscales SCHEDULE 3 (Section 15) PART 1
CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE BOLIVARIAN REPUBLIC OF VENEZUELA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL AVOIDANCE AND EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL
The Government of Canada and the Government of the Bolivarian Republic of Venezuela, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal avoidance and evasion with respect to taxes on income and on capital, have agreed as follows: I. SCOPE OF THE CONVENTION ARTICLE 1 Persons Covered This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income and on capital imposed on behalf of each Contracting State, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income and on capital all taxes imposed on total income, or on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are, in particular: (a) in the case of Canada: the taxes imposed by the Government of Canada under the Income Tax Act, (hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of Venezuela: the taxes on income and the business assets tax, (hereinafter referred to as ‘‘Venezuelan tax’’).
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4. The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. II. DEFINITIONS ARTICLE 3 General Definitions 1. For the purposes of this Convention, unless the context otherwise requires: (a) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or Venezuela; (b) the term ‘‘person’’ includes an individual, a trust, a company, a partnership and any other body of persons; (c) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (d) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (e) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative, and (ii) in the case of Venezuela, the Integrated National Service of Customs and Tax Administration (Servicio Nacional Integrado de Administraci«n Aduanera y Tributaria — SENIAT), its authorized representative or the authority which is designated as a competent authority for the purposes of the Convention; (f) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; (g) the term ‘‘international traffic’’ means any voyage of a ship or aircraft operated by an enterprise of a Contracting State to transport passengers or property except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State.
Conventions fiscales
2. As regards the application of the Convention at any time by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which the Convention applies, any meaning under the tax laws of that State prevailing over a meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means: (a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of management, place of incorporation or any other criterion of a similar nature but does not include any person who is liable to tax in that State in respect only of income from sources in that State, and (b) the Government of that State or a political subdivision or local authority thereof or any agency or instrumentality of any such government, subdivision or authority. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available and if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests) ; (b) if the State in which the individual’s centre of vital interests cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; (c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
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3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, then its status shall be determined as follows: (a) it shall be deemed to be a resident only of the State of which it is a national; (b) if it is a national of neither of the States, it shall be deemed to be a resident only of the State in which its place of effective management is situated. 4. Where by reason of the provisions of paragraph 1 a person other than an individual or a company is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to such person. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; and (f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources. 3. A building site or construction or installation project constitutes a permanent establishment only where such site or project continues for a period or periods aggregating more than 183 days within any twelve month period commencing or ending in the taxable year concerned. 4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include:
Conventions fiscales
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; (f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e) provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 5. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 6 applies — is acting on behalf of an enterprise and has, and habitually exercises in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. 7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
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III. TAXATION OF INCOME ARTICLE 6 Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State. 2. For the purposes of this Convention, the term ‘‘immovable property’’ shall have the meaning which it has for the purpose of the relevant law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment and with all other persons.
Conventions fiscales
3. In the determination of the profits of a permanent establishment in a Contracting State, there shall, in accordance with the law of that State, be allowed as deductions expenses which are incurred for the purposes of the business activities of the permanent establishment including executive and general administrative expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than as a reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices as royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a bank, as interest on moneys lent to the permanent establishment. 4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 6. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport The provisions of this Convention shall not affect the application of the reciprocal exemption from taxes on income with respect to income from the operation of ships or aircraft in international traffic as provided in the Agreement Between the Government of Canada and the Government of the Republic of Venezuela for the Avoidance of Double Taxation Regarding Shipping and Air Transport signed at Caracas on June 26, 1990. ARTICLE 9 Associated Enterprises 1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
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and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any income which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, has not so accrued, may be included in the income of that enterprise and taxed accordingly. 2. Where a Contracting State includes in the income of an enterprise of that State — and taxes accordingly — income on which an enterprise of the other Contracting State has been charged to tax in that other State and the income so included is income which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State, if it agrees with such adjustment, shall, in accordance with paragraph 4 of Article 25, make an appropriate adjustment to the amount of tax charged therein on that income. In determining such adjustment, due regard shall be had to the other provisions of this Convention. 3. A Contracting State shall not change the income of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the income which would be subject to such change would, but for the conditions referred to in paragraph 1, have accrued to that enterprise. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: (a) except in the case of dividends paid by a non-residentowned investment corporation that is a resident of Canada, 10 per cent of the gross amount of the dividends if the beneficial owner is a company that controls directly or indirectly at least 25 per cent of the voting power in the company paying the dividends; (b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the company on the profits out of which the dividends are paid.
Conventions fiscales
3. The term ‘‘dividends’’ as used in this Article means income from shares, ‘‘jouissance’’ shares or ‘‘jouissance’’ rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. 4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the earnings of a company attributable to a permanent establishment in that State, or on the earnings attributable to the alienation of immovable property situated in that State by a company carrying on a trade in immovable property, a tax in addition to the tax which would be chargeable on the earnings of a company which is a national of that State, provided that any additional tax so imposed shall not exceed 10 per cent of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the earnings attributable to the alienation of such immovable property situated in a Contracting State as may be taxed by that State under the provisions of Article 6 or of paragraph 1 of Article 13, and the profits, including any gains, attributable to a permanent establishment in a Contracting State in a year and previous years after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits by that State. ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
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2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2: (a) interest arising in a Contracting State and paid in respect of indebtedness of the government of that State or of a political subdivision or local authority thereof shall, provided that the interest is beneficially owned by a resident of the other Contracting State, be taxable only in that other State; (b) interest arising in Venezuela and paid to a resident of Canada shall be taxable only in Canada if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by the Export Development Corporation; (c) interest arising in Canada and paid to a resident of Venezuela shall be taxable only in Venezuela if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by the ‘‘Fondo de Inversiones de Venezuela (FIV) ’’ or by the ‘‘Banco de Comercio Exterior (BANCOEX)’’ or by any other institution, wholly owned by the government of Venezuela, specified and agreed in letters exchanged between the competent authorities of the Contracting States. 4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article. 5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
Conventions fiscales
7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed: (a) 5 per cent of the gross amount of the royalties in the case of: (i) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or other artistic work (but not including royalties in respect of motion picture films nor royalties in respect of works on film or videotape or other means of reproduction for use in connection with television broadcasting) and (ii) royalties for the use of, or the right to use, computer software or any patent or for information concerning industrial, commercial or scientific experience (but not including any such royalty provided in connection with a rental or franchise agreement) where the payer and the beneficial owner of the royalties are not related persons; and (b) 10 per cent of the gross amount of the royalties in all other cases.
3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in
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respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television. The term ‘‘royalties’’ also includes gains derived from the alienation of any such right or property to the extent that such gains are contingent on the productivity, use or disposition thereof.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has or had in the other Contracting State or of movable property pertaining to a fixed base that is or was available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base may be taxed in that other State.
Conventions fiscales
3. Gains from the alienation of ships or aircraft operated in international traffic by an enterprise of a Contracting State, or from the alienation of containers and other equipment pertaining to the operation of such ships or aircraft, shall be taxable only in that State. 4. Gains derived by a resident of a Contracting State from the alienation of (a) shares, other than shares quoted on an approved stock exchange, deriving their value or the greater part of their value directly or indirectly from immovable property situated in the other Contracting State; or (b) an interest in a partnership or trust, the assets of which consist principally of immovable property situated in the other Contracting State or that derive directly or indirectly their value or the greater part of their value from such immovable property; may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include any property, other than rental property, in which the business of the company, partnership or trust is carried on. 5. Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4 shall be taxable only in the Contracting State of which the alienator is a resident. 6. The provisions of paragraph 5 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and has been a resident of the first-mentioned State at any time during the six years immediately preceding the alienation of the property. 7. Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. 8. Where a resident of a Contracting State alienates property in the course of a corporate or other organization, reorganization, amalgamation, division or similar transaction and profit, gain or income with respect to such alienation is not recognized for the purpose of taxation in that State, if requested to do so by the person who acquires the property, the competent authority of the other Contracting State may agree, in order to avoid double taxation and subject to terms and conditions satisfactory to such competent authority, to defer the recognition of the profit, gain or income with respect to such property for the purpose of taxation in that other State until such time and in such manner as may be stipulated in the agreement.
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Income Tax Convention ARTICLE 14
Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional or similar services of an independent character shall be taxable only in that State unless the individual has a fixed base regularly available in the other Contracting State for the purpose of performing the services. If the individual has or had such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and (b) the remuneration is paid by, or on behalf of, a person who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the person has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State, may be taxed in that State.
Conventions fiscales ARTICLE 16 Directors’ Fees
Directors’ fees and other similar payments derived by a resident of a Contracting State for services performed in the capacity as a member of the board of directors of a company which is a resident of the other Contracting State, may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson but to another person, that income of that other person may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised, unless it is established that neither the entertainer or the sportsperson nor persons related thereto participate directly or indirectly in the profits of that other person in any manner, including the receipt of deferred remuneration, bonuses, fees, dividends, partnership distributions or other distributions. 3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by a resident of the other Contracting State in the context of a visit in the first-mentioned State of a non-profit organization of the other State, provided that the visit is primarily supported by public funds. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the law of that State.
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3. Notwithstanding anything in this Convention, war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of a war) arising in a Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in that other State to the extent that they would be exempt from tax if received by a resident of the first-mentioned State. ARTICLE 19 Government Service 1. (a) Salaries, wages and similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. (b) However, such salaries, wages and similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services.
2. The provisions of paragraph 1 shall not apply to salaries, wages and remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 Students Payments which a student, apprentice or business trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State. ARTICLE 21 Other Income 1. Subject to the provisions of paragraph 2, items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
Conventions fiscales
2. However, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the State in which it arises, and according to the law of that State. IV. TAXATION OF CAPITAL ARTICLE 22 Capital 1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State may be taxed in that other State. 2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State. 3. Capital represented by ships and aircraft operated by an enterprise of a Contracting State in international traffic and by movable property pertaining to the operation of such ships and aircraft, shall be taxable only in that State. 4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State. V. METHODS FOR ELIMINATION OF DOUBLE TAXATION ARTICLE 23 Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Venezuela on profits, income or gains arising in Venezuela shall be deducted from any Canadian tax payable in respect of such profits, income or gains; (b) where in accordance with any provision of the Convention income derived or capital owned by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.
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2. When a resident of Venezuela derives income that, in accordance with the provisions of the Convention, may be taxed in Canada, Venezuela shall allow a relief to such resident. Such relief shall be allowed in accordance with the provisions and subject to the limitations of the law of Venezuela, as they may be amended from time to time without changing the principle hereof. The relief shall consist in a credit against the Venezuelan tax on income. 3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State which are taxed in the other Contracting State in accordance with the Convention shall be deemed to arise from sources in that other State. VI. SPECIAL PROVISIONS ARTICLE 24 Non-discrimination 1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to individuals who are not residents of one or both of the Contracting States. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on residents of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. 4. In this Article, the term ‘‘taxation’’ means taxes which are the subject of this Convention. ARTICLE 25 Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a
Conventions fiscales
resident or, if that person’s case comes under paragraph 1 of Article 24, to that of the Contracting State of which that person is a national, an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action resulting in taxation not in accordance with the Convention. 2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention. 3. A Contracting State shall not, after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the taxable period in which the income concerned has accrued, increase the tax base of a resident of either of the Contracting States by including therein items of income which have also been charged to tax in the other Contracting State. This paragraph shall not apply in the case of fraud, wilful default or neglect. 4. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. In particular, the competent authorities of the Contracting States may agree to the same allocation of income, deductions, credits or allowances between persons. 5. The competent authorities of the Contracting States may consult together for the elimination of double taxation in cases not provided for in the Convention and may communicate with each other directly for the purpose of applying the Convention. 6. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities pursuant to the preceding paragraphs of this Article, the case may be submitted for arbitration if both competent authorities and the taxpayer agree and the taxpayer agrees in writing to be bound by the decision of the arbitration board. The decision of the arbitration board in a particular case shall be binding on both States with respect to that case. The procedure shall be established in an exchange of notes between the Contracting States. ARTICLE 26 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes imposed by that State insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall
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be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement in respect of, or the determination of appeals in relation to, the taxes in that State. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. 2. Nothing in paragraph 1 shall be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation was involved notwithstanding the fact that the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested, such as depositions of witnesses and copies of unedited original documents (including books, papers, statements, records, accounts or writings), to the same extent such depositions and documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes. ARTICLE 27 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.
Conventions fiscales
2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State which is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Convention to be a resident only of the sending State if the individual is liable in the sending State to the same obligations in relation to tax on total income as are residents of that sending State. 3. The Convention shall not apply to international organizations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State or group of States, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total income as are residents thereof. ARTICLE 28 Miscellaneous Rules 1. The provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded: (a) by the laws of a Contracting State in the determination of the tax imposed by that State; or (b) by any other agreement entered into by a Contracting State. 2. Nothing in the Convention shall be construed as preventing Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest. 3. The Convention shall not apply to any company, trust or other entity that is a resident of a Contracting State and is beneficially owned or controlled directly or indirectly by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust or other entity by that State is substantially lower than the amount that would be imposed by that State if all of the shares of the capital stock of the company or all of the interests in the trust or other entity, as the case may be, were beneficially owned by one or more individuals who were residents of that State.
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4. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is resident of one of the Contracting States or who is temporarily present in that State, to a pension plan that is recognized for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognized for tax purposes in that first-mentioned State, provided that: (a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before that individual became a resident of or temporarily present in the first-mentioned State; and (b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognized for tax purposes by that State. For the purposes of this paragraph, ‘‘pension plan’’ includes a pension plan created under the social security system in a Contracting State. 5. With respect to paragraph 3 of Article XXII of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure relating to a tax to which any provision of this Convention applies falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States and after the mutual agreement procedure has been exhausted. 6. Where under any provision of the Convention any income is relieved from tax in a Contracting State and, under the law in force in the other Contracting State a person, in respect of that income, is subject to tax by reference to the amount thereof that is remitted to or received in that other Contracting State and not by reference to the full amount thereof, then the relief to be allowed under the Convention in the first-mentioned Contracting State shall apply only to so much of the income as is taxed in the other Contracting State. VII. FINAL PROVISIONS ARTICLE 29 Entry into Force Each of the Contracting States shall take all measures necessary to give this Convention the force of law within its jurisdiction and shall notify the other through diplomatic channels of the completion of such measures. The Convention shall enter into force on the date on which the later notification is made and its provisions shall thereupon have effect:
Conventions fiscales
(a) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after the first day of January in the calendar year next following that in which the Convention enters into force; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January in the calendar year next following that in which the Convention enters into force. ARTICLE 30 Termination This Convention shall continue in effect indefinitely but either Contracting State may, on or before June 30 of any calendar year after the year of the entry into force of the Convention, give to the other Contracting State a notice of termination in writing through diplomatic channels; in such event, the Convention shall cease to have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after the first day of January of the next following calendar year; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January of the next following calendar year. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Convention. DONE in duplicate at Caracas, this 10th day of July, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT CANADA
FOR THE GOVERNMENT OF OF THE BOLIVARIAN REPUBLIC OF VENEZUELA
Allan J. Stewart
Luis Alfonso Dávila PART 2 PROTOCOL
At the moment of signing the Convention this day concluded between the Government of Canada and the Government of the Bolivarian Republic of Venezuela for the avoidance of double taxation and the prevention of fiscal avoidance and evasion with respect to taxes on income and on capital, the undersigned have agreed upon the following provisions which shall be an integral part of the Convention. 1. It is understood that the taxes levied by municipalities in Venezuela are not taxes covered by the Convention.
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2. For the purpose of computing the time limits in paragraph 3 of Article 5: (a) it is understood that if an enterprise (general contractor), that has undertaken the performance of a comprehensive project, subcontracts parts of such a project to other enterprises (subcontractors), the period spent by a subcontractor must be considered as time spent by the general contractor. The subcontractor has a permanent establishment only if its activities continue for a period or periods aggregating more than 183 days in any twelve month period commencing or ending in the taxable year concerned; (b) the 183 day period begins as of the date on which the construction activity itself begins; it does not take into account time spent solely on preparatory activities such as obtaining permits. 3. It is understood that, in order for paragraph 4 of Article 5 to apply, the activities listed in subparagraphs 4(a) through (f) and conducted by the resident of a Contracting State must each be of a preparatory or auxiliary character. Therefore, maintaining sales personnel in a Contracting State would not be an activity excepted under paragraph 4 and, subject to paragraphs 1, 5 and 6 of Article 5, would constitute a permanent establishment. 4. Where an enterprise of a Contracting State sells goods or merchandise or carries on business in the other Contracting State through a permanent establishment situated therein, the profits of that permanent establishment shall not be determined on the basis of the total amount received by the enterprise, but shall be determined only on the basis of the income which is attributable to the actual activity of the permanent establishment for such sales or business. In particular, in the case of contracts for the survey, supply, installation or construction of industrial, commercial or scientific equipment or premises, or of public works, when the enterprise has a permanent establishment, the profits of such permanent establishment shall not be determined on the total amount of the contract, but shall be determined only on the basis of that part of the contract which is effectively carried out by the permanent establishment in the State where the permanent establishment is situated. The profits related to that part of the contract which is carried out by the head office of the enterprise shall be taxable only in the State of which the enterprise is a resident. 5. Notwithstanding the provisions of Article 7, profits derived by an enterprise of a Contracting State from a voyage of a ship or aircraft where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State may be taxed in that other State.
Conventions fiscales
6. It is understood that the reference to an ‘‘additional tax’’ in paragraph 6 of Article 10 includes the tax that may be imposed by Venezuela pursuant to the provisions of Article 72 of Presidential Decree No. 307 published on October 22, 1999, in so far as those provisions were in force on, and have not been modified since, the date of signature of the Convention or have been modified only in minor respects so as not to effect their general character. Furthermore, for the purposes of subparagraph (a) of paragraph 1 of Article 23, the tax so imposed by Venezuela will be considered to have been paid by the company on its own behalf. 7. In the event that, pursuant to an agreement or convention concluded with a country that is a member of the Organisation for Economic Co-operation and Development after the date of signature of the Convention, Venezuela agrees to a rate of tax on dividends referred to in subparagraph (a) of paragraph 2 of Article 10 that is lower than 10 per cent, the greater of such new rate and a rate of 5 per cent shall automatically apply for the purposes of that subparagraph as well as for paragraph 6 of the same Article. 8. It is understood that nothing in Article 24 shall be construed as preventing a Contracting State from imposing an additional tax as referred to in paragraph 6 of Article 10 or paragraph 6 of this Protocol. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Protocol. DONE in duplicate at Caracas, this 10th day of July, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT CANADA
FOR THE GOVERNMENT OF OF THE BOLIVARIAN REPUBLIC OF VENEZUELA
Allan J. Stewart
Luis Alfonso Dávila
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Income Tax Convention SCHEDULE 4 (Section 21) PART 1
CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF PERU FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL
The Government of Canada and the Government of the Republic of Peru, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows: I. SCOPE OF THE CONVENTION ARTICLE 1 Persons Covered This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income and on capital imposed on behalf of each Contracting State, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are, in particular, (a) in the case of Canada, the taxes imposed by the Government of Canada under the Income Tax Act, hereinafter referred to as ‘‘Canadian tax’’; and (b) in the case of Peru, the taxes imposed by the Government of Peru under the Income Tax Act (Ley del Impuesto a la Renta) and the Solidarity Extraordinary Tax (Impuesto Extraordinario de Solidaridad) supported by an individual in respect of independent personal services, hereinafter referred to as ‘‘Peruvian tax’’.
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4. The Convention shall apply also to any identical or substantially similar taxes and to taxes on capital which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. II. DEFINITIONS ARTICLE 3 General Definitions 1. For the purposes of this Convention, unless the context otherwise requires, (a) the term ‘‘Canada’’, used in a geographical sense, means the territory of Canada, including (i) any area beyond the territorial sea of Canada that, in accordance with international law and the laws of Canada, is an area in respect of which Canada may exercise rights with respect to the seabed and subsoil and their natural resources, and (ii) the sea and airspace above every area referred to in clause (i); (b) the term ‘‘Peru’’, used in a geographical sense, means the territory of the Republic of Peru which includes, in addition to the areas contained within its internationally recognized land boundaries, the adjacent maritime zones and airspace within which the Republic of Peru exercises sovereign rights and jurisdiction in accordance with its legislation and international law; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or Peru; (d) the term ‘‘person’’ includes an individual, a trust, a company, a partnership and any other body of persons; (e) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (f) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
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(g) the term ‘‘competent authority’’ means (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative, and (ii) in the case of Peru, the Minister of Economy and Finance or the Minister’s authorized representative; (h) the term ‘‘national’’ means (i) any individual possessing the nationality of a Contracting State, and (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; and (i) the term ‘‘international traffic’’ means any voyage of a ship or aircraft operated by an enterprise of a Contracting State to transport passengers or property except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State.
2. As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means (a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of management or any other criterion of a similar nature but does not include any person who is liable to tax in that State in respect only of income from sources in that State, and (b) that State or a political subdivision or local authority thereof or any agency or instrumentality of any such State, subdivision or authority. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available and if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests);
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(b) if the State in which the individual’s centre of vital interests is situated cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; (c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; and (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, then its status shall be determined as follows: (a) it shall be deemed to be a resident only of the State of which it is a national; (b) if it is a national of neither of the States the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to the company. In the absence of such agreement, the company shall not be entitled to claim any relief or exemption from tax provided by the Convention. 4. Where by reason of the provisions of paragraph 1 a person other than an individual or a company is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to such person. In the absence of such agreement, such person shall not be entitled to claim any relief or exemption from tax provided by the Convention. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; and (f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources.
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3. The term ‘‘permanent establishment’’ shall also include: (a) a building site or construction or installation project but only if such site, project continues for a period or periods aggregating more than 183 days within any twelve-month period; and (b) the furnishing of services, including consulting services, by an enterprise of a Contracting State through employees or other individuals engaged by the enterprise for such purposes in the other Contracting State, but only where such activities continue (for the same or a connected project) within that State for a period or periods aggregating more than 183 days within any twelve-month period. For the purposes of computing the time period or periods in this paragraph, the duration of activities carried on by an enterprise shall include activities carried on by associated enterprises, within the meaning of Article 9, if the activities between the associated enterprises are connected.
4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of advertising, supplying information or carrying on scientific research for the enterprise, if such activity is of a preparatory or auxiliary character.
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5. Notwithstanding the provisions of paragraphs 1 and 2, where a person (other than an agent of an independent status to whom paragraph 7 applies) is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. Notwithstanding the preceding provisions of this Article, an insurance enterprise of a Contracting State shall, except in regard to re-insurance, be deemed to have a permanent establishment in the other Contracting State if it collects premiums in the territory of that other State or insures risks situated therein through a person other than an agent of independent status to whom paragraph 7 applies. 7. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, the agent will not be considered an agent of an independent status within the meaning of this paragraph. 8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. III. TAXATION OF INCOME ARTICLE 6 Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
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2. For the purposes of this Convention, the term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant tax law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment and with all other persons. 3. In the determination of the profits of a permanent establishment, there shall be allowed those deductible expenses which are incurred for the purposes of the permanent establishment including executive and general administrative expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere. 4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
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6. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of Article 7, profits derived by an enterprise of a Contracting State from a voyage of a ship or aircraft where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State may be taxed in that other State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. 4. For the purposes of this Article, (a) the term ‘‘profits’’ includes (i) gross receipts and revenues derived directly from the operation of ships or aircraft in international traffic, and (ii) interest that is incidental to the operation of ships or aircraft in international traffic; and (b) the term ‘‘operation of ships or aircraft in international traffic’’ by an enterprise, includes (i) the charter or rental of ships or aircraft, and (ii) the rental of containers and related equipment, by that enterprise if that charter or rental is incidental to the operation by that enterprise of ships or aircraft in international traffic.
ARTICLE 9 Associated Enterprises 1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,
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and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations that differ from those that would be made between independent enterprises, then any income that would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, has not so accrued, may be included in the income of that enterprise and taxed accordingly. 2. Where a Contracting State includes in the income of an enterprise of that State — and taxes accordingly — income on which an enterprise of the other Contracting State has been charged to tax in that other State and the income so included is income that would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those that would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of tax charged therein on that income. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other. 3. A Contracting State shall not change the income of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the income that would be subject to such change would, but for the conditions referred to in paragraph 1, have been attributed to that enterprise. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company that is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed (a) 10 per cent of the gross amount of the dividends if the beneficial owner is a company that controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends; and (b) 15 per cent of the gross amount of the dividends, in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
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3. The term ‘‘dividends’’ as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. 4. The provisions of paragraph 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on or has carried on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs or has performed in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company that is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the earnings of a company attributable to a permanent establishment in that State, or the earnings attributable to the alienation of immovable property situated in that State by a company carrying on a trade in immovable property, a tax in addition to the tax that would be chargeable on the earnings of a company that is a national of that State, except that any additional tax so imposed shall not exceed 10 per cent of the amount of such earnings that have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the earnings attributable to the alienation of such immovable property situated in a Contracting State as may be taxed by that State under the provisions of Article 6 or of paragraph 1 of Article 13, and the profits, including any gains, attributable to a permanent establishment in a Contracting State in a year and previous years, after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits in that State. 7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the shares or other rights in respect of which the dividend is paid to take advantage of this Article by means of that creation or assignment.
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1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 15 per cent of the gross amount of the interest. 3. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 8 or Article 10. 4. The provisions of paragraph 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on or has carried on business in the other Contracting State in which the interest arises through a permanent establishment situated therein, or performs or has performed in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount that would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
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7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 15 per cent of the gross amount of the royalties. 3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on or has carried on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs or has performed in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
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6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and another person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount that would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. 7. The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect of which the royalties are paid to take advantage of this Article by means of that creation or assignment. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment that an enterprise of a Contracting State has or had in the other Contracting State or of movable property pertaining to a fixed base that is or was available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State. 3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or from containers used in, or other movable property pertaining to, the operation of such ships or aircraft shall be taxable only in that State. 4. Gains derived by a resident of a Contracting State from the alienation of (a) shares, the value of which is derived principally from immovable property situated in the other State; or (b) an interest in a partnership or trust, the value of which is derived principally from immovable property situated in that other State; may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include any property, other than rental property, in which the business of the company, partnership or trust is carried on.
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5. Where a resident of a Contracting State alienates property in the course of a corporate or other organization, reorganization, amalgamation, division or similar transaction and profit, gain or income with respect to such alienation is not recognized for the purpose of taxation in that State, if requested to do so by the person who acquires the property, the competent authority of the other Contracting State may agree, in order to avoid double taxation and subject to terms and conditions satisfactory to such competent authority, to defer the recognition of the profit, gain or income with respect to such property for the purpose of taxation in that other State until such time and in such manner as may be stipulated in the agreement. 6. Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting State of which the alienator is a resident. 7. The provisions of paragraph 6 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property (other than property to which the provisions of paragraph 8 apply)derived by an individual who is a resident of the other Contracting State and has been a resident of the first-mentioned State at any time during the six years immediately preceding the alienation of the property. 8. Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. However, this provision shall not apply to property which would give rise, if it were alienated immediately before the individual became a resident of that other State, to a gain which may be taxed in that other State. ARTICLE 14 Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional or similar services performed in the other Contracting State may be taxed in that other State but the tax so charged shall not exceed 10 per cent of the gross amount of that income unless: (a) the income is attributable to a fixed base which the individual has or had regularly available in that other State for the purpose of performing the activities; or (b) such individual is present in that other State for a period or periods exceeding in the aggregate 183 days in any consecutive twelve month period.
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2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve-month period commencing or ending in the calendar year concerned, and either (a) the total remuneration derived by the resident in respect of all employment exercised in the other Contracting State in the calendar year concerned does not exceed ten thousand Canadian dollars ($10,000) or its equivalent in the currency of Peru or such amounts as may be specified and agreed in letters exchanged between the competent authorities of the Contracting States; or (b) the remuneration is paid by, or on behalf of, a person who is not a resident of the other State, and such remuneration is not borne by a permanent establishment or a fixed base that the person has in the other State. 3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State shall be taxable only in that State unless the remuneration is derived by a resident of the other Contracting State. ARTICLE 16 Directors’ Fees Directors’ fees and other similar payments derived by a resident of a Contracting State in the capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.
Conventions fiscales ARTICLE 17 Artistes and Sportspersons
1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. 3. The provisions of paragraph 2 shall not apply if it is established that neither the entertainer or the sportsperson nor persons related thereto participate directly or indirectly in the profits of the person referred to in that paragraph. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the laws of that State. However, in the case of periodic pension payments the tax so charged shall not exceed 15 per cent of the gross amount of the payment. 3. Annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the portion thereof that is subject to tax in that State. However, this limitation does not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other alienation of an annuity, or to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of any person who acquired the contract. 4. Notwithstanding anything in this Convention (a) war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of a war) arising in a Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in that other State to the extent that they would be exempt from tax if received by a resident of the first-mentioned State; and
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(b) alimony and other similar payments arising in a Contracting State and paid to a resident of the other Contracting State who is subject to tax therein in respect thereof shall be taxable only in that other State, but the amount taxable in that other State shall not exceed the amount that would be taxable in the first-mentioned State if the recipient were a resident thereof. ARTICLE 19 Government Service 1. (a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. (b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who (i) is a national of that State, or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 Students Payments which a student, apprentice or business trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, if such payments arise from sources outside that State. ARTICLE 21 Other Income 1. Subject to the provisions of paragraph 2, items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
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2. However, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the State in which it arises and according to the law of that State. Where such income is income from a trust, other than a trust to which contributions were deductible, the tax so charged shall, if the income is taxable in the Contracting State in which the beneficial owner is a resident, not exceed 15 per cent of the gross amount of the income. IV. TAXATION OF CAPITAL ARTICLE 22 Capital 1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State may be taxed in that other State. 2. Capital represented by movable property forming part of the business property of a permanent establishment that an enterprise of a Contracting State has in the other Contracting State, or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State. 3. Capital represented by ships and aircraft operated by an enterprise of a Contracting State in international traffic and by movable property pertaining to the operation of such ships and aircraft shall be taxable only in that State. 4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State. V. METHODS FOR ELIMINATION OF DOUBLE TAXATION ARTICLE 23 Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Peru on profits, income or gains arising in Peru shall be deducted from any Canadian tax payable in respect of such profits, income or gains;
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(b) subject to the existing provisions of the law of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — where a company which is a resident of Peru pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Peru by that first-mentioned company in respect of the profits out of which such dividend is paid; and (c) where, in accordance with any provision of the Convention, income derived or capital owned by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital. 2. In the case of Peru, double taxation shall be avoided as follows: (a) residents of Peru may credit against Peruvian tax on income or capital arising in Canada the income tax paid in Canada in an amount not exceeding the tax payable in Peru on such income; (b) where a company which is a resident of Canada pays a dividend to a person which is a resident of Peru that controls directly or indirectly at least 10 per cent of the voting power in the company, the credit shall take into account the tax payable in Canada by the company in respect of the profits out of which such dividend is paid but only to the extent that the Peruvian tax exceeds the amount of the credit determined without reference to this subparagraph; (c) for the purposes of this paragraph, the tax basis of a person that is a resident of Peru shall be that person’s income before income tax paid by that person in Canada; and (d) where, in accordance with any provision of the Convention, income derived or capital owned by a resident of Peru is exempt from tax in Peru, Peru may nevertheless, in calculating the amount of tax on the remaining income or capital, take into account the exempted income or capital.
3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State that may be taxed in the other Contracting State in accordance with this Convention shall be deemed to arise from sources in that other State.
Conventions fiscales VI. SPECIAL PROVISIONS ARTICLE 24 Non-discrimination
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith that is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. 2. The taxation on a permanent establishment that an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities that it grants to its own residents. 4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith that is more burdensome than the taxation and connected requirements to which other similar enterprises that are residents of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected. 5. In this Article, the term ‘‘taxation’’ means taxes that are the subject of this Convention. ARTICLE 25 Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention. 2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention.
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3. A Contracting State shall not, after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the taxable period to which the income concerned was attributed, increase the tax base of a resident of either of the Contracting States by including therein items of income that have also been charged to tax in the other Contracting State. This paragraph shall not apply in the case of fraud, wilful default or neglect. 4. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. 5. The competent authorities of the Contracting States may consult together for the elimination of double taxation in cases not provided for in the Convention and may communicate with each other directly for the purpose of applying the Convention. 6. If any difficulty or doubt arising as to the interpretation or application of the Convention cannot be resolved by the competent authorities pursuant to the preceding paragraphs of this Article, the case may be submitted for arbitration if both competent authorities and the taxpayer agree and the taxpayer agrees in writing to be bound by the decision of the arbitration board. The decision of the arbitration board in a particular case shall be binding on both States with respect to that case. The procedure shall be established in an exchange of notes between the Contracting States. ARTICLE 26 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention or of the domestic laws in the Contracting States concerning taxes covered by this Convention insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with, and only for use in connection with, the assessment or collection of, the enforcement in respect of, or the determination of appeals in relation to any tax. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
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2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation (a) to carry out administrative measures at variance with the laws and the administrative practice of that or of the other Contracting State; (b) to supply information that is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or (c) to supply information that would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved, even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested. ARTICLE 27 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State that is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Convention to be a resident of the sending State if that individual is liable in the sending State to the same obligations in relation to tax on total income as are residents of that sending State. 3. The Convention shall not apply to international organizations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State or group of States, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total income as are residents thereof.
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Income Tax Convention ARTICLE 28 Miscellaneous Rules
1. The provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded by the laws of a Contracting State in the determination of the tax imposed by that State. 2. Nothing in the Convention shall be construed as preventing a Contracting State from imposing a tax on amounts included in the income of a resident of that State with respect to a partnership, trust, or company, in which that resident has an interest. 3. The Convention shall not apply to any company, trust or other entity that is a resident of a Contracting State and is beneficially owned or controlled, directly or indirectly, by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust or other entity by that State is substantially lower than the amount that would be imposed by that State (after taking into account any reduction or offset of the amount of tax in any manner, including a refund, reimbursement, contribution, credit, or allowance to the company, trust or partnership, or to any other person) if all of the shares of the capital stock of the company or all of the interests in the trust or other entity, as the case may be, were beneficially owned by one or more individuals who were residents of that State. 4. For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of the convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 4 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. VII. FINAL PROVISIONS ARTICLE 29 Entry into Force Each of the Contracting States shall notify the other through diplomatic channels of the completion of the procedures required by law for the bringing into force of this Convention. The Convention shall enter into force on the date of the later of these notifications and its provisions shall thereupon have effect (a) in Canada
Conventions fiscales (i) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after the first day of January in the calendar year following that in which the Convention enters into force, and (ii) in respect of other Canadian tax, for taxation years beginning on or after the first day of January in the calendar year following that in which the Convention enters into force; and
(b) in Peru, in respect of Peruvian taxes and amounts paid, credited to an account, made at the disposal or accounted as an expense, on or after the first day of January of the calendar year immediately following that in which the Convention enters into force. ARTICLE 30 Termination This Convention shall continue in effect indefinitely but either Contracting State may, on or before June 30 of any calendar year after the year of the entry into force, give to the other Contracting State a notice of termination in writing through diplomatic channels. In such event, the Convention shall cease to have effect (a) in Canada (i) in respect of tax withheld at the source on amounts paid or credited to non-residents, after the end of that calendar year, and (ii) in respect of other Canadian tax, for taxation years beginning after the end of that calendar year; and (b) in Peru, in respect of Peruvian taxes and amounts paid, credited to an account, made at the disposal or accounted as an expense, on or after the first day of January of the next following calendar year.
IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Convention. DONE in duplicate at Lima, this 20th day of July, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT CANADA
FOR THE GOVERNMENT OF OF THE REPUBLIC OF PERU
Graeme Clark
Javier Silva Ruete
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Income Tax Convention PART 2 PROTOCOL
At the moment of signing the Convention this day concluded between the Government of Canada and the Government of the Republic of Peru for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, the undersigned have agreed upon the following provisions which shall be an integral part of the Convention. 1. With reference to subparagraph (d) of paragraph 1 of Article 3, the term ‘‘person’’ shall, in the case of Peru, include undivided estates (sucesiones indivisas) as well as matrimonial partnerships (sociedades conyugales). 2. With reference to paragraph 2 of Article 9, it is understood that the other State is only required to make the appropriate adjustment to the extent it considers that the adjustment made in the first State is justified both in principle and in amount. 3. In the event that, pursuant to an agreement or convention concluded with a country that is a member of the Organisation for Economic Co-operation and Development after the date of signature of the Convention, Peru agrees: (a) with reference to subparagraph (a) of paragraph 2 of Article 10, to a rate of tax on dividends that is lower than 10 per cent, the greater of such new rate and a rate of 5 per cent shall automatically apply for the purposes of that subparagraph as well as for paragraph 6 of that same Article; (b) with reference to paragraph 2 of Article 11, to a rate of tax on interest that is lower than 15 per cent, the greater of such new rate and a rate of 10 per cent shall automatically apply for the purposes of that paragraph; and (c) with reference to paragraph 2 of Article 12, to a rate of tax on royalties referred to in that paragraph that is lower than 15 per cent, the following shall apply for the purposes of that paragraph: (i) to the extent that such lower rate applies to: (a) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or other artistic work (but not including royalties in respect of motion picture films nor royalties in respect of works on film or videotape or other means of reproduction for use in connection with television), or (b) royalties for the use of, or the right to use, computer software or any patent or for information concerning industrial, commercial or scientific experience (but not including any such royalty provided in connection with a rental or franchise agreement),
Conventions fiscales that lower rate shall automatically apply in similar circumstances, (ii) to the extent that such lower rate applies to other royalties referred to in that paragraph, the greater of such lower rate and the rate of 10 per cent shall automatically apply in similar circumstances.
4. Nothing in the Convention shall preclude the application of the provisions of Peruvian Law Acts (Decretos Legislativos) number 662, 757 and 109 and Acts (Leyes) number 26221, 27342, 27343 as they are in force at the time of the signature of the Convention and as they may be amended from time to time without changing their general principle or the optional nature of entering into the tax stability contracts. A person that is a party to a contract which grants tax stability in accordance with the above-mentioned provisions shall, notwithstanding any rate of tax set out in the Convention, remain subject to the rates of tax stabilized by the contract for its duration.
IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Protocol. DONE in duplicate at Lima, this 20th day of July, 2001, in the English, French and Spanish languages, each version being equally authentic. FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE REPUBLIC OF PERU
Graeme Clark
Javier Silva Ruete
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Income Tax Convention SCHEDULE 5 (Section 27)
CONVENTION BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF SENEGAL FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of Canada and the Government of the Republic of Senegal, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, have agreed as follows: I. SCOPE OF THE CONVENTION ARTICLE 1 Persons Covered This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income imposed on behalf of each Contracting State, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income all taxes imposed on total income or on elements of income including taxes on gains from the alienation of movable or immovable property as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are, in particular: (a) in the case of Canada: the income taxes imposed by the Government of Canada under the Income Tax Act, (hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of Senegal: (i) the tax on companies, (ii) the minimum lump-sum tax on companies, (iii) the income tax on individuals, (iv) the employers’ lump-sum contribution, (v) the capital gains tax on developed and undeveloped land, (hereinafter referred to as ‘‘Senegalese tax’’).
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4. The Convention shall apply also to any identical or substantially similar taxes which enter into force after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws. II. DEFINITIONS ARTICLE 3 General Definitions 1. In this Convention, unless the context otherwise requires: (a) the term ‘‘Canada’’, used in a geographical sense, means the territory of Canada, including (i) any area beyond the territorial sea of Canada which, in accordance with international law and the laws of Canada, is an area in respect of which Canada may exercise rights with respect to the seabed and subsoil and their natural resources; and (ii) the sea and airspace above every area referred to in clause (i) in respect of any activity carried on in connection with the exploration for or the exploitation of the natural resources referred to therein; (b) the term ‘‘Senegal’’ means the Republic of Senegal; when used in a geographical sense, it means the national territory, the territorial waters as well as the maritime areas over which, in accordance with international law, Senegal exercises sovereign rights or jurisdiction; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or Senegal; (d) the term ‘‘person’’ includes an individual, a company and any other body of persons; in the case of Canada, it also includes a trust; (e) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (f) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (g) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative, (ii) in the case of Senegal, the Minister responsible for Finance or the Minister’s authorized representative;
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(h) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; (i) the term ‘‘international traffic’’ means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State.
2. As regards the application of the Convention by a Contracting State any term not defined therein shall, unless the context otherwise requires, have the meaning that it has under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means: (a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, place of incorporation, residence, place of management or any other criterion of a similar nature; (b) the Government of that Contracting State or a political subdivision or local authority thereof or, in the case of Canada, any agency or instrumentality of any such government, subdivision or authority. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the Contracting State in which the individual has a permanent home available; if the individual has a permanent home available in both Contracting States, the individual shall be deemed to be a resident only of the Contracting State with which the individual’s personal and economic relations are closer (centre of vital interests); (b) if the Contracting State in which the individual’s centre of vital interests is situated cannot be determined, or if there is not a permanent home available to the individual in either Contracting State, the individual shall be deemed to be a resident only of the Contracting State in which the individual has an habitual abode;
Conventions fiscales
(c) if the individual has an habitual abode in both Contracting States or in neither of them, the individual shall be deemed to be a resident only of the Contracting State of which the individual is a national; (d) if the individual is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement. 3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to such person. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources, including that relating to the exploration for or the exploitation of natural resources; (g) a building site or construction project; (h) an assembly project which exists for more than three months. 3. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: (a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
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(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of its advertising, for the supply of information, for scientific research or for similar activities which have a preparatory or auxiliary character, for the enterprise. 4. A person — other than an agent of an independent status to whom paragraph 5 applies — acting in a Contracting State on behalf of an enterprise of the other Contracting State shall be deemed to be a permanent establishment in the first-mentioned State: (a) if the person has, and habitually exercises in the first-mentioned State an authority to conclude contracts in the name of the enterprise, unless the activities of such person are limited to the purchase of goods or merchandise for the enterprise; or (b) if the person maintains in the first-mentioned State a stock of goods or merchandise belonging to the enterprise from which the person habitually fills orders on behalf of the enterprise. 5. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. 6. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. 7. An insurance enterprise shall, except with regard to re-insurance, be deemed to have a permanent establishment in a Contracting State from the time it collects premiums in the territory of that State or insures risks situated therein through a representative who does not fall within the type of persons referred to in paragraph 5 above. III. TAXATION OF INCOME ARTICLE 6 Income from Immovable Property 1. Income from immovable property, including income from agriculture or forestry, situated in the other Contracting State may be taxed in the Contracting State in which such property is situated.
Conventions fiscales
2. For the purposes of this Convention, the term ‘‘immovable property’’ shall be defined in accordance with the law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. 3. In determining the profits of a permanent establishment, there shall be allowed those deductible expenses which are incurred for the purposes of the permanent establishment including executive and general administrative expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere; in the latter case, a share of the general administrative expenses of the head office may be allocated to each permanent establishment on a pro rata basis with respect to the turnover realised by each of them. Where the apportionment of the general administrative expenses referred to above does not result in a normal share or normal profits, the competent authorities of the Contracting States may, in accordance with the provisions of Article 24, make an appropriate adjustment to determine the profits of the permanent establishment.
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4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 6. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of paragraph 1 and Article 7, profits derived from the operation of ships or aircraft used principally to transport passengers or property exclusively between places in a Contracting State may be taxed in that State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. ARTICLE 9 Associated Enterprises 1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
Conventions fiscales
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits that would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those that would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention. 3. A Contracting State shall not change the profits of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the profits which would be subject to such change would have accrued to an enterprise of that State. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: (a) in the case of Senegal, sixteen per cent (16%) of the gross amount of the dividends; (b) in the case of Canada, fifteen per cent (15%) of the gross amount of the dividends. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means income from shares, ‘‘jouissance’’ shares or ‘‘jouissance’’ rights, mining shares, ‘‘parts sociales’’, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the taxation law of the State of which the company making the distribution is a resident.
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4. The provisions of paragraph 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services through a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the earnings of a company attributable to a permanent establishment in that State, a tax in addition to the tax which would be chargeable on the earnings of a company which is a national of that State, provided that any additional tax so imposed shall not exceed: (a) in the case of Senegal, sixteen per cent (16%), (b) in the case of Canada, fifteen per cent (15%) of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this paragraph, the term ‘‘earnings’’ means the profits, including any gains, attributable to a permanent establishment situated in a Contracting State in a year and previous years after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits by that State. 7. The provisions of paragraph 6 shall also apply with respect to earnings derived from the alienation of immovable property situated in a Contracting State by a company carrying on a trade in immovable property, whether or not it has a permanent establishment in that State. ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
Conventions fiscales
2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed: (a) in the case of Senegal, twenty per cent (20%) of the gross amount of the interest on ‘‘bons de caisse’’ and sixteen per cent (16%) of their gross amount in all other cases; (b) in the case of Canada, fifteen per cent (15%) of the gross amount of the interest in all cases. 3. Notwithstanding the provisions of paragraph 2, (a) interest arising in a Contracting State and paid in respect of indebtedness of the government of that State or of a political subdivision or local authority thereof shall, provided that the interest is beneficially owned by a resident of the other Contracting State, be taxable only in that other State; (b) interest arising in Senegal and paid to a resident of Canada shall be taxable only in Canada if it is paid in respect of a loan made, guaranteed or insured, or a credit extended or insured by the Export Development Corporation; (c) interest arising in Canada and paid to a resident of Senegal shall be taxable only in Senegal if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by an appropriate Senegalese institution as is specified and agreed in letters exchanged between the competent authorities of the Contracting States. 4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the taxation laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. 5. The provisions of paragraph 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
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6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed fifteen per cent (15%) of the gross amount of the royalties. 3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television.
4. The provisions of paragraph 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
Conventions fiscales
5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State. 3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or movable property pertaining to the operation of such ships or aircraft shall be taxable only in that State. 4. Gains derived by a resident of a Contracting State from the alienation of: (a) shares, the value of which is derived principally from immovable property situated in the other State, (b) an interest in a partnership or trust, the value of which is derived principally from immovable property situated in that other State, may be taxed in that other State. 5. Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4 shall be taxable only in the Contracting State of which the alienator is a resident.
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6. The provisions of paragraph 5 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and has been a resident of the first-mentioned State at any time during the five years immediately preceding the alienation of the property. 7. Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. However, this provision shall not apply to property any gain from which, arising immediately before the individual became a resident of that other State, may be taxed in that other State nor to immovable property situated in a third State. ARTICLE 14 Independent Personal Services 1. Income derived by a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless the resident has a fixed base regularly available in the other Contracting State for the purpose of performing the activities. If the resident has or had such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
Conventions fiscales
2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State. ARTICLE 16 Directors’ Fees 1. Directors’ fees and other similar payments derived by a resident of a Contracting State in the capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State, may be taxed in that other State. 2. However, remuneration derived by such persons in respect of any other capacity may be taxed under the provisions of Article 14 or paragraph 1 of Article 15 of this Convention, as the case may be. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
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3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by a resident of the other Contracting State in the context of a visit in the first-mentioned State which is substantially supported by public funds. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the laws of that State. However, in the case of periodic payments: (a) of a pension, the tax so charged shall not exceed fifteen per cent (15%) of the gross amount of the total of such periodic payments paid in the calendar year concerned that exceeds twelve thousand Canadian dollars or its equivalent in Senegalese currency; (b) of an annuity, the tax so charged shall not exceed fifteen per cent (15%) of the portion thereof that is subject to tax in that State. 3. Notwithstanding anything in this Convention: (a) war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of a war) arising in a Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in that other State to the extent that they would be exempt from tax if received by a resident of the first-mentioned State; (b) alimony and other similar payments arising in a Contracting State and paid to a resident of the other Contracting State who is subject to tax therein in respect thereof, shall be taxable only in that other State; (c) benefits paid under the Social Security legislation in Canada shall be taxable only in Canada.
Conventions fiscales ARTICLE 19 Government Service
1. (a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. (b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration paid in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. ARTICLE 20 Students Payments which a student, apprentice or business trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in the first-mentioned State, provided that such payments arise from sources outside that State. ARTICLE 21 Other Income 1. Subject to the provisions of paragraph 2, items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State. 2. However, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the State in which it arises, and according to the law of that State. However, in the case of Canada, where such income is income from a trust, other than a trust to which contributions were deductible, the tax so charged shall, provided that the income is taxable in Senegal, not exceed fifteen per cent (15%) of the gross amount of the income.
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IV. METHODS FOR PREVENTION OF DOUBLE TAXATION ARTICLE 22 Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Senegal on profits, income or gains arising in Senegal shall be deducted from any Canadian tax payable in respect of such profits, income or gains; (b) where in accordance with any provision of the Convention income derived by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income take into account the exempted income.
2. In the case of Senegal, double taxation shall be avoided as follows: (a) where a resident of Senegal derives income which, in accordance with the provisions of this Convention, may be taxed in Canada, Senegal shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Canada; such deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Canada; (b) where, in accordance with any provision of the Convention, income derived by a resident of Senegal is exempt from tax in Senegal, Senegal may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income. 3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Convention shall be deemed to arise from sources in that other State.
Conventions fiscales V. SPECIAL PROVISIONS ARTICLE 23 Non-discrimination
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. 4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected. 5. The term ‘‘taxation’’ as used in this Article means taxes which are the subject of this Convention. ARTICLE 24 Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the notification of the action which gives rise to taxation not in accordance with the provisions of the Convention. 2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention.
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3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. In particular, the competent authorities of the Contracting States may consult together to endeavour to agree: (a) to the same attribution of profits to a resident of a Contracting State and its permanent establishment situated in the other Contracting State; (b) to the same allocation of income between a resident of a Contracting State and any associated person referred to in Article 9. 4. The competent authorities of the Contracting States may consult together for the elimination of double taxation in cases not provided for in the Convention. 5. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. When it seems advisable in order to reach an agreement to have an exchange of views, the matter may be referred to a commission consisting of representatives of the contracting governments specified by the competent authorities. The presidency of the commission is exercised alternatively by a member of each delegation. ARTICLE 25 Exchange of Information 1. The competent authorities of the Contracting States shall directly exchange such information as is necessary for the carrying out of the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement in respect of, or the determination of appeals in relation to, taxes. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
Conventions fiscales
2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws and the administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved notwithstanding the fact that the other State does not need, at that time, such information. 4. The exchange of information shall take place either as a matter of routine or upon request regarding a specific case. The competent authorities of the Contracting States shall agree on the list of information to be communicated as a matter of routine. ARTICLE 26 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State which is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Convention to be a resident of the sending State if that individual is liable in the sending State to the same obligations in relation to tax on total income as are residents of that sending State. 3. The Convention shall not apply to international organizations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State or group of States, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on total income as are residents thereof.
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Income Tax Convention ARTICLE 27 Miscellaneous Rules
1. The provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded (a) by the laws of a Contracting State in the determination of the tax imposed by that State; or (b) by any other agreement entered into by a Contracting State. 2. Nothing in the Convention shall be construed as preventing Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest. 3. Notwithstanding the provisions of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under Article 24 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. VI. FINAL PROVISIONS ARTICLE 28 Entry into Force 1. This Convention shall be ratified and the instruments of ratification shall be exchanged as soon as possible. 2. This Convention shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after the first day of January in the calendar year following that in which the exchange of instruments of ratification takes place; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January in the calendar year following that in which the exchange of instruments of ratification takes place.
Conventions fiscales ARTICLE 29 Termination
This Convention shall continue in effect indefinitely but either Contracting State may, on or before June 30 of any calendar year after the year of the entry into force of this Convention, give to the other Contracting State a notice of termination through the diplomatic channel; in such event, the Convention shall cease to have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after the first day of January of the calendar year following that in which that June 30 date is included; and (b) in respect of other taxes, for taxation years beginning on or after the first day of January of the calendar year following that in which that June 30 date is included. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Convention. DONE in duplicate at this 2nd day of August, 2001, in the English and French languages, each version being equally authentic. FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE REPUBLIC OF SENEGAL
Michèle Lévesque
Cheikh Tidiane Gadio
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Income Tax Convention SCHEDULE 6 (Section 33)
CONVENTION BETWEEN CANADA AND THE CZECH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
Canada and the Czech Republic, desiring to conclude a Convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, have agreed as follows: ARTICLE 1 Persons Covered This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Convention shall apply to taxes on income imposed on behalf of Canada and on behalf of the Czech Republic or of its political subdivisions or local authorities, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income all taxes imposed on total income, or on elements of income, including taxes on gains from the alienation of movable or immovable property, taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation. 3. The existing taxes to which the Convention shall apply are: (a) in the case of Canada: the income taxes imposed by the Government of Canada under the Income Tax Act (hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of the Czech Republic: (i) the tax on income of individuals; (ii) the tax on income of legal persons; (hereinafter referred to as ‘‘Czech tax’’). 4. The Convention shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws.
Conventions fiscales ARTICLE 3 General Definitions
1. For the purposes of this Convention, unless the context otherwise requires: (a) the term ‘‘Canada’’ used in a geographical sense, means the territory of Canada, including (i) any area beyond the territorial sea of Canada which, in accordance with international law and the laws of Canada, is an area within which Canada may exercise rights with respect to the seabed and subsoil and their natural resources; (ii) the sea and airspace above every area referred to in clause (i) in respect of any activity carried on in connection with the exploration for or the exploitation of the natural resources referred to therein; (b) the term ‘‘the Czech Republic’’ means the territory of the Czech Republic over which, under Czech legislation and in accordance with international law, the sovereign rights of the Czech Republic are exercised; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean Canada or the Czech Republic as the context requires; (d) the term ‘‘person’’ comprises an individual, a trust, a company and any other body of persons; (e) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; (f) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (g) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; (h) the term ‘‘international traffic’’ means any transport by a ship or aircraft operated by a resident of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State; (i) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorised representative; (ii) in the case of the Czech Republic, the Minister of Finance or the Minister’s authorised representative.
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2. As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that State for the purposes of the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Convention, the term ‘‘resident of a Contracting State’’ means any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of management, place of incorporation or any other criterion of a similar nature and also includes that State and any political subdivision or local authority thereof or any agency or instrumentality of that State, subdivision or authority. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined in accordance with the following rules: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available; if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests); (b) if the State in which the individual has a centre of vital interests cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; (c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement. 3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then: (a) the person shall be deemed to be a resident only of the State of which the person is a national;
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(b) if the person is a national of neither of the States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Convention to such person. In the absence of such agreement, such person shall not be entitled to claim any relief or exemption from tax provided by the Convention. ARTICLE 5 Permanent Establishment 1. For the purposes of this Convention, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; and (f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources. 3. The term ‘‘permanent establishment’’ likewise encompasses: (a) a building site, or a construction, assembly or installation project or supervisory activities in connection therewith, but only where such site, project or activities continue for a period of more than twelve months; (b) the furnishing of services, including consultancy or managerial services, by an enterprise of a Contracting State through employees or other personnel engaged by the enterprise for such purposes, but only where activities of that nature continue in the territory of the other Contracting State for a period or periods exceeding in the aggregate six months within any twelve month period. 4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
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(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; (f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 5. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 6 applies — is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts in the name of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, where such persons are acting in the ordinary course of their business. 7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. ARTICLE 6 Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State.
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2. For the purposes of this Convention, the term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant tax law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property. 4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on or has carried on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on or has carried on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. 3. In the determination of the profits of a permanent establishment, there shall be allowed as deductions those deductible expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
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4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article. 5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 7. Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by a resident of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of paragraph 1 and of Article 7, profits derived from the operation of ships or aircraft used principally to transport passengers or goods exclusively between places in a Contracting State may be taxed in that State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits derived by a resident of a Contracting State from its participation in a pool, a joint business or an international operating agency. 4. For the purposes of this Article, profits from the operation of ships or aircraft in international traffic include: (a) profits from the rental on a bare boat basis of ships or aircraft and (b) profits from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used for the transport of goods, where such rental or such use, maintenance or rental, as the case may be, is incidental to the operation of ships or aircraft in international traffic.
Conventions fiscales ARTICLE 9 Associated Enterprises
1. Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those which would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other. 3. A Contracting State shall not change the profits of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the profits which would be subject to such change would have accrued to an enterprise of that State. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
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2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: (a) except in the case of dividends paid by a non-residentowned investment corporation that is a resident of Canada, 5 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends; (b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means income from shares, or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. 4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the alienation of immovable property situated in that State by a company carrying on a trade in immovable property or on the earnings of a company attributable to a permanent establishment in that State, tax in addition to the tax which would be chargeable on the earnings of a company which is a resident of that State, provided that any additional tax so imposed shall not exceed 5 per cent of the
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amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the earnings attributable to the alienation of such immovable property situated in a Contracting State as may be taxed by that State under the provisions of paragraph 1 of Article 13, and the profits, including any gains from the alienation of any property, attributable to a permanent establishment in a Contracting State in a year and previous years after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits by that State. ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2, (a) interest arising in a Contracting State and paid in respect of indebtedness of the government of that Contracting State or of a political subdivision or local authority thereof shall, provided that the interest is beneficially owned by a resident of the other Contracting State, be taxable only in that other State; (b) interest arising in a Contracting State and paid to and beneficially owned by a resident of the other Contracting State shall be taxable only in that other State if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by an entity wholly-owned and controlled by the government of that other State, provided this loan or credit is in respect of imports or exports; (c) interest arising in a Contracting State, beneficially owned by a resident of the other Contracting State and paid in connection with the sale on credit of any equipment, merchandise or services except where the sale is made between persons not dealing with each other at arm’s length, shall be taxable only in that other State; (d) interest arising in a Contracting State and paid to a resident of the other Contracting State which was constituted and is operated exclusively to administer or provide benefits under one or more pension, retirement or other employee benefits plans shall not be taxable in the first-mentioned State provided that
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(i) the resident is the beneficial owner of the interest and is generally exempt from tax in the other State, and (ii) the interest is not derived from carrying on a business or from an associated person within the meaning of subparagraph (a) or subparagraph (b) of paragraph 1 of Article 9. 4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. 5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
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2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties. 3. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright of literary, artistic or scientific work including motion picture films and works on films, tapes or other means of reproduction for use in connection with television or radio broadcasting, any patent, trade mark, design or model, plan, secret formula or process, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience. However, the term ‘‘royalties’’ does not include income dealt with in Article 8.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 6. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties paid, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention. ARTICLE 13 Capital Gains 1. Income and gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State.
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2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State. 3. The provisions of paragraphs 1 and 2 shall also apply to gains from the alienation of an interest in a partnership to the extent that the gains can be attributed to immovable property or to movable property forming part of the business property of a partnership.
4. Gains derived by a resident of a Contracting State from the alienation of ships or aircraft operated in international traffic or of movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State. 5. Gains derived by a resident of a Contracting State from the alienation of (a) shares forming part of a substantial interest in the capital stock of a company, at least 50 per cent of the value of which shares is derived from immovable property situated in the other State, and (b) an interest in a trust, at least 50 per cent of the value of which is derived from immovable property situated in that other State, may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include any property, other than rental property, in which the business of the company or trust is carried on, and a substantial interest exists when the resident or persons related thereto own 10 per cent or more of any class of the capital stock of a company. 6. Gains from the alienation of any property other than that referred to in paragraphs 1, 2, 3, 4 and 5, shall be taxable only in the Contracting State of which the alienator is a resident. 7. The provisions of this Article shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and have been a resident of the first-mentioned State at any time during the six years immediately preceding the alienation of the property.
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8. Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. However, this provision shall not apply to property any gain from which, arising immediately before the individual became a resident of that other State, may be taxed in that other State nor to immovable property situated in a third State. ARTICLE 14 Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State except in the following circumstances, when such income may also be taxed in the other Contracting State: (a) if the individual has or had a fixed base regularly available in the other Contracting State for the purpose of performing the activities; in that case, only so much of the income as is attributable to that fixed base may be taxed in the other State; or (b) if the individual is present in the other State for a period or periods exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned; in that case, only so much of the income as is derived from the activities performed in the other State may be taxed in that other State. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
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2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the employment is exercised in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, and (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by a resident of a Contracting State in international traffic, may be taxed in that State. ARTICLE 16 Directors’ Fees Directors’ fees and other similar payments derived by a resident of a Contracting State in that resident’s capacity as a member of the board of directors or other similar organ of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
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2. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the laws of that State. However, in the case of periodic pension (other than benefits under the social security legislation in a Contracting State) and annuity payments, the tax so charged shall not exceed 15 per cent of the gross amount of the payments. However, this limitation does not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other alienation of a pension plan or an annuity. 3. Notwithstanding anything in this Convention: (a) benefits under the social security legislation in a Contracting State and war veterans pensions and allowances arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State; (b) alimony, maintenance and other similar payments arising in a Contracting State and paid to a resident of the other Contracting State who is subject to tax therein in respect thereof, shall be taxable only in that other State but the amount taxable in that other State shall not exceed the amount that would be taxable in the first-mentioned State if the recipient were a resident thereof. ARTICLE 19 Government Service 1. (a) Salaries, wages and other remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or political subdivision or local authority shall be taxable only in that State. (b) However, such salaries, wages and other remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who: (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of paragraph 1 shall not apply to salaries, wages and other remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
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Payments which a student or business apprentice who is present in a Contracting State solely for the purpose of that individual’s education or training and who is or was immediately before such visit a resident of the other Contracting State receives for the purpose of that individual’s maintenance, education or training shall not be taxed in the first-mentioned Contracting State, provided that such payments arise from sources outside that State. ARTICLE 21 Other Income 1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State. 2. Notwithstanding the provisions of paragraph 1, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention and arising in the other Contracting State may also be taxed in that other State. Where such income is income of a resident of the Czech Republic from a trust, other than a trust to which contributions were deductible, the tax so charged shall, if the income is taxable in the Czech Republic where the beneficial owner is a resident, not exceed 15 per cent of the gross amount of the income. ARTICLE 22 Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: (a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions which shall not affect the general principle hereof and unless a greater deduction or relief is provided under the laws of Canada, tax payable in the Czech Republic on profits, income or capital gains arising in the Czech Republic shall be deducted from any Canadian tax payable in respect of such profits, income or capital gains; (b) for the purposes of this paragraph, profits, income or capital gains of a resident of Canada which may be taxed in the Czech Republic in accordance with this Convention shall be deemed to arise from sources in the Czech Republic.
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2. In the case of the Czech Republic, double taxation shall be avoided as follows: the Czech Republic, when imposing taxes on its residents, may include in the tax base upon which such taxes are imposed the items of income which according to the provisions of this Convention may also be taxed in Canada, but shall allow as a deduction from the amount of tax computed on such a base an amount equal to the tax paid in Canada. Such deduction shall not, however, exceed that part of the Czech tax, as computed before the deduction is given, which is appropriate to the income which, in accordance with the provisions of this Convention, may be taxed in Canada. 3. Where in accordance with any provision of the Convention income derived by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on other income, take into account the exempted income. ARTICLE 23 Non-discrimination 1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to individuals who are not residents of one or both of the Contracting States. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or on a fixed base that an individual who is a resident of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises or individuals, as the case may be, of that other State carrying on the same activities. 3. Nothing in this Article shall be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents. 4. Companies which are residents of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar companies which are residents of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected.
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Income Tax Convention ARTICLE 24
Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Convention, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident or, if that person’s case comes under paragraph 1 of Article 23, to that of the Contracting State of which that person is a national, an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action which gives rise to taxation not in accordance with the Convention. 2. The competent authority referred to in paragraph 1 shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Convention. 3. A Contracting State shall not, after the expiry of the time limits provided in its domestic laws and, in any case, after five years from the end of the year in which the income concerned has accrued, increase the tax base of a resident of either of the Contracting States by including therein items of income which have also been charged to tax in the other Contracting State. This paragraph shall not apply in the case of fraud, wilful default or neglect. 4. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention. 5. The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs. ARTICLE 25 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Convention and of the domestic laws of the Contracting States concerning taxes covered by the Convention insofar as the taxation thereunder is not contrary to the Convention, and in particular for the prevention of fraud or evasion in relation to such taxes. The exchange of information is not restricted by Article 1. Any information received by a
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Contracting State shall be treated as secret in the same manner as secret information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes imposed by that State. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. Nothing in paragraph 1 shall be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested to the same extent such information can be obtained under the laws and administrative practices of that other State with respect to its own taxes. ARTICLE 26 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State which is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Convention to be a resident of the sending State if that individual is liable in the sending State to the same obligations in relation to tax on total income as are residents of that sending State.
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3. The Convention shall not apply to international organizations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State or group of States, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total income as are residents thereof. ARTICLE 27 Miscellaneous Rules 1. The provisions of this Convention shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded (a) by the laws of a Contracting State in the determination of the tax imposed by that State; or (b) by any other agreement entered into by a Contracting State. 2. Nothing in the Convention shall be construed as preventing a Contracting State from imposing a tax on amounts included in the income of a resident of that State with respect to a partnership, trust, or controlled foreign affiliate, in which the resident has an interest. 3. For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 4 of Article 24 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. ARTICLE 28 Entry into Force 1. Each of the Contracting States shall notify the other, through the diplomatic channel, the completion of the procedures required by its domestic law for the bringing into force of this Convention. The Convention shall enter into force on the date of the later of these notifications and its provisions shall have effect: (a) in Canada: (i) in respect of tax withheld at the source on amounts paid or credited on or after 1st January in the calendar year next following that in which the Convention enters into force; and
Conventions fiscales (ii) in respect of other Canadian tax for taxation years beginning on or after 1st January in the calendar year next following that in which the Convention enters into force;
(b) in the Czech Republic: (i) in respect of taxes withheld at the source, to income paid or credited on or after 1st January in the calendar year next following that in which the Convention enters into force; and (ii) in respect of other taxes on income, to income in any taxable year beginning on or after 1st January in the calendar year next following that in which the Convention enters into force. 2. From the date of entry into force of this Convention the Convention between the Government of Canada and the Government of the Czech and Slovak Federal Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital signed at Prague on the 30th day of August, 1990, shall, as between Canada and the Czech Republic, terminate. However, the provisions of the 1990 Convention corresponding to those of this Convention shall continue to have effect until the provisions of this Convention take effect in accordance with the provisions of paragraph 1. ARTICLE 29 Termination This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention, through the diplomatic channel, by giving notice of termination at least six months before the end of any calendar year following after the period of five years from the date on which the Convention enters into force. In such event, the Convention shall cease to have effect: (a) in Canada: (i) in respect of tax withheld at the source on amounts paid or credited on or after 1st January in the calendar year next following that in which the notice is given; and (ii) in respect of other Canadian tax for taxation years beginning on or after 1st January in the calendar year next following that in which the notice is given; (b) in the Czech Republic: (i) in respect of taxes withheld at the source, to income paid or credited on or after 1st January in the calendar year next following that in which the notice is given; and (ii) in respect of other taxes on income, to income in any taxable year beginning on or after 1st January in the calendar year next following that in which the notice is given.
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IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Convention. DONE in duplicate at Prague, this 25th day of May, 2001, in the English, French and Czech languages, each version being equally authentic. FOR CANADA
FOR THE CZECH REPUBLIC
Jane Stewart
Jiri Rusnok
Conventions fiscales SCHEDULE 7 (Section 39)
AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE SLOVAK REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL
The Government of Canada and the Government of the Slovak Republic, desiring to conclude an Agreement for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital, have agreed as follows: ARTICLE 1 Persons Covered This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Agreement shall apply to taxes on income and on capital imposed on behalf of a Contracting State, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, as well as taxes on capital appreciation. 3. The existing taxes to which the Agreement shall apply are, in particular, a) in the case of Canada, the taxes imposed by the Government of Canada under the Income Tax Act (hereinafter referred to as ‘‘Canadian tax’’); and b) in the case of Slovakia: (i) the tax on income of individuals; (ii) the tax on income of legal persons; (iii) the tax on immovable property; (hereinafter referred to as ‘‘Slovak tax’’). 4. The Agreement shall apply also to any identical or substantially similar taxes which are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective taxation laws.
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Income Tax Convention ARTICLE 3 General Definitions
1. For the purposes of this Agreement, unless the context otherwise requires, a) the term ‘‘Canada’’, used in a geographical sense, means the territory of Canada, including (i) any area beyond the territorial sea of Canada that, in accordance with international law and the laws of Canada, is an area in respect of which Canada may exercise rights with respect to the seabed and subsoil and their natural resources, and (ii) the sea and airspace above every area referred to in clause (i); b) the term ‘‘Slovakia’’ means the Slovak Republic and, used in a geographical sense, means the territory within which the Slovak Republic exercises its sovereign rights and jurisdiction, in accordance with the rules of international law; c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean Canada or Slovakia as the context requires; d) the term ‘‘person’’ includes an individual, a trust, a company and any other body of persons; e) the term ‘‘company’’ means any body corporate or any entity which is treated as a body corporate for tax purposes; f) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; g) the term ‘‘competent authority’’ means: (i) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative; (ii) in the case of Slovakia, the Minister of Finance or the Minister’s authorized representative; h) the term ‘‘national’’ means: (i) any individual possessing the nationality of a Contracting State; (ii) any legal person, partnership or association deriving its status as such from the laws in force in a Contracting State; i) the term ‘‘international traffic’’ means any voyage of a ship or aircraft operated by an enterprise of a Contracting State to transport passengers or property except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State.
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2. As regards the application of the Agreement at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State for the purposes of the taxes to which the Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Agreement, the term ‘‘resident of a Contracting State’’ means: a) any person who, under the laws of that State, is liable to tax therein by reason of the person’s domicile, residence, place of management or any other criterion of a similar nature but does not include any person who is liable to tax in that State in respect only of income from sources in that State; b) that State or a political subdivi-sion or local authority thereof or any agency or instrumentality of any such State, subdivision or authority. 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available; if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests); b) if the State in which the individual’s centre of vital interests is situated cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
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3. Where by reason of the provisions of paragraph 1 a company is a resident of both Contracting States, then its status shall be determined as follows: a) it shall be deemed to be a resident only of the State of which it is a national; or b) if it is a national of neither of the States, it shall be deemed to be a resident only of the State in which its place of effective management is situated. 4. Where by reason of the provisions of paragraph 1 a person other than an individual or a company is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle the question and to determine the mode of application of the Agreement to such person. In the absence of such agreement, such person shall not be entitled to claim any relief or exemption from tax provided by the Agreement. ARTICLE 5 Permanent Establishment 1. For the purposes of this Agreement, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: a) a place of management; b) a branch; c) an office; d) a factory; e) a workshop; and f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources.
3. The term ‘‘permanent establishment’’ likewise encompasses: a) a building site or construction or assembly or installation project only if it lasts for more than twelve months; b) the furnishing of services, including consultancy and managerial services, by an enterprise of a Contracting State through employees or other personnel engaged by the enterprise for such purposes, but only where activities of that nature continue (for the same or a connected project) within the territory of the other Contracting State for a period or periods aggregating more than nine months within any twelve-month period.
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4. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs a) to e) provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 5. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 6 applies — is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise unless the activities of such person are limited to those mentioned in paragraph 4 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
6. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. 7. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
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Income Tax Convention ARTICLE 6
Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State. 2. For the purposes of this Agreement, the term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant tax law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources. Ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment and with all other persons. 3. In determining the profits of a permanent establishment, there shall be allowed those deductible expenses which are incurred for the purposes of the permanent establishment including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
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4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary. The method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article. 5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits derived by an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Notwithstanding the provisions of Article 7, profits derived by an enterprise of a Contracting State from a voyage of a ship or aircraft where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State may be taxed in that other State. 3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency. 4. For the purposes of this Article, the term ‘‘operation of ships or aircraft in international traffic’’ by an enterprise, includes: a) the rental of ships or aircraft; b) the rental of containers and related equipment, by that enterprise if that rental is incidental to the operation by that enterprise of ships or aircraft in international traffic.
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Income Tax Convention ARTICLE 9 Associated Enterprises
1. Where a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Where a Contracting State includes in the profits of an enterprise of that State — and taxes accordingly — profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued to the enterprise of the first-mentioned State if the conditions made between the two enterprises had been those that would have been made between independent enterprises, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall if necessary consult each other. 3. A Contracting State shall not change the profits of an enterprise in the circumstances referred to in paragraph 1 after the expiry of the time limits provided in its domestic laws and, in any case, after six years from the end of the year in which the profits which would be subject to such change would, but for the conditions referred to in paragraph 1, have been attributed to that enterprise. 4. The provisions of paragraphs 2 and 3 shall not apply in the case of fraud, wilful default or neglect. ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
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2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if the beneficial owner of the dividends is a resident of the other Contracting State, the tax so charged shall not exceed: a) except in the case of dividends paid by a non-residentowned investment corporation, 5 per cent of the gross amount of the dividends if the beneficial owner is a company which controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends; b) 15 per cent of the gross amount of the dividends, in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means income from shares, ‘‘jouissance’’ shares or ‘‘jouissance’’ rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, as well as income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident. 4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
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6. Nothing in this Agreement shall be construed as preventing a Contracting State from imposing on the earnings of a company attributable to a permanent establishment in that State, or the earnings attributable to the alienation of immovable property situated in that State by a company carrying on a trade in immovable property, a tax in addition to the tax that would be chargeable on the earnings of a company that is a national of that State, except that any additional tax so imposed shall not exceed 5 per cent of the amount of such earnings that have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means the earnings attributable to the alienation of such immovable property situated in a Contracting State as may be taxed by that State under the provisions of Article 6 or of paragraph 1 of Article 13, and the profits, including any gains, attributable to a permanent establishment in a Contracting State in a year and previous years, after deducting therefrom all taxes, other than the additional tax referred to herein, imposed on such profits in that State. ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if the beneficial owner of the interest is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2: a) interest arising in a Contracting State and paid in respect of indebtedness of the government of that State or of a political subdivision or local authority thereof shall, if the interest is beneficially owned by a resident of the other Contracting State, be taxable only in that other State; b) interest arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in that other State if it is paid in respect of a loan made, guaranteed or insured, or a credit extended, guaranteed or insured by any entity wholly-owned and controlled by the government of that other State, provided this loan or credit is in respect of imports or exports. 4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
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5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether that person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if the beneficial owner of the royalties is a resident of the other Contracting State, the tax so charged shall not exceed 10 per cent of the gross amount of the royalties. 3. Notwithstanding the provisions of paragraph 2, copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or other artistic work (but not including royalties in respect of motion picture films nor royalties in respect of works on film or videotape or other means of reproduction for use in connection with television broadcasting) arising in a Contracting State and paid to a resident of the other Contracting State who is the beneficial owner of the royalties shall be taxable only in that other State.
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4. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television.
5. The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether that person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property situated in the other Contracting State may be taxed in that other State.
Conventions fiscales
2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has or had in the other Contracting State or of movable property pertaining to a fixed base that is or was available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State. 3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic or from containers used in, or other movable property pertaining to, the operation of such ships or aircraft shall be taxable only in that State. 4. Gains derived by a resident of a Contracting State from the alienation of a) shares, the value of which is derived principally from immovable property situated in the other State, or b) an interest in a partnership or trust, the value of which is derived principally from immovable property situated in that other State, may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include any property in which the business of the company, partnership or trust is carried on, but does include rental property. 5. Gains from the alienation of any property, other than that referred to in paragraphs 1, 2, 3 and 4, shall be taxable only in the Contracting State of which the alienator is a resident. 6. The provisions of paragraph 5 shall not affect the right of a Contracting State to levy, according to its law, a tax on gains from the alienation of any property derived by an individual who is a resident of the other Contracting State and has been a resident of the first-mentioned State at any time during the six years immediately preceding the alienation of the property. 7. Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. However, this provision shall not apply to property any gain from which, arising immediately before the individual became a resident of that other State, may be taxed in that other State nor to immovable property situated in a third State.
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Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional or similar services of an independent character shall be taxable only in that State unless the individual has a fixed base regularly available in the other Contracting State for the purpose of performing the services. If the individual has or had such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the calendar year concerned, and b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
Conventions fiscales ARTICLE 16 Directors’ Fees
Directors’ fees and other similar payments derived by a resident of a Contracting State in the capacity as a member of the board of directors or a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. 3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities exercised in a Contracting State by an entertainer or a sportsperson insofar as the activities are performed in the context of a visit to that State wholly or mainly supported by public funds of the other Contracting State, or a political subdivision or local authority thereof, or a statutory body of such State, subdivision or authority. ARTICLE 18 Pensions and Annuities 1. Pensions and annuities arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. Pensions arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the laws of that State. However, in the case of periodic pension payments, other than payments under the social security legislation in a Contracting State, the tax so charged shall not exceed the lesser of a) 15 per cent of the gross amount of the payment; and b) the rate determined by reference to the amount of tax that the recipient of the payment would otherwise be required to pay for the year on the total amount of the periodic pension payments received by the individual in the year, if the individual were resident in the Contracting State in which the payment arises.
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3. Annuities arising in a Contracting State and paid to a resident of the other Contracting State may also be taxed in the State in which they arise and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the portion thereof that is subject to tax in that State. However, this limitation does not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other disposition of an annuity, or to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of any person who acquired the contract. 4. The term ‘‘annuity’’ as used in this Article means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money’s worth. 5. Notwithstanding anything in this Agreement a) war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of a war) arising in a Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in that other State to the extent that they would be exempt from tax if received by a resident of the first-mentioned State; b) social security benefits paid by a Contracting State or a political subdivision thereof to a resident of the other Contracting State shall be taxable only in the first-mentioned State. ARTICLE 19 Government Service 1. a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who (i) is a national of that State; or (ii) did not become a resident of that State solely for the purpose of rendering the services. 2. The provisions of Articles 15, 16 and 17 shall apply to salaries, wages and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
Conventions fiscales ARTICLE 20 Students
Payments which a student or an apprentice who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, if such payments arise from sources outside that State. ARTICLE 21 Other Income 1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State. 2. Notwithstanding paragraph 1, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the State in which it arises and according to the law of that State. Where such income is income from a trust, other than a trust to which contributions were deductible, the tax so charged shall, if the income is taxable in the Contracting State in which the beneficial owner is a resident, not exceed 15 per cent of the gross amount of the income. ARTICLE 22 Capital 1. Capital represented by immovable property owned by a resident of a Contracting State and situated in the other Contracting State may be taxed in that other State. 2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State. 3. Capital represented by ships and aircraft operated by an enterprise of a Contracting State in international traffic and by movable property pertaining to the operation of such ships and aircraft shall be taxable only in that State. 4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.
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Elimination of Double Taxation 1. In the case of Canada, double taxation shall be avoided as follows: a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Slovakia on profits, income or gains arising in Slovakia shall be deducted from any Canadian tax payable in respect of such profits, income or gains; b) subject to the provisions of the law of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — where a company which is a resident of Slovakia pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Slovakia by that first-mentioned company in respect of the profits out of which such dividend is paid;
c) where in accordance with any provision of the Agreement income derived or capital owned by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital.
2. In the case of Slovakia, double taxation shall be avoided as follows: a) Slovakia, when imposing taxes on its residents, may include in the tax base upon which taxes are imposed the items of income or capital which according to the provisions of this Agreement may also be taxed in Canada, but shall allow as a deduction from the amount of tax computed on such a base an amount equal to the tax paid in Canada. Such deduction shall not, however, exceed that part of the Slovak tax, as computed before the deduction is given, which is appropriate to the income or capital which, in accordance with the provisions of this Agreement, may be taxed in Canada;
Conventions fiscales
b) subject to the provisions of the law of Slovakia regarding the allowance as a credit against Slovak tax of tax payable in a territory outside Slovakia and to any subsequent modification of those provisions — which shall not affect the general principle hereof — where a company which is a resident of Canada pays a dividend to a company which is a resident of Slovakia and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Canada by that first-mentioned company in respect of the profits out of which such dividend is paid;
c) where in accordance with any provision of the Agreement income derived or capital owned by a resident of Slovakia is exempt from tax in Slovakia, Slovakia may nevertheless, in calculating the amount of tax on the remaining income or capital, take into account the exempted income or capital. 3. For the purposes of this Article, profits, income or gains of a resident of a Contracting State that may be taxed in the other Contracting State in accordance with this Agreement shall be deemed to arise from sources in that other State. ARTICLE 24 Non-discrimination 1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to individuals who are not residents of one or both of the Contracting States. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. 3. The provisions of this Article shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.
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4. Except where the provisions of paragraph 1 of Article 9, paragraph 6 of Article 11, or paragraph 5 of Article 12 apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purposes of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. Similarly, any debts of an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable capital of such enterprise, be deducted under the same conditions as if they had been contracted to a resident of the first-mentioned State. 5. The provisions of paragraph 4 shall not affect the operation of any provision of the taxation laws of a Contracting State: a) relating to the deductibility of interest and which is in force on the date of signature of this Agreement (including any subsequent modification of such provisions that does not change the general nature thereof); or b) adopted after such date by a Contracting State and which is designed to ensure that a person who is not a resident of that State does not enjoy, under the laws of that State, a tax treatment that is more favourable than that enjoyed by residents of that State. 6. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which other similar enterprises that are residents of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected. 7. In this Article, the term ‘‘taxation’’ means taxes that are the subject of this Agreement. ARTICLE 25 Mutual Agreement Procedure 1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Agreement, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident or, if the case comes under paragraph 1 of Article 24, to that of the Contracting State of which that person is a national, an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement.
Conventions fiscales
2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Agreement. 3. A Contracting State shall not, after the expiry of the time limits provided in its domestic laws and, in any case, after six years from the end of the taxable period to which the income concerned was attributed, increase the tax base of a resident of either of the Contracting States by including therein items of income that have also been charged to tax in the other Contracting State. This paragraph shall not apply in the case of fraud, wilful default or neglect. 4. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. 5. The competent authorities of the Contracting States may consult together for the elimination of double taxation in cases not provided for in the Agreement and may communicate with each other directly for the purpose of applying the Agreement. ARTICLE 26 Exchange of Information 1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Agreement or of the domestic laws in the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to taxes imposed by that State. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. 2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
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c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public). 3. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved, even though the other State does not, at that time, need such information. If specifically requested by the competent authority of a Contracting State, the competent authority of the other Contracting State shall endeavour to provide information under this Article in the form requested to the same extent information in that form can be obtained under the laws and administrative practices of that other State with respect to its own taxes. ARTICLE 27 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State that is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Agreement to be a resident of the sending State if that individual is liable in the sending State to the same obligations in relation to tax on total income or on total capital as are residents of that sending State. ARTICLE 28 Miscellaneous Rules 1. The provisions of this Agreement shall not be construed to restrict in any manner any exemption, allowance, credit or other deduction accorded by the laws of a Contracting State in the determination of the tax imposed by that State. 2. Nothing in the Agreement shall be construed as preventing a Contracting State from imposing a tax on amounts included in the income of a resident of that State with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest.
Conventions fiscales
3. The Agreement shall not apply to any company, trust or other entity that is a resident of a Contracting State and is beneficially owned or controlled, directly or indirectly, by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust or other entity by that State is substantially lower than the amount that would be imposed by that State if all of the shares of the capital stock of the company or all of the interests in the trust or other entity, as the case may be, were beneficially owned by one or more individuals who were residents of that State. 4. For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 4 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. ARTICLE 29 Entry into Force 1. This Agreement shall be approved by each Contracting State in compliance with its internal legal procedure and shall enter into force on the date of the later diplomatic note confirming such approval. Its provisions shall thereupon have effect: a) in Canada (i) in respect of tax withheld at source, on amounts paid or credited on or after the first day of January in the calendar year next following that in which the Agreement enters into force, and (ii) in respect of other Canadian tax, for taxation years beginning on or after the first day of January in the calendar year next following that in which the Agreement enters into force; b) in Slovakia: (i) in respect of taxes withheld at source, on amounts paid or credited on or after the first day of January in the calendar year next following that in which the Agreement enters into force, and (ii) in respect of other taxes on income and on capital for any tax year beginning on or after the first day of January in the calendar year next following that in which the Agreement enters into force.
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2. From the date of entry into force of this Agreement the Convention between the Government of Canada and the Government of the Czech and Slovak Federal Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital signed at Prague on the 30th day of August, 1990, shall, as between Canada and the Slovak Republic, terminate. However, the provisions of the 1990 Convention corresponding to those of this Agreement shall continue to have effect until the provisions of this Agreement take effect in accordance with the provisions of paragraph 1. ARTICLE 30 Termination This Agreement shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving written notice of termination at least six months before the end of any calendar year following after the period of five years from the date on which the Agreement enters into force. In such event, the Agreement shall cease to have effect: a) in Canada (i) in respect of tax withheld at source, on amounts paid or credited after the end of that calendar year, and (ii) in respect of other Canadian tax, for taxation years beginning after the end of that calendar year; b) in Slovakia: (i) in respect of taxes withheld at source, on amounts paid or credited on or after the first day of January in the calendar year next following that in which the notice of termination is given, and (ii) in respect of other taxes on income and on capital for any tax year beginning on or after the first day of January in the calendar year next following that in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement. DONE in duplicate at Bratislava, this 22nd day of May, 2001, each in the English, French and Slovak languages, each version being equally authentic. FOR THE GOVERNMENT OF CANADA
FOR THE GOVERNMENT OF THE SLOVAK REPUBLIC
Jane Stewart
Brigita Schmögnerov�
Conventions fiscales SCHEDULE 8 (Subsection 46(1)) PART 1
AGREEMENT BETWEEN CANADA AND THE FEDERAL REPUBLIC OF GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND CERTAIN OTHER TAXES, THE PREVENTION OF FISCAL EVASION AND THE ASSISTANCE IN TAX MATTERS
Canada and the Federal Republic of Germany, desiring to conclude an Agreement for the avoidance of double taxation with respect to taxes on income and certain other taxes, the prevention of fiscal evasion and the assistance in tax matters, have agreed as follows: ARTICLE 1 Persons Covered This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered 1. This Agreement shall apply to taxes on income and on capital imposed by each Contracting State and, in the case of the Federal Republic of Germany, on behalf of its Laender, political subdivisions or local authorities, irrespective of the manner in which they are levied. 2. There shall be regarded as taxes on income and on capital all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the alienation of movable or immovable property, as well as taxes on capital appreciation. 3. The existing taxes to which the Agreement shall apply are: (a) in the case of Canada: the taxes imposed by the Government of Canada under the Income Tax Act, (hereinafter referred to as ‘‘Canadian tax’’); (b) in the case of the Federal Republic of Germany: (aa) the income tax (Einkommensteuer), (bb) the corporation tax (K�rperschaftsteuer), (cc) the capital tax (Verm�gensteuer), (dd) the trade tax (Gewerbesteuer), and (ee) the solidarity surcharge (Solidarit�tszuschlag), (hereinafter referred to as ‘‘German tax’’).
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4. The Agreement shall apply also to any identical or substantially similar taxes on income and to taxes on capital which are imposed after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made to their respective taxation laws. ARTICLE 3 General Definitions 1. For the purposes of this Agreement, unless the context otherwise requires: (a) the term ‘‘Canada’’ when used in a geographical sense, means the territory of Canada, including: (aa) any area beyond the territorial sea of Canada which, in accordance with international law and the laws of Canada, is an area within which Canada may exercise rights with respect to the seabed and subsoil and their natural resources; (bb) the sea and airspace above every area referred to in (aa) in respect of any activity carried on in connection with the exploration for or the exploitation of the natural resources referred to therein; (b) the term ‘‘Federal Republic of Germany’’ when used in a geographical sense, means the territory of the Federal Republic of Germany as well as the area of the seabed, its subsoil and the superjacent water column adjacent to the territorial sea, wherein the Federal Republic of Germany exercises sovereign rights and jurisdiction in conformity with international law and its national legislation for the purpose of exploring, exploiting, conserving and managing the living and non-living natural resources; (c) the terms ‘‘a Contracting State’’ and ‘‘the other Contracting State’’ mean, as the context requires, Canada or the Federal Republic of Germany; (d) the term ‘‘person’’ includes an individual and a company; (e) the term ‘‘company’’ means any body corporate or any other entity which is treated as a body corporate for tax purposes; (f) the terms ‘‘enterprise of a Contracting State’’ and ‘‘enterprise of the other Contracting State’’ mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; (g) the term ‘‘national’’ means: (aa) in respect of Canada, any individual possessing the nationality of Canada and any legal person, partnership or association deriving its status as such from the law in force in Canada;
Conventions fiscales (bb) in respect of the Federal Republic of Germany, any German within the meaning of the Basic Law for the Federal Republic of Germany and any legal person, partnership and association deriving its status as such from the law in force in the Federal Republic of Germany;
(h) the term ‘‘competent authority’’ means: (aa) in the case of Canada, the Minister of National Revenue or the Minister’s authorized representative, (bb) in the case of the Federal Republic of Germany, the Federal Minister of Finance or the Minister’s delegate; (i) the term ‘‘international traffic’’ means any voyage of a ship or aircraft operated by an enterprise of a Contracting State, except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State.
2. As regards the application of the Agreement by a Contracting State at any time, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which the Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State. ARTICLE 4 Resident 1. For the purposes of this Agreement, the term ‘‘resident of a Contracting State’’ means: (a) any person who, under the laws of that State, is liable to tax therein by reason of that person’s domicile, residence, place of management or any other criterion of a similar nature; (b) that State itself, a ‘‘Land’’ or a political subdivision or local authority thereof or any agency or instrumentality of any such State, Land, subdivision or authority. This term does not, however, include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein.
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2. Where by reason of the provisions of paragraph l an individual is a resident of both Contracting States, then the individual’s status shall be determined as follows: (a) the individual shall be deemed to be a resident only of the State in which the individual has a permanent home available; if the individual has a permanent home available in both States, the individual shall be deemed to be a resident only of the State with which the individual’s personal and economic relations are closer (centre of vital interests); (b) if the State in which the individual’s centre of vital interests is situated cannot be determined, or if there is not a permanent home available to the individual in either State, the individual shall be deemed to be a resident only of the State in which the individual has an habitual abode; (c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which the individual is a national; (d) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, the competent authorities of the Contracting States shall by mutual agreement endeavour to settle its status and to determine the application of the Agreement. Insofar as no such agreement has been reached, such person shall be deemed not to be a resident of either Contracting State for the purposes of enjoying benefits under the provisions of the Agreement. ARTICLE 5 Permanent Establishment 1. For the purposes of this Agreement, the term ‘‘permanent establishment’’ means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 2. The term ‘‘permanent establishment’’ includes especially: (a) a place of management; (b) a branch; (c) an office; (d) a factory; (e) a workshop; and (f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources.
Conventions fiscales
3. A building site or construction or installation project constitutes a permanent establishment only if it lasts more than twelve months. 4. The use of an installation or drilling rig or ship in a Contracting State to explore for or exploit natural resources constitutes a permanent establishment if, but only if, such use is for more than three months in any twelve-month period. 5. Notwithstanding the preceding provisions of this Article, the term ‘‘permanent establishment’’ shall be deemed not to include: (a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; (b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; (c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; (d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or for collecting information, for the enterprise; (e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character; (f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e) provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character. 6. Notwithstanding the provisions of paragraphs 1 and 2, where a person — other than an agent of an independent status to whom paragraph 7 applies — is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 5 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
7. An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business.
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8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other. ARTICLE 6 Income from Immovable Property 1. Income derived by a resident of a Contracting State from immovable property (including income from agriculture or forestry) situated in the other Contracting State may be taxed in that other State. 2. The term ‘‘immovable property’’ shall have the meaning which it has for the purposes of the relevant taxation law of the Contracting State in which the property in question is situated. The term shall in any case include property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources; ships and aircraft shall not be regarded as immovable property. 3. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable property and to income from the alienation of such property.
4. The provisions of paragraphs 1 and 3 shall also apply to the income from immovable property of an enterprise and to income from immovable property used for the performance of independent personal services. ARTICLE 7 Business Profits 1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on or has carried on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment. 2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on or has carried on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
Conventions fiscales
3. In determining the profits of a permanent establishment, there shall be allowed those deductible expenses which are incurred for the purposes of the permanent establishment including executive and general administrative expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere. 4. Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph 2 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article. 5. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise. 6. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary. 7. Where profits include items of income which are dealt with separately in other Articles of this Agreement, then, the provisions of those Articles shall not be affected by the provisions of this Article. ARTICLE 8 Shipping and Air Transport 1. Profits of an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State. 2. Profits of an enterprise of a Contracting State from the use or rental of containers (including trailers, barges, and related equipment for the transport of containers) used in international traffic shall be taxable only in that State. 3. Notwithstanding the provisions of Article 7, profits derived by an enterprise of a Contracting State from a voyage of a ship where the principal purpose of the voyage is to transport passengers or property between places in the other Contracting State, may be taxed in that other State. 4. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
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Where (a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or (b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions are made or imposed between the two enterprises in their commercial or financial relations which differ from those which would be made between independent enterprises, then any profits which would, but for those conditions, have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
ARTICLE 10 Dividends 1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State. 2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the dividends the tax so charged shall not exceed: (a) 5 per cent of the gross amount of the dividends if the beneficial owner is a company that controls at least 10 per cent of the voting power in the company paying the dividends; (b) 15 per cent of the gross amount of the dividends in all other cases. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. 3. The term ‘‘dividends’’ as used in this Article means: (a) dividends on shares including income from shares, ‘‘jouissance’’ shares or ‘‘jouissance’’ rights, mining shares, founders’ shares or other rights, not being debt-claims, participating in profits, and (b) other income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident, and for the purpose of taxation in the Federal Republic of Germany, income derived by a ‘‘stiller Gesellschafter’’ (sleeping partner) from the partner’s participation as such, income from a ‘‘partiarisches Darlehen’’ (loan, with interest
Conventions fiscales
rate linked to borrower’s profit) or ‘‘Gewinnobligationen’’ (profit sharing bonds) and similar remuneration which is dependent on profits as well as distributions on certificates of an investment trust.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 5. Where a company which is a resident of a Contracting State and not also a resident of the other Contracting State derives profits or income from the other State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company’s undistributed profits to a tax on the company’s undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. 6. Notwithstanding any provision in this Agreement, Canada may impose on the earnings of a company attributable to permanent establishments in Canada, or on the earnings attributable to the alienation of immovable property situated in Canada by a company carrying on a trade in immovable property, tax in addition to the tax which would be chargeable on the earnings of a company that is a resident of Canada, provided that the rate of such additional tax so imposed shall not exceed the percentage limitation provided for under subparagraph (a) of paragraph 2 of the amount of such earnings which have not been subjected to such additional tax in previous taxation years. For the purpose of this provision, the term ‘‘earnings’’ means: (a) the earnings attributable to the alienation of such immovable property situated in Canada as may be taxed by Canada under the provisions of Article 6 or of paragraph 1 of Article 13, and (b) the profits attributable to such permanent establishments in Canada (including gains from the alienation of property forming part of the business property, referred to in paragraph 2 of Article 13, of such permanent establishments) in accordance with Article 7 in a year and previous years after deducting therefrom:
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(aa) business losses attributable to such permanent establishments (including losses from the alienation of property forming part of the business property of such permanent establishments) in such year and previous years, (bb) all taxes chargeable in Canada on such profits, other than the additional tax referred to herein, (cc) the profits reinvested in Canada, provided that the amount of such deduction shall be determined in accordance with the provisions of the law of Canada, as they be amended from time to time without changing the general principle hereof, regarding the computation of the allowance in respect of investment in property in Canada, and (dd) five hundred thousand Canadian dollars ($500,000) or its equivalent in the currency of the Federal Republic of Germany, less any amount deducted (aaa) by the company, or (bbb) by a person related thereto from the same or a similar business as that carried on by the company under this clause.
ARTICLE 11 Interest 1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the interest the tax so charged shall not exceed 10 per cent of the gross amount of the interest. 3. Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and paid to a resident of the other Contracting State who is the beneficial owner thereof shall be taxable only in that other State to the extent that such interest: (a) is paid in connection with the sale on credit of any equipment or merchandise by the purchasing person to the selling person, except where the sale is made between associated persons; (b) is paid in respect of indebtedness of the government of a Contracting State or of a ‘‘Land’’, or political subdivision or local authority thereof; (c) is paid to the Canadian Export Development Corporation or to the German ‘‘Kreditanstalt für Wiederaufbau’’ or the ‘‘Deutsche Gesellschaft für Wirtschaftliche Zusammenarbeit’’;
Conventions fiscales
(d) is paid to the government of a Contracting State or of a ‘‘Land’’, or political subdivision thereof, or to the central bank of a Contracting State; or (e) is paid to a resident of the other State which was constituted and is operated exclusively to administer or provide benefits under one or more pension, retirement or other employee benefits plans provided that: (aa) the resident is generally exempt from income tax in the other State, and (bb) the interest is not derived from carrying on a trade or a business or from an associated person. For the purpose of subparagraphs (a) and (e), a person is associated with another person if it is related to, or controlled or managed by the other person or if both persons are related to, or controlled by or managed by a third person. For the purpose of the preceding sentence, a person is related to another person if more than 50 per cent of the voting shares belongs to the other person, to persons with whom the other person is associated, or to other persons so associated with it.
4. The term ‘‘interest’’ as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage, and in particular, income from government securities and income from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures as well as income which is subjected to the same taxation treatment as income from money lent by the laws of the State in which the income arises. However, the term ‘‘interest’’ does not include income dealt with in Article 10. 5. The provisions of paragraphs 1 to 3 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
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7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement. ARTICLE 12 Royalties 1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State. 2. However, such royalties may also be taxed in the Contracting State in which they arise and according to the laws of that State, but if a resident of the other Contracting State is the beneficial owner of the royalties the tax so charged shall not exceed 10 per cent of the gross amount of the royalties. 3. Notwithstanding the provisions of paragraph 2, royalties arising in a Contracting State and paid to a resident of the other Contracting State who is the beneficial owner of the royalties shall be taxable only in that other State if they are: (a) copyright royalties and other like payments in respect of the production or reproduction of any literary, dramatic, musical or artistic work (but not including royalties in respect of motion picture films nor royalties in respect of works on film or videotape or other means of reproduction for use in connection with television broadcasting); (b) royalties for the use of, or the right to use, computer software or any patent or for information concerning industrial, commercial or scientific experience (but not including any such royalty provided in connection with a rental or franchise agreement). 4. The term ‘‘royalties’’ as used in this Article means payments of any kind received as a consideration for the use of, or the right to use, any copyright, patent, trade mark, design or model, plan, secret formula or process or other intangible property, or for the use of, or the right to use, industrial, commercial or scientific equipment, or for information concerning industrial, commercial or scientific experience, and includes payments of any kind in respect of motion picture films and works on film, videotape or other means of reproduction for use in connection with television.
Conventions fiscales
5. The provisions of paragraphs 1 to 3 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 6. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the payer is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. 7. Where, by reason of a special relationship between the payer and the beneficial owner or between both of them and some other person, the amount of the royalties, having regard to the use, right or information for which they are paid, exceeds the amount which would have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement. ARTICLE 13 Capital Gains 1. Gains derived by a resident of a Contracting State from the alienation of immovable property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State. 2. Gains from the alienation of movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or of movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including such gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base may be taxed in that other State. 3. Gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated, or containers used, in international traffic or movable property pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
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4. Gains derived by a resident of a Contracting State from the alienation of: (a) shares (other than shares listed on an approved stock exchange in the other Contracting State) forming part of a substantial interest in the capital stock of a company which is a resident of that other State the value of which shares is derived principally from immovable property situated in that other State; or (b) an interest in a partnership, trust or estate the value of which is derived principally from immovable property situated in the other Contracting State, may be taxed in that other State. For the purposes of this paragraph, the term ‘‘immovable property’’ does not include property (other than rental property) in which the business of the company, partnership, trust or estate is carried on; and a substantial interest in the capital stock of a company exists when the resident and persons related thereto own 10 per cent or more of the shares of any class of the capital stock of a company. 5. Where a resident of a Contracting State alienates property in the course of an organization, reorganization, amalgamation, division or similar transaction and profit, gain or income with respect to such alienation is not recognized for the purpose of taxation in that State, if requested to do so by the person who acquires the property, the competent authority of the other Contracting State may agree, subject to terms and conditions satisfactory to such competent authority, to defer the recognition of the profit, gain or income with respect to such property for the purpose of taxation in that other State. 6. Gains from the alienation of any property, other than those mentioned in paragraphs 1 to 4 shall be taxable only in the Contracting State of which the alienator is a resident. 7. In the case of an individual who has been a resident of a Contracting State and who has become a resident of the other Contracting State: (a) the provisions of paragraph 6 shall not affect the right of either of the Contracting States to levy, according to its law, a tax on gains from the alienation of any property derived by such individual at any time during the ten years following the date on which the individual has ceased to be a resident of the first-mentioned State;
Conventions fiscales
(b) where that individual is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, sold and repurchased the property for an amount equal to its fair market value at that time. However, this provision shall not apply to property any gain from which, arising immediately before the individual became a resident of that other State, may be taxed in that other State nor to immovable property situated in a third State. ARTICLE 14 Independent Personal Services 1. Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless the individual has a fixed base regularly available in the other Contracting State for the purpose of performing the activities. If the individual has or had such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. 2. The term ‘‘professional services’’ includes especially independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. ARTICLE 15 Dependent Personal Services 1. Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State. 2. Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if: (a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned, and (b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and (c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
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3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State. ARTICLE 16 Directors’ Fees 1. Directors’ fees and other similar payments derived by a resident of a Contracting State in that resident’s capacity as a member of the board of directors of a company which is a resident of the other Contracting State, may be taxed in that other State. 2. Salaries, wages and other remuneration derived by a resident of a Contracting State in that resident’s capacity as an officer, or an official responsible under commercial law for the overall direction of the affairs, of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Artistes and Sportspersons 1. Notwithstanding the provisions of Articles 7, 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that resident’s personal activities as such exercised in the other Contracting State, may be taxed in that other State. 2. Where income in respect of personal activities exercised by an entertainer or a sportsperson in that individual’s capacity as such accrues not to the entertainer or sportsperson personally but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised. 3. The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by entertainers or sportspersons if the visit to that State is substantially supported, directly or indirectly, by public funds of the other Contracting State or a ‘‘Land’’ or a political subdivision or a local authority thereof. In such a case, the income shall be taxable only in the Contracting State of which the entertainer or sportsperson is a resident.
Conventions fiscales ARTICLE 18 Pensions, Annuities and Similar Payments
1. Periodic or non-periodic pensions and other similar allowances derived by a resident of a Contracting State shall be taxable only in that State. However, such pensions and allowances may also be taxed in the other Contracting State if: (a) they are derived from sources in that other Contracting State; (b) contributions to the pension fund or plan were deductible for the purposes of taxation in that other State or if the pension was funded by that other State, a ‘‘Land’’, a political subdivision, a local authority or a governmental instrumentality thereof; and (c) they are not paid in respect of services rendered or activities exercised outside that other State by a person when this person was not a resident of that other State. 2. Annuities derived by a resident of a Contracting State shall be taxable only in that State unless they are derived from sources within the other Contracting State. If they are so derived, such annuities may be taxed in that other State. The term ‘‘annuities’’ means stated sums payable periodically at stated times, during life or during a specified or ascertainable period of time, under an obligation to make the payments in return for adequate and full consideration in money or money’s worth but does not include any annuity the cost of which was deductible for the purposes of taxation in the Contracting State in which it was acquired.
3. Notwithstanding any provision in this Agreement: (a) war pensions and allowances (including pensions and allowances paid to war veterans or paid as a consequence of damages or injuries suffered as a consequence of war) received from Canada and paid to a resident of the Federal Republic of Germany shall be taxable only in Canada; (b) periodic or non-periodic payments received by a resident of Canada from the Federal Republic of Germany, or a ‘‘Land’’ or a governmental instrumentality thereof as compensation for an injury or damage sustained as a result of hostilities or past political persecution shall be taxable only in the Federal Republic of Germany; (c) benefits under the social security legislation in a Contracting State paid to a resident of the other Contracting State may be taxed in that other State, but the amount of any such benefits that would be excluded from taxable income in the first-mentioned State if the recipient were a resident thereof shall be exempt from taxation in that other State;
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(d) alimony or similar allowances arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in that other State. ARTICLE 19 Government Service 1. (a) Salaries, wages and similar remuneration, other than a pension, paid by a Contracting State, a ‘‘Land’’, or a political subdivision or a local authority or an instrumentality thereof to an individual in respect of services rendered to that State, ‘‘Land’’, subdivision, authority or instrumentality shall be taxable only in that State. (b) However, such salaries, wages and similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State other than a national of the State referred to in subparagraph (a) whose salary, wage or similar remuneration is taxed in the last-mentioned State.
2. The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with a business carried on by a Contracting State, a ‘‘Land’’ or a political subdivision or a local authority or an instrumentality thereof.
3. In this Article, the term ‘‘instrumentality’’ means any agent or entity created or organized by the Government of either Contracting State or a ‘‘Land’’ or political subdivision or local authority thereof in order to carry out functions of a governmental nature which is specified and agreed to in letters exchanged between the competent authorities of the Contracting States. ARTICLE 20 Students Payments which a student, apprentice or business trainee (including a ‘‘Voluntaer’’ or a ‘‘Praktikant’’) who is, or was, immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first-mentioned State solely for the purpose of that individual’s education or training receives for the purpose of that individual’s maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State.
Conventions fiscales ARTICLE 21 Other Income
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State. 2. The provisions of paragraph 1 shall not apply to income, other than income from immovable property as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 3. Notwithstanding the provisions of paragraphs 1 and 2, items of income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State. ARTICLE 22 Capital 1. Capital represented by immovable property referred to in Article 6, owned by a resident of a Contracting State and situated in the other Contracting State, may be taxed in that other State. 2. Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or by movable property pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, may be taxed in that other State. 3. Capital represented by ships and aircraft operated, and containers used, by an enterprise of a Contracting State in international traffic and by movable property pertaining to the operation of such ships or aircraft shall be taxable only in that State. 4. All other elements of capital of a resident of a Contracting State shall be taxable only in that State.
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Relief from Double Taxation 1. In the case of a resident of Canada, double taxation shall be avoided as follows: (a) Subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions, which shall not affect the general principle hereof, and unless a greater deduction or relief is provided under the laws of Canada, German tax (other than capital tax) payable in accordance with this Agreement on profits, income or gains arising in the Federal Republic of Germany shall be deducted from any Canadian tax payable in respect of such profits, income or gains. (b) Subject to the existing provisions of the law of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions — which shall not affect the general principle hereof — where a company which is a resident of the Federal Republic of Germany pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in the Federal Republic of Germany by that first-mentioned company in respect of the profits out of which such dividend is paid. (c) Where in accordance with any provision of the Agreement income derived or capital owned by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income or capital, take into account the exempted income or capital. (d) For the purposes of this paragraph, profits, income or gains of a resident of Canada shall be deemed to arise from sources in the Federal Republic of Germany if they may be taxed in the Federal Republic of Germany in accordance with this Agreement.
2. Where a resident of the Federal Republic of Germany derives income or owns capital which, in accordance with the provisions of this Agreement, may be taxed in Canada, double taxation shall be avoided as follows:
Conventions fiscales
(a) Subject to the provisions of subparagraph (b), there shall be excluded from the basis upon which German tax is imposed, any item of income from sources within Canada and any item of capital situated within Canada, which according to the foregoing Articles of this Agreement may be taxed, or shall be taxable only, in Canada; in the determination of its rate of tax applicable to any item of income or capital not so excluded, the Federal Republic of Germany will, however, take into account the items of income and capital, which according to the foregoing Articles may be taxed in Canada. The foregoing provisions of this paragraph shall also apply to dividends on shares which are paid to a company which is a resident of the Federal Republic of Germany by a company which is a resident of Canada if at least 10 per cent of the capital of the Canadian company is held directly by the German company. There shall also be excluded from the basis upon which German tax is imposed any participation the dividends of which are excluded or, if paid, would be excluded, according to the immediately foregoing sentence from the basis upon which German tax is imposed. (b) There shall be allowed as a credit against German tax on income, subject to the provisions of German tax law regarding credit for foreign tax, the Canadian tax (including taxes on income paid to any political subdivision or local authority in Canada) paid in accordance with the provisions of this Agreement referred to below on the following items of income: (aa) dividends within the meaning of Article 10 which are not dealt with in subparagraph (a) above; (bb) interest within the meaning of Article 11 and royalties within the meaning of Article 12; (cc) gains from the alienation of property taxable in Canada by reason only of Article 13, paragraph 4 and subparagraph (a) of paragraph 7; (dd) income within the meaning of Article 15, paragraph 3 and Articles 16 and 17; (ee) pensions and annuities within the meaning of Article 18, paragraphs 1 and 2 and subparagraph (c) of paragraph 3; (ff) income taxable in Canada by reason only of Article 21.
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(c) Instead of the provisions of subparagraph (a), the provisions of subparagraph (b) shall apply to income within the meaning of Articles 7 and 10 and to items of capital underlying such income unless the resident of the Federal Republic of Germany proves that the gross receipts of the permanent establishment in the business year in which the profit was realised, or the gross receipts of the company resident in Canada in the business year for which the dividend was distributed, derive exclusively or almost exclusively from activities coming under Section 8 paragraph 1 subparagraphs 1 to 6 of the German Law on External Tax Relations (‘‘Aussensteuergesetz’’) or from participations coming under Section 8 paragraph 2 of that Law; the same shall apply to immovable property forming part of the business property of a permanent establishment (paragraph 4 of Article 6) and to gains from the alienation of such immovable property (paragraph 1 of Article 13) and of movable property forming part of the business property of the permanent establishment (paragraph 2 of Article 13). ARTICLE 24 Non-discrimination 1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to individuals who are not residents of one or both of the Contracting States. 2. The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities. This provision shall not be construed as obliging a Contracting State to grant to residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes which it grants to its own residents. 3. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of a third State, are or may be subjected. 4. The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to all taxes imposed by a Contracting State.
Conventions fiscales ARTICLE 25 Mutual Agreement Procedure
1. Where a person considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with the provisions of this Agreement, that person may, irrespective of the remedies provided by the domestic law of those States, address to the competent authority of the Contracting State of which that person is a resident or, if that person’s case comes under paragraph 1 of Article 24, to that of the Contracting State of which that person is a national, an application in writing stating the grounds for claiming the revision of such taxation. To be admissible, the said application must be submitted within two years from the first notification of the action resulting in taxation not in accordance with the provisions of the Agreement. 2. The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the Agreement. 3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement. 4. In particular, the competent authorities of the Contracting States may consult together to endeavour to agree: (a) to the same attribution of profits to an enterprise of a Contracting State and to its permanent establishment situated in the other Contracting State; (b) to the same allocation of profits between associated enterprises as provided for in Article 9; (c) to the method of avoiding double taxation in the case of an estate or trust. 5. The competent authorities of the Contracting States may communicate with each other directly for the purpose of applying the provisions of this Agreement. 6. If any question, difficulty or doubt arising as to the interpretation or application of the Agreement cannot be resolved or dealt with by the competent authorities as a result of the application of the provisions of paragraphs 1, 2 or 3, these questions, difficulties or doubts may, if the competent authorities agree, be submitted to an arbitration commission. The decisions of the commission shall be binding. The composition of the commission and the arbitration procedures shall be determined, after consultation between the competent authorities, through an exchange of diplomatic notes between the Contracting States.
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1. The competent authorities of the Contracting States shall exchange such information as is relevant for carrying out the provisions of this Agreement or of the domestic laws in the Contracting States concerning taxes covered by the Agreement insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of the taxes covered by the Agreement or, notwithstanding the provisions of paragraph 4, the taxes imposed by a ‘‘Land’’, or a political subdivision or local authority of a Contracting State that are substantially similar to the taxes covered by the Agreement. Such persons or authorities shall use the information only for such purposes. Such information may be disclosed in public court proceedings or in judicial decisions only if the competent authority of the Contracting State supplying the information raises no objection. 2. In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation: (a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; (b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; (c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
3. The competent authorities of the Contracting States shall agree upon the principles and procedures relating to the exchange of personal data. 4. For the purposes of this Article, the taxes covered by the Agreement are, notwithstanding the provisions of Article 2, all taxes imposed by a Contracting State.
Conventions fiscales ARTICLE 27 Assistance in Collection
1. The Contracting States undertake to lend assistance to each other in the collection of taxes referred to in paragraph 8, together with interest, costs, additions to such taxes and administrative penalties, referred to in this Article as a ‘‘revenue claim’’. The provisions of this Article are not restricted by Article 1. 2. An application for assistance in the collection of a revenue claim shall include a certification by the competent authority of the applicant State that, under the laws of that State, the revenue claim has been finally determined. For the purposes of this Article, a revenue claim is finally determined when the applicant State has the right under its internal law to collect the revenue claim and all administrative and judicial rights of the taxpayer to restrain collection in the applicant State have lapsed or been exhausted.
3. A revenue claim of the applicant State that has been finally determined may be accepted for collection by the competent authority of the requested State and, subject to the provisions of paragraph 7, if accepted shall be collected by the requested State as though such revenue claim were the requested State’s own revenue claim finally determined in accordance with the laws applicable to the collection of the requested State’s own taxes. 4. Where an application for collection of a revenue claim in respect of a taxpayer is accepted: (a) by the Federal Republic of Germany, the revenue claim shall be enforced by the Federal Republic of Germany in the same way as a revenue claim under Federal Republic of Germany laws against the taxpayer as of the time the application is received; and (b) by Canada, the revenue claim shall be treated by Canada as an amount payable under the Income Tax Act, the collection of which is not subject to any restriction. 5. Nothing in this Article shall be construed as creating or providing any rights of administrative or judicial review of the applicant State’s finally determined revenue claim by the requested State, based on any such rights that may be available under the laws of either Contracting State. Proceedings relating to measures taken under this Article by the requested State shall be brought only before the appropriate body of that State. If, at any time pending execution of a request for assistance under this Article, the applicant State loses the right under its internal law to collect the revenue claim, the competent authority of the applicant State shall promptly withdraw the request for assistance in collection.
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6. Unless the competent authorities of the Contracting States otherwise agree, the ordinary costs incurred in providing collection assistance shall be borne by the requested State and any extraordinary costs so incurred shall be borne by the applicant State. 7. A revenue claim of an applicant State accepted for collection shall not have in the requested State any priority accorded to the revenue claims of the requested State even if the recovery procedure used is the one applicable to its own revenue claims. 8. Notwithstanding the provisions of Article 2, the provisions of this Article shall apply to all categories of taxes collected by or on behalf of the Government of a Contracting State including, in the case of the Federal Republic of Germany, the ‘‘Laender’’. 9. Nothing in this Article shall be construed as imposing on either Contracting State the obligation to carry out administrative measures at variance with its laws or administrative practice or that would be contrary to its fundamental principles of tax policy or its public policy (ordre public). 10. The competent authorities of the Contracting States shall agree upon the mode of application of this Article, including agreement to ensure comparable levels of assistance to each of the Contracting States. ARTICLE 28 Members of Diplomatic Missions and Consular Posts 1. Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements. 2. Notwithstanding the provisions of Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of a Contracting State which is situated in the other Contracting State or in a third State shall be deemed for the purposes of the Agreement to be a resident of the sending State if: (a) in accordance with international law that individual is not liable to tax in the receiving State in respect of income from sources outside that State or on capital situated outside that State, and (b) that individual is liable in the sending State to the same obligations in relation to tax on total income or on capital as are residents of that State.
Conventions fiscales
3. The Agreement shall not apply to International Organizations, to organs or officials thereof and to persons who are members of a diplomatic mission, consular post or permanent mission of a third State, being present in a Contracting State and not liable in either Contracting State to the same obligations in respect of taxes on income or on capital as are residents thereof.
ARTICLE 29 Miscellaneous Rules 1. With respect to income taxable in a Contracting State, the provisions of this Agreement shall not be construed to restrict in any manner any exemption, credit, allowance or other deduction accorded: (a) by the laws of a Contracting State in the determination of the tax imposed by that State; or (b) by any other agreement entered into by a Contracting State. 2. It is understood that nothing in the Agreement shall be construed as preventing: (a) Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust or controlled foreign affiliate, in which that resident has an interest; (b) the Federal Republic of Germany from imposing its taxes on amounts included in the income of a resident of the Federal Republic of Germany according to part 4 of the German ‘‘Aussensteuergesetz’’. Where such imposition of tax gives rise to a double taxation, the competent authorities shall consult for the elimination of such double taxation according to paragraph 3 of Article 25. 3. The Agreement shall not apply to any company (nor to income derived from such company by a shareholder thereof), trust or partnership that is a resident of a Contracting State and is beneficially owned or controlled directly or indirectly by one or more persons who are not residents of that State, if the amount of the tax imposed on the income or capital of the company, trust or partnership by that State is substantially lower than the amount that would be imposed by that State if all of the shares of the capital stock of the company or all of the interests in the trust or partnership, as the case may be, were beneficially owned by one or more individuals who were residents of that State.
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4. Contributions in a year in respect of services rendered in that year paid by, or on behalf of, an individual who is a resident of one of the Contracting States or who is temporarily present in that State, to a pension plan that is recognized for tax purposes in the other Contracting State shall, during a period not exceeding in the aggregate 60 months, be treated in the same way for tax purposes in the first-mentioned State as a contribution paid to a pension plan that is recognized for tax purposes in that first-mentioned State, provided that: (a) such individual was contributing on a regular basis to the pension plan for a period ending immediately before the individual became a resident of or temporarily present in the first-mentioned State; and (b) the competent authority of the first-mentioned State agrees that the pension plan generally corresponds to a pension plan recognized for tax purposes by that State. For the purposes of this paragraph, ‘‘pension plan’’ includes a pension plan created under the social security system in a Contracting State. 5. For purposes of paragraph 3 of Article XXII of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of Article 25 or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States. 6. Nothing in the Agreement shall be construed as preventing a Contracting State from denying benefits under the Agreement where it can reasonably be concluded that to do otherwise would result in an abuse of the provisions of the Agreement or of the domestic laws of that State. ARTICLE 30 Protocol to the Agreement The attached Protocol forms an integral part of this Agreement.
Conventions fiscales ARTICLE 31 Entry into Force
1. This Agreement shall enter into force on the date on which the Contracting States have notified each other that the national requirements for such entry into force have been fulfilled. The relevant date shall be the day on which the last notification is received. The provisions of the Agreement shall have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after the first day of January 2001; and (b) in respect of other taxes for taxation years beginning on or after the first day of January 2001. 2. The Agreement between Canada and the Federal Republic of Germany for the Avoidance of Double Taxation with respect to Taxes on Income and Certain other Taxes signed at Ottawa on July 17, 1981 shall cease to have effect in respect of taxes to which this Agreement applies in accordance with the provisions of paragraph 1 and shall terminate on the last date on which it has effect in accordance with the foregoing provisions. 3. Where any greater relief from tax would have been afforded by any provision of the Agreement between Canada and the Federal Republic of Germany for the Avoidance of Double Taxation with respect to Taxes on Income and Certain other Taxes signed at Ottawa on July 17, 1981 to a resident of either Contracting State, such provision shall continue to have effect up to and including the taxation year in which this Agreement enters into force. ARTICLE 32 Termination This Agreement shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Agreement, through diplomatic channels, by giving notice of termination at least six months before the end of any calendar year after the year in which the Agreement entered into force. In such event, the Agreement shall cease to have effect: (a) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after the first day of January in the calendar year next following the expiration of the six-month period referred to above; and (b) in respect of other taxes for taxation years beginning on or after the first day of January in the calendar year next following the expiration of the six-month period referred to above. IN WITNESS WHEREOF the undersigned, duly authorized to that effect, have signed this Agreement.
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DONE at Berlin, this 19th day of April, 2001, in duplicate, in the English, French and German languages, each text being equally authentic. FOR CANADA
FOR THE FEDERAL REPUBLIC OF GERMANY
Philip Somerville
Gerd Westdickenberg PART 2
PROTOCOL TO THE AGREEMENT BETWEEN CANADA AND THE FEDERAL REPUBLIC OF GERMANY FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND CERTAIN OTHER TAXES, THE PREVENTION OF FISCAL EVASION AND THE ASSISTANCE IN TAX MATTERS Canada and the Federal Republic of Germany have agreed at the signing at Berlin on April 19, 2001 of the Agreement between the two States for the Avoidance of Double Taxation with respect to Taxes on Income and Certain other Taxes, the Prevention of Fiscal Evasion and the Assistance in Tax Matters, on the following provisions: 1. With reference to Article 4, paragraph 1, it is understood that the term ‘‘resident of a Contracting State’’ includes a person that is liable to tax on world income even if that person is liable to tax on capital only on capital situated in that State. 2. With reference to Article 6, the term ‘‘immovable property’’ shall include an interest in mineral deposits, sources and other natural resources and an option in respect of immovable property. 3. With reference to Article 10, paragraph 2, income derived from rights or debt-claims participating in profits (including in the Federal Republic of Germany income of a ‘‘stiller Gesellschafter’’ from the sleeping partner’s participation as such or from a ‘‘partiarisches Darlehen’’ and ‘‘Gewinnobligationen’’) that is deductible in determining the profits of the debtor may be taxed in the Contracting State in which it arises according to the laws of that State. 4. With reference to Article 12, paragraph 2, the term ‘‘gross amount’’ does not include turnover taxes. 5. With reference to income taxable in accordance with Article 18, paragraph 1, (a) the rate of Canadian tax charged on periodic pension payments derived from sources within Canada shall not exceed the lesser of: (aa) 15 per cent of the gross amount of the payment, and
Conventions fiscales (bb) the rate determined by reference to the amount of tax that the recipient of the payment would otherwise be required to pay for the year on the total amount of the periodic pension payments received by the individual in the year, if the individual were resident in Canada,
(b) German tax shall be levied on pensions derived from sources within the Federal Republic of Germany only if they are paid by the Federal Republic of Germany, a ‘‘Land’’, a political subdivision or a local authority thereof. 6. With reference to Article 18, paragraph 2, the rate of tax charged by a Contracting State on annuities derived from sources within that State shall not exceed 15 per cent of the taxable portion of the payment. However, this limitation shall not apply to lump-sum payments arising on the surrender, cancellation, redemption, sale or other alienation of an annuity, or to payments of any kind under an annuity contract the cost of which was deductible, in whole or in part, in computing the income of any person who acquired the contract. 7. With reference to Article 18, paragraph 3, subparagraph (c), the competent authority of a Contracting State shall notify the competent authority of the other Contracting State of changes made to the amount of social security benefits excluded from the taxable income of a resident of the first-mentioned State receiving such benefits. 8. With reference to Article 18, paragraph 3, subparagraph (d), in determining the taxable income of an individual who is a resident of the Federal Republic of Germany there shall be allowed in respect of alimony or similar allowances paid to an individual who is a resident of Canada the amount that would be allowed if that last-mentioned individual were subject to tax in the Federal Republic of Germany. 9. With reference to Article 23, paragraph 2, and Article 25, where a difference of qualification or attribution of income in Canada and the Federal Republic of Germany, not removed under a mutual agreement procedure according to Article 25, (a) would result in double taxation of such income, the Federal Republic of Germany shall eliminate such double taxation by the granting of a credit in accordance with the principles contained in Article 23, paragraph 2, subparagraph (b); (b) would result in an exemption or a relief of such income from Canadian tax and an exemption from German tax, the Federal Republic of Germany shall not grant, with respect to such income, an exemption within the meaning of Article 23, paragraph 2, subparagraph (a) but shall grant a credit in accordance with the principles contained in Article 23, paragraph 2, subparagraph (b).
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10. With reference to Article 23 and Article 25, the Federal Republic of Germany shall avoid double taxation by a tax credit as provided for in Article 23, paragraph 2, subparagraph (b) and not by a tax exemption under Article 23, paragraph 2, subparagraph (a), if the Federal Republic of Germany has, after due consultation and subject to the limitations of its internal law, notified Canada through diplomatic channels of other items of income to which it intends to apply this paragraph. A notification made under this paragraph shall have effect from the day the notification is received. 11. With reference to Article 26, it is understood that if information is requested by a Contracting State in accordance with that Article, the other Contracting State shall endeavour to obtain the information to which the request relates in the same way as if its own taxation were involved notwithstanding the fact that the other State does not, at that time, need such information. 12. With reference to the Agreement, (a) if in the Federal Republic of Germany the taxes on dividends, interest, royalties or other items of income are levied on a resident of Canada by deduction at source, then the right of the Federal Republic of Germany to apply the deduction of tax at the rate provided for under its domestic law shall not be affected by the provisions of the Agreement; the tax so deducted at source shall be refunded upon application by the taxpayer to the extent that it is reduced or eliminated under the Agreement; (b) refund applications must be submitted by the end of the fourth year following the calendar year in which the tax that was deducted at source was assessed on the dividends, interest, royalties or other items of income; and (c) the Federal Republic of Germany may require an administrative certification by the competent authority of Canada that the taxpayer is a resident of Canada.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 31
An Act to amend the Carriage by Air Act
BILL S-33 ASSENTED TO 18th DECEMBER, 2001
SUMMARY This enactment implements in Canada the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal in 1999 (the ‘‘Montreal Convention’’). The Montreal Convention consolidates and modernizes the rules of the Warsaw Convention and associated documents. It provides for unlimited liability for damages in the case of death or injury to passengers arising out of accidents during international air carriage, simplifies ticketing requirements, provides for electronic documentation and establishes a new jurisdiction that will allow most passengers to bring actions in the place of their domicile.
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49-50 ELIZABETH II
CHAPTER 31 An Act to amend the Carriage by Air Act [Assented to 18th December, 2001] R.S., c. C-26
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. The long title of the Carriage by Air Act is replaced by the following: An Act to give effect to certain conventions for the unification of certain rules relating to international carriage by air 2. (1) Section 2 of the Act is amended by adding the following after subsection (2):
Implementing Convention
(2.1) Subject to this section, the provisions of the Convention set out in Schedule VI, in so far as they relate to the rights and liabilities of carriers, carriers’ servants and agents, passengers, consignors, consignees and other persons, have the force of law in Canada in relation to any carriage by air to which the provisions apply, irrespective of the nationality of the aircraft performing that carriage.
1999, c. 21, s. 2(1)
(2) Subsection 2(3) of the Act is replaced by the following: (3) The Governor in Council may from time to time, by proclamation published in the Canada Gazette, certify who are the parties to any convention or protocol set out in a schedule to this Act, in respect of what territories they are respectively parties, to what extent they have availed themselves of the Additional Protocol to the Convention set out in Schedule I, which of those parties have made a declaration under the Protocol set out in Schedule III or IV and which of those
Proclamation by Governor in Council
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parties have made a declaration under the Convention set out in Schedule VI. (3) Subsection 2(5) of the Act is replaced by the following: Liability under Convention for death of passenger
(5) Any liability imposed by Article 17 of Schedule I or Article 17 of Schedule VI on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger under any law in force in Canada, and the provisions set out in Schedule II shall have effect with respect to the persons by whom and for whose benefit the liability so imposed is enforceable and with respect to the manner in which it may be enforced.
1999, c. 21, s. 3
3. Section 3 of the Act is renumbered as subsection 3(1) and is amended by adding the following:
Jurisdiction of Canadian courts
(2) Except to the extent of a declaration made by a party under the Convention set out in Schedule VI, every party to that Convention is, for the purposes of any action brought in a court in Canada in accordance with the provisions of Article 33 of that Schedule to enforce a claim in respect of carriage undertaken by it, deemed to have explicitly submitted to the jurisdiction of that court under paragraph 4(2)(a) of the State Immunity Act.
1999, c. 21, s. 3
4. Section 4 of the Act is replaced by the following:
Orders and regulations
4. The Governor in Council may make orders or regulations applying the provisions of Schedule I, V or VI and any provision of section 2 to any carriage by air, not being international carriage as defined in Schedule I, that may be specified in the order or regulations, subject to any exceptions, adaptations and modifications so specified. 5. The Act is amended by adding, after Schedule V, the schedule set out in the schedule to this Act.
Coming into force
6. This Act comes into force on a day to be fixed by order of the Governor in Council.
Transport aérie SCHEDULE (Section 5) SCHEDULE VI (Subsections 2(2.1), (3) and (5) and 3(2) and section 4) CONVENTION FOR THE UNIFICATION OF CERTAIN RULES FOR INTERNATIONAL CARRIAGE BY AIR
THE STATES PARTIES TO THIS CONVENTION RECOGNIZING the significant contribution of the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed in Warsaw on 12 October 1929, hereinafter referred to as the ‘‘Warsaw Convention’’, and other related instruments to the harmonization of private international air law; RECOGNIZING the need to modernize and consolidate the Warsaw Convention and related instruments; RECOGNIZING the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution; REAFFIRMING the desirability of an orderly development of international air transport operations and the smooth flow of passengers, baggage and cargo in accordance with the principles and objectives of the Convention on International Civil Aviation, done at Chicago on 7 December 1944; CONVINCED that collective State action for further harmonization and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests; HAVE AGREED AS FOLLOWS:
Chapter I General Provisions Article 1 — Scope of Application 1. This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.
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2. For the purposes of this Convention, the expression international carriage means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two States Parties, or within the territory of a single State Party if there is an agreed stopping place within the territory of another State, even if that State is not a State Party. Carriage between two points within the territory of a single State Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention. 3. Carriage to be performed by several successive carriers is deemed, for the purposes of this Convention, to be one undivided carriage if it has been regarded by the parties as a single operation, whether it had been agreed upon under the form of a single contract or of a series of contracts, and it does not lose its international character merely because one contract or a series of contracts is to be performed entirely within the territory of the same State. 4. This Convention applies also to carriage as set out in Chapter V, subject to the terms contained therein. Article 2 — Carriage Performed by State and Carriage of Postal Items 1. This Convention applies to carriage performed by the State or by legally constituted public bodies provided it falls within the conditions laid down in Article 1. 2. In the carriage of postal items, the carrier shall be liable only to the relevant postal administration in accordance with the rules applicable to the relationship between the carriers and the postal administrations. 3. Except as provided in paragraph 2 of this Article, the provisions of this Convention shall not apply to the carriage of postal items. Chapter II Documentation and Duties of the Parties Relating to the Carriage of Passengers, Baggage and Cargo Article 3 — Passengers and Baggage 1. In respect of carriage of passengers, an individual or collective document of carriage shall be delivered containing: (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place.
Transport aérie
2. Any other means which preserves the information indicated in paragraph 1 may be substituted for the delivery of the document referred to in that paragraph. If any such other means is used, the carrier shall offer to deliver to the passenger a written statement of the information so preserved. 3. The carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage. 4. The passenger shall be given written notice to the effect that where this Convention is applicable it governs and may limit the liability of carriers in respect of death or injury and for destruction or loss of, or damage to, baggage, and for delay. 5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability. Article 4 — Cargo 1. In respect of the carriage of cargo, an air waybill shall be delivered. 2. Any other means which preserves a record of the carriage to be performed may be substituted for the delivery of an air waybill. If such other means are used, the carrier shall, if so requested by the consignor, deliver to the consignor a cargo receipt permitting identification of the consignment and access to the information contained in the record preserved by such other means. Article 5 — Contents of Air Waybill or Cargo Receipt The air waybill or the cargo receipt shall include: (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place; and (c) an indication of the weight of the consignment.
Article 6 — Document Relating to the Nature of the Cargo The consignor may be required, if necessary to meet the formalities of customs, police and similar public authorities, to deliver a document indicating the nature of the cargo. This provision creates for the carrier no duty, obligation or liability resulting therefrom. Article 7 — Description of Air Waybill 1. The air waybill shall be made out by the consignor in three original parts.
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2. The first part shall be marked ‘‘for the carrier’’; it shall be signed by the consignor. The second part shall be marked ‘‘for the consignee’’; it shall be signed by the consignor and by the carrier. The third part shall be signed by the carrier who shall hand it to the consignor after the cargo has been accepted. 3. The signature of the carrier and that of the consignor may be printed or stamped. 4. If, at the request of the consignor, the carrier makes out the air waybill, the carrier shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor. Article 8 — Documentation for Multiple Packages When there is more than one package: (a) the carrier of cargo has the right to require the consignor to make out separate air waybills; (b) the consignor has the right to require the carrier to deliver separate cargo receipts when the other means referred to in paragraph 2 of Article 4 are used.
Article 9 — Non-compliance with Documentary Requirements Non-compliance with the provisions of Articles 4 to 8 shall not affect the existence or the validity of the contract of carriage, which shall, nonetheless, be subject to the rules of this Convention including those relating to limitation of liability. Article 10 — Responsibility for Particulars of Documentation 1. The consignor is responsible for the correctness of the particulars and statements relating to the cargo inserted by it or on its behalf in the air waybill or furnished by it or on its behalf to the carrier for insertion in the cargo receipt or for insertion in the record preserved by the other means referred to in paragraph 2 of Article 4. The foregoing shall also apply where the person acting on behalf of the consignor is also the agent of the carrier.
2. The consignor shall indemnify the carrier against all damage suffered by it, or by any other person to whom the carrier is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements furnished by the consignor or on its behalf. 3. Subject to the provisions of paragraphs 1 and 2 of this Article, the carrier shall indemnify the consignor against all damage suffered by it, or by any other person to whom the consignor is liable, by reason of the irregularity, incorrectness or incompleteness of the particulars and statements inserted by the carrier or on its behalf in the cargo receipt or in the record preserved by the other means referred to in paragraph 2 of Article 4.
Transport aérie Article 11 — Evidentiary Value of Documentation
1. The air waybill or the cargo receipt is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein. 2. Any statements in the air waybill or the cargo receipt relating to the weight, dimensions and packing of the cargo, as well as those relating to the number of packages, are prima facie evidence of the facts stated; those relating to the quantity, volume and condition of the cargo do not constitute evidence against the carrier except so far as they both have been, and are stated in the air waybill or the cargo receipt to have been, checked by it in the presence of the consignor, or relate to the apparent condition of the cargo. Article 12 — Right of Disposition of Cargo 1. Subject to its liability to carry out all its obligations under the contract of carriage, the consignor has the right to dispose of the cargo by withdrawing it at the airport of departure or destination, or by stopping it in the course of the journey on any landing, or by calling for it to be delivered at the place of destination or in the course of the journey to a person other than the consignee originally designated, or by requiring it to be returned to the airport of departure. The consignor must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and must reimburse any expenses occasioned by the exercise of this right. 2. If it is impossible to carry out the instructions of the consignor, the carrier must so inform the consignor forthwith. 3. If the carrier carries out the instructions of the consignor for the disposition of the cargo without requiring the production of the part of the air waybill or the cargo receipt delivered to the latter, the carrier will be liable, without prejudice to its right of recovery from the consignor, for any damage which may be caused thereby to any person who is lawfully in possession of that part of the air waybill or the cargo receipt. 4. The right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Article 13. Nevertheless, if the consignee declines to accept the cargo, or cannot be communicated with, the consignor resumes its right of disposition. Article 13 — Delivery of the Cargo 1. Except when the consignor has exercised its right under Article 12, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to deliver the cargo to it, on payment of the charges due and on complying with the conditions of carriage. 2. Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.
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3. If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of seven days after the date on which it ought to have arrived, the consignee is entitled to enforce against the carrier the rights which flow from the contract of carriage. Article 14 — Enforcement of the Rights of Consignor and Consignee The consignor and the consignee can respectively enforce all the rights given to them by Articles 12 and 13, each in its own name, whether it is acting in its own interest or in the interest of another, provided that it carries out the obligations imposed by the contract of carriage. Article 15 — Relations of Consignor and Consignee or Mutual Relations of Third Parties 1. Articles 12, 13 and 14 do not affect either the relations of the consignor and the consignee with each other or the mutual relations of third parties whose rights are derived either from the consignor or from the consignee. 2. The provisions of Articles 12, 13 and 14 can only be varied by express provision in the air waybill or the cargo receipt. Article 16 — Formalities of Customs, Police or Other Public Authorities 1. The consignor must furnish such information and such documents as are necessary to meet the formalities of customs, police and any other public authorities before the cargo can be delivered to the consignee. The consignor is liable to the carrier for any damage occasioned by the absence, insufficiency or irregularity of any such information or documents, unless the damage is due to the fault of the carrier, its servants or agents. 2. The carrier is under no obligation to enquire into the correctness or sufficiency of such information or documents. Chapter III Liability of the Carrier and Extent of Compensation for Damage Article 17 — Death and Injury of Passengers — Damage to Baggage 1. The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
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2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. 3. If the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of twenty-one days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage. 4. Unless otherwise specified, in this Convention the term ‘‘baggage’’ means both checked baggage and unchecked baggage. Article 18 — Damage to Cargo 1. The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air. 2. However, the carrier is not liable if and to the extent it proves that the destruction, or loss of, or damage to, the cargo resulted from one or more of the following: (a) inherent defect, quality or vice of that cargo; (b) defective packing of that cargo performed by a person other than the carrier or its servants or agents; (c) an act of war or an armed conflict; (d) an act of public authority carried out in connection with the entry, exit or transit of the cargo. 3. The carriage by air within the meaning of paragraph 1 of this Article comprises the period during which the cargo is in the charge of the carrier. 4. The period of the carriage by air does not extend to any carriage by land, by sea or by inland waterway performed outside an airport. If, however, such carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or transhipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air. If a carrier, without the consent of the consignor, substitutes carriage by another mode of transport for the whole or part of a carriage intended by the agreement between the parties to be carriage by air, such carriage by another mode of transport is deemed to be within the period of carriage by air.
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Carriage by Air Article 19 — Delay
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Article 20 — Exoneration If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, or the person from whom he or she derives his or her rights, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage. When by reason of death or injury of a passenger compensation is claimed by a person other than the passenger, the carrier shall likewise be wholly or partly exonerated from its liability to the extent that it proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of that passenger. This Article applies to all the liability provisions in this Convention, including paragraph 1 of Article 21. Article 21 — Compensation in Case of Death or Injury of Passengers 1. For damages arising under paragraph 1 of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall not be able to exclude or limit its liability. 2. The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100 000 Special Drawing Rights if the carrier proves that: (a) such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) such damage was solely due to the negligence or other wrongful act or omission of a third party. Article 22 — Limits of Liability in Relation to Delay, Baggage and Cargo 1. In the case of damage caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4 150 Special Drawing Rights.
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2. In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination. 3. In the carriage of cargo, the liability of the carrier in the case of destruction, loss, damage or delay is limited to a sum of 17 Special Drawing Rights per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the consignor’s actual interest in delivery at destination. 4. In the case of destruction, loss, damage or delay of part of the cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier’s liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the destruction, loss, damage or delay of a part of the cargo, or of an object contained therein, affects the value of other packages covered by the same air waybill, or the same receipt or, if they were not issued, by the same record preserved by the other means referred to in paragraph 2 of Article 4, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability. 5. The foregoing provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the carrier, its servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that such servant or agent was acting within the scope of its employment. 6. The limits prescribed in Article 21 and in this Article shall not prevent the court from awarding, in accordance with its own law, in addition, the whole or part of the court costs and of the other expenses of the litigation incurred by the plaintiff, including interest. The foregoing provision shall not apply if the amount of the damages awarded, excluding court costs and other expenses of the litigation, does not exceed the sum which the carrier has offered in writing to the plaintiff within a period of six months from the date of the occurrence causing the damage, or before the commencement of the action, if that is later.
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Article 23 — Conversion of Monetary Units 1. The sums mentioned in terms of Special Drawing Right in this Convention shall be deemed to refer to the Special Drawing Right as defined by the International Monetary Fund. Conversion of the sums into national currencies shall, in case of judicial proceedings, be made according to the value of such currencies in terms of the Special Drawing Right at the date of the judgement. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is a Member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund, in effect at the date of the judgement, for its operations and transactions. The value of a national currency, in terms of the Special Drawing Right, of a State Party which is not a Member of the International Monetary Fund, shall be calculated in a manner determined by that State. 2. Nevertheless, those States which are not Members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this Article may, at the time of ratification or accession or at any time thereafter, declare that the limit of liability of the carrier prescribed in Article 21 is fixed at a sum of 1 500 000 monetary units per passenger in judicial proceedings in their territories; 62 500 monetary units per passenger with respect to paragraph 1 of Article 22; 15 000 monetary units per passenger with respect to paragraph 2 of Article 22; and 250 monetary units per kilogramme with respect to paragraph 3 of Article 22. This monetary unit corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. These sums may be converted into the national currency concerned in round figures. The conversion of these sums into national currency shall be made according to the law of the State concerned. 3. The calculation mentioned in the last sentence of paragraph 1 of this Article and the conversion method mentioned in paragraph 2 of this Article shall be made in such manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 21 and 22 as would result from the application of the first three sentences of paragraph 1 of this Article. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1 of this Article, or the result of the conversion in paragraph 2 of this Article as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.
Transport aérie Article 24 — Review of Limits
1. Without prejudice to the provisions of Article 25 of this Convention and subject to paragraph 2 below, the limits of liability prescribed in Articles 21, 22 and 23 shall be reviewed by the Depositary at five-year intervals, the first such review to take place at the end of the fifth year following the date of entry into force of this Convention, or if the Convention does not enter into force within five years of the date it is first open for signature, within the first year of its entry into force, by reference to an inflation factor which corresponds to the accumulated rate of inflation since the previous revision or in the first instance since the date of entry into force of the Convention. The measure of the rate of inflation to be used in determining the inflation factor shall be the weighted average of the annual rates of increase or decrease in the Consumer Price Indices of the States whose currencies comprise the Special Drawing Right mentioned in paragraph 1 of Article 23. 2. If the review referred to in the preceding paragraph concludes that the inflation factor has exceeded 10 per cent, the Depositary shall notify States Parties of a revision of the limits of liability. Any such revision shall become effective six months after its notification to the States Parties. If within three months after its notification to the States Parties a majority of the States Parties register their disapproval, the revision shall not become effective and the Depositary shall refer the matter to a meeting of the States Parties. The Depositary shall immediately notify all States Parties of the coming into force of any revision. 3. Notwithstanding paragraph 1 of this Article, the procedure referred to in paragraph 2 of this Article shall be applied at any time provided that one-third of the States Parties express a desire to that effect and upon condition that the inflation factor referred to in paragraph 1 has exceeded 30 per cent since the previous revision or since the date of entry into force of this Convention if there has been no previous revision. Subsequent reviews using the procedure described in paragraph 1 of this Article will take place at five-year intervals starting at the end of the fifth year following the date of the reviews under the present paragraph. Article 25 — Stipulation on Limits A carrier may stipulate that the contract of carriage shall be subject to higher limits of liability than those provided for in this Convention or to no limits of liability whatsoever. Article 26 — Invalidity of Contractual Provisions Any provision tending to relieve the carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Convention.
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Article 27 — Freedom to Contract Nothing contained in this Convention shall prevent the carrier from refusing to enter into any contract of carriage, from waiving any defences available under the Convention, or from laying down conditions which do not conflict with the provisions of this Convention. Article 28 — Advance Payments In the case of aircraft accidents resulting in death or injury of passengers, the carrier shall, if required by its national law, make advance payments without delay to a natural person or persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons. Such advance payments shall not constitute a recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier. Article 29 — Basis of Claims In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Article 30 — Servants, Agents — Aggregation of Claims 1. If an action is brought against a servant or agent of the carrier arising out of damage to which the Convention relates, such servant or agent, if they prove that they acted within the scope of their employment, shall be entitled to avail themselves of the conditions and limits of liability which the carrier itself is entitled to invoke under this Convention. 2. The aggregate of the amounts recoverable from the carrier, its servants and agents, in that case, shall not exceed the said limits. 3. Save in respect of the carriage of cargo, the provisions of paragraphs 1 and 2 of this Article shall not apply if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. Article 31 — Timely Notice of Complaints 1. Receipt by the person entitled to delivery of checked baggage or cargo without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 and paragraph 2 of Article 4.
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2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal. 3. Every complaint must be made in writing and given or dispatched within the times aforesaid. 4. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part. Article 32 — Death of Person Liable In the case of the death of the person liable, an action for damages lies in accordance with the terms of this Convention against those legally representing his or her estate. Article 33 — Jurisdiction 1. An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination. 2. In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.
3. For the purposes of paragraph 2, (a) ‘‘commercial agreement’’ means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air; (b) ‘‘principal and permanent residence’’ means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard. 4. Questions of procedure shall be governed by the law of the court seised of the case.
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Carriage by Air Article 34 — Arbitration
1. Subject to the provisions of this Article, the parties to the contract of carriage for cargo may stipulate that any dispute relating to the liability of the carrier under this Convention shall be settled by arbitration. Such agreement shall be in writing. 2. The arbitration proceedings shall, at the option of the claimant, take place within one of the jurisdictions referred to in Article 33. 3. The arbitrator or arbitration tribunal shall apply the provisions of this Convention. 4. The provisions of paragraphs 2 and 3 of this Article shall be deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith shall be null and void. Article 35 — Limitation of Actions 1. The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. 2. The method of calculating that period shall be determined by the law of the court seised of the case. Article 36 — Successive Carriage 1. In the case of carriage to be performed by various successive carriers and falling within the definition set out in paragraph 3 of Article 1, each carrier which accepts passengers, baggage or cargo is subject to the rules set out in this Convention and is deemed to be one of the parties to the contract of carriage in so far as the contract deals with that part of the carriage which is performed under its supervision. 2. In the case of carriage of this nature, the passenger or any person entitled to compensation in respect of him or her can take action only against the carrier which performed the carriage during which the accident or the delay occurred, save in the case where, by express agreement, the first carrier has assumed liability for the whole journey. 3. As regards baggage or cargo, the passenger or consignor will have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery will have a right of action against the last carrier, and further, each may take action against the carrier which performed the carriage during which the destruction, loss, damage or delay took place. These carriers will be jointly and severally liable to the passenger or to the consignor or consignee. Article 37 — Right of Recourse against Third Parties Nothing in this Convention shall prejudice the question whether a person liable for damage in accordance with its provisions has a right of recourse against any other person.
Transport aérie Chapter IV Combined Carriage Article 38 — Combined Carriage
1. In the case of combined carriage performed partly by air and partly by any other mode of carriage, the provisions of this Convention shall, subject to paragraph 4 of Article 18, apply only to the carriage by air, provided that the carriage by air falls within the terms of Article 1. 2. Nothing in this Convention shall prevent the parties in the case of combined carriage from inserting in the document of air carriage conditions relating to other modes of carriage, provided that the provisions of this Convention are observed as regards the carriage by air. Chapter V Carriage by Air Performed by a Person Other Than the Contracting Carrier Article 39 — Contracting Carrier — Actual Carrier The provisions of this Chapter apply when a person (hereinafter referred to as ‘‘the contracting carrier’’) as a principal makes a contract of carriage governed by this Convention with a passenger or consignor or with a person acting on behalf of the passenger or consignor, and another person (hereinafter referred to as ‘‘the actual carrier’’) performs, by virtue of authority from the contracting carrier, the whole or part of the carriage, but is not with respect to such part a successive carrier within the meaning of this Convention. Such authority shall be presumed in the absence of proof to the contrary. Article 40 — Respective Liability of Contracting and Actual Carriers If an actual carrier performs the whole or part of carriage which, according to the contract referred to in Article 39, is governed by this Convention, both the contracting carrier and the actual carrier shall, except as otherwise provided in this Chapter, be subject to the rules of this Convention, the former for the whole of the carriage contemplated in the contract, the latter solely for the carriage which it performs. Article 41 — Mutual Liability 1. The acts and omissions of the actual carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the contracting carrier.
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2. The acts and omissions of the contracting carrier and of its servants and agents acting within the scope of their employment shall, in relation to the carriage performed by the actual carrier, be deemed to be also those of the actual carrier. Nevertheless, no such act or omission shall subject the actual carrier to liability exceeding the amounts referred to in Articles 21, 22, 23 and 24. Any special agreement under which the contracting carrier assumes obligations not imposed by this Convention or any waiver of rights or defences conferred by this Convention or any special declaration of interest in delivery at destination contemplated in Article 22 shall not affect the actual carrier unless agreed to by it.
Article 42 — Addressee of Complaints and Instructions Any complaint to be made or instruction to be given under this Convention to the carrier shall have the same effect whether addressed to the contracting carrier or to the actual carrier. Nevertheless, instructions referred to in Article 12 shall only be effective if addressed to the contracting carrier. Article 43 — Servants and Agents In relation to the carriage performed by the actual carrier, any servant or agent of that carrier or of the contracting carrier shall, if they prove that they acted within the scope of their employment, be entitled to avail themselves of the conditions and limits of liability which are applicable under this Convention to the carrier whose servant or agent they are, unless it is proved that they acted in a manner that prevents the limits of liability from being invoked in accordance with this Convention. Article 44 — Aggregation of Damages In relation to the carriage performed by the actual carrier, the aggregate of the amounts recoverable from that carrier and the contracting carrier, and from their servants and agents acting within the scope of their employment, shall not exceed the highest amount which could be awarded against either the contracting carrier or the actual carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to that person.
Article 45 — Addressee of Claims In relation to the carriage performed by the actual carrier, an action for damages may be brought, at the option of the plaintiff, against that carrier or the contracting carrier, or against both together or separately. If the action is brought against only one of those carriers, that carrier shall have the right to require the other carrier to be joined in the proceedings, the procedure and effects being governed by the law of the court seised of the case.
Transport aérie Article 46 — Additional Jurisdiction
Any action for damages contemplated in Article 45 must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before a court in which an action may be brought against the contracting carrier, as provided in Article 33, or before the court having jurisdiction at the place where the actual carrier has its domicile or its principal place of business. Article 47 — Invalidity of Contractual Provisions Any contractual provision tending to relieve the contracting carrier or the actual carrier of liability under this Chapter or to fix a lower limit than that which is applicable according to this Chapter shall be null and void, but the nullity of any such provision does not involve the nullity of the whole contract, which shall remain subject to the provisions of this Chapter. Article 48 — Mutual Relations of Contracting and Actual Carriers Except as provided in Article 45, nothing in this Chapter shall affect the rights and obligations of the carriers between themselves, including any right of recourse or indemnification.
Chapter VI Other Provisions Article 49 — Mandatory Application Any clause contained in the contract of carriage and all special agreements entered into before the damage occurred by which the parties purport to infringe the rules laid down by this Convention, whether by deciding the law to be applied, or by altering the rules as to jurisdiction, shall be null and void. Article 50 — Insurance States Parties shall require their carriers to maintain adequate insurance covering their liability under this Convention. A carrier may be required by the State Party into which it operates to furnish evidence that it maintains adequate insurance covering its liability under this Convention.
Article 51 — Carriage Performed in Extraordinary Circumstances The provisions of Articles 3 to 5, 7 and 8 relating to the documentation of carriage shall not apply in the case of carriage performed in extraordinary circumstances outside the normal scope of a carrier’s business. Article 52 — Definition of Days The expression ‘‘days’’ when used in this Convention means calendar days, not working days.
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Carriage by Air Chapter VII Final Clauses
Article 53 — Signature, Ratification and Entry into Force 1. This Convention shall be open for signature in Montreal on 28 May 1999 by States participating in the International Conference on Air Law held at Montreal from 10 to 28 May 1999. After 28 May 1999, the Convention shall be open to all States for signature at the Headquarters of the International Civil Aviation Organization in Montreal until it enters into force in accordance with paragraph 6 of this Article. 2. This Convention shall similarly be open for signature by Regional Economic Integration Organisations. For the purpose of this Convention, a ‘‘Regional Economic Integration Organisation’’ means any organisation which is constituted by sovereign States of a given region which has competence in respect of certain matters governed by this Convention and has been duly authorized to sign and to ratify, accept, approve or accede to this Convention. A reference to a ‘‘State Party’’ or ‘‘States Parties’’ in this Convention, otherwise than in paragraph 2 of Article 1, paragraph 1(b) of Article 3, paragraph (b) of Article 5, Articles 23, 33, 46 and paragraph (b) of Article 57, applies equally to a Regional Economic Integration Organisation. For the purpose of Article 24, the references to ‘‘a majority of the States Parties’’ and ‘‘one-third of the States Parties’’ shall not apply to a Regional Economic Integration Organisation. 3. This Convention shall be subject to ratification by States and by Regional Economic Integration Organisations which have signed it. 4. Any State or Regional Economic Integration Organisation which does not sign this Convention may accept, approve or accede to it at any time. 5. Instruments of ratification, acceptance, approval or accession shall be deposited with the International Civil Aviation Organization, which is hereby designated the Depositary. 6. This Convention shall enter into force on the sixtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Depositary between the States which have deposited such instrument. An instrument deposited by a Regional Economic Integration Organisation shall not be counted for the purpose of this paragraph. 7. For other States and for other Regional Economic Integration Organisations, this Convention shall take effect sixty days following the date of deposit of the instrument of ratification, acceptance, approval or accession.
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8. The Depositary shall promptly notify all signatories and States Parties of: (a) each signature of this Convention and date thereof; (b) each deposit of an instrument of ratification, acceptance, approval or accession and date thereof; (c) the date of entry into force of this Convention; (d) the date of the coming into force of any revision of the limits of liability established under this Convention; (e) any denunciation under Article 54.
Article 54 — Denunciation 1. Any State Party may denounce this Convention by written notification to the Depositary. 2. Denunciation shall take effect one hundred and eighty days following the date on which notification is received by the Depositary. Article 55 — Relationship with Other Warsaw Convention Instruments This Convention shall prevail over any rules which apply to international carriage by air: 1. between States Parties to this Convention by virtue of those States commonly being Party to (a) the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 (hereinafter called the Warsaw Convention); (b) the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929, Done at The Hague on 28 September 1955 (hereinafter called The Hague Protocol); (c) the Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other Than the Contracting Carrier, signed at Guadalajara on 18 September 1961 (hereinafter called the Guadalajara Convention); (d) the Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 as Amended by the Protocol Done at The Hague on 28 September 1955 Signed at Guatemala City on 8 March 1971 (hereinafter called the Guatemala City Protocol); (e) Additional Protocol Nos. 1 to 3 and Montreal Protocol No. 4 to amend the Warsaw Convention as amended by The Hague Protocol or the Warsaw Convention as amended by both The Hague Protocol and the Guatemala City Protocol Signed at Montreal on 25 September 1975 (hereinafter called the Montreal Protocols); or
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Carriage by Air
2. within the territory of any single State Party to this Convention by virtue of that State being Party to one or more of the instruments referred to in sub-paragraphs (a) to (e) above. Article 56 — States with More Than One System of Law 1. If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. 2. Any such declaration shall be notified to the Depositary and shall state expressly the territorial units to which the Convention applies. 3. In relation to a State Party which has made such a declaration: (a) references in Article 23 to ‘‘national currency’’ shall be construed as referring to the currency of the relevant territorial unit of that State; and (b) the reference in Article 28 to ‘‘national law’’ shall be construed as referring to the law of the relevant territorial unit of that State. Article 57 — Reservations No reservation may be made to this Convention except that a State Party may at any time declare by a notification addressed to the Depositary that this Convention shall not apply to: (a) international carriage by air performed and operated directly by that State Party for non-commercial purposes in respect to its functions and duties as a sovereign State; and/or (b) the carriage of persons, cargo and baggage for its military authorities on aircraft registered in or leased by that State Party, the whole capacity of which has been reserved by or on behalf of such authorities.
IN WITNESS WHEREOF the undersigned Plenipotentiaries, having been duly authorized, have signed this Convention. DONE at Montreal on the 28th day of May of the year one thousand nine hundred and ninety-nine in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic. This Convention shall remain deposited in the archives of the International Civil Aviation Organization, and certified copies thereof shall be transmitted by the Depositary to all States Parties to this Convention, as well as to all States Parties to the Warsaw Convention, The Hague Protocol, the Guadalajara Convention, the Guatemala City Protocol, and the Montreal Protocols.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 25
An Act to amend the Customs Act and to make related amendments to other Acts
BILL S–23 ASSENTED TO 25th OCTOBER, 2001
SUMMARY This enactment amends the Customs Act to modernize the customs administration by (a) providing for the expedited movement of persons and goods into Canada; (b) providing for streamlined clearance procedures for low risk passengers by pre-arrival risk assessment of passenger information; (c) providing for new requirements in respect of the provision of information obtained under that Act; (d) providing for monetary penalties in respect of designated contraventions; (e) extending the time for requesting reviews and appeals beyond current time limits; (f) harmonizing provisions for the collection of amounts owing under that Act with those of the Income Tax Act and the Excise Tax Act; (g) making technical and housekeeping amendments; and (h) making related amendments to other Acts.
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49-50 ELIZABETH II
CHAPTER 25 An Act to amend the Customs Act and to make related amendments to other Acts [Assented to 25th October, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. 1 (2nd Supp.)
CUSTOMS ACT
1997, c. 36, s. 147(1)
1. (1) The definitions ‘‘person’’, ‘‘prescribed’’ and ‘‘release’’ in subsection 2(1) of the Customs Act are replaced by the following:
‘‘person’’ « personne »
‘‘person’’ means an individual, a partnership, a corporation, a trust, the estate of a deceased individual or a body that is a society, a union, a club, an association, a commission or other organization of any kind;
‘‘prescribed’’ « réglementaire »
‘‘prescribed’’ means (a) in respect of a form or the manner of filing a form, authorized by the Minister, (b) in respect of the information to be provided on or with a form, specified by the Minister, and (c) in any other case, prescribed by regulation or determined in accordance with rules prescribed by regulation;
‘‘release’’ « dédouanement »
‘‘release’’ means (a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and (b) in respect of goods to which paragraph 32(2)(b) applies, to receive the goods at the place of business of the importer, owner or consignee;
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(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: ‘‘Agency’’ « Agence »
‘‘Agency’’ means the Canada Customs and Revenue Agency;
‘‘data’’ « données »
‘‘data’’ means representations, in any form, of information or concepts;
‘‘record’’ « document »
‘‘record’’ means any material on which data are recorded or marked and which is capable of being read or understood by a person or a computer system or other device; (3) Section 2 of the Act is amended by adding the following after subsection (1.2):
Electronic records
(1.3) Every person required by this Act to keep records who does so electronically shall retain them in an electronically readable format for the prescribed retention period.
1999, c. 17, s. 123(3)
(4) Subsection 2(3) of the French version of the Act is replaced by the following:
Attributions du commissaire
(3) Les attributions conférées au commissaire par la présente loi peuvent être exercées par toute personne qu’il autorise à agir ainsi ou par tout agent appartenant à une catégorie d’agents qu’il autorise à agir ainsi. Les attributions ainsi exercées sont réputées l’avoir été par le commissaire.
1992, c. 28, s. 2(1)
2. Section 3.1 of the Act is replaced by the following:
Interest to be compounded
3.1 Interest shall be computed at a prescribed rate or at a specified rate and compounded daily and, if interest is computed in respect of an amount under a provision of this Act and is unpaid on the day it would, but for this section, have ceased to be computed under that provision, interest at the specified rate shall be computed and compounded daily on that unpaid interest from that day to the day
Doua it is paid and shall be paid as that provision required the amount to be paid.
1995, c. 41, s. 2
3. Subsection 3.3(1) of the Act is replaced by the following:
Waiver of penalty or interest
3.3 (1) The Minister or any officer designated by the Minister for the purposes of this section may at any time waive or cancel all or any portion of any penalty or interest otherwise payable by a person under this Act.
Exception
(1.1) Subsection (1) does not apply if measures may be taken under section 127.1, a request under section 129 is made or the time for making a request set out in that section has not expired.
4. The Act is amended by adding the following after section 3.4: Payment of Large Amounts Where excess amount to be paid
3.5 Except in the circumstances that the Minister may specify, every person who makes a payment of any amount under this Act shall, if the amount exceeds the amount specified by the Minister, make the payment to the account of the Receiver General in the prescribed manner and within the prescribed time at (a) a bank; (b) a credit union; (c) a corporation authorized by an Act of Parliament or of the legislature of a province to carry on the business of offering its services as a trustee to the public; or (d) a corporation authorized by an Act of Parliament or of the legislature of a province to accept deposits from the public and that carries on the business of lending money on the security of real property or immovables or of investing in mortgages or hypothecary claims on immovables. 5. The Act is amended by adding the following after section 4:
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4.1 In the case of goods to which paragraph 32(2)(b) applies, the Minister may accept from an importer or transporter an undertaking to assume obligations in relation to compliance with this Act and the regulations. 6. The Act is amended by adding the following after section 7: Provision of Information
Obligation to provide accurate information
7.1 Any information provided to an officer in the administration or enforcement of this Act, the Customs Tariff or the Special Import Measures Act or under any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, shall be true, accurate and complete. 7. Section 8 of the Act is replaced by the following:
Declaration
8. The Minister may include on any form a declaration, to be signed by the person completing the form, declaring that the information given by that person on the form is true, accurate and complete.
1997, c. 36, s. 148
8. (1) Subsection 8.1(7) of the French version of the Act is replaced by the following:
Imprimés en preuve
(7) Pour l’application de la présente loi et du Tarif des douanes, un document présenté par le ministre, paraissant être l’imprimé d’un formulaire reçu en application du present article, est admissible en preuve et établit, sauf preuve contraire, la production ou la fourniture du formulaire en application du présent article.
1997, c. 36, s. 148
(2) The portion of subsection 8.1(8) of the Act before paragraph (a) is replaced by the following:
Regulations
(8) The Governor in Council may, on the recommendation of the Minister, make regulations in respect of electronic systems or any other technology to be used in the administration of this Act or the Customs Tariff, including regulations respecting
Doua 9. Subsection 9(3) of the Act is replaced by the following:
Records
(3) If an officer so requests, a customs broker shall make available to the officer, within the time specified by the officer, any records that the customs broker is required by the regulations to keep. 10. (1) Subsections 11(1) and (2) of the Act are replaced by the following:
Presentation of persons on arrival in Canada
11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament.
Exception
(2) Subsection (1) does not apply to any person who has presented himself or herself outside Canada at a customs office designated for that purpose and has not subsequently stopped at any other place prior to his or her arrival in Canada unless an officer requires that person to present himself or herself to the officer. (2) Section 11 of the Act is amended by adding the following after subsection (5):
Exception — alternative manner
(6) Subsection (1) does not apply to a person who (a) holds an authorization issued by the Minister under subsection 11.1(1) to present himself or herself in a prescribed alternative manner and who has presented himself or herself in the manner authorized for that person; or (b) is a member of a prescribed class of persons authorized by regulations made under subsection 11.1(3) to present himself or herself in a prescribed alternative manner and who has presented himself or herself in the manner authorized for that class.
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(7) Notwithstanding that a person holds an authorization under subsection 11.1(1) or is authorized under the regulations made under subsection 11.1(3), an officer may require a person to present himself or herself in accordance with subsection (1). 11. The Act is amended by adding the following after section 11:
Minister may authorize
11.1 (1) Subject to the regulations, the Minister may issue to any person an authorization to present himself or herself in an alternative manner.
Amendment, etc., of authorization
(2) The Minister may, subject to the regulations, amend, suspend, renew, cancel or reinstate an authorization.
Regulations
(3) The Governor in Council may make regulations (a) prescribing classes of persons who may be authorized to present themselves in alternative manners; (b) respecting alternative manners of presentation; (c) respecting the requirements and conditions that are to be met before authorizations may be issued; (d) respecting the terms and conditions of authorizations; (e) respecting the amendment, suspension, renewal, cancellation or reinstatement of authorizations; and (f) respecting fees or the manner of determining fees to be paid for authorizations.
Designation of customs controlled areas
11.2 (1) The Minister may designate an area as a customs controlled area for the purposes of this section and sections 11.3 to 11.5 and 99.2 and 99.3.
Amendment, etc. of designation
(2) The Minister may amend, cancel or reinstate at any time a designation made under this section.
Entry prohibited
11.3 No owner or operator of a facility where a customs controlled area is located shall grant or allow to be granted access to the customs controlled area to any person unless the person
Doua (a) has been authorized by the Minister in accordance with regulations made under section 11.5; or (b) is a prescribed person or a member of a prescribed class of persons.
Presentation and reporting
11.4 (1) Subject to subsection (2), every person leaving a customs controlled area, other than for the purpose of boarding a flight with a destination outside Canada, shall (a) present himself or herself in the prescribed manner to an officer and identify himself or herself; (b) report in the prescribed manner and make available to the officer any goods that he or she has acquired through any means while in the customs controlled area; and (c) answer truthfully any questions asked by an officer in the performance of his or her duties under this or any other Act of Parliament.
Non-application of subsection (1)
(2) Subsection (1) does not apply to (a) persons who are required to present themselves under section 11 or report goods under section 12; or (b) prescribed persons or members of prescribed classes of persons in prescribed circumstances.
Regulations
11.5 The Governor in Council may make regulations (a) respecting the authorization of persons under paragraph 11.3(a); (b) prescribing persons or classes of persons who may be granted access under paragraph 11.3(b); (c) respecting the circumstances in which an authorization under paragraph 11.3(a) may be amended, suspended, renewed, cancelled or reinstated; (d) respecting the manner in which a person must present himself or herself under paragraph 11.4(1)(a) and report goods under paragraph 11.4(1)(b); and
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(e) prescribing for the purposes of paragraph 11.4(2)(b) persons or classes of persons who are exempt from the requirements imposed by subsection 11.4(1) and the circumstances in which they are exempted. 12. Paragraph 12(3)(a) of the Act is replaced by the following: (a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; 13. Section 13 of the Act is replaced by the following: Obligation to answer questions and present goods
13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall (a) answer truthfully any question asked by an officer with respect to the goods; and (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. 14. Subsection 17(2) of the Act is replaced by the following:
Rates of duties
(2) Subject to this Act, the rates of duties on imported goods shall be the rates applicable to the goods at the time they are accounted for under subsection 32(1), (2) or (5) or, where goods have been released in the circumstances set out in paragraph 32(2)(b), at the time of release. 15. The portion of subsection 18(2) of the Act before paragraph (a) is replaced by the following:
Liability of person reporting goods short landed
(2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are
Doua jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods 16. (1) The portion of subsection 19(1) of the Act before paragraph (a) is replaced by the following:
Disposition of goods before release
19. (1) Subject to section 20, any person who is authorized by an officer or by any prescribed means to do so may (2) Section 19 of the Act is amended by adding the following after subsection (1):
Authorization to deliver goods
(1.1) In prescribed circumstances and under prescribed conditions, a person may be authorized by an officer or by any prescribed means to deliver goods or cause them to be delivered to the place of business of the importer, owner or consignee.
1995, c. 41, s. 3(2)
(3) The portion of subsection 19(2) of the Act before paragraph (a) is replaced by the following:
Movement and storage of goods
(2) Subject to section 20, where goods that have been reported under section 12 have been described in the prescribed form at a customs office designated for that purpose, any person who is authorized by an officer or by any prescribed means to do so may 17. (1) The portion of subsection 20(2) of the Act before paragraph (a) is replaced by the following:
Liability of transporter
(2) Subject to subsection (2.1), every person who transports or causes to be transported within Canada goods, other than goods to which paragraph 32(2)(b) applies, that have been imported but have not been released is liable for all duties on the goods unless the person proves, within the time that may be prescribed, that the goods were (2) Section 20 of the Act is amended by adding the following after subsection (2):
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(2.1) If a person transports within Canada goods to which paragraph 32(2)(b) applies, which the person is required to report under section 12 but which have not been released, the person is liable for all duties on the goods unless the person proves, within the time that may be prescribed, that the goods were (a) destroyed while being transported; (b) received in a customs office, bonded warehouse or duty free shop; (c) if the goods are designated as ships’ stores by regulations made under paragraph 99(g) of the Customs Tariff, received on board a conveyance of a class prescribed under that paragraph for use on the conveyance in accordance with regulations made under that paragraph; (d) exported; or (e) received at the place of business of the importer, owner or consignee.
1995, c. 41, s. 5
18. Subsection 22(1) of the Act is replaced by the following:
Records
22. (1) Subject to subsection (2), the following persons shall keep the prescribed records at their place of business in Canada or at any other place that the Minister may designate, for the prescribed period and in the prescribed manner, and shall on the request of an officer make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer about those records: (a) a person who transports or causes to be transported goods into Canada; or (b) a person who transports or causes to be transported within Canada goods that have been imported but have not been released.
1995, c. 39, s. 168
19. (1) The portion of subsection 28(1) of the Act before paragraph (a) is replaced by the following:
Liability of operator
28. (1) Subject to subsection (1.2), the operator of a sufferance warehouse, bonded warehouse or duty free shop is liable for all duties or taxes levied under the Customs Tariff, the Excise Tax Act, the Excise Act, the
Doua Special Import Measures Act or any other law relating to customs on goods that have been received in that warehouse or shop unless the operator proves that the goods
1993, c. 25, s. 72(1)
(2) Subsection 28(1.1) of the Act is replaced by the following:
Exception — certain goods
(1.1) This section does not apply to goods to which paragraph 32(2)(b) applies.
1993, c. 25, s. 72(2)
(3) Subsection 28(3) of the Act is replaced by the following:
Definition ‘‘duties’’ does not apply
(3) The definition ‘‘duties’’ in subsection 2(1) does not apply for the purposes of subsections (1) and (2). 20. Section 31 of the Act is replaced by the following:
Release
31. Subject to section 19, no goods shall be removed from a customs office, sufferance warehouse, bonded warehouse or duty free shop by any person other than an officer in the performance of his or her duties under this or any other Act of Parliament unless the goods have been released by an officer or by any prescribed means.
21. Subsections 32(2) and (3) of the Act are replaced by the following: Release prior to accounting
(2) In prescribed circumstances and under prescribed conditions, goods may be released prior to the accounting required under subsection (1) if (a) the importer or owner of the goods makes an interim accounting in the prescribed manner and form and containing the prescribed information, or in the form and containing the information that is satisfactory to the Minister; or (b) the goods have been authorized by an officer or by any prescribed means for delivery to, and have been received at, the place of business of the importer, owner or consignee of the goods.
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Accounting after release
(3) If goods are released under subsection (2), they shall be accounted for within the prescribed time and in the manner described in paragraph (1)(a) by, in the case of goods to which paragraph (2)(a) applies, the person who made the interim accounting under that paragraph in respect of the goods and, in the case of goods to which paragraph (2)(b) applies, by the importer or owner of the goods.
1997, c. 36, s. 152
22. Subsection 32.2(6) of the Act is replaced by the following:
Diversions
(6) The obligation under this section to make a correction to a declaration of tariff classification includes an obligation to correct a declaration of tariff classification that is rendered incorrect by a failure, after the goods are accounted for under subsection 32(1), (3) or (5) or, in the case of prescribed goods, after the goods are released without accounting, to comply with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff or under any regulations made under that Act in respect of a tariff item in that List. 23. The Act is amended by adding the following after section 32.2:
Diversion of goods used as ships’ stores
32.3 If goods are removed or caused to be removed for use as ships’ stores under paragraph 19(1)(c) or (2)(c), and the goods are subsequently diverted to another use, the person who diverted the goods shall, at the time of the diversion, (a) report the diversion to an officer at a customs office; (b) account for the goods in the prescribed manner and in the prescribed form containing the prescribed information; and (c) pay as duties on the goods an amount equal to the amount of duties that would be payable on like goods imported in like condition at the time of the diversion.
1997, c. 36, s. 153
24. Section 33.1 of the Act is repealed.
2001 1992, c. 28, s. 7(1)
Doua 25. Section 33.3 of the Act is repealed.
1992, c. 28, s. 7(1); 1994, c. 47, s. 70; 1995, c. 41, s. 9; 1997, c. 36, s. 154
26. Section 33.4 of the Act is replaced by the following:
Interest
33.4 (1) Subject to subsection (3), any person who is liable to pay an amount of duties in respect of imported goods shall pay, in addition to the amount, interest at the specified rate for the period beginning on the first day after the day the person became liable to pay the amount and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount.
When duties deemed payable
(2) For the purposes of subsection (1), any duties in respect of goods payable under paragraph 59(3)(a) or 65(1)(a) of this Act or under the Special Import Measures Act are deemed to have become payable on the day duties became payable in respect of the goods under this Part or that Act.
Interest-free period
(3) If an amount of duties in respect of goods that is payable by a person under paragraph 59(3)(a) or 65(1)(a) in accordance with a determination, re-determination or further re-determination made under this Act is paid by the person or if an amount of duties in respect of goods that is payable under the Special Import Measures Act in accordance with a determination or re-determination made under that Act is paid by the importer in Canada within thirty days after the day the determination, re-determination or further re-determination, as the case may be, is made (in this subsection referred to as the ‘‘decision day’’), interest is not payable under subsection (1) on the amount for the period beginning on the day after the decision day and ending on the day the amount is paid.
1992, c. 28, s. 7(1)
1992, c. 28, s. 7(1)
27. Section 33.6 of the Act is repealed. 28. (1) Paragraph 33.7(2)(b) of the Act is replaced by the following:
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(b) if the person accounts for the goods within the extended time, no penalty shall be imposed under section 109.1; and 1992, c. 28, s. 7(1)
(2) Paragraph 33.7(3)(b) of the Act is replaced by the following: (b) if the person pays that amount within the time as so extended, subsection 33.4(1) shall apply in respect of that amount as if the time had not been so extended, but interest payable under that subsection in respect of that amount shall be computed at the prescribed rate rather than at the specified rate; and
1992, c. 28, s. 7(1)
29. Section 33.8 of the Act is repealed.
1993, c. 44, s. 83
30. (1) Subsection 35.02(1) of the Act is repealed.
1993, c. 44, s. 83
(2) Subsection 35.02(3) of the Act is repealed.
1993, c. 44, s. 83
(3) The portion of subsection 35.02(4) of the Act before paragraph (a) is replaced by the following:
Goods imported from a NAFTA country
(4) If a person imports goods of a prescribed class from a NAFTA country, that person is not liable to a penalty under section 109.1 unless
1993, c. 44, s. 83
(4) Subsection 35.02(5) of the Act is repealed.
1993, c. 44, s. 85; 1995, c. 41, s. 15; 1997, c. 36, s. 159
31. Subsections 40(1) to (3) of the Act are replaced by the following:
Importers’ records
40. (1) Every person who imports goods or causes goods to be imported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in any manner and for any period of time that may be prescribed and shall, where an officer so requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records.
Doua
Minister’s request
(2) If, in the opinion of the Minister, a person has not kept records in accordance with subsection (1), the Minister may request that person to comply with that subsection in respect of the records.
Requirement to keep records
(3) The following persons shall keep at their place of business or at any other place that may be designated by the Minister the prescribed records with respect to the prescribed goods, in the manner and for the period that may be prescribed, and shall, where an officer requests, make them available to the officer, within the time specified by the officer, and answer truthfully any questions asked by the officer in respect of the records: (a) a person who is granted a licence under section 24; (b) a person who receives goods authorized for delivery to the person’s place of business in the circumstances set out in paragraph 32(2)(b); (c) a person who is authorized under paragraph 32(6)(a) or subsection 32(7) to account for goods; (d) a person who is granted a certificate under section 90 of the Customs Tariff; and (e) a person who is granted a licence under section 91 of that Act. 32. Section 42 of the Act is replaced by the following:
Definition of ‘‘dwellinghouse’’
42. (1) In this section, ‘‘dwelling-house’’ means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passageway; and (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence.
Inspections
(2) An officer, or an officer within a class of officers, designated by the Minister for the purposes of this section, may at all reasonable times, for any purpose related to the administration or enforcement of this Act,
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(a) inspect, audit or examine any record of a person that relates or may relate to the information that is or should be in the records of the person or to any amount paid or payable under this Act; (b) examine property in an inventory of a person and any property or process of, or matter relating to, the person, an examination of which may assist the officer in determining the accuracy of the inventory of the person or in ascertaining the information that is or should be in the records of the person or any amount paid or payable by the person under this Act; (c) subject to subsection (3), enter any premises or place where any business is carried on, any property is kept, anything is done in connection with any business or any records are or should be kept; and (d) require the owner or manager of the property or business and any other person on the premises or place to give the officer all reasonable assistance and to answer truthfully any question, and, for that purpose, require the owner, manager or other person designated by the owner or manager to attend at the premises or place with the officer.
Prior authorization
(3) If any premises or place referred to in paragraph (2)(c) is a dwelling-house, an officer may not enter that dwelling-house without the consent of the occupant except under the authority of a warrant under subsection (4).
Warrant
(4) On ex parte application by the Minister, a judge may issue a warrant authorizing an officer to enter a dwelling-house subject to the conditions that may be specified in the warrant, if the judge is satisfied by information on oath that (a) there are reasonable grounds to believe that the dwelling-house is a premises or place referred to in paragraph (2)(c);
Doua (b) entry into the dwelling-house is necessary; and (c) entry into the dwelling-house has been, or there are reasonable grounds to believe that entry into the dwelling-house will be, refused.
Other access to document
(5) If the judge is not satisfied that entry into that dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act but is satisfied that access to a document or property that is or should be kept in the dwelling-house has been or may be expected to be refused, the judge may (a) order the occupant of the dwellinghouse to provide the officer with reasonable access to any document or property; and (b) make any other order that is appropriate in the circumstances to carry out the purposes of this Act.
1997, c. 36, s. 160
33. Section 42.01 of the Act is replaced by the following:
Methods of verification
42.01 An officer, or an officer within a class of officers, designated by the Minister for the purposes of this section may conduct a verification of origin (other than a verification of origin referred to in section 42.1), verification of tariff classification or verification of value for duty in respect of imported goods in the manner that is prescribed and may for that purpose at all reasonable times enter any prescribed premises.
1997, c. 36, s. 163
34. (1) Subsection 42.3(2) of the French version of the Act is replaced by the following:
Prise d’effet de la révision ou du réexamen
(2) Sous réserve du paragraphe (4), si, à la suite de la révision ou du réexamen, en application du paragraphe 59(1), de l’origine de marchandises qui font l’objet d’une demande visant l’obtention du traitement tarifaire préférentiel de l’ALÉNA ou de celui de l’ALÉCC et dont la vérification de l’origine est prévue par la présente loi, celles-ci ne peuvent pas bénéficier du traitement tarifaire préférentiel demandé pour le motif que le
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classement tarifaire ou la valeur d’une matière ou d’un matériel ou de plusieurs matières ou matériels utilisés pour la production de ces marchandises diffère du classement ou de la valeur correspondants de ces matières ou matériels dans le pays d’exportation — pays ALÉNA ou Chili —, la prise d’effet de la révision ou du réexamen est subordonnée à leur notification à l’importateur et à la personne qui a rempli et signé le certificat d’origine des marchandises. 1997, c. 36, s. 163
(2) Subsection 42.3(4) of the French version of the Act is replaced by the following:
Report de la date de prise d’effet
(4) La date de prise d’effet de la révision ou du réexamen de l’origine visé au paragraphe (2) est reportée pour une période maximale de quatre-vingt-dix jours, si le ministre est convaincu que l’importateur des marchandises ou la personne qui a rempli et signé le certificat d’origine de celles-ci a démontré qu’il s’est fondé de bonne foi, à son détriment, sur le classement tarifaire ou la détermination de la valeur des matières ou matériels visés à ce paragraphe effectués par l’administration douanière du pays ALÉNA d’exportation des marchandises ou du Chili, selon le cas.
2000, c. 30, s. 160
35. Subsection 43(1) of the Act is replaced by the following:
Production of records
43. (1) The Minister may, for any purpose related to the administration or enforcement of this Act, including the collection of any amount owing under this Act by any person, by notice served personally or sent by registered or certified mail, require any person to provide any record at a place specified by the Minister and within any reasonable time that may be stipulated in the notice. 36. Subsection 43.1(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) the tariff classification of the goods.
Doua
37. Subsection 51(6) of the Act is replaced by the following: Definition of ‘‘time of importation’’
(6) In this section, ‘‘time of importation’’ means (a) in respect of goods other than those to which paragraph 32(2)(b) applies, the date on which an officer authorizes the release of the goods under this Act or the date on which their release is authorized by any prescribed means; and (b) in respect of goods to which paragraph 32(2)(b) applies, the date on which the goods are received at the place of business of the importer, owner or consignee. 38. Section 54 of the French version of the Act is replaced by the following:
Marchandises exportées au Canada en passant par un autre pays
54. Pour l’application des articles 45 à 55, les marchandises provenant d’un pays qui sont exportées au Canada en passant par un autre pays sont considérées, sous réserve des conditions réglementaires, comme ayant été expédiées directement au Canada à partir du premier pays.
1997, c. 36, s. 165
39. (1) Subsection 57.01(1) of the Act is replaced by the following:
Marking determination
57.01 (1) Any officer, or any officer within a class of officers, designated by the Minister for the purposes of this section may, at or before the time goods imported from a NAFTA country are accounted for under subsection 32(1), (3) or (5), in the prescribed manner and subject to the prescribed condi��
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tions, make a determination as to whether the goods have been marked in the manner referred to in section 35.01. 1997, c. 36, s. 165
(2) Subsection 57.01(2) of the French version of the Act is replaced by the following:
Décision présumée
(2) Dans le cas où l’agent ne rend pas sa décision au plus tard au moment de la déclaration en détail des marchandises prévue aux paragraphes 32(1), (3) ou (5), celles-ci sont réputées marquées conformément à l’article 35.01 sur le fondement des déclarations faites par l’auteur de la déclaration en détail.
1997, c. 36, s. 166
40. Paragraph 57.1(b) of the Act is replaced by the following: (b) the tariff classification of imported goods is to be determined in accordance with sections 10 and 11 of the Customs Tariff, unless otherwise provided in that Act; and
1997, c. 36, s. 166
41. (1) The portion of paragraph 59(1)(a) of the Act before subparagraph (i) is replaced by the following: (a) in the case of a determination under section 57.01 or 58, re-determine the origin, tariff classification, value for duty or marking determination of any imported goods at any time within
1997, c. 36, s. 166
(2) Subsection 59(2) of the Act is replaced by the following:
Notice requirement
(2) An officer who makes a determination under subsection 57.01(1) or 58(1) or a re-determination or further re-determination under subsection (1) shall without delay give notice of the determination, re-determination or further re-determination, including the rationale on which it is made, to the prescribed persons.
Doua
1997, c. 36, s. 166
(3) The portion of subsection 59(3) of the Act before paragraph (b) is replaced by the following:
Payment or refund
(3) Every prescribed person who is given notice of a determination, re-determination or further re-determination under subsection (2) shall, in accordance with that decision, (a) pay any amount owing, or additional amount owing, as the case may be, as duties in respect of the goods or, if a request is made under section 60, pay that amount or give security satisfactory to the Minister in respect of that amount and any interest owing or that may become owing on that amount; or
1997, c. 36, s. 166
(4) Subsection 59(4) of the Act is replaced by the following:
Amounts payable immediately
(4) Any amount owing by or to a person under subsection (3) or 66(3) in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not a request is made under section 60.
1997, c. 36, s. 166
42. (1) Subsections 60(1) and (2) of the Act are replaced by the following:
Request for re-determination or further re-determination
60. (1) A person to whom notice is given under subsection 59(2) in respect of goods may, within ninety days after the notice is given, request a re-determination or further re-determination of origin, tariff classification, value for duty or marking. The request may be made only after all amounts owing as duties and interest in respect of the goods are paid or security satisfactory to the Minister is given in respect of the total amount owing.
Request for review
(2) A person may request a review of an advance ruling made under section 43.1 within ninety days after it is given to the person.
1997, c. 36, s. 166
(2) Paragraph 60(4)(b) of the French version of the Act is replaced by the following:
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b) la confirmation, la modification ou l’annulation de la décision anticipée; 1997, c. 36, s. 166
(3) Paragraph 60(4)(c) of the Act is replaced by the following: (c) re-determine or further re-determine the marking determination. 43. The Act is amended by adding the following after section 60:
Extension of time to make a request
60.1 (1) If no request is made under section 60 within the time set out in that section, a person may make an application to the Commissioner for an extension of the time within which the request may be made, and the Commissioner may extend the time for making the request.
Reasons
(2) The application must set out the reasons why the request was not made on time.
How application made
(3) The application must be made to the Commissioner in the prescribed manner and form and contain the prescribed information.
Duties of Commissioner
(4) On receipt of an application, the Commissioner must, without delay, consider it and notify the person making the application, in writing, of the Commissioner’s decision.
Date of request
(5) If the Commissioner grants the application, the request is valid as of the date of the Commissioner’s decision.
Conditions for granting application
(6) No application may be granted unless (a) the application is made within one year after the expiry of the time set out in section 60; and (b) the person making the application demonstrates that (i) within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request, (ii) it would be just and equitable to grant the application, and
Doua (iii) the application was made as soon as circumstances permitted.
Extension of time by Canadian International Trade Tribunal
60.2 (1) A person who has made an application under section 60.1 may apply to the Canadian International Trade Tribunal to have the application granted after either (a) the Commissioner has refused the application; or (b) ninety days have elapsed after the application was made and the Commissioner has not notified the person of the Commissioner’s decision. If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is refused.
How application made
(2) The application must be made by filing with the Commissioner and the Secretary of the Canadian International Trade Tribunal a copy of the application referred to in section 60.1 and, if notice has been given under subsection 60.1(4), a copy of the notice.
Powers of Canadian International Trade Tribunal
(3) The Canadian International Trade Tribunal may dispose of an application by dismissing or granting it and, in granting an application, it may impose any terms that it considers just or order that the request be deemed to be a valid request as of the date of the order.
When application to be granted
(4) No application may be granted under this section unless (a) the application under subsection 60.1(1) was made within one year after the expiry of the time set out in section 60; and (b) the person making the application demonstrates that (i) within the time set out in section 60, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to make a request, (ii) it would be just and equitable to grant the application, and (iii) the application was made as soon as circumstances permitted.
1997, c. 36, s. 166
44. Subparagraph 61(1)(b)(ii) of the Act is replaced by the following:
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1992, c. 28, s. 16(1)
45. (1) Paragraph 65(1)(a) of the French version of the Act is replaced by the following: a) soit verser tout complément de droits dû sur les marchandises ou, si appel a été interjeté en vertu de l’article 67, payer cette somme ou donner la garantie, jugée satisfaisante par le ministre, du versement de ce complément et des intérêts échus ou à échoir sur ce complément;
1992, c. 28, s. 16(2)
(2) Subsection 65(2) of the Act is replaced by the following:
Amount owing or refund payable immediately
(2) Any amount owing by or to a person under subsection (1) or 66(3) of this Act or as a result of a determination or re-determination under the Special Import Measures Act in respect of goods, other than an amount in respect of which security is given, is payable immediately, whether or not an appeal is taken under section 67 of this Act or subsection 61(1) of that Act.
46. Section 65.1 of the Act is amended by adding the following after subsection (2): Exception — marking determinations
(3) This section does not apply to a marking determination.
1997, c. 36, s. 168
47. (1) Subsection 66(1) of the Act is replaced by the following:
Interest on payments
66. (1) If the amount paid by a person on account of duties expected to be owing under paragraph 59(3)(a) or 65(1)(a) of this Act or under the Special Import Measures Act exceeds the amount of duties, if any, owing as a result of a determination, re-determination or further re-determination, the person shall be
Doua paid, in addition to the excess amount, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the determination, re-determination or further re-determination, as the case may be, was made, calculated on the excess amount.
1997, c. 36, s. 168
(2) Subsection 66(3) of the Act is replaced by the following:
Interest on refunds
(3) A person who is given a refund under paragraph 59(3)(b) or 65(1)(b) of this Act or under the Special Import Measures Act of an amount paid shall be given, in addition to the refund, interest at the prescribed rate for the period beginning on the first day after the day the amount was paid and ending on the day the refund is given, calculated on the amount of the refund.
1997, c. 36, s. 169; 1999, c. 17, par. 127(d)
48. Subsection 67(1) of the French version of the Act is replaced by the following:
Appel devant le Tribunal canadien du commerce extérieur
67. (1) Toute personne qui s’estime lésée par une décision du commissaire rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du commissaire et du secrétaire de ce Tribunal dans les quatrevingt-dix jours suivant la notification de l’avis de décision. 49. The Act is amended by adding the following after section 67:
Extension of time to appeal
67.1 (1) If no notice of appeal has been filed within the time set out in section 67, a person may make an application to the Canadian International Trade Tribunal for an order extending the time within which a notice of appeal may be filed, and the Tribunal may make an order extending the time for appealing and may impose any terms that it considers just.
Reasons
(2) The application must set out the reasons why the notice of appeal was not filed on time.
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How application made
(3) The application must be made by filing with the Commissioner and the Secretary of the Canadian International Trade Tribunal the application accompanied by the notice of appeal.
Conditions for granting application
(4) No order may be made under this section unless (a) the application is made within one year after the expiry of the time set out in section 67; and (b) the person making the application demonstrates that (i) within the time set out in section 67 for appealing, the person was unable to act or to give a mandate to act in the person’s name or the person had a bona fide intention to appeal, (ii) it would be just and equitable to grant the application, (iii) the application was made as soon as circumstances permitted, and (iv) there are reasonable grounds for the appeal.
1992, c. 28, s. 19(1)
50. Subsection 69(1) of the French version of the Act is replaced by the following:
Remboursement en cas d’appel
69. (1) La personne qui interjette appel, en vertu des articles 67 ou 68, d’une décision portant sur des marchandises, après avoir versé une somme à titre de droits et d’intérêts sur celles-ci, et qui donne la garantie, jugée satisfaisante par le ministre, du versement de la partie impayée des droits et intérêts dus sur les marchandises et de tout ou partie de la somme versée à titre de droits et d’intérêts (sauf les intérêts payés en raison du non-paiement de droits dans le délai prévu au paragraphe 32(5) ou à l’article 33) sur les marchandises, est remboursée de tout ou partie de la somme versée pour laquelle la garantie a été donnée. 51. (1) Paragraph 74(3)(a) of the French version of the Act is replaced by the following: a) d’une part, le réclamant donne à l’agent toute possibilité d’examiner les marchandi2001
Doua ses en cause ou, d’une façon générale, d’apprécier les motifs de la réclamation; (2) Section 74 of the Act is amended by adding the following after subsection (5):
Refund without application
(6) The Minister, within four years after goods are accounted for under subsection 32(1), (3) or (5), may refund all or part of duties paid on imported goods without application by the person who paid them if it is determined that the duties were overpaid or paid in error in any of the circumstances set out in (a) paragraphs (1)(a) to (c) or (d); or (b) paragraph (1)(g), only to the extent that the refund is not based on tariff classification, value for duty or origin of the goods.
Duties that may not be refunded
(7) The duties that may be refunded under subsection (6) do not include duties or taxes levied under the Excise Act, the Excise Tax Act or the Special Import Measures Act or a surtax or temporary duty imposed under Division 4 of Part II of the Customs Tariff.
Application of refund
(8) A person of a prescribed class may apply, within four years after goods are accounted for under subsection 32(1), (3) or (5), in prescribed circumstances and under prescribed conditions, the amount of any refund to which they are entitled under this section to the payment of any amount for which they are liable or may become liable under this Act. 52. Subsection 76(1) of the French version of the Act is replaced by the following:
Marchandises défectueuses
76. (1) Sous réserve des règlements pris en vertu de l’article 81, le ministre peut, dans les circonstances prévues par règlement, accorder à une personne le remboursement de tout ou partie des droits qu’elle a payés sur des marchandises importées qui, d’une part, sont défectueuses, de qualité inférieure à celle pour laquelle il y a eu paiement ou différentes des
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marchandises commandées et, d’autre part, après leur importation, ont, sans frais pour Sa Majesté du chef du Canada, été aliénées conformément à des modalités acceptées par le ministre, ou ont été exportées. 1992, c. 28, s. 20(1); 1997, c. 36, s. 178
53. Section 80 of the Act is replaced by the following:
Interest on refunds
80. Any person who is granted a refund of duties under section 74, 76 or 79 shall be granted, in addition to the refund, interest on the refund at the prescribed rate for the period beginning on the ninety-first day after the day an application for the refund is received in accordance with paragraph 74(3)(b) and ending on the day the refund is granted.
1997, c. 36, s. 180
54. Subsection 80.2(2) of the Act is replaced by the following:
Excess to be repaid — paragraph 74(1)(f)
(2) If an abatement or refund is granted to a person under paragraph 74(1)(f) and the goods are sold or otherwise disposed of or are subsequently used in a manner that fails to comply with a condition imposed under a tariff item in the List of Tariff Provisions set out in the schedule to the Customs Tariff, or under any regulations made under that Act in respect of a tariff item in that List, the person who was granted the refund or abatement shall, within ninety days after the failure to comply, (a) report the failure to an officer at a customs office; and (b) pay to Her Majesty in right of Canada any amount to which they are not entitled, together with any interest that was granted to the person under section 80 or 80.1 on that amount. 55. (1) Paragraph 95(3)(b) of the French version of the Act is replaced by the following: b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner.
Doua (2) Subsection 95(4) of the Act is replaced by the following:
Written report
(4) If goods are required to be reported in writing, they shall be reported in the prescribed form containing the prescribed information or in such form containing such information as is satisfactory to the Minister.
1997, c. 14, s. 44
56. Subsection 97.1(3) of the French version of the Act is replaced by the following:
Modification du certificat
(3) La personne qui a rempli et signé le certificat et qui a des motifs de croire que celui-ci contient des renseignements inexacts communique sans délai à tout destinataire du certificat les renseignements corrigés.
1997, c. 14, s. 45
57. Subsection 97.2(1) of the Act is replaced by the following:
Exporters’ or producers’ records
97.2 (1) Every person who exports goods or causes them to be exported for sale or for any industrial, occupational, commercial, institutional or other like use or any other use that may be prescribed, and every other person who has completed and signed a certificate in accordance with subsection 97.1(1), shall keep at the person’s place of business in Canada or at any other place that may be designated by the Minister any records in respect of those goods in the manner and for the period that may be prescribed and shall, if an officer requests, make them available to the officer, within the time specified by the officer, and answer any questions asked by the officer in respect of the records. 58. (1) The Act is amended by adding the following after section 97.2:
PART V.1 COLLECTIONS Interpretation Definitions
97.21 The definitions in this section apply in this Part.
‘‘debtor’’ « débiteur »
‘‘debtor’’ means a person liable to pay an amount owing or payable in accordance with this Act.
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‘‘judge’’ « juge »
‘‘judge’’ means a judge of a superior court having jurisdiction in the province where a matter arises or a judge of the Federal Court.
‘‘receiver’’ « séquestre »
‘‘receiver’’ means a person who (a) under the authority of a debenture, bond or other debt security, a court order or an Act of Parliament or of the legislature of a province, is empowered to operate or manage a business or a property of another person; (b) is appointed by a trustee under a trust deed in respect of a debt security to exercise the authority of the trustee to manage or operate a business or a property of the debtor under the debt security; (c) is appointed by a bank to act as agent of the bank in the exercise of the authority of the bank under subsection 426(3) of the Bank Act in respect of property of another person; (d) is appointed as a liquidator to liquidate the assets of a corporation or to wind up the affairs of a corporation; or (e) is appointed as a committee, guardian or curator with authority to manage and care for the affairs and assets of an individual who is incapable of managing those affairs and assets. It includes a person who is appointed to exercise the authority of a creditor under a debenture, bond or other debt security to operate or manage a business or a property of another person. However, if a person is so appointed it does not include that creditor. General
Debts to Her Majesty
97.22 (1) Subject to subsections (2) and (3), any duties, fee, charge or other amount owing or payable under this Act is a debt due to Her Majesty in right of Canada from and after the time such amount should have been paid, and any person from whom the amount is owing shall, after a notice of arrears is sent by mail addressed to the person at their latest known address or delivered to that address, pay the amount owing as indicated in the notice or appeal the notice under section 97.23.
Doua
Penalty or ascertained forfeiture
(2) Any amount of money demanded as a penalty in a notice of assessment served under section 109.3 and any interest payable under section 109.5 or any amount of money demanded in a notice under section 124 and any interest payable under subsection 124(6), from and after the time of service, is a debt due to Her Majesty in right of Canada from the person on whom the notice is served and the person shall pay that amount or, within ninety days after the time of service, request a decision of the Minister under section 131.
Amounts demanded by the Minister
(3) Any amount of money demanded under paragraph 133(1)(c) or (1.1)(b) and any interest payable under subsection 133(7), from and after the time notice is served under subsection 131(2), is a debt due to Her Majesty in right of Canada from the person who requested the decision and the person shall pay the amount so demanded or, if the person appeals the decision of the Minister under section 135, give security satisfactory to the Minister.
Court costs
(4) If an amount is payable by a person to Her Majesty in right of Canada because of an order, judgment or award of a court in respect of the costs of litigation relating to a matter to which this Act applies, sections 97.24, 97.26, 97.28 and 97.3 to 97.33 apply to the amount as if the amount were a debt owing by the person to Her Majesty on account of duties payable by the person under this Act.
Court
(5) Any amount payable under this Act is recoverable in the Federal Court or any other court of competent jurisdiction or in any other manner provided under this Part.
Interest on judgments
(6) If a judgment is obtained for any amount payable under this Act, including a certificate registered under section 97.24, the provisions of this Act under which interest is payable for failure to pay the amount apply, with any modifications that the circumstances require, to a failure to pay the judgment debt, and the interest is recoverable in the same manner as the judgment debt.
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97.23 A person to whom a notice is sent or delivered under subsection 97.22(1) may, within thirty days after that notice is sent, appeal the notice by way of an action in the Federal Court in which the person is the plaintiff and the Minister is the defendant if (a) no appeal is or was available to that person under section 67 or 68 in respect of the same matter; and (b) the notice is not in respect of an amount assessed under section 97.44. Certificates, Liens and Set-off
Certificate
97.24 (1) Any debt, or any part of a debt, due to Her Majesty in right of Canada under this Act may be certified by the Minister as an amount payable by the debtor.
Registration in court
(2) On production to the Federal Court, the certificate must be registered in the Court. When it is registered, it has the same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of the amount specified in the certificate and interest on the amount as provided under this Act. For the purposes of any such proceedings, the certificate is a judgment of the Court against the debtor and enforceable as such.
Costs
(3) All reasonable costs and charges for the registration of the certificate or in respect of any proceedings taken to collect the amount certified are recoverable in the same way as if they had been certified in the certificate registered under this section.
Protected interest in property
(4) A memorial may be recorded for the purpose of creating a protected interest in property in a province or an interest in such property held by the debtor in the same manner as a document evidencing the following may be recorded in accordance with the law of the province: (a) a judgment of the superior court of the province against a person for a debt owing by the person; and
Doua (b) an amount payable by a person in the province in respect of a debt owing to Her Majesty in right of the province.
Creation of protected interest
(5) The effect of recording a memorial is, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), to create a protected interest in the property of the debtor in the province, or in any interest in that property, held by the debtor or to otherwise bind that property or interest in the property. The protected interest created is subordinate to any protected interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was recorded.
Proceedings in respect of memorial
(6) If a memorial is recorded in a province, proceedings may be taken, in the same manner and to the same extent as if the memorial were a document evidencing a judgment or an amount referred to in subsection (4), in the province in respect of the memorial, including proceedings (a) to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of the recording of the memorial and proceedings taken to collect the amount; (b) to renew or otherwise prolong the effectiveness of the recording of the memorial; (c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial; or (d) to postpone the effectiveness of the recording of the memorial in favour of any protected interest that has been or is intended to be recorded in respect of any property or interest affected by the memorial.
Federal Court may make order, etc.
(7) If in any proceeding or as a condition precedent to any proceeding referred to in subsection (6) any order, consent or ruling is required under the law of a province to be made or given by the superior court of the province or by a judge or official of the court, a like order, consent or ruling may be made or
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given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court.
Presentation of documents
(8) If a memorial, or a document relating to it, is presented for recording, for the purpose of any proceeding referred to in subsection (6), to any official in the land, personal property or other registry system of a province, it is to be accepted for recording in the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the purpose of a like proceeding.
Access for recording
(9) If access is sought to any person, place or thing in a province for the purpose of recording a memorial, or a document relating to it, the access must be granted in the same manner and to the same extent as if the memorial or document were a document evidencing a judgment or an amount referred to in subsection (4) for the purpose of a like proceeding.
Evidence deemed to have been provided
(10) If a memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceeding is deemed to have been provided with or to have accompanied the memorial or document as so required.
Prohibition — sale, etc., without consent
(11) Despite any law of Canada or of a province, no sheriff or other person may, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or protected interest created in any proceeding to collect an amount certified in a certificate, any interest on the amount and any costs.
Doua
Subsequent consent
(12) Despite subsection (11), if the Minister’s consent is subsequently given, any property that would have been affected by a process or protected interest referred to in that subsection had the Minister’s consent been given at the time the process was issued or the protected interest was created is bound, seized, attached, charged or otherwise affected as if that consent had been given at the time the process was issued or the protected interest was created, as the case may be.
Completion of notices, etc.
(13) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (11), be so set out, the sheriff or other person must complete the minute, notice or document to the extent possible without that information and, when the consent of the Minister is given, a further minute, notice or document setting out all the information is to be completed for the same purpose. The sheriff or other person is deemed to have complied with any law or rule of court requiring the information to be set out in the minute, notice or document.
Application for an order
(14) A sheriff or other person who is unable, because of subsection (11) or (13), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding or protected interest.
Secured claims
(15) A protected interest that is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act is deemed to be a claim that (a) is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and (b) is referred to in paragraph 86(2)(a) of that Act.
Details in certificates and memorials
(16) Despite any law of Canada or of a province, in any certificate in respect of a debtor, in any memorial evidencing the certificate or in any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes
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(a) to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total; and (b) to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the rate prescribed under this Act applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any particular period of time. Definitions
(17) The definitions in this subsection apply in this section.
‘‘memorial’’ « extrait »
‘‘memorial’’ means a document issued by the Federal Court evidencing a certificate registered under subsection (2) in respect of a debtor and includes a writ of that Court issued pursuant to the certificate or any notification of the document or writ.
‘‘protected interest’’ « droit garanti »
‘‘protected interest’’ means a charge, lien, prior claim, priority on or binding interest in property.
‘‘record’’ « enregistrement »
‘‘record’’, in respect of a memorial, means to file, register or otherwise record the memorial.
Detention of and lien on imported or exported goods
97.25 (1) Any goods reported for exportation under section 95 or imported by or on behalf of a debtor are subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the debtor until that amount is paid.
Conveyances
(2) Any conveyance used for the importation of goods in respect of which a notice under section 109.3 has been served is subject to a lien for the amount owed by the debtor and may be detained by an officer at the expense of the person on whom the notice was served until the amount set out in the notice is paid.
Sale of detained goods
(3) The Minister, on giving 30 days notice in writing to the debtor at the debtor’s latest known address, may direct that any goods imported or reported for exportation by or on behalf of the debtor, or any conveyance, that
Doua has been detained be sold by public auction or public tender or by the Minister of Public Works and Government Services under the Surplus Crown Assets Act, subject to such regulations as may be made.
Proceeds of sale
(4) The proceeds of any sale shall be applied to amounts owed by the debtor, any expenses incurred by Her Majesty in right of Canada in respect of the goods sold and any duties on the goods and the surplus, if any, shall be paid to the debtor.
Set-off
97.26 The Minister may require that an amount specified by the Minister be deducted from or set-off against an amount that is or may become payable to a debtor by Her Majesty in Right of Canada. If an amount payable to a person under a provision of this Act has at any time been deducted or set-off, the amount is deemed to have been paid to the debtor at that time under that provision and to have been paid by the debtor at that time on account of the debt to Her Majesty.
Refund may be applied against liabilities
97.27 The Minister may, if a person is or is about to become liable to make any payment to Her Majesty in right of Canada or in right of a province, apply the amount of any drawback, refund or relief granted under section 74 or 76 of this Act or section 89, 101 or 113 of the Customs Tariff to that other liability and notify the person of that action. Garnishment and Non-arm’s Length Transfers
Garnishment — general
97.28 (1) If the Minister has knowledge or suspects that a person is or will be, within one year, liable to make a payment to a debtor, the Minister may, by notice in writing, require the person to pay without delay, if the moneys are immediately payable, and, in any other case, as and when the moneys become payable, the moneys otherwise payable to the debtor in whole or in part to the Receiver General on account of the debtor’s liability under this Act.
Garnishment — institutions
(2) The Minister may, by notice in writing, require the following institutions or persons to pay in whole or in part to the Receiver General on account of a debtor’s liability the moneys
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that would otherwise be loaned, advanced or paid if the Minister has knowledge or suspects that within ninety days (a) a bank, credit union, trust company or other similar person (in this section referred to as the ‘‘institution’’) will loan or advance moneys to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by, a debtor who is indebted to the institution and who has granted security in respect of the indebtedness; or (b) a person, other than an institution, will loan or advance moneys to, or make a payment on behalf of, a debtor who the Minister knows or suspects (i) is employed by, or is engaged in providing services or property to, that person or was or will be, within ninety days, so employed or engaged, or (ii) if that person is a corporation, is not dealing at arm’s length with that person. Any moneys so paid to the Receiver General are deemed to have been loaned, advanced or paid to the debtor. Effect of receipt
(3) A receipt issued by the Minister for moneys paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment.
Periodic payments
(4) If the Minister has, under this section, required a person to pay to the Receiver General on account of the liability under this Act of a debtor moneys otherwise payable by the person to the debtor as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the requirement applies to all such payments to be made by the person to the debtor until the liability under this Act is satisfied, and operates to require payments to the Receiver General out of each such payment of such amount as is required by the Minister in a notice in writing.
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Failure to comply
(5) Every person who fails to comply with a requirement under subsection (1) or (4) is liable to pay to Her Majesty in right of Canada an amount equal to the amount that the person was required under that subsection to pay to the Receiver General.
Failure to comply — institutions
(6) Every institution or person that fails to comply with a requirement under subsection (2) is liable to pay to Her Majesty in right of Canada an amount equal to the lesser of (a) the total of moneys loaned, advanced or paid to the debtor, and (b) the amount that the institution or person was required under that subsection to pay to the Receiver General.
Service
(7) If a person carries on business under a name or style other than the person’s own name, notification to the person of a requirement under subsection (1) or (2) may be addressed to the name or style under which the person carries on business and, in the case of personal service, is validly served if it is left with an adult person employed at the place of business of the addressee.
Service — partnerships
(8) If persons carry on business in partnership, notification to the persons of a requirement under subsection (1) or (2) may be addressed to the partnership name and, in the case of personal service, is deemed to be validly served if it is served on one of the partners or left with an adult person employed at the place of business of the partnership.
Effect of payment as required
(9) If an amount that would otherwise have been payable to or on behalf of a debtor is paid by a person to the Receiver General pursuant to a notice served on the person under this section or pursuant to an assessment under section 97.44, the person is deemed, for all purposes, to have paid the amount to or on behalf of the debtor.
Application to Her Majesty in right of a province
(10) Provisions of this Part that provide that a person who has been required by the Minister to pay to the Receiver General an amount that would otherwise be loaned, advanced or paid to a debtor who is liable to make a payment under this Act apply to Her Majesty in right of a province.
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97.29 (1) If a person transfers property, either directly or indirectly, by means of a trust or by any other means, to the transferor’s spouse or common-law partner or an individual who has since become the transferor’s spouse or common-law partner, an individual who was under eighteen years of age, or another person with whom the transferor was not dealing at arm’s length, the transferee and transferor are jointly and severally or solidarily liable to pay an amount equal to the lesser of (a) the amount determined by the formula A-B where A is the amount, if any, by which the fair market value of the property at the time of transfer exceeds the fair market value at that time of the consideration given by the transferee for the transfer of the property, and B is the amount, if any, by which the amount assessed the transferee under subsection 325(2) of the Excise Tax Act and subsection 160(2) of the Income Tax Act in respect of the property exceeds the amount paid by the transferor in respect of the amount so assessed, and (b) the total of all amounts each of which is (i) an amount that the transferor is liable to pay under this Act, or (ii) interest or a penalty for which the transferor is liable as of the time of transfer. However, nothing in this subsection limits the liability of the transferor under any other provision of this Act.
Fair market value of undivided interest
(2) For the purpose of this section, the fair market value at any time of an undivided interest in a property, expressed as a proportionate interest in that property, is, subject to subsection (4), equal to the same proportion of the fair market value of that property at that time.
2001 Rules applicable
Doua (3) If a transferor and transferee have, under subsection (1), become jointly and severally or solidarily liable in respect of all or part of the liability of the transferor under this Act, the following rules apply: (a) a payment by the transferee on account of the transferee’s liability discharges, to the extent of the payment, the joint liability; and (b) a payment by the transferor on account of the transferor’s liability discharges the transferee’s liability only to the extent that the payment operates to reduce the transferor’s liability to an amount less than the amount in respect of which the transferee was made jointly and severally or solidarily liable.
Transfers to spouse or common-law partner
Related persons
(4) Despite subsection (1), if at any time a debtor transfers property to the debtor’s spouse or common-law partner under a decree, order or judgment of a competent tribunal or under a written separation agreement and, at that time, the debtor and the debtor’s spouse or common-law partner were separated and living apart as a result of the breakdown of their marriage or common-law partnership (as defined in subsection 248(1) of the Income Tax Act), for the purposes of paragraph (1)(a), the fair market value at that time of the property so transferred is deemed to be nil. However, nothing in this subsection limits the liability of the debtor under any other provision of this Act. (5) For the purposes of this section, (a) related persons are deemed not to deal with each other at arm’s length, and it is a question of fact whether persons not related to each other were, at any particular time, dealing with each other at arm’s length; (b) persons are related to each other if they are related persons within the meaning of subsections 251(2) to (6) of the Income Tax Act, except that references in those subsections to ‘‘corporation’’ are to be read as references to ‘‘corporation or partnership’’, and references in those subsections to ‘‘shares’’ or ‘‘shareholders’’ are, in respect
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of a partnership, to be read as references to ‘‘rights’’ or ‘‘partners’’, respectively; and (c) a member of a partnership is deemed to be related to the partnership. Definitions
(6) The definitions in this subsection apply in this section.
‘‘common-law partner’’ « conjoint de fait »
‘‘common-law partner’’ has the same meaning as in subsection 248(1) of the Income Tax Act except that references to ‘‘taxpayer’’ in that definition are to be read as references to ‘‘debtor’’.
‘‘common-law partnership’’ « union de fait »
‘‘common-law partnership’’ has the same meaning as in subsection 248(1) of the Income Tax Act.
‘‘property’’ « bien »
‘‘property’’ includes money. Acquisition of Property and Seizures
Acquisition of debtor’s property
97.3 For the purpose of collecting amounts owed by a debtor, the Minister may purchase or otherwise acquire any interest in the debtor’s property that the Minister is given a right to acquire in legal proceedings or under a court order or that is offered for sale or redemption, and may dispose of any interest so acquired in any manner that the Minister considers reasonable.
Moneys seized from debtor
97.31 (1) If the Minister has knowledge or suspects that a person is holding moneys that were seized by a police officer, in the course of administering or enforcing the criminal law of Canada, from a debtor and that are restorable to the debtor, the Minister may, by notice in writing, require that person to turn over the moneys otherwise restorable to the debtor, in whole or in part, to the Receiver General on account of the debtor’s liability under this Act.
Receipt
(2) A receipt issued for moneys turned over is a good and sufficient discharge of the requirement to restore the moneys to the debtor to the extent of the amount so turned over.
Seizure of chattels
97.32 (1) If a person fails to pay an amount as required under this Act, the Minister may give thirty days notice to the person by registered or certified mail addressed to the person at their latest known address of the Minister’s intention to direct that the person’s
Doua goods and chattels be seized and sold. If the person fails to make the payment before the expiration of the thirty days, the Minister may issue a certificate of the failure and direct that the person’s goods and chattels be seized.
Sale of seized property
(2) Seized property must be kept for ten days at the expense and risk of the owner and, if the owner does not pay the amount due together with all expenses within the ten days, the property seized shall be sold by public auction.
Notice of sale
(3) Except in the case of perishable goods, notice of the sale setting out the time and place of the sale together with a general description of the property to be sold must be published, a reasonable time before the goods are sold, in one or more newspapers of general local circulation.
Surplus
(4) Any surplus resulting from a sale, after deduction of the amount owing and all expenses, must be paid or returned to the owner of the property seized.
Exemption from seizure
(5) Goods and chattels of any person that would be exempt from seizure under a writ of execution issued out of a superior court of the province in which the seizure is made are exempt from seizure under this section.
Person leaving Canada
97.33 (1) If the Minister suspects that a person who is liable to pay an amount under this Act or would be so liable if the time for payment of the amount had arrived has left or is about to leave Canada, the Minister may, before the day otherwise fixed for payment, by notice in writing, demand payment of the amount. Despite any other provision of this Act, the person shall pay the amount immediately.
Failure to pay
(2) If a person fails to pay an amount as required, the Minister may direct that the goods and chattels of the person be seized and subsections 97.32(2) to (5) apply.
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Collection action delayed
97.34 (1) If a person is liable for the payment of an amount under this Act, if an amount is demanded in a notice served under section 109.3 or 124, or if an amount is demanded under paragraph 133(1)(c) or subsection 133(1.1) in a notice served under subsection 131(2), the Minister must not, for the purpose of collecting the amount, take the following actions until the ninety-first day after the day notice is given to the debtor: (a) commence legal proceedings in a court; (b) certify the amount under section 97.24; (c) require the retention of the amount by way of deduction or set-off under section 97.26; (d) require a person or institution to make a payment under section 97.28; (e) require a person to turn over moneys under subsection 97.31(1); or (f) give a notice, issue a certificate or make a direction under subsection 97.32(1).
Appeal to Federal Court
(2) If a person has appealed a decision of the Minister to the Federal Court under section 97.23 or 135, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the date of the decision of the Court or the day on which the person discontinues the appeal.
Reference to Canadian International Trade Tribunal
(3) If the Commissioner has referred a question to the Canadian International Trade Tribunal under section 70, the Minister must not take any action described in subsection (1) to collect the amount in controversy before the day on which the question is determined by the Tribunal.
2001 Effect of appeal
Doua (4) If a person has made a request under section 60 or 129 or has appealed under section 67 or 68 and the person agrees in writing with the Minister to delay proceedings on the request or appeal, as the case may be, until judgment has been given in another action before the Federal Court, the Canadian International Trade Tribunal or the Supreme Court of Canada, in which action the issue is the same or substantially the same as that raised in the request or appeal of the person, the Minister may take any of the actions described in subsection (1) for the purpose of collecting the amount payable, or a part of the amount payable, determined in a manner consistent with the decision or judgment in the other action at any time after the Minister notifies the person in writing that (a) the decision of the Canadian International Trade Tribunal or Federal Court in that action has been mailed to the Minister; (b) judgment has been pronounced by the Federal Court of Appeal in that action; or (c) judgment has been delivered by the Supreme Court of Canada in that action.
Effect of taking security
(5) The Minister must not, for the purpose of collecting an amount payable, or a part of an amount payable, under this Act, take any of the actions described in subsection (1) if a person has given security to the Minister when requesting or appealing from a decision of the Commissioner or Minister.
Authorization to proceed immediately
97.35 (1) Despite section 97.34, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed or demanded under this Act would be jeopardized by a delay in the collection of that amount, the judge shall, on any terms that the judge considers reasonable in the circumstances, authorize the Minister to immediately take any action described in that section to collect the amount.
Notice not sent
(2) An authorization may be granted by a judge notwithstanding that a notice in respect of the amount has not been sent to the debtor at or before the time the application is made if the judge is satisfied that the receipt of the
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notice by the debtor would likely further jeopardize the collection of the amount and, for the purposes of sections 97.22, 97.24, 97.26, 97.28, 97.31 and 97.32, the amount in respect of which an authorization is granted is deemed to be an amount payable under this Act. Affidavits
(3) Statements contained in an affidavit filed in the context of an application made under this section may be based on belief but must include the grounds for the belief.
Service of authorization
(4) An authorization must be served by the Minister on the debtor within 72 hours after it is granted, except if the judge orders the authorization to be served at some other time specified in the authorization, and, if a notice has not been sent to the debtor at or before the time of the application, the notice is to be served together with the authorization.
How service effected
(5) Service on a debtor must be effected by personal service or in accordance with the directions of a judge.
Application to judge for direction
(6) If service on a debtor cannot reasonably otherwise be effected as and when required under this section, the Minister may, as soon as is practicable, apply to a judge for further direction.
Review of authorization
(7) If a judge of a court has granted an authorization, the debtor may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.
Limitation period for review application
(8) An application under subsection (7) must be made (a) within thirty days after the day on which the authorization was served on the debtor in accordance with this section; or (b) within any further time that a judge may allow, on being satisfied that the application was made as soon as was practicable.
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Hearing in camera
(9) An application may, on request of the debtor, be heard in camera, if the debtor establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.
Disposition of application
(10) On an application, the judge is to determine the question summarily and may confirm, set aside or vary the authorization and make any other order that the judge considers appropriate.
Directions
(11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section in respect of the matter, a judge may give any direction in respect of the matter that, in the opinion of the judge, is appropriate.
No appeal from review order
(12) No appeal lies from an order of a judge made under subsection (10). Trustees, Receivers and Personal Representatives
Bankruptcies
97.36 (1) The following rules apply to a person who is a bankrupt: (a) the trustee in bankruptcy is the agent of the bankrupt and any act performed by the trustee in the administration of the estate of the bankrupt or in the carrying on of any business of the bankrupt is deemed to have been made by the trustee as agent of the bankrupt; (b) the estate of the bankrupt is not a trust or an estate; (c) the property and money of the bankrupt immediately before the day of the bankruptcy does not pass to or vest in the trustee in bankruptcy on the receiving order being made or the assignment in bankruptcy being filed but remains vested in the bankrupt; (d) the trustee in bankruptcy, and not the bankrupt, is liable for the payment of all amounts (other than amounts that relate solely to activities in which the bankrupt begins to engage on or after the day of the bankruptcy and to which the bankruptcy does not relate) that become payable by the bankrupt under this Act during the period
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beginning on the day immediately after the day the trustee became the trustee in bankruptcy of the bankrupt and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act, except that (i) the trustee is liable for the payment of amounts that became payable by the bankrupt after the day of the bankruptcy only to the extent of the property and money of the bankrupt in possession of the trustee available to satisfy the liability, and (ii) the trustee is not liable for the payment of any amount for which a receiver is liable under section 97.37, (e) if, on or after the day of bankruptcy, the bankrupt begins to engage in particular activities to which the bankruptcy does not relate, the particular activities are deemed to be separate from the activities of the person to which the bankruptcy relates as though the particular activities were activities of a separate person; (f) subject to paragraph (h), the trustee in bankruptcy shall perform all the obligations under this Act of the bankrupt in respect of the activities of the bankrupt to which the bankruptcy relates for the period beginning on the day immediately after the day of bankruptcy and ending on the day the discharge of the trustee is granted under the Bankruptcy and Insolvency Act; (g) subject to paragraph (h), if the bankrupt has not on or before the day of bankruptcy fulfilled all of their obligations under this Act in respect of any activities of the bankrupt on or before the day of bankruptcy, the trustee in bankruptcy shall fulfil those obligations, unless the Minister waives in writing the requirement for the trustee to do so; (h) if there is a receiver with authority in respect of a business, a property, affairs or assets of the bankrupt, the trustee in bankruptcy is not required to perform the obligations of the bankrupt under this Act to the extent that the receiver is required under
Doua section 97.37 to perform those obligations; and (i) the property and money held by the trustee in bankruptcy for the bankrupt on the day an order of absolute discharge of the bankrupt is granted under the Bankruptcy and Insolvency Act does not pass to the bankrupt on the order being granted but is held by and vested in the bankrupt continuously since the day it was acquired by the bankrupt or the trustee, as the case may be.
Definition of ‘‘bankrupt’’
(2) In this section, ‘‘bankrupt’’ has the same meaning as in subsection 2(1) of the Bankruptcy and Insolvency Act.
Definitions
97.37 (1) The definitions in this subsection apply in this section.
‘‘business’’ « entreprise » ‘‘relevant assets’’ « actif pertinent »
‘‘business’’ includes a part of a business. ‘‘relevant assets’’ of a receiver means (a) if the receiver’s authority relates to all the properties, businesses, affairs and assets of a person, all those properties, businesses, affairs and assets; and (b) if the receiver’s authority relates to only part of the properties, businesses, affairs or assets of a person, that part of the properties, businesses, affairs or assets, as the case may be.
Receivers
(2) The following rules apply to a receiver who on a particular day is vested with the authority to manage, operate, liquidate or wind up any business or property, or to manage and care for the affairs and assets, of a person: (a) the receiver is an agent of the person and any act performed by the receiver in respect of the relevant assets of the receiver is deemed to have been performed, as the case may be, by the receiver as agent on behalf of the person; (b) the receiver is not a trustee of the estate of the person or any part of the estate of the person; (c) if the relevant assets of the receiver are a part and not all of the person’s businesses,
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properties, affairs or assets, the relevant assets of the receiver are deemed to be, throughout the period during which the receiver is acting as receiver of the person, separate from the remainder of the businesses, properties, affairs or assets of the person as though the relevant assets were businesses, properties, affairs or assets, as the case may be, of a separate person; (d) the person and the receiver are jointly and severally or solidarily liable for the payment of all amounts that become payable by the person under this Act before or during the period during which the receiver is acting as receiver of the person to the extent that the amounts can reasonably be considered to relate to the relevant assets of the receiver or to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person at the time the amounts became payable except that (i) the receiver is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the person in possession or under the control and management of the receiver after (A) satisfying the claims of creditors whose claims ranked, on the particular day, in priority to the claim of the Crown in respect of the amounts, and (B) paying any amounts that the receiver is required to pay to a trustee in bankruptcy of the person, and (ii) the payment by the person or the receiver of an amount in respect of the liability discharges the joint liability to the extent of that amount; (e) the receiver shall perform all the obligations, in respect of the relevant assets of the receiver for the period during which the receiver is acting as receiver, that are required under this Act to be performed by the person, as if the relevant assets were the only properties, businesses, affairs and assets of the person; and
Doua (f) if the person has not on or before the particular day fulfilled their obligations under this Act before the period during which the receiver was acting as receiver, the receiver shall fulfil those obligations for that period that relate to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person during that period, unless the Minister waives in writing the requirement for the receiver to do so.
Definitions
97.38 (1) The definitions in this subsection apply in this section and in section 97.39.
‘‘trust’’ « fiducie »
‘‘trust’’ includes the estate of a deceased individual.
‘‘trustee’’ « fiduciaire »
‘‘trustee’’ includes the personal representative of a deceased individual, but does not include a receiver.
Trustee’s liability
(2) Subject to subsection (3), each trustee of a trust is liable to satisfy every obligation imposed on the trust under this Act, whether the obligation was imposed during or before the period during which the trustee acts as trustee of the trust, but the satisfaction of an obligation of a trust by one of the trustees of the trust discharges the liability of all other trustees of the trust to satisfy that obligation.
Joint and several or solidary liability
(3) A trustee of a trust is jointly and severally or solidarily liable with the trust and each of the other trustees, if any, for the payment of all amounts that become payable by the trust under this Act before or during the period during which the trustee acts as trustee of the trust except that (a) the trustee is liable for the payment of amounts that became payable before that period only to the extent of the property and money of the trust under the control of the trustee; and (b) the payment by the trust or the trustee of an amount in respect of the liability discharges the joint liability to the extent of that amount.
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Waiver
(4) The Minister may, in writing, waive the requirement for the personal representative of a deceased individual to fulfil the obligations under this Act in respect of the activities of the deceased individual that occurred on or before the day the individual died.
Activities of a trustee
(5) For the purposes of this Act, if a person acts as trustee of a trust, anything done by the person in the person’s capacity as trustee of the trust is deemed to have been done by the trust and not by the person.
Definition of ‘‘representative’’
97.39 (1) In this section, ‘‘representative’’ means a person, other than a trustee in bankruptcy or a receiver, who is administering, winding up, controlling or otherwise dealing with any property, business, commercial activity or estate of another person.
Certificates for receivers
(2) Every receiver shall, before distributing to any person any property or money under the control of the receiver in the receiver’s capacity as receiver, obtain a certificate from the Minister certifying that the following amounts have been paid or security for the payment of the amounts has been accepted by the Minister: (a) amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and (b) amounts that the receiver is or can reasonably be expected to become liable to pay in the receiver’s capacity as receiver.
Certificates for representatives
(3) Every representative shall, before distributing to any person any property or money under the control of the representative in the representative’s capacity as representative, obtain a certificate from the Minister certifying that the following amounts have been paid or that security for the payment of the amounts has been accepted by the Minister: (a) amounts that the person is or can reasonably be expected to become liable to pay under this Act at or before the time the distribution is made; and (b) amounts that the representative is or can reasonably be expected to become liable to
Doua pay in the representative’s capacity as representative.
Liability for failure to obtain certificate
(4) Any receiver or representative who distributes property or money without obtaining a certificate in respect of the amounts referred to in subsection (2) or (3) is personally liable for the payment of those amounts to the extent of the value of the property or money so distributed.
Amalgamations and Windings-up Amalgamations
97.4 (1) If two or more corporations (in this section each referred to as a ‘‘predecessor’’) are merged or amalgamated to form one corporation (in this section referred to as the ‘‘new corporation’’), the new corporation is, for the purposes of this Act, deemed to be a separate person from each of the predecessors and the same corporation as, and a continuation of, each predecessor.
Exception
(2) Subsection (1) does not apply to the merger or amalgamation of two or more corporations that is the result of the acquisition of property of one corporation by another corporation pursuant to the purchase of the property by the other corporation or as the result of the distribution of the property to the other corporation on the winding-up of the corporation.
Winding-up
97.41 For the purposes of this Act, if at any time a particular corporation is wound up and not less than 90% of the issued shares of each class of the capital stock of the particular corporation were, immediately before that time, owned by another corporation, the other corporation is deemed to be the same corporation as, and a continuation of, the particular corporation.
Partnerships Partnerships
97.42 (1) For the purposes of this Act, anything done by a person as a member of a partnership is deemed to have been done by the partnership in the course of the partnership’s activities and not to have been done by the person.
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(2) A partnership and each member or former member (each of which is referred to in this subsection as the ‘‘member’’) of the partnership (other than a member which is a limited partner and is not a general partner) are jointly and severally or solidarily liable for (a) the payment of all amounts that become payable by the partnership under this Act before or during the period during which the member is a member of the partnership or, if the member was a member of the partnership at the time the partnership was dissolved, after the dissolution of the partnership, except that (i) the member is liable for the payment of amounts that become payable before that period only to the extent of the property and money that is regarded as property or money of the partnership in accordance with the laws of the province governing the partnership, and (ii) the payment by the partnership or by any member of the partnership of an amount in respect of the liability discharges the joint liability to the extent of that amount; and (b) all other obligations under this Act that arose before or during the period for which the partnership is liable or, if the member was a member of the partnership at the time the partnership was dissolved, the obligations that arose upon or as a consequence of the dissolution.
Unincorporated Bodies Compliance by unincorporated bodies
97.43 If any amount is required to be paid or any other thing is required to be done under this Act by a person (in this section referred to as the ‘‘body’’) that is not an individual, corporation, partnership, trust or estate, the following persons are jointly and severally or solidarily liable to pay that amount or to comply with the requirement: (a) every member of the body holding office as president, chairperson, treasurer, secretary or similar officer of the body; (b) if there are no members referred to in paragraph (a), every member of any com2001
Doua mittee having management of the affairs of the body; and (c) if there are no members referred to in paragraph (a) or (b), every member of the body. The payment of the amount or the fullfilment of the requirement by a member is deemed to be compliance with the requirement.
Assessments, Objections and Appeals
Assessments Assessments — garnishments and non-arms length transfers
97.44 (1) The Minister may assess any amount that a person is liable to pay (a) under section 97.28, before the expiry of four years after the notice from the Minister requiring the payment is issued to the person; and (b) under section 97.29, at any time. The Minister may reassess the amount or make an additional assessment.
Interest
(2) If a person has been assessed an amount under subsection (1), the person shall pay, in addition to the amount, interest at the prescribed rate for the period beginning on the first day after the day the amount was assessed and ending on the day the amount is paid.
Exception
(3) Paragraph (1)(a) does not apply in respect of a reassessment of a person made (a) to give effect to a decision on an objection or appeal; or (b) with the consent in writing of the person to dispose of an appeal.
When assessment may be made
(4) An assessment under paragraph (1)(a) may be made at any time if the person to be assessed has (a) made a misrepresentation that is attributable to the person’s neglect, carelessness or wilful default; (b) committed fraud in supplying, or failing to supply, any information under this Act; or (c) filed a waiver under subsection (5) that is in effect at that time.
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Waiver
(5) Any person may, within the time otherwise limited by paragraph (1)(a) for assessing the person, waive the application of that paragraph by filing with the Minister a waiver in the prescribed form specifying the matter in respect of which the person waives the application of that paragraph.
Revoking waiver
(6) Any person who files a waiver may revoke the waiver on six months notice to the Minister by filing with the Minister a notice of revocation of the waiver in the prescribed form.
Liability not affected
97.45 (1) Liability under this Part to pay any amount is not affected by an incorrect or incomplete assessment or by the fact that no assessment has been made.
Assessment deemed valid
(2) Subject to being reassessed or vacated as a result of an objection or appeal under this Part, an assessment is valid and binding, despite any error, defect or omission in the assessment or in any proceeding under this Part relating to it.
Irregularities
(3) An appeal from an assessment must not be allowed by reason only of an irregularity, informality, omission or error on the part of any person in the observation of any directory provision of this Part.
Notice of assessment
97.46 After making an assessment, the Minister must send to the person assessed a notice of assessment.
Assessment before collection
97.47 (1) The Minister may not collect an amount under section 97.44 unless that amount has been assessed.
Payment of remainder
(2) An amount that is unpaid by a person and the subject of a notice of assessment is payable immediately by the person to the Receiver General.
2001 Security if objection or appeal
Doua (3) If a person objects to or appeals from an assessment under this Part, the Minister shall accept security, in an amount and a form satisfactory to the Minister, given by or on behalf of the person, for the payment of any amount that is in controversy.
Objections and Appeals Objection to assessment
97.48 (1) Any person who has been assessed under section 97.44 and who objects to the assessment may, within ninety days after the day notice of the assessment is sent to the person, file with the Minister a notice of objection in the prescribed form and manner setting out the reasons for the objection and all relevant facts.
Issues to be decided
(2) If a person objects to an assessment, the notice of objection must (a) reasonably describe each issue to be decided; (b) specify in respect of each issue the relief sought, expressed as the change in any amount that is relevant for the purposes of the assessment; and (c) provide the facts and reasons relied on by the person in respect of each issue.
Late compliance
(3) If a notice of objection filed by a person to whom subsection (2) applies does not include the information required by paragraph (2)(b) or (c) in respect of an issue to be decided that is described in the notice, the Minister may in writing request the person to provide the information, and those paragraphs are deemed to have been complied with in respect of the issue if, within 60 days after the request is made, the person submits the information in writing to the Minister.
Limitation on objections
(4) If a person has filed a notice of objection to an assessment and the Minister makes a particular assessment under subsection (8) pursuant to the notice of objection or in accordance with an order of a court vacating, varying or restoring an assessment or referring an assessment back to the Minister for reconsideration and reassessment, the person may object to the particular assessment in respect of an issue
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(a) only if the person complied with subsection (2) in the notice with respect to that issue; and (b) only with respect to the relief sought in respect of that issue as specified by the person in the notice. Application of subsection (4)
(5) If a person has filed a notice of objection to an assessment (in this subsection referred to as the ‘‘earlier assessment’’) and the Minister makes a particular assessment under subsection (8) pursuant to the notice of objection, subsection (4) does not limit the right of the person to object to the particular assessment in respect of an issue that was part of the particular assessment and not a part of the earlier assessment.
Limitation on objections
(6) Despite subsection (1), no objection may be made by a person in respect of an issue for which the right of objection has been waived in writing by the person.
Acceptance of objection
(7) The Minister may accept a notice of objection even if it was not filed in the prescribed manner.
Consideration of objection
(8) On receipt of a notice of objection, the Minister must, without delay, reconsider the assessment and vacate or confirm the assessment or make a reassessment.
Waiving reconsideration
(9) If, in a notice of objection, a person who wishes to appeal directly to the Tax Court of Canada requests the Minister not to reconsider the assessment objected to, the Minister may confirm the assessment without reconsideration.
Notice of decision
(10) After reconsidering or confirming an assessment, the Minister must send to the person objecting a notice of the Minister’s decision by registered or certified mail.
Appeal to the Tax Court of Canada
97.49 If a person files a notice of objection to an assessment and the Minister sends to the person a notice of a reassessment or an additional assessment, in respect of any matter dealt with in the notice of objection, the person may, within ninety days after the day the notice of reassessment or additional assessment was sent by the Minister, (a) appeal to the Tax Court of Canada; or
Doua (b) if an appeal has already been instituted in respect of the matter, amend the appeal by joining to it an appeal in respect of the reassessment or additional assessment in any manner and on any terms that the Court directs.
Extension of time by Minister
97.5 (1) If no objection to an assessment is filed under section 97.48, within the time limit otherwise provided, a person may make an application to the Minister to extend the time for filing a notice of objection and the Minister may grant the application.
Contents of application
(2) The application must set out the reasons why the notice of objection was not filed within the time otherwise limited by this Part for doing so.
How application made
(3) The application must be made by delivering or mailing the application and a copy of the notice of objection to the Chief of Appeals in a Tax Services Office or Taxation Centre of the Agency.
Exception
(4) The Minister may accept the application even if it was not delivered or mailed to the person or place specified in subsection (3).
Duties of Minister
(5) On receipt of the application, the Minister must, without delay, consider it, and notify the person of his or her decision by registered or certified mail.
Date of objection if application granted
(6) If the application is granted, the notice of objection is deemed to have been filed on the day the decision of the Minister is mailed to the person.
When order to be made
(7) No application may be granted under this section unless (a) the application is made within one year after the expiration of the time otherwise limited by this Part for objecting; and (b) the person demonstrates that (i) within the time otherwise limited by this Part for objecting, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to object to the assessment, (ii) it would be just and equitable to grant the application, and
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Custo (iii) the application was made as soon as circumstances permitted.
Extension of time by Tax Court of Canada
97.51 (1) A person who has made an application under section 97.5 may apply to the Tax Court of Canada to have the application granted after either (a) the Minister has refused the application; or (b) ninety days have elapsed after service of the application and the Minister has not notified the person of the Minister’s decision. If paragraph (a) applies, the application under this subsection must be made within thirty days after the application is refused.
How application made
(2) The application must be made by filing in the Registry of the Tax Court of Canada, in accordance with the provisions of the Tax Court of Canada Act, three copies of the documents filed under subsection 97.5(3).
Copy to the Commissioner
(3) After receiving the application, the Tax Court of Canada must send a copy of it to the office of the Commissioner.
Powers of Court
(4) The Tax Court of Canada may dispose of the application by dismissing or granting it. If the Court grants the application, it may impose any terms that it considers just or order that the notice of objection be deemed to be a valid objection as of the date of the order.
When application to be granted
(5) No application may be granted under this section unless (a) the application was made under subsection 97.5(1) within one year after the expiration of the time set out in this Part for objecting; and (b) the person demonstrates that (i) within the time otherwise limited by this Part for objecting, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to object to the assessment, (ii) it would be just and equitable to grant the application, and
Doua (iii) the application was made under subsection 97.5(1) as soon as circumstances permitted.
Extension of time to appeal
97.52 (1) If no appeal to the Tax Court of Canada has been taken under section 97.53 within the time set out in that section, a person may make an application to the Court for an order extending the time within which an appeal may be made, and the Court may make an order extending the time for appealing and may impose any terms that it considers just.
Contents of application
(2) The application must set out the reasons why the appeal was not taken on time.
How application made
(3) The application must be made by filing in the Registry of the Tax Court of Canada, in accordance with the Tax Court of Canada Act, three copies of the application together with three copies of the notice of appeal.
Copy to Deputy Attorney General of Canada
(4) After receiving the application, the Tax Court of Canada must send a copy of the application to the office of the Deputy Attorney General of Canada.
When order to be made
(5) No order may be made under this section unless (a) the application was made within one year after the expiration of the time otherwise limited by this Part for appealing; and (b) the person demonstrates that (i) within the time otherwise limited by this Part for appealing, the person was unable to act or to give a mandate to act in the person’s name, or the person had a bona fide intention to appeal, (ii) it would be just and equitable to grant the application, (iii) the application was made as soon as circumstances permitted, and (iv) there are reasonable grounds for appealing from an assessment.
Appeal
97.53 A person who has filed a notice of objection to an assessment under this Part may appeal to the Tax Court of Canada to have the assessment vacated or a reassessment made after either
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(a) the Minister has confirmed the assessment or has reassessed; or (b) 180 days have elapsed after the filing of the notice of objection and the Minister has not notified the person that the Minister has vacated or confirmed the assessment or has reassessed. If paragraph (a) applies, an application to appeal under this section must be made within ninety days after the day notice is sent to the person under subsection 97.48(10).
Limitation on appeals to the Tax Court of Canada
97.54 (1) Despite section 97.49 and 97.53, a person may appeal to the Tax Court of Canada only with respect to (a) an issue in respect of which the person has complied with subsection 97.48(2) in the notice of objection; or (b) an issue described in subsection 97.48(5) if the person was not required to file a notice of objection to the assessment that gave rise to the issue. If paragraph (a) applies, the person may appeal only with respect to the relief sought in respect of the issue specified by the person in the notice.
No right of appeal
(2) Despite sections 97.49 and 97.53, a person may not appeal to the Tax Court of Canada to have an assessment vacated or varied in respect of an issue for which the right of objection or appeal has been waived in writing by the person.
Institution of appeal
97.55 An appeal to the Tax Court of Canada under this Part, other than one referred to in section 18.3001 of the Tax Court of Canada Act, must be taken in the manner set out in that Act or in any rules made under that Act.
Notice to Commissioner
97.56 (1) If an appeal referred to in section 18.3001 of the Tax Court of Canada Act is made to the Tax Court of Canada, the Court must immediately send a copy of the notice of appeal to the office of the Commissioner.
Doua
Notice, etc., forwarded to Tax Court of Canada
(2) Immediately after receiving notice of an appeal, the Commissioner must forward to the Tax Court of Canada and the appellant copies of all applications, notices of assessment, notices of objection and notifications, if any, that are relevant to the appeal. Once forwarded, the copies form part of the record before the Tax Court of Canada and are evidence of the existence of the documents and of the making of the statements contained in them.
Disposition of appeal
97.57 The Tax Court of Canada may dispose of an appeal from an assessment by dismissing or allowing it. If the appeal is allowed, the Court may vacate the assessment or refer it back to the Minister for reconsideration and reassessment.
References to Tax Court of Canada
97.58 (1) If the Minister and another person agree in writing that a question arising under this Part, in respect of any assessment or proposed assessment, should be determined by the Tax Court of Canada, that question shall be determined by that Court.
Time during consideration not to count
(2) The time between the day proceedings are taken in the Tax Court of Canada to have a question determined and the day the question is finally determined must not be counted in the calculation of (a) the four-year period referred to in paragraph 97.44(1)(a); (b) the time for service of a notice of objection to an assessment under section 97.48; or (c) the time within which an appeal may be instituted under section 97.53. (2) Sections 97.21 to 97.58 of the Act, as enacted by subsection (1), apply to amounts that are payable after this Act is assented to, regardless of when the amounts became payable. 59. (1) Paragraph 99(1)(a) of the French version of the Act is replaced by the following: a) tant qu’il n’y a pas eu dédouanement, examiner toutes marchandises importées et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables;
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(2) Paragraph 99(1)(b) of the Act is replaced by the following: (b) at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts; (3) Paragraph 99(1)(c) of the French version of the Act is replaced by the following: c) tant qu’il n’y a pas eu exportation, examiner toutes marchandises déclarées conformément à l’article 95 et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi qu’en prélever des échantillons en quantités raisonnables; (4) Subsection 99(1) of the Act is amended by adding the following after paragraph (c): (c.1) at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament, and take samples of anything contained in such mail in reasonable amounts; 1988, c. 65, s. 79
(5) Paragraphs 99(1)(d) to (f) of the French version of the Act are replaced by the following: d) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur de classement tarifaire, de valeur en douane ou d’indication quantitative dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32 ou pour lesquelles est demandé un remboursement ou un drawback en vertu de la présente loi ou du Tarif des douanes,
Doua ainsi qu’en prélever des échantillons en quantités raisonnables; d.1) examiner les marchandises au sujet desquelles il soupçonne, pour des motifs raisonnables, qu’il y a eu une erreur sur leur origine dans la déclaration en détail ou la déclaration provisoire dont elles ont fait l’objet conformément à l’article 32, ainsi qu’en prélever des échantillons en quantités raisonnables; e) examiner les marchandises dont il soupçonne, pour des motifs raisonnables, qu’elles ont donné ou pourraient donner lieu à une infraction soit à la présente loi, soit à toute autre loi fédérale à l’égard de laquelle il a des fonctions d’exécution ou de contrôle d’application, soit aux règlements d’application de ces lois, ainsi qu’en ouvrir ou faire ouvrir tous colis ou contenants; f) s’il soupçonne, pour des motifs raisonnables, qu’un moyen de transport ou que les marchandises se trouvant à son bord ont donné ou pourraient donner lieu à une infraction visée à l’alinéa e), immobiliser le moyen de transport, monter à son bord et le fouiller, examiner les marchandises et en ouvrir ou faire ouvrir tous colis ou contenants, ainsi que faire conduire le moyen de transport à un bureau de douane ou à tout autre lieu indiqué pour ces opérations. (6) Subsections 99(2) and (3) of the Act are replaced by the following:
Exception for mail
(2) An officer may not open or cause to be opened any mail that is being imported or exported and that weighs thirty grams or less unless the person to whom it is addressed consents or the person who sent it has completed and attached to the mail a label in accordance with article RE 601 of the Letter Post Regulations of the Universal Postal Convention.
Exception for mail
(3) An officer may cause imported mail, or mail that is being exported, that weighs thirty grams or less to be opened in his or her presence by the person to whom it is addressed, the person who sent it or a person authorized by either of those persons. 60. The Act is amended by adding the following after section 99:
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Power to stop
99.1 (1) If an officer has reasonable grounds to suspect that a person has entered Canada without presenting himself or herself in accordance with subsection 11(1), the officer may stop that person within a reasonable time after the person has entered Canada.
Powers of officer
(2) An officer who stops a person referred to in subsection (1) may (a) question the person; and (b) in respect of goods imported by that person, examine them, cause to be opened any package or container of the imported goods and take samples of them in reasonable amounts.
Search of persons
99.2 (1) An officer may search any person leaving a customs controlled area, other than a prescribed person or a member of a prescribed class of persons who may be searched under subsection (2), if the officer suspects on reasonable grounds that the person has secreted on or about their person anything in respect of which this Act or the regulations have been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or the regulations or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.
Search of prescribed persons
(2) An officer may, in accordance with the regulations, search any prescribed person or member of a prescribed class of persons leaving a customs controlled area.
Person taken before senior officer
(3) An officer who is about to search a person under this section shall, on the request of the person, immediately take that person before the senior officer at the place where the search is to be conducted.
Review by senior officer
(4) A senior officer before whom a person is taken by an officer shall, if the senior officer agrees with the officer that under subsection (1) or (2), as the case may be, the person may be searched, direct that the person be searched or, if the senior officer does not so agree, discharge the person.
Doua
Limitations on searches
(5) No person may be searched by an officer who is not of the same sex and, if there is no officer of the same sex at the place at which the search is to be conducted, an officer may authorize any suitable person of the same sex to conduct the search.
Non-intrusive examination of goods
99.3 (1) An officer may, in accordance with the regulations and without individualized suspicion, conduct a non-intrusive examination of goods in the custody or possession of a person leaving a customs controlled area.
Other examination of goods
(2) An officer may examine any goods in the custody or possession of a person leaving a customs controlled area and open or cause to be opened any baggage, package or container and take samples of the goods in reasonable amounts, if the officer suspects on reasonable grounds that this Act or any other Act of Parliament administered or enforced by the officer or any regulations made under it have been or might be contravened in respect of the goods.
Examination of abandoned goods
(3) An officer may, at any time, open or cause to be opened, inspect and detain any baggage, package or container found abandoned in a customs controlled area.
Regulations
99.4 The Governor in Council may make regulations (a) prescribing persons or classes of persons who may be searched under subsection 99.2(2); (b) respecting, for the purposes of subsection 99.2(2), the circumstances and manner in which searches are to be conducted and the types of searches that may be conducted; and (c) respecting, for the purposes of subsection 99.3(1), the manner in which examinations are to be conducted and the machines, instruments, devices or other apparatuses or classes of machines, instruments, devices or apparatuses that may be used to conduct examinations.
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1992, c. 28, s. 25(1); 1995, c. 41, ss. 27, 28; 1999, c. 17, s. 124
61. Sections 107 and 108 of the Act are replaced by the following:
Definitions
107. (1) The definitions in this subsection apply in this section.
‘‘customs information’’ « renseignement douanier »
‘‘customs information’’ means information of any kind and in any form that (a) relates to one or more persons and is obtained by or on behalf of the Minister for the purposes of this Act or the Customs Tariff; or (b) is prepared from information described in paragraph (a).
‘‘official’’ « fonctionnaire »
‘‘official’’ means a person who (a) is or was employed in the service of Her Majesty in right of Canada or of a province; (b) occupies or occupied a position of responsibility in the service of Her Majesty in right of Canada or of a province; or (c) is or was engaged by or on behalf of Her Majesty in right of Canada or of a province.
‘‘specified person’’ « personne déterminée »
‘‘specified person’’ means a person who is employed in the service of, who occupies a position of responsibility in the service of, or who is engaged by or on behalf of, Her Majesty in right of Canada to carry out the provisions of this Act, the Customs Tariff or the Special Import Measures Act. It includes a person who was formerly so employed or engaged or who formerly occupied such a position.
Prohibition — provision or use of customs information
(2) Except as authorized under this section, no person shall (a) knowingly provide, or allow to be provided, to any person any customs information;
Doua (b) knowingly allow any person to have access to any customs information; or (c) knowingly use customs information.
Authorized use of customs information by official
(3) An official may use customs information for the purposes of administering or enforcing this Act, the Customs Tariff, the Special Imports Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act or for any purpose set out in subsection (4), (5) or (7).
Authorized provision of information
(4) An official may provide, allow to be provided or provide access to customs information if the information (a) will be used solely in or to prepare for criminal proceedings commenced under an Act of Parliament; (b) will be used solely in or to prepare for any legal proceedings relating to the administration or enforcement of an international agreement relating to trade, this Act, the Customs Tariff, the Special Import Measures Act, any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty or Part 2 of the Proceeds of Crime (Money Laundering) Act, before (i) a court of record, including a court of record in a jurisdiction outside Canada, (ii) an international organization, or (iii) a dispute settlement panel or an appellate body created under an international agreement relating to trade; (c) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Canada Pension Plan, the Customs Tariff, the Employment Insurance Act, the Excise Act, the Excise Tax Act, the Export and Import Permits Act, the Income Tax Act, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act by an official of the Agency; (d) may reasonably be regarded as necessary solely for a purpose relating to the administration or enforcement of this Act, the Excise Act or the Export and Import
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Permits Act by a member of the Royal Canadian Mounted Police; (e) may reasonably be regarded as necessary solely for a purpose relating to the life, health or safety of an individual or to the environment in Canada or any other country; (f) will be used solely for a purpose relating to the supervision, evaluation or discipline of a specified person by Her Majesty in right of Canada in respect of a period during which the person was employed or engaged by, or occupied a position of responsibility in the service of, Her Majesty in right of Canada to administer or enforce this Act, the Customs Tariff, the Special Import Measures Act or Part 2 of the Proceeds of Crime (Money Laundering) Act to the extent that the information is relevant for that purpose; (g) is reasonably regarded by the official to be information that does not directly or indirectly identify any person; or (h) is reasonably regarded by the official to be information relating to the national security or defence of Canada.
Provision of information to certain persons
(5) An official may provide, allow to be provided or provide access to customs information to the following persons: (a) a peace officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of the legislature of a province subject to prosecution by indict2001
Doua ment, the Attorney General of Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the alleged offence, solely for those purposes; (b) a person that is otherwise legally entitled to the information by reason of an Act of Parliament, solely for the purposes for which that person is entitled to the information; (c) an official solely for the purposes of developing, administering or enforcing an Act of Parliament or developing or implementing a policy related to an Act of Parliament if the information relates to (i) goods, the importation, exportation or in-transit movement of which is or may be prohibited, controlled or regulated under that Act, (ii) a person who that official has reasonable grounds to believe may have committed an offence under that Act in respect of goods imported or exported by that person, or (iii) goods that may be evidence of an offence under that Act; (d) an official, solely for the purpose of administering or enforcing an Act of the legislature of a province, if the information relates to goods that are subject to import, in-transit or export controls or taxation upon importation into the province under that Act; (e) an official of a participating province, as defined in subsection 123(1) of the Excise Tax Act, or an official of the province of Quebec, if the information relates to the administration or enforcement of Part IX of that Act in that province, solely for that purpose; (f) an official solely for the purpose of the formulation or evaluation of fiscal or trade policy or the development of a remission order under an Act of Parliament;
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(g) an official solely for the purpose of setting off, against any sum of money that may be due to or payable by Her Majesty in right of Canada, a debt due to (i) Her Majesty in right of Canada, or (ii) Her Majesty in right of a province on account of taxes payable to the province if an agreement exists between Canada and the province under which Canada is authorized to collect taxes on behalf of the province; (h) counsel, as defined in subsection 84(4) of the Special Import Measures Act, in accordance with subsection 84(3) of that Act and subject to subsection 84(3.1) of that Act, except that the word ‘‘information’’ in those subsections is to be read as a reference to the words ‘‘customs information’’; (i) an official of the Department of Human Resources Development solely for the purpose of administering or enforcing the Employment Insurance Act, if the information relates to the movement of people into and out of Canada; (j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration Act, if the information relates to the movement of people into and out of Canada; (k) an official of the Financial Transactions and Reports Analysis Centre of Canada solely for the purpose of administering or enforcing the Proceeds of Crime (Money Laundering) Act; (l) a person solely for the purpose of determining any entitlement, liability or obligation of the person under this Act or the Customs Tariff including the person’s entitlement to any refund, relief, drawback or abatement under those Acts; (m) any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada; (n) any person, if the information is required to comply with a subpoena or
Doua warrant issued or an order made by a court of record outside of Canada, solely for the purposes of criminal proceedings; and (o) prescribed persons or classes of persons, in prescribed circumstances for prescribed purposes, solely for those purposes.
Provision of customs information by Minister
(6) The Minister may provide, allow to be provided or provide access to customs information to any person if (a) the information may not otherwise be provided, allowed to be provided or provided access to under this section and, in the Minister’s opinion, the public interest in providing the information clearly outweighs any invasion of privacy, or any material financial loss or prejudice to the competitive position of the person to whom the information relates, that could result from the provision of the information; or (b) in the Minister’s opinion, providing the information would clearly benefit the individual to whom the information relates.
Notification of Privacy Commissioner
(7) If customs information provided under subsection (6) is personal information within the meaning of section 3 of the Privacy Act, the Minister must notify, in writing, the Privacy Commissioner appointed under section 53 of that Act of any provision of personal information under that subsection before its provision if reasonably practicable or, in any other case, without delay after the provision.
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The Privacy Commissioner may, if the Privacy Commissioner considers it appropriate, notify the individual to whom the information relates of the provision of the information. Providing customs information to other governments
(8) Customs information may be provided by any person to an official or any other person employed by or representing the government of a foreign state, an international organization established by the governments of states, a community of states, or an institution of any such government or organization, in accordance with an international convention, agreement or other written arrangement between the Government of Canada or an institution of the Government of Canada and the government of the foreign state, the organization, the community or the institution, solely for the purposes set out in that arrangement.
Disclosure of customs information to certain persons
(9) An official may provide, allow to be provided or provide access to customs information relating to a particular person (a) to that particular person; (b) to a person authorized to transact business under this Act or the Customs Tariff as that particular person’s agent, at the request of the particular person and on receipt of such fee, if any, as is prescribed; and (c) with the consent of that particular person, to any other person.
Evidence
(10) Despite any other Act of Parliament or other law, no official may be required, in connection with any legal proceedings, to give or produce evidence relating to any customs information.
Measures to protect customs information
(11) The person presiding at a legal proceeding relating to the supervision, evaluation or discipline of a specified person may order any measure that is necessary to ensure that customs information is not used or provided to any person for any purpose not relating to that proceeding, including
Doua (a) holding a hearing in camera; (b) banning the publication of the information; (c) concealing the identity of the person to whom the information relates; and (d) sealing the records of the proceeding.
Appeal from order to disclose customs information
(12) An order or direction that is made in the course of or in connection with any legal proceeding and that requires an official to give or produce evidence relating to customs information may, by notice served on all interested parties, be immediately appealed by the Minister or by the person against whom the order or direction is made (a) to the court of appeal of the province in which the order or direction is made, in the case of an order or direction made by a court or other tribunal established under the laws of the province, whether or not that court or tribunal is exercising a jurisdiction conferred by the laws of Canada; or (b) to the Federal Court of Appeal, in the case of an order or direction made by a court or other tribunal established under the laws of Canada.
Disposition of appeal
(13) The court to which the appeal is taken may allow the appeal and quash the order or direction appealed from or may dismiss the appeal. The rules of practice and procedure from time to time governing appeals to the courts apply, with any modifications that the circumstances require, in respect of the appeal.
Stay
(14) An appeal stays the operation of the order or direction appealed from until judgment in the appeal is pronounced.
Regulations
(15) The Governor in Council may make regulations prescribing the circumstances in which fees may be charged for providing or providing access to customs information or making or certifying copies of information and the amount of any such fees.
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Passenger information
107.1 (1) The Minister may, under prescribed circumstances and conditions, require any prescribed person or prescribed class of persons to provide, or provide access to, prescribed information about any person on board a conveyance in advance of the arrival of the conveyance in Canada or within a reasonable time after that arrival.
Disclosure
(2) Any person who is required under subsection (1) to provide, or provide access to, prescribed information shall do so despite any restriction under the Aeronautics Act on the disclosure of such information.
1995, c. 41, s. 29; 1997, c. 36, ss. 182, 183
62. Sections 109.1 and 109.11 of the Act are replaced by the following:
Designated provisions
109.1 (1) Every person who fails to comply with any provision of an Act or a regulation designated by the regulations made under subsection (3) is liable to a penalty of not more than twenty-five thousand dollars, as the Minister may direct.
Failure to comply
(2) Every person who fails to comply with any term or condition of a licence issued under this Act or the Customs Tariff or any obligation undertaken under section 4.1 is liable to a penalty of not more than twenty-five thousand dollars, as the Minister may direct.
Designation by regulation
(3) The Governor in Council may make regulations (a) designating any provisions of this Act, the Customs Tariff or the Special Import Measures Act or of any regulation made under any of those Acts; and (b) establishing short-form descriptions of the provisions designated under paragraph (a) and providing for the use of those descriptions.
1993, c. 25, s. 80; 1995, c. 41, s. 30
63. Section 109.3 of the Act is replaced by the following:
Assessment
109.3 (1) A penalty to which a person is liable under section 109.1 or 109.2 may be assessed by an officer and, if an assessment is made, an officer shall serve on the person a
Doua written notice of that assessment by sending it by registered or certified mail or delivering it to the person.
Limitation on assessment
(2) A person shall not be assessed penalties under both sections 109.1 and 109.2 in respect of the same contravention of this Act, the Customs Tariff or the Special Import Measures Act or the regulations made under those Acts.
Penalty in addition to other sanction
(3) An assessment under subsection (1) may be made in addition to a seizure under this Act or a demand for payment under section 124, in respect of the same contravention of this Act or the regulations.
Sufficiency of short-form description
(4) The use on a notice of assessment of a short-form description established under paragraph 109.1(3)(b) or of a description that deviates from that description without affecting its substance is sufficient for all purposes to describe the contravention.
1993, c. 25, s. 80
64. Section 109.5 of the Act is replaced by the following:
Interest on penalties
109.5 (1) Subject to subsection (2), a person on whom a notice of assessment of a penalty has been served under section 109.3 shall pay, in addition to the penalty, interest at the prescribed rate for the period beginning on the day after the notice was served on the person and ending on the day the penalty has been paid in full, calculated on the outstanding balance of the penalty.
Exception
(2) Interest is not payable if the penalty is paid in full by the person within thirty days after the date of the notice of assessment. 65. Section 115 of the Act is replaced by the following:
Copies of records
115. (1) If any record is examined or seized under this Act, the Minister, or the officer by whom it is examined or seized, may make or cause to be made one or more copies of it, and a copy purporting to be certified by the Minister or a person authorized by the Minister is admissible in evidence and has the same probative force as the original would have if it had been proved in the ordinary way.
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(2) No record that has been seized as evidence under this Act shall be detained for a period of more than three months unless, before the expiration of that period, (a) the person from whom it was seized agrees to its further detention for a specified period; (b) a justice of the peace is satisfied on application that, having regard to the circumstances, its further detention for a specified period is warranted and he or she so orders; or (c) judicial proceedings are instituted in which the seized record may be required. 66. Section 123 of the Act is replaced by the following:
Review of forfeiture
123. The forfeiture of goods or conveyances seized under this Act or any money or security held as forfeit in lieu of such goods or conveyances is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 127.1 and 129.
67. (1) Section 124 of the Act is amended by adding the following after subsection (4):
Value of exported goods
(4.1) Sections 117 and 119 and subsection (2) apply to a contravention of this Act or the regulations in respect of goods that have been or are about to be exported, except that the references to ‘‘value for duty of the goods’’ in those provisions are to be read as references to ‘‘value of the goods’’.
Value of goods
(4.2) For the purposes of subsection (4.1), the expression ‘‘value of the goods’’ means the total of all payments made or to be made by the purchaser of the goods to or for the benefit of the vendor.
Value of goods set by Minister
(4.3) If the value of the goods cannot be determined under subsection (4.2), the Minister may determine that value.
Doua (2) Section 124 of the Act is amended by adding the following after subsection (5):
Interest
(6) A person on whom a notice of ascertained forfeiture has been served shall pay, in addition to the amount set out in the notice, interest at the prescribed rate for the period beginning on the day after the notice was served and ending on the day the amount is paid in full, calculated on the outstanding balance. However, interest is not payable if the amount is paid in full within thirty days after the date of the notice.
1993, c. 25, s. 81
68. Section 127 of the Act is replaced by the following:
Review of ascertained forfeiture or penalty assessment
127. The debt due to Her Majesty as a result of a notice served under section 109.3 or a demand under section 124 is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 127.1 and 129.
Corrective measures
127.1 (1) The Minister, or any officer designated by the Minister for the purposes of this section, may cancel a seizure made under section 110, cancel or reduce a penalty assessed under section 109.3 or an amount demanded under section 124 or refund an amount received under any of sections 117 to 119 within thirty days after the seizure, assessment or demand, if (a) the Minister is satisfied that there was no contravention; or (b) there was a contravention but the Minister considers that there was an error with respect to the amount assessed, collected, demanded or taken as security and that the amount should be reduced.
Interest
(2) If an amount is returned to a person under paragraph (1)(a), the person shall be given interest on that amount at the prescribed rate for the period beginning on the day after the amount was originally paid by that person and ending on the day it was returned.
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1993, c. 25, s. 82
69. Subsection 129(1) of the Act is replaced by the following:
Request for Minister’s decision
129. (1) The following persons may, within ninety days after the date of a seizure or the service of a notice, request a decision of the Minister under section 131 by giving notice in writing, or by any other means satisfactory to the Minister, to the officer who seized the goods or conveyance or served the notice or caused it to be served, or to an officer at the customs office closest to the place where the seizure took place or closest to the place from where the notice was served: (a) any person from whom goods or a conveyance is seized under this Act; (b) any person who owns goods or a conveyance that is seized under this Act; (c) any person from whom money or security is received pursuant to section 117, 118 or 119 in respect of goods or a conveyance seized under this Act; or (d) any person on whom a notice is served under section 109.3 or 124. 70. The Act is amended by adding the following after section 129:
Extension of time by Minister
129.1 (1) If no request for a decision of the Minister is made under section 129 within the time provided in that section, a person may apply in writing to the Minister for an extension of the time for making the request and the Minister may grant the application.
Reasons
(2) An application must set out the reasons why the request was not made on time.
Burden of proof of application
(3) The burden of proof that an application has been made under subsection (1) lies on the person claiming to have made it.
Notice of decision
(4) The Minister must, without delay after making a decision in respect of an application, notify the applicant in writing of the decision.
Conditions for granting application
(5) The application may not be granted unless (a) it is made within one year after the expiration of the time provided in section 129; and
Doua (b) the applicant demonstrates that (i) within the time provided in section 129, the applicant was unable to request a decision or to instruct another person to request a decision on the applicant’s behalf or the applicant had a bona fide intention to request a decision, (ii) it would be just and equitable to grant the application, and (iii) the application was made as soon as circumstances permitted.
Extension of time by Federal Court
129.2 (1) A person may apply to the Federal Court to have their application under section 129.1 granted if (a) the Minister dismisses that application; or (b) ninety days have expired after the application was made and the Minister has not notified the person of a decision made in respect of it. If paragraph (a) applies, the application under this subsection must be made within ninety days after the application is dismissed.
Application process
(2) The application must be made by filing a copy of the application made under section 129.1, and any notice given in respect of it, with the Minister and the Administrator of the Court.
Powers of the Court
(3) The Court may grant or dismiss the application and, if it grants the application, may impose any terms that it considers just or order that the request under section 129 be deemed to have been made on the date the order was made.
Conditions for granting application
(4) The application may not be granted unless (a) the application under subsection 129.1(1) was made within one year after the expiration of the time provided in section 129; and (b) the person making the application demonstrates that
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Custo (i) within the time provided in section 129 for making a request for a decision of the Minister, the person was unable to act or to instruct another person to act in the person’s name or had a bona fide intention to request a decision, (ii) it would be just and equitable to grant the application, and (iii) the application was made as soon as circumstances permitted.
71. Subsection 130(3) of the Act is replaced by the following: Evidence
(3) Evidence may be given under subsection (2) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.
1993, c. 25, s. 84
72. (1) Subsection 131(1) of the Act is amended by adding the word ‘‘or’’ at the end of paragraph (b) and by replacing paragraphs (c) and (d) with the following: (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply. (2) Section 131 of the Act is amended by adding the following after subsection (1):
Exception
(1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter.
1993, c. 25, s. 85
73. Paragraph 132(1)(b) of the Act is replaced by the following: (b) where, as a result of a decision made by the Minister under paragraph 131(1)(c), the Minister decides that a penalty that was assessed under section 109.3 is not justified by the facts or the law, the Minister shall forthwith cancel the assessment of the penalty and authorize the return of any money paid on account of the penalty and
Doua any interest that was paid under section 109.5 in respect of the penalty.
1993, c. 25, s. 86(2)
74. (1) Subsection 133(1.1) of the Act is replaced by the following:
Powers of Minister
(1.1) If the Minister decides under paragraph 131(1)(c) that the person failed to comply, the Minister may, subject to any terms and conditions that the Minister may determine, (a) remit any portion of the penalty assessed under section 109.3; or (b) demand that an additional amount be paid. If an additional amount is demanded, the total of the amount assessed and the additional amount may not exceed the maximum penalty that could be assessed under section 109.3.
1993, c. 25, s. 86(3)
(2) Subsection 133(7) of the Act is replaced by the following:
Interest
(7) If an amount of money is demanded under paragraph (1)(c) or (1.1)(b), the person to whom the demand is made shall pay the amount demanded together with interest at the prescribed rate for the period beginning on the day after the notice is served under subsection 131(2) and ending on the day the amount has been paid in full, calculated on the outstanding balance of the amount. However, interest is not payable if the amount demanded is paid in full within thirty days after the notice is served.
1992, c. 1, s. 62, c. 51, s. 45; 1998, c. 30, par. 14(e); 1999, c. 3, s. 60, c. 17, par. 127(l)
75. Sections 138 and 139 of the Act are replaced by the following:
Third party claims
138. (1) If goods or a conveyance is seized as forfeit under this Act or if a conveyance is detained under subsection 97.25(2), any person, other than the person in whose possession it was when seized or detained, who claims an interest in it as owner, mortgagee, hypothecary creditor, lien-holder or holder of any like interest may, within ninety days after the seizure or detention, apply for a decision by the Minister under section 139.
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Application procedure
(2) A person may apply for a decision by giving notice in writing to the officer who seized or detained the goods or conveyance or to an officer at the customs office closest to the place where the seizure or detention took place.
Burden of proof of application
(3) The burden of proof that an application has been made under subsection (1) lies on the person claiming to have made it.
Provision of evidence
(4) A person who applies under subsection (1) must provide evidence that relates to their interest in the seized or detained goods or conveyance and any other evidence requested by the Minister in respect of that interest.
Manner of giving evidence
(5) Evidence may be given under subsection (4) by affidavit made before any person authorized by an Act of Parliament or of the legislature of a province to administer oaths or take affidavits.
Late applications
(6) The Minister may accept an application made within one year after the expiration of the ninety days referred to in subsection (1) by a person who has not claimed an interest in the seized or detained goods or conveyance within those ninety days.
Conditions for late applications
(7) When making an application under subsection (6), the person must demonstrate to the Minister that (a) within the time provided in subsection (1) for making an application the person (i) was unable to act or to instruct another person to act in the person’s name, or (ii) had a bona fide intention to apply under that subsection; (b) it would be just and equitable to grant the application; and (c) the application was made as soon as circumstances permitted.
Decision of Minister
Doua
139. The Minister must decide an application made under section 138 without delay and, if the Minister is satisfied that the following conditions are met, must make a determination that the applicant’s interest in the goods or conveyance is not affected by the seizure or detention and as to the nature and extent of the applicant’s interest at the time of the contravention or use: (a) the applicant acquired the interest in good faith before the contravention or use; (b) the applicant is innocent of any complicity or collusion in the contravention or use; and (c) the applicant exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver.
Order
Meaning of ‘‘court’’
139.1 (1) A person who makes an application under section 138 may, within ninety days after being notified of the decision, apply for an order under this section by giving notice in writing to the court. (2) In this section, ‘‘court’’ means (a) in the Province of Ontario, the Superior Court of Justice; (b) in the Province of Quebec, the Superior Court; (c) in the Provinces of Nova Scotia and British Columbia, the Yukon Territory and the Northwest Territories, the Supreme Court; (d) in the Provinces of New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench; (e) in the Provinces of Prince Edward Island and Newfoundland, the Trial Division of the Supreme Court; and
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(f) in Nunavut, the Nunavut Court of Justice.
Date of hearing
(3) A judge of the court must fix a day, not less than thirty days after the application has been made, for the hearing of the application.
Notice to Minister
(4) The applicant, no later than fifteen days before the day fixed for the hearing, must serve notice of the application and of the hearing on the Minister, or an officer designated by the Minister for the purposes of this section.
Service by registered mail
(5) Service of the notice is sufficient if it is sent by registered mail addressed to the Minister.
Order
(6) The applicant is entitled to an order declaring that the applicant’s interest is not affected by the seizure or detention and declaring the nature and extent of the applicant’s interest at the time of the contravention or use if, on the hearing of the application, the court is satisfied that the applicant (a) acquired the interest in good faith prior to the contravention or use; (b) is innocent of any complicity or collusion in the contravention or use; and (c) exercised all reasonable care in respect of any person permitted to obtain possession of the goods or conveyance in order to satisfy the applicant that it was not likely to be used in a contravention or, if the applicant is a mortgagee, hypothecary creditor or lien-holder, that the applicant exercised that care in relation to the mortgagor, hypothecary debtor or lien-giver. 76. Subsection 140(1) of the Act is replaced by the following:
Appeal
140. (1) A person who makes an application under section 139.1 or the Crown may appeal to the court of appeal from an order made under that section and the appeal shall be asserted, heard and decided according to the ordinary procedure governing appeals to the court of appeal from orders or judgments of a court.
Doua
1999, c. 17, par. 127(m)
77. Section 141 of the Act is replaced by the following:
Goods or conveyance given to applicant
141. (1) The Commissioner, on application by a person whose interest in a conveyance detained under subsection 97.25(2) or in goods or a conveyance seized as forfeit under this Act has been determined under section 139 or ordered under section 139.1 or 140 to be unaffected by the seizure or detention, shall direct that (a) in the case of goods or a conveyance the forfeiture of which has become final, the goods or conveyance, as the case may be, be given to the applicant; and (b) in the case of a conveyance detained under subsection 97.25(2), the conveyance be given to the applicant.
Amount paid if goods or conveyance sold
(1.1) If goods or a conveyance that is to be given to the applicant has been sold or disposed of, an amount calculated on the basis of the interest of the applicant in the goods or conveyance at the time of the contravention or use, as determined under section 139 or ordered under section 139.1 or 140, shall be paid to the applicant.
Limit on amount paid
(2) The total amount paid under subsection (1.1) in respect of goods or a conveyance shall, if the goods or conveyance was sold or otherwise disposed of under this Act, not exceed the proceeds of the sale or disposition, if any, less any costs incurred by Her Majesty in respect of the goods or conveyance, and, if there are no proceeds of disposition, no payment shall be made pursuant to subsection (1.1).
1990, c. 8, s. 50; 1992, c. 28, s. 28; 1993, c. 25, s. 87; 2000, c. 30, s. 161(1)
78. The heading before section 143 and sections 143 to 147 of the Act are repealed.
79. The Act is amended by adding the following after section 148:
�� Members of partnerships
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148.1 (1) For the purposes of this Act, (a) a reference in any notice or other document to the firm name of a partnership is to be read as a reference to all the members of the partnership; and (b) any notice or other document is deemed to have been provided to each member of a partnership if the notice or other document is mailed to, served on or otherwise sent to the partnership (i) at its latest known address or place of business, or (ii) at the latest known address (A) if it is a limited partnership, of any member of the limited partnership whose liability as a member is not limited, or (B) in any other case, of any member of the partnership.
Members of unincorporated bodies
(2) For the purposes of this Act, (a) a reference in any notice or other document to the firm name of an unincorporated body is to be read as a reference to all the members of the body; and (b) any notice or other document is deemed to have been provided to each member of an unincorporated body if the notice or other document is mailed to, served on or otherwise sent to the body at its latest known address or place of business.
80. The Act is amended by adding the following after section 149: Proof of no appeal
149.1 An affidavit of an officer, sworn before a commissioner or other person authorized to take affidavits, setting out that the officer has charge of the appropriate records and has knowledge of the practice of the Agency and that an examination of the records shows that a notice of assessment under Part V.1 was mailed or otherwise sent to a person under this Act and that, after careful examination and search of the records, the officer has been unable to find that a notice of objection
Doua or of appeal from the assessment was received within the time allowed for the notice, is evidence of the statements contained in the affidavit.
Objection or appeal
149.2 If a person who is required under this Act to keep records serves a notice of objection or is a party to an appeal or reference under Part V.1, the person shall retain, until the objection, appeal or reference and any appeal from it is finally disposed of, every record that pertains to the subject-matter of the objection, appeal or reference.
1993, c. 44, s. 106; 1997, c. 36, s. 191
81. Section 159.1 of the Act is replaced by the following:
Offences re marking of goods
159.1 No person shall (a) fail to mark imported goods in the manner referred to in section 35.01; (b) mark imported goods in a deceptive manner so as to mislead another person as to the country of origin or geographic origin of the goods; or (c) with intent to conceal the information given by or contained in the mark, alter, deface, remove or destroy a mark on imported goods made as required by the regulations made under subsection 19(2) of the Customs Tariff.
1993, c. 44, s. 107
82. (1) The portion of section 160 of the Act before paragraph (a) is replaced by the following:
General offence and punishment
160. (1) Every person who contravenes section 11, 12, 13, 15 or 16, subsection 20(1), section 31 or 40, subsection 43(2), 95(1) or (3), 103(3) or 107(2) or section 153, 155, 156 or 159.1 or commits an offence under section 159 or knowingly contravenes an order referred to in subsection 107(11)
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(2) Section 160 of the Act is amended by adding the following after subsection (1): Court order — subsection 43(2)
(2) If a person has been convicted by a court of an offence under subsection (1) for a contravention of subsection 43(2), the court may make any order that it considers appropriate in order to enforce compliance with that subsection. 83. Section 161 of the Act is replaced by the following:
Summary conviction offence and punishment
161. Every person who contravenes any of the provisions of this Act not otherwise provided for in section 160 is guilty of an offence punishable on summary conviction and liable to a fine of not more than twentyfive thousand dollars and not less than one thousand dollars or to imprisonment for a term not exceeding six months or to both fine and imprisonment.
1998, c. 7, s. 1
84. Subsections 163.5(1) and (2) of the Act are replaced by the following:
Powers of designated officers
163.5 (1) In addition to the powers conferred on an officer for the enforcement of this Act, a designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has, in relation to a criminal offence under any other Act of Parliament, the powers and obligations of a peace officer under sections 495 to 497 of the Criminal Code, and subsections 495(3) and 497(3) of that Act apply to the designated officer as if he or she were a peace officer.
Impaired driving offences
(2) A designated officer who is at a customs office and is performing the normal duties of an officer or is acting in accordance with section 99.1 has the powers and obligations of a peace officer under sections 254 and 256 of the Criminal Code and may, on demanding samples of a person’s blood or breath under subsection 254(3) of that Act, require that the person accompany the officer, or a peace officer referred to in paragraph (c) of the definition ‘‘peace officer’’ in section 2 of that Act, for the purpose of taking the samples.
Doua 85. (1) Paragraph 164(1)(b) of the Act is replaced by the following: (b) requiring, in any circumstances that may be prescribed, the owner or person in charge of a conveyance to give advance notice of the time and place of its arrival in Canada and any other information relating to its passengers and goods or its movement inside or outside Canada that may be prescribed, and prescribing the time within which and the manner in which the notice is to be given; (2) Subsection 164(1) of the Act is amended by adding the following after paragraph (b): (c) requiring the payment of costs incurred for the inspection of records held in a place outside of Canada and respecting the manner of determining those costs and the time and manner in which the costs must be paid;
1992, c. 28, s. 30(3); 1994, c. 47, s. 72; 1997, c. 14, ss. 47(2), (3)
(3) Subsections 164(3) and (4) of the Act are repealed.
RELATED AMENDMENTS R.S., c. A-1
Access to Information Act 86. Schedule II to the Access to Information Act is amended by replacing the reference to ‘‘section 107’’ opposite the reference to ‘‘Customs Act’’ with a reference to ‘‘sections 107 and 107.1’’.
R.S., c. C-10
Canada Post Corporation Act 87. (1) Section 42 of the Canada Post Corporation Act is amended by adding the following after subsection (1):
Submission of exported mail to customs officer
(1.1) On request of a customs officer, all mail leaving Canada for a place outside Canada that contains or is suspected to contain anything the exportation of which is prohibited, controlled, regulated or subject to reporting under the Customs Act or any other Act of Parliament shall be submitted by the Corporation to the customs officer. (2) Subsection 42(3) of the Act is replaced by the following:
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Mail subject to customs laws
(3) A customs officer shall deal with mail submitted to him or her under this section in accordance with the laws relating to customs and the importation and exportation of goods and, subject to those laws, shall deliver it to the addressee, on payment of any postage due, or return it to the Corporation.
1997, c. 36
Customs Tariff 88. (1) Subsections 123(1) to (3) of the French version of the Customs Tariff are replaced by the following:
Intérêts
123. (1) Quiconque est astreint, en application du paragraphe 114(1), à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux déterminé, calculés sur les arriérés pour la période commençant le lendemain de l’octroi du remboursement ou du drawback et se terminant le jour de son paiement intégral.
Intérêts : contraventions ou réaffectations
(2) Sous réserve du paragraphe (4), quiconque est astreint, en application des paragraphes 118(1) ou (2), à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux qui est déterminé, calculés sur les arriérés pour la période commençant le jour où la somme devient exigible et se terminant le jour de son paiement intégral.
Intérêts : sous-produits ou résidus ou déchets vendables
(3) Sous réserve du paragraphe (4), quiconque est astreint, en application des articles 121 ou 122, à payer une somme, sauf pour des droits perçus au titre de la Loi sur les mesures spéciales d’importation, paie, en plus de cette somme, des intérêts au taux qui est déterminé, calculés sur les arriérés pour la période commençant le lendemain de la production des sous-produits ou des résidus ou déchets vendables et se terminant le jour de son paiement intégral. (2) Subsections 123(5) and (6) of the Act are replaced by the following:
Computation of interest on certain duties
(5) A person who is liable under paragraph 118(1)(b) or section 121 or 122 to pay an amount in respect of duty levied under the Special Import Measures Act shall pay interest
Doua at the specified rate for the period beginning on the ninety-first day after the day the amount became payable and ending on the day the amount is paid in full, calculated on the amount of the balance outstanding.
Computation of interest on certain duties
(6) A person who is liable under section 98, subsection 114(1) or paragraph 118(2)(b) to repay the amount of a drawback or relief in respect of duty levied under the Special Import Measures Act and any interest on the drawback shall pay, in addition to those amounts, interest at the specified rate for the period beginning on the first day after the day the drawback was granted or the person failed to comply with a condition to which the relief was subject, as the case may be, and ending on the day those amounts are repaid in full, calculated on the amount of the balance outstanding. 89. Section 124 of the Act is replaced by the following:
Interest to be compounded
124. Interest computed at a prescribed rate or at a specified rate shall be compounded daily and, if interest computed in respect of an amount under a provision of this Act is unpaid on the day it would, but for this section, have ceased to be computed under that provision, interest at the specified rate, computed and compounded daily on the unpaid interest from that day to the day it is paid, shall be paid in the same manner as the provision requires the principal amount to be paid. 90. Subsection 127(2) of the Act is replaced by the following:
Interest on SIMA duty
(2) A person who, under a provision of this Part other than section 115, is granted a drawback or refund of an amount in respect of duty levied under the Special Import Measures Act shall be granted, in addition to the drawback or refund, interest on it at the prescribed rate for the period beginning on the ninety-first day after the day an application for the drawback or refund is made in accordance with this Part and ending on the day the drawback or refund is granted.
�� R.S., c. S-15
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91. (1) The definition ‘‘release’’ in subsection 2(1) of the Special Import Measures Act is replaced by the following: ‘‘release’’ « dédouanement »
‘‘release’’ means (a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and (b) in respect of goods to which paragraph 32(2)(b) of the Customs Act applies, to receive the goods at the place of business of the importer, owner or consignee;
(2) Section 2 of the Act is amended by adding the following after subsection (9): Application of Customs Act
(10) The Customs Act applies, with any modifications that the circumstances require, in respect of (a) the payment, collection or refund of any duty levied or returned under this Act; (b) the payment, collection, refund or waiver of interest on duty payable or returned under this Act; and (c) the time within which duties payable under this Act, or security posted under this Act, are deemed to be paid or posted.
1994, c. 47, s. 149(1), par. 185(2)(b) (E); 1999, c. 17, par. 183(1)(h)
92. (1) Subsection 8(1) of the Act is replaced by the following:
Imposition of provisional duty
8. (1) Where the Commissioner makes a preliminary determination of dumping or subsidizing in an investigation under this Act and considers that the imposition of provisional duty is necessary to prevent injury, retardation or threat of injury, the importer in Canada of dumped or subsidized goods that are of the same description as any goods to which the
Doua preliminary determination applies and that are released during the period commencing on the day the preliminary determination is made and ending on the earlier of (a) the day on which the Commissioner causes the investigation to be terminated pursuant to subsection 41(1) with respect to goods of that description, and (b) the day on which the Tribunal makes an order or finding with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer, (c) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods, or (d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.
1988, c. 65, s. 26(1); 1994, c. 47, par. 185(2)(c) (E); 1999, c. 12, ss. 3(1), (2), c. 17, paras. 183(1)(h), 184(a)
(2) Subsections 8(1.1) and (1.2) of the Act are replaced by the following:
Imposition of provisional duties on referral back to Tribunal
(1.1) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal under subsection 77.015(3) or (4) or 77.019(5), or under subsection 77.15(3) or (4) or 77.19(4), the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral
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back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer, (a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or (b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.
Imposition of provisional duties on referral back from Federal Court of Appeal
(1.2) If an order or finding of the Tribunal under subsection 43(1), 76.02(4) respecting a review under subsection 76.02(1), or 91(3), other than an order or finding described in any of sections 3 to 6, is referred back to the Tribunal by the Federal Court of Appeal, the importer of dumped or subsidized goods that are of the same description as any goods to which the order or finding applies and that are released during the period beginning on the day on which the preliminary determination is made under subsection 38(1) and ending on the day on which the Tribunal makes an order or finding, on the referral back, with respect to goods of that description, shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer, (a) pay or cause to be paid on the imported goods provisional duty in an amount not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods; or (b) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.
R.S., c. 1 (2nd Supp.), s. 198(2)
(3) Subsections 8(3) and (4) of the Act are repealed.
2001 1999, c. 17, par. 183(1)(i)
Doua (4) The portion of subsection 8(6) of the Act after paragraph (b) and before paragraph (c) is replaced by the following: shall, within the time prescribed under the Customs Act for the payment of duties, at the option of the importer,
1999, c. 12, par. 52(b)(E), c. 17, par. 183(1)(i)
(5) The portion of subsection 8(6) of the Act after paragraph (c) is replaced by the following: (d) post or cause to be posted security for provisional duty in the prescribed form and in an amount or to a value not greater than the estimated margin of dumping of, or the estimated amount of subsidy on, the imported goods.
R.S., c. 1 (2nd Supp.), s. 199(2); 1994, c. 47, s. 150; 1999, c. 17, par. 183(1)(n)
93. Section 11 of the Act is replaced by the following:
Duty payable by importer in Canada
11. The importer in Canada of any goods imported into Canada in respect of which duty, other than provisional duty, is payable shall, notwithstanding any security posted pursuant to section 8 or 13.2, pay or cause to be paid all such duties on the goods.
R.S., c. 1 (2nd Supp.), s. 200; 1988, c. 65, s. 30
94. Section 13.1 of the Act is repealed.
1994, c. 47, s. 151; 1999, c. 17, par. 183(1)(q)
95. Subsection 13.2(4) of the Act is replaced by the following:
Posting of security
(4) An importer of goods that are of the same description as any goods to which a review under subsection (3) applies and that are released during the period beginning on the day the review is initiated and ending on the day on which the Commissioner completes the review shall, within the time prescribed under the Customs Act for the payment of duties, post, or cause to be posted, security in the prescribed manner and form and in an amount, or of a value, equal to the margin of dumping of, or amount of subsidy on, the goods.
1994, c. 47, s. 177
96. Paragraph 60(1)(b) of the Act is replaced by the following:
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(b) the whole or a part of any duty, or duty and interest paid (other than interest that was paid because duties were not paid when required by subsection 32(5) or section 33 of the Customs Act), in excess of the duties owing in respect of the goods shall be returned to the importer forthwith, 97. The Act is amended by adding the following after section 60: Notice to be given
R.S., c. 1 (2nd Supp.), s. 207; 1994, c. 47, s. 178
60.1 If a determination or a re-determination has been made under section 55, subsection 56(1) or section 57 or 59, notice of the determination or re-determination shall be given without delay to the importer in Canada. 98. Section 62.1 of the Act is repealed.
99. Sections 91 to 98 apply in relation to goods of a NAFTA country as defined in subsection 2(1) of the Special Import Measures Act. R.S., c. T-2
Tax Court of Canada Act
1990, c. 45, s. 55
100. Subsection 2.2(2) of the Tax Court of Canada Act is replaced by the following:
Definition of ‘‘amount in dispute’’
(2) For the purposes of this Act, the ‘‘amount in dispute’’ in an appeal means (a) in the case of an appeal under Part V.1 of the Customs Act, the total of all amounts assessed by the Minister of National Revenue under section 97.44 of that Act; and (b) in the case of an appeal under Part IX of the Excise Tax Act, (i) the amount of tax, net tax and rebate, within the meaning of that Part, that is in issue in the appeal, (ii) any interest or penalty under that Part that is in issue in the appeal, and (iii) any amount of tax, net tax or rebate, within the meaning of that Part, that is likely to be affected by the appeal in any other appeal, assessment or proposed assessment of the person who has brought the appeal.
Doua
1996, c. 23, s. 188
101. (1) Subsection 12(1) of the Act is replaced by the following:
Jurisdiction
12. (1) The Court has exclusive original jurisdiction to hear and determine references and appeals to the Court on matters arising under the Canada Pension Plan, the Cultural Property Export and Import Act, Part V.1 of the Customs Act, the Employment Insurance Act, Part IX of the Excise Tax Act, the Income Tax Act, the Old Age Security Act and the Petroleum and Gas Revenue Tax Act, where references or appeals to the Court are provided for in those Acts.
1990, c. 45, s. 57(2); 1998, c. 19, s. 290
(2) Subsections 12(3) and (4) of the Act are replaced by the following:
Further jurisdiction
(3) The Court has exclusive original jurisdiction to hear and determine questions referred to it under section 173 or 174 of the Income Tax Act, section 97.58 of the Customs Act or section 310 or 311 of the Excise Tax Act.
Extensions of time
(4) The Court has exclusive original jurisdiction to hear and determine applications for extensions of time under section 97.52 or 97.53 of the Customs Act, section 166.2 or 167 of the Income Tax Act, subsection 103(1) of the Employment Insurance Act, section 304 or 305 of the Excise Tax Act, subsection 28(1) of the Canada Pension Plan or section 33.2 of the Cultural Property Export and Import Act.
1990, c. 45, s. 58
102. Subsection 18.18(2) of the Act is replaced by the following:
Calculation of time limits
(2) For the purpose of calculating a time limit for the purposes of section 18.3003 or 18.3005, the following periods shall be excluded: (a) the period beginning on December 21 in any year and ending on January 7 of the next year; and
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(b) the period during which proceedings are stayed in accordance with subsection 106(3) of the Customs Act, in the case of an appeal under Part V.1 of that Act, or subsection 327(4) of the Excise Tax Act, in the case of an appeal under Part IX of that Act. 1998, c .19, s. 295(2)
103. Subsection 18.29(3) of the Act is replaced by the following:
Extensions of time
(3) The provisions referred to in subsection (1) also apply, with any modifications that the circumstances require, in respect of applications for extensions of time under section 97.51 or 97.52 of the Customs Act, section 166.2 or 167 of the Income Tax Act, section 304 or 305 of the Excise Tax Act, subsection 103(1) of the Employment Insurance Act, subsection 28(1) of the Canada Pension Plan or section 33.2 of the Cultural Property Export and Import Act.
1998, c. 19, s. 296(1)
104. Section 18.3001 of the Act is replaced by the following:
Application — Customs Act and Excise Tax Act
18.3001 Subject to section 18.3002, if a person has so elected in the notice of appeal for an appeal under Part V.1 of the Customs Act or Part IX of the Excise Tax Act or at such later time as is provided in the rules of Court, this section and sections 18.3003 to 18.302 apply, with any modifications that the circumstances require.
1990, c. 45, s. 61
105. Subsection 18.3002(3) of the Act is replaced by the following:
Costs
(3) The Court shall, on making an order under subsection (1), order that all reasonable and proper costs of the person who has brought the appeal be borne by Her Majesty in right of Canada where (a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute is equal to or less than $10,000; and (b) in the case of an appeal under Part IX of the Excise Tax Act, the amount in dispute is equal to or less than $7,000 and the aggregate of supplies for the prior fiscal year of that person is equal to or less than $1,000,000.
Doua
1993, c. 27, s. 222
106. Subsection 18.3003(1) of the English version of the Act is replaced by the following:
Time limit for reply to notice of appeal
18.3003 (1) Subject to subsection (2), the Minister of National Revenue shall file a reply to a notice of appeal referred to in section 18.3001 within sixty days after the day the Registry of the Court transmits to that Minister the notice of appeal, unless the person who has brought the appeal consents, before or after the sixty day period has elapsed, to the filing of that reply after the expiration of those sixty days or the Court allows the Minister, on application made before or after the expiration of those sixty days, to file the reply after that period.
1990, c. 45, s. 61
107. Subsection 18.3007(1) of the Act is replaced by the following:
Costs
18.3007 (1) The Court may, if the circumstances so warrant, make no order as to costs or order that the person who brought an appeal be awarded costs, notwithstanding that under the rules of Court costs would be adjudged to Her Majesty in right of Canada, or make an order that that person be awarded costs, notwithstanding that under the rules of Court no order as to costs would be made if (a) an order has been made under subsection 18.3002(1) in respect of the appeal; (b) the appeal is not an appeal referred to in subsection 18.3002(3); and (c) in the case of an appeal (i) under Part V.1 of the Customs Act, the amount in dispute in the appeal is equal to or less than $50,000, and (ii) under Part IX of the Excise Tax Act, the amount in dispute in the appeal is equal to or less than $50,000 and the aggregate of supplies for the prior fiscal year of the person who brought the appeal is equal to or less than $6,000,000.
1990, c. 45, s. 61
108. Paragraphs 18.3008(a) and (b) of the Act are replaced by the following: (a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute was equal to or less than $10,000; and
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(b) in the case of an appeal under Part IX of the Excise Tax Act, the amount in dispute was equal to or less than $7,000 and the aggregate of supplies for the prior fiscal year of that person was equal to or less than $1,000,000. 1998, c. 19, s. 298
109. Subsection 18.3009(1) of the Act is replaced by the following:
Costs — appeal under Customs Act or Excise Tax Act
18.3009 (1) If an appeal referred to in section 18.3001 is allowed, the Court shall reimburse to the person who brought the appeal the filing fee paid under paragraph 18.15(3)(b) by that person and may award costs, in accordance with the rules of Court, to that person if (a) in the case of an appeal under Part V.1 of the Customs Act, the amount in dispute in the appeal was equal to or less than $10,000 and was reduced by more than one half by the judgement of the Court; and (b) in the case of an appeal under Part IX of the Excise Tax Act, (i) the amount of tax, net tax, rebate, interest or penalty in issue in the appeal was reduced by more than one half by the judgement of the Court, (ii) the amount in dispute was equal to or less than $7,000, and (iii) the aggregate of supplies for the prior fiscal year of that person was equal to or less than $1,000,000.
1990, c. 45, s. 62
110. Subsection 18.31(2) of the Act is replaced by the following:
Determination of question
(2) If it is agreed under section 97.58 of the Customs Act or under section 310 of the Excise Tax Act that a question should be determined by the Court, sections 17.1, 17.2 and 17.4 to 17.8, apply, with any modifications that the circumstances require, in respect of the determination of the question.
Doua COORDINATING AMENDMENT
Bill C-11
111. If Bill C-11, introduced in the first session of the thirty-seventh Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent, then, on the later of the coming into force of subsection 107(5) of the Customs Act, as enacted by section 61 of this Act, and the coming into force of section 1 of the other Act, paragraph 107(5)(j) of the Customs Act is replaced by the following: (j) an official of the Department of Citizenship and Immigration solely for the purpose of administering or enforcing the Immigration and Refugee Protection Act, if the information relates to the movement of people into and out of Canada;
COMING INTO FORCE
112. The provisions of this Act, and the provisions of any Act as enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 19
An
Act to amend Arrangements Act
the
Federal-Provincial
BILL C-18 ASSENTED TO 14th JUNE, 2001
Fiscal
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Federal-Provincial Fiscal Arrangements Act’’.
SUMMARY This enactment removes, for the fiscal year beginning on April 1, 1999, the ceiling that would otherwise apply to equalization payments.
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49-50 ELIZABETH II
CHAPTER 19 An Act to amend the Federal-Provincial Fiscal Arrangements Act
[Assented to 14th June, 2001] R.S., c. F-8; 1995, c. 17, s. 45(1)
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. 11 (3rd Supp.), s. 3(5); 1999, c. 11, s. 2(5)
1. The portion of subsection 4(9) of the Federal-Provincial Fiscal Arrangements Act before paragraph (c) is replaced by the following:
Maximum payment
(9) Notwithstanding anything in this Part, where (a) the total amount of the fiscal equalization payments to all provinces as determined under this Part for any fiscal year commencing with the fiscal year that begins on April 1, 2000 exceeds (b) the amount that would result if the amount of ten billion dollars were changed by the percentage change in Canada’s gross domestic product, as determined by the Chief Statistician of Canada in the prescribed manner, from the calendar year ending on December 31, 1999 to the calendar year ending in the fiscal year, the fiscal equalization payment to each province for the fiscal year shall be reduced by an amount equal to the product obtained by multiplying
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 8 An Act to implement an agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake and to amend an Act in consequence
ASSENTED TO 14th JUNE, 2001 BILL S-24
SUMMARY This enactment implements the ‘‘Agreement with respect to Kanesatake Governance of the Interim Land Base’’ between the Mohawks of Kanesatake and Her Majesty in right of Canada and, in doing so, it ensures that certain lands constitute lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867 but not a reserve within the meaning of the Indian Act. It also provides a framework for the exercise of jurisdiction by the Mohawks of Kanesatake over the use and development of their lands.
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49-50 ELIZABETH II
CHAPTER 8 An Act to implement an agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake and to amend an Act in consequence
[Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title
Definitions
1. This Act may be cited as the Kanesatake Interim Land Base Governance Act. 2. (1) The definitions in this subsection apply in this Act.
‘‘Agreement’’ « accord territorial »
‘‘Agreement’’ means the ‘‘Agreement with respect to Kanesatake Governance of the Interim Land Base’’ between the Mohawks of Kanesatake and Her Majesty in right of Canada, signed on December 21, 2000 and tabled in Parliament on March 27, 2001.
‘‘Council’’ « conseil »
‘‘Council’’ means the council of the band, known as the Mohawk Council of Kanesatake.
‘‘Kanesatake Mohawk interim land base’’ « territoire provisoire de Kanesatake »
‘‘Kanesatake Mohawk interim land base’’ means the lands set out in the schedule to this Act.
‘‘Kanesatake Mohawk law’’ « lois des Mohawks de Kanesatake »
‘‘Kanesatake Mohawk law’’ means a law enacted in accordance with the provisions of this Act.
‘‘Kanesatake Mohawk neighbouring lands’’ « terres mohawks avoisinantes »
‘‘Kanesatake Mohawk neighbouring lands’’ means the lands in the Kanesatake Mohawk interim land base that are located in the sectors set out in Schedule B to the Agreement, in the area commonly known as the ‘‘Village of Oka’’.
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‘‘Mohawks of Kanesatake’’ « Mohawks de Kanesatake »
‘‘Mohawks of Kanesatake’’ means the band known as the Mohawks of Kanesatake.
Reference to Municipality
(2) A reference in this Act to the Municipality of Oka includes any successor municipality.
Purpose
3. (1) The purpose of this Act is to implement the Agreement and, in doing so, (a) to ensure that certain lands in the Kanesatake Mohawk interim land base constitute lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867 but not a reserve within the meaning of the Indian Act; (b) to provide a framework for the exercise of jurisdiction by the Mohawks of Kanesatake over the use and development of the lands in the Kanesatake Mohawk interim land base; and (c) to establish principles to govern the harmonious use and development of Kanesatake Mohawk neighbouring lands and certain lands in the Municipality of Oka.
Aboriginal and treaty rights
Status of and interests in lands
(2) This Act does not address any aboriginal or treaty rights of the Mohawks of Kanesatake. Nothing in this Act is intended either to prejudice such rights or to represent a recognition of such rights by Her Majesty in right of Canada. (3) This Act does not (a) address the constitutional status of any lands before this Act comes into effect; or (b) alter existing jurisdiction over the creation or transfer of rights or interests in relation to lands in the Kanesatake Mohawk interim land base.
Lands reserved
4. The lands in the Kanesatake Mohawk interim land base, other than the lands known as Doncaster Reserve No. 17, are set aside for the use and benefit of the Mohawks of Kanesatake as lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867 but not as a reserve within the meaning of the Indian Act.
Legal status and capacity
Gouvernement du territoire
5. The Mohawks of Kanesatake have the capacity of a natural person and, in particular, may (a) acquire and hold property; (b) enter into contracts or agreements; (c) borrow money; (d) expend and invest money; (e) be a party to legal proceedings; and (f) do any other thing that is conducive to the exercise of the rights, powers and privileges associated with that capacity.
Exercise of jurisdiction and powers
6. The Mohawks of Kanesatake shall act through the Council in exercising the jurisdiction and powers under this Act.
Jurisdiction
7. (1) The Mohawks of Kanesatake have jurisdiction to make laws in relation to the use and development of the lands in the Kanesatake Mohawk interim land base, including in relation to (a) the health and quality of life of residents; (b) the protection and management of wildlife and fish; (c) the observance of law and order and the prevention of disorderly conduct and nuisances; (d) the prevention of trespass, including entry onto, or occupation of, the lands without lawful authority; (e) residency; (f) fire safety and fire protection services; (g) the construction, maintenance, management and use of local works, including water supplies; (h) the construction or alteration of buildings, including inspection in connection with the construction or alteration; (i) zoning; (j) waste management and public sanitation; and (k) traffic regulation.
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Offences
(2) This jurisdiction includes the power to create offences punishable on summary conviction and to provide for the following sanctions for those offences, namely, orders, fines, imprisonment and sanctions that are consistent with restorative justice objectives. However, a fine or period of imprisonment shall not exceed the limits established under subsection 787(1) of the Criminal Code.
Exclusion
(3) For greater certainty, this jurisdiction does not include jurisdiction in relation to the subject-matters referred to in class 27 of section 91 of the Constitution Act, 1867 or in relation to labour relations or working conditions.
Statutory Instruments Act
(4) The Statutory Instruments Act does not apply to Kanesatake Mohawk laws.
Restriction — Doncaster Reserve No. 17
8. (1) Jurisdiction shall not be exercised under section 7 with respect to the lands known as Doncaster Reserve No. 17 except in accordance with an agreement between the Mohawks of Kanesatake and Kahnawake, and exercise of the jurisdiction with respect to those lands shall be subject to Her Majesty in right of Canada agreeing to take any measures that may be necessary to implement that agreement.
Application of the Indian Act
(2) To the extent that a Kanesatake Mohawk law enacted in accordance with subsection (1) makes provision for any matter for which provision is made by the Indian Act, the Indian Act does not apply to the Mohawks of Kanesatake or to members of the Mohawks of Kanesatake.
Restriction — land governance code
9. (1) Before jurisdiction under section 7 is exercised, the Mohawks of Kanesatake shall adopt a land governance code that sets out the principles, processes and rules to which the exercise of jurisdiction is subject.
Mandatory elements of the code
(2) The code shall (a) establish processes for the preparation, enactment and publication of Kanesatake Mohawk laws; (b) establish processes for the assessment and approval of proposed uses and develop2001
Gouvernement du territoire ment of lands in the Kanesatake Mohawk interim land base; (c) establish principles and rules, including conflict of interest rules, to ensure the accountability of the Council to members of the Mohawks of Kanesatake; (d) provide for rights of appeal and redress in relation to decisions and other measures taken by the Council under the authority of Kanesatake Mohawk laws; and (e) include a procedure to amend the code.
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the land governance code.
Land use plan
10. The Mohawks of Kanesatake shall adopt a plan that establishes general policies governing land use for the Kanesatake Mohawk interim land base before any process preliminary to the granting of an authorization is undertaken in relation to the proposed use of any of the lands in the land base for (a) a commercial or industrial activity that results in or may result in an adverse impact on the environment; (b) the storage or transportation of any dangerous materials; or (c) waste disposal.
Environmental protection
11. (1) If federal laws contain no standards of environmental protection with respect to a matter, a Kanesatake Mohawk law, or an action or measure taken by the Council, with respect to that matter shall be consistent with the standards of environmental protection that apply generally in the province with respect to the matter.
Exclusion
(2) For the purposes of subsection (1), environmental protection does not include environmental assessment.
Stricter standards
(3) Nothing in subsection (1) precludes the Mohawks of Kanesatake or the Council from setting or applying standards that are stricter than the provincial standards.
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Kanesatake Mohawk neighbouring lands
12. Until the Mohawks of Kanesatake make a Kanesatake Mohawk law that allows a land use on, or that establishes a land use standard that applies to, one or more of the lots or land sites that constitute Kanesatake Mohawk neighbouring lands, no person shall alter an existing land use, building or structure on that lot or land site or those lots or land sites unless the alteration complies with the land uses or the land use standards set out in Schedule B to the Agreement for the applicable sector.
Harmonization arrangement — Kanesatake Mohawk neighbouring lands
13. (1) Before the Mohawks of Kanesatake make any Kanesatake Mohawk law that allows a land use, or establishes a land use standard, that is significantly different from the uses or standards set out in Schedule B to the Agreement for the applicable sector, they shall enter into a harmonization arrangement with the Municipality of Oka.
Content of harmonization arrangement
(2) The harmonization arrangement (a) shall establish the reciprocal obligations of the parties to harmonize, with respect to land use or land use standards, the Kanesatake Mohawk laws that apply to Kanesatake Mohawk neighbouring lands and the municipal by-laws that apply to the properties in the Municipality of Oka that adjoin Kanesatake Mohawk neighbouring lands; (b) shall establish a dispute resolution process, which may include arbitration, to resolve any disagreement between the parties in relation to the arrangement; and (c) may determine criteria for compatibility between those Kanesatake Mohawk laws and municipal by-laws.
Exception
(3) Subsection (1) does not apply in relation to any of the sectors in Schedule B to the Agreement if the Municipality of Oka, before entering into a harmonization arrangement, amends a municipal by-law to allow a land use or to establish a land use standard in any sector that is significantly different from the uses or standards set out in that Schedule for that sector, without being legally obliged by a provincial law to amend the by-law for that purpose.
2001 Enactment despite harmonization arrangement
Gouvernement du territoire (4) The Mohawks of Kanesatake may, in relation to any of the sectors in Schedule B to the Agreement, make Kanesatake Mohawk laws despite the terms of the harmonization arrangement if, without the agreement of the Mohawks of Kanesatake, the Municipality of Oka (a) in breach of its obligations under the arrangement, amends or repeals a municipal by-law with respect to land use or land use standards without being legally obliged by a provincial law to amend or repeal the by-law; or (b) condones any use, activity or construction on a property in the Municipality of Oka that contravenes a municipal by-law with respect to land use or land use standards and that significantly prejudices any right or interest of an occupant of Kanesatake Mohawk neighbouring lands.
National building standards
14. Any construction that takes place on lands in the Kanesatake Mohawk interim land base shall comply with the building standards contained in the National Building Code of Canada 1995, issued by the Canadian Commission on Building and Fire Codes of the National Research Council of Canada, as amended from time to time.
Prosecution
15. (1) The Mohawks of Kanesatake may prosecute an offence committed under a Kanesatake Mohawk law in a court of competent jurisdiction.
Contraventions Act
(2) The Mohawks of Kanesatake may adopt the procedure applicable under the Contraventions Act for the prosecution of contraventions, subject to the necessary modifications.
Power to appoint justices of the peace
16. (1) To ensure the enforcement of Kanesatake Mohawk laws, the Mohawks of Kanesatake may appoint justices of the peace to adjudicate offences for contraventions of those laws.
Agreement with Her Majesty
(2) The Mohawks of Kanesatake shall not appoint any justices of the peace except in accordance with an agreement with Her Majesty in right of Canada that addresses the following matters:
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(a) the jurisdiction and qualifications of the justices of the peace; (b) the independence and impartiality, including the financial security and security of tenure, of the justices of the peace; (c) the supervision of the justices of the peace; (d) the right to appeal any decision of a justice of the peace; and (e) the relationship between the justices of the peace and the existing justice system and its institutions. Provincial laws that do not apply of their own force and municipal by-laws
17. (1) A provincial law to which section 88 of the Indian Act applies, or a municipal by-law, does not apply to the extent that it is inconsistent or conflicts with this Act or with a Kanesatake Mohawk law, or to the extent that it makes provision for any matter for which provision is made by or under this Act.
Other provincial laws
(2) In the event of an inconsistency or conflict between a Kanesatake Mohawk law and any other provincial law, the Kanesatake Mohawk law prevails to the extent of the inconsistency or conflict.
Federal laws
(3) In the event of an inconsistency or conflict between a Kanesatake Mohawk law and a federal law, the federal law prevails to the extent of the inconsistency or conflict.
Evidence
18. In any proceeding, a copy of a Kanesatake Mohawk law that appears to be certified as a true copy by a duly authorized officer of the Council is, without proof of the officer’s signature or official character, evidence of its enactment on the date specified in the law.
Amendment to schedule
19. (1) The Governor in Council may, by order, add to the schedule to this Act a reference to lands that the Mohawks of Kanesatake and Her Majesty in right of Canada agree should be added to the Kanesatake Mohawk interim land base.
Amendment of plan
(2) The Mohawks of Kanesatake shall revise the plan referred to in section 10 to include the lands added to the schedule to this Act before any process preliminary to the
Gouvernement du territoire granting of an authorization is undertaken in relation to the proposed use of the added lands for any of the activities referred to in paragraphs 10(a) to (c).
Existing rights or interests
20. A right or interest in relation to lands in the Kanesatake Mohawk interim land base that exists on the coming into force of this Act continues in accordance with its terms and conditions.
Canada Lands Surveys Act
21. (1) For the purposes of subsection 29(3) of the Canada Lands Surveys Act, in relation to lands in the Kanesatake Mohawk interim land base, the survey and plans must be satisfactory to the Council rather than to the Minister of Indian Affairs and Northern Development.
Exception
(2) Subsection (1) does not apply in relation to boundaries between the Kanesatake Mohawk interim land base and other lands.
Deposit of copies
22. (1) The Minister of Indian Affairs and Northern Development shall cause a copy of each of the following documents, and of any amendment to them, certified by the Minister as a true copy, to be deposited in the library of the Department of Indian Affairs and Northern Development situated in the National Capital Region, and in the regional office of that Department closest to the Kanesatake Mohawk interim land base or in any other place designated by the Minister: (a) the Agreement; (b) the agreement referred to in subsection 16(2); and (c) the Management Agreement entered into between Her Majesty in right of Canada and Kanesatake Orihwa’shon:a Development Corporation on June 30, 1999.
Access
(2) The copies shall be made available for inspection by any person at any time during normal business hours.
Council office
23. (1) The Council shall keep at its office a copy, certified by it as a true copy, of each of the documents referred to in subsection 22(1), of the land governance code, and of any amendment to them.
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(2) The copies shall be made available for inspection by any member of the Mohawks of Kanesatake at any time during normal business hours. AMENDMENT TO CANADA LANDS SURVEYS ACT
24. Paragraph 24(1)(a) of the Canada Lands Surveys Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (iii), by replacing the word ‘‘and’’ at the end of subparagraph (iv) with the word ‘‘or’’ and by adding the following after subparagraph (iv): (v) lands in the Kanesatake Mohawk interim land base, as defined in the Kanesatake Interim Land Base Governance Act, other than the lands known as Doncaster Reserve No. 17; and
Gouvernement du territoire provi SCHEDULE (Subsection 2(1) and section 19) KANESATAKE MOHAWK INTERIM LAND BASE
1. Kanesatake Indian Lands No. 16 2. Lands, known as Doncaster Reserve No. 17, that are set apart for the Mohawks of Kanesatake and Kahnawake 3. Lands known as ‘‘Assenenson’’, ‘‘Chemin du Milieu’’ or ‘‘Centre Road’’ 4. Lands described in Article 2.1.1 of the Management Agreement entered into between Her Majesty in right of Canada and Kanesatake Orihwa’shon:a Development Corporation on June 30, 1999
Published under authority of the Senate of Canada Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 41
An Act to amend the Criminal Code, the Official Secr Act, the Canada Evidence Act, the Proceeds of Cri (Money Laundering) Act and other Acts, and to en measures respecting the registration of charities, order to combat terrorism
BILL C-36 ASSENTED TO 18th DECEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism’’.
SUMMARY This enactment amends the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and a number of other Acts, and enacts the Charities Registration (Security Information) Act, in order to combat terrorism. Part 1 amends the Criminal Code to implement international conventions related to terrorism, to create offences related to terrorism, including the financing of terrorism and the participation, facilitation and carrying out of terrorist activities, and to provide a means by which property belonging to terrorist groups, or property linked to terrorist activities, can be seized, restrained and forfeited. It also provides for the deletion of hate propaganda from public web sites and creates an offence relating to damage to property associated with religious worship. Part 2 amends the Official Secrets Act, which becomes the Security of Information Act. It addresses national security concerns, including threats of espionage by foreign powers and terrorist groups, economic espionage and coercive activities against émigré communities in Canada. It creates new offences to counter intelligence-gathering activities by foreign powers and terrorist groups, as well as other offences, including the unauthorized communication of special operational information.
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Part 3 amends the Canada Evidence Act to address the judicial balancing of interests when the disclosure of information in legal proceedings would encroach on a specified public interest or be injurious to international relations or national defence or security. The amendments impose obligations on parties to notify the Attorney General of Canada if they anticipate the disclosure of sensitive information or information the disclosure of which could be injurious to international relations or national defence or security, and they give the Attorney General the powers to assume carriage of a prosecution and to prohibit the disclosure of information in connection with a proceeding for the purpose of protecting international relations or national defence or security. Part 4 amends the Proceeds of Crime (Money Laundering) Act, which becomes the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The amendments will assist law enforcement and investigative agencies in the detection and deterrence of the financing of terrorist activities, facilitate the investigation and prosecution of terrorist activity financing offences, and improve Canada’s ability to cooperate internationally in the fight against terrorism.
Part 5 amends the Access to Information Act, Canadian Human Rights Act, Canadian Security Intelligence Service Act, Corrections and Conditional Release Act, Federal Court Act, Firearms Act, National Defence Act, Personal Information Protection and Electronic Documents Act, Privacy Act, Seized Property Management Act and United Nations Act. The amendments to the National Defence Act clarify the powers of the Communications Security Establishment to combat terrorism.
Part 6 enacts the Charities Registration (Security Information) Act, and amends the Income Tax Act, in order to prevent those who support terrorist or related activities from enjoying the tax privileges granted to registered charities.
TABLE OF PROVISIONS
AN ACT TO AMEND THE CRIMINAL CODE, THE OFFICIAL SECRETS ACT, THE CANADA EVIDENCE ACT, THE PROCEEDS OF CRIME (MONEY LAUNDERING) ACT AND OTHER ACTS, AND TO ENACT MEASURES RESPECTING THE REGISTRATION OF CHARITIES, IN ORDER TO COMBAT TERRORISM
Preamble SHORT TITLE
1. Anti-terrorism Act PART 1
2-23.
CRIMINAL CODE Amendments to the Criminal Code Consequential Amendment
23.1
Identification of Criminals Act PART 2 OFFICIAL SECRETS ACT
24-30. Amendment to the Official Secrets Act Consequential Amendments 31-34. Criminal Code 35.
Identification of Criminals Act
36. Patent Act
37-38. Visiting Forces Act 39-42. Regulations PART 3 CANADA EVIDENCE ACT 43-44. Amendments to the Canada Evidence Act Consequential Amendments 45.
Canadian Human Rights Act
46. Immigration Act
�� PART 4 PROCEEDS OF CRIME (MONEY LAUNDERING) ACT
47-75. Amendments to the Proceeds of Crime (Money Laundering) Act Consequential Amendments 76.
Access to Information Act
77-79. Canada Post Corporation Act 80.
Criminal Code
81-82. Personal Information Protection and Electronic Documents Act 83-86. Seized Property Management Act PART 5 AMENDMENTS TO OTHER ACTS 87.
Access to Information Act
88. Canadian Human Rights Act
89. Canadian Security Intelligence Service Act
90-94.
Corrections and Conditional Release Act
95. Federal Court Act
96. Firearms Act
97-102.
National Defence Act
103. Personal Information Protection and Electronic Documents Act
104. Privacy Act
105-111.
Seized Property Management Act
112. United Nations Act PART 6 REGISTRATION OF CHARITIES — SECURITY INFORMATION
113. Enactment of Act
An Act respecting the registration of charities having regard to security and criminal intelligence information
�� SHORT TITLE
1. Charities Registration (Security Information) Act PURPOSE AND PRINCIPLES
2. Purpose INTERPRETATION
3. Definitions CERTIFICATE BASED ON INTELLIGENCE
4. Signature by Ministers JUDICIAL CONSIDERATION OF CERTIFICATE
5. Notice
6. Reference EVIDENCE
7. Admissible information
8. Foreign information obtained in confidence
9. Ineligibility or revocation REVIEW OF CERTIFICATE
10. Review of certificate
11. Application for review
12. Publication of spent certificate
13. Term of a certificate
14. Regulations
114-118.
Amendments to the Income Tax Act
PART 7 COORDINATING, REVIEW AND COMMENCEMENT PROVISIONS Coordinating Amendments 119-120.
Proceeds of Crime (Money Laundering) and Terrorist Financing Act
121. Bill S-23
122-128.
Bill C-11
129. Bill C-15B
130-138.
Bill C-24
139-144.
Bill C-30 Review and Report
145. Review
�� Coming into Force 146.
Coming into force SCHEDULES 1 AND 2
49-50 ELIZABETH II CHAPTER 41 An Act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other Acts, and to enact measures respecting the registration of charities, in order to combat terrorism
[Assented to 18th December, 2001] Preamble
WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security; WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security; WHEREAS acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation; WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress, investigate and incapacitate terrorist activity; WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism; WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;
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AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada’s relations with its allies; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE Short title
1. This Act may be cited as the Anti-terrorism Act. PART 1
R.S., c. C-46 R.S., c. 2 (1st Supp.), s. 2(1); 1993, c. 28, s. 78 (Sch. III, s. 25(1)); 1994, c. 44, s. 2(1) ‘‘Attorney General’’ « procureur général »
CRIMINAL CODE 2. (1) The definition ‘‘Attorney General’’ in section 2 of the Criminal Code is replaced by the following:
‘‘Attorney General’’ (a) subject to paragraphs (c) to (f), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy, (b) with respect to the Yukon Territory, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy,
Loi antite (c) with respect to proceedings in relation to a terrorism offence or to an offence under section 57, 58, 83.12 , 424.1 or 431.1 or in relation to an offence against a member of United Nations personnel or associated personnel under section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them, (d) with respect to proceedings in relation to (i) an offence referred to in subsection 7(3.71), or (ii) an offence referred to in paragraph (a) of the definition ‘‘terrorist activity’’ in subsection 83.01(1), where the act or omission was committed outside Canada but is deemed by virtue of subsection 7(2), (2.1), (2.2), (3), (3.1), (3.4), (3.6), (3.72) or (3.73) to have been committed in Canada, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them, (e) with respect to proceedings in relation to an offence where the act or omission constituting the offence (i) constitutes a terrorist activity referred to in paragraph (b) of the definition ‘‘terrorist activity’’ in subsection 83.01(1), and (ii) was committed outside Canada but is deemed by virtue of subsection 7(3.74) or (3.75) to have been committed in Canada, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them, and
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Anti-ter (f) with respect to proceedings under section 83.13, 83.14, 83.28, 83.29 or 83.3, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them;
(2) Section 2 of the Act is amended by adding the following in alphabetical order: ‘‘associated personnel’’ « personnel associé »
‘‘associated personnel’’ means persons who are (a) assigned by a government or an intergovernmental organization with the agreement of the competent organ of the United Nations, (b) engaged by the Secretary-General of the United Nations, by a specialized agency of the United Nations or by the International Atomic Energy Agency, or (c) deployed by a humanitarian non-governmental organization or agency under an agreement with the Secretary-General of the United Nations, by a specialized agency of the United Nations or by the International Atomic Energy Agency, to carry out activities in support of the fulfilment of the mandate of a United Nations operation;
‘‘government or public facility’’ « installation gouvernementale ou publique »
‘‘government or public facility’’ means a facility or conveyance, whether permanent or temporary, that is used or occupied in connection with their official duties by representatives of a state, members of a government, members of a legislature, members of the judiciary, or officials or employees of a state or of any other public authority or public entity, or by officials or employees of an intergovernmental organization;
‘‘justice system participant’’ « personne associée au système judiciaire »
‘‘justice system participant’’ means (a) a member of the Senate, of the House of Commons, of a legislative assembly or of a municipal council, and
Loi antite (b) a person who plays a role in the administration of criminal justice, including (i) the Solicitor General of Canada and a Minister responsible for policing in a province, (ii) a prosecutor, a lawyer, a member of the Chambre des notaires du Québec and an officer of a court, (iii) a judge and a justice, (iv) a juror and a person who is summoned as a juror, (v) an informant, a prospective witness, a witness under subpoena and a witness who has testified, (vi) a peace officer within the meaning of any of paragraphs (b), (c), (d), (e) and (g) of the definition ‘‘peace officer’’, (vii) a civilian employee of a police force, (viii) a person employed in the administration of a court, (ix) an employee of the Canada Customs and Revenue Agency who is involved in the investigation of an offence under an Act of Parliament, (x) an employee of a federal or provincial correctional service, a parole supervisor and any other person who is involved in the administration of a sentence under the supervision of such a correctional service and a person who conducts disciplinary hearings under the Corrections and Conditional Release Act, and (xi) an employee and a member of the National Parole Board and of a provincial parole board;
‘‘terrorism offence’’ « infraction de terrorisme »
‘‘terrorism offence’’ means (a) an offence under any of sections 83.02 to 83.04 or 83.18 to 83.23,
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Anti-ter (b) an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a terrorist group, (c) an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity, or (d) a conspiracy or an attempt to commit, or being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a), (b) or (c);
‘‘terrorist activity’’ « activité terroriste »
‘‘terrorist activity’’ has the same meaning as in subsection 83.01(1);
‘‘terrorist group’’ « groupe terroriste » ‘‘United Nations operation’’ « opération des Nations Unies »
‘‘terrorist group’’ has the same meaning as in subsection 83.01(1);
‘‘United Nations personnel’’ « personnel des Nations Unies »
‘‘United Nations personnel’’ means
‘‘United Nations operation’’ means an operation that is established by the competent organ of the United Nations in accordance with the Charter of the United Nations and is conducted under United Nations authority and control, if the operation is for the purpose of maintaining or restoring international peace and security or if the Security Council or the General Assembly of the United Nations has declared, for the purposes of the Convention on the Safety of United Nations and Associated Personnel, that there exists an exceptional risk to the safety of the personnel participating in the operation. It does not include an operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies; (a) persons who are engaged or deployed by the Secretary-General of the United Nations as members of the military,
Loi antite police or civilian components of a United Nations operation, or (b) any other officials or experts who are on mission of the United Nations or one of its specialized agencies or the International Atomic Energy Agency and who are present in an official capacity in the area where a United Nations operation is conducted;
R.S., c. 27 (1st Supp.), s. 5(1)
3. (1) The portion of subsection 7(3) of the Act before paragraph (a) is replaced by the following:
Offence against internationally protected person
(3) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission against the person of an internationally protected person or against any property referred to in section 431 used by that person that, if committed in Canada, would be an offence against any of sections 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279, 279.1, 280 to 283, 424 and 431 is deemed to commit that act or omission in Canada if (2) Section 7 of the Act is amended by adding the following after subsection (3.7):
Offence against United Nations or associated personnel
(3.71) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission against a member of United Nations personnel or associated personnel or against property referred to in section 431.1 that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279, 279.1, 424.1 or 431.1 is deemed to commit that act or omission in Canada if (a) the act or omission is committed on a ship that is registered or licensed, or for
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which an identification number has been issued, under an Act of Parliament; (b) the act or omission is committed on an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations; (c) the person who commits the act or omission (i) is a Canadian citizen, or (ii) is not a citizen of any state and ordinarily resides in Canada; (d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada; (e) the act or omission is committed against a Canadian citizen; or (f) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act. Offence involving explosive or other lethal device
(3.72) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 431.2 is deemed to commit that act or omission in Canada if (a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under any Act of Parliament; (b) the act or omission is committed on an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, (ii) leased without crew and operated by a person who is qualified under regula2001
Loi antite tions made under the Aeronautics Act to be registered as owner of an aircraft in Canada under those regulations, or (iii) operated for or on behalf of the Government of Canada; (c) the person who commits the act or omission (i) is a Canadian citizen, or (ii) is not a citizen of any state and ordinarily resides in Canada; (d) the person who commits the act or omission is, after the commission of the act or omission, present in Canada; (e) the act or omission is committed against a Canadian citizen; (f) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act; or (g) the act or omission is committed against a Canadian government or public facility located outside Canada.
Offence relating to financing of terrorism
(3.73) Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that, if committed in Canada, would constitute an offence against, a conspiracy or an attempt to commit an offence against, or being an accessory after the fact or counselling in relation to an offence against, section 83.02 is deemed to commit the act or omission in Canada if (a) the act or omission is committed on a ship that is registered or licensed, or for which an identification number has been issued, under an Act of Parliament; (b) the act or omission is committed on an aircraft (i) registered in Canada under regulations made under the Aeronautics Act, or (ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as the owner of an aircraft in Canada under those regulations;
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(c) the person who commits the act or omission (i) is a Canadian citizen, or (ii) is not a citizen of any state and ordinarily resides in Canada; (d) the person who commits the act or omission is, after its commission, present in Canada; (e) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) or (b) in order to compel the Government of Canada or of a province to do or refrain from doing any act; (f) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) or (b) against a Canadian government or public facility located outside Canada; or (g) the act or omission is committed for the purpose of committing an act or omission referred to in paragraph 83.02(a) or (b) in Canada or against a Canadian citizen. Terrorism offence committed outside Canada
(3.74) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada that, if committed in Canada, would be a terrorism offence, other than an offence under section 83.02 or an offence referred to in paragraph (a) of the definition ‘‘terrorist activity’’ in subsection 83.01(1), is deemed to have committed that act or omission in Canada if the person (a) is a Canadian citizen; (b) is not a citizen of any state and ordinarily resides in Canada; or (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration Act and is, after the commission of the act or omission, present in Canada.
Terrorist activity committed outside Canada
(3.75) Notwithstanding anything in this Act or any other Act, every one who commits an act or omission outside Canada that, if committed in Canada, would be an indictable offence and would also constitute a terrorist activity referred to in paragraph (b) of the
Loi antite definition ‘‘terrorist activity’’ in subsection 83.01(1) is deemed to commit that act or omission in Canada if (a) the act or omission is committed against a Canadian citizen; (b) the act or omission is committed against a Canadian government or public facility located outside Canada; or (c) the act or omission is committed with intent to compel the Government of Canada or of a province to do or refrain from doing any act. (3) Subsection 7(7) of the Act is replaced by the following:
If accused not Canadian citizen
(7) If the accused is not a Canadian citizen, no proceedings in respect of which courts have jurisdiction by virtue of this section shall be continued unless the consent of the Attorney General of Canada is obtained not later than eight days after the proceedings are commenced.
R.S., c. 30 (3rd Supp.), s. 1(4); 1995, c. 5, par. 25(1)(g)
(4) Subsection 7(10) of the Act is replaced by the following:
Certificate as evidence
(10) In any proceedings under this Act, a certificate purporting to have been issued by or under the authority of the Minister of Foreign Affairs is admissible in evidence without proof of the signature or authority of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof of the facts it states that are relevant to the question of whether any person is a member of United Nations personnel, a member of associated personnel or a person who is entitled under international law to protection from attack or threat of attack against his or her person, freedom or dignity. 4. The Act is amended by adding the following after section 83:
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Definitions
83.01 (1) The following definitions apply in this Part.
‘‘Canadian’’ « Canadien »
‘‘Canadian’’ means a Canadian citizen or a permanent resident, within the meaning of subsection 2(1) of the Immigration Act, or a body corporate incorporated or continued under the laws of Canada or a province.
‘‘entity’’ « entité »
‘‘entity’’ means a person, group, trust, partnership or fund or an unincorporated association or organization.
‘‘listed entity’’ « entité inscrite »
‘‘listed entity’’ means an entity on a list established by the Governor in Council under section 83.05.
‘‘terrorist activity’’ « activité terroriste »
‘‘terrorist activity’’ means (a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences: (i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970, (ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971, (iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973, (iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General
Loi antite Assembly of the United Nations on December 17, 1979, (v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980, (vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988, (vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988, (viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988, (ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and (x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or (b) an act or omission, in or outside Canada, (i) that is committed
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and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law appli2001
Loi antite cable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.
‘‘terrorist group’’ « groupe terroriste »
‘‘terrorist group’’ means (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or (b) a listed entity, and includes an association of such entities.
For greater certainty
(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition ‘‘terrorist activity” in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.
Facilitation
(2) For the purposes of this Part, facilitation shall be construed in accordance with subsection 83.19(2) . Financing of Terrorism
Providing or collecting property for certain activities
83.02 Every one who, directly or indirectly, wilfully and without lawful justification or excuse, provides or collects property intending that it be used or knowing that it will be used, in whole or in part, in order to carry out (a) an act or omission that constitutes an offence referred to in subparagraphs (a)(i) to (ix) of the definition of ‘‘terrorist activity’’ in subsection 83.01(1), or (b) any other act or omission intended to cause death or serious bodily harm to a civilian or to any other person not taking an
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active part in the hostilities in a situation of armed conflict, if the purpose of that act or omission, by its nature or context, is to intimidate the public, or to compel a government or an international organization to do or refrain from doing any act, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
Providing, making available, etc., property or services for terrorist purposes
83.03 Every one who, directly or indirectly, collects property, provides or invites a person to provide, or makes available property or financial or other related services (a) intending that they be used, or knowing that they will be used, in whole or in part, for the purpose of facilitating or carrying out any terrorist activity, or for the purpose of benefiting any person who is facilitating or carrying out such an activity, or (b) knowing that, in whole or part, they will be used by or will benefit a terrorist group, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
Using or possessing property for terrorist purposes
83.04 Every one who (a) uses property, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, or (b) possesses property intending that it be used or knowing that it will be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity, is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
Loi antite List of Entities
Establishment of list
83.05 (1) The Governor in Council may, by regulation, establish a list on which the Governor in Council may place any entity if, on the recommendation of the Solicitor General of Canada , the Governor in Council is satisfied that there are reasonable grounds to believe that (a) the entity has knowingly carried out, attempted to carry out, participated in or facilitated a terrorist activity; or (b) the entity is knowingly acting on behalf of, at the direction of or in association with an entity referred to in paragraph (a).
Recommendation
(1.1) The Solicitor General may make a recommendation referred to in subsection (1) only if the Solicitor General has reasonable grounds to believe that the entity to which the recommendation relates is an entity referred to in paragraph (1)(a) or (b).
Application to Solicitor General
(2) On application in writing by a listed entity, the Solicitor General shall decide whether there are reasonable grounds to recommend to the Governor in Council that the applicant no longer be a listed entity.
Deeming
(3) If the Solicitor General does not make a decision on the application referred to in subsection (2) within 60 days after receipt of the application, the Solicitor General is deemed to have decided to recommend that the applicant remain a listed entity.
Notice of the decision to the applicant
(4) The Solicitor General must give notice without delay to the applicant of any decision taken or deemed to have been taken respecting the application referred to in subsection (2).
Judicial review
(5) Within 60 days after the receipt of the notice of the decision referred to in subsection (4), the applicant may apply to a judge for judicial review of the decision.
Reference
(6) When an application is made under subsection (5), the judge shall, without delay (a) examine, in private, any security or criminal intelligence reports considered in listing the applicant and hear any other evidence or information that may be presented by or on behalf of the Solicitor General and may, at the request of the
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Solicitor General, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion that the disclosure of the information would injure national security or endanger the safety of any person; (b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any person; (c) provide the applicant with a reasonable opportunity to be heard; and (d) determine whether the decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a listed entity. Evidence
(6.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
Publication
(7) The Solicitor General shall cause to be published, without delay, in the Canada Gazette notice of a final order of a court that the applicant no longer be a listed entity.
New application
(8) A listed entity may not make another application under subsection (2), except if there has been a material change in its circumstances since the time when the entity made its last application or if the Solicitor General has completed the review under subsection (9) .
Review of list
(9) Two years after the establishment of the list referred to in subsection (1), and every two years after that, the Solicitor General shall review the list to determine whether there are still reasonable grounds, as set out in subsection (1), for an entity to be a listed entity and make a recommendation to the Governor in Council as to whether the entity should remain a listed entity. The review does not affect the validity of the list.
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Completion of review
(10) The Solicitor General shall complete the review as soon as possible and in any event, no later than 120 days after its commencement. After completing the review, the Solicitor General shall cause to be published, without delay, in the Canada Gazette notice that the review has been completed.
Definition of ‘‘judge’’
(11) In this section, ‘‘judge’’ means the Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Chief Justice.
Admission of foreign information obtained in confidence
83.06 (1) For the purposes of subsection 83.05(6), in private and in the absence of the applicant or any counsel representing it, (a) the Solicitor General of Canada may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and (b) the judge shall examine the information and provide counsel representing the Solicitor General with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure would injure national security or endanger the safety of any person.
Return of information
(2) The information shall be returned to counsel representing the Solicitor General and shall not be considered by the judge in making the determination under paragraph 83.05(6)(d), if (a) the judge determines that the information is not relevant; (b) the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 83.05(6)(b); or (c) the Solicitor General withdraws the application.
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Use of information
(3) If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of persons, the information shall not be disclosed in the statement mentioned in paragraph 83.05(6)(b), but the judge may base the determination under paragraph 83.05(6)(d) on it.
Mistaken identity
83.07 (1) An entity claiming not to be a listed entity may apply to the Solicitor General of Canada for a certificate stating that it is not a listed entity.
Issuance of certificate
(2) The Solicitor General shall, within 15 days after receiving the application, issue a certificate if satisfied that the applicant is not a listed entity. Freezing of Property
Freezing of property
83.08 (1) No person in Canada and no Canadian outside Canada shall knowingly (a) deal directly or indirectly in any property that is owned or controlled by or on behalf of a terrorist group; (b) enter into or facilitate, directly or indirectly, any transaction in respect of property referred to in paragraph (a); or (c) provide any financial or other related services in respect of property referred to in paragraph (a) to, for the benefit of or at the direction of a terrorist group.
No civil liability
(2) A person who acts reasonably in taking, or omitting to take, measures to comply with subsection (1) shall not be liable in any civil action arising from having taken or omitted to take the measures, if the person took all reasonable steps to satisfy themself that the relevant property was owned or controlled by or on behalf of a terrorist group.
Exemptions
83.09 (1) The Solicitor General of Canada or a person designated by the Solicitor General may authorize any person in Canada or any Canadian outside Canada to carry out a specified activity or transaction that is prohibited by section 83.08, or a class of such activities or transactions.
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Ministerial authorization
(2) The Solicitor General or a person designated by the Solicitor General may make the authorization subject to any terms and conditions that are required in their opinion, and may amend, suspend, revoke or reinstate it.
Existing equities maintained
(3) All secured and unsecured rights and interests in the frozen property that are held by persons, other than terrorist groups or their agents, are entitled to the same ranking that they would have been entitled to had the property not been frozen.
Third party involvement
(4) If a person has obtained an authorization under subsection (1), any other person involved in carrying out the activity or transaction, or class of activities or transactions, to which the authorization relates is not subject to sections 83.08, 83.1 and 83.11 if the terms or conditions of the authorization that are imposed under subsection (2), if any, are met.
Disclosure
83.1 (1) Every person in Canada and every Canadian outside Canada shall disclose forthwith to the Commissioner of the Royal Canadian Mounted Police and to the Director of the Canadian Security Intelligence Service (a) the existence of property in their possession or control that they know is owned or controlled by or on behalf of a terrorist group; and (b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
Immunity
(2) No criminal or civil proceedings lie against a person for disclosure made in good faith under subsection (1).
Audit
83.11 (1) The following entities must determine on a continuing basis whether they are in possession or control of property owned or controlled by or on behalf of a listed entity: (a) authorized foreign banks within the meaning of section 2 of the Bank Act in respect of their business in Canada, or banks to which that Act applies;
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(b) cooperative credit societies, savings and credit unions and caisses populaires regulated by a provincial Act and associations regulated by the Cooperative Credit Associations Act; (c) foreign companies within the meaning of subsection 2(1) of the Insurance Companies Act in respect of their insurance business in Canada; (c.1) companies, provincial companies and societies within the meaning of subsection 2(1) of the Insurance Companies Act; (c.2) fraternal benefit societies regulated by a provincial Act in respect of their insurance activities, and insurance companies and other entities engaged in the business of insuring risks that are regulated by a provincial Act; (d) companies to which the Trust and Loan Companies Act applies; (e) trust companies regulated by a provincial Act; (f) loan companies regulated by a provincial Act; and (g) entities authorized under provincial legislation to engage in the business of dealing in securities, or to provide portfolio management or investment counselling services. Monthly report
(2) Subject to the regulations , every entity referred to in paragraphs (1)(a) to (g) must report, within the period specified by regulation or, if no period is specified, monthly, to the principal agency or body that supervises or regulates it under federal or provincial law either (a) that it is not in possession or control of any property referred to in subsection (1), or (b) that it is in possession or control of such property, in which case it must also report the number of persons, contracts or accounts involved and the total value of the property.
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Immunity
(3) No criminal or civil proceedings lie against a person for making a report in good faith under subsection (2).
Regulations
(4) The Governor in Council may make regulations (a) excluding any entity or class of entities from the requirement to make a report referred to in subsection (2), and specifying the conditions of exclusion; and (b) specifying a period for the purposes of subsection (2).
Offences — freezing of property, disclosure or audit
83.12 (1) Every one who contravenes any of sections 83.08, 83.1 and 83.11 is guilty of an offence and liable (a) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or (b) on conviction on indictment, to imprisonment for a term of not more than 10 years.
No contravention
(2) No person contravenes section 83.1 if they make the disclosure referred to in that section only to the Commissioner of the Royal Canadian Mounted Police or the Director of the Canadian Security Intelligence Service. Seizure and Restraint of Property
Seizure and restraint of assets
83.13 (1) Where a judge of the Federal Court, on an ex parte application by the Attorney General, after examining the application in private, is satisfied that there are reasonable grounds to believe that there is in any building, receptacle or place any property in respect of which an order of forfeiture may be made under subsection 83.14(5), the judge may issue (a) if the property is situated in Canada, a warrant authorizing a person named therein or a peace officer to search the building, receptacle or place for that property and to seize that property and any other property in respect of which that person or peace officer believes, on reasonable grounds, that an order of forfeiture may be made under that subsection; or
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(b) if the property is situated in or outside Canada, a restraint order prohibiting any person from disposing of, or otherwise dealing with any interest in, that property other than as may be specified in the order. Contents of application
(1.1) An affidavit in support of an application under subsection (1) may be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.
Appointment of manager
(2) On an application under subsection (1), at the request of the Attorney General, if a judge is of the opinion that the circumstances so require, the judge may (a) appoint a person to take control of, and to manage or otherwise deal with, all or part of the property in accordance with the directions of the judge; and (b) require any person having possession of that property to give possession of the property to the person appointed under paragraph (a).
Appointment of Minister of Public Works and Government Services
(3) When the Attorney General of Canada so requests, a judge appointing a person under subsection (2) shall appoint the Minister of Public Works and Government Services.
Power to manage
(4) The power to manage or otherwise deal with property under subsection (2) includes (a) in the case of perishable or rapidly depreciating property, the power to sell that property; and (b) in the case of property that has little or no value, the power to destroy that property.
Application for destruction order
(5) Before a person appointed under subsection (2) destroys property referred to in paragraph (4)(b), he or she shall apply to a judge of the Federal Court for a destruction order.
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Notice
(6) Before making a destruction order in relation to any property, a judge shall require notice in accordance with subsection (7) to be given to, and may hear, any person who, in the opinion of the judge, appears to have a valid interest in the property.
Manner of giving notice
(7) A notice under subsection (6) shall be given in the manner that the judge directs or as provided in the rules of the Federal Court.
Order
(8) A judge may order that property be destroyed if he or she is satisfied that the property has little or no financial or other value.
When management order ceases to have effect
(9) A management order ceases to have effect when the property that is the subject of the management order is returned to an applicant in accordance with the law or forfeited to Her Majesty.
Application to vary
(10) The Attorney General may at any time apply to a judge of the Federal Court to cancel or vary an order or warrant made under this section, other than an appointment made under subsection (3).
Procedure
(11) Subsections 462.32(4) and (6), sections 462.34 to 462.35 and 462.4, subsections 487(3) and (4) and section 488 apply, with such modifications as the circumstances require, to a warrant issued under paragraph (1)(a).
Procedure
(12) Subsections 462.33(4) and (6) to (11) and sections 462.34 to 462.35 and 462.4 apply, with such modifications as the circumstances require, to an order issued under paragraph (1)(b). Forfeiture of Property
Application for order of forfeiture
83.14 (1) The Attorney General may make an application to a judge of the Federal Court for an order of forfeiture in respect of (a) property owned or controlled by or on behalf of a terrorist group; or (b) property that has been or will be used, in whole or in part, to facilitate or carry out a terrorist activity.
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Contents of application
(2) An affidavit in support of an application by the Attorney General under subsection (1) may be sworn on information and belief, and, notwithstanding the Federal Court Rules, 1998, no adverse inference shall be drawn from a failure to provide evidence of persons having personal knowledge of material facts.
Respondents
(3) The Attorney General is required to name as a respondent to an application under subsection (1) only those persons who are known to own or control the property that is the subject of the application.
Notice
(4) The Attorney General shall give notice of an application under subsection (1) to named respondents in such a manner as the judge directs or as provided in the rules of the Federal Court.
Granting of forfeiture order
(5) If a judge is satisfied on a balance of probabilities that property is property referred to in paragraph (1)(a) or (b) , the judge shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
Use of proceeds
(5.1) Any proceeds that arise from the disposal of property under subsection (5) may be used to compensate victims of terrorist activities and to fund anti-terrorist initiatives in accordance with any regulations made by the Governor in Council under subsection (5.2).
Regulations
(5.2) The Governor in Council may make regulations for the purposes of specifying how the proceeds referred to in subsection (5.1) are to be distributed.
Order refusing forfeiture
(6) Where a judge refuses an application under subsection (1) in respect of any property, the judge shall make an order that describes the property and declares that it is not property referred to in that subsection.
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Notice
(7) On an application under subsection (1), a judge may require notice to be given to any person who, in the opinion of the Court, appears to have an interest in the property, and any such person shall be entitled to be added as a respondent to the application.
Third party interests
(8) If a judge is satisfied that a person referred to in subsection (7) has an interest in property that is subject to an application, has exercised reasonable care to ensure that the property would not be used to facilitate or carry out a terrorist activity, and is not a member of a terrorist group, the judge shall order that the interest is not affected by the forfeiture. Such an order shall declare the nature and extent of the interest in question.
Dwelling-house
(9) Where all or part of property that is the subject of an application under subsection (1) is a dwelling-house, the judge shall also consider (a) the impact of an order of forfeiture on any member of the immediate family of the person who owns or controls the dwellinghouse, if the dwelling-house was the member’s principal residence at the time the dwelling-house was ordered restrained or at the time the forfeiture application was made and continues to be the member’s principal residence; and (b) whether the member appears innocent of any complicity or collusion in the terrorist activity.
Motion to vary or set aside
(10) A person who claims an interest in property that was forfeited and who did not receive notice under subsection (7) may bring a motion to the Federal Court to vary or set aside an order made under subsection (5) not later than 60 days after the day on which the forfeiture order was made.
No extension of time
(11) The Court may not extend the period set out in subsection (10).
Disposition of property
83.15 Subsection 462.42(6) and sections 462.43 and 462.46 apply, with such modifications as the circumstances require, to property subject to a warrant or restraint order issued under subsection 83.13(1) or ordered forfeited under subsection 83.14(5).
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Interim preservation rights
83.16 (1) Pending any appeal of an order made under section 83.14, property restrained under an order issued under section 83.13 shall continue to be restrained, property seized under a warrant issued under that section shall continue to be detained, and any person appointed to manage, control or otherwise deal with that property under that section shall continue in that capacity.
Appeal of refusal to grant order
(2) Section 462.34 applies, with such modifications as the circumstances require, to an appeal taken in respect of a refusal to grant an order under subsection 83.14(5).
Other forfeiture provisions unaffected
83.17 (1) This Part does not affect the operation of any other provision of this or any other Act of Parliament respecting the forfeiture of property.
Priority for restitution to victims of crime
(2) Property is subject to forfeiture under subsection 83.14(5) only to the extent that it is not required to satisfy the operation of any other provision of this or any other Act of Parliament respecting restitution to, or compensation of, persons affected by the commission of offences. Participating, Facilitating, Instructing and Harbouring
Participation in activity of terrorist group
83.18 (1) Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Prosecution
(2) An offence may be committed under subsection (1) whether or not (a) a terrorist group actually facilitates or carries out a terrorist activity; (b) the participation or contribution of the accused actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or (c) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
2001 Meaning of participating or contributing
Loi antite (3) Participating in or contributing to an activity of a terrorist group includes (a) providing, receiving or recruiting a person to receive training; (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist group; (c) recruiting a person in order to facilitate or commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence; (d) entering or remaining in any country for the benefit of, at the direction of or in association with a terrorist group; and (e) making oneself, in response to instructions from any of the persons who constitute a terrorist group, available to facilitate or commit (i) a terrorism offence, or (ii) an act or omission outside Canada that, if committed in Canada, would be a terrorism offence.
Factors
(4) In determining whether an accused participates in or contributes to any activity of a terrorist group, the court may consider, among other factors, whether the accused (a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist group; (b) frequently associates with any of the persons who constitute the terrorist group; (c) receives any benefit from the terrorist group; or (d) repeatedly engages in activities at the instruction of any of the persons who constitute the terrorist group.
Facilitating terrorist activity
83.19 (1) Every one who knowingly facilitates a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
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(2) For the purposes of this Part, a terrorist activity is facilitated whether or not (a) the facilitator knows that a particular terrorist activity is facilitated; (b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or (c) any terrorist activity was actually carried out.
Commission of offence for terrorist group
83.2 Every one who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a terrorist group is guilty of an indictable offence and liable to imprisonment for life.
Instructing to carry out activity for terrorist group
83.21 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out any activity for the benefit of, at the direction of or in association with a terrorist group, for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity, is guilty of an indictable offence and liable to imprisonment for life.
Prosecution
(2) An offence may be committed under subsection (1) whether or not (a) the activity that the accused instructs to be carried out is actually carried out; (b) the accused instructs a particular person to carry out the activity referred to in paragraph (a); (c) the accused knows the identity of the person whom the accused instructs to carry out the activity referred to in paragraph (a); (d) the person whom the accused instructs to carry out the activity referred to in paragraph (a) knows that it is to be carried out for the benefit of, at the direction of or in association with a terrorist group; (e) a terrorist group actually facilitates or carries out a terrorist activity; (f) the activity referred to in paragraph (a) actually enhances the ability of a terrorist group to facilitate or carry out a terrorist activity; or
Loi antite (g) the accused knows the specific nature of any terrorist activity that may be facilitated or carried out by a terrorist group.
Instructing to carry out terrorist activity
83.22 (1) Every person who knowingly instructs, directly or indirectly, any person to carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for life.
Prosecution
(2) An offence may be committed under subsection (1) whether or not (a) the terrorist activity is actually carried out; (b) the accused instructs a particular person to carry out the terrorist activity; (c) the accused knows the identity of the person whom the accused instructs to carry out the terrorist activity; or (d) the person whom the accused instructs to carry out the terrorist activity knows that it is a terrorist activity.
Harbouring or concealing
83.23 Every one who knowingly harbours or conceals any person whom he or she knows to be a person who has carried out or is likely to carry out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Proceedings and Aggravated Punishment
Attorney General’s consent
83.24 Proceedings in respect of a terrorism offence or an offence under section 83.12 shall not be commenced without the consent of the Attorney General.
Jurisdiction
83.25 (1) Where a person is alleged to have committed a terrorism offence or an offence under section 83.12, proceedings in respect of that offence may, whether or not that person is in Canada, be commenced at the instance of the Government of Canada and conducted by the Attorney General of Canada or counsel acting on his or her behalf in any territorial division in Canada, if the offence is alleged to have occurred outside the province in which the proceedings are commenced, whether or not proceedings have previously been commenced elsewhere in Canada.
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Trial and punishment
(2) An accused may be tried and punished in respect of an offence referred to in subsection (1) in the same manner as if the offence had been committed in the territorial division where the proceeding is conducted.
Sentences to be served consecutively
83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to (a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events; and (b) any other sentence, other than one of life imprisonment, to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections.
Punishment for terrorist activity
83.27 (1) Notwithstanding anything in this Act, a person convicted of an indictable offence, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
Offender must be notified
(2) Subsection (1) does not apply unless the prosecutor satisfies the court that the offender, before making a plea, was notified that the application of that subsection would be sought. Investigative Hearing
Definition of ‘‘judge’’
83.28 (1) In this section and section 83.29, ‘‘judge’’ means a provincial court judge or a judge of a superior court of criminal jurisdiction.
Order for gathering evidence
(2) Subject to subsection (3), a peace officer may, for the purposes of an investigation of a terrorism offence, apply ex parte to a judge for an order for the gathering of information .
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Attorney General’s consent
(3) A peace officer may make an application under subsection (2) only if the prior consent of the Attorney General was obtained.
Making of order
(4) A judge to whom an application is made under subsection (2) may make an order for the gathering of information if the judge is satisfied that the consent of the Attorney General was obtained as required by subsection (3) and (a) that there are reasonable grounds to believe that (i) a terrorism offence has been committed, and (ii) information concerning the offence, or information that may reveal the whereabouts of a person suspected by the peace officer of having committed the offence, is likely to be obtained as a result of the order; or (b) that (i) there are reasonable grounds to believe that a terrorism offence will be committed, (ii) there are reasonable grounds to believe that a person has direct and material information that relates to a terrorism offence referred to in subparagraph (i), or that may reveal the whereabouts of an individual who the peace officer suspects may commit a terrorism offence referred to in that subparagraph, and (iii) reasonable attempts have been made to obtain the information referred to in subparagraph (ii) from the person referred to in that subparagraph.
Contents of order
(5) An order made under subsection (4) may (a) order the examination, on oath or not, of a person named in the order; (b) order the person to attend at the place fixed by the judge, or by the judge designated under paragraph (d), as the case may be, for the examination and to remain in attendance until excused by the presiding judge;
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(c) order the person to bring to the examination any thing in their possession or control, and produce it to the presiding judge; (d) designate another judge as the judge before whom the examination is to take place; and (e) include any other terms or conditions that the judge considers desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the protection of any ongoing investigation. Execution of order
(6) An order made under subsection (4) may be executed anywhere in Canada.
Variation of order
(7) The judge who made the order under subsection (4), or another judge of the same court, may vary its terms and conditions.
Obligation to answer questions and produce things
(8) A person named in an order made under subsection (4) shall answer questions put to the person by the Attorney General or the Attorney General’s agent , and shall produce to the presiding judge things that the person was ordered to bring, but may refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege.
Judge to rule
(9) The presiding judge shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.
No person excused from complying with subsection (8)
(10) No person shall be excused from answering a question or producing a thing under subsection (8) on the ground that the answer or thing may tend to incriminate the person or subject the person to any proceeding or penalty, but (a) no answer given or thing produced under subsection (8) shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136; and (b) no evidence derived from the evidence obtained from the person shall be used or received against the person in any criminal proceedings against that person, other than a prosecution under section 132 or 136.
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Right to counsel
(11) A person has the right to retain and instruct counsel at any stage of the proceedings.
Order for custody of thing
(12) The presiding judge, if satisfied that any thing produced during the course of the examination will likely be relevant to the investigation of any terrorism offence, shall order that the thing be given into the custody of the peace officer or someone acting on the peace officer’s behalf.
Arrest warrant
83.29 (1) The judge who made the order under subsection 83.28(4), or another judge of the same court, may issue a warrant for the arrest of the person named in the order if the judge is satisfied, on an information in writing and under oath, that the person (a) is evading service of the order; (b) is about to abscond; or (c) did not attend the examination, or did not remain in attendance, as required by the order.
Execution of warrant
(2) A warrant issued under subsection (1) may be executed at any place in Canada by any peace officer having jurisdiction in that place.
Person to be brought before judge
(3) A peace officer who arrests a person in the execution of a warrant issued under subsection (1) shall, without delay, bring the person, or cause the person to be brought, before the judge who issued the warrant or another judge of the same court. The judge in question may, to ensure compliance with the order, order that the person be detained in custody or released on recognizance, with or without sureties. Recognizance with Conditions
Attorney General’s consent required to lay information
83.3 (1) The consent of the Attorney General is required before a peace officer may lay an information under subsection (2).
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(2) Subject to subsection (1), a peace officer may lay an information before a provincial court judge if the peace officer (a) believes on reasonable grounds that a terrorist activity will be carried out; and (b) suspects on reasonable grounds that the imposition of a recognizance with conditions on a person, or the arrest of a person, is necessary to prevent the carrying out of the terrorist activity.
Appearance
(3) A provincial court judge who receives an information under subsection (2) may cause the person to appear before the provincial court judge.
Arrest without warrant
(4) Notwithstanding subsections (2) and (3), if (a) either (i) the grounds for laying an information referred to in paragraphs (2)(a) and (b) exist but, by reason of exigent circumstances, it would be impracticable to lay an information under subsection (2), or (ii) an information has been laid under subsection (2) and a summons has been issued, and (b) the peace officer suspects on reasonable grounds that the detention of the person in custody is necessary in order to prevent a terrorist activity, the peace officer may arrest the person without warrant and cause the person to be detained in custody, to be taken before a provincial court judge in accordance with subsection (6).
Duty of peace officer
(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b), (a) lay an information in accordance with subsection (2); or (b) release the person.
2001 When person to be taken before judge
Loi antite (6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules: (a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and (b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible, unless, at any time before the expiry of the time prescribed in paragraph (a) or (b) for taking the person before a provincial court judge, the peace officer, or an officer in charge within the meaning of Part XV, is satisfied that the person should be released from custody unconditionally, and so releases the person.
How person dealt with
(7) When a person is taken before a provincial court judge under subsection (6), (a) if an information has not been laid under subsection (2), the judge shall order that the person be released; or (b) if an information has been laid under subsection (2), (i) the judge shall order that the person be released unless the peace officer who laid the information shows cause why the detention of the person in custody is justified on one or more of the following grounds: (A) the detention is necessary to ensure the person’s appearance before a provincial court judge in order to be dealt with in accordance with subsection (8), (B) the detention is necessary for the protection or safety of the public, including any witness, having regard to all the circumstances including (I) the likelihood that, if the person is released from custody, a terrorist activity will be carried out, and
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Hearing before judge
(8) The provincial court judge before whom the person appears pursuant to subsection (3) (a) may, if satisfied by the evidence adduced that the peace officer has reasonable grounds for the suspicion, order that the person enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsection (10), that the provincial court judge considers desirable for preventing the carrying out of a terrorist activity; and (b) if the person was not released under subparagraph (7)(b)(i), shall order that the person be released, subject to the recognizance, if any, ordered under paragraph (a).
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Refusal to enter into recognizance
(9) The provincial court judge may commit the person to prison for a term not exceeding twelve months if the person fails or refuses to enter into the recognizance.
Conditions — firearms
(10) Before making an order under paragraph (8)(a) , the provincial court judge shall consider whether it is desirable, in the interests of the safety of the person or of any other person, to include as a condition of the recognizance that the person be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things, for any period specified in the recognizance, and where the provincial court judge decides that it is so desirable, the provincial court judge shall add such a condition to the recognizance.
Surrender, etc.
(11) If the provincial court judge adds a condition described in subsection (10) to a recognizance, the provincial court judge shall specify in the recognizance the manner and method by which (a) the things referred to in that subsection that are in the possession of the person shall be surrendered, disposed of, detained, stored or dealt with; and (b) the authorizations, licences and registration certificates held by the person shall be surrendered.
Reasons
(12) If the provincial court judge does not add a condition described in subsection (10) to a recognizance, the provincial court judge shall include in the record a statement of the reasons for not adding the condition.
Variance of conditions
(13) The provincial court judge may, on application of the peace officer, the Attorney General or the person, vary the conditions fixed in the recognizance.
Other provisions to apply
(14) Subsections 810(4) and (5) apply, with any modifications that the circumstances require, to proceedings under this section.
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83.31 (1) The Attorney General of Canada shall prepare and cause to be laid before Parliament and the Attorney General of every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of sections 83.28 and 83.29 that includes (a) the number of consents to make an application that were sought, and the number that were obtained, by virtue of subsections 83.28(2) and (3); (b) the number of orders for the gathering of information that were made under subsection 83.28(4); and (c) the number of arrests that were made with a warrant issued under section 83.29.
Annual report (section 83.3)
(2) The Attorney General of Canada shall prepare and cause to be laid before Parliament and the Attorney General of every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes (a) the number of consents to lay an information that were sought, and the number that were obtained, by virtue of subsections 83.3(1) and (2); (b) the number of cases in which a summons or a warrant of arrest was issued for the purposes of subsection 83.3(3); (c) the number of cases where a person was not released under subsection 83.3(7) pending a hearing; (d) the number of cases in which an order to enter into a recognizance was made under paragraph 83.3(8)(a), and the types of conditions that were imposed; (e) the number of times that a person failed or refused to enter into a recognizance, and the term of imprisonment imposed under subsection 83.3(9) in each case; and (f) the number of cases in which the conditions fixed in a recognizance were varied under subsection 83.3(13).
2001 Annual report (section 83.3)
Loi antite (3) The Solicitor General of Canada shall prepare and cause to be laid before Parliament and the Minister responsible for policing in every province shall publish or otherwise make available to the public an annual report for the previous year on the operation of section 83.3 that includes (a) the number of arrests without warrant that were made under subsection 83.3(4) and the period of the arrested person’s detention in custody in each case; and (b) the number of cases in which a person was arrested without warrant under subsection 83.3(4) and was released (i) by a peace officer under paragraph 83.3(5)(b), or (ii) by a 83.3(7)(a).
Limitation
judge
under
paragraph
(4) The annual report shall not contain any information the disclosure of which would (a) compromise or hinder an ongoing investigation of an offence under an Act of Parliament; (b) endanger the life or safety of any person; (c) prejudice a legal proceeding; or (d) otherwise be contrary to the public interest.
Sunset provision
83.32 (1) Sections 83.28, 83.29 and 83.3 cease to apply at the end of the fifteenth sitting day of Parliament after December 31, 2006 unless, before the end of that day, the application of those sections is extended by a resolution — the text of which is established under subsection (2) — passed by both Houses of Parliament in accordance with the rules set out in subsection (3).
Order in Council
(2) The Governor General in Council may, by order, establish the text of a resolution providing for the extension of the application of sections 83.28, 83.29 and 83.3 and specifying the period of the extension, which may not
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exceed five years from the first day on which the resolution has been passed by both Houses of Parliament. Rules
(3) A motion for the adoption of the resolution may be debated in both Houses of Parliament but may not be amended. At the conclusion of the debate, the Speaker of the House of Parliament shall immediately put every question necessary to determine whether or not the motion is concurred in.
Subsequent extensions
(4) The application of sections 83.28, 83.29 and 83.3 may be further extended in accordance with the procedure set out in this section, with the words ‘‘December 31, 2006’’ in subsection (1) read as ‘‘the expiration of the most recent extension under this section’’.
Definition of ‘‘sitting day of Parliament’’
(5) In subsection (1), ‘‘sitting day of Parliament’’ means a day on which both Houses of Parliament sit.
Transitional provision
83.33 (1) In the event that sections 83.28 and 83.29 cease to apply pursuant to section 83.32, proceedings commenced under those sections shall be completed if the hearing before the judge of the application made under subsection 83.28(2) began before those sections ceased to apply.
Transitional provision
(2) In the event that section 83.3 ceases to apply pursuant to section 83.32, a person detained in custody under section 83.3 shall be released when that section ceases to apply, except that subsections 83.3(7) to (14) continue to apply to a person who was taken before a judge under subsection 83.3(6) before section 83.3 ceased to apply. 5. The definition ‘‘offence’’ in section 183 of the Act is amended (a) by adding, immediately after the reference to ‘‘82 (possessing explosive),’’, a reference to ‘‘83.02 (providing or collecting property for certain activities), 83.03 (providing, making available, etc., property or services for terrorist purposes), 83.04 (using or possessing property for terrorist purposes), 83.18 (partici2001
Loi antite pation of terrorist group), 83.19 (facilitating terrorist activity), 83.2 (commission of offence for terrorist group), 83.21 (instructing to carry out activity for terrorist group), 83.22 (instructing to carry out terrorist activity), 83.23 (harbouring or concealing),’’; (b) by adding, immediately after the reference to ‘‘424 (threat to commit offences against internationally protected person),’’ a reference to ‘‘424.1 (threat against United Nations or associated personnel),’’; (c) by adding, immediately after the reference to ‘‘431 (attack on premises, residence or transport of internationally protected person),’’ a reference to ‘‘431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), 431.2 (explosive or other lethal device),’’; and (d) by adding, at the end of the definition, the words ‘‘, or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition ‘‘terrorism offence’’ in section 2 of this Act;’’.
1997, c. 23, s. 4
6. Subsection 185(1.1) of the Act is replaced by the following:
Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to (a) an offence under section 467.1; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence.
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1997, c. 23, s. 5
6.1 Subsection 186(1.1) of the Act is replaced by the following:
Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to (a) an offence under section 467.1; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence.
1997, c. 23, s. 6
7. Section 186.1 of the Act is replaced by the following:
Time limitation in relation to criminal organizations and terrorism offences
186.1 Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to (a) an offence under section 467.1; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence.
1997, c. 23, s. 7
8. Subsection 196(5) of the Act is replaced by the following:
Exception for criminal organizations and terrorism offences
(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to (a) an offence under section 467.1, (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization, or (c) a terrorism offence, and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
Loi antite 9. Section 231 of the Act is amended by adding the following after subsection (6):
Murder during terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused while committing or attempting to commit an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity. 10. The Act is amended by adding the following after section 320:
Warrant of seizure
320.1 (1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material that is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to (a) give an electronic copy of the material to the court; (b) ensure that the material is no longer stored on and made available through the computer system; and (c) provide the information necessary to identify and locate the person who posted the material.
Notice to person who posted the material
(2) Within a reasonable time after receiving the information referred to in paragraph (1)(c), the judge shall cause notice to be given to the person who posted the material, giving that person the opportunity to appear and be represented before the court and show cause why the material should not be deleted. If the person cannot be identified or located or does not reside in Canada, the judge may order the custodian of the computer system to post the text of the notice at the location where the material was previously stored and made available, until the time set for the appearance.
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Person who posted the material may appear
(3) The person who posted the material may appear and be represented in the proceedings in order to oppose the making of an order under subsection (5).
Non-appearance
(4) If the person who posted the material does not appear for the proceedings, the court may proceed ex parte to hear and determine the proceedings in the absence of the person as fully and effectually as if the person had appeared.
Order
(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, it may order the custodian of the computer system to delete the material.
Destruction of copy
(6) When the court makes the order for the deletion of the material, it may order the destruction of the electronic copy in the court’s possession.
Return of material
(7) If the court is not satisfied that the material is available to the public and is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).
Other provisions to apply
(8) Subsections 320(6) to (8) apply, with any modifications that the circumstances require, to this section.
When order takes effect
(9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.
R.S., c. 27 (1st Supp.), s. 55
11. Section 424 of the Act is replaced by the following:
Threat against internationally protected person
424. Every one who threatens to commit an offence under section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1 against an internationally protected person or who threatens to commit an offence under section 431 is guilty of an indictable offence and liable to imprisonment for a term of not more than five years.
2001 Threat against United Nations or associated personnel
Loi antite 424.1 Every one who, with intent to compel any person, group of persons, state or any international or intergovernmental organization to do or refrain from doing any act, threatens to commit an offence under section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1 against a member of United Nations personnel or associated personnel or threatens to commit an offence under section 431.1 is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years. 12. Section 430 of the Act is amended by adding the following after subsection (4):
Mischief relating to religious property
(4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
R.S., c. 27 (1st Supp.), s. 58
13. Section 431 of the Act is replaced by the following:
Attack on premises, residence or transport of internationally protected person
431. Every one who commits a violent attack on the official premises, private accommodation or means of transport of an internationally protected person that is likely to endanger the life or liberty of such a person is guilty of an indictable offence and liable to imprisonment for a term of not more than fourteen years.
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Attack on premises, accommodation or transport of United Nations or associated personnel
431.1 Every one who commits a violent attack on the official premises, private accommodation or means of transport of a member of United Nations personnel or associated personnel that is likely to endanger the life or liberty of such a person is guilty of an indictable offence and liable to imprisonment for a term of not more than fourteen years.
Definitions
431.2 (1) The following definitions apply in this section.
‘‘explosive or other lethal device’’ « engin explosif ou autre engin meurtrier »
‘‘explosive or other lethal device’’ means (a) an explosive or incendiary weapon or device that is designed to cause, or is capable of causing, death, serious bodily injury or substantial material damage; or (b) a weapon or device that is designed to cause, or is capable of causing, death, serious bodily injury or substantial material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances, or radiation or radioactive material.
‘‘infrastructure facility’’ « infrastructure »
‘‘infrastructure facility’’ means a publicly or privately owned facility that provides or distributes services for the benefit of the public, including services relating to water, sewage, energy, fuel and communications.
‘‘military forces of a state’’ « forces armées d’un État »
‘‘military forces of a state’’ means the armed forces that a state organizes, trains and equips in accordance with the law of the state for the primary purpose of national defence or national security, and every person acting in support of those armed forces who is under their formal command, control and responsibility.
‘‘place of public use’’ « lieu public »
‘‘place of public use’’ means those parts of land, a building, street, waterway or other location that are accessible or open to members of the public, whether on a continuous, periodic or occasional basis, and includes any commercial, business, cultural, historical, educational, religious, governmental,
Loi antite entertainment, recreational or other place that is accessible or open to the public on such a basis.
‘‘public transportation system’’ « système de transport public »
‘‘public transportation system’’ means a publicly or privately owned facility, conveyance or other thing that is used in connection with publicly available services for the transportation of persons or cargo.
Explosive or other lethal device
(2) Every one who delivers, places, discharges or detonates an explosive or other lethal device to, into, in or against a place of public use, a government or public facility, a public transportation system or an infrastructure facility, either with intent to cause death or serious bodily injury or with intent to cause extensive destruction of such a place, system or facility that results in or is likely to result in major economic loss, is guilty of an indictable offence and liable to imprisonment for life.
Armed forces
(3) For greater certainty, subsection (2) does not apply to an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or to activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.
1995, c. 39, s. 151(1)
14. (1) Subparagraph (a)(i) of the definition ‘‘enterprise crime offence’’ in section 462.3 of the Act is replaced by the following: (i) section 83.12 (offences — freezing of property, disclosure or audit), (i.01) subsection 99(1) (weapons trafficking),
(2) The definition ‘‘enterprise crime offence’’ in section 462.3 of the Act is amended by adding the following after paragraph (a): (a.01) a terrorism offence,
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15. Subsection 462.48(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b), by adding the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) a terrorism offence. 1997, c. 16, ss. 6(2) and (3)
16. (1) Subsections 486(2.11) and (2.2) of the Act are replaced by the following:
Testimony outside court room
(2.101) Notwithstanding section 650, where an accused is charged with an offence referred to in subsection (2.102), the presiding judge or justice, as the case may be, may order that any witness testify (a) outside the court room, if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and (b) outside the court room or behind a screen or other device that would allow the witness not to see the accused, if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness.
Offences
(2.102) The offences for the purposes of subsection (2.101) are (a) an offence under section 467.1; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Same procedure for opinion
(2.11) Where the judge or justice is of the opinion that it is necessary for the complainant or witness to testify in order to determine whether an order under subsection (2.1) or (2.101) should be made in respect of that complainant or witness, the judge or justice shall order that the complainant or witness testify pursuant to that subsection.
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Condition of exclusion
(2.2) A complainant or witness shall not testify outside the court room pursuant to subsection (2.1), (2.101) or (2.11) unless arrangements are made for the accused, the judge or justice and the jury to watch the testimony of the complainant or witness by means of closed-circuit television or otherwise and the accused is permitted to communicate with counsel while watching the testimony.
1999, c. 25, s. 2(3)
(2) Subsection 486(4.1) of the Act is replaced by the following:
Ban on publication, etc.
(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness — or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings — or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
Offences
(4.11) The offences for the purposes of subsection (4.1) are (a) a criminal organization offence; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
1999, c. 25, s. 2(3)
(3) Paragraphs 486(4.7)(b) to (e) of the Act are replaced by the following: (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
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(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; 1999, c. 25, s. 2(3)
(4) Paragraph 486(4.9)(c) of the Act is replaced by the following: (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
1998, c. 37, s. 15(2)
17. (1) Subparagraph (a)(i) of the definition ‘‘primary designated offence’’ in section 487.04 of the Act is replaced by the following: (i) section 75 (piratical acts), (i.01) section 76 (hijacking), (i.02) section 77 (endangering safety of aircraft or airport), (i.03) section 78.1 (seizing control of ship or fixed platform), (i.04) subsection 81(1) (using explosives), (i.05) section 83.18 (participation in activity of terrorist group), (i.06) section 83.19 (facilitating terrorist activity), (i.07) section 83.2 (commission of offence for terrorist group), (i.08) section 83.21 (instructing to carry out activity for terrorist group), (i.09) section 83.22 (instructing to carry out terrorist activity), (i.1) section 83.23 (harbouring or concealing), (i.11) section 151 (sexual interference), (2) Paragraph (a) of the definition ‘‘primary designated offence’’ in section 487.04 of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph
Loi antite (xv) and by adding the following after subparagraph (xvi): (xvii) section 279.1 (hostage taking), (xviii) section 431 (attack on premises, residence or transport of internationally protected person), (xix) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), and (xx) subsection 431.2(2) (explosive or other lethal device), (3) The definition ‘‘primary designated offence’’ in section 487.04 of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (c.1) an offence under any of the following provisions of the Security of Information Act, namely, (i) section 6 (approaching, entering, etc., a prohibited place), (ii) subsection 20(1) (threats or violence), and (iii) subsection 21(1) (harbouring or concealing), and
1998, c. 37, s. 15(2)
(4) Subparagraphs (a)(i) to (v) of the definition ‘‘secondary designated offence’’ in section 487.04 of the Act are repealed.
1998, c. 37, s. 15(2)
(5) Subparagraph (a)(xx) of the definition ‘‘secondary designated offence’’ in section 487.04 of the Act is repealed. 18. Section 490.1 of the Act is amended by adding the following after subsection (1):
Offence relating to financing of terrorism
(1.1) For the purposes of this section and sections 490.2 to 490.9, a terrorism offence is deemed to be a criminal organization offence.
1996, c. 19, s. 93.3; 1999, c. 25, s. 8(3)
19. (1) Subsection 515(4.1) of the Act is replaced by the following:
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(4.1) When making an order under subsection (2), in the case of an accused who is charged with (a) an offence in the commission of which violence against a person was used, threatened or attempted, (a.1) a terrorism offence, (b) an offence under section 264 (criminal harassment), (c) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, (d) an offence that involves, or the subjectmatter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or (e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act, the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person.
1999, c. 25, s. 8(4)
(2) The portion of subsection 515(4.2) of the Act before paragraph (a) is replaced by the following:
Additional conditions
(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence, to include as a condition of the order
Loi antite (3) Section 515 of the Act is amended by adding the following after subsection (4.2):
Offences
(4.3) The offences for the purposes of subsection (4.2) are (a) a terrorism offence; (b) an offence described in section 264; (c) an offence in the commission of which violence against a person was used, threatened or attempted; and (d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act. (4) Paragraph 515(6)(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (i) and by adding the following after subparagraph (ii): (iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence, (iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act, or (v) an offence under subsection 21(1) 22(1) or section 23 of the Security Information Act that is committed relation to on offence referred to subparagraph (iv),
or of in in
20. Paragraph 718.2(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (iii), by adding the word ‘‘or’’ at the end of subparagraph (iv) and by adding the following after subparagraph (iv): (v) evidence that the offence was a terrorism offence 21. Section 743.6 of the Act is amended by adding the following after subsection (1.1):
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Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for a terrorism offence, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.
1997, c. 23, s. 19
22. (1) Subsection 810.01(1) of the Act is replaced by the following:
Fear of criminal organization offence or terrorism offence
810.01 (1) A person who fears on reasonable grounds that another person will commit a criminal organization offence or a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.
1997, c. 23, s. 19
(2) Subsection 810.01(3) of the Act is replaced by the following:
Adjudication
(3) The provincial court judge before whom the parties appear may, if satisfied by the evidence adduced that the informant has reasonable grounds for the fear, order that the defendant enter into a recognizance to keep the peace and be of good behaviour for any period that does not exceed twelve months and to comply with any other reasonable conditions prescribed in the recognizance, including the conditions set out in subsection (5), that the provincial court judge considers desirable for preventing the commission of an offence referred to in subsection (1).
1997, c. 23, s. 27
23. The portion of section 811 of the Act before paragraph (a) is replaced by the following:
2001 Breach of recognizance
Loi antite 811. A person bound by a recognizance under section 83.3, 810, 810.01, 810.1 or 810.2 who commits a breach of the recognizance is guilty of Consequential Amendment
R.S., c. I-1
Identification of Criminals Act 23.1 Subsection 2(1) of the Identification of Criminals Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b), by adding the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) any person who is in lawful custody pursuant to section 83.3 of the Criminal Code. PART 2
R.S., c. O-5
OFFICIAL SECRETS ACT 24. The long title of the Official Secrets Act is replaced by the following: An Act respecting the security of information 25. Section 1 of the Act is replaced by the following:
Short title
1. This Act may be cited as the Security of Information Act. 26. (1) The definition ‘‘senior police officer’’ in subsection 2(1) of the Act is repealed. (2) The definition ‘‘Attorney General’’ in subsection 2(1) of the Act is replaced by the following:
‘‘Attorney General’’ « procureur général »
‘‘Attorney General’’ means the Attorney General of Canada and includes his or her lawful deputy; (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘communicate’’ « communiquer »
‘‘communicate’’ includes to make available;
‘‘foreign economic entity’’ « entité économique étrangère »
‘‘foreign economic entity’’ means
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‘‘foreign entity’’ « entité étrangère »
‘‘foreign entity’’ means (a) a foreign power, (b) a group or association of foreign powers, or of one or more foreign powers and one or more terrorist groups, or (c) a person acting at the direction of, for the benefit of or in association with a foreign power or a group or association referred to in paragraph (b);
‘‘foreign power’’ « puissance étrangère »
‘‘foreign power’’ means (a) the government of a foreign state, (b) an entity exercising or purporting to exercise the functions of a government in relation to a territory outside Canada regardless of whether Canada recognizes the territory as a state or the authority of that entity over the territory, or (c) a political faction or party operating within a foreign state whose stated purpose is to assume the role of government of a foreign state;
‘‘foreign state’’ « État étranger »
‘‘foreign state’’ means (a) a state other than Canada, (b) a province, state or other political subdivision of a state other than Canada, or (c) a colony, dependency, possession, protectorate, condominium, trust territory or any territory falling under the jurisdiction of a state other than Canada;
‘‘terrorist activity’’ « activité terroriste »
‘‘terrorist activity’’ has the same meaning as in subsection 83.01(1) of the Criminal Code;
2001 ‘‘terrorist group’’ « groupe terroriste »
Loi antite ‘‘terrorist group’’ has the same meaning as in subsection 83.01(1) of the Criminal Code. (4) Section 2 of the Act is amended by adding the following after subsection (3):
Facilitation
(4) For greater certainty, subsection 83.01(2) of the Criminal Code applies for the purposes of the definitions ‘‘terrorist activity’’ and ‘‘terrorist group’’ in subsection (1). 27. Section 3 of the Act is replaced by the following:
Prejudice to the safety or interest of the State
3. (1) For the purposes of this Act, a purpose is prejudicial to the safety or interests of the State if a person (a) commits, in Canada, an offence against the laws of Canada or a province that is punishable by a maximum term of imprisonment of two years or more in order to advance a political, religious or ideological purpose, objective or cause or to benefit a foreign entity or terrorist group; (b) commits, inside or outside Canada, a terrorist activity; (c) causes or aggravates an urgent and critical situation in Canada that (i) endangers the lives, health or safety of Canadians, or (ii) threatens the ability of the Government of Canada to preserve the sovereignty, security or territorial integrity of Canada; (d) interferes with a service, facility, system or computer program, whether public or private, or its operation, in a manner that has significant adverse impact on the health, safety, security or economic or financial well-being of the people of Canada or the functioning of any government in Canada; (e) endangers, outside Canada, any person by reason of that person’s relationship with Canada or a province or the fact that the person is doing business with or on behalf of the Government of Canada or of a province;
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(f) damages property outside Canada because a person or entity with an interest in the property or occupying the property has a relationship with Canada or a province or is doing business with or on behalf of the Government of Canada or of a province; (g) impairs or threatens the military capability of the Canadian Forces, or any part of the Canadian Forces; (h) interferes with the design, development or production of any weapon or defence equipment of, or intended for, the Canadian Forces, including any hardware, software or system that is part of or associated with any such weapon or defence equipment; (i) impairs or threatens the capabilities of the Government of Canada in relation to security and intelligence; (j) adversely affects the stability of the Canadian economy, the financial system or any financial market in Canada without reasonable economic or financial justification; (k) impairs or threatens the capability of a government in Canada, or of the Bank of Canada, to protect against, or respond to, economic or financial threats or instability; (l) impairs or threatens the capability of the Government of Canada to conduct diplomatic or consular relations, or conduct and manage international negotiations; (m) contrary to a treaty to which Canada is a party, develops or uses anything that is intended or has the capability to cause death or serious bodily injury to a significant number of people by means of (i) toxic or poisonous chemicals or their precursors, (ii) a microbial or other biological agent, or a toxin, including a disease organism, (iii) radiation or radioactivity, or (iv) an explosion; or (n) does or omits to do anything that is directed towards or in preparation of the undertaking of an activity mentioned in any of paragraphs (a) to (m).
Harm to Canadian interests
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(2) For the purposes of this Act, harm is caused to Canadian interests if a foreign entity or terrorist group does anything referred to in any of paragraphs (1)(a) to (n). 28. The Act is amended by adding the following before section 4: Miscellaneous Offences
1992, c. 47, s. 80
29. Sections 6 to 15 of the Act are replaced by the following:
Approaching, entering, etc., a prohibited place
6. Every person commits an offence who, for any purpose prejudicial to the safety or interests of the State, approaches, inspects, passes over, is in the neighbourhood of or enters a prohibited place at the direction of, for the benefit of or in association with a foreign entity or a terrorist group.
Interference
7. Every person commits an offence who, in the vicinity of a prohibited place, obstructs, knowingly misleads or otherwise interferes with or impedes a peace officer or a member of Her Majesty’s forces engaged on guard, sentry, patrol or other similar duty in relation to the prohibited place.
Special Operational Information and Persons Permanently Bound to Secrecy Definitions
8. (1) The following definitions apply in this section and sections 9 to 15.
‘‘department’’ « ministère »
‘‘department’’ means a department named in Schedule I to the Financial Administration Act, a division or branch of the public service of Canada set out in column I of Schedule I.1 to that Act and a corporation named in Schedule II to that Act.
‘‘government contractor’’ « partie à un contrat administratif »
‘‘government contractor’’ means a person who has entered into a contract or arrangement with Her Majesty in right of Canada, a department, board or agency of the Government of Canada or a Crown corporation as defined in subsection 83(1) of the Finan��
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cial Administration Act, and includes an employee of the person, a subcontractor of the person and an employee of the subcontractor. ‘‘person permanently bound to secrecy’’ « personne astreinte au secret à perpétuité »
‘‘person permanently bound to secrecy’’ means (a) a current or former member or employee of a department, division, branch or office of the public service of Canada, or any of its parts, set out in the schedule; or (b) a person who has been personally served with a notice issued under subsection 10(1) in respect of the person or who has been informed, in accordance with regulations made under subsection 11(2), of the issuance of such a notice in respect of the person.
‘‘special operational information’’ « renseignements opérationnels spéciaux »
‘‘special operational information’’ means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred, (a) the identity of a person, agency, group, body or entity that is or is intended to be, has been approached to be, or has offered or agreed to be, a confidential source of information, intelligence or assistance to the Government of Canada; (b) the nature or content of plans of the Government of Canada for military operations in respect of a potential, imminent or present armed conflict; (c) the means that the Government of Canada used, uses or intends to use, or is capable of using, to covertly collect or obtain, or to decipher, assess, analyse, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means; (d) whether a place, person, agency, group, body or entity was, is or is
Loi antite intended to be the object of a covert investigation, or a covert collection of information or intelligence, by the Government of Canada; (e) the identity of any person who is, has been or is intended to be covertly engaged in an information- or intelligencecollection activity or program of the Government of Canada that is covert in nature; (f) the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs (a) to (e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or (g) information or intelligence similar in nature to information or intelligence referred to in any of paragraphs (a) to (f) that is in relation to, or received from, a foreign entity or terrorist group.
Deputy head
(2) For the purposes of subsections 10(1) and 15(5), the deputy head is (a) for an individual employed in or attached or seconded to a department, the deputy head of the department; (b) for an officer or a non-commissioned member of the Canadian Forces, the Chief of the Defence Staff; (c) for a person who is a member of the exempt staff of a Minister responsible for a department, the deputy head of the department; (d) for a government contractor in relation to a contract with (i) the Department of Public Works and Government Services, the deputy head of that department or any other deputy head authorized for the purpose by the Minister of Public Works and Government Services, (ii) any other department, the deputy head of that department, and
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Anti-ter (iii) a Crown Corporation within the meaning of subsection 83(1) of the Financial Administration Act, the deputy head of the department of the minister responsible for the Crown Corporation; and
(e) for any other person, the Clerk of the Privy Council or a person authorized for the purpose by the Clerk of the Privy Council. Amending schedule
9. The Governor in Council may, by order, amend the schedule by adding or deleting the name of any current or former department, division, branch or office of the public service of Canada, or any of its parts, that, in the opinion of the Governor in Council, has or had a mandate that is primarily related to security and intelligence matters, or by modifying any name set out in the schedule.
Designation — persons permanently bound to secrecy
10. (1) The deputy head in respect of a person may, by notice in writing, designate the person to be a person permanently bound to secrecy if the deputy head is of the opinion that, by reason of the person’s office, position, duties, contract or arrangement, (a) the person had, has or will have authorized access to special operational information; and (b) it is in the interest of national security to designate the person.
Contents
(2) The notice must (a) specify the name of the person in respect of whom it is issued; (b) specify the office held, position occupied or duties performed by the person or the contract or arrangement in respect of which the person is a government contractor, as the case may be, that led to the designation; and (c) state that the person named in the notice is a person permanently bound to secrecy for the purposes of sections 13 and 14.
Exceptions
(3) The following persons may not be designated as persons permanently bound to secrecy, but they continue as such if they were persons permanently bound to secrecy before becoming persons referred to in this subsection:
Loi antite (a) the Governor General; (b) the lieutenant governor of a province; (c) a judge receiving a salary under the Judges Act; and (d) a military judge within the meaning of subsection 2(1) of the National Defence Act.
Service
11. (1) Subject to subsection (2), a person in respect of whom a notice is issued under subsection 10(1) is a person permanently bound to secrecy as of the moment the person is personally served with the notice or informed of the notice in accordance with the regulations.
Regulations
(2) The Governor in Council may make regulations respecting the personal service of notices issued under subsection 10(1) and regulations respecting personal notification of the issuance of a notice under that subsection when personal service is not practical.
Certificate
12. (1) Subject to subsection (2), a certificate purporting to have been issued by or under the authority of a Minister of the Crown in right of Canada stating that a person is a person permanently bound to secrecy shall be received and is admissible in evidence in any proceedings for an offence under section 13 or 14, without proof of the signature or authority of the Minister appearing to have signed it, and, in the absence of evidence to the contrary, is proof of the fact so stated.
Disclosure of certificate
(2) The certificate may be received in evidence only if the party intending to produce it has, before the trial, served on the party against whom it is intended to be produced reasonable notice of that intention, together with a duplicate of the certificate.
Purported communication
13. (1) Every person permanently bound to secrecy commits an offence who, intentionally and without authority, communicates or confirms information that, if it were true, would be special operational information.
Truthfulness of information
(2) For the purpose of subsection (1), it is not relevant whether the information to which the offence relates is true.
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Punishment
(3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years less a day.
Unauthorized communication of special operational information
14. (1) Every person permanently bound to secrecy commits an offence who, intentionally and without authority, communicates or confirms special operational information.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years.
Public interest defence
15. (1) No person is guilty of an offence under section 13 or 14 if the person establishes that he or she acted in the public interest.
Acting in the public interest
(2) Subject to subsection (4), a person acts in the public interest if (a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.
Paragraph (2)(a) to be considered first
(3) In determining whether a person acts in the public interest, a judge or court shall determine whether the condition in paragraph (2)(a) is satisfied before considering paragraph (2)(b).
Factors to be considered
(4) In deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure, a judge or court must consider (a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be; (b) the seriousness of the alleged offence; (c) whether the person resorted to other reasonably accessible alternatives before
Loi antite making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person; (d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest; (e) the public interest intended to be served by the disclosure; (f) the extent of the harm or risk of harm created by the disclosure; and (g) the existence of exigent circumstances justifying the disclosure.
Prior disclosure to authorities necessary
(5) A judge or court may decide whether the public interest in the disclosure outweighs the public interest in non-disclosure only if the person has complied with the following : (a) the person has, before communicating or confirming the information, brought his or her concern to, and provided all relevant information in his or her possession to, his or her deputy head or, if not reasonably practical in the circumstances, the Deputy Attorney General of Canada; and (b) the person has, if he or she has not received a response from the deputy head or the Deputy Attorney General of Canada, as the case may be, within a reasonable time, brought his or her concern to, and provided all relevant information in the person’s possession to, (i) the Security Intelligence Review Committee, if the person’s concern relates to an alleged offence that has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions of service for, or on behalf of, the Government of Canada, other than a person who is a member of the Communications Security Establishment, and he or she has not received a response from the Security Intelligence Review Committee within a reasonable time, or (ii) the Communications Security Establishment Commissioner, if the person’s concern relates to an alleged offence that has been, is being or is about to be
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Anti-ter committed by a member of the Communications Security Establishment, in the purported performance of that person’s duties and functions of service for, or on behalf of, the Communications Security Establishment, and he or she has not received a response from the Communications Security Establishment Commissioner within a reasonable time.
Exigent circumstances
(6) Subsection (5) does not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death. Communications with Foreign Entities or Terrorist Groups
Communicating safeguarded information
16. (1) Every person commits an offence who, without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if (a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and (b) the person intends, by communicating the information, to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests or is reckless as to whether the communication of the information is likely to increase the capacity of a foreign entity or a terrorist group to harm Canadian interests.
Communicating safeguarded information
(2) Every person commits an offence who, intentionally and without lawful authority, communicates to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard if (a) the person believes, or is reckless as to whether, the information is information that the Government of Canada or of a province is taking measures to safeguard; and (b) harm to Canadian interests results.
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Punishment
(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and is liable to imprisonment for life.
Communicating special operational information
17. (1) Every person commits an offence who, intentionally and without lawful authority, communicates special operational information to a foreign entity or to a terrorist group if the person believes, or is reckless as to whether, the information is special operational information.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life.
Breach of trust in respect of safeguarded information
18. (1) Every person with a security clearance given by the Government of Canada commits an offence who, intentionally and without lawful authority, communicates, or agrees to communicate, to a foreign entity or to a terrorist group any information that is of a type that the Government of Canada is taking measures to safeguard.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years. Economic Espionage
Use of trade secret for the benefit of foreign economic entity
19. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign economic entity, fraudulently and without colour of right and to the detriment of Canada’s economic interests, international relations or national defence or national security (a) communicates a trade secret to another person, group or organization; or (b) obtains, retains, alters or destroys a trade secret.
Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
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(3) A person is not guilty of an offence under subsection (1) if the trade secret was (a) obtained by independent development or by reason only of reverse engineering; or (b) acquired in the course of the person’s work and is of such a character that its acquisition amounts to no more than an enhancement of that person’s personal knowledge, skill or expertise.
Meaning of ‘‘trade secret’’
(4) For the purpose of this section, ‘‘trade secret’’ means any information, including a formula, pattern, compilation, program, method, technique, process, negotiation position or strategy or any information contained or embodied in a product, device or mechanism that (a) is or may be used in a trade or business; (b) is not generally known in that trade or business; (c) has economic value from not being generally known; and (d) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Foreign-influenced or Terrorist-influenced Threats or Violence Threats or violence
20. (1) Every person commits an offence who, at the direction of, for the benefit of or in association with a foreign entity or a terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done (a) that is for the purpose of increasing the capacity of a foreign entity or a terrorist group to harm Canadian interests; or (b) that is reasonably likely to harm Canadian interests.
2001 Application
Punishment
Harbouring or concealing
Punishment
Preparatory acts
Loi antite (2) A person commits an offence under subsection (1) whether or not the threat, accusation, menace or violence occurred in Canada. (3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for life. Harbouring or Concealing 21. (1) Every person commits an offence who, for the purpose of enabling or facilitating an offence under this Act, knowingly harbours or conceals a person whom he or she knows to be a person who has committed or is likely to commit an offence under this Act. (2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years. Preparatory Acts 22. (1) Every person commits an offence who, for the purpose of committing an offence under subsection 16(1) or (2), 17(1), 19(1) or 20(1), does anything that is specifically directed towards or specifically done in preparation of the commission of the offence, including (a) entering Canada at the direction of or for the benefit of a foreign entity, a terrorist group or a foreign economic entity; (b) obtaining, retaining or gaining access to any information; (c) knowingly communicating to a foreign entity, a terrorist group or a foreign economic entity the person’s willingness to commit the offence; (d) at the direction of, for the benefit of or in association with a foreign entity, a terrorist group or a foreign economic entity, asking a person to commit the offence; and (e) possessing any device, apparatus or software useful for concealing the content of information or for surreptitiously communicating, obtaining or retaining information.
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(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years. Conspiracy, Attempts, Etc.
Conspiracy, attempts, etc.
23. Every person commits an offence who conspires or attempts to commit, is an accessory after the fact in relation to or counsels in relation to an offence under this Act and is liable to the same punishment and to be proceeded against in the same manner as if he or she had committed the offence. GENERAL
Attorney General’s consent
24. No prosecution shall be commenced for an offence against this Act without the consent of the Attorney General.
Jurisdiction
25. An offence against this Act may be tried, in any place in Canada, regardless of where in Canada the offence was committed.
Extraterritorial application
26. (1) A person who commits an act or omission outside Canada that would be an offence against this Act if it were committed in Canada is deemed to have committed it in Canada if the person is (a) a Canadian citizen; (b) a person who owes allegiance to Her Majesty in right of Canada; (c) a person who is locally engaged and who performs his or her functions in a Canadian mission outside Canada ; or (d) a person who, after the time the offence is alleged to have been committed, is present in Canada.
Jurisdiction
(2) If a person is deemed to have committed an act or omission in Canada, proceedings in respect of the offence may, whether or not the person is in Canada, be commenced in any territorial division in Canada, and the person may be tried and punished in respect of the offence in the same manner as if the offence had been committed in that territorial division.
Loi antite
Appearance of accused at trial
(3) For greater certainty, the provisions of the Criminal Code relating to requirements that a person appear at and be present during proceedings and the exceptions to those requirements apply in respect of proceedings commenced in a territorial division under subsection (2).
Person previously tried outside Canada
(4) If a person is alleged to have committed an act or omission that is an offence by virtue of this section and the person has been tried and dealt with outside Canada in respect of the offence in a manner such that, if the person had been tried and dealt with in Canada, the person would be able to plead autrefois acquit, autrefois convict or pardon, the person shall be deemed to have been so tried and dealt with in Canada.
Punishment
27. Unless this Act provides otherwise, a person who commits an offence under this Act is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 14 years; or (b) an offence punishable on summary conviction and liable to imprisonment for a term of not more than 12 months or to a fine of not more than $2,000, or to both.
Part XII.2 of Criminal Code applicable
28. The definitions ‘‘judge’’ and ‘‘proceeds of crime’’ in section 462.3 of the Criminal Code, and sections 462.32 to 462.5 of that Act, apply with any modifications that the circumstances require in respect of proceedings for an offence under subsection 4(1), (2), (3) or (4), section 6, subsection 13(1), 14(1), 16(1) or (2), 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1) or section 23. 30. The Act is amended by adding, after section 28 , the schedule set out in Schedule 1 to this Act. Consequential Amendments
R.S. c. C-46
Criminal Code 31. The reference to ‘‘section 3 (spying) of the Official Secrets Act’’ in the definition ‘‘offence’’ in section 183 of the Criminal Code is replaced by the reference to ‘‘any offence under the Security of Information Act’’.
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32. The heading before item 91 and items 91 to 93 of the schedule to Part XX.1 of the Act are replaced by the following: SECURITY OF INFORMATION ACT 91. Subsection 4(1) — wrongful communication, etc., of information 92. Subsection 4(2) — communication sketch, plan, model, etc.
of
93. Subsection 4(3) — receiving code word, sketch, etc. 94. Subsection 4(4) — retaining or allowing possession of document, etc. 95. Subsection 5(1) — unauthorized use of uniforms, falsification of reports, forgery, personation and false documents 96. Subsection 5(2) — unlawful dealing with dies, seals, etc. 97. Section 6 — approaching, entering, etc., a prohibited place 98. Section 7 — interference 99. Subsection 13(1) — purported communication 100. Subsection 14(1) — unauthorized communication of special operational information 101. Subsection 16(1) — communicating safeguarded information 102. Subsection 16(2) — communicating safeguarded information 103. Subsection 17(1) — communicating special operational information 104. Subsection 18(1) — breach of trust in respect of safeguarded information 105. Subsection 19(1) — use of trade secret for the benefit of foreign economic entity 106. Subsection 20(1) — threats or violence 107. Subsection 21(1) — harbouring or concealing 108. Subsection 22(1) — preparatory acts 109. Section 23 — conspiracy attempt, etc.
2001 1999, c. 5, s. 52
Loi antite 33. Paragraph (b.1) of the definition ‘‘enterprise crime offence’’ in section 462.3 of the Act is replaced by the following: (b.1) an offence against section 126.1 or 126.2 or subsection 233(1) or 240(1) of the Excise Act, section 153, 159, 163.1 or 163.2 of the Customs Act, subsection 52.1(9) of the Competition Act or subsection 4(1), (2), (3) or (4), section 6, subsection 13(1), 14(1), 16(1) or (2), 17(1), 18(1), 19(1), 20(1), 21(1) or 22(1) or section 23 of the Security of Information Act, or
R.S., c. 27 (1st Supp.), s. 203 Exclusion of public in certain cases
R.S., c. I-1 1992, c. 47, s. 74(1)
34. Subsection 486(1) of the Act is replaced by the following: 486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice, or that it is necessary to prevent injury to international relations or national defence or national security, to exclude all or any members of the public from the court room for all or part of the proceedings, he or she may so order. Identification of Criminals Act 35. Subparagraph 2(1)(a)(ii) of the Identification of Criminals Act is replaced by the following: (ii) an offence under the Security of Information Act;
R.S., c. P-4
Person making assignment and person having knowledge thereof
Patent Act 36. Subsection 20(6) of the Patent Act is replaced by the following: (6) Any person who has made an assignment to the Minister of National Defence under this section, in respect of any covenants and agreements contained in such assignment for keeping the invention secret and otherwise
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in respect of all matters relating to that invention, and any other person who has knowledge of such assignment and of such covenants and agreements, shall be, for the purposes of the Security of Information Act, deemed to be persons having in their possession or control information respecting those matters that has been entrusted to them in confidence by any person holding office under Her Majesty, and the communication of any of that information by the first mentioned persons to any person other than one to whom they are authorized to communicate with, by or on behalf of the Minister of National Defence, is an offence under section 4 of the Security of Information Act.
R.S., c. V-2
Visiting Forces Act 37. The portion of section 20 of the Visiting Forces Act before paragraph (a) is replaced by the following:
Security of Information Act applicable
20. Subject to section 21, the Security of Information Act applies and shall be construed as applying in respect of a designated state as though 38. Section 21 of the Act is replaced by the following:
Exception
21. Section 26 of the Security of Information Act does not apply in respect of a designated state. Regulations
References
39. Every reference to the ‘‘Official Secrets Act’’ is replaced by a reference to the ‘‘Security of Information Act’’ in the following provisions: (a) subsection 27(1) of the Controlled Goods Regulations; (b) section 2 of the Grosse Isle, P.Q., Prohibited Place Order; (c) section 3 of the Exempt Personal Information Bank Order, No. 13 (RCMP); and (d) section 3 of the Exempt Personal Information Bank Order, No. 14 (CSIS).
Loi antite 40. Section 3 of the Exempt Personal Information Bank Order, No. 25 (RCMP) is replaced by the following: 3. For the purposes of paragraph 18(3)(b) of the Privacy Act, the laws concerned, in relation to those files that are contained in the exempt bank referred to in section 2 that consist predominantly of personal information described in subparagraph 22(1)(a)(ii) of that Act, are the Criminal Code, the Security of Information Act, the Security Offences Act, the Royal Canadian Mounted Police Act and the Canadian Security Intelligence Service Act.
41. Section 24 of the Military Rules of Evidence and the heading before it are replaced by the following: Offences under Security of Information Act 24. When a person is charged under section 130 of the National Defence Act with having committed an offence under section 6 of the Security of Information Act, the prosecutor may adduce evidence of that person’s character. 42. Paragraph 22(2)(d) of the Statutory Instruments Regulations is repealed. PART 3 R.S., c. C-5
CANADA EVIDENCE ACT 43. The heading before section 37 and sections 37 and 38 of the Canada Evidence Act are replaced by the following: Interpretation
Definition of ‘‘official’’
36.1 In sections 37 to 38.16, ‘‘official’’ has the same meaning as in section 118 of the Criminal Code.
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Objection to disclosure of information
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Specified Public Interest 37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
Obligation of court, person or body
(1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.
Objection made to superior court
(2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection.
Objection not made to superior court
(3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by (a) the Federal Court—Trial Division, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case.
Limitation period
(4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the court having jurisdiction to hear the application considers appropriate in the circumstances.
Disclosure order
(4.1) Unless the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the court may authorize by order the disclosure of the information.
Loi antite
Disclosure order
(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
Prohibition order
(6) If the court does not authorize disclosure under subsection (4.1) or (5), the court shall, by order, prohibit disclosure of the information.
Evidence
(6.1) The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.
When determination takes effect
(7) An order of the court that authorizes disclosure does not take effect until the time provided or granted to appeal the order, or a judgment of an appeal court that confirms the order, has expired, or no further appeal from a judgment that confirms the order is available.
Introduction into evidence
(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5), but who may not be able to do so by reason of the rules of admissibility that apply before the court, person or body with jurisdiction to compel the production of information, may request from the court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that court, as long as that form and those conditions comply with the order made under subsection (5).
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Relevant factors
(9) For the purpose of subsection (8), the court having jurisdiction under subsection (2) or (3) shall consider all the factors that would be relevant for a determination of admissibility before the court, person or body.
Appeal to court of appeal
37.1 (1) An appeal lies from a determination under any of subsections 37(4.1) to (6) (a) to the Federal Court of Appeal from a determination of the Federal Court—Trial Division; or (b) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.
Limitation period for appeal
(2) An appeal under subsection (1) shall be brought within 10 days after the date of the determination appealed from or within any further time that the court having jurisdiction to hear the appeal considers appropriate in the circumstances.
Limitation periods for appeals to Supreme Court of Canada
37.2 Notwithstanding any other Act of Parliament, (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made under subsection 37.1(1) shall be made within 10 days after the date of the judgment appealed from or within any further time that the court having jurisdiction to grant leave to appeal considers appropriate in the circumstances; and (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the court that grants leave.
Special rules
37.21 (1) A hearing under subsection 37(2) or (3) or an appeal of an order made under any of subsections 37(4.1) to (6) shall be heard in private.
2001 Representations
Loi antite (2) The court conducting a hearing under subsection 37(2) or (3) or the court hearing an appeal of an order made under any of subsections 37(4.1) to (6) may give (a) any person an opportunity to make representations; and (b) any person who makes representations under paragraph (a) the opportunity to make representations ex parte.
Protection of right to a fair trial
37.3 (1) A judge presiding at a criminal trial or other criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 37(4.1) to (6) in relation to that trial or proceeding or any judgment made on appeal of an order made under any of those subsections.
Potential orders
(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders: (a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence; (b) an order effecting a stay of the proceedings; and (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited. International Relations and National Defence and National Security
Definitions
38. The following definitions apply in this section and in sections 38.01 to 38.15.
‘‘judge’’ « juge »
‘‘judge’’ means the Chief Justice of the Federal Court or a judge of the Federal Court— Trial Division designated by the Chief Justice to conduct hearings under section 38.04.
‘‘participant’’ « participant »
‘‘participant’’ means a person who, in connection with a proceeding, is required to dis��
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close, or expects to disclose or cause the disclosure of, information. ‘‘potentially injurious information’’ « renseignements potentiellement préjudiciables »
‘‘potentially injurious information’’ means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
‘‘proceeding’’ « instance »
‘‘proceeding’’ means a proceeding before a court, person or body with jurisdiction to compel the production of information.
‘‘prosecutor’’ « poursuivant »
‘‘prosecutor’’ means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding.
‘‘sensitive information’’ « renseignements sensibles »
‘‘sensitive information’’ means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
Notice to Attorney General of Canada
38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
During a proceeding
(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
Loi antite
Notice of disclosure from official
(3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
During a proceeding
(4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
Military proceedings
(5) In the case of a proceeding under Part III of the National Defence Act, notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence.
Exception
(6) This section does not apply when (a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding; (b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under section 38, this section and sections 38.02 to 38.13, 38.15 and 38.16; (c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received; or
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(d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule. Exception
(7) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (6)(c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter with the person presiding under subsection (2).
Schedule
(8) The Governor in Council may, by order, add to or delete from the schedule a reference to any entity or purpose , or amend such a reference.
Disclosure prohibited
38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding (a) information about which notice is given under any of subsections 38.01(1) to (4); (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5); (c) the fact that an application is made to the Federal Court—Trial Division under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or (d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6).
Entities
(1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been
Loi antite given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given.
Exceptions
(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if (a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or (b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available.
Authorization by Attorney General of Canada
38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1).
Military proceedings
(2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence.
Notice
(3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information.
Disclosure agreement
38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court—Trial Division under paragraph 38.04(2)(c), enter into an agreement that permits the disclosure
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of part of the facts or information or disclosure of the facts or information subject to conditions. No application to Federal Court
(2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court—Trial Division under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2).
Application to Federal Court — Attorney General of Canada
38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court—Trial Division for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).
Application to Federal Court — general
(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions, (a) the Attorney General of Canada shall apply to the Federal Court—Trial Division for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness; (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court—Trial Division for an order with respect to disclosure of the information; and (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court—Trial Division for an order with respect to disclosure of the information.
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Notice to Attorney General of Canada
(3) A person who applies to the Federal Court—Trial Division under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.
Court records
(4) An application under this section is confidential. Subject to section 38.12, the Administrator of the Federal Court may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.
Procedure
(5) As soon as the Federal Court—Trial Division is seized of an application under this section, the judge (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter; (b) shall decide whether it is necessary to hold any hearing of the matter; (c) if he or she decides that a hearing should be held, shall (i) determine who should be given notice of the hearing, (ii) order the Attorney General of Canada to notify those persons, and (iii) determine the content and form of the notice; and (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations.
Disclosure agreement
(6) After the Federal Court—Trial Division is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of, (a) the Attorney General of Canada and the person who made the application may enter
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into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of the information, or disclosure of the facts or information subject to conditions; and (b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated. Termination of Court consideration, hearing, review or appeal
(7) Subject to subsection (6), after the Federal Court—Trial Division is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.
Report relating to proceedings
38.05 If he or she receives notice of a hearing under paragraph 38.04(5)(c), a person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside may, within 10 days after the day on which he or she receives the notice, provide the judge with a report concerning any matter relating to the proceeding that the person considers may be of assistance to the judge.
Disclosure order
38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information.
Disclosure order
(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and condi2001
Loi antite tions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
Order confirming prohibition
Evidence
Introduction into evidence
Relevant factors
Notice of order
Automatic review
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure. (3.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence. (4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2). (5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding. 38.07 The judge may order the Attorney General of Canada to give notice of an order made under any of subsections 38.06(1) to (3) to any person who, in the opinion of the judge, should be notified. 38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections 38.06(1) to (3) was not given the opportunity to make representations under paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court of Appeal for review.
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Appeal to Federal Court of Appeal
38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal.
Limitation period for appeal
(2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances.
Limitation periods for appeals to Supreme Court of Canada
38.1 Notwithstanding any other Act of Parliament,
Special rules
Ex parte representations
(a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the Supreme Court of Canada. 38.11 (1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall be heard in private and, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, shall be heard in the National Capital Region, as described in the schedule to the National Capital Act.
(2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National
Loi antite Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.
Protective order
38.12 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of the information to which the hearing, appeal or review relates.
Court records
(2) The court records relating to the hearing, appeal or review are confidential. The judge or the court may order that the records be sealed and kept in a location to which the public has no access.
Certificate of Attorney General of Canada
38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of Parliament.
Military proceedings
(2) In the case of a proceeding under Part III of the National Defence Act, the Attorney General of Canada may issue the certificate only with the agreement, given personally, of the Minister of National Defence.
Service of certificate
(3) The Attorney General of Canada shall cause a copy of the certificate to be served on (a) the person presiding or designated to preside at the proceeding to which the information relates or, if no person is designated, the person who has the authority to designate a person to preside; (b) every party to the proceeding;
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(c) every person who gives notice under section 38.01 in connection with the proceeding; (d) every person who, in connection with the proceeding, may disclose, is required to disclose or may cause the disclosure of the information about which the Attorney General of Canada has received notice under section 38.01; (e) every party to a hearing under subsection 38.04(5) or to an appeal of an order made under any of subsections 38.06(1) to (3) in relation to the information; (f) the judge who conducts a hearing under subsection 38.04(5) and any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3) in relation to the information; and (g) any other person who, in the opinion of the Attorney General of Canada, should be served. Filing of certificate
(4) The Attorney General of Canada shall cause a copy of the certificate to be filed (a) with the person responsible for the records of the proceeding to which the information relates; and (b) in the Registry of the Federal Court and the registry of any court that hears an appeal from, or review of, an order made under any of subsections 38.06(1) to (3).
Effect of certificate
(5) If the Attorney General of Canada issues a certificate, then, notwithstanding any other provision of this Act, disclosure of the information shall be prohibited in accordance with the terms of the certificate.
Statutory Instruments Act does not apply
(6) The Statutory Instruments Act does not apply to a certificate issued under subsection (1).
Publication
(7) The Attorney General of Canada shall, without delay after a certificate is issued, cause the certificate to be published in the Canada Gazette.
Restriction
(8) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with section 38.131.
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Expiration
(9) The certificate expires 15 years after the day on which it is issued and may be reissued.
Application for review of certificate
38.131 (1) A party to the proceeding referred to in section 38.13 may apply to the Federal Court of Appeal for an order varying or cancelling a certificate issued under that section on the grounds referred to in subsection (8) or (9), as the case may be.
Notice to Attorney General of Canada
(2) The applicant shall give notice of the application to the Attorney General of Canada.
Military proceedings
(3) In the case of proceedings under Part III of the National Defence Act, notice under subsection (2) shall be given to both the Attorney General of Canada and the Minister of National Defence.
Single judge
(4) Notwithstanding section 16 of the Federal Court Act, for the purposes of the application, the Federal Court of Appeal consists of a single judge of that Court.
Admissible information
(5) In considering the application, the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base a determination made under any of subsections (8) to (10) on that evidence.
Special rules and protective order
(6) Sections 38.11 and 38.12 apply, with any necessary modifications, to an application made under subsection (1).
Expedited consideration
(7) The judge shall consider the application as soon as reasonably possible, but not later than 10 days after the application is made under subsection (1).
Varying the certificate
(8) If the judge determines that some of the information subject to the certificate does not relate either to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or
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security, the judge shall make an order varying the certificate accordingly.
Cancelling the certificate
(9) If the judge determines that none of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or security, the judge shall make an order cancelling the certificate.
Confirming the certificate
(10) If the judge determines that all of the information subject to the certificate relates to information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act, or to national defence or security, the judge shall make an order confirming the certificate.
Determination is final
(11) Notwithstanding any other Act of Parliament, a determination of a judge under any of subsections (8) to (10) is final and is not subject to review or appeal by any court.
Publication
(12) If a certificate is varied or cancelled under this section, the Attorney General of Canada shall, as soon as possible after the decision of the judge and in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette (a) the certificate as varied under subsection (8); or (b) a notice of the cancellation of the certificate under subsection (9).
Protection of right to a fair trial
38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.
2001 Potential orders
Loi antite (2) The orders that may be made under subsection (1) include, but are not limited to, the following orders: (a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence; (b) an order effecting a stay of the proceedings; and (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
Fiat
38.15 (1) If sensitive information or potentially injurious information may be disclosed in connection with a prosecution that is not instituted by the Attorney General of Canada or on his or her behalf, the Attorney General of Canada may issue a fiat and serve the fiat on the prosecutor.
Effect of fiat
(2) When a fiat is served on a prosecutor, the fiat establishes the exclusive authority of the Attorney General of Canada with respect to the conduct of the prosecution described in the fiat or any related process.
Fiat filed in court
(3) If a prosecution described in the fiat or any related process is conducted by or on behalf of the Attorney General of Canada, the fiat or a copy of the fiat shall be filed with the court in which the prosecution or process is conducted.
Fiat constitutes conclusive proof
(4) The fiat or a copy of the fiat (a) is conclusive proof that the prosecution described in the fiat or any related process may be conducted by or on behalf of the Attorney General of Canada; and (b) is admissible in evidence without proof of the signature or official character of the Attorney General of Canada.
Military proceedings
(5) This section does not apply to a proceeding under Part III of the National Defence Act.
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38.16 The Governor in Council may make any regulations that the Governor in Council considers necessary to carry into effect the purposes and provisions of sections 38 to 38.15, including regulations respecting the notices, certificates and the fiat. Confidences of the Queen’s Privy Council for Canada 44. The Act is amended by adding, after section 54, the schedule set out in Schedule 2 to this Act. Consequential Amendments
R.S., c. H-6
Canadian Human Rights Act
1998, c. 9, s. 30
45. Section 58 of the Canadian Human Rights Act is replaced by the following:
Application respecting disclosure of information
58. (1) Subject to subsection (2) , if an investigator or a member or panel of the Tribunal requires the disclosure of any information and a minister of the Crown or any other interested person objects to its disclosure, the Commission may apply to the Federal Court for a determination of the matter and the Court may take any action that it considers appropriate .
Canada Evidence Act
(2) An objection to disclosure shall be determined in accordance with the Canada Evidence Act if (a) under subsection (1), a minister of the Crown or other official objects to the disclosure in accordance with sections 37 to 37.3 or section 39 of that Act; (b) within 90 days after the day on which the Commission applies to the Federal Court, a minister of the Crown or other official objects to the disclosure in accordance with sections 37 to 37.3 or section 39 of that Act; or (c) at any time, an objection to the disclosure is made, or a certificate is issued, in accordance with sections 38 to 38.13 of that Act.
2001 R.S., c. I-2 R.S., c. 29 (4th Supp.), s. 12(1) Application to have order quashed
Loi antite Immigration Act 46. Subsection 103.1(8) of the Immigration Act is replaced by the following: (8) Any person excluded by an order under subsection (7) from all or any part of the review under subsection (2) or (3) may apply to the Chief Justice of the Federal Court or to a judge of that Court designated by the Chief Justice for the purposes of this subsection to have the order quashed, and sections 37 to 38.16 of the Canada Evidence Act apply, with any modifications that the circumstances require, to such applications. PART 4
2000, c. 17
PROCEEDS OF CRIME (MONEY LAUNDERING) ACT 47. The long title of the Proceeds of Crime (Money Laundering) Act is replaced by the following: An Act to facilitate combatting the laundering of proceeds of crime and combatting the financing of terrorist activities, to establish the Financial Transactions and Reports Analysis Centre of Canada and to amend and repeal certain Acts in consequence
Short title
48. Section 1 of the Act is replaced by the following: 1. This Act may be cited as the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. 49. (1) The definitions ‘‘client’’ and ‘‘courier’’ in section 2 of the Act are replaced by the following:
‘‘client’’ « client »
‘‘client’’ means a person or an entity that engages in a financial transaction or activity with a person or an entity referred to in section 5, and includes a person or an entity on whose behalf the person or the entity that engages in the transaction or activity is acting.
‘‘courier’’ « messager »
‘‘courier’’ means a courier as defined by regulation.
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(2) Section 2 of the Act is amended by adding the following in alphabetical order: ‘‘entity’’ « entité »
‘‘entity’’ means a body corporate, a trust, a partnership, a fund or an unincorporated association or organization.
‘‘person’’ « personne » ‘‘terrorist activity’’ « activité terroriste »
‘‘person’’ means an individual.
‘‘terrorist activity financing offence’’ « infraction de financement des activités terroristes »
‘‘terrorist activity financing offence’’ means an offence under section 83.02, 83.03 or 83.04 of the Criminal Code or an offence under section 83.12 of the Criminal Code arising out of a contravention of section 83.08 of that Act.
‘‘threats to the security of Canada’’ « menaces envers la sécurité du Canada »
‘‘threats to the security of Canada’’ has the same meaning as in section 2 of the Canadian Security Intelligence Service Act.
‘‘terrorist activity’’ has the same meaning as in subsection 83.01(1) of the Criminal Code.
50. (1) The portion of paragraph 3(a) of the Act before subparagraph (ii) is replaced by the following: (a) to implement specific measures to detect and deter money laundering and the financing of terrorist activities and to facilitate the investigation and prosecution of money laundering offences and terrorist activity financing offences, including (i) establishing record keeping and client identification requirements for financial services providers and other persons or entities that engage in businesses, professions or activities that are susceptible to being used for money laundering or the financing of terrorist activities,
(2) Paragraph 3(c) of the Act is replaced by the following: (c) to assist in fulfilling Canada’s international commitments to participate in the
Loi antite fight against transnational crime, particularly money laundering, and the fight against terrorist activity. 51. (1) Paragraphs 5(g) to (j) of the Act are replaced by the following: (g) persons and entities authorized under provincial legislation to engage in the business of dealing in securities, or to provide portfolio management or investment counselling services; (h) persons and entities engaged in the business of foreign exchange dealing; (i) persons and entities engaged in a business, profession or activity described in regulations made under paragraph 73(1)(a); (j) persons and entities engaged in a business or profession described in regulations made under paragraph 73(1)(b), while carrying out the activities described in the regulations;
(2) Paragraph 5(m) of the Act is replaced by the following: (m) for the purposes of section 7, employees of a person or entity referred to in any of paragraphs (a) to (l). 52. Section 7 of the Act is replaced by the following: Transactions if reasonable grounds to suspect
7. In addition to the requirements of subsection 9(1), every person or entity shall report to the Centre, in the prescribed form and manner, every financial transaction that occurs in the course of their activities and in respect of which there are reasonable grounds to suspect that the transaction is related to the commission of a money laundering offence or a terrorist activity financing offence.
Disclosure
7.1 (1) In addition to the requirements of section 7 and subsection 9(1), every person or entity that is required to make a disclosure under section 83.1 of the Criminal Code shall also make a report on it to the Centre, in the prescribed form and manner.
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(2) Subsection (1) does not apply to prescribed persons or entities, or prescribed classes of persons or entities, in respect of prescribed transactions or property, or classes of transactions or property, if the prescribed conditions are met. 53. Section 10 of the Act is replaced by the following:
Reports under other Acts
9.1 Subject to section 9, every person or entity that is required to make a report to the Centre under an Act of Parliament or any regulations under it shall make it in the form and manner prescribed under this Act for a report under that Act.
Immunity
10. No criminal or civil proceedings lie against a person or an entity for making a report in good faith under section 7, 7.1 or 9, or for providing the Centre with information about suspicions of money laundering or of the financing of terrorist activities . 54. (1) Subsection 12(1) of the Act is replaced by the following:
Currency and monetary instruments
12. (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. (2) Paragraph 12(3)(a) of the Act is replaced by the following: (a) in the case of currency or monetary instruments in the actual possession of a person arriving in or departing from Canada, or that form part of their baggage if they and their baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; 55. The portion of subsection 15(1) of the Act after paragraph (c) is replaced by the following: if the officer suspects on reasonable grounds that the person has secreted on or about their person currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the
Loi antite purpose of subsection 12(1) and that have not been reported in accordance with that subsection. 56. Section 16 of the Act is replaced by the following:
Search of conveyance
16. (1) If an officer suspects on reasonable grounds that there are, on or about a conveyance, currency or monetary instruments of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, the officer may stop, board and search the conveyance, examine anything in or on it and open or cause to be opened any package or container in or on it and direct that the conveyance be moved to a customs office or other suitable place for the search, examination or opening.
Search of baggage
(2) If an officer suspects on reasonable grounds that there are, in baggage, currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, the officer may search the baggage, examine anything in it and open or cause to be opened any package or container in it and direct that the baggage be moved to a customs office or other suitable place for the search, examination or opening. 57. Subsection 17(1) of the Act is replaced by the following:
Examination and opening of mail
17. (1) An officer may examine any mail that is being imported or exported and open or cause to be opened any such mail that the officer suspects on reasonable grounds contains currency or monetary instruments of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1). 58. Subsection 18(2) of the Act is replaced by the following:
Return of seized currency or monetary instruments
(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the person from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of
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Mail to be made available to an officer
When forfeiture under s. 14(5)
When seizure or payment of a penalty
Request for Minister’s decision
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crime within the meaning of section 462.3 of the Criminal Code or funds for use in the financing of terrorist activities. 59. Subsection 21(1) of the Act is replaced by the following: 21. (1) On request of an officer, any mail that is being sent from a place in Canada to a place in a foreign country and that contains or is suspected to contain currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) shall be submitted by the Canada Post Corporation to an officer. 60. Section 22 of the Act is replaced by the following: 22. (1) An officer who retains currency or monetary instruments forfeited under subsection 14(5) shall send the currency or monetary instruments to the Minister of Public Works and Government Services. (2) An officer who seizes currency or monetary instruments or is paid a penalty under subsection 18(2) shall send the currency or monetary instruments or the penalty, as the case may be, to the Minister of Public Works and Government Services. 61. Section 25 of the Act is replaced by the following: 25. A person from whom currency or monetary instruments were seized under section 18, or the lawful owner of the currency or monetary instruments, may within 90 days after the date of the seizure request a decision of the Minister as to whether subsection 12(1) was contravened, by giving notice in writing to the officer who seized the currency or monetary instruments or to an officer at the customs office closest to the place where the seizure took place. 62. Subsection 27(2) of the Act is replaced by the following: (2) If charges are laid with respect to a money laundering offence or a terrorist activity financing offence in respect of the currency or monetary instruments seized, the Minister may defer making a decision but shall make it in any case no later than 30 days after the
Loi antite conclusion of all court proceedings in respect of those charges. 63. Subsection 32(1) of the Act is replaced by the following:
Interest as owner
32. (1) If currency or monetary instruments have been seized as forfeit under this Part, any person, other than the person in whose possession the currency or monetary instruments were when seized, who claims an interest in the currency or monetary instruments as owner may, within 90 days after the seizure, apply by notice in writing to the court for an order under section 33. 64. Subsections 36(2) and (3) of the Act are replaced by the following:
Disclosure of information to a police force
(2) An officer who has reasonable grounds to suspect that information referred to in subsection (1) would be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence may disclose the information to the appropriate police force.
Disclosure of information to the Centre
(3) An officer may disclose to the Centre information referred to in subsection (1) if the officer has reasonable grounds to suspect that it would be of assistance to the Centre in the detection, prevention or deterrence of money laundering or of the financing of terrorist activities. 65. Paragraph 40(b) of the Act is replaced by the following: (b) collects, analyses, assesses and discloses information in order to assist in the detection, prevention and deterrence of money laundering and of the financing of terrorist activities; 66. Paragraphs 54(a) and (b) of the Act are replaced by the following: (a) shall receive reports made under section 7, 7.1, 9, 12 or 20, incomplete reports sent under subsection 14(5), reports referred to in section 9.1, information provided to the Centre by any agency of another country that has powers and duties similar to those of the Centre, information provided to the Centre by law enforcement agencies or
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government institutions or agencies, and other information voluntarily provided to the Centre about suspicions of money laundering or of the financing of terrorist activities; (b) may collect information that the Centre considers relevant to money laundering activities or the financing of terrorist activities and that is publicly available, including commercially available databases, or that is stored in databases maintained by the federal or provincial governments for purposes related to law enforcement and in respect of which an agreement was entered into under subsection 66(1);
67. (1) The portion of subsection 55(1) of the Act before paragraph (a) is replaced by the following: Disclosure by Centre prohibited
55. (1) Subject to subsection (3), sections 52, 55.1 and 56.1, subsection 58(1) and section 65 and to subsection 12(1) of the Privacy Act, the Centre shall not disclose the following:
(2) Subsection 55(1) of the Act is amended by adding the following after paragraph (a): (a.1) information set out in a report made under section 7.1; (3) Subsection 55(1) of the Act is amended by adding the following after paragraph (b): (b.1) information set out in a report referred to in section 9.1; (4) Paragraph 55(1)(d) of the Act is replaced by the following: (d) information voluntarily provided to the Centre about suspicions of money laundering or of the financing of terrorist activities;
Loi antite (5) The portion of subsection 55(3) of the Act before paragraph (a) is replaced by the following:
Disclosure of designated information
(3) If the Centre, on the basis of its analysis and assessment under paragraph 54(c), has reasonable grounds to suspect that designated information would be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence, the Centre shall disclose the information to
(6) Subsection 55(3) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (b) and by repealing paragraph (c). (7) Subsections 55(4) to (5.1) of the Act are replaced by the following: Recording of reasons for decision
(5.1) The Centre shall record in writing the reasons for all decisions to disclose information made under subsection (3). (8) The portion of subsection 55(7) of the Act before paragraph (a) is replaced by the following:
Definition of ‘‘designated information’’
(7) For the purposes of subsection (3), ‘‘designated information’’ means, in respect of a financial transaction or an importation or exportation of currency or monetary instruments,
2001, c. 12, s. 2
(9) Paragraph 55(7)(e) of the Act is replaced by the following: (e) any other similar identifying information that may be prescribed for the purposes of this section. 68. Section 56 of the Act is replaced by the following:
Disclosure of information to the Canadian Security Intelligence Service
55.1 (1) If the Centre, on the basis of its analysis and assessment under paragraph 54(c), has reasonable grounds to suspect that designated information would be relevant to threats to the security of Canada, the Centre shall disclose that information to the Canadian Security Intelligence Service.
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Recording of reasons for decision
(2) The Centre shall record in writing the reasons for all decisions to disclose information made under subsection (1).
Definition of ‘‘designated information’’
(3) For the purposes of subsection (1), ‘‘designated information’’ means, in respect of a financial transaction or an importation or exportation of currency or monetary instruments, (a) the name of the client or of the importer or exporter, or any person or entity acting on their behalf; (b) the name and address of the place of business where the transaction occurred or the address of the customs office where the importation or exportation occurred, and the date the transaction, importation or exportation occurred; (c) the amount and type of currency or monetary instruments involved or, in the case of a transaction, if no currency or monetary instruments are involved, the value of the transaction or the value of the funds that are the subject of the transaction; (d) in the case of a transaction, the transaction number and the account number, if any; and (e) any other similar identifying information that may be prescribed for the purposes of this section.
Agreements and arrangements
56. (1) The Minister may enter into an agreement or arrangement, in writing, with the government of a foreign state, or an international organization established by the governments of foreign states regarding the exchange, between the Centre and any institution or agency of that state or organization that has powers and duties similar to those of the Centre, of information that the Centre, institution or agency has reasonable grounds to suspect would be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence.
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Agreements and arrangements — Centre
(2) The Centre may, with the approval of the Minister, enter into an agreement or arrangement, in writing, with an institution or agency of a foreign state that has powers and duties similar to those of the Centre, regarding the exchange, between the Centre and the institution or agency, of information that the Centre, institution or agency has reasonable grounds to suspect would be relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence.
Purposes
(3) Agreements or arrangements entered into under subsection (1) or (2) must (a) restrict the use of information to purposes relevant to investigating or prosecuting a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence; and (b) stipulate that the information be treated in a confidential manner and not be further disclosed without the express consent of the Centre.
Disclosure to foreign agencies
56.1 (1) The Centre may disclose designated information to an institution or agency of a foreign state or of an international organization established by the governments of foreign states that has powers and duties similar to those of the Centre, if (a) the Centre has reasonable grounds to suspect that the information would be relevant to the investigation or prosecution of a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence; and (b) the Minister has, in accordance with subsection 56(1), entered into an agreement or arrangement with that foreign state or international organization regarding the exchange of such information.
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(2) The Centre may disclose designated information to an institution or agency of a foreign state that has powers and duties similar to those of the Centre, if (a) the Centre has reasonable grounds to suspect that the information would be relevant to the investigation or prosecution of a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence; and (b) the Centre has, in accordance with subsection 56(2), entered into an agreement or arrangement with that institution or agency regarding the exchange of such information.
Request for information
(2.1) For greater certainty, designated information may be disclosed to an institution or agency under subsection (1) or (2) in response to a request made by the institution or agency.
Other disclosure
(3) In order to perform its functions under paragraph 54(c), the Centre may direct queries to an institution or agency in respect of which an agreement referred to in subsection (1) or (2) has been entered into, and in doing so it may disclose designated information.
Recording of reasons for decision
(4) The Centre shall record in writing the reasons for all decisions to disclose information made under paragraph (1)(a) or (2)(a).
Definition of ‘‘designated information’’
(5) For the purposes of this section, ‘‘designated information’’ means, in respect of a financial transaction or an importation or exportation of currency or monetary instruments, (a) the name of the client or of the importer or exporter, or any person or entity acting on their behalf; (b) the name and address of the place of business where the transaction occurred or the address of the customs office where the importation or exportation occurred, and the date the transaction, importation or exportation occurred; (c) the amount and type of currency or monetary instruments involved or, in the
Loi antite case of a transaction, if no currency or monetary instruments are involved, the value of the transaction or the value of the funds that are the subject of the transaction; (d) in the case of a transaction, the transaction number and the account number, if any; and (e) any other similar identifying information that may be prescribed for the purposes of this section. 69. Paragraphs 58(1)(a) to (c) of the Act are replaced by the following: (a) inform persons and entities that have provided a report under section 7, 7.1 or 9, or a report referred to in section 9.1, about measures that have been taken with respect to reports under those sections; (b) conduct research into trends and developments in the area of money laundering and the financing of terrorist activities and improved ways of detecting, preventing and deterring money laundering and the financing of terrorist activities; and (c) undertake measures to inform the public, persons and entities referred to in section 5, authorities engaged in the investigation and prosecution of money laundering offences and terrorist activity financing offences, and others, with respect to (i) their obligations under this Act, (ii) the nature and extent of money laundering in Canada, (ii.1) the nature and extent of the financing of terrorist activities in Canada, and (iii) measures that have been or might be taken to detect, prevent and deter money laundering and the financing of terrorist activities in Canada, and the effectiveness of those measures.
70. Subsection 59(1) of the Act is replaced by the following:
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Immunity from compulsory processes
59. (1) Subject to section 36 of the Access to Information Act and section 34 of the Privacy Act, the Centre, and any person who has obtained or who has or had access to any information or documents in the course of exercising powers or performing duties and functions under this Act, other than Part 2, is required to comply with a subpoena, a summons, an order for production of documents, or any other compulsory process only if it is issued in the course of court proceedings in respect of a money laundering offence, a terrorist activity financing offence or an offence under this Act in respect of which an information has been laid or an indictment preferred or, in the case of an order for production of documents, if it is issued under section 60.1 for the purposes of an investigation in respect of a threat to the security of Canada.
2001, c. 12, s. 3
71. (1) Subsections 60(1) and (2) of the Act are replaced by the following:
Limitation on orders for disclosure of information
60. (1) Despite the provisions of any other Act, except sections 49 and 50 of the Access to Information Act and sections 48 and 49 of the Privacy Act, an order for disclosure of information may be issued in respect of the Centre only under subsection (4) or section 60.1.
Purpose of application
(2) The Attorney General may, for the purposes of an investigation in respect of a money laundering offence or a terrorist activity financing offence, make an application under subsection (3) for an order for disclosure of information. (2) Paragraph 60(3)(d) of the Act is replaced by the following: (d) the facts relied on to justify the belief, on reasonable grounds, that the person referred to in paragraph (b) has committed or benefited from the commission of a money laundering offence or a terrorist activity financing offence and that the information or documents referred to in paragraph (c) are likely to be of substantial value, whether alone or together with other material, to an investigation in respect of that offence;
Loi antite (3) Paragraph 60(8)(a) of the Act is replaced by the following: (a) the Director is prohibited from disclosing the information or document by any bilateral or international treaty, convention or other agreement to which the Government of Canada is a signatory respecting the sharing of information related to a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence; 72. The Act is amended by adding the following after section 60:
Application for production order
60.1 (1) The Director of the Canadian Security Intelligence Service, or any employee of the Canadian Security Intelligence Service, may, for the purposes of an investigation in respect of a threat to the security of Canada, after having obtained the approval of the Solicitor General of Canada, make an application under subsection (2) to a judge for an order for disclosure of information.
Matters to be specified in application for production order
(2) An application shall be made ex parte in writing and be accompanied by an affidavit of the applicant deposing to the following matters: (a) the person or entity in relation to whom the information or documents referred to in paragraph (b) are required; (b) the type of information or documents — whether in written form, in the form of a report or record or in any other form — obtained by or on behalf of the Director in respect of which disclosure is sought; (c) the facts relied on to justify the belief, on reasonable grounds, that a production order under this section is required to enable the Canadian Security Intelligence Service to investigate a threat to the security of Canada; (d) a summary of any information already received from the Centre in respect of the threat to the security of Canada; and (e) information respecting all previous applications brought under this section in respect of any person or entity being
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investigated in relation to the threat to the security of Canada. Order for disclosure of information
(3) Subject to the conditions that the judge considers advisable in the public interest, the judge to whom an application is made may order the Director — or any person specially designated in writing by the Director for the purpose of this section — to allow an employee of the Canadian Security Intelligence Service named in the order to have access to and examine all information and documents to which the application relates or, if the judge considers it necessary in the circumstances, to produce the information and documents to the employee and allow the employee to remove them, if the judge is satisfied (a) of the matters referred to in subsection (2); and (b) that there are reasonable grounds for believing that it is in the public interest to allow access to the information or documents, having regard to the benefit likely to accrue to the investigation if the access is obtained. The order must be complied with within the period following the service of the order that the judge may specify.
Maximum duration of production order
(4) A production order shall not be issued under subsection (3) for a period exceeding sixty days.
Service of order
(5) A copy of the order shall be served on the person or entity to whom it is addressed in the manner that the judge directs or as may be prescribed by rules of court.
Extension of period for compliance with order
(6) A judge who makes an order under subsection (3) may, on application of the Director, extend the period within which it is to be complied with.
Objection to disclosure of information
(7) The Director — or any person specially designated in writing by the Director for the purposes of this section — may object to the disclosure of any information or document in respect of which an order under subsection (3) has been made by certifying orally or in writing that it should not be disclosed on the ground that (a) the Director is prohibited from disclosing the information or document by any
Loi antite bilateral or international treaty, convention or other agreement to which the Government of Canada is a signatory respecting the sharing of information related to a money laundering offence or a terrorist activity financing offence, or an offence that is substantially similar to either offence; (b) a privilege is attached by law to the information or document; (c) the information or document has been placed in a sealed package pursuant to law or an order of a court of competent jurisdiction; or (d) disclosure of the information or document would not, for any other reason, be in the public interest.
Determination of objection
(8) An objection made under subsection (7) may be determined, on application, in accordance with subsection (9), by the Chief Justice of the Federal Court, or by any other judge of that Court that the Chief Justice may designate to hear those applications.
Judge may examine information
(9) A judge who is to determine an objection may, if the judge considers it necessary to determine the objection, examine the information or document in relation to which the objection is made. The judge shall grant the objection and order that disclosure be refused if the judge is satisfied of any of the grounds mentioned in subsection (7).
Limitation period
(10) An application under subsection (8) shall be made within 10 days after the objection is made or within such greater or lesser period as the Chief Justice of the Federal Court, or any other judge of that Court that the Chief Justice may designate to hear those applications, considers appropriate in the circumstances.
Appeal to Federal Court of Appeal
(11) An appeal lies from a determination under subsection (8) to the Federal Court of Appeal.
Limitation period for appeal
(12) An appeal under subsection (11) shall be brought within 10 days after the date of the determination appealed from or within such further time as the Federal Court of Appeal considers appropriate in the circumstances.
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Special rules for hearings
(13) An application under subsection (8) or an appeal brought in respect of that application shall be heard in private and, on the request of the person objecting to the disclosure of the information or documents, be heard and determined in the National Capital Region described in the schedule to the National Capital Act.
Ex parte representations
(14) During the hearing of an application under subsection (8) or an appeal brought in respect of that application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.
Copies
(15) Where any information or document is examined or provided under subsection (3), the person by whom it is examined or to whom it is provided or any employee of the Centre may make, or cause to be made, one or more copies of it and any copy purporting to be certified by the Director or an authorized person to be a copy made under this subsection is evidence of the nature and content of the original information or document and has the same probative force as the original information or document would have had if it had been proved in the ordinary way.
Definition of ‘‘judge’’
(16) In this section, ‘‘judge’’ means a judge of the Federal Court designated by the Chief Justice of the Federal Court for the purposes of the Canadian Security Intelligence Service Act.
Hearing of applications
60.2 An application under subsection 60.1(2) to a judge for a production order, or an objection under subsection 60.1(7), shall be heard in private in accordance with regulations made under section 28 of the Canadian Security Intelligence Service Act. 73. (1) Paragraphs 73(1)(e.1) to (g) of the Act are replaced by the following: (e.1) specifying the information to be contained in a report under section 7 or 7.1 or subsection 9(1); (f) specifying measures that persons or entities are to take to identify any person or
Loi antite entity in respect of which a record is required to be kept or a report made; (g) defining ‘‘casinos’’, ‘‘courier’’ and ‘‘monetary instruments’’; (2) Subsections 73(2) and (3) of the Act are repealed. 74. Section 75 of the Act is replaced by the following:
Reporting — sections 7 and 7.1
75. (1) Every person or entity that knowingly contravenes section 7 or 7.1 is guilty of an offence and liable (a) on summary conviction, (i) for a first offence, to a fine of not more than $500,000 or to imprisonment for a term of not more than six months, or to both, and (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than one year, or to both; or (b) on conviction on indictment, to a fine of not more than $2,000,000 or to imprisonment for a term of not more than five years, or to both.
Defence for employees
(2) No employee of a person or an entity shall be convicted of an offence under subsection (1) in respect of a transaction or proposed transaction that they reported to their superior or in respect of property whose existence they reported to their superior. 75. Section 80 of the Act is replaced by the following:
Exemption
80. A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under any of sections 74 to 77 if the peace officer or person does any of the things mentioned in those sections for the purpose of investigating a money laundering offence or a terrorist activity financing offence.
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R.S., c. A-1
Access to Information Act 76. Schedule II to the Access to Information Act is amended by replacing ‘‘Proceeds of Crime (Money Laundering) Act’’ with ‘‘Proceeds of Crime (Money Laundering) and Terrorist Financing Act’’.
R.S., c. C-10
Canada Post Corporation Act
R.S., c. 1 (2nd Supp.), s. 170(2)
77. Subsection 40(3) of the Canada Post Corporation Act, as enacted by section 86 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following:
Liability to seizure
(3) Notwithstanding any other Act or law, but subject to this Act and the regulations and to the Canadian Security Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, nothing in the course of post is liable to demand, seizure, detention or retention.
R.S., c. 1 (2nd Supp), s. 171
78. Subsections 42(2) and (2.1) of the Act, as enacted by section 87 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, are replaced by the following: (2) All mail that is submitted to a customs officer under this section remains, for the purposes of this Act, in the course of post unless it is seized under the Customs Act or seized or retained under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Mail in the course of post
Notice of seizure or detention
(2.1) If mail is seized or detained under the Customs Act or seized or retained under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, notice of the seizure, detention or retention shall be given in writing to the Corporation within sixty days after the seizure, detention or retention unless the mail
R.S., c. 1 (2nd Supp.), s. 172(1)
Loi antite has, before the expiry of that time, been delivered to the addressee of the mail or returned to the Corporation. 79. Section 48 of the Act, as enacted by section 88 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following:
Opening mail
48. Every person commits an offence who, except where expressly authorized by or under this Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, knowingly opens, keeps, secretes, delays or detains, or permits to be opened, kept, secreted, delayed or detained, any mail bag or mail or any receptacle or device authorized by the Corporation for the posting of mail.
R.S., c. C-46
Criminal Code
2000, c. 17, s. 89
80. Subsection 488.1(11) of the Criminal Code is replaced by the following: (11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act or under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Exception
2000, c. 5
Personal Information Protection and Electronic Documents Act 81. Subsection 7(3) of the Personal Information Protection and Electronic Documents Act is amended by adding the following after paragraph (c.1): (c.2) made to the government institution mentioned in section 7 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act as required by that section;
82. Subsection 9(2.3) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (a) and by adding the following after paragraph (a):
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(a.1) the detection, prevention or deterrence of money laundering or the financing of terrorist activities; or 1993, c. 37
Seized Property Management Act 83. Subparagraph 3(b)(iv) of the Seized Property Management Act, as enacted by section 92 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following: (iv) forfeited under subsection 14(5), seized under subsection 18(1) or paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; 84. Paragraph 4(1)(b.1) of the Act, as enacted by section 93 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following: (b.1) forfeited under subsection 14(5), seized under subsection 18(1) or paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act; or
1995, c. 22, s. 18 (Sch. IV, item 11)
85. Paragraph 9(e) of the Act, as enacted by section 94 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following: (e) notwithstanding subsection 734.4(2) of the Criminal Code and sections 125 and 126 of the Excise Act, if a fine, or any portion of a fine, imposed under subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada is paid or recovered or if a penalty is paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, share the amount of the fine or penalty in accordance with this Act, the regulations and any agreement entered into under section 11;
Loi antite 86. Subsection 10(2) of the Act, as enacted by section 95 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, chapter 17 of the Statutes of Canada, 2000, is replaced by the following:
Proceeds of Crime (Money Laundering) and Terrorist Financing Act
(2) If the participation of a law enforcement agency in Canada has led to the forfeiture to Her Majesty of property under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act or the payment of a penalty under subsection 18(2) of that Act, the Minister shall, in accordance with the regulations, share the proceeds of disposition of that forfeited property or the penalty, as the case may be. PART 5 AMENDMENTS TO OTHER ACTS
R.S., c. A-1
Access to Information Act 87. The Access to Information Act is amended by adding the following after section 69:
Certificate under Canada Evidence Act
69.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued before a complaint is filed under this Act in respect of a request for access to that information, this Act does not apply to that information.
Certificate following filing of complaint
(2) Notwithstanding any other provision of this Act, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of information contained in a record is issued after the filing of a complaint under this Act in relation to a request for access to that information, (a) all proceedings under this Act in respect of the complaint, including an investigation, appeal or judicial review, are discontinued; (b) the Information Commissioner shall not disclose the information and shall take all necessary precautions to prevent its disclosure; and
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(c) the Information Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the head of the government institution that controls the information.
R.S., c. H-6
Canadian Human Rights Act 88. Subsection 13(2) of the Canadian Human Rights Act is replaced by the following:
Interpretation
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
R.S., c. C-23
Canadian Security Intelligence Service Act 89. Paragraph (c) of the definition ‘‘threats to the security of Canada’’ in section 2 of the Canadian Security Intelligence Service Act is replaced by the following: (c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
1992, c. 20
Corrections and Conditional Release Act
1995, c. 42, s. 39
90. Subparagraph 125(1)(a)(ii) of the Corrections and Conditional Release Act is replaced by the following: (ii) an offence set out in Schedule I or a conspiracy to commit such an offence, (ii.1) an offence under section 83.02 (providing or collecting property for
Loi antite certain activities), 83.03 (providing, making available, etc. property or services for terrorist purposes), 83.04 (using or possessing property for terrorist purposes), 83.18 (participation in activity of terrorist group), 83.19 (facilitating terrorist activity), 83.2 (to carry out activity for terrorist group), 83.21 (instructing to carry out activity for terrorist group), 83.22 (instructing to carry out terrorist activity) or 83.23 (harbouring or concealing) of the Criminal Code or a conspiracy to commit such an offence,
91. Paragraph 1(a) of Schedule I to the Act is replaced by the following: (a) section 75 (piratical acts); (a.1) section 76 (hijacking); (a.2) section 77 (endangering safety of aircraft or airport); (a.3) section 78.1 (seizing control of ship or fixed platform); (a.4) paragraph 81(1)(a), (b) or (d) (use of explosives); (a.5) paragraph 81(2)(a) (causing injury with intent); 92. Section 1 of Schedule I to the Act is amended by adding the following after paragraph (z.2): (z.21) section 279.1 (hostage taking); 93. Section 1 of Schedule I to the Act is amended by adding the following after paragraph (z.3): (z.31) subsection 430(2) (mischief that causes actual danger to life); (z.32) section 431 (attack on premises, residence or transport of internationally protected person); (z.33) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel);
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(z.34) subsection 431.2(2) (explosive or other lethal device); Transitional provision
94. (1) The following provisions apply to an offender regardless of the day on which the offender was sentenced, committed or transferred to penitentiary: (a) subparagraph 125(1)(a)(ii) of the Act as amended by section 90, if the offence was a conspiracy to commit an offence set out in Schedule I to the Act; and (b) Schedule I to the Act as amended by sections 91 to 93.
Offenders referred to Board
(2) Subsection (1) does not apply to an offender in respect of whom the National Parole Board has made a direction under section 126 of the Act before the coming into force of sections 90 to 93 .
R.S., c. F-7
Federal Court Act
1992, c. 49, s. 127(1)
95. (1) Paragraph 5(1)(c) of the Federal Court Act is replaced by the following: (c) not more than 44 other judges, 12 of whom shall be appointed to the Court of Appeal and shall be ex officio members of the Trial Division, and the remainder of whom shall be appointed to the Trial Division and shall be ex officio members of the Court of Appeal.
1992, c. 49, s. 127(2)
(2) Subsection 5(6) of the Act is replaced by the following:
Judges for the Province of Quebec
(6) At least 15 of the judges shall be persons who have been judges of the Court of Appeal or of the Superior Court of the Province of Quebec, or have been members of the bar of that Province.
2001 1995, c. 39
Loi antite Firearms Act 96. Section 97 of the Firearms Act is replaced by the following:
Exemptions — Governor in Council
97. (1) Subject to subsection (4), the Governor in Council may exempt any class of non-residents from the application of any provision of this Act or the regulations, or from the application of any of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of the Criminal Code, for any period specified by the Governor in Council.
Exemptions — federal Minister
(2) Subject to subsection (4), the federal Minister may exempt any non-resident from the application of any provision of this Act or the regulations, or from the application of any of sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of the Criminal Code, for any period not exceeding one year.
Exemptions — provincial minister
(3) Subject to subsection (4), a provincial minister may exempt from the application in that province of any provision of this Act or the regulations or Part III of the Criminal Code, for any period not exceeding one year, the employees, in respect of any thing done by them in the course of or for the purpose of their duties or employment, of any business that holds a licence authorizing the business to acquire prohibited firearms, prohibited weapons, prohibited devices or prohibited ammunition.
Public safety
(4) Subsections (1) to (3) do not apply if it is not desirable, in the interests of the safety of any person, that the exemption be granted.
Conditions
(5) The authority granting an exemption may attach to it any reasonable condition that the authority considers desirable in the particular circumstances and in the interests of the safety of any person.
R.S., c. N-5
National Defence Act 97. Subsection 2(1) of the National Defence Act is amended by adding the following in alphabetical order:
‘‘terrorism offence’’ « infraction de terrorisme »
‘‘terrorism offence’’ means
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‘‘terrorist activity’’ « activité terroriste » ‘‘terrorist group’’ « groupe terroriste »
‘‘terrorist activity’’ has the same meaning as in subsection 83.01(1) of the Criminal Code; ‘‘terrorist group’’ has the same meaning as in subsection 83.01(1) of the Criminal Code; 98. Section 140.4 of the Act is amended by adding the following after subsection (3):
Power of court martial to delay parole
(3.1) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction under this Act for a terrorism offence, the court martial shall order that the portion of the sentence that must be served before the offender may be released on full
Loi antite parole is one half of the sentence or ten years, whichever is less, unless the court martial is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. 99. The Act is amended by adding the following after section 149.1 as enacted by section 13 of chapter 43 of the Statutes of Canada, 1991: Punishment for Certain Offences
Punishment for certain offences
149.2 (1) Notwithstanding anything in this Act, the Criminal Code or any other Act of Parliament, a person convicted of an offence under this Act for which the maximum punishment is imprisonment for five years or more, or an offence punishable under section 130 that is an indictable offence under the Criminal Code or any other Act of Parliament, other than an offence for which a sentence of imprisonment for life is imposed as a minimum punishment, where the act or omission constituting the offence also constitutes a terrorist activity, is liable to imprisonment for life.
Offender must be notified
(2) Subsection (1) does not apply unless the Director of Military Prosecutions satisfies the court martial that the offender, before making a plea, was notified that the application of that subsection would be sought by reason of the act or omission constituting the offence also constituting a terrorist activity. 100. The definition ‘‘designated offence’’ in section 153 of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) an offence under this Act that is a terrorism offence.
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101. Subsection 180(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (a), by adding the word ‘‘or’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) to prevent injury to international relations.
102. The Act is amended by adding the following after section 273.6: PART V.1
Definitions
‘‘Canadian’’ « Canadien »
COMMUNICATIONS SECURITY ESTABLISHMENT 273.61 The following definitions apply in this Part. ‘‘Canadian’’ means (a) a Canadian citizen or a permanent resident, within the meaning of subsection 2(1) of the Immigration Act; or (b) a corporation incorporated under an Act of Parliament or of the legislature of a province.
‘‘entity’’ « entité »
‘‘entity’’ means a person, group, trust, partnership or fund or an unincorporated association or organization and includes a state or a political subdivision or agency of a state.
‘‘foreign intelligence’’ « renseignements étrangers »
‘‘foreign intelligence’’ means information or intelligence about the capabilities, intentions or activities of a foreign individual, state, organization or terrorist group, as they relate to international affairs, defence or security.
‘‘global information infrastructure’’ « infrastructure mondiale d’information »
‘‘global information infrastructure’’ includes electromagnetic emissions, communications systems, information technology systems and networks, and any data or technical information carried on, contained in or relating to those emissions, systems or networks.
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‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of National Defence or such other member of the Queen’s Privy Council as may be designated by the Governor in Council to be responsible for the Communications Security Establishment.
‘‘private communication’’ « communication privée »
‘‘private communication’’ has the same meaning as in section 183 of the Criminal Code.
Communications Security Establishment continued
273.62 (1) The part of the public service of Canada known as the Communications Security Establishment is hereby continued.
Chief
(2) The Chief of the Communications Security Establishment, under the direction of the Minister or any person designated by the Minister, has the management and control of the Establishment and all matters relating to it.
Directions by Minister
(3) The Minister may issue written directions to the Chief respecting the carrying out of the Chief’s duties and functions.
Directions not statutory instruments
(4) Directions issued under subsection (3) are not statutory instruments within the meaning of the Statutory Instruments Act.
Appointment of Commissioner
273.63 (1) The Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as Commissioner of the Communications Security Establishment to hold office, during good behaviour, for a term of not more than five years.
Duties
(2) The duties of the Commissioner are (a) to review the activities of the Establishment to ensure that they are in compliance with the law; (b) in response to a complaint, to undertake any investigation that the Commissioner considers necessary; and (c) to inform the Minister and the Attorney General of Canada of any activity of the Establishment that the Commissioner believes may not be in compliance with the law.
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Annual report
(3) The Commissioner shall, within 90 days after the end of each fiscal year, submit an annual report to the Minister on the Commissioner’s activities and findings, and the Minister shall cause a copy of the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives the report.
Powers of investigation
(4) In carrying out his or her duties, the Commissioner has all the powers of a commissioner under Part II of the Inquiries Act.
Employment of legal counsel, advisers, etc.
(5) The Commissioner may engage the services of such legal counsel, technical advisers and assistants as the Commissioner considers necessary for the proper performance of his or her duties and, with the approval of the Treasury Board, may fix and pay their remuneration and expenses.
Directions
(6) The Commissioner shall carry out such duties and functions as are assigned to the Commissioner by this Part or any other Act of Parliament, and may carry out or engage in such other related assignments or activities as may be authorized by the Governor in Council.
Transitional
(7) The Commissioner of the Communications Security Establishment holding office immediately before the coming into force of this section shall continue in office for the remainder of the term for which he or she was appointed.
Mandate
273.64 (1) The mandate of the Communications Security Establishment is (a) to acquire and use information from the global information infrastructure for the purpose of providing foreign intelligence, in accordance with Government of Canada intelligence priorities; (b) to provide advice, guidance and services to help ensure the protection of electronic information and of information infrastructures of importance to the Government of Canada; and (c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties.
Protection of Canadians
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(2) Activities carried out under paragraphs (1)(a) and (b) (a) shall not be directed at Canadians or any person in Canada; and (b) shall be subject to measures to protect the privacy of Canadians in the use and retention of intercepted information.
Limitations imposed by law
(3) Activities carried out under paragraph (1)(c) are subject to any limitations imposed by law on federal law enforcement and security agencies in the performance of their duties.
Ministerial authorization
273.65 (1) The Minister may, for the sole purpose of obtaining foreign intelligence, authorize the Communications Security Establishment in writing to intercept private communications in relation to an activity or class of activities specified in the authorization.
Conditions for authorization
(2) The Minister may only issue an authorization under subsection (1) if satisfied that (a) the interception will be directed at foreign entities located outside Canada; (b) the information to be obtained could not reasonably be obtained by other means; (c) the expected foreign intelligence value of the information that would be derived from the interception justifies it; and (d) satisfactory measures are in place to protect the privacy of Canadians and to ensure that private communications will only be used or retained if they are essential to international affairs, defence or security.
Ministerial authorization
(3) The Minister may, for the sole purpose of protecting the computer systems or networks of the Government of Canada from mischief, unauthorized use or interference, in the circumstances specified in paragraph 184(2)(c) of the Criminal Code, authorize the Communications Security Establishment in
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writing to intercept private communications in relation to an activity or class of activities specified in the authorization. Conditions for authorization
(4) The Minister may only issue an authorization under subsection (3) if satisfied that (a) the interception is necessary to identify, isolate or prevent harm to Government of Canada computer systems or networks; (b) the information to be obtained could not reasonably be obtained by other means; (c) the consent of persons whose private communications may be intercepted cannot reasonably be obtained; (d) satisfactory measures are in place to ensure that only information that is essential to identify, isolate or prevent harm to Government of Canada computer systems or networks will be used or retained; and (e) satisfactory measures are in place to protect the privacy of Canadians in the use or retention of that information.
Ministerial conditions
(5) An authorization made under this section may contain any conditions that the Minister considers advisable to protect the privacy of Canadians, including additional measures to restrict the use and retention of, the access to, and the form and manner of disclosure of, information derived from the private communications.
Canadian Forces
(6) The Minister of National Defence may issue directions for the Canadian Forces to support the Establishment in carrying out activities authorized under this section.
Directions not statutory instruments
(7) Authorizations issued under subsections (1) and (3) and directions issued under subsection (6) are not statutory instruments within the meaning of the Statutory Instruments Act.
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Review of authorizations
(8) The Commissioner of the Communications Security Establishment shall review activities carried out under an authorization issued under this section to ensure that they are authorized and report annually to the Minister on the review.
Meaning of ‘‘Government of Canada’’
(9) In this section, ‘‘Government of Canada’’ means a federal institution, as defined in subsection 3(1) of the Official Languages Act.
Limits on activities
273.66 The Communications Security Establishment may only undertake activities that are within its mandate, consistent with ministerial direction and, if an authorization is required under section 273.65, consistent with the authorization.
Protection of persons
273.67 Notwithstanding any other law, every person or class of persons that is authorized to give effect to an authorization under section 273.65 or any person who assists such a person is justified in taking any reasonable action necessary to give effect to the authorization.
Effective period of authorization
273.68 (1) An authorization is valid for the period specified in it, and may be renewed for any period specified in the renewal. No authorization or renewal may be for a period longer than one year.
Variance or cancellation of authorization
(2) An authorization may be varied or cancelled in writing at any time.
Exclusion of Part VI of Criminal Code
273.69 Part VI of the Criminal Code does not apply in relation to an interception of a communication under the authority of an authorization issued under this Part or in relation to a communication so intercepted.
Crown Liability and Proceedings Act
273.7 No action lies under section 18 of the Crown Liability and Proceedings Act in respect of (a) the use or disclosure under this Part of any communication intercepted under the authority of a Ministerial authorization under section 273.65; or
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(b) the disclosure under this Part of the existence of such a communication.
2000, c. 5
Personal Information Protection and Electronic Documents Act 103. The Personal Information Protection and Electronic Documents Act is amended by adding the following after section 4:
Certificate under Canada Evidence Act
4.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Part in respect of a request for access to that information, the provisions of this Part respecting that individual’s right of access to his or her personal information do not apply to the information that is subject to the certificate.
Certificate following filing of complaint
(2) Notwithstanding any other provision of this Part, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued after the filing of a complaint under this Part in relation to a request for access to that information: (a) all proceedings under this Part in respect of that information, including an investigation, audit, appeal or judicial review, are discontinued; (b) the Commissioner shall not disclose the information and shall take all necessary precautions to prevent its disclosure; and (c) the Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the organization that provided the information.
Information not to be disclosed
(3) The Commissioner and every person acting on behalf or under the direction of the Commissioner, in carrying out their functions under this Part, shall not disclose information
Loi antite subject to a certificate issued under section 38.13 of the Canada Evidence Act, and shall take every reasonable precaution to avoid the disclosure of that information.
Power to delegate
R.S., c. P-21
(4) The Commissioner may not delegate the investigation of any complaint relating to information subject to a certificate issued under section 38.13 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation. Privacy Act 104. The Privacy Act is amended by adding the following after section 70:
Certificate under Canada Evidence Act
70.1 (1) Where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued before a complaint is filed by that individual under this Act in respect of a request for access to that information, the provisions of this Act respecting that individual’s right of access to his or her personal information do not apply to the information that is subject to the certificate.
Certificate following filing of complaint
(2) Notwithstanding any other provision of this Act, where a certificate under section 38.13 of the Canada Evidence Act prohibiting the disclosure of personal information of a specific individual is issued in respect of personal information after the filing of a complaint under this Act in relation to a request for access to that information, (a) all proceedings under this Act in respect of that information, including an investigation, audit, appeal or judicial review, are discontinued; (b) the Privacy Commissioner shall not disclose the information and shall take all necessary precautions to prevent its disclosure; and
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(c) the Privacy Commissioner shall, within 10 days after the certificate is published in the Canada Gazette, return the information to the head of the government institution that controls the information.
Information not to be disclosed
(3) The Privacy Commissioner and every person acting on behalf or under the direction of the Privacy Commissioner, in carrying out their functions under this Act, shall not disclose information subject to a certificate issued under section 38.13 of the Canada Evidence Act and shall take every reasonable precaution to avoid the disclosure of that information.
Limited power of delegation
(4) The Privacy Commissioner may not, nor may an Assistant Privacy Commissioner, delegate the investigation of any complaint respecting information subject to a certificate issued under section 38.13 of the Canada Evidence Act except to one of a maximum of four officers or employees of the Commissioner specifically designated by the Commissioner for the purpose of conducting that investigation.
1993, c. 37
Seized Property Management Act
1996, c. 19, s. 85
105. (1) The definitions ‘‘restrained property’’ and ‘‘seized property’’ in section 2 of the Seized Property Management Act are replaced by the following:
‘‘restrained property’’ « biens bloqués »
‘‘restrained property’’ means any property that is the subject of a restraint order made under section 83.13 or 462.33 of the Criminal Code;
‘‘seized property’’ « biens saisis »
‘‘seized property’’ means any property seized under the authority of any Act of Parliament or pursuant to any warrant or any rule of law in connection with any designated substance offence, enterprise crime offence or terrorism offence; (2) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘terrorism offence’’ « infraction de terrorisme »
‘‘terrorism offence’’ has the same meaning as in section 2 of the Criminal Code;
1996, c. 19, s. 86(1)
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106. (1) Paragraph 3(a) of the Act is replaced by the following: (a) to authorize the Minister to provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of property in connection with designated substance offences, enterprise crime offences or terrorism offences, or property that is or may be proceeds of crime or offence-related property; (2) Subparagraphs 3(b)(ii) and (iii) of the Act are replaced by the following: (ii) seized pursuant to a warrant issued under section 83.13 or 462.32 of the Criminal Code, or (iii) restrained pursuant to a restraint order made under section 83.13 or 462.33 of the Criminal Code;
1997, c. 18, s. 135(F)
107. (1) Paragraphs 4(1)(a) and (b) of the Act are replaced by the following: (a) seized pursuant to a warrant issued under section 83.13 or 462.32 of the Criminal Code on the application of the Attorney General; (b) subject to a restraint order made under section 83.13 or 462.33 of the Criminal Code on the application of the Attorney General, where the Minister is appointed pursuant to subsection 83.13(2) or subparagraph 462.33(3)(b)(i) of that Act to take control of and to manage or otherwise deal with the property; or
(2) Subsection 4(3) of the Act is replaced by the following: Additional responsibility
(3) In addition to being responsible for the custody and management of property referred to in subsections (1) and (2), the Minister shall be responsible, until the property is disposed of, for the custody and management of all proceeds of crime, offence-related property
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and property that was the subject of an application under section 83.14 of the Criminal Code, that were forfeited to Her Majesty as a result of proceedings conducted by the Attorney General and that were not in the possession or under the control of the Minister prior to their forfeiture. 108. Section 5 of the Act is amended by adding the following after subsection (2): Transfer of property
(3) Every person who has control of any property that is subject to a management order issued under subsection 83.13(2) of the Criminal Code shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property, or any part of the property, that is needed as evidence or is necessary for the purposes of an investigation.
1996, c. 19, s. 89(1)
109. Paragraph 9(a) of the Act is replaced by the following: (a) provide consultative and other services to law enforcement agencies in relation to the seizure or restraint of any property in connection with designated substance offences, enterprise crime offences or terrorism offences, or of any property that is or may be proceeds of crime or offence-related property;
1997, c. 23, s. 23
110. Paragraph 10(a) of the Act is replaced by the following: (a) the forfeiture to Her Majesty of property pursuant to section 83.14, subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act;
1996, c. 19, s. 91
111. Subparagraph 11(a)(i) of the Act is replaced by the following: (i) property forfeited to Her Majesty pursuant to section 83.14, subsection 462.37(1) or (2) or 462.38(2) or subparagraph 462.43(c)(iii) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act, or
R.S., c. U-2
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United Nations Act 112. Section 3 of the United Nations Act is replaced by the following:
Offence and punishment
3. (1) Any person who contravenes an order or regulation made under this Act is guilty of an offence and liable (a) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or (b) on conviction on indictment, to imprisonment for a term of not more than 10 years.
Forfeiture
(2) Any property dealt with contrary to any order or regulation made under this Act may be seized and detained and is liable to forfeiture at the instance of the Minister of Justice, on proceedings in the Federal Court, or in any superior court, and any such court may make rules governing the procedure on any proceedings taken before the court or a judge thereof under this section. PART 6 REGISTRATION OF CHARITIES — SECURITY INFORMATION 113. The Charities Registration (Security Information) Act is enacted as follows:
An Act respecting the registration of charities having regard to security and criminal intelligence information
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Short title
1. This Act may be cited as the Charities Registration (Security Information) Act. PURPOSE AND PRINCIPLES
Purpose
2. (1) The purpose of this Act is to demonstrate Canada’s commitment to participating in concerted international efforts to deny support to those who engage in terrorist activities, to protect the integrity of the registration system for charities under the Income Tax Act and to maintain the confidence of Canadian taxpayers that the benefits of charitable registration are made available only to organizations that operate exclusively for charitable purposes.
Principles
(2) This Act shall be carried out in recognition of, and in accordance with, the following principles: (a) maintaining the confidence of taxpayers may require reliance on information that, if disclosed, would injure national security or endanger the safety of persons; and (b) the process for relying on the information referred to in paragraph (a) in determining eligibility to become or remain a registered charity must be as fair and transparent as possible having regard to national security and the safety of persons.
INTERPRETATION Definitions
3. The following definitions apply in this Act.
‘‘applicant’’ « demandeur »
‘‘applicant’’ means a corporation, an organization or a trust that applies to the Minister of National Revenue to become a registered charity.
‘‘judge’’ « juge »
‘‘judge’’ means the Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Chief Justice.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Solicitor General of Canada.
‘‘registered charity’’ « organisme de bienfaisance enregistré »
‘‘registered charity’’ means a registered charity as defined in subsection 248(1) of the Income Tax Act.
Loi antite CERTIFICATE BASED ON INTELLIGENCE
Signature by Ministers
4. (1) The Minister and the Minister of National Revenue may sign a certificate stating that it is their opinion, based on security or criminal intelligence reports, that there are reasonable grounds to believe (a) that an applicant or registered charity has made, makes or will make available any resources, directly or indirectly, to an entity that is a listed entity as defined in subsection 83.01(1) of the Criminal Code; (b) that an applicant or registered charity made available any resources, directly or indirectly, to an entity as defined in subsection 83.01(1) of the Criminal Code and the entity was at that time, and continues to be, engaged in terrorist activities as defined in that subsection or activities in support of them; or (c) that an applicant or registered charity makes or will make available any resources, directly or indirectly, to an entity as defined in subsection 83.01(1) of the Criminal Code and the entity engages or will engage in terrorist activities as defined in that subsection or activities in support of them.
Statutory Instruments Act
(2) A certificate is not a statutory instrument for the purposes of the Statutory Instruments Act. JUDICIAL CONSIDERATION OF CERTIFICATE
Notice
5. (1) As soon as the Minister and the Minister of National Revenue have signed a certificate, the Minister, or a person authorized by the Minister, shall cause the applicant or registered charity to be served, personally or by registered letter sent to its last known address, with a copy of the certificate and a notice informing it that the certificate will be referred to the Federal Court not earlier than seven days after service and that, if the certificate is determined to be reasonable, the applicant will be ineligible to become a registered charity or the registration of the registered charity will be revoked, as the case may be.
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Restriction
(2) The certificate and any matters arising out of it are not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with this Act.
Non-publication or confidentiality order
(3) Notwithstanding subsection (2), the applicant or registered charity may apply to a judge for an order (a) directing that the identity of the applicant or registered charity not be published or broadcast in any way except in accordance with this Act; or (b) that any documents to be filed with the Federal Court in connection with the reference be treated as confidential.
No appeal
(4) An order on an application referred to in subsection (3) is not subject to appeal or review by any court at the instance of a party to the application.
Filing in Federal Court
(5) Seven days after service under subsection (1), or as soon afterwards as is practicable, the Minister or a person authorized by the Minister shall (a) file a copy of the certificate in the Federal Court for it to make a determination under paragraph 6(1)(d); and (b) cause the applicant or registered charity to be served, personally or by registered letter sent to its last known address, with a notice informing it of the filing of the certificate.
Reference
6. (1) When the certificate is referred to the Federal Court, the judge shall, without delay, (a) examine, in private, the security or criminal intelligence reports considered by the Minister and the Minister of National Revenue and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Minister of National Revenue, hear all or part of that evidence or information in the absence of the applicant or registered charity and any counsel representing it if the judge is of the opinion that disclosure of the information would injure national security or endanger the safety of any person;
Loi antite (b) provide the applicant or registered charity with a statement summarizing the information available to the judge so as to enable the applicant or registered charity to be reasonably informed of the circumstances giving rise to the certificate, without disclosing any information the disclosure of which would, in the judge’s opinion, injure national security or endanger the safety of any person; (c) provide the applicant or registered charity with a reasonable opportunity to be heard; and (d) determine whether the certificate is reasonable on the basis of the information available to the judge and, if found not to be reasonable, quash it.
No appeal or review
(2) A determination under paragraph (1)(d) is not subject to appeal or review by any court.
EVIDENCE Admissible information
7. For the purposes of subsection 6(1), the judge may, subject to section 8, admit any reliable and relevant information, whether or not the information is or would be admissible in a court of law, and base the determination under paragraph 6(1)(d) on that information.
Foreign information obtained in confidence
8. (1) For the purposes of subsection 6(1), in private and in the absence of the applicant or registered charity or any counsel representing it, (a) the Minister or the Minister of National Revenue may make an application to the judge for the admission of information obtained in confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and (b) the judge shall examine the information and provide counsel representing the Minister or the Minister of National Revenue with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or
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registered charity or any counsel representing it because the disclosure would injure national security or endanger the safety of any person. (2) The information shall be returned to counsel representing the minister who made the application and shall not be considered by the judge in making the determination under paragraph 6(1)(d) if (a) the judge determines that the information is not relevant; (b) the judge determines that the information is relevant but should be summarized in the statement to be provided under paragraph 6(1)(b); or (c) the minister withdraws the application.
Use of information
(3) If the judge decides that the information is relevant but that its disclosure would injure national security or endanger the safety of any person, the information shall not be disclosed in the statement mentioned in paragraph 6(1)(b), but the judge may base the determination under paragraph 6(1)(d) on it.
Ineligibility or revocation
9. (1) A certificate that is determined to be reasonable under paragraph 6(1)(d) is conclusive proof, in the case of an applicant, that it is ineligible to become a registered charity or, in the case of a registered charity, that it does not comply with the requirements to continue to be a registered charity.
Publication
(2) The Minister shall, without delay after a certificate is determined to be reasonable, cause the certificate to be published in the Canada Gazette.
Review of certificate
10. (1) An applicant or former registered charity in relation to which a certificate was determined to be reasonable under paragraph 6(1)(d) and that believes that there has been a material change in circumstances since that determination was made may apply in writing to the Minister for a review of the certificate by the Minister and the Minister of National Revenue.
REVIEW OF CERTIFICATE
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Notice to Minister of National Revenue
(2) The Minister shall, without delay, notify the Minister of National Revenue of an application for review.
Information for review
(3) For the purpose of a review, the Ministers may consider any submission made by the applicant or former registered charity that applied for the review and any security or criminal intelligence reports that are made available to the Ministers.
Time for decision
(4) The Ministers shall make their decision on an application for review within 120 days after receipt of the application by the Minister.
Decision on review
(5) The Ministers may decide that, since the time the certificate was determined to be reasonable, (a) there has not been a material change in circumstances, in which case the Ministers shall deny the application; or (b) there has been a material change in circumstances, in which case the Ministers shall determine whether there are reasonable grounds as provided in subsection 4(1) and, accordingly, (i) continue the certificate in effect, or (ii) cancel the certificate as of the date of the decision.
Automatic cancellation
(6) If no decision is made within a period of 120 days after receipt of the application, the certificate is cancelled on the expiration of that period.
Notice to applicant or charity
(7) As soon as a decision is made or the certificate is cancelled under subsection (6), the Minister or a person authorized by the Minister shall cause the applicant or former registered charity that applied for the review to be served, personally or by registered letter sent to its last known address, with notice of the decision or cancellation.
Application for review
11. (1) An applicant or former registered charity that applied for a review under subsection 10(1) may, after giving written notice to the Minister who in turn shall notify the Minister of National Revenue, apply to the Federal Court for a review of a decision made under paragraph 10(5)(a) or subparagraph 10(5)(b)(i).
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Review by Court
(2) The Court shall carry out the review in accordance with section 6, with any adaptations that may be required.
Referral to Ministers
(3) If the Court quashes a decision of the Ministers made under paragraph 10(5)(a), it shall refer the application to the Ministers for a decision under paragraph 10(5)(b).
Cancellation of certificate
(4) If the Court quashes a decision of the Ministers made under subparagraph 10(5)(b)(i), the certificate is cancelled as of the date the decision is quashed.
No appeal
(5) The determination of the Court is not subject to appeal or judicial review.
Publication of spent certificate
12. The Minister shall, in a manner that mentions the original publication of the certificate, cause to be published in the Canada Gazette notice of the cancellation of a certificate by reason of (a) a decision made under subparagraph 10(5)(b)(ii); (b) the operation of subsection 10(6); or (c) a determination of the Federal Court referred to in subsection 11(4).
Term of a certificate
13. Unless it is cancelled earlier, a certificate is effective for a period of seven years beginning on the day it is first determined to be reasonable under paragraph 6(1)(d).
Regulations
14. The Governor in Council may make any regulations that the Governor in Council considers necessary for carrying out the purposes and provisions of this Act.
R.S., c. 1 (5th Supp.)
AMENDMENTS TO THE INCOME TAX ACT
114. Section 168 of the Income Tax Act is amended by adding the following after subsection (2): Charities Registration (Security Information) Act
(3) Notwithstanding subsections (1) and (2), if a registered charity is the subject of a certificate that is determined to be reasonable under paragraph 6(1)(d) of the Charities Registration (Security Information) Act, the registration of the charity is revoked as of the making of that determination.
Loi antite 115. (1) Section 172 of the Act is amended by adding the following after subsection (3):
Exception — Charities Registration (Security Information) Act
(3.1) Paragraphs (3)(a) and (a.1) do not apply to an applicant or a registered charity that is the subject of a certificate that has been determined to be reasonable under paragraph 6(1)(d) of the Charities Registration (Security Information) Act. (2) The portion of subsection 172(4) of the Act after paragraph (f) is replaced by the following: where the Minister has not notified the applicant of the disposition of the application within 180 days after the filing of the application with the Minister, and, in any such case, subject to subsection (3.1), an appeal from the refusal to the Federal Court of Appeal pursuant to subsection (3) may, notwithstanding subsection 180(1), be instituted under section 180 at any time by filing a notice of appeal in the Court. (3) Section 172 of the Act is amended by adding the following after subsection (4):
Exception — Charities Registration (Security Information) Act
(4.1) An appeal referred to in subsection (3) or (4) is suspended when an applicant or a registered charity is, under subsection 5(1) of the Charities Registration (Security Information) Act, served with a copy of a certificate that has been signed under that Act, whether the appeal was instituted before or after the certificate was so signed, and the appeal is (a) discontinued on the determination that the certificate is reasonable under paragraph 6(1)(d) of that Act; or (b) reinstated as of the date the certificate is quashed under paragraph 6(1)(d) of that Act.
116. The description of A in paragraph 188(1)(a) of the Act is replaced by the following: A is the total of all amounts each of which is the fair market value of an asset of the charity on the day (in this section referred to as
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the ‘‘valuation day’’) that is 120 days before the day on which (i) the notice of the Minister’s intention to revoke the charity’s registration is mailed, if the registration is revoked under subsection 168(2), or (ii) the charity is, under subsection 5(1) of the Charities Registration (Security Information) Act, served with a copy of a certificate, if the registration is revoked under subsection 168(3).
117. Paragraph 239(2.21)(b) of the Act is replaced by the following: (b) who is an official to whom taxpayer information has been provided for a particular purpose under paragraph 241(4)(a), (d), (f), (f.1), (i) or (j.1) 118. Subsection 241(4) of the Act is amended by adding the following after paragraph (f): (f.1) provide taxpayer information to an official solely for the purposes of the administration and enforcement of the Charities Registration (Security Information) Act; PART 7 COORDINATING, REVIEW AND COMMENCEMENT PROVISIONS Coordinating Amendments 2000, c. 17
Proceeds of Crime (Money Laundering) and Terrorist Financing Act 119. If section 95 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the ‘‘other Act’’) comes into force before section 110 of this Act, then, on the later of the coming into force of section 95 of the other Act and this section, section 110 of this Act is replaced by the following:
110. Paragraph 10(1)(a) of the Act is replaced by the following:
Loi antite (a) the forfeiture to Her Majesty of property pursuant to section 83.14, subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act; 120. (1) If this Act receives royal assent before section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the ‘‘other Act’’) comes into force, then, on the day of that assent, section 96 of the other Act is replaced by the following:
1997, c. 23, s. 24
96. Section 11 of the Act is replaced by the following:
Sharing outside Canada
11. The Attorney General may, with the approval of the Governor in Council and in accordance with the regulations, enter into an agreement with the government of any foreign state respecting the reciprocal sharing of (a) the proceeds of disposition of (i) property forfeited to Her Majesty under subsection 462.37(1) or (2) or 462.38(2) or subparagraph 462.43(c)(iii) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or (ii) property that is or was the subject of a management order and that was forfeited under subsection 490(9) of the Criminal Code and the proceeds arising from the disposition of property by that foreign state, and (b) amounts paid or recovered on account of fines imposed under subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada, penalties paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and amounts paid or recovered on account of fines imposed in lieu of
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forfeiture under the laws of that foreign state, if law enforcement agencies of that foreign state, or of Canada, as the case may be, have participated in the investigation of the offence or offences that led to the forfeiture of the property or the imposition of the fine or if the law enforcement agencies’ participation led to the forfeiture of the property or the payment of the penalty under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. (2) If section 96 of the other Act comes into force before the day on which this Act receives royal assent, then, on the day of that assent, section 11 of the Seized Property Management Act is replaced by the following: Sharing outside Canada
11. The Attorney General may, with the approval of the Governor in Council and in accordance with the regulations, enter into an agreement with the government of any foreign state respecting the reciprocal sharing of (a) the proceeds of disposition of (i) property forfeited to Her Majesty under subsection 462.37(1) or (2) or 462.38(2) or subparagraph 462.43(c)(iii) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or (ii) property that is or was the subject of a management order and that was forfeited under subsection 490(9) of the Criminal Code and the proceeds arising from the disposition of property by that foreign state, and (b) amounts paid or recovered on account of fines imposed under subsection 462.37(3) of the Criminal Code in relation to proceedings commenced at the instance of the Government of Canada, penalties paid under subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and amounts paid or recovered on account of fines imposed in lieu of
Loi antite forfeiture under the laws of that foreign state, if law enforcement agencies of that foreign state, or of Canada, as the case may be, have participated in the investigation of the offence or offences that led to the forfeiture of the property or the imposition of the fine or if the law enforcement agencies’ participation led to the forfeiture of the property or the payment of the penalty under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Bill S-23 121. (1) If Bill S-23, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Customs Act and to make related amendments to other Acts (the ‘‘other Act’’), receives royal assent, then the references to the ‘‘Proceeds of Crime (Money Laundering) Act’’ in subsection 107(3) and paragraphs 107(4)(b), (c) and (f) and 107(5)(k) of the Customs Act, as enacted by section 61 of the other Act, are replaced by references to the ‘‘Proceeds of Crime (Money Laundering) and Terrorist Financing Act’’. (2) Subsection (1) comes into force on the later of the day on which the other Act receives royal assent and the day on which this Act receives royal assent. Bill C-11 122. (1) If Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent and paragraph 274(a) of the other Act comes into force before section 46 of this Act comes into force, then section 46 of this Act is repealed. (2) Subsection (1) comes into force on the day on which this Act receives royal assent, but only if that day is after the day on which paragraph 274(a) of the other Act comes into force.
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123. (1) If Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent, then section 270 of the other Act and the heading before it are replaced by the following: Proceeds of Crime (Money Laundering) and Terrorist Financing Act 270. Paragraph 55(3)(d) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is replaced by the following: (d) the Department of Citizenship and Immigration, if the Centre also determines that the information would promote the objective set out in paragraph 3(1)(i) of the Immigration and Refugee Protection Act and is relevant to determining whether a person is a person described in sections 34 to 42 of that Act or to an offence under any of sections 117 to 119, 126 or 127 of that Act. (2) Subsection (1) comes into force on the day on which this Act receives royal assent, but only if that day is before the day on which section 270 of the other Act comes into force. 124. (1) Subsections (2) and (3) apply if Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent. (2) On the later of the coming into force of section 76 of the other Act and section 44 of this Act, items 2 and 3 of the schedule to the Canada Evidence Act are replaced by the following: 2. A judge of the Federal Court, for the purposes of sections 6 and 7 of the Charities Registration (Security Information) Act, except where the hearing is open to the public 3. A judge of the Federal Court, or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee
Loi antite Board, for the purposes of sections 77 to 87 of the Immigration and Refugee Protection Act
(3) On the later of the coming into force of section 76 of the other Act and section 44 of this Act, items 4 to 8 of the schedule to the Canada Evidence Act are repealed. 125. (1) Subsections (2) to (9) apply if Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent. (2) Section 3 of the Charities Registration (Security Information) Act (the ‘‘new Act’’), enacted by section 113 of this Act, is amended by adding the following in alphabetical order: ‘‘information’’ « renseignements »
‘‘information’’ means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of such a government or organization.
(3) The portion of subsection 4(1) of the new Act before paragraph (a) is replaced by the following: Signature by Ministers
4. (1) The Minister and the Minister of National Revenue may sign a certificate stating that it is their opinion, based on information, that there are reasonable grounds to believe (4) Paragraph 5(5)(a) of the new Act is replaced by the following: (a) file a copy of the certificate in the Federal Court for it to make a determination under section 7; and (5) Sections 6 to 9 of the new Act are replaced by the following:
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6. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or endanger the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall, without delay after the matter is referred to the Federal Court, examine the information and any other evidence in private; (e) on each request of the Minister or the Minister of National Revenue, the judge shall hear all or part of the information or evidence in the absence of the applicant or registered charity named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or endanger the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Ministers and shall not be considered by the judge in determining whether the certificate is reasonable if either (i) the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary, or (ii) the matter is withdrawn; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in determining whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to
Loi antite national security or endanger the safety of any person; (h) the judge shall provide the applicant or registered charity with a summary of the information or evidence that enables it to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or endanger the safety of any person if disclosed; (i) the judge shall provide the applicant or registered charity with an opportunity to be heard; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
Determination whether certificate is reasonable
7. (1) The judge shall determine whether the certificate is reasonable on the basis of the information and evidence available.
Certificate quashed
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable.
Effect of determination
8. (1) A certificate that is determined to be reasonable under subsection 7(1) is conclusive proof that, in the case of an applicant, it is ineligible to become a registered charity or, in the case of a registered charity, that it does not comply with the requirements to continue to be a registered charity.
No appeal or review
(2) The determination of the judge is final and is not subject to appeal or judicial review.
Publication
(3) The Minister shall, without delay after a certificate is determined to be reasonable, cause the certificate to be published in the Canada Gazette. (6) Subsection 10(1) of the new Act is replaced by the following:
Ministerial review
10. (1) An applicant or former registered charity in relation to which a certificate was determined to be reasonable under subsection 7(1) and that believes that there has been a material change in circumstances since the determination made under that subsection
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Material to be considered
Term of a certificate
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may apply in writing to the Minister for a review of the certificate by the Minister and the Minister of National Revenue. (7) Subsection 10(3) of the new Act is replaced by the following: (3) For the purpose of a review, the Ministers may consider any submission made by the applicant or former registered charity that applied for the review and any information that is made available to the Ministers. (8) Section 13 of the new Act is replaced by the following: 13. Unless it is cancelled earlier, a certificate is effective for a period of seven years beginning on the day it is first determined to be reasonable under subsection 7(1). (9) Subsections (2) to (8) come into force on the later of the coming into force of Part 6 of this Act and section 76 of the other Act.
126. (1) Subsections (2) and (3) apply if Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent. (2) On the later of the coming into force of subsection 2(1) of the other Act and subsection 3(2) of this Act, paragraph 7(3.74)(c) of the Criminal Code is replaced by the following: (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act and is, after the commission of the act or omission, present in Canada. (3) On the later of the coming into force of paragraph 274(a) of the other Act and section 4 of this Act, the definition ‘‘Canadian’’ in subsection 83.01(1) of the Criminal Code is replaced by the following: ‘‘Canadian’’ « Canadien »
‘‘Canadian’’ means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province.
Loi antite
127. (1) Subsections (2) to (5) apply if Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent. (2) Subsection 168(3) of the Income Tax Act is replaced by the following: Charities Registration (Security Information) Act
(3) Notwithstanding subsections (1) and (2), if a registered charity is the subject of a certificate that is determined to be reasonable under subsection 7(1) of the Charities Registration (Security Information) Act, the registration of the charity is revoked as of the making of that determination. (3) Subsection 172(3.1) of the Income Tax Act is replaced by the following:
Exception — Charities Registration (Security Information) Act
(3.1) Paragraphs (3)(a) and (a.1) do not apply to an applicant or a registered charity that is the subject of a certificate that has been determined to be reasonable under subsection 7(1) of the Charities Registration (Security Information) Act. (4) Paragraphs 172(4.1)(a) and (b) of the Income Tax Act are replaced by the following: (a) discontinued on the determination, under subsection 7(1) of that Act, that the certificate is reasonable; or (b) reinstated as of the date the certificate is, under subsection 7(2) of that Act, quashed. (5) Subsections (2) to (4) come into force on the later of the coming into force of Part 6 of this Act and section 76 of the other Act.
128. If Bill C-11, introduced in the 1st Session of the 37th Parliament and entitled the Immigration and Refugee Protection Act (the ‘‘other Act’’), receives royal assent, then, on the later of the coming into force of paragraph 274(a) of the other Act and section 102 of this Act, the definition
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‘‘Canadian’’ in section 273.61 of the National Defence Act is replaced by the following: ‘‘Canadian’’ « Canadien »
‘‘Canadian’’ means a Canadian citizen, a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act or a body corporate incorporated and continued under the laws of Canada or a province.
Bill C-15B 129. If Bill C-15B of the 1st Session of the 37th Parliament, entitled An Act to amend the Criminal Code (cruelty to animals and firearms) and the Firearms Act (the ‘‘other Act’’), receives royal assent, then (a) section 96 of this Act and the heading before it are repealed if section 52 of the other Act comes into force before section 96 of this Act comes into force; and (b) section 52 of the other Act is repealed if section 96 of this Act comes into force before section 52 of the other Act comes into force. Bill C-24 130. (1) Subsections (2) to (9) apply if Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent. (2) If subsection 1(5) of the other Act comes into force before subsection 2(2) of this Act, then, on the later of the day on which subsection 1(5) of the other Act comes into force and the day on which this Act receives royal assent, the definition ‘‘justice system participant’’ in section 2 of the Criminal Code, as enacted by subsection 2(2) of this Act, is repealed. (3) If subsection 12(2) of the other Act comes into force before section 14 of this Act, then section 14 of this Act is repealed on the later of the coming into force of subsection 12(2) of the other Act and the day on which this Act receives royal assent.
Loi antite (4) If subsection 12(2) of the other Act comes into force on the same day as section 14 of this Act, then subsection 12(2) of the other Act is deemed to have come into force before section 14 of this Act and subsection (3) applies. (5) If subsection 26(1) of the other Act comes into force before section 15 of this Act, then, on the later of the day on which subsection 26(1) of the other Act comes into force and the day on which this Act receives royal assent, section 15 of this Act is replaced by the following: 15. Subsection 462.48(1.1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b), by adding the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) a terrorism offence. (6) If section 30 of the other Act comes into force before section 18 of this Act, then, on the later of the day on which section 30 of the other Act comes into force and the day on which this Act receives royal assent, section 18 of this Act is repealed. (7) If section 30 of the other Act comes into force on the same day as section 18 of this Act, then section 30 of the other Act is deemed to have come into force before section 18 of this Act and subsection (6) applies. (7.1) If section 18 of this Act comes into force before section 30 of the other Act, then, on the day on which section 30 of the other Act comes into force, subsection 490.1(1.1) of the Criminal Code is repealed. (7.2) If subsection 12(2) of the other Act comes into force before section 28 of the Security of Information Act, as enacted by section 29 of this Act, then section 28 of the Security of Information Act is repealed on the later of the coming into force of subsection 12(2) of the other Act and the day on which this Act receives royal assent.
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(7.3) If subsection 12(2) of the other Act comes into force on the same day as, or on a day that is after, the day on which section 28 of the Security of Information Act, as enacted by section 29 of this Act, comes into force, then, on the day on which subsection 12(2) of the other Act comes into force, section 28 of the Security of Information Act is repealed. (8) If subsection 12(2) of the other Act comes into force before section 33 of this Act, then section 33 of this Act is repealed on the later of the coming into force of subsection 12(2) of the other Act and the day on which this Act receives royal assent. (9) If subsection 12(2) of the other Act comes into force on the same day as section 33 of this Act, then subsection 12(2) of the other Act is deemed to have come into force before section 33 of this Act and subsection (8) applies. 131. (1) Subsection (2) applies if Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent. (2) If subsection 2(2) of this Act comes into force before subsection 1(5) of the other Act, then, on the later of the day on which subsection 2(2) of this Act comes into force and the day on which the other Act receives royal assent, (a) section 1 of the other Act is amended by adding the following after subsection (1): (1.1) The definition ‘‘justice system participant’’ in section 2 of the Act is amended by adding the following after subparagraph (b)(viii): (viii.1) a public officer within the meaning of subsection 25.1(1) and a person acting at the direction of such an officer, (b) subsection 1(5) of the other Act is replaced by the following:
Loi antite (5) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘serious offence’’ « infraction grave »
‘‘serious offence’’ has the same meaning as in subsection 467.1(1); 132. (1) If Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent, then section 70 of the other Act and the heading before it are replaced by the following: Proceeds of Crime (Money Laundering) and Terrorist Financing Act
2000, c. 24, s. 76.1(1)
70. The definition ‘‘money laundering offence’’ in section 2 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is replaced by the following:
‘‘money laundering offence’’ « infraction de recyclage des produits de la criminalité »
‘‘money laundering offence’’ means an offence under subsection 462.31(1) of the Criminal Code.
(2) Subsection (1) comes into force on the day on which this Act receives royal assent, but only if that day is before the day on which section 70 of the other Act comes into force. 133. (1) Subsections (2) to (21 ) apply if Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent. (2) If section 4 of the other Act comes into force after section 5 of this Act, then, on the day on which section 4 of the other Act comes into force, the definition ‘‘offence’’ in section 183 of the Criminal Code is amended by
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(a) adding the following after subparagraph (a)(xii): (xii.1) section 83.02 (providing or collecting property for certain activities), (xii.2) section 83.03 (providing, making available, etc., property or services for terrorist purposes), (xii.3) section 83.04 (using or possessing property for terrorist purposes), (xii.4) section 83.18 (participation in activity of terrorist group), (xii.5) section 83.19 (facilitating terrorist activity), (xii.6) section 83.2 (commission of offence for terrorist group), (xii.7) section 83.21 (instructing to carry out activity for terrorist group), (xii.8) section 83.22 (instructing to carry out terrorist activity), (xii.9) section 83.23 (harbouring or concealing), (b) adding the following after subparagraph (a)(lxxii): (lxxii.1) section 424.1 (threat against United Nations or associated personnel), (c) adding the following after subparagraph (a)(lxxv): (lxxv.1) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), (lxxv.2) subsection 431.2(2) (explosive or other lethal device), (d) replacing the portion after paragraph (j) with the following: and includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition ‘‘terrorism offence’’ in section 2;
Loi antite
(3) If section 4 of the other Act comes into force on the same day as section 5 of this Act, then section 5 of this Act is deemed to have come into force before section 4 of the other Act and subsection (2) applies.
(4) If section 4 of the other Act comes into force before section 5 of this Act, then, on the later of the day on which section 4 of the other Act comes into force and the day on which this Act receives royal assent, section 5 of this Act is repealed and the definition ‘‘offence’’ in section 183 of the Criminal Code is amended by (a) adding the following after subparagraph (a)(xii): (xii.1) section 83.02 (providing or collecting property for certain activities), (xii.2) section 83.03 (providing, making available, etc., property or services for terrorist purposes), (xii.3) section 83.04 (using or possessing property for terrorist purposes), (xii.4) section 83.18 (participation in activity of terrorist group), (xii.5) section 83.19 (facilitating terrorist activity), (xii.6) section 83.2 (commission of offence for terrorist group), (xii.7) section 83.21 (instructing to carry out activity for terrorist group), (xii.8) section 83.22 (instructing to carry out terrorist activity), (xii.9) section 83.23 (harbouring or concealing), (b) adding the following after subparagraph (a)(lxxii): (lxxii.1) section 424.1 (threat against United Nations or associated personnel),
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(c) adding the following after subparagraph (a)(lxxv): (lxxv.1) section 431.1 (attack on premises, accommodation or transport of United Nations or associated personnel), (lxxv.2) subsection 431.2(2) (explosive or other lethal device), (d) replacing the portion after paragraph (j) with the following: and includes any other offence that there are reasonable grounds to believe is a criminal organization offence or any other offence that there are reasonable grounds to believe is an offence described in paragraph (b) or (c) of the definition ‘‘terrorism offence’’ in section 2;
(5) If section 4 of the other Act comes into force after section 31 of this Act, then, on the day on which section 4 of the other Act comes into force, paragraph (j) of the definition ‘‘offence’’ in section 183 of the Criminal Code is replaced by the following: (j) any offence under the Security of Information Act, (6) If section 4 of the other Act comes into force on the same day as section 31 of this Act, then section 31 of this Act is deemed to have come into force before section 4 of the other Act and subsection (5) applies. (7) If section 4 of the other Act comes into force before section 31 of this Act, then, on the later of the day on which section 4 of the other Act comes into force and the day on which this Act receives royal assent, (a) section 31 of this Act is repealed; and (b) paragraph (j) of the definition ‘‘offence’’ in section 183 of the Criminal Code is replaced by the following:
Loi antite (j) any offence under the Security of Information Act, (8) On the later of the coming into force of section 6 of this Act and section 5 of the other Act, subsection 185(1.1) of the Criminal Code is replaced by the following:
Exception for criminal organizations and terrorist groups
(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence. (8.1) On the later of the coming into force of section 6.1 of this Act and section 6 of the other Act, subsection 186(1.1) of the Criminal Code is replaced by the following:
Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence. (9) On the later of the coming into force of section 7 of this Act and section 7 of the other Act, section 186.1 of the Criminal Code is replaced by the following:
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186.1 Notwithstanding paragraphs 184.2(4)(e) and 186(4)(e) and subsection 186(7), an authorization or any renewal of an authorization may be valid for one or more periods specified in the authorization exceeding sixty days, each not exceeding one year, where the authorization is in relation to (a) an offence under section 467.11, 467.12 or 467.13; (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (c) a terrorism offence. (10) On the later of the coming into force of section 8 of this Act and section 8 of the other Act, subsection 196(5) of the Criminal Code is replaced by the following:
Exception for criminal organizations and terrorist groups
(5) Notwithstanding subsections (3) and 185(3), where the judge to whom an application referred to in subsection (2) or 185(2) is made, on the basis of an affidavit submitted in support of the application, is satisfied that the investigation is in relation to (a) an offence under section 467.11, 467.12 or 467.13, (b) an offence committed for the benefit of, at the direction of or in association with a criminal organization, or (c) a terrorism offence, and is of the opinion that the interests of justice warrant the granting of the application, the judge shall grant an extension, or a subsequent extension, of the period, but no extension may exceed three years. (11) If section 15 of this Act comes into force before subsection 26(1) of the other Act, then, on the day on which subsection 26(1) of the other Act comes into force, subsection 462.48(1.1) of the Criminal Code, as enacted by subsection 26(1) of the other Act, is amended by striking out the word ‘‘or’’ at the end of paragraph (b), by adding the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) a terrorism offence.
Loi antite (12) If subsection 29(2) of the other Act comes into force before subsection 16(1) of this Act, then, on the day on which subsection 16(1) of this Act comes into force, subsection 486(2.102) of the Criminal Code is replaced by the following:
Offences
(2.102) The offences for the purposes of subsection (2.101) are (a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (13) If subsection 16(1) of this Act comes into force before subsection 29(2) of the other Act, then, on the day on which subsection 29(2) of the other Act comes into force, subsections 486(2.101) and (2.102) of the Criminal Code are replaced by the following:
Testimony outside court room
(2.101) Notwithstanding section 650, where an accused is charged with an offence referred to in subsection (2.102), the presiding judge or justice, as the case may be, may order that any witness testify (a) outside the court room, if the judge or justice is of the opinion that the order is necessary to protect the safety of the witness; and (b) outside the court room or behind a screen or other device that would allow the witness not to see the accused, if the judge or justice is of the opinion that the order is necessary to obtain a full and candid account from the witness.
Offences
(2.102) The offences for the purposes of subsection (2.101) are (a) an offence under section 423.1, 467.11, 467.12 or 467.13, or a serious offence
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committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (14) On the later of the coming into force of subsection 16(2) of this Act and subsection 29(3) of the other Act, subsections 486(4.1) and (4.11) of the Criminal Code are replaced by the following: Ban on publication, etc.
(4.1) A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness — or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings — or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
Offences
(4.11) The offences for the purposes of subsection (4.1) are (a) an offence under section 423.1 or a criminal organization offence; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; and (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (15) On the later of the coming into force of subsection 19(1) of this Act and subsection 37(1) of the other Act, subsection 515(4.1) of the Criminal Code is replaced by the following:
2001 Condition prohibiting possession of firearms, etc.
Loi antite (4.1) When making an order under subsection (2), in the case of an accused who is charged with (a) an offence in the commission of which violence against a person was used, threatened or attempted, (a.1) a terrorism offence, (b) an offence under section 264 (criminal harassment), (b.1) an offence under section 423.1 (intimidation of a justice system participant), (c) an offence relating to the contravention of subsection 5(3) or (4), 6(3) or 7(2) of the Controlled Drugs and Substances Act, (d) an offence that involves, or the subjectmatter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or (e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to on offence under subsection 20(1) of that Act, the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person. (16) On the later of the coming into force of subsection 19(2) of this Act and subsection 37(2) of the other Act, the portion of subsection 515(4.2) of the Criminal Code before paragraph (a) is replaced by the following:
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(4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order (17) On the later of the coming into force of subsection 19(3) of this Act and subsection 37(2) of the other Act, paragraph 515(4.3)(b) of the Criminal Code is replaced by the following: (b) an offence described in section 264 or 423.1; (18) On the later of the coming into force of section 21 of this Act and section 45 of the other Act, subsection 743.6(1.2) of the Criminal Code is replaced by the following:
Power of court to delay parole
(1.2) Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life, on conviction for a terrorism offence or an offence under section 467.11, 467.12 or 467.13, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. (19) On the later of the coming into force of subsection 22(1) of this Act and subsection 46(1) of the other Act, subsection 810.01(1) of the Criminal Code is replaced by the following:
2001 Fear of certain offences
Loi antite 810.01 (1) A person who fears on reasonable grounds that another person will commit an offence under section 423.1, a criminal organization offence or a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge. (20) Subsection 22(2) of this Act is repealed if subsection 46(2) of the other Act comes into force before subsection 22(2) of this Act comes into force. (21) Subsection 46(2) of the other Act is repealed if subsection 22(2) of this Act comes into force before subsection 46(2) of the other Act comes into force. 134. (1) If Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent, then subsection 18(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is replaced by the following:
Return of seized currency or monetary instruments
(2) The officer shall, on payment of a penalty in the prescribed amount, return the seized currency or monetary instruments to the individual from whom they were seized or to the lawful owner unless the officer has reasonable grounds to suspect that the currency or monetary instruments are proceeds of crime within the meaning of subsection 462.3(1) of the Criminal Code or funds for use in the financing of terrorist activities. (2) Subsection (1) comes into force on the later of the coming into force of section 58 of this Act and subsection 12(1) of the other Act. 135. (1) Subsections (2) to (10) apply if Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent.
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(2) On the later of the coming into force of the definition ‘‘restrained property’’ in section 2 of the Seized Property Management Act as enacted by subsection 105(1) of this Act and that definition as enacted by subsection 73(3) of the other Act, the definition ‘‘restrained property’’ in section 2 of the Seized Property Management Act is replaced by the following: ‘‘restrained property’’ « biens bloqués »
‘‘restrained property’’ means any property that is the subject of a restraint order made under section 83.13, 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act;
(3) If the definition ‘‘seized property’’ in section 2 of the Seized Property Management Act as enacted by subsection 73(3) of the other Act comes into force before that definition as enacted by subsection 105(1) of this Act, then, on the coming into force of that definition as enacted by subsection 73(3) of the other Act, that definition as enacted by subsection 105(1) of this Act is repealed.
(4) If subsection 74(1) of the other Act comes into force before subsection 106(1) of this Act, then, on the later of the coming into force of subsection 74(1) of the other Act and this section, subsection 106(1) of this Act is repealed. (5) On the later of the coming into force of subparagraph 3(b)(iii) of the Seized Property Management Act as enacted by subsection 106(2) of this Act and that subparagraph as enacted by subsection 74(2) of the other Act, subparagraph 3(b)(iii) of the Seized Property Management Act is replaced by the following: (iii) restrained pursuant to a restraint order made under section 83.13, 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act;
Loi antite
(6) On the later of the coming into force of paragraph 4(1)(a) of the Seized Property Management Act as enacted by subsection 107(1) of this Act and that paragraph as enacted by section 75 of the other Act, paragraph 4(1)(a) of the Seized Property Management Act is replaced by the following: (a) seized under a warrant issued under section 83.13, 462.32 or 487 of the Criminal Code or section 11 of the Controlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 83.13(3), 462.331(2) or 490.81(2) of the Criminal Code or subsection 14.1(2) of the Controlled Drugs and Substances Act, as the case may be;
(7) On the later of the coming into force of paragraph 4(1)(b) of the Seized Property Management Act as enacted by subsection 107(1) of this Act and that paragraph as enacted by section 75 of the other Act, paragraph 4(1)(b) of the Seized Property Management Act is replaced by the following: (b) subject to a restraint order made under section 83.13, 462.33 or 490.8 of the Criminal Code or section 14 of the Controlled Drugs and Substances Act on the application of the Attorney General and that the Minister is appointed to manage under subsection 83.13(3), 462.331(2) or 490.81(2) of the Criminal Code or subsection 14.1(2) of the Controlled Drugs and Substances Act, as the case may be;
(8) If subsection 5(3) of the Seized Property Management Act as enacted by section 108 of this Act comes into force before subsection 5(1) of the Seized Property Management Act as enacted by section 76 of the
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other Act, then, on the coming into force of section 108 of this Act, subsection 5(1) of the Seized Property Management Act as enacted by section 76 of the other Act is replaced by the following:
Transfer of property
5. (1) Every person who has control of any property that is subject to a management order issued under subsection 83.13(2), 462.331(1) or 490.81(1) of the Criminal Code, subsection 14.1(1) of the Controlled Drugs and Substances Act or subsection 7(1) of this Act shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property or any part of the property that is needed as evidence or is necessary for the purposes of an investigation. (9) If subsection 5(1) of the Seized Property Management Act as enacted by section 76 of the other Act comes into force before subsection 5(3) of the Seized Property Management Act as enacted by section 108 of this Act, then, on the coming into force of subsection 5(1) of the Seized Property Management Act as enacted by section 76 of the other Act, (a) subsection 5(1) of the Seized Property Management Act is replaced by the following:
Transfer of property
5. (1) Every person who has control of any property that is subject to a management order issued under subsection 83.13(2), 462.331(1) or 490.81(1) of the Criminal Code, subsection 14.1(1) of the Controlled Drugs and Substances Act or subsection 7(1) of this Act shall, as soon as practicable after the order is issued, transfer the control of the property to the Minister, except for any property or any part of the property that is needed as evidence or is necessary for the purposes of an investigation. (b) subsection 5(3) of the Seized Property Management Act is repealed.
Loi antite (10) If section 78 of the other Act comes into force before section 109 of this Act, then, on the later of the coming into force of section 78 of the other Act and this section, section 109 of this Act is repealed.
136. If Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, has not received royal assent on the later of the coming into force of section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and section 111 of this Act, then at that time subparagraph 11(a)(i) of the Seized Property Management Act is replaced by the following: (i) property forfeited to Her Majesty under section 83.14, subsection 462.37(1) or (2) or 462.38(2) or subparagraph 462.43(c)(iii) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or
137. (1) Subsections (2) to (4) apply if Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent. (2) If, on the later of the coming into force of section 111 of this Act and section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, section 79 of the other Act is not in force, then at that time section 80 of the other Act is repealed.
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(3) If, on the later of the coming into force of section 111 of this Act and section 79 of the other Act, section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is not in force, then at that time (a) subparagraph 11(a)(i) of the Seized Property Management Act is replaced by the following: (i) property forfeited to Her Majesty pursuant to section 83.14, subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code or subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act, or (b) section 80 of the other Act is repealed.
(4) On the latest of the coming into force of section 111 of this Act, section 79 of the other Act and section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, subparagraph 11(a)(i) of the Seized Property Management Act is replaced by the following: (i) property forfeited to Her Majesty under section 83.14, subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or
Loi antite
138. If Bill C-24, introduced in the 1st Session of the 37th Parliament and entitled An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (the ‘‘other Act’’), receives royal assent, and if, on the day on which this Act receives royal assent, section 80 of the other Act has not had effect and section 111 of this Act is not in force, then section 80 of the other Act is replaced by the following: 80. On the later of the coming into force of subparagraph 11(a)(i) of the Seized Property Management Act, as enacted by section 96 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and section 79 of this Act, subparagraph 11(a)(i) of the Seized Property Management Act is replaced by the following: (i) property forfeited to Her Majesty under subsection 462.37(1) or (2) or 462.38(2), subparagraph 462.43(c)(iii) or subsection 490.1(1) or 490.2(2) of the Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and Substances Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, or
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Anti-ter Bill C-30
139. (1) If Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent, then section 161 of the other Act and the heading before it are replaced by the following: Proceeds of Crime (Money Laundering) and Terrorist Financing Act 161. Subsection 30(2) of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is replaced by the following: Ordinary action
(2) The Federal Courts Act and the rules made under that Act that apply to ordinary actions apply to actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) Subsection (1) comes into force on the day on which this Act receives royal assent, but only if that day is before the day on which section 161 of the other Act comes into force. 140. (1) If Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent, then paragraph 37(3)(a) of the Canada Evidence Act is replaced by the following: (a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or
(2) Subsection (1) comes into force on the later of the coming into force of section 43 of this Act and paragraph 183(1)(b) of the other Act.
Loi antite 141. (1) Subsections (2) to (7) apply if Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent. (2) If section 119 of the other Act comes into force before section 43 of this Act, then, on the later of the day on which this Act receives royal assent and the day on which section 119 of the other Act comes into force, paragraph 37.1(1)(a) of the Canada Evidence Act is replaced by the following: (a) to the Federal Court of Appeal from a determination of the Federal Court; or (3) If section 43 of this Act comes into force before section 119 of the other Act, then, on the later of the day on which section 43 of this Act comes into force and the day on which the other Act receives royal assent, (a) section 119 of the other Act is repealed; and (b) paragraph 37.1(1)(a) of the Canada Evidence Act is replaced by the following: (a) to the Federal Court of Appeal from a determination of the Federal Court; or (4) On the later of the coming into force of section 43 of this Act and section 16 of the other Act, the definition ‘‘judge’’ in section 38 of the Canada Evidence Act is replaced by the following:
‘‘judge’’ « juge »
‘‘judge’’ means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under section 38.04.
(5) On the later of the coming into force of section 43 of this Act and section 16 of the other Act, paragraph 38.02(1)(c) of the Canada Evidence Act is replaced by the following: (c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in
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connection with the application is instituted; or
(6) On the later of the coming into force of section 43 of this Act and section 16 of the other Act, section 38.031 of the Canada Evidence Act is replaced by the following:
Disclosure agreement
38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(2)(c), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions.
No application to Federal Court
(2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court under paragraph 38.04(2)(c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2). (7) On the later of the coming into force of section 43 of this Act and section 16 of the other Act, section 38.04 of the Canada Evidence Act is replaced by the following:
Application to Federal Court — Attorney General of Canada
38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4).
Application to Federal Court — general
(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or,
Loi antite other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions, (a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness; (b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information.
Notice to Attorney General of Canada
(3) A person who applies to the Federal Court under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.
Court records
(4) An application under this section is confidential. Subject to section 38.12, the Chief Administrator of the Courts Administration Service may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.
Procedure
(5) As soon as the Federal Court is seized of an application under this section, the judge (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter;
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(b) shall decide whether it is necessary to hold any hearing of the matter; (c) if he or she decides that a hearing should be held, shall (i) determine who should be given notice of the hearing, (ii) order the Attorney General of Canada to notify those persons, and (iii) determine the content and form of the notice; and (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations. Disclosure agreement
(6) After the Federal Court is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of, (a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of the information or disclosure of the facts or information subject to conditions; and (b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated.
Termination of Court consideration, hearing, review or appeal
(7) Subject to subsection (6), after the Federal Court is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3), before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.
Loi antite 142. (1) If Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent, then the definition ‘‘judge’’ in section 3 of the Charities Registration (Security Information) Act, as enacted by section 113 of this Act, is replaced by the following:
‘‘judge’’ « juge »
‘‘judge’’ means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
(2) Subsection (1) comes into force on the later of the day on which section 113 of this Act or section 13 of the other Act comes into force. 143. If Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent, then, on the later of the coming into force of section 16 of the other Act and section 4 of this Act, subsection 83.05(11) of the Criminal Code is replaced by the following:
Definition of ‘‘judge’’
(11) In this section, ‘‘judge’’ means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. 144. (1) Subsections (2) to (4) apply if Bill C-30, introduced in the 1st Session of the 37th Parliament and entitled the Courts Administration Service Act (the ‘‘other Act’’), receives royal assent. (2) If section 16 of the other Act comes into force after section 95 of this Act, then, on the day on which section 16 of the other Act comes into force, (a) subsection 5(1) of the Federal Courts Act is replaced by the following:
��� Constitution of Federal Court of Appeal
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5. (1) The Federal Court of Appeal consists of a chief justice called the Chief Justice of the Federal Court of Appeal, who is the president of the Federal Court of Appeal, and 12 other judges. (b) subsection 5.1(1) of the Federal Courts Act is replaced by the following:
Constitution of Federal Court
5.1 (1) The Federal Court consists of a chief justice called the Chief Justice of the Federal Court, who is the president of the Federal Court, and 32 other judges. (3) If section 16 of the other Act comes into force on the same day as section 95 of this Act, then section 95 of this Act is deemed to have come into force before section 16 of the other Act and subsection (2) applies. (4) If section 16 of the other Act comes into force before section 95 of this Act, then, on the later of the day on which section 16 of the other Act comes into force and the day on which this Act receives royal assent, (a) section 95 of this Act is repealed; (b) subsection 5(1) of the Federal Courts Act is replaced by the following:
Constitution of Federal Court of Appeal
5. (1) The Federal Court of Appeal consists of a chief justice called the Chief Justice of the Federal Court of Appeal, who is the president of the Federal Court of Appeal, and 12 other judges. (c) subsection 5.1(1) of the Federal Courts Act is replaced by the following:
Constitution of Federal Court
5.1 (1) The Federal Court consists of a chief justice called the Chief Justice of the Federal Court, who is the president of the Federal Court, and 32 other judges. (d) section 5.4 of the Federal Courts Act is replaced by the following:
Judges from Quebec
5.4 At least five of the judges of the Federal Court of Appeal and at least ten of the judges of the Federal Court must be persons who have been judges of the Court of Appeal or of the Superior Court of the Province of Quebec, or have been members of the bar of that Province.
Review
Report
Coming into force
Part 6
Loi antite Review and Report 145. (1) Within three years after this Act receives royal assent, a comprehensive review of the provisions and operation of this Act shall be undertaken by such committee of the Senate, of the House of Commons or of both Houses of Parliament as may be designated or established by the Senate or the House of Commons, or by both Houses of Parliament, as the case may be , for that purpose. (2) The committee referred to in subsection (1) shall, within a year after a review is undertaken pursuant to that subsection or within such further time as may be authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be , submit a report on the review to Parliament, including a statement of any changes that the committee recommends. Coming into Force 146. (1) Subject to subsection (2), the provisions of this Act, other than sections 1, 24, 25, 47, 48, 76 to 86 and 119 to 145, and the provisions of any Act that are enacted by this Act come into force on a day or days to be fixed by order of the Governor in Council. (2) Part 6 comes into force on a day to be fixed by order of the Governor in Council.
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Anti-terrorism — SCHEDULE 1 (Section 30)
SCHEDULE (Subsection 8(1) and section 9) Canadian Security Intelligence Service Service canadien du renseignement de sécurité Communications Branch of the National Research Council Direction des télécommunications du Conseil national de recherches Communications Security Establishment Centre de la sécurité des télécommunications Criminal Intelligence Program of the R.C.M.P. Programme des renseignements criminels de la GRC Office of the Communications Security Establishment Commissioner Bureau du commissaire du Centre de la sécurité des télécommunications Office of the Inspector General of the Canadian Security Intelligence Service Bureau de l’Inspecteur général du Service canadien du renseignement de sécurité Protective Operations Program of the R.C.M.P. Programme des missions de protection de la GRC R.C.M.P. Security Service Service de sécurité de la GRC Security Intelligence Review Committee Comité de surveillance des activités de renseignement de sécurité Technical Operations Program of the R.C.M.P. Programme des opérations techniques de la GRC
Loi antiterrorist SCHEDULE 2 (Section 44) SCHEDULE (Paragraph 38.01(6)(d) and subsection 38.01(8)) DESIGNATED ENTITIES
1. A judge of the Federal Court, for the purposes of section 21 of the Canadian Security Intelligence Service Act 2. A judge of the Federal Court, for the purposes of sections 6 to 8 of the Charities Registration (Security Information) Act, except where the hearing is open to the public 3. The Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act, for the purposes of sections 39 and 40 of the Immigration Act 4. The Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act, for the purposes of sections 81 and 82 of the Immigration Act 5. A judge of the Federal Court, for the purposes of section 40.1 of the Immigration Act, except where the hearing is open to the public 6. A judge of the Federal Court or the Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of subsection 77(3.2) of the Immigration Act 7. A judge of the Federal Court, for the purposes of subsection 82.1(10) of the Immigration Act 8. An adjudicator for the purposes of subsections 103.1(7) and (9) of the Immigration Act 9. A board of inquiry convened under section 45 of the National Defence Act 10. A service tribunal or a military judge for the purposes of Part III of the National Defence Act 11. The Public Service Staff Relations Board established by section 11 of the Public Service Staff Relations Act, for the purposes of a grievance process under that Act with respect to an employee of the Canadian Security Intelligence Service, with the exception of any information provided to the board by the employee
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Anti-terrorism —
12. The Information Commissioner, for the purposes of the Access to Information Act 13. The Privacy Commissioner, for the purposes of the Privacy Act 14. The Privacy Commissioner, for the purposes of the Personal Information Protection and Electronic Documents Act 15. A judge of the Federal Court, for the purposes of sections 41 and 42 of the Access to Information Act 16. A judge of the Federal Court, for the purposes of sections 41 to 43 of the Privacy Act 17. A judge of the Federal Court, for the purposes of sections 14 to 17 of the Personal Information Protection and Electronic Documents Act 18. The Security Intelligence Review Committee established by subsection 34(1) of the Canadian Security Intelligence Service Act, for the purposes of sections 41 and 42 of that Act, with the exception of any information provided to the committee by the complainant or an individual who has been denied a security clearance
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 40
An Act to amend the International Boundary Waters Treaty Act
BILL C-6 ASSENTED TO 18th DECEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the International Boundary Waters Treaty Act’’.
SUMMARY The purpose of this enactment is to better implement the Treaty relating to Boundary Waters and Questions arising along the Boundary between Canada and the United States by prohibiting the removal of boundary water from the water basins in which the boundary waters are located and requiring persons to obtain licences from the Minister of Foreign Affairs for water-related projects that affect the natural level or flow of waters on the United States side of the border.
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49-50 ELIZABETH II
CHAPTER 40 An Act to amend the International Boundary Waters Treaty Act [Assented to 18th December, 2001]
R.S., c. I-17
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. The International Boundary Waters Treaty Act is amended by adding the following after section 9: LICENCES AND PROHIBITIONS
Definitions
Interpretation 10. The definitions in this section apply in sections 11 to 26.
‘‘boundary waters’’ « eaux limitrophes »
‘‘boundary waters’’ means boundary waters as defined in the treaty.
‘‘licence’’ « licence »
‘‘licence’’ means a licence issued under section 16.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Foreign Affairs.
Boundary waters
Exceptions
Licences 11. (1) Except in accordance with a licence, no person shall use, obstruct or divert boundary waters, either temporarily or permanently, in a manner that affects, or is likely to affect, in any way the natural level or flow of the boundary waters on the other side of the international boundary. (2) Subsection (1) does not apply in respect of the ordinary use of waters for domestic or sanitary purposes, or the exceptions specified in the regulations.
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Other waters
12. (1) Except in accordance with a licence, no person shall construct or maintain, either temporarily or permanently, any remedial or protective work or any dam or other obstruction in waters flowing from boundary waters, or in downstream waters of rivers flowing across the international boundary, the effect of which is or is likely to raise in any way the natural level of waters on the other side of the international boundary.
Exceptions
(2) Subsection (1) does not apply in respect of the exceptions specified in the regulations. Prohibition
Prohibition — water removal
13. (1) Despite section 11, no person shall use or divert boundary waters by removing water from the boundary waters and taking it outside the water basin in which the boundary waters are located.
Deeming
(2) For the purpose of subsection (1) and the application of the treaty, removing water from boundary waters and taking it outside the water basin in which the boundary waters are located is deemed, given the cumulative effect of removals of boundary waters outside their water basins, to affect the natural level or flow of the boundary waters on the other side of the international boundary.
Water basins
(3) Subsection (1) applies only in respect of the water basins described in the regulations.
Exceptions
(4) Subsection (1) does not apply in respect of the exceptions specified in the regulations. General
Binding on Her Majesty
14. Sections 11 to 13 are binding on Her Majesty in right of Canada or a province.
Application
15. Sections 11, 12 and 13 do not apply in respect of uses, obstructions or diversions in existence immediately before the respective coming into force of those sections, but those sections do apply in respect of such uses, obstructions or diversions if significant changes occur to them after their respective coming into force.
Traité des eaux limitro Powers of Minister
Licence
16. Subject to the regulations, the Minister may, on application, issue, renew or amend a licence to do any activity referred to in subsection 11(1) or 12(1), subject to any terms or conditions the Minister considers appropriate.
Transfer
17. A licence is not transferable except with the consent of the Minister.
Suspension and revocation of licence
18. (1) The Minister may suspend or revoke a licence whenever the Minister believes on reasonable grounds that the licensee has contravened this Act or a condition of the licence, but the licensee must first be given notice in writing by the Minister of the reasons for the suspension or revocation and a reasonable opportunity to make representations to the Minister.
Consent of licensee
(2) The Minister may also suspend or revoke a licence with the consent of, or on application by, the licensee.
Ministerial orders
19. (1) If a person contravenes subsection 11(1), 12(1) or 13(1), the Minister may (a) order the person to remove or alter any obstruction or work to which the contravention relates; or (b) order the person to refrain from proceeding with any construction or other work, or to cease the use or diversion, to which the contravention relates.
Powers of Minister
(2) If the person fails to comply with an order made under paragraph (1)(a) or (b), the Minister may remove or alter anything referred to in paragraph (1)(a) or used in relation to any activity referred to in paragraph (1)(b) or order it to be forfeited to Her Majesty in right of Canada.
Disposition
(3) Anything forfeited under subsection (2) may be removed, destroyed or otherwise disposed of as the Minister directs.
Costs recoverable
(4) The Minister’s cost of removing or altering anything under subsection (2) and the costs of and incidental to the removal, destruction or disposition under subsection (3) of anything forfeited, less any sum that may be realized from its disposition, are recoverable
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by Her Majesty in right of Canada from the person who contravened the order made under subsection (1) as a debt due to Her Majesty in any court of competent jurisdiction. Agreements with provinces
20. The Minister may, with the approval of the Governor in Council, enter into an agreement or arrangement with the government of one or more provinces respecting the activities referred to in sections 11 to 13. Regulations
Regulations
21. (1) The Governor in Council may, on the recommendation of the Minister, make regulations (a) specifying what constitutes a use, obstruction, diversion or work for the purposes of this Act; (b) defining, for the purposes of this Act, any word or expression used in sections 11 to 26 that is not defined in this Act; (c) describing the water basins to which section 13 applies; (d) specifying exceptions to the application of subsections 11(1), 12(1) and 13(1); (e) prescribing classes of licences and determining the persons who are eligible to hold licences of any particular class; (f) respecting applications for licences, including the form of the applications, the information to be provided in respect of the applications and the manner in which the applications are to be filed, processed and disposed of; (g) respecting the form of licences and the information they must include and requiring licensees to publish or otherwise make them available for public inspection; (h) prescribing fees, or the manner of calculating fees, in respect of licences and prescribing the manner in which the fees are to be paid; (i) prescribing the duration of licences; (j) respecting the renewal and amendment of licences;
Traité des eaux limitro (k) prescribing uses, obstructions, diversions and works for which a licence may not be issued; (l) providing for inspections in respect of activities to which sections 11, 12 and 13 relate; and
Ordinary meaning applies
Rights of aboriginal peoples
Offences
(m) generally for carrying out the purposes and provisions of this Act. (2) For greater certainty, regulations made under paragraph (1)(a) do not restrict the ordinary meaning of the words ‘‘use’’, ‘‘obstruction’’, ‘‘diversion’’ or ‘‘work’’. Aboriginal and Treaty Rights 21.1 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of these rights in section 35 of the Constitution Act, 1982. Offences and Punishment 22. (1) Every person who contravenes subsection 11(1), 12(1) or 13(1) is guilty of an offence and liable (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than three years, or to both; or (b) on summary conviction, to a fine of not more than $300,000 or to imprisonment for a term of not more than six months, or to both.
Continuing offences
Additional fine
(2) A contravention of subsection 11(1), 12(1) or 13(1) that is committed or continued on more than one day is deemed to constitute a separate offence for each day on which the contravention is committed or continued. 23. If a person is convicted of an offence of having contravened subsection 11(1), 12(1) or 13(1), the convicting court may, if satisfied that the person acquired monetary benefits or that monetary benefits accrued to the person as a result of committing the offence, order the person to pay an additional fine above the maximum amount of any fine that may otherwise be imposed under section 22, in an
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Offences by corporate officers, etc.
Offences by employees, agents or mandataries
Injunctions
International Bound
amount equal to the court’s finding of the amount of those monetary benefits. 24. If a corporation commits an offence under this Act, an officer, director, agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted. 25. In any prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee, agent or mandatary of the accused, whether or not the employee, agent or mandatary is identified or has been prosecuted for the offence, unless the accused establishes that the accused exercised all due diligence to prevent the commission of the offence. Injunctions 26. (1) When, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done or is about to do or is likely to do any act or thing constituting or directed toward the commission of an offence under this Act, the court may issue an injunction ordering any person named in the application (a) to refrain from doing any act or thing that it appears to the court may constitute or be directed toward the commission of the offence; or (b) to do any act or thing that it appears to the court may prevent the commission of the offence.
Notice
(2) No injunction shall issue under subsection (1) unless 48 hours notice is given to the party or parties named in the application or the urgency of the situation is such that service of notice would not be in the public interest.
Coming into force
2. Section 1, or any provision enacted by that section, comes into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 9
An Act to establish the Financial Consumer Agency of Canada and to amend certain Acts in relation to financial institutions
BILL C-8 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to establish the Financial Consumer Agency of Canada and to amend certain Acts in relation to financial institutions’’.
SUMMARY This enactment establishes the Financial Consumer Agency of Canada responsible for the administration of the consumer provisions governing federal financial institutions. It also amends a number of Acts governing financial institutions and amends legislation related to the regulation of financial institutions. Notable among the amendments are the following: (a) amendments to the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act, and the Trust and Loan Companies Act dealing with business powers and investments, regulatory and Ministerial approvals, and consumer protection provisions; (b) amendments to the Bank Act and the Insurance Companies Act dealing with the ownership regime and the establishment of holding company regimes; (c) amendments to the Office of the Superintendent of Financial Institutions Act, including the establishment of an administrative monetary penalties regime; (d) amendments to the Canadian Payments Association Act respecting corporate governance, eligibility for membership, and the designation of payments systems; and (e) technical amendments to the Bank of Canada Act and the Canada Deposit Insurance Corporation Act.
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TABLE OF PROVISIONS
AN ACT TO ESTABLISH THE FINANCIAL CONSUMER AGENCY OF CANADA AND TO AMEND CERTAIN ACTS IN RELATION TO FINANCIAL INSTITUTIONS SHORT TITLE
1. Short title INTERPRETATION
2. Definitions ESTABLISHMENT OF AGENCY
3. Establishment COMMISSIONER OF AGENCY
4. Appointment of Commissioner POWERS, DUTIES AND FUNCTIONS OF THE COMMISSIONER
5. Powers, duties and functions of the Commissioner
6. Duties and functions generally
7. Agreements
8. Appointment of Deputy Commissioner
9. Exercise by personnel
10. Employees
11. Responsibility for personnel management
12. Official Languages Act
13. Expenditures out of C.R.F.
14. Ownership
15. Borrowing
16. No grant or gratuity to be made
AGREEMENTS
DEPUTY COMMISSIONERS
EXERCISE OF POWERS, DUTIES AND FUNCTIONS
STAFF OF AGENCY
APPROPRIATION
CONFLICT OF INTEREST
CONFIDENTIALITY
17. Confidential information
�� ASSESSMENTS
18. Commissioner to ascertain expenses ADMINISTRATIVE MONETARY PENALTIES
Violations 19.
Regulations
20. Criteria for penalty
21. How act or omission may be proceeded with Proceedings
22. Commission of violation Determination of Responsibility and Penalty
23. Payment of penalty Appeal to Federal Court
24. Right of appeal Enforcement
25. Debts to Her Majesty
26. Certificate of default Rules about Violations
27. Violations not offences
28. Due diligence available General Provisions
29. Evidence
30. Time limit
31. Publication REGULATIONS
32. Regulations NO LIABILITY
33. No liability ANNUAL REPORT
34. Annual report
AMENDMENTS TO ACTS IN RELATION TO FINANCIAL INSTITUTIONS
35-184.
Bank Act
185-202.
Bank of Canada Act
203-216.
Canada Deposit Insurance Corporation Act
217-247.1 Canadian Payments Association Act 248-342.
Cooperative Credit Associations Act
343-344.
Green Shield Canada Act
345-465.
Insurance Companies Act
�� 466-477.
Office of the Superintendent of Financial Institutions Act 478-571. Trust and Loan Companies Act AMENDMENTS TO OTHER ACTS
572-574.
Bankruptcy and Insolvency Act
575-577.
Companies’ Creditors Arrangement Act
578-580.
Competition Act
581-582.
Depository Bills and Notes Act
583. Pension Benefits Standards Act, 1985 Act CONSEQUENTIAL AMENDMENTS
584-585.
Access to Information Act
586. Bills of Exchange Act
587. Canada Small Business Financing Act
588. Financial Administration Act
589. Investment Canada Act
590. Privacy Act
591. Public Service Staff Relations Act
592. Public Service Superannuation Act
593. Coming into force
594. Authority to substitute actual date
COMING INTO FORCE
SCHEDULES 1 TO 3
49-50 ELIZABETH II
CHAPTER 9 An Act to establish the Financial Consumer Agency of Canada and to amend certain Acts in relation to financial institutions
[Assented to 14th June, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Financial Consumer Agency of Canada Act.
Definitions
2. The following definitions apply in this section and in sections 3 to 34.
‘‘Agency’’ « Agence »
‘‘Agency’’ means the Financial Consumer Agency of Canada established under section 3.
‘‘bank holding company’’ « société de portefeuille bancaire »
‘‘bank holding company’’ means a bank holding company as defined in section 2 of the Bank Act;
‘‘Commissioner’’ « commissaire »
‘‘Commissioner’’ means the Commissioner of the Agency appointed under section 4.
‘‘consumer provision’’ « disposition visant les consommateurs »
‘‘consumer provision’’ means
INTERPRETATION
(a) paragraphs 157(2)(e) and (f), sections 413.1, 439.1 to 459.5, subsections 540(2) and (3) and 545(4) and (5), paragraphs 545(6)(b) and (c) and sections 559 to 576.2 of the Bank Act together with any regulations made under or for the purposes of those provisions; (b) paragraphs 167(2)(f) and (g) and sections 385.05 to 385.28 of the Coop�
C. 9
Financial In erative Credit Associations Act together with any regulations made under or for the purposes of those provisions; (c) paragraphs 165(2)(f) and (g) and sections 479 to 489.2 and 598 to 607.1 of the Insurance Companies Act together with any regulations made under or for the purposes of those provisions; (d) paragraphs 161(2)(e) and (f) and sections 425.1 to 444.3 of the Trust and Loan Companies Act together with any regulations made under or for the purposes of those provisions; and (e) the provisions referred to in paragraph 17(1)(f.1) of the Green Shield Canada Act as they apply to Green Shield Canada in accordance with section 17 of that Act together with any regulations made under or for the purposes of those provisions.
‘‘Deputy Commissioner’’ « commissaire adjoint » ‘‘financial institution’’ « institution financière »
‘‘Deputy Commissioner’’ means a Deputy Commissioner appointed under section 8. ‘‘financial institution’’ means (a) a bank as defined in section 2 of the Bank Act; (b) an authorized foreign bank as defined in section 2 of the Bank Act; (c) a company to which the Trust and Loan Companies Act applies; (d) a retail association as defined in section 2 of the Cooperative Credit Associations Act; (e) a company or foreign company to which the Insurance Companies Act applies; and (f) Green Shield Canada.
‘‘governing statute’’ « loi d’application »
‘‘governing statute’’ means (a) in relation to a bank or authorized foreign bank as defined in the Bank Act, that Act;
Institutions f (b) in relation to a retail association to which the Cooperative Credit Associations Act applies, that Act; (c) in relation to a company or foreign company to which the Insurance Companies Act applies, that Act; (d) in relation to a company to which the Trust and Loan Companies Act applies, that Act; and (e) in relation to Green Shield Canada, the Green Shield Canada Act.
‘‘insurance holding company’’ « société de portefeuille d’assurances »
‘‘insurance holding company’’ means an insurance holding company as defined in subsection 2(1) of the Insurance Companies Act.
‘‘Minister’’ « ministre » ‘‘penalty’’ « pénalité »
‘‘Minister’’ means the Minister of Finance.
‘‘prescribed’’ Version anglaise seulement
‘‘prescribed’’ means prescribed by regulation.
‘‘penalty’’ means an administrative monetary penalty.
ESTABLISHMENT OF AGENCY Establishment
Objects
3. (1) There is hereby established an agency of the Government of Canada called the Financial Consumer Agency of Canada over which the Minister shall preside and for which the Minister shall be responsible. (2) The objects of the Agency are to (a) supervise financial institutions to determine whether they are in compliance with the consumer provisions applicable to them; (b) promote the adoption by financial institutions of policies and procedures designed to implement consumer provisions applicable to them; (c) monitor the implementation of voluntary codes of conduct that are designed to protect the interests of customers of financial institutions, that have been adopted by financial institutions and that are publicly available and to monitor any public commitments made by financial institutions that are designed to protect the interests of their customers;
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(d) promote consumer awareness about the obligations of financial institutions under consumer provisions applicable to them; and (e) foster, in co-operation with any department, agency or agent corporation of the Government of Canada or of a province, financial institutions and consumer and other organizations, an understanding of financial services and issues relating to financial services.
COMMISSIONER OF AGENCY Appointment of Commissioner
4. (1) The Governor in Council shall appoint an officer to be called the Commissioner of the Financial Consumer Agency of Canada. The Commissioner has the rank and all the powers of a deputy head of a department.
Tenure of office and removal
(2) The Commissioner holds office during good behaviour for a term of not more than five years, but may be removed for cause by the Governor in Council.
Further terms
(3) The Commissioner, on the expiration of any term of office, is eligible to be re-appointed for a further term of office.
Absence or incapacity
(4) In the event of the absence or incapacity of the Commissioner, or if the office of Commissioner is vacant, the Minister may appoint a qualified person to exercise the powers and perform the duties and functions of the Commissioner, but no person may be so appointed for a term of more than 90 days without the approval of the Governor in Council.
Remuneration
(5) The Commissioner shall be paid the remuneration fixed by the Governor in Council.
Expenses
(6) The Commissioner and any person appointed under subsection (4) are entitled to be paid reasonable travel and living expenses incurred in the course of performing their duties while absent from their ordinary place of work.
2001 Deemed employment
Institutions f (7) The Commissioner and any person appointed under subsection (4) are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act and to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act. POWERS, DUTIES AND FUNCTIONS OF THE COMMISSIONER
Powers, duties and functions of the Commissioner
5. (1) The Commissioner has the powers, duties and functions assigned to the Commissioner by this Act and by the Acts listed in Schedule 1 and shall examine and inquire into, and report to the Minister from time to time on, all matters connected with the administration of this Act and of the consumer provisions of those other Acts.
Personal information
(2) The Commissioner may collect any personal information that he or she considers necessary in furtherance of the object described in paragraph 3(2)(a).
Review re voluntary codes of conduct
(3) The Commissioner, if a financial institution has adopted a voluntary code of conduct referred to in paragraph 3(2)(c) or made a commitment designed to protect the interests of its customers, may make or cause to be made any review that he or she considers necessary to monitor compliance with the code or the commitment, as the case may be.
Respect for other monitors
(4) When acting under subsection (3), the Commissioner shall have due regard for the role of any department, agency or agent corporation of the Government of Canada or of a province or any organization that has a role in monitoring compliance by financial institutions with voluntary codes of conduct or commitments.
Consumer awareness
(5) The Commissioner may carry on any activity that he or she considers necessary in furtherance of an object described in paragraph 3(2)(d) or (e).
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Duties and functions generally
6. (1) The Commissioner shall engage exclusively in the duties and functions of the Commissioner under section 5 and as deputy head of the Agency.
Other duties
(2) Despite subsection (1), the Commissioner may hold any other office under Her Majesty or perform any other duties for Her Majesty, but not for reward. AGREEMENTS
Agreements
7. The Agency, in order to carry out its objects, may enter into an agreement or arrangement with a department or agency of the Government of Canada or of a province or with any other person or body in the name of Her Majesty in right of Canada or in its own name. An agreement or arrangement with a department or agency of a province must be made with the approval of the Governor in Council. DEPUTY COMMISSIONERS
Appointment of Deputy Commissioner
8. The Commissioner may appoint one or more officers each to be called a Deputy Commissioner of the Financial Consumer Agency of Canada who shall act under the instructions of the Commissioner. EXERCISE OF POWERS, DUTIES AND FUNCTIONS
Exercise by personnel
9. Except as otherwise provided by the Commissioner and subject to any terms and conditions that may be specified by the Commissioner, a person who is an officer or employee of the Agency may exercise any of the powers and perform any of the duties and functions of the Commissioner under this Act if the person is appointed to serve in the Agency in a capacity appropriate to the exercise of the power or performance of the duty or function. STAFF OF AGENCY
Employees
10. The employees that are necessary to enable the Commissioner to perform the duties of the Commissioner shall be appointed in accordance with the Public Service Employment Act.
Institutions f
Responsibility for personnel management
11. (1) In respect of persons appointed under sections 8 and 10, the Commissioner is authorized to exercise the powers and perform the duties and functions of the Treasury Board under paragraphs 7(1)(b) and (e) and section 11 of the Financial Administration Act that relate to personnel management, including the determination of terms and conditions of employment and the responsibility for employer and employee relations.
Delegation of powers
(2) The Commissioner may authorize any person employed in the public service of Canada to exercise and perform, in such manner and subject to such terms and conditions as the Commissioner directs, any of the powers and functions of the Commissioner in relation to personnel management in the public service and may, from time to time as the Commissioner sees fit, revise or rescind and reinstate the authority so granted.
Sub-delegation of such powers
(3) Any person authorized under subsection (2) to exercise and perform any of the powers and functions of the Commissioner may, subject to and in accordance with the authorization, authorize one or more persons under their jurisdiction or any other person to exercise or perform any such power or function.
Official Languages Act
12. For greater certainty, the Official Languages Act applies to the Agency. APPROPRIATION
Expenditures out of C.R.F.
13. (1) Subject to subsection (2), the Minister may, in any fiscal year on terms and conditions — including the rate of interest, if any — that are determined by the Minister, advance amounts out of the Consolidated Revenue Fund to the Agency to permit it to defray its costs of operation.
Spending authority
(2) In carrying out its responsibilities, the Agency may spend assessments and other revenues received through the conduct of its operations in the fiscal year in which they are received or, unless an appropriation Act provides otherwise, in the next fiscal year. The amount of those assessments or other revenues shall be paid out of the Consolidated Revenue Fund.
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Financial In CONFLICT OF INTEREST
Ownership
14. No Commissioner, person appointed under subsection 4(4) or Deputy Commissioner shall beneficially own, directly or indirectly, any shares of any financial institution, bank holding company, insurance holding company or of any other body corporate, however created, carrying on any business in Canada that is substantially similar to any business carried on by any financial institution.
Borrowing
15. No Commissioner, person appointed under subsection 4(4) or Deputy Commissioner shall borrow money from any financial institution or from any member institution as defined in the Canada Deposit Insurance Corporation Act unless the Minister is first informed in writing of the intention of the Commissioner, person or Deputy Commissioner to do so.
No grant or gratuity to be made
16. (1) The Commissioner, a person appointed under subsection 4(4), a Deputy Commissioner and any person appointed under section 10 shall not accept or receive, directly or indirectly, any grant or gratuity from a financial institution, bank holding company, insurance holding company, or from a director, officer or employee of any of them, and no such financial institution, bank holding company, insurance holding company, director, officer or employee shall make or give any such grant or gratuity.
Offence and punishment
(2) Every person, financial institution, bank holding company or insurance holding company that contravenes subsection (1) is guilty of an offence and liable (a) on summary conviction, to a fine of not more than $2000 or to imprisonment for a term of not more than six months or to both; or (b) on conviction on indictment, to a fine of not more than $10,000 or to imprisonment for a term of not more than five years or to both.
Institutions f CONFIDENTIALITY
Confidential information
17. (1) Subject to subsection (2) and except as otherwise provided in this Act, information regarding the business or affairs of a financial institution or regarding persons dealing with one that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsections 5(1) and (2) and any information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (c) to the Canada Deposit Insurance Corporation or any compensation association designated by order of the Minister pursuant to subsection 449(1) or 591(1) of the Insurance Companies Act, for purposes related to its operation; and (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions.
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Financial In ASSESSMENTS
Commissioner to ascertain expenses
18. (1) The Commissioner shall, before December 31 in each year, ascertain the total amount of expenses incurred during the immediately preceding fiscal year for or in connection with the administration of this Act and the consumer provisions, and the amounts of any prescribed categories of those expenses in relation to any prescribed group of financial institutions.
Amount conclusive
(2) The amounts ascertained under subsection (1) are final and conclusive for the purposes of this section. (3) As soon as possible after ascertaining the amounts under subsection (1), the Commissioner shall assess a portion of the total amount of expenses against each financial institution to the extent and in the manner that the Governor in Council may, by regulation, prescribe. (4) The Commissioner may, during each fiscal year, prepare an interim assessment against any financial institution. (5) Every assessment and interim assessment is final and conclusive and binding on the financial institution against which it is made. (6) Every assessment and interim assessment constitutes a debt due to Her Majesty, is immediately payable and may be recovered as a debt in any court of competent jurisdiction. (7) Interest may be charged on the unpaid amount of an assessment or interim assessment at a rate equal to the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act in effect from time to time plus 2 %.
Assessment
Interim assessment
Assessment is binding
Recovery
Interest
ADMINISTRATIVE MONETARY PENALTIES
Regulations
Violations 19. (1) The Governor in Council may make regulations (a) designating, as a violation that may be proceeded with under sections 20 to 31, the contravention of a specified consumer provision, or the non-compliance with a compliance agreement entered into under an Act listed in Schedule 1;
Institutions f (b) fixing, in accordance with subsection (2), a penalty, or a range of penalties, in respect of any violation; (c) respecting the service of documents required or authorized to be served under sections 20 to 31, including the manner and proof of service and the circumstances under which documents are deemed to be served; and (d) generally, for carrying out the purposes and provisions of this section and sections 20 to 31.
Maximum penalties
(2) The maximum penalty for a violation is $50,000 in the case of a violation that is committed by a natural person, and $100,000 in the case of a violation that is committed by a financial institution.
Criteria for penalty
20. Except if a penalty is fixed under paragraph 19(1)(b), the amount of a penalty shall, in each case, be determined taking into account (a) the degree of intention or negligence on the part of the person who committed the violation; (b) the harm done by the violation; (c) the history of the person who committed the violation with respect to any prior violation or conviction under an Act listed in Schedule 1 within the five-year period immediately before the violation; and (d) any other criteria that may be prescribed.
How act or omission may be proceeded with
21. If a contravention or non-compliance that is designated under paragraph 19(1)(a) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other. Proceedings
Commission of violation
22. (1) Every contravention or non-compliance that is designated under paragraph 19(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 19 and 20.
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Notice of violation
(2) If the Commissioner believes on reasonable grounds that a person has committed a violation, he or she may issue, and shall cause to be served on the person, a notice of violation.
Contents of notice
(3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out (a) the penalty that the Commissioner proposes to impose; (b) the right of the person, within 30 days after the notice is served, or within any longer period that the Commissioner specifies, to pay the penalty or to make representations to the Commissioner with respect to the violation and the proposed penalty, and the manner for doing so; and (c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Commissioner may impose a penalty in respect of it. Determination of Responsibility and Penalty
Payment of penalty
23. (1) If the person pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Commissioner
(2) If the person makes representations in accordance with the notice, the Commissioner shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.
Failure to pay or make representations
(3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Commissioner may, subject to any regulations made under paragraph 19(1)(b), impose the penalty proposed, a lesser penalty or no penalty.
2001 Notice of decision and right of appeal
Institutions f (4) The Commissioner shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with notice of the right of appeal under section 24. Appeal to Federal Court
Right of appeal
24. (1) A person on whom a notice under subsection 23(4) is served may, within 30 days after the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.
Court to take precautions against disclosing
(2) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person of confidential information referred to in subsection 17(1).
Powers of Court
(3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 19(1)(b), vary the decision of the Commissioner. Enforcement
Debts to Her Majesty
25. (1) A penalty constitutes a debt due to Her Majesty in right of Canada that may be recovered as such in the Federal Court.
Time limit
(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.
Proceeds payable to Receiver General
(3) A penalty paid or recovered under sections 19 to 24, this section and sections 26 to 31 is payable to and shall be remitted to the Receiver General.
Certificate of default
26. (1) The unpaid amount of any debt referred to in subsection 25(1) may be certified by the Commissioner.
Registration in Federal Court
(2) Registration in the Federal Court of a certificate made under subsection (1) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs.
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Violations not offences
27. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of one.
Due diligence available
28. (1) Due diligence is a defence in a proceeding in relation to a violation.
Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence in relation to a consumer provision applies in respect of a violation to the extent that it is not inconsistent with this Act.
General Provisions Evidence
29. In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 22(2) or 23(4) or a certificate purporting to be made under subsection 26(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
30. (1) No proceedings in respect of a violation may be commenced later than two years after the subject-matter of the proceedings became known to the Commissioner.
Certificate of Commissioner
(2) A document appearing to have been issued by the Commissioner, certifying the day on which the subject-matter of any proceedings became known to the Commissioner, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Publication
31. The Commissioner may make public the nature of a violation, the name of the person who committed it, and the amount of the penalty imposed.
Institutions f REGULATIONS
Regulations
32. The Governor in Council may make regulations prescribing (a) anything that is required or authorized by this Act to be prescribed; and (b) the way in which anything that is required or authorized by this Act to be prescribed shall be determined. NO LIABILITY
No liability
33. No action lies against Her Majesty, the Minister, the Commissioner, any Deputy Commissioner, any officer or employee of the Agency or any person acting under the direction of the Commissioner for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under any Act of Parliament are intended or authorized to be executed or performed. ANNUAL REPORT
Annual report
34. The Minister shall cause to be laid before each House of Parliament, not later than the fifth sitting day of that House after September 30 next following the end of each fiscal year, a report showing the operations of the Agency for that year and describing in aggregate form its conclusions on the compliance of financial institutions with the consumer provisions applicable to them in that year. AMENDMENTS TO ACTS IN RELATION TO FINANCIAL INSTITUTIONS
1991, c. 46
Bank Act 35. (1) The definition ‘‘foreign bank subsidiary’’ in section 2 of the Bank Act is repealed.
1999, c. 28, s. 1(2)
(2) The definitions ‘‘affairs’’, ‘‘annual statement’’, ‘‘central securities register’’ or ‘‘securities register’’, ‘‘head office’’, ‘‘incorporator’’, ‘‘recorded address’’, ‘‘regulatory capital’’ and ‘‘subsidiary’’ in section 2 of the Act are replaced by the following:
‘‘affairs’’ « affaires internes »
‘‘affairs’’, with respect to a bank, an authorized foreign bank or a bank holding company, means the relationships among the
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bank, authorized foreign bank or bank holding company and its affiliates and the shareholders, directors and officers of the bank, authorized foreign bank or bank holding company and its affiliates, but does not include the business of the bank, authorized foreign bank or bank holding company or any of its affiliates; ‘‘annual statement’’ « rapport annuel »
‘‘annual statement’’, in relation to a bank, means the annual financial statement of the bank within the meaning of paragraph 308(1)(a) and, in relation to a bank holding company, means the annual financial statement of the bank holding company within the meaning of paragraph 840(1)(a);
‘‘central securities register’’ or ‘‘securities register’’ « registre central des valeurs mobilières » ou « registre des valeurs mobilières »
‘‘central securities register’’ or ‘‘securities register’’, in relation to a bank, means the register referred to in section 248 and, in relation to a bank holding company, means the register referred to in section 825;
‘‘head office’’ « siège »
‘‘head office’’, in relation to a bank, means the office required to be maintained under section 237 and, in relation to a bank holding company, means the office required to be maintained under section 814;
‘‘incorporator’’ « fondateur »
‘‘incorporator’’, in relation to a bank or a bank holding company, means a person who applied for letters patent to incorporate the bank or bank holding company, as the case may be;
‘‘recorded address’’ « adresse enregistrée »
‘‘recorded address’’ means (a) in relation to a person who is a shareholder of a bank or a bank holding company, the latest postal address of the person according to its central securities register, and (b) in relation to a person in any other respect in relation to a bank, the latest postal address of the person according to the records of the branch concerned;
‘‘regulatory capital’’ « capital réglementaire »
‘‘regulatory capital’’, in respect of a bank or a bank holding company, has the meaning given that expression by the regulations;
Institutions f
‘‘subsidiary’’ « filiale »
‘‘subsidiary’’ means an entity that is a subsidiary of another entity as defined in section 5;
1999, c. 28, s. 1(3)
(3) Paragraph (c) of the definition ‘‘complainant’’ in section 2 of the Act is replaced by the following: (c) any other person who, in the discretion of a court, is a proper person to make an application under section 334, 338 or 989;
1991, c. 47, par. 756(1)(a), c. 48, par. 494(a)
(4) Paragraphs (c) and (d) of the definition ‘‘financial institution’’ in section 2 of the Act are replaced by the following: (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act,
(5) The portion of the definition ‘‘foreign bank’’ in section 2 of the Act after paragraph (f) is replaced by the following: (g) is a foreign institution, other than a foreign bank within the meaning of any of paragraphs (a) to (f), that controls a bank incorporated or formed under this Act, but does not include a subsidiary of a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, unless the Minister has specified that subsection 378(1) no longer applies to the bank;
(6) Paragraph (a) of the definition ‘‘foreign institution’’ in section 2 of the Act is replaced by the following: (a) engaged in the business of banking, the trust, loan or insurance business, the business of a cooperative credit society or the business of dealing in securities or
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(7) Section 2 of the Act is amended by adding the following in alphabetical order: ‘‘Agency’’ « Agence »
‘‘Agency’’ means the Financial Consumer Agency of Canada established under section 3 of the Financial Consumer Agency of Canada Act;
‘‘bank holding company’’ « société de portefeuille bancaire »
‘‘bank holding company’’ means a body corporate that is incorporated or formed under Part XV;
‘‘Commissioner’’ « commissaire »
‘‘Commissioner’’ means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act;
‘‘consumer provision’’ « disposition visant les consommateurs »
‘‘consumer provision’’ means a provision referred to in paragraph (a) of the definition ‘‘consumer provision’’ in section 2 of the Financial Consumer Agency of Canada Act;
‘‘equity’’ « capitaux propres »
‘‘equity’’, in respect of a bank or a bank holding company, means its equity as determined in accordance with the regulations;
‘‘federal financial institution’’ « institution financière fédérale »
‘‘federal financial institution’’ means (a) a bank, (b) a body corporate to which the Trust and Loan Companies Act applies, (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, or (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act;
‘‘insurance holding company’’ « société de portefeuille d’assurances »
‘‘insurance holding company’’ means a body corporate that is incorporated or formed under Part XVII of the Insurance Companies Act;
Institutions f
36. The Act is amended by adding the following after section 2.1: Major shareholder
2.2 For the purposes of this Act, a person is a major shareholder of a body corporate if (a) the aggregate of the shares of any class of voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 20 per cent of the outstanding shares of that class of voting shares of the body corporate; or (b) the aggregate of the shares of any class of non-voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 30 per cent of the outstanding shares of that class of non-voting shares of the body corporate.
Widely held
2.3 For the purposes of this Act, an entity is widely held if it is (a) a body corporate that has no major shareholder; (b) an insurance company incorporated or formed under a mutual plan; (c) an association to which the Cooperative Credit Associations Act applies; or (d) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province.
37. (1) Paragraph 3(1)(d) of the French version of the Act is replaced by the following: d) dans tous les cas, la personne dont l’influence directe ou indirecte auprès de l’entité est telle que son exercice aurait pour résultat le contrôle de fait de celle-ci.
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(2) The portion of subsection 3(3) of the Act before paragraph (a) is replaced by the following: Deemed control
(3) A person is deemed to control, within the meaning of paragraph (1)(a) or (b), an entity if the aggregate of
(3) Section 3 of the Act is amended by adding the following after subsection (3): Guidelines
(4) The Minister may, for any purpose of any provision of this Act that refers to control within the meaning of paragraph (1)(d), make guidelines respecting what constitutes such control, including guidelines describing the policy objectives that the guidelines and the relevant provisions of the Act are intended to achieve and, if any such guidelines are made, the reference to paragraph (1)(d) in that provision shall be interpreted in accordance with the guidelines. 38. Sections 4 and 5 of the Act are replaced by the following:
Holding body corporate
4. A body corporate is the holding body corporate of any entity that is its subsidiary.
Subsidiary
5. An entity is a subsidiary of another entity if it is controlled by the other entity. 39. Subsection 6(2) of the Act is replaced by the following:
Affiliated entities
(2) Despite subsection (1), for the purposes of subsections 265(1) and 283(1), one entity is affiliated with another entity if one of them is controlled, determined without regard to paragraph 3(1)(d), by the other or both are controlled, determined without regard to paragraph 3(1)(d), by the same person. 40. Section 8 of the Act is replaced by the following:
2001 Significant interest
Institutions f 8. (1) A person has a significant interest in a class of shares of a bank or a bank holding company if the aggregate of (a) any shares of that class beneficially owned by the person, and (b) any shares of that class beneficially owned by entities controlled by the person exceeds 10 per cent of all of the outstanding shares of that class of shares of the bank or bank holding company.
Increasing significant interest
(2) A person who has a significant interest in a class of shares of a bank or bank holding company increases that significant interest in the class of shares if the person or any entity controlled by the person (a) acquires beneficial ownership of additional shares of that class, or (b) acquires control of any entity that beneficially owns shares of that class, in such number as to increase the percentage of shares of that class that are beneficially owned by the person and by any entities controlled by the person. 41. Subsections 9(1) and (2) of the Act are replaced by the following:
Acting in concert
9. (1) For the purposes of Part VII and Division 7 of Part XV, if two or more persons have agreed, under any agreement, commitment or understanding, whether formal or informal, verbal or written, to act jointly or in concert in respect of (a) shares of a bank or of a bank holding company that they beneficially own, (b) shares or ownership interests that they beneficially own of any entity that beneficially owns shares of a bank or of a bank holding company, or (c) shares or ownership interests that they beneficially own of any entity that controls any entity that beneficially owns shares of a bank or bank holding company, those persons are deemed to be a single person who is acquiring beneficial ownership of the aggregate number of shares of the bank or bank holding company or shares or ownership interests of the entity that are beneficially owned by them.
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(2) Without limiting the generality of subsection (1), any agreement, commitment or understanding by or between two or more persons who beneficially own shares of a bank or bank holding company or shares or ownership interests of any entity referred to in paragraph (1)(b) or (c), (a) whereby any of them or their nominees may veto any proposal put before the board of directors of the bank or bank holding company, or (b) under which no proposal put before the board of directors of the bank or bank holding company may be approved except with the consent of any of them or their nominees, is deemed to be an agreement, commitment or understanding referred to in subsection (1). 42. Subsections 11(2) and (3) of the Act are replaced by the following:
Exemption
(2) On application by a bank or bank holding company, the Superintendent may determine that a security of the bank or bank holding company is not or was not part of a distribution to the public if the Superintendent is satisfied that the determination would not prejudice any security holder of the bank or bank holding company.
Securities deemed part of distribution
(3) For the purposes of this Act, securities of a bank or bank holding company issued on the conversion of other securities or issued in exchange for other securities are deemed to be securities that are part of a distribution to the public if those other securities were part of a distribution to the public. 42.1 Subsection 12(1) of the Act is replaced by the following:
Institutions f
Exemption from foreign bank status
12. (1) The Minister may, by order, and subject to such terms and conditions as the Minister considers appropriate, exempt for the purposes of any provision of this Act any entity from being a foreign bank that, but for that order, would be a foreign bank.
1999, c. 28, s. 4
43. Sections 13 and 14 of the Act are replaced by the following:
Application of Act
13. This Act is the charter of and applies to each bank.
Schedule I and Schedule II banks
14. (1) Subject to this Act, (a) there shall be set out in Schedule I (i) the name of every bank named in Schedules I and II as those Schedules read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force that was not a subsidiary of a foreign bank, (ii) the name of every bank incorporated or formed under this Act that is not a subsidiary of a foreign bank, and (iii) the place in Canada where the head office of the bank is situated; and (b) there shall be set out in Schedule II (i) the name of every bank named in Schedule II as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force that was a subsidiary of a foreign bank, (ii) the name of every bank incorporated or formed under this Act that is a subsidiary of a foreign bank, and (iii) the place in Canada where the head office of the bank is situated.
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(2) Where (a) a bank is incorporated, (b) a body corporate is continued as a bank, (c) one or more bodies corporate are amalgamated as a bank, (d) the name of a bank is changed, (e) the head office of a bank is changed, (f) a bank becomes, or ceases to be, a subsidiary of a foreign bank, or (g) a bank is dissolved, Schedules I and II shall be amended accordingly.
Notice of amendments
(3) If in any year either Schedule I or II is amended, the Superintendent shall, within sixty days after the end of the year, cause a notice to be published in the Canada Gazette showing Schedule I or II in its complete amended form as at the end of the year. 43.1 The Act is amended by adding the following after section 14.1:
Exemption of foreign banks
14.2 The Governor in Council may make regulations exempting any class of foreign banks from the application of any provision of this Act.
1997, c. 15, s. 2; 1999, c. 28, s. 9
44. Section 21 of the Act is replaced by the following:
Sunset provision
21. (1) Subject to subsection (2), banks shall not carry on business and authorized foreign banks shall not carry on business in Canada after the day that is five years after this section comes into force, except that, if Parliament dissolves on that day or at any time within the three-month period before that day, banks may continue to carry on business, and authorized foreign banks may continue to carry on business in Canada, respectively, until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.
2001 Extension
Institutions f (2) The Governor in Council may, by order, extend by up to six months the time during which banks may continue to carry on business and authorized foreign banks may continue to carry on business in Canada. No more than one order may be made under this subsection. 45. Paragraph 23(d) of the Act is replaced by the following: (d) an entity that is controlled by the government of a foreign country or any political subdivision thereof, other than an entity that is a foreign bank, a foreign institution or a subsidiary of a foreign bank or foreign institution.
1999, c. 28, s. 10
46. Section 24 of the Act is replaced by the following:
Subsidiary of foreign bank
24. If a proposed bank would be a subsidiary of a foreign bank, within the meaning of paragraphs (a) to (f) of the definition ‘‘foreign bank’’ in section 2, and the application for letters patent to incorporate the bank is made by a non-WTO Member foreign bank, letters patent to incorporate the bank may not be issued unless the Minister is satisfied that treatment as favourable for banks to which this Act applies exists or will be provided in the jurisdiction in which the foreign bank principally carries on business, either directly or through a subsidiary. 47. Section 27 of the Act is replaced by the following:
Matters for consideration
27. Before issuing letters patent to incorporate a bank, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the bank; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the bank; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or
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any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the bank will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the bank on the conduct of those businesses and operations; (g) the opinion of the Superintendent regarding the extent to which the proposed corporate structure of the applicant or applicants and their affiliates may affect the supervision and regulation of the bank, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the bank and its affiliates, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the bank; and (h) the best interests of the financial system in Canada. 1991, c. 47, s. 756(2)
48. (1) Subsection 29(1) of the Act is replaced by the following:
Letters patent of incorporation on application of certain companies
29. (1) If the Minister issues letters patent, under section 22, incorporating a bank on the application of a company to which the Trust and Loan Companies Act or the Insurance Companies Act applies and the paid-in capital of the bank immediately following its incorporation will be not less than five million dollars or any greater amount that the Minister may specify under subsection 46(1), there may, on the request of the company and with the approval of the Minister, be included in the letters patent a provision deeming shares of the bank to be issued, on a share for share basis, to all shareholders of the company in exchange for all the issued and outstanding shares of the company.
Institutions f (2) Subsection 29(9) of the Act is repealed.
1994, c. 24, par. 34(1)(b)(F)
49. Subsection 33(1) of the Act is replaced by the following:
Federal corporations
33. (1) A body corporate incorporated under the Canada Business Corporations Act or any other Act of Parliament, including a bank holding company, may apply to the Minister for letters patent continuing the body corporate as a bank under this Act.
1997, c. 15, s. 4; 1999, c. 28, s. 11
50. Sections 39.1 and 39.2 of the Act are replaced by the following:
This Act ceases to apply
39.1 If section 39.2 or 402.1 applies in respect of a bank, on the day specified in the letters patent continuing the bank as a company under subsection 33(1) or 234(1) of the Trust and Loan Companies Act, this Act ceases to apply to the bank and that Act applies to the company so continued under that Act.
Other transfer
39.2 A bank may apply for letters patent continuing the bank as a company under subsection 33(1) of the Trust and Loan Companies Act or amalgamating and continuing the bank as a company under section 228 and subsection 234(1) of that Act.
1999, c. 28, s. 12
51. Paragraph 40(e) of the Act is replaced by the following: (e) that is reserved under section 43 for another bank or an authorized foreign bank or a proposed bank or a proposed authorized foreign bank or under section 697 for a bank holding company or a proposed bank holding company.
1996, c. 6, s. 1
52. Section 41 of the Act is replaced by the following:
Affiliated bank
41. Despite section 40, a bank that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, be incorporated with, or change its name to, substantially the same name as that of the affiliated entity.
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1996, c. 6, s. 3
53. Subsection 44(2) of the Act is replaced by the following:
Revoking name
(2) If a bank has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Act, the Superintendent may revoke the name of the bank and assign to it a name and, until changed in accordance with section 215 or 217, the name of the bank is thereafter the name so assigned. 54. Subsection 46(1) of the Act is replaced by the following:
Calling shareholders’ meeting
46. (1) If at least five million dollars, or any greater amount that the Minister may specify, has been received by a bank in respect of which letters patent were issued under section 22 from the issue of its shares, the directors of the bank shall without delay call a meeting of the shareholders of the bank. 55. Subsection 48(2) of the Act is replaced by the following:
Deeming
(2) If, on the day this subsection comes into force, an order approving the commencement and carrying on of business by a bank named in Schedule I or II as those Schedules read immediately before that day, has not been made, such an order is deemed to have been made in respect of the bank on that day. 56. Paragraph 52(1)(b) of the Act is replaced by the following: (b) the bank has paid-in capital of at least five million dollars or any greater amount that is specified by the Minister under subsection 46(1); 57. The Act is amended by adding the following after section 54:
Limit on assets
54.1 (1) The Minister may, by order, require a bank not to have average total assets in any three month period ending on the last day of a month subsequent to the month specified in the order exceeding the bank’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order if the Minister is of the opinion that it is in the best interests of the financial system in Canada to do so, after having considered the Superintendent’s opinion on
Institutions f (a) the nature and extent of the financial services activities carried out by entities affiliated with the bank; and (b) the impact that the nature and degree of supervision and regulation of those financial services activities have on the supervision and regulation of the bank.
Revocation of order
(2) If the Minister is of the opinion that the circumstances giving rise to the order have ceased to exist or have changed substantially, the Minister may, by further order, revoke the order.
Average total assets
(3) For the purposes of subsection (1), the average total assets of a bank in a three month period shall be computed by adding the total assets of the bank as calculated for the month end of each of the three months in the period and by dividing the sum by three.
Definition of ‘‘total assets’’
(4) For the purposes of subsections (1) and (3), ‘‘total assets’’, in respect of a bank, has the meaning given that expression by the regulations.
1997, c. 15, s. 6(1); 1999, c. 31, s. 9
58. Subsection 55(1) of the Act is replaced by the following:
Permission to subsidiary of foreign bank
55. (1) On the recommendation of the Superintendent, the Minister may, at the same time that an order is made approving the commencement and carrying on of business by a bank that is the subsidiary of a foreign bank, by further order, grant the subsidiary permission to (a) hold assets that banks are not otherwise permitted by this Act to hold if those assets consist of shares of a body corporate incorporated by or under an Act of Parliament or of the legislature of a province that, at the time application for letters patent incorporating the subsidiary was made, were held by the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary or any affiliate of that eligible foreign institution; and (b) hold assets that banks are not otherwise permitted by this Act to hold if, at the time application for letters patent incorporating the subsidiary was made, the assets were
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held by an affiliate of the eligible foreign institution, as defined in subsection 370(1), that is the holding body corporate of the subsidiary. Despite any other provision of this Act or the regulations, the subsidiary may act in accordance with that permission. 59. Subsection 59(5) of the Act is replaced by the following: Deemed share conditions
(5) If a right, other than a voting right, of a holder of a share with nominal or par value of a bank referred to in subsection (3) or a body corporate continued as a bank under this Act was stated or expressed in terms of the nominal or par value of the share immediately before the coming into force of this subsection or the continuance under this Act, as the case may be, that right is deemed, after the coming into force of this Part or the continuance, as the case may be, to be the same right stated or expressed without reference to the nominal or par value of the share. 60. Subsection 61(3) of the Act is replaced by the following:
Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2). 61. (1) Subsection 79(1) of the Act is replaced by the following:
Declaration of dividend
79. (1) The directors of a bank may declare and a bank may pay a dividend by issuing fully paid shares of the bank or options or rights to acquire fully paid shares of the bank and, subject to subsections (4) and (5), the directors of a bank may declare and a bank may pay a dividend in money or property, and where a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada. (2) Section 79 of the Act is amended by adding the following after subsection (4):
2001 When dividend not to be declared
Institutions f (5) The directors of a bank shall not declare and a bank shall not pay a dividend in any financial year without the approval of the Superintendent if, on the day the dividend is declared, the total of all dividends declared by the bank in that year would exceed the aggregate of the bank’s net income up to that day in that year and of its retained net income for the preceding two financial years. 62. Subsection 93(1) of the French version of the Act is replaced by the following:
Relations avec le détenteur inscrit
93. (1) La banque ou le fiduciaire visé à l’article 294 peut, sous réserve des paragraphes 137(2) à (5) et des articles 138 à 141 et 145, considérer le détenteur inscrit d’une valeur mobilière comme la seule personne ayant qualité pour voter, recevoir des avis ainsi que les intérêts, dividendes ou autres paiements et exercer tous les droits et pouvoirs du propriétaire de la valeur mobilière. 63. Section 138 of the Act is amended by adding the following after subsection (1):
Number of eligible votes
(1.1) A bank with equity of five billion dollars or more shall set out in the notice of a meeting the number of eligible votes, as defined under subsection 156.09(1), that may be cast at the meeting as of the record date for determining those shareholders entitled to receive the notice of meeting or, if there are to be separate votes of shareholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting. 64. Subsection 142(2) of the French version of the Act is replaced by the following:
Renonciation à l’avis
(2) La présence à l’assemblée équivaut à une renonciation de l’avis de convocation, sauf lorsque la personne y assiste spécialement pour s’opposer aux délibérations au motif que l’assemblée n’est pas régulièrement convoquée.
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65. The portion of subsection 145(1) of the Act before paragraph (a) is replaced by the following: Shareholder list
145. (1) A bank shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 138(1)(a), arranged in alphabetical order and showing the number of shares held by each shareholder, which list must be prepared 66. Section 148 of the Act is replaced by the following:
One share — one vote
148. Subject to section 156.09, if a share of a bank entitles the holder of the share to vote at a meeting of shareholders, that share entitles the shareholder to one vote at the meeting. 67. The Act is amended by adding the following after section 156.08: Restrictions on Voting
Meaning of ‘‘eligible votes’’
156.09 (1) In this section, ‘‘eligible votes’’ means the total number of votes that may be cast by or on behalf of shareholders on a vote of shareholders or a vote of holders of a class or series of shares, as the case may be, in respect of any particular matter, calculated without regard to subsection (2).
Restriction
(2) At a meeting of shareholders of a bank with equity of five billion dollars or more, no person and no entity controlled by any person may, in respect of any vote of shareholders or holders of any class or series of shares of the bank, cast votes in respect of any shares beneficially owned by the person or the entity that are, in aggregate, more than 20 per cent of the eligible votes that may be cast in respect of that vote.
Proxyholders
(3) No person who is a proxyholder for a person or for an entity controlled by a person may cast votes to which the proxy relates that the person or entity may not cast by reason of subsection (2).
Institutions f
Exception
(4) If a person is, with respect to a bank, a person referred to in subsection 375(1), subsections (2) and (3) do not apply with respect to votes cast by or on behalf of the person during any period that the person is entitled under section 375 to remain a major shareholder of the bank.
Exception
(5) Subsections (2) and (3) do not apply in respect of votes cast by or on behalf of any entity that controls the bank or any entity that is controlled by an entity that controls the bank.
Exception
(6) Subsection (2) does not apply in respect of a vote held under section 218.
Validity of vote
(7) A vote in respect of a particular matter is not invalid merely because a person voted contrary to subsection (2) or (3).
Disposition of shareholdings
(8) If, with respect to any bank, a person contravenes subsection (2) or (3), the Minister may, by order, direct the shareholder of the shares to which the contravention relates or any person controlled by that shareholder to dispose of any number of shares of the bank beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the shareholder and the persons controlled by that shareholder that is specified in the order.
Restriction on voting rights
(9) If the Minister makes an order under subsection (8), the person to whom the order relates may not, in person or by proxy, exercise any voting rights that are attached to shares of the bank beneficially owned by the person.
Subsection (9) ceases to apply
(10) Subsection (9) ceases to apply in respect of a person when the shares to which the order relates have been disposed of.
Reliance on number in notice
(11) For the purpose of this section, a person is entitled to rely on the number of eligible votes set out in a notice of a meeting under subsection 138(1.1).
Designation of persons
(12) For the purpose of this section, the Minister may, with respect to a particular bank, designate two or more persons who are parties to an agreement, commitment or
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understanding referred to in section 9 to be a single person. 68. Paragraph 157(2)(f) of the French version of the Act is replaced by the following: f) désigner l’un des comités du conseil d’administration pour surveiller l’application des mécanismes et procédures visés à l’alinéa e) et s’assurer que ces mécanismes et procédures soient respectés par la banque; 69. Subsection 159(2) of the Act is replaced by the following: Residency requirement
(2) At least one half of the directors of a bank that is a subsidiary of a foreign bank and at least two thirds of the directors of any other bank must be, at the time of each director’s election or appointment, resident Canadians.
1997, c. 15, s. 12
70. Paragraphs 160(e) and (f) of the Act are replaced by the following: (e) a person who is prohibited by section 392 or 401.3 or subsection 156.09(9) from exercising voting rights attached to shares of the bank; (f) a person who is an officer, director or full time employee of an entity that is prohibited by section 392 or 401.3 or subsection 156.09(9) from exercising voting rights attached to shares of the bank; 71. The Act is amended by adding the following after section 160:
Exception
160.1 Paragraph 160(g) does not apply to a person if (a) the person is employed in a department or agency of the Government of Canada that is not involved in the regulation or supervision of financial institutions; (b) the person’s duties do not involve financial institutions; and (c) the bank is controlled by a local cooperative credit society, as defined in section 2 of the Cooperative Credit Associations Act, in which the following persons, in aggregate, hold more than 50 per
Institutions f cent or, if a percentage has been prescribed for the purpose of this paragraph, the prescribed percentage, of the ownership interests in the local cooperative credit society, namely, (i) employees of Her Majesty in right of Canada or of a province, (ii) former employees of Her Majesty in right of Canada or of a province, (iii) the spouse or common-law partner of a person referred to in subparagraph (i) or (ii), and (iv) a child who is less than eighteen years of age of a person referred to in subparagraph (i) or (ii). 72. Subsection 163(2) of the Act, as amended by section 13 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is repealed. 73. Section 168 of the Act is amended by adding the following after subsection (3):
Exception
(3.1) Subsection (2) does not apply to a widely held bank with equity of five billion dollars or more or to a bank in respect of which subsection 378(1) applies. 74. Subsection 172(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) when the director is removed from office under section 647 or 647.1. 75. Paragraph 183(1)(a) of the Act is replaced by the following: (a) in the case of a bank that is a subsidiary of a foreign bank, at least one half of the directors present are resident Canadians; or 76. The Act is amended by adding the following after section 183:
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Presence of unaffiliated director
183.1 (1) The directors of a bank shall not transact business at a meeting of directors unless at least one of the directors who is not affiliated with the bank is present.
Exception
(2) Despite subsection (1), the directors of a bank may transact business at a meeting of directors if a director who is not affiliated with the bank and who is not able to be present approves, in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting.
Exception
(3) Subsection (1) does not apply if all the voting shares of the bank, other than directors’ qualifying shares, if any, are beneficially owned by a Canadian financial institution incorporated by or under an Act of Parliament.
1997, c. 15, s. 23(1)
77. Paragraph 195(3)(b) of the Act is replaced by the following: (b) review those procedures and their effectiveness in ensuring that the bank is complying with Part XI; (b.1) if a widely held bank holding company or a widely held insurance holding company has a significant interest in any class of shares of the bank, (i) establish policies for entering into transactions referred to in subsection 495.1(1), and (ii) review transactions referred to in subsection 495.3(1); and 77.1 Section 204 of the French version of the Act is replaced by the following:
Déclaration suffisante d’intérêt
204. Pour l’application du paragraphe 202(1), quiconque donne au conseil un avis général lui faisant savoir qu’il est administrateur ou dirigeant d’une entité ou possède un intérêt important dans une personne, et doit être considéré comme ayant un intérêt dans tout contrat conclu avec cette entité ou personne, s’acquitte de son obligation de déclaration d’intérêt. 78. The portion of section 211 of the Act before paragraph (a) is replaced by the following:
2001 Reliance on statement
Institutions f 211. A director, an officer or an employee of a bank is not liable under subsection 158(1) or (2), section 207 or 210 or subsection 506(1) if the director, officer or employee relies in good faith on 79. The portion of subsection 212(1) of the French version of the Act before paragraph (a) is replaced by the following:
Indemnisation
212. (1) La banque peut indemniser ses administrateurs ou ses dirigeants — ou leurs prédécesseurs —, ainsi que les personnes qui, à sa demande, agissent ou ont agi en cette qualité pour une entité dont elle est ou a été actionnaire ou créancière, de tous leurs frais, y compris les montants versés en règlement d’une action ou pour satisfaire à un jugement, entraînés par des procédures civiles, pénales ou administratives auxquelles ils étaient parties en cette qualité, sauf à l’occasion d’actions intentées par la banque ou pour son compte en vue d’obtenir un jugement favorable, si : 80. Section 215 of the Act is replaced by the following:
Incorporating instrument
215. On the application of a bank duly authorized by special resolution, the Minister may approve a proposal to add, change or remove any provision that is permitted by this Act to be set out in the bank’s incorporating instrument. 81. Subsection 216(1) of the Act is replaced by the following:
Letters patent to amend
216. (1) On receipt of an application referred to in section 215, the Minister may issue letters patent to effect the proposal.
82. (1) Subsection 217(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (i) and by adding the following after paragraph (i): (i.1) change the name of the bank; or (2) Subsection 217(3) of the Act is replaced by the following:
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(3) A by-law, or an amendment to or a repeal of a by-law, made under subsection (1) is not effective until it is confirmed or confirmed as amended by the shareholders under subsection (2) and, in the case of a by-law referred to in paragraph (1)(i.1), approved by the Superintendent. 83. Subsection 221(1) of the Act is replaced by the following:
Proposal to amend
221. (1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders of a bank may, in accordance with sections 143 and 144, make a proposal to make an application referred to in section 215 or to make, amend or repeal the by-laws referred to in subsection 217(1) of the bank. 84. Section 223 of the Act is replaced by the following:
Application to amalgamate
223. (1) On the joint application of two or more bodies corporate incorporated by or under an Act of Parliament, including banks and bank holding companies, the Minister may issue letters patent amalgamating and continuing the applicants as one bank.
Restriction
(2) Despite subsection (1), if one of the applicants is a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, other than a bank in respect of which the Minister has specified that subsection 378(1) no longer applies, the Minister shall not issue letters patent referred to in subsection (1) unless (a) the amalgamated bank would be a widely held bank; or (b) the amalgamated bank would be controlled by a widely held bank holding company that, at the time the application was made, controlled (i) the applicant, or (ii) any other applicant that is a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, other
Institutions f than a bank in respect of which the Minister has specified that subsection 378(1) no longer applies.
Restriction
(3) Despite subsection (1), if the amalgamated bank would be a bank with equity of five billion dollars or more, the Minister shall not issue letters patent referred to in that subsection unless the amalgamated bank is (a) widely held; (b) controlled, within the meaning of paragraphs 3(1)(a) and (d), by a widely held bank, or by a widely held bank holding company, that controlled one of the applicants at the time the application was made; or (c) controlled, within the meaning of paragraph 3(1)(d), by a widely held insurance holding company, or by an eligible Canadian financial institution, as defined in subsection 370(1), other than a bank, or by an eligible foreign institution, as defined in subsection 370(1), that controlled one of the applicants at the time the application was made. 85. Subsection 228(3) of the Act is replaced by the following:
Application of sections 23 to 26
(3) If two or more bodies corporate, none of which is a bank, apply for letters patent under subsection (1), sections 23 to 26 apply in respect of the application with any modifications that the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one bank, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the sources of continuing financial support for the amalgamated bank; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of the amalgamated bank; (c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity;
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(e) whether the amalgamated bank will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; (g) the opinion of the Superintendent regarding the extent to which the proposed corporate structure of the amalgamated bank and its affiliates may affect the supervision and regulation of the amalgamated bank, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the amalgamated bank and its affiliates, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the amalgamated bank; and (h) the best interests of the financial system in Canada.
86. The Act is amended by adding the following after section 229: Court enforcement
229.1 (1) If a bank or any director, officer, employee or agent of a bank is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the bank or the director, officer, employee or agent to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on the application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
2001 1999, c. 28, s. 14
Institutions f 87. Subsection 230(1) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (g) and by repealing paragraph (h). 88. (1) Section 239 of the Act is amended by adding the following after subsection (5):
Electronic access
(5.1) A bank may make the information contained in records referred to in subsection 238(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time. (2) Subsection 239(6) of the French version of the Act is replaced by the following:
Exemplaires
(6) Les actionnaires peuvent sur demande et sans frais, une fois par année civile, obtenir un exemplaire des règlements administratifs de la banque. 89. Subsection 245(1) of the Act is replaced by the following:
Location and processing of information
245. (1) Subject to subsection (3), a bank shall maintain and process in Canada any information or data relating to the preparation and maintenance of the records referred to in section 238 unless the Superintendent has, subject to any terms and conditions that the Superintendent considers appropriate, exempted the bank from the application of this section. 90. Subsection 248(3) of the Act is replaced by the following:
Application of certain provisions
(3) Subsections 239(5) and (5.1) and sections 240 and 242 to 245 apply, with any modifications that the circumstances require, in respect of a central securities register. 91. Section 307 of the Act is replaced by the following:
Financial year
307. (1) The financial year of a bank ends, at the election of the bank in its by-laws, on the expiration of the thirty-first day of October or the thirty-first day of December in each year.
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First financial year
(2) If a bank, after the first day of July in any year, obtains an order approving the commencement and carrying on of business, the first financial year of the bank ends, at the election of the bank in its by-laws, on the expiration of the thirty-first day of October or the thirty-first day of December in the next calendar year.
Exception
(3) Despite subsection (1), the financial year of a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force ends on the expiration of the thirty-first day of October in each year unless the bank elects in its by-laws to have its financial year end on the thirty-first day of December in each year. 92. (1) The portion of paragraph 308(3)(a) of the Act before subparagraph (i) is replaced by the following: (a) a list of the subsidiaries of the bank, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 472 or pursuant to a realization of security in accordance with section 473 and which the bank would not otherwise be permitted to hold, showing, with respect to each subsidiary, (2) Section 308 of the Act is amended by adding the following after subsection (4):
Regulations
(5) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(a).
1997, c. 15, s. 35
93. Section 312 of the Act is replaced by the following:
Copy to Superintendent
312. (1) Subject to subsection (2), a bank shall send to the Superintendent a copy of the documents referred to in subsections 308(1) and (3) not later than twenty-one days before the date of each annual meeting of shareholders of the bank.
Later filing
(2) If a bank’s shareholders sign a resolution under paragraph 152(1)(b) in lieu of an annual meeting, the bank shall send a copy of the documents referred to in subsections 308(1)
Institutions f and (3) to the Superintendent not later than thirty days after the signing of the resolution. 94. (1) Subsection 315(3) of the Act is replaced by the following:
Notice of designation
(3) Within fifteen days after appointing a firm of accountants as auditor of a bank, the bank and the firm of accountants shall jointly designate a member of the firm who has the qualifications described in subsection (1) to conduct the audit of the bank on behalf of the firm and the bank shall forthwith notify the Superintendent in writing of the designation. (2) Subsection 315(4) of the French version of the Act is replaced by the following:
Remplacement d’un membre désigné
(4) Si, pour une raison quelconque, le membre désigné cesse de remplir ses fonctions, la banque et le cabinet de comptables peuvent désigner conjointement un autre membre qui remplit les conditions du paragraphe (1); la banque en avise sans délai par écrit le surintendant. 95. Subsection 369(2) of the Act is replaced by the following:
Priority not affected
(2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of a bank. 96. (1) The definitions ‘‘eligible Canadian financial institution’’ and ‘‘eligible foreign institution’’ in subsection 370(1) of the Act are replaced by the following:
‘‘eligible Canadian financial institution’’ « institution financière canadienne admissible »
‘‘eligible Canadian financial institution’’ means a Canadian financial institution that is a body corporate and that is widely held;
‘‘eligible foreign institution’’ « institution étrangère admissible »
‘‘eligible foreign institution’’ means (a) a foreign bank that, in the opinion of the Minister, after consultation with the Superintendent, is regulated as or like a bank, according to the jurisdiction under whose laws it was incorporated or in any
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Financial In jurisdiction in which it carries on business, or (b) a foreign institution that, in the opinion of the Minister, (i) is, with respect to its provision of financial services, regulated in the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business, and (ii) is widely held;
1991, c. 48, par. 494(b)
(2) Subsections 370(2) to (4) of the Act are repealed. 97. Subsection 371(1) of the Act is replaced by the following:
Associates
371. (1) For the purpose of determining ownership of a bank, where two persons who each beneficially own shares of a bank are associated with each other, those persons are deemed to be a single person who beneficially owns the aggregate number of shares of the bank beneficially owned by them.
1991, c. 46, s. 578; 1991, c. 48, par. 494(c); 1994, c. 47, ss. 17 to 21; 1997, c. 15, ss. 36 to 41; 1999, c. 28, ss. 18 to 20
98. Sections 372 to 400 of the Act are replaced by the following:
Constraints on Ownership Significant interest
372. Except as permitted by this Part, no person shall have a significant interest in any class of shares of a bank.
Acquisition of significant interest
373. (1) Subject to this Part, no person, or entity controlled by a person, shall, without the approval of the Minister, purchase or otherwise acquire any share of a bank or purchase or otherwise acquire control of any entity that holds any share of a bank if (a) the acquisition would cause the person to have a significant interest in any class of shares of the bank; or
Institutions f (b) where the person has a significant interest in a class of shares of the bank, the acquisition would increase the significant interest of the person in that class of shares.
Amalgamation, etc., constitutes acquisition
(2) If, as a result of an amalgamation, merger or reorganization, the entity that results would have a significant interest in a class of shares of a bank, that entity is deemed to be acquiring a significant interest in that class of shares of the bank through an acquisition for which the approval of the Minister is required.
Limitations on share holdings
374. (1) No person may be a major shareholder of a bank with equity of five billion dollars or more.
Exception — widely held bank
(2) Subsection (1) does not apply to a widely held bank that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank with equity of five billion dollars or more if it controlled, within the meaning of those paragraphs, the bank on the day the bank’s equity reached five billion dollars and it has controlled, within the meaning of those paragraphs, the bank since that day.
Exception — widely held bank holding company
(3) Subsection (1) does not apply to a widely held bank holding company that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank with equity of five billion dollars or more if (a) the bank holding company controlled, within the meaning of those paragraphs, the bank on the day the bank’s equity reached five billion dollars and it has controlled, within the meaning of those paragraphs, the bank since that day; (b) the bank holding company acquired control, within the meaning of those paragraphs, of the bank under section 677 or 678 and the bank holding company has continued to control, within the meaning of those paragraphs, the bank since the day the bank holding company acquired control; or (c) the bank was a subsidiary of another bank that was continued under section 684 as the bank holding company and the bank holding company has continued to control, within the meaning of those paragraphs, the
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bank since the day it came into existence as a bank holding company. Exception — insurance holding companies and certain institutions
(4) Subsection (1) does not apply to any of the following that controls, within the meaning of paragraph 3(1)(d), the bank with equity of five billion dollars or more if it controlled, within the meaning of that paragraph, the bank on the day the bank’s equity reached five billion dollars and it has controlled, within the meaning of that paragraph, the bank since that day: (a) a widely held insurance holding company; (b) an eligible Canadian financial institution, other than a bank; or (c) an eligible foreign institution.
Exception — other entities
(5) Subsection (1) does not apply to an entity that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank with equity of five billion dollars or more if the entity is controlled, within the meaning of those paragraphs, by a widely held bank to which subsection (2) applies, or a widely held bank holding company to which subsection (3) applies, that controls the bank.
Exception — other entities
(6) Subsection (1) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the bank with equity of five billion dollars or more if the entity is controlled, within the meaning of that paragraph, by (a) a widely held insurance holding company to which subsection (4) applies that controls the bank; (b) an eligible Canadian financial institution to which subsection (4) applies, other than a bank, that controls the bank; or (c) an eligible foreign institution to which subsection (4) applies that controls the bank.
Institutions f
Exception
374.1 (1) Despite section 374, if a bank with equity of five billion dollars or more was formed as the result of an amalgamation, a person who is a major shareholder of the bank on the effective date of the letters patent of amalgamation shall do all things necessary to ensure that the person is no longer a major shareholder of the bank on the day that is one year after that day or on the day that is after any shorter period specified by the Minister.
Exception — widely held banks and bank holding companies
(2) Subsection (1) does not apply to a widely held bank or a widely held bank holding company that controlled, within the meaning of paragraphs 3(1)(a) and (d), one of the applicants for the letters patent of amalgamation and that has controlled, within the meaning of those paragraphs, the amalgamated bank since the effective date of those letters patent.
Exception — insurance holding companies and certain institutions
(3) Subsection (1) does not apply to any of the following that controlled, within the meaning of paragraph 3(1)(d), one of the applicants for the letters patent of amalgamation if it has controlled, within the meaning of that paragraph, the amalgamated bank since the effective date of those letters patent: (a) a widely held insurance holding company; (b) an eligible Canadian financial institution, other than a bank; or (c) an eligible foreign institution.
Exception — other entities
(4) Subsection (1) does not apply to an entity that controls, within the meaning of paragraphs 3(1)(a) and (d), the amalgamated bank if the entity is controlled, within the meaning of those paragraphs, by a widely held bank or widely held bank holding company to which subsection (2) applies that controls the amalgamated bank.
Exception — other entities
(5) Subsection (1) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the amalgamated bank if the entity is controlled, within the meaning of that paragraph, by any of the following: (a) a widely held insurance holding company to which subsection (3) applies that controls the amalgamated bank;
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(b) an eligible Canadian financial institution to which subsection (3) applies, other than a bank, that controls the amalgamated bank; or (c) an eligible foreign institution to which subsection (3) applies that controls the amalgamated bank. Extension
(6) If general market conditions so warrant and the Minister is satisfied that the person has used the person’s best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which the person must comply with that subsection.
Limitation on share holdings
375. (1) If a person is a major shareholder of a bank with equity of less than five billion dollars and the bank’s equity reaches five billion dollars or more, the person shall do all things necessary to ensure that the person is not a major shareholder of the bank on the day that is three years after the day the bank’s equity reached five billion dollars.
Exception
(2) Subsection (1) does not apply if any of subsections 374(2) to (6) applies to the person in respect of the bank.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the person has used the person’s best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which the person must comply with that subsection.
Obligation of widely held bank
376. (1) If a widely held bank with equity of five billion dollars or more controls another bank and a person becomes a major shareholder of the other bank or of any entity that also controls the other bank, the widely held bank must do all things necessary to ensure that, on the day that is one year after the person became a major shareholder of the other bank or entity that controls the other bank, (a) the widely held bank no longer controls the other bank; or (b) the other bank or the entity that controls the other bank does not have any major shareholder other than the widely held bank
Institutions f or any entity that the widely held bank controls.
Exception
(2) Subsection (1) does not apply in respect of a bank with equity of less than two hundred and fifty million dollars or any other amount that is prescribed.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the widely held bank has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Obligation of widely held bank
376.01 (1) Despite subsection 376(1), if a widely held bank with equity of five billion dollars or more controls a bank (in this subsection referred to as the ‘‘other bank’’) in respect of which that subsection does not apply by reason of subsection 376(2) and the equity of the other bank reaches two hundred and fifty million dollars or more or any other amount that is prescribed and on the day the equity of the other bank reaches two hundred and fifty million dollars or more, or the prescribed amount, as the case may be, a person is a major shareholder of the other bank or of any entity that also controls the other bank, the widely held bank must do all things necessary to ensure that, on the day that is three years after that day, (a) the widely held bank no longer controls the other bank; or (b) the other bank or the entity that controls the other bank does not have any major shareholder other than the widely held bank or any entity that the widely held bank controls.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the widely held bank has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
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Prohibition against significant interest
376.1 No person who has a significant interest in any class of shares of a widely held bank with equity of five billion dollars or more may have a significant interest in any class of shares of a subsidiary of the widely held bank that is a bank or a bank holding company.
Prohibition against significant interest
376.2 No person who has a significant interest in any class of shares of a bank may have a significant interest in any class of shares of any widely held bank with equity of five billion dollars or more, or of any widely held bank holding company with equity of five billion dollars or more, that controls the bank.
Prohibition against control
377. (1) No person shall control, within the meaning of paragraph 3(1)(d), a bank with equity of five billion dollars or more.
Exception
(2) Subsection (1) does not apply if any of subsections 374(2) to (6) applies to the person in respect of the bank.
Restriction on control
377.1 No person shall, without the prior approval of the Minister, acquire control, within the meaning of paragraph 3(1)(d), of a bank with equity of less than five billion dollars.
Former Schedule I banks with equity of less than five billion dollars
378. (1) A bank that was named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force and that had equity of less than five billion dollars on that day is deemed, for the purposes of sections 138, 156.09, 374, 376, 376.01, 376.1, 376.2, 377, 380 and 382, subsection 383(2), section 385 and subsection 396(2), to be a bank with equity of five billion dollars or more.
Non-application of subsection (1)
(2) Subsection (1) ceases to apply to a bank that continues to have equity of less than five billion dollars if the Minister specifies that it no longer applies to the bank.
2001 Prohibition
Institutions f 378.1 No person may control or be a major shareholder of a bank if the person or an entity affiliated with the person (a) has control of or has a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in; or (b) engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in.
Prohibition
378.2 No person who controls a bank or who is a major shareholder of a bank, and no entity affiliated with that person, may (a) control or have a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in; or (b) engage in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in.
Constraint on registration
379. No bank shall, unless the acquisition of the share has been approved by the Minister, record in its securities register a transfer or issue of any share of the bank to any person or to any entity controlled by a person if (a) the transfer or issue of the share would cause the person to have a significant interest in any class of shares of the bank; or (b) where the person has a significant interest in a class of shares of the bank, the transfer or issue of the share would increase the significant interest of the person in that class of shares.
Exemption
380. On application by a bank, other than a bank with equity of five billion dollars or more, the Superintendent may exempt any class of non-voting shares of the bank the aggregate book value of which is not more than 30 per cent of the aggregate book value of all the outstanding shares of the bank from the application of sections 373 and 379.
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Exception for small holdings
381. Despite section 379, if, as a result of a transfer or issue of shares of a class of shares of a bank to a person, the total number of shares of that class registered in the securities register of the bank in the name of that person would not exceed five thousand and would not exceed 0.1 per cent of the outstanding shares of that class, the bank is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the bank as a result of that issue or transfer of shares.
When approval not required
382. (1) Despite sections 373 and 379, the approval of the Minister is not required in respect of a bank with equity of less than five billion dollars if a person with a significant interest in a class of shares of the bank, or an entity controlled by a person with a significant interest in a class of shares of the bank, purchases or otherwise acquires shares of that class, or acquires control of any entity that holds any share of that class, and the number of shares of that class purchased or otherwise acquired, or the acquisition of control of the entity, as the case may be, would not increase the significant interest of the person in that class of shares of the bank to a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever is applicable.
Percentage
(2) Subject to subsection (3) and for the purpose of subsection (1), the percentage is 5 percentage points in excess of the significant interest of the person in that class of shares of the bank on the later of June 1, 1992 and the day of the most recent purchase or acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank, or of control of an entity that held shares of that class of shares of the bank, for which approval was given by the Minister.
Percentage
(3) If a person has a significant interest in a class of shares of a bank and the person’s percentage of that class has decreased after the date of the most recent purchase or other acquisition by the person or any entity con2001
Institutions f trolled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank, or of control of an entity that held shares of that class of shares of the bank, for which approval was given by the Minister, the percentage for the purposes of subsection (1) is the percentage that is the lesser of (a) 5 percentage points in excess of the significant interest of the person in that class of shares of the bank on the later of June 1, 1992 and the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank, or of control of an entity that held shares of that class of shares of the bank, for which approval was given by the Minister, and (b) 10 percentage points in excess of the lowest significant interest of the person in that class of shares of the bank at any time after the later of June 1, 1992 and the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank, or of control of an entity that held shares of that class of shares of the bank, for which approval was given by the Minister.
Exception
(4) Subsection (1) does not apply if the purchase or other acquisition of shares or the acquisition of control referred to in that subsection would (a) result in the acquisition of control of the bank by the person referred to in that subsection; (b) if the person controls the bank but the voting rights attached to the aggregate of any voting shares of the bank beneficially owned by the person and by entities controlled by the person do not exceed 50 per cent of the voting rights attached to all of the outstanding voting shares of the bank, cause the voting rights attached to that aggregate to exceed 50 per cent of the voting rights
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attached to all of the outstanding voting shares of the bank; (c) result in the acquisition of a significant interest in a class of shares of the bank by an entity controlled by the person and the acquisition of that investment is not exempted by the regulations; or (d) result in an increase in a significant interest in a class of shares of the bank by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever applies, and the increase is not exempted by the regulations.
Regulations
(5) The Governor in Council may make regulations (a) exempting from the application of paragraph (4)(c) the acquisition of a significant interest in a class of shares of the bank by an entity controlled by the person; and (b) exempting from the application of paragraph (4)(d) an increase in a significant interest in a class of shares of the bank by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever applies.
When approval not required
383. (1) Despite sections 373 and 379, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the bank to increase its capital and shares of the bank are issued and acquired in accordance with the terms and conditions, if any, that may be specified in the order; or (b) a person who controls, within the meaning of paragraph 3(1)(a), the bank acquires additional shares of the bank.
Exception
(2) Paragraph (1)(a) does not apply in respect of a bank with equity of five billion dollars or more.
Pre-approval
384. For the purposes of sections 373 and 379, the Minister may approve (a) the purchase or other acquisition of any number or percentage of shares of a bank
Institutions f that may be required in a particular transaction or series of transactions; or (b) the purchase or other acquisition of up to a specified number or percentage of shares of a bank within a specified period.
Public holding requirement
385. (1) Every bank with equity of one billion dollars or more but less than five billion dollars shall, from and after the day determined under this section in respect of that bank, have, and continue to have, voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the bank and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the bank in respect of the voting shares of the bank or by any entity that is controlled by a person who is a major shareholder of the bank in respect of such shares.
Determination of day
(2) The day referred to in subsection (1) is (a) if the bank had equity of one billion dollars or more but less than five billion dollars on the day the bank came into existence, the day that is three years after that day; and (b) in any other case, the day that is three years after the day of the first annual meeting of the shareholders of the bank held after the equity of the bank first reaches one billion dollars.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that a bank has used its best efforts to be in compliance with this section on the day determined under subsection (2), the Minister may specify a later day as the day from and after which the bank must comply with subsection (1).
Public holding requirement
385.1 If a bank to which section 385 applies becomes a bank with equity of five billion dollars or more, that section continues to apply to the bank until no person is a major
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shareholder of the bank, other than a person to whom subsections 374(2) to (6) apply. Limit on assets
386. (1) Unless an exemption order with respect to the bank is granted under section 388, if a bank fails to comply with section 385 in any month, the Minister may, by order, require the bank not to have, until it complies with that section, average total assets in any three month period ending on the last day of a subsequent month exceeding the bank’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order.
Average total assets
(2) For the purposes of subsection (1), the average total assets of a bank in a three month period is to be computed by adding the total assets of the bank as calculated for the month end of each of the three months in the period and by dividing the sum by three.
Definition of ‘‘total assets’’
(3) For the purposes of subsections (1) and (2), ‘‘total assets’’, in respect of a bank, has the meaning given that expression by the regulations.
Increase of capital
387. If the Superintendent has, by order, directed a bank with equity of one billion dollars or more but less than five billion dollars to increase its capital and shares of the bank are issued and acquired in accordance with any terms and conditions that may be specified in the order, section 385 does not apply in respect of the bank until the time that the Superintendent may, by order, specify.
Exemption by order of the Minister
388. (1) On application by a bank, the Minister may, if the Minister considers it appropriate to do so, by order exempt the bank from the requirements of section 385, subject to any terms and conditions that the Minister considers appropriate.
Compliance with section 385
(2) If an exemption order granted under this section in respect of a bank expires, the bank shall comply with section 385 as of the day the exemption order expires.
Limit on assets
(3) If a bank fails to comply with section 385 on the day referred to in subsection (2), the bank shall not, until it complies with that section, have average total assets in any three month period ending on the last day of a subsequent month exceeding the bank’s aver2001
Institutions f age total assets in the three month period ending on the last day of the month immediately before the day referred to in subsection (2) or any later day that the Minister may, by order, specify.
Application of ss. 386(2) and (3)
(4) Subsections 386(2) and (3) apply for the purposes of subsection (3).
Exception
389. (1) If a bank fails to comply with section 385 as the result of any of the following, section 386 does not apply in respect of the bank until the expiration of six months after the day it failed to comply with section 385: (a) a distribution to the public of voting shares of the bank; (b) a redemption or purchase of voting shares of the bank; (c) the exercise of any option to acquire voting shares of the bank; or (d) the conversion of any convertible securities into voting shares of the bank.
Shares acquiring voting rights
(2) If, as the result of an event that has occurred and is continuing, shares of a bank acquire voting rights in such number as to cause the bank to no longer be in compliance with section 385, section 386 does not apply in respect of that bank until the expiration of six months after the day the bank ceased to be in compliance with section 385 or any later day that the Minister may, by order, specify.
Acquisition of control permitted
390. (1) Subject to subsection (2) and sections 379 and 391, section 385 does not apply in respect of a bank if a person acquires control of the bank through the purchase or other acquisition of all or any number of the shares of the bank by the person or by any entity controlled by the person.
Undertaking required
(2) Subsection (1) applies only if the person referred to in that subsection provides the Minister with an undertaking satisfactory to the Minister to do all things necessary so that, within three years after the acquisition, or any other period that the Minister may specify, the bank has voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the bank and that are
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(a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the bank in respect of the voting shares of the bank or by any entity that is controlled by a person who is a major shareholder of the bank in respect of such shares. Application of section 385
391. At the expiration of the period for compliance with an undertaking referred to in subsection 390(2), section 385 shall apply in respect of the bank to which the undertaking relates.
Restriction on voting rights
392. (1) If, with respect to any bank, a particular person contravenes section 372, subsection 373(1), 374(1) or 375(1), section 376.1 or 376.2, subsection 377(1) or section 377.1 or fails to comply with an undertaking referred to in subsection 390(2) or with any term or condition imposed under section 397, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights (a) that are attached to shares of the bank beneficially owned by the particular person or any entity controlled by the particular person; or (b) that are subject to an agreement entered into by the particular person, or any entity controlled by the particular person, pertaining to the exercise of the voting rights.
Subsection (1) ceases to apply
(2) Subsection (1) ceases to apply in respect of a person when, as the case may be, (a) the shares to which the contravention relates have been disposed of; (b) the person ceases to control the bank within the meaning of paragraph 3(1)(d); (c) if the person failed to comply with an undertaking referred to in subsection 390(2), the bank complies with section 385; or (d) if the person failed to comply with a term or condition imposed under section 397, the person complies with the term or condition.
Institutions f
Saving
(3) Despite subsection (1), if a person contravenes subsection 374(1) by reason only that, as a result of an event that has occurred and is continuing and is not within the control of the person, shares of the bank beneficially owned by the person or by any entity controlled by the person acquire voting rights in such number so as to cause the person to be a major shareholder of the bank, the Minister may, after consideration of the circumstances, permit the person and any entity controlled by the person to exercise voting rights, in person or by proxy, in respect of any class of voting shares of the bank beneficially owned by them that do not in aggregate exceed 20 per cent of the voting rights attached to that class of voting shares.
Loss of control — banks and bank holding companies
393. (1) Despite sections 374 and 377, a widely held bank or a widely held bank holding company may be a major shareholder of a bank with equity of five billion dollars or more and cease to control, within the meaning of paragraphs 3(1)(a) and (d), the bank if it has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the bank on the expiration of the day specified in the agreement.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the bank or the bank holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Loss of control — other entities
393.1 (1) Despite sections 374 and 377, an eligible foreign institution, an eligible Canadian financial institution, other than a bank, or a widely held insurance holding company may be a major shareholder of a bank with equity of five billion dollars or more and cease to control, within the meaning of paragraph 3(1)(d), the bank if it has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the bank on the expiration of the day specified in the agreement.
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Extension
(2) If general market conditions so warrant and the Minister is satisfied that the institution or insurance holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Change in status
394. (1) If a body corporate that is an eligible financial institution other than a bank controls, within the meaning of paragraph 3(1)(d), a bank with equity of five billion dollars or more and the body corporate subsequently ceases to be an eligible financial institution, the body corporate must do all things necessary to ensure that, on the day that is one year after the day it ceased to be an eligible financial institution, (a) it does not control, within the meaning of paragraph 3(1)(d), the bank; and (b) it is not a major shareholder of the bank.
Extension
Application for approval
(2) If general market conditions so warrant and the Minister is satisfied that the body corporate has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection. Approval Process 395. (1) An application for an approval of the Minister required under this Part must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
Applicant
(2) If, with respect to any particular transaction, this Part applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons.
Matters for consideration
396. (1) Subject to subsection (2), if an application for an approval under section 373 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including
Institutions f (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the bank; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the bank; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the bank will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the bank on the conduct of those businesses and operations; (g) the opinion of the Superintendent regarding the extent to which the proposed corporate structure of the applicant or applicants and their affiliates may affect the supervision and regulation of the bank, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the bank and its affiliates, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the bank; and (h) the best interests of the financial system in Canada.
Exception
(2) Subject to subsection 377(1), the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding (a) more than 10 per cent but no more than 20 per cent of any class of the outstanding
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voting shares of a widely held bank with equity of five billion dollars or more; or (b) more than 10 per cent but no more than 30 per cent of any class of the outstanding non-voting shares of such a bank. Favourable treatment
(3) The Minister shall not approve a transaction that would cause a bank to become a subsidiary of a foreign bank within the meaning of any of paragraphs (a) to (f) of the definition ‘‘foreign bank’’ in section 2 that is a non-WTO Member foreign bank unless the Minister is satisfied that treatment as favourable for banks to which this Act applies exists or will be provided in the jurisdiction in which the foreign bank principally carries on business, either directly or through a subsidiary.
Terms and conditions
397. The Minister may impose any terms and conditions in respect of an approval given under this Part that the Minister considers necessary to ensure compliance with any provision of this Act.
Certifying receipt of application
398. (1) If, in the opinion of the Superintendent, an application filed under this Part contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent.
Incomplete application
(2) If, in the opinion of the Superintendent, an application filed under this Part is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application.
Notice of decision
399. (1) Subject to subsections (2) and (3) and 400(1), the Minister shall, within a period of thirty days after the certified date referred to in subsection 398(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
2001 Notice of decision
Institutions f (2) Subject to subsections (4) and 400(2), if an application involves the acquisition of control of a bank, the Minister shall, within a period of forty-five days after the certified date referred to in subsection 398(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Extension of period for notice
(3) If the Minister is unable to complete the consideration of an application within the period referred to in subsection (1), the Minister shall (a) within that period, send a notice to that effect to the applicant; and (b) within a further period of thirty days after the date of the sending of the notice referred to in paragraph (a) or within any other further period that may be agreed on by the applicant and the Minister, send a notice referred to in paragraph (1)(a) or (b) to the applicant.
Further extensions
(4) If the Minister considers it appropriate to do so, the Minister may extend the period referred to in subsection (2) for one or more periods of forty-five days.
Reasonable opportunity to make representations
400. (1) If, after receipt of the notice referred to in paragraph 399(1)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of thirty days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
Reasonable opportunity to make representations
(2) If, after receipt of the notice referred to in paragraph 399(2)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of forty-five days after the date of the notice, or within any further period that
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may be agreed on by the applicant and the Minister, to make representations in respect of the matter. Notice of decision
401. (1) Within a period of thirty days after the expiration of the period for making representations referred to in subsection 400(1), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Notice of decision
(2) Within a period of forty-five days after the expiration of the period for making representations referred to in subsection 400(2), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Deemed approval
401.1 If the Minister does not send a notice under subsection 399(1) or (3) or 401(1) within the period provided for in those subsections, the Minister is deemed to have approved the transaction to which the application relates.
Constraining registration: Crown and foreign governments
401.2 (1) No bank shall record in its securities register a transfer or issue of any share of the bank to (a) Her Majesty in right of Canada or of a province or any agent or agency of Her Majesty in either of those rights; or (b) the government of a foreign country or any political subdivision of a foreign country, or any agent or agency of a foreign government.
Exception
(2) Despite subsection (1), a bank may record in its securities register a transfer or issue of any share of the bank to a foreign bank, or to a foreign institution, that is controlled by the government of a foreign country or any political subdivision of a foreign country or any agent or agency of a foreign country if the bank is a subsidiary of the foreign bank or foreign institution.
2001 Suspension of voting rights held by governments
Institutions f 401.3 (1) Despite section 148, no person shall, in person or by proxy, exercise any voting rights attached to any share of a bank that is beneficially owned by (a) Her Majesty in right of Canada or of a province or any agency of Her Majesty in either of those rights; or (b) the government of a foreign country or any political subdivision thereof, or any agency thereof.
Exception
(2) Subsection (1) does not apply to a foreign bank, or to a foreign institution, that is controlled by the government of a foreign country or any political subdivision of a foreign country or any agent or agency of a foreign country and that has a significant interest in a class of shares of a bank that is a subsidiary of the foreign bank or foreign institution. 99. (1) Subsection 402(1) of the Act is replaced by the following:
Disposition of shareholdings
402. (1) If, with respect to any bank, a person contravenes section 372 or subsection 373(1), 374(1) or 375(1) or section 376.1 or 376.2, subsection 377(1) or section 377.1 or fails to comply with an undertaking referred to in subsection 390(2) or with any terms and conditions imposed under section 397, the Minister may, if the Minister deems it in the public interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the bank beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order.
1999, c. 28, s. 21
(2) Subsections 402(3) and (4) of the Act are replaced by the following:
Appeal
(3) Any person with respect to whom a direction has been made under subsection (1) may, within thirty days after the date of the direction, appeal the matter in accordance with section 977.
�� 1997, c. 15, ss. 42(1) and (2)
Additional activities
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100. (1) The portion of subsection 410(1) of the Act before paragraph (d) is replaced by the following: 410. (1) In addition, a bank may (a) hold, manage and otherwise deal with real property; (b) provide prescribed bank-related data processing services; (c) outside Canada or, with the prior written approval of the Minister, in Canada, engage in any of the following activities, namely, (i) collecting, manipulating and transmitting (A) information that is primarily financial or economic in nature, (B) information that relates to the business of a permitted entity, as defined in subsection 464(1), or (C) any other information that the Minister may, by order, specify, (ii) providing advisory or other services in the design, development or implementation of information management systems, (iii) designing, developing or marketing computer software, and (iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subparagraphs (i) to (iii) that the bank is engaging in, computer equipment integral to the provision of information services related to the business of financial institutions or to the provision of financial services; (c.1) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used (i) to provide information that is primarily financial or economic in nature, (ii) to provide information that relates to the business of a permitted entity, as defined in subsection 464(1), or
Institutions f (iii) for a prescribed purpose or in prescribed circumstances; (c.2) engage, under prescribed terms and conditions, if any are prescribed, in specialized business management or advisory services;
1997, c. 15, s. 42(3)
(2) Paragraphs 410(3)(a) and (b) of the Act are replaced by the following: (a) respecting what a bank may or may not do with respect to the carrying on of the activities referred to in paragraphs (1)(c) to (c.2); (b) imposing terms and conditions in respect of (i) the provision of financial services referred to in paragraph 409(2)(a) that are financial planning services, (ii) the provision of services referred to in paragraph 409(2)(c), and (iii) the carrying on of the activities referred to in any of paragraphs (1)(c) to (c.2); and (c) respecting the circumstances in which banks may be exempted from the requirement to obtain the approval of the Minister before carrying on a particular activity referred to in paragraph (1)(c) or (c.1). 101. Paragraphs 411(1)(a) and (b) of the Act are replaced by the following: (a) act as agent for any person in respect of the provision of any service that is provided by a financial institution, a permitted entity as defined in subsection 464(1) or a prescribed entity and may enter into an arrangement with any person in respect of the provision of that service; or (b) refer any person to any such financial institution or entity.
1997, c. 15, s. 43
102. Subsection 413(2) of the Act is repealed.
1997, c. 15, s. 43
103. (1) Subsection 413.1(1) of the Act is replaced by the following:
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413.1 (1) Before a bank to which paragraph 413(1)(b) applies opens a deposit account in Canada, the bank shall give the person requesting the opening of the account, in the prescribed manner, (a) a notice in writing that the deposit will not be insured by the Canada Deposit Insurance Corporation; and (b) any other information that may be prescribed.
1997, c. 15, s. 43
(2) Subsection 413.1(3) of the Act is replaced by the following:
Regulations
(3) The Governor in Council may make regulations (a) prescribing the manner in which notices referred to in subsection (1) are to be given and the additional information to be contained in the notices; and (b) respecting notices for the purpose of subsection (2). 104. The Act is amended by adding the following after section 413.1:
Deposits less than $150,000
413.2 (1) Subject to the regulations, a bank to which paragraph 413(1)(b) applies may not, in respect of its business in Canada, act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada.
Meaning of ‘‘deposit’’
(2) In this section, ‘‘deposit’’ has the meaning assigned to that term by subsection 413(5).
Regulations
(3) The Governor in Council may make regulations respecting the circumstances in which, and the conditions under which, a bank referred to in subsection (1) may act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada.
Shared premises
413.3 (1) Subject to the regulations, no bank to which paragraph 413(1)(b) applies shall carry on business in Canada on premises that are shared with those of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the bank.
Institutions f
Limitation
(2) Subsection (1) only applies in respect of premises or any portion of premises on which both the bank and the member institution carry on business with the public and to which the public has access.
Adjacent premises
(3) Subject to the regulations, no bank to which paragraph 413(1)(b) applies shall carry on business in Canada on premises that are adjacent to a branch or office of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the bank, unless the bank clearly indicates to its customers that its business and the premises on which it is carried on are separate and distinct from the business and premises of the affiliated member institution.
Regulations
(4) The Governor in Council may make regulations (a) respecting the circumstances in which, and the conditions under which, a bank to which paragraph 413(1)(b) applies may carry on business in Canada on premises that are shared with those of a member institution referred to in subsection (1); and (b) respecting the circumstances in which, and the conditions under which, a bank to which paragraph 413(1)(b) applies may carry on business in Canada on premises that are adjacent to a branch or office of a member institution referred to in subsection (3). 105. (1) The portion of subsection 414(1) of the Act before paragraph (a) is replaced by the following:
Restriction on guarantees
414. (1) A bank shall not guarantee on behalf of any person the payment or repayment of any sum of money unless
1997, c. 15, s. 44
(2) Subsection 414(2) of the French version of the Act is replaced by the following:
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(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de la banque garante, celle-ci peut garantir une somme qui n’est pas fixe. 106. Section 417 of the Act is replaced by the following:
Restriction on leasing
417. A bank shall not engage in Canada in any personal property leasing activity in which a financial leasing entity, as defined in subsection 464(1), is not permitted to engage. 107. Section 419 of the Act is replaced by the following:
Policies re security interests
419. (1) The directors of a bank shall establish and the bank shall adhere to policies regarding the creation of security interests in property of the bank to secure obligations of the bank and the acquisition by the bank of beneficial interests in property that is subject to security interests.
Order to amend policies
(2) The Superintendent may, by order, direct a bank to amend its policies as specified in the order.
Compliance
(3) A bank shall comply with an order made under subsection (2) within the time specified in the order.
Regulations and guidelines
419.1 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a bank of security interests in its property to secure obligations of the bank and the acquisition by the bank of beneficial interests in property that is subject to security interests.
Exception
419.2 Sections 419 and 419.1 do not apply in respect of a security interest created by a bank to secure an obligation of the bank to the Bank of Canada or the Canada Deposit Insurance Corporation. 108. Subsection 421(1) of the Act is replaced by the following:
Restriction on partnerships
421. (1) Except with the approval of the Superintendent, a bank may not be a general partner in a limited partnership or a partner in a general partnership.
Institutions f 109. Subsection 422(1) of the Act is repealed.
1999, c. 28, s. 22
110. Section 422.1 of the Act is replaced by the following:
Definition of ‘‘non-WTO Member bank subsidiary’’
422.1 In section 422.2, ‘‘non-WTO Member bank subsidiary’’ means a bank that is a subsidiary of a foreign bank and that is not controlled by a WTO Member resident. 111. Subsection 437(3) of the Act is replaced by the following:
Execution of trust
(3) A bank is not bound to see to the execution of any trust to which any deposit made under the authority of this Act is subject.
Payment when bank has notice of trust
(4) Subsection (3) applies regardless of whether the trust is express or arises by the operation of law, and it applies even when the bank has notice of the trust if it acts on the order of or under the authority of the holder or holders of the account into which the deposit is made. 112. The heading ‘‘Interest and Charges’’ before section 440 of the Act is repealed. 113. The Act is amended by adding the following before section 440 of the Act:
Definitions
439.1 The following definitions apply in this section and in sections 445 to 448.2, 458.1, 459.2 and 459.4.
‘‘low-fee retail deposit account’’ « compte de dépôt de détail à frais modiques »
‘‘low-fee retail deposit account’’ means a retail deposit account that has the prescribed characteristics.
‘‘member bank’’ « banque membre »
‘‘member bank’’ means a bank that is a member institution as defined in section 2 of the Canada Deposit Insurance Corporation Act.
‘‘personal deposit account’’ « compte de dépôt personnel »
‘‘personal deposit account’’ means a deposit account in the name of one or more natural persons that is kept by that person or those persons for a purpose other than that of carrying on business.
‘‘retail deposit account’’ « compte de dépôt de détail »
‘‘retail deposit account’’ means a personal deposit account that is opened with a deposit of less than $150,000 or any greater amount that may be prescribed.
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114. Subsection 441(2) of the Act is replaced by the following: Exception
(2) Subsection (1) does not apply in respect of an interest-bearing deposit account that is opened with a deposit in excess of $150,000 or any greater amount that may be prescribed. 115. Section 444 of the Act is repealed.
1997, c. 15, s. 48
116. (1) The portion of subsection 445(1) of the Act before paragraph (a) is replaced by the following:
Disclosure required on opening a deposit account
445. (1) Subject to subsections (2) to (4), a bank shall not open a deposit account in the name of a customer unless, at or before the time the account is opened, the bank provides in writing to the individual who requests the opening of the account
1997, c. 15, s. 48
(2) Subsections 445(2) to (5) of the Act are replaced by the following:
Exception
(2) If a deposit account is not a personal deposit account and the amount of a charge applicable to the account cannot be established at or before the time the account is opened, the bank shall, as soon as is practicable after the amount is established, provide the customer in whose name the account is kept with a notice in writing of the amount of the charge.
Exception
(3) If a bank has a deposit account in the name of a customer and the customer by telephone requests the opening of another deposit account in the name of the customer and the bank has not complied with subsection (1) in respect of the opening of that other account, the bank shall not open the account unless it provides the customer orally with any information prescribed at or before the time the account is opened.
Disclosure in writing
(4) If a bank opens an account under subsection (3), it shall, not later than seven business days after the account is opened, provide to the customer in writing the agreement and information referred to in subsection (1).
Institutions f
Right to close account
(5) A customer may, within 14 business days after a deposit account is opened under subsection (3), close the account without charge and in such case is entitled to a refund of any charges related to the operation of the account, other than interest charges, incurred while the account was open.
Regulations
(6) For the purposes of subsection (4), the Governor in Council may make regulations prescribing circumstances in which, and the time when, the agreement and information will be deemed to have been provided to the customer. 117. Section 448 of the Act is replaced by the following:
Application
448. Sections 445 to 447 apply only in respect of charges applicable to deposit accounts with the bank in Canada and services provided by the bank in Canada.
Retail deposit accounts
448.1 (1) Subject to regulations made under subsection (3), a member bank shall, at any prescribed point of service in Canada or any branch in Canada at which it opens retail deposit accounts through a natural person, open a retail deposit account for an individual who meets the prescribed conditions at his or her request made there in person.
No minimum deposit or balance requirements
(2) A member bank shall not require that, in the case of an account opened under subsection (1), the individual make an initial minimum deposit or maintain a minimum balance.
Regulations
(3) The Governor in Council may make regulations (a) for the purposes of subsection (1), defining ‘‘point of service’’ and prescribing points of service; (b) respecting circumstances in which subsection (1) does not apply; and (c) prescribing conditions to be met by an individual for the purposes of subsection (1).
Low-fee retail deposit accounts — regulations
448.2 The Governor in Council may make regulations
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(a) requiring a member bank, at any prescribed point of service in Canada or any branch referred to in subsection 448.1(1), to open a low-fee retail deposit account for an individual who meets the prescribed conditions at his or her request made there in person; (b) for the purposes of paragraph (a), defining ‘‘point of service’’ and prescribing points of service; (c) prescribing the characteristics, including the name, of a low-fee retail deposit account; (d) respecting circumstances in which a regulation made under paragraph (a) does not apply; and (e) prescribing conditions to be met by an individual for the purposes of paragraph (a). 118. Section 449 of the Act, as enacted by section 49 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is replaced by the following: Definition of ‘‘cost of borrowing’’
449. For the purposes of this section and sections 449.1 to 456, ‘‘cost of borrowing’’ means, in respect of a loan made by a bank, (a) the interest or discount applicable to the loan; (b) any amount charged in connection with the loan that is payable by the borrower to the bank; and (c) any charge prescribed to be included in the cost of borrowing. For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. 119. The Act is amended by adding the following before section 455: Complaints 120. (1) Paragraph 455(1)(a) of the Act is replaced by the following: (a) establish procedures for dealing with complaints made by persons having requested or received products or services in Canada from a bank;
Institutions f (2) If this section comes into force before paragraph 455(1)(a) of the Act, as enacted by section 52 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force, then section 52 of that Act is repealed. (3) Subsection 455(2) of the Act is replaced by the following:
Procedures to be filed with Commissioner
(2) A bank shall file with the Commissioner a copy of its procedures established under paragraph (1)(a). 121. The Act is amended by adding the following after section 455:
Designation of complaints body
455.1 (1) The Minister may, for the purposes of this section, designate a body corporate incorporated under Part II of the Canada Corporations Act whose purpose, in the view of the Minister, under its letters patent is dealing with complaints, made by persons having requested or received products or services from its member financial institutions, that have not been resolved to the satisfaction of those persons under procedures established by those financial institutions under paragraph 455(1)(a).
Obligation to be member
(2) A bank shall be a member of any body corporate that is designated under subsection (1).
Directors
(3) The Minister may, in accordance with the letters patent and by-laws of the body corporate designated under subsection (1), appoint the majority of its directors.
Not an agent
(4) A body corporate designated under subsection (1) is not an agent of Her Majesty.
Designation to be published
(5) A designation under subsection (1) shall be published in the Canada Gazette. 122. (1) Section 456 of the Act is replaced by the following:
Information on contacting Agency
456. (1) A bank shall, in the prescribed manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about a deposit account, an arrangement referred to in subsection 452(3), a payment, credit or charge card,
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the disclosure of or manner of calculating the cost of borrowing in respect of a loan or about any other obligation of the bank under a consumer provision.
Report
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by banks pursuant to paragraph 455(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a bank. (2) If this section comes into force before subsection 456(1) of the Act, as enacted by section 53 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force, then section 53 of that Act is repealed. 123. The Act is amended by adding the following after section 458:
Cashing of government cheques
458.1 (1) Subject to regulations made under subsection (2), a member bank shall, at any branch in Canada at which it, through a natural person, opens retail deposit accounts and disburses cash to customers, cash a cheque or other instrument for an individual who is considered not to be a customer of the bank under the regulations, if (a) the cheque or other instrument is drawn on the Receiver General or on the Receiver General’s account in the Bank of Canada, or in any bank or other deposit-taking Canadian financial institution incorporated by or under an Act of Parliament, or is any other instrument issued as authority for the payment of money out of the Consolidated Revenue Fund; (b) the individual makes the request to cash it in person and meets the prescribed conditions; and
Institutions f (c) the amount of the cheque or other instrument is not more than the prescribed amount.
Regulations
(2) The Governor in Council may make regulations (a) respecting circumstances in which subsection (1) does not apply; (b) for the purposes of subsection (1), prescribing the maximum amount of a cheque or other instrument; (c) prescribing conditions to be met by an individual referred to in subsection (1); and (d) prescribing circumstances in which an individual referred to in subsection (1) is considered not to be a customer of the bank.
1997, c. 15, s. 55; 1999, c. 28, s. 24.1(1) (F)
124. (1) Subsections 459.1(1) to (3) of the Act are replaced by the following:
Restriction on tied selling
459.1 (1) A bank shall not impose undue pressure on, or coerce, a person to obtain a product or service from a particular person, including the bank and any of its affiliates, as a condition for obtaining another product or service from the bank.
Favourable bank product or service tied to other sale
(2) For greater certainty, a bank may offer a product or service to a person on more favourable terms or conditions than the bank would otherwise offer, where the more favourable terms and conditions are offered on the condition that the person obtain another product or service from any particular person.
Favourable other sale tied to bank product or service
(3) For greater certainty, an affiliate of a bank may offer a product or service to a person on more favourable terms or conditions than the affiliate would otherwise offer, where the more favourable terms and conditions are offered on the condition that the person obtain another product or service from the bank. (2) Section 459.1 of the Act is amended by adding the following after subsection (4):
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Disclosure
(4.1) A bank shall disclose the prohibition on coercive tied selling set out in subsection (1) in a statement in plain language that is clear and concise, displayed and available to customers and the public at all of its branches and at all prescribed points of service in Canada.
Regulations
(4.2) The Governor in Council may make regulations for the purposes of subsection (4.1) defining ‘‘point of service’’ and prescribing points of service. 125. The Act is amended by adding the following after section 459.1:
Notice of branch closure
459.2 (1) Subject to regulations made under subsection (5), a member bank with a branch in Canada at which it, through a natural person, opens retail deposit accounts and disburses cash to customers, shall give notice in accordance with those regulations before closing that branch or having it cease to carry on either of those activities.
Pre-closure meeting
(2) After notice is given but before the branch is closed or ceases to carry on the activities, the Commissioner may, in prescribed situations, require the bank to convene and hold a meeting between representatives of the bank, representatives of the Agency and interested parties in the vicinity of the branch in order to exchange views about the closing or cessation of activities.
Meeting details
(3) The Commissioner may establish rules for convening a meeting referred to in subsection (2) and for its conduct.
Not statutory instruments
(4) The Statutory Instruments Act does not apply in respect of rules established under subsection (3).
Regulations
(5) The Governor in Council may make regulations prescribing (a) the manner and time, which may vary according to circumstances specified in the regulations, in which notice shall be given under subsection (1), to whom it shall be given and the information to be included; (b) circumstances in which a member bank is not required to give notice under subsec2001
Institutions f tion (1), circumstances in which the Commissioner may exempt a member bank from the requirement to give notice under that subsection, and circumstances in which the Commissioner may vary the manner and time in which notice is required to be given under any regulation made under paragraph (a); and (c) circumstances in which a meeting may be convened under subsection (2).
Public accountability statements
459.3 (1) A bank with equity of one billion dollars or more shall, in accordance with regulations made under subsection (4), annually publish a statement describing the contribution of the bank and its prescribed affiliates to the Canadian economy and society.
Filing
(2) A bank shall, in the manner and at the time prescribed, file a copy of the statement with the Commissioner.
Provision of statement to public
(3) A bank shall, in the manner and at the time prescribed, disclose the statement to its customers and to the public.
Regulations
(4) The Governor in Council may make regulations prescribing (a) the name, contents and form of the statement referred to in subsection (1) and the time within which it must be prepared; (b) affiliates of a bank referred to in subsection (1); (c) the manner and time in which a statement must be filed under subsection (2); and (d) the manner and time in which a statement mentioned in subsection (3) is to be disclosed, respectively, to a bank’s customers and to the public.
Regulations re disclosure
459.4 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by banks or any prescribed class of banks, including regulations respecting
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(a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them, (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which and the persons to whom information is to be disclosed; and (c) the content and form of any advertisement by banks or any prescribed class of banks relating to any matter referred to in paragraph (a). Affiliates
459.5 A bank shall not enter into any arrangement or otherwise cooperate with any of its affiliates that is controlled by a bank or a bank holding company and that is a finance entity as defined in subsection 464(1) or other prescribed entity to sell or further the sale of a product or service of the bank or the affiliate unless (a) the affiliate complies, with respect to the product or service, with the following provisions as if it were a bank, namely, (i) sections 449 to 455, subsections 458(1) and (3) and section 459.1, and (ii) section 456, to the extent that it is applicable to the activities of the affiliate; and (b) the persons who request or receive the product or service have access to complaint handling by the body corporate designated under subsection 455.1(1).
126. Section 462 of the Act is replaced by the following:
2001 Effect of writ, etc.
Institutions f 462. (1) Subject to subsections (3) and (4), the following documents are binding on property belonging to a person and in the possession of a bank, or on money owing to a person by reason of a deposit account in a bank, only if the document or a notice of it is served at the branch of the bank that has possession of the property or that is the branch of account in respect of the deposit account, as the case may be: (a) a writ or process originating a legal proceeding or issued in or pursuant to a legal proceeding; (b) an order or injunction made by a court; (c) an instrument purporting to assign, perfect or otherwise dispose of an interest in the property or the deposit account; or (d) an enforcement notice in respect of a support order or support provision.
Notices
(2) Any notification sent to a bank with respect to a customer of the bank, other than a document referred to in subsection (1) or (3), constitutes notice to the bank and fixes the bank with knowledge of its contents only if sent to and received at the branch of the bank that is the branch of account of an account held in the name of that customer.
Exception
(3) Subsections (1) and (2) do not apply in respect of an enforcement notice in respect of a support order or support provision if (a) the enforcement notice, accompanied by a written statement containing the information required by the regulations, is served at an office of a bank designated in accordance with the regulations in respect of a province; and (b) the order or provision can be enforced under the laws of that province.
Time of application
(4) Subsection (3) does not apply in respect of an enforcement notice in respect of a support order or support provision until the second business day following the day of service referred to in that subsection.
Regulations
(5) The Governor in Council may make regulations
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(a) respecting the designation by a bank, for the purpose of subsection (3), of a place in any province for the service of enforcement notices in respect of support orders and support provisions; (b) prescribing the manner in which a bank shall publicize the locations of designated offices of the bank; and (c) respecting the information that must accompany enforcement notices in respect of support orders and support provisions.
Definitions
(6) The following definitions apply in this section.
‘‘designated office’’ « bureau désigné »
‘‘designated office’’ means a place designated in accordance with regulations made for the purpose of subsection (3).
‘‘enforcement notice’’ « avis d’exécution »
‘‘enforcement notice’’, in respect of a support order or support provision, means a garnishee summons or other instrument issued under the laws of a province for the enforcement of the support order or support provision.
‘‘support order’’ « ordonnance alimentaire »
‘‘support order’’ means an order or judgment or interim order or judgment for family financial support.
‘‘support provision’’ « disposition alimentaire »
‘‘support provision’’ means a provision of an agreement relating to the payment of maintenance or family financial support.
1991, c. 46, s. 603; 1993, c. 34, s. 9(F); 1997, c. 15, ss. 56 to 66; 1999, c. 28, s. 26
127. Sections 464 to 484 of the Act are replaced by the following:
Definitions
464. (1) The following definitions apply in this Part.
‘‘factoring entity’’ « entité s’occupant d’affacturage »
‘‘factoring entity’’ means a factoring entity as defined in the regulations.
‘‘finance entity’’ « entité s’occupant de financement »
‘‘finance entity’’ means a finance entity as defined in the regulations.
2001 ‘‘financial leasing entity’’ « entité s’occupant de crédit-bail »
Institutions f ‘‘financial leasing entity’’ means an entity (a) the activities of which are limited to the financial leasing of personal property and such related activities as are prescribed and whose activities conform to such restrictions and limitations thereon as are prescribed; and (b) that, in conducting the activities referred to in paragraph (a) in Canada, does not (i) direct its customers or potential customers to particular dealers in the leased property or the property to be leased, (ii) enter into lease agreements with persons in respect of any motor vehicle having a gross vehicle weight, as that expression is defined by the regulations, of less than twenty-one tonnes, or (iii) enter into lease agreements with natural persons in respect of personal household property, as that expression is defined by the regulations.
‘‘loan’’ « prêt » ou « emprunt »
‘‘loan’’ includes an acceptance, endorsement or other guarantee, a deposit, a financial lease, a conditional sales contract, a repurchase agreement and any other similar arrangement for obtaining funds or credit but does not include investments in securities.
‘‘motor vehicle’’ « véhicule à moteur »
‘‘motor vehicle’’ means a motorized vehicle designed to be used primarily on a public highway for the transportation of persons or things, but does not include (a) a fire-engine, bus, ambulance or utility truck; or (b) any other special purpose motorized vehicle that contains significant special features that make it suitable for a specific purpose.
‘‘mutual fund distribution entity’’ « courtier de fonds mutuels »
‘‘mutual fund distribution entity’’ means an entity whose principal activity is acting as a selling agent of units, shares or other interests in a mutual fund and acting as a collect��
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ing agent in the collection of payments for any such interests if (a) the proceeds of the sales of any such interests, less any sales commissions and service fees, are paid to the mutual fund; and (b) the existence of a sales commission and service fee in respect of the sale of any such interest is disclosed to the purchaser of the interest before the purchase of the interest. ‘‘mutual fund entity’’ « entité s’occupant de fonds mutuels »
‘‘mutual fund entity’’ means an entity (a) whose activities are limited to the investing of the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities; and (b) whose securities entitle their holders to receive, on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of its net assets, including a separate fund or trust account of the entity.
‘‘participating share’’ « action participante »
‘‘participating share’’ means a share of a body corporate that carries the right to participate in the earnings of the body corporate to an unlimited degree and to participate in a distribution of the remaining property of the body corporate on dissolution.
‘‘permitted entity’’ « entité admissible »
‘‘permitted entity’’ means an entity in which a bank is permitted to acquire a substantial investment under section 468.
‘‘prescribed subsidiary’’ « filiale réglementaire »
‘‘prescribed subsidiary’’ means a subsidiary that is one of a prescribed class of subsidiaries. ‘‘real property brokerage entity’’ means an entity that is primarily engaged in
‘‘real property brokerage entity’’ « courtier immobilier »
(a) acting as an agent for vendors, purchasers, mortgagors, mortgagees, lessors or lessees of real property; and
Institutions f (b) the provision of consulting or appraisal services in respect of real property.
‘‘specialized financing entity’’ « entité s’occupant de financement spécial »
‘‘specialized financing entity’’ means a specialized financing entity as defined in the regulations.
Members of a bank’s group
(2) For the purpose of this Part, a member of a bank’s group is any of the following: (a) an entity referred to in any of paragraphs 468(1)(a) to (f) that controls the bank; (b) a subsidiary of the bank or of an entity referred to in any of paragraphs 468(1)(a) to (f) that controls the bank; (c) an entity in which the bank, or an entity referred to in any of paragraphs 468(1)(a) to (f) that controls the bank, has a substantial investment; or (d) a prescribed entity in relation to the bank.
Non-application of Part
(3) This Part does not apply in respect of (a) the holding of a security interest in real property, unless the security interest is prescribed under paragraph 479(a) to be an interest in real property; or (b) the holding of a security interest in securities of an entity.
General Constraints on Investments Investment standards
465. The directors of a bank shall establish and the bank shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments and loans to avoid undue risk of loss and obtain a reasonable return.
Restriction on control and substantial investments
466. (1) Subject to subsections (2) to (4), no bank shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
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(2) A bank may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 468(1)(a) to (j), or of a prescribed entity, that controls or has a substantial investment in the entity; or (b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 468(1)(a) to (j), or a prescribed entity, that is controlled by the bank, or (ii) an entity controlled by an entity referred to in any of paragraphs 468(1)(a) to (j), or a prescribed entity, that is controlled by the bank.
Exception: temporary investments, realizations and loan workouts
(3) A bank may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 471; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 472; or (c) a realization of security permitted by section 473.
Exception: specialized financing regulations
(4) A bank may, subject to Part XI, acquire control of, or hold, acquire or increase a substantial investment in, an entity other than a permitted entity if it does so in accordance with regulations made under paragraph 467(d) concerning specialized financing.
Exception: uncontrolled event
(5) A bank is deemed not to contravene subsection (1) if the bank acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the bank.
Regulations re limits
467. The Governor in Council may make regulations
Institutions f (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Part; (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a bank and its prescribed subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) concerning specialized financing for the purposes of subsection 466(4).
Subsidiaries and Equity Investments Permitted investments
468. (1) Subject to subsections (4) to (6) and Part XI, a bank may acquire control of, or acquire or increase a substantial investment in (a) a bank; (b) a bank holding company; (c) a body corporate to which the Trust and Loan Companies Act applies; (d) an association to which the Cooperative Credit Associations Act applies; (e) an insurance company or a fraternal benefit society incorporated or formed by or under the Insurance Companies Act; (f) an insurance holding company; (g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; (h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of
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banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities.
Permitted investments
(2) Subject to subsections (3) to (6) and Part XI, a bank may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity that a bank is permitted to engage in under any of paragraphs 409(2)(a) to (d) or any other activity that a bank is permitted to engage in under section 410 or 411; (b) acquiring or holding shares of, or ownership interests in, entities in which a bank is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the bank or any member of the bank’s group, namely, (i) the bank, (ii) any member of the bank’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a bank is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the bank or any member of the bank’s group, or
Institutions f (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’, ‘‘mutual fund distribution entity’’ or ‘‘real property brokerage entity’’ in subsection 464(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) A bank may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a bank is not permitted to engage in under any of sections 412, 417 and 418; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a bank under paragraph 409(2)(c); (c) activities that a bank is not permitted to engage in under section 416 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the bank, the bank itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the bank, the bank itself
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(e) any prescribed activity.
Control
(4) Subject to subsection (8) and the regulations, a bank may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in paragraph (1)(a) or (b), unless (i) the bank controls, within the meaning of paragraphs 3(1)(a) and (d), the entity or would thereby acquire control, within the meaning of those paragraphs, of the entity, or (ii) the bank is permitted by regulations made under paragraph 474(a) to acquire or increase the substantial investment; (b) an entity referred to in any of paragraphs (1)(c) to (j), unless (i) the bank controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the bank is permitted by regulations made under paragraph 474(a) to acquire or increase the substantial investment; (c) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the bank controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the bank is permitted by regulations made under paragraph 474(a) to acquire or increase the substantial investment; or
Institutions f (d) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless (i) the bank controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, (ii) the bank is permitted by regulations made under paragraph 474(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in any of paragraphs (a) to (c) or an entity that is not a permitted entity.
Minister’s approval
(5) Subject to the regulations, a bank may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in any of paragraphs (1)(g) to (i) from a person who is not a member of the bank’s group; (b) acquire control of an entity referred to in paragraph (1)(j) or (4)(c), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the bank’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 410(1)(c) or (c.1); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f).
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Superintendent’s approval
(6) Subject to subsection (7) and the regulations, a bank may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (4)(c) and (d), unless the bank obtains the approval of the Superintendent.
Exception
(7) Subsection (6) does not apply in respect of a particular transaction if (a) the bank is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b), other than a specialized financing entity; (b) the bank is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 469(1).
Control not required
(8) A bank need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the bank to control the entity.
Giving up control prohibited
(9) A bank that controls, within the meaning of paragraphs 3(1)(a) and (d), an entity referred to in paragraph (1)(a) or (b) may not give up control, within the meaning of paragraph 3(1)(a) or (d), of the entity while continuing to control, within the meaning of the other paragraph, the entity.
Prohibition on giving up control in fact
(10) A bank that, under paragraph (4)(b), (c) or (d), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Giving up control
(11) A bank that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if
Institutions f (a) the bank is permitted to do so by regulations made under paragraph 474(c); or (b) the entity meets the conditions referred to in subparagraph (4)(d)(iii).
Subsections do not apply
(12) If a bank controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the bank of its substantial investment in the entity so long as the bank continues to control the entity.
Approval for indirect investments
469. (1) If a bank obtains the approval of the Minister under subsection 468(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the bank indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 468(5) or the Superintendent under subsection 468(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the bank is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
Approval for indirect investments
(2) If a bank obtains the approval of the Superintendent under subsection 468(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the bank indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the bank is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
470. (1) If a bank controls a permitted entity, other than an entity referred to in any of paragraphs 468(1)(a) to (f), the bank shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
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Undertakings
(2) If a bank acquires control of an entity referred to in any of paragraphs 468(1)(g) to (j), the bank shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of an entity referred to in any of paragraphs 468(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Part, a bank shall not control a permitted entity, other than an entity referred to in any of paragraphs 468(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the bank obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. Exceptions and Exclusions
Temporary investments in entity
471. (1) Subject to subsection (4), a bank may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Transitional
(2) Despite subsection (1), if a bank that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the bank subsequently increases that substantial investment by way of a temporary investment, the bank shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the
Institutions f entity is no greater than it was on September 27, 1990.
Extension
(3) The Superintendent may, in the case of any particular bank that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(4) If a bank, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 468(5) is required, the bank must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Indeterminate extension
(5) If a bank, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 468(6) is required, the Superintendent may, in the case of any particular bank that makes an application under this subsection, permit the bank to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
472. (1) Despite anything in this Part, if a bank or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the bank, or any of its subsidiaries, and the entity with respect to the
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loan and any other documents governing the terms of the loan, a default has occurred, the bank may acquire (a) if the entity is a body corporate, all or any of the shares of the body corporate; (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates.
Obligation of bank
(2) If a bank acquires shares or ownership interests in an entity under subsection (1), the bank shall, within five years after acquiring them, do all things necessary to ensure that the bank does not control the entity or have a substantial investment in the entity.
Transitional
(3) Despite subsection (1), if a bank that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the bank later increases that substantial investment by way of an investment made under subsection (1), the bank shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular bank that makes an application under this subsection, extend the period referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(5) Despite anything in this Part, if a bank has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the
Institutions f agreement between the bank and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the bank may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government.
Time for holding shares
(6) If a bank acquires any shares or ownership interests under subsection (5), the bank may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(7) If, under subsection (1), a bank acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 468, the bank may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Realizations
473. (1) Despite anything in this Act, a bank may acquire (a) an investment in a body corporate, (b) an interest in an unincorporated entity, or (c) an interest in real property if the investment or interest is acquired through the realization of a security interest held by the bank or any of its subsidiaries.
Disposition
(2) Subject to subsection 73(2), if a bank acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by the bank or any of its subsidiaries, the bank shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the
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case may be, to ensure that the bank no longer controls the entity or has a substantial investment in the entity. Transitional
(3) Despite subsection (2), if a bank that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the bank later increases that substantial investment by way of a realization of a security interest under subsection (1), the bank shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular bank that makes an application under this subsection, extend the period referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(5) If, under subsection (1), a bank acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 468, the bank may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Regulations restricting ownership
474. The Governor in Council may make regulations (a) for the purposes of subsection 468(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the banks or other entities in respect of which that subsection does not apply, including prescribing banks or other entities on the basis of the activities they engage in;
Institutions f (b) for the purposes of subsection 468(5) or (6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the banks or other entities in respect of which either of those subsections does not apply, including prescribing banks or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 468(11), permitting a bank to give up control of an entity; and (d) restricting the ownership by a bank of shares of a body corporate or of ownership interests in an unincorporated entity under sections 468 to 473 and imposing terms and conditions applicable to banks that own such shares or interests. Portfolio Limits
Exclusion from portfolio limits
475. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by a bank and any of its prescribed subsidiaries under section 472 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the bank and its prescribed subsidiaries under sections 476 to 478 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
Extension
(2) The Superintendent may, in the case of any particular bank, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
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(3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 479 to be an interest in real property and (a) the bank or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 479 to be an interest in real property; or (b) the bank or the subsidiary acquired the investment or interest under section 472 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 479 to be an interest in real property. Real Property
Limit on total property interest
476. A bank shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the bank or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the bank in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank. Equities
Limits on equity acquisitions
477. A bank shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the bank has, or by virtue of the acquisition would have, a substantial investment, or (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in
Institutions f which the bank has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the bank has a substantial investment, beneficially owned by the bank and its prescribed subsidiaries, exceeds, or the purchase or acquisition would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank. Aggregate Limit
Aggregate limit
478. A bank shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the bank has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the bank has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the bank or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the bank and its prescribed subsidiaries, and (d) all interests of the bank in real property referred to in subparagraph (a)(iii) exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank.
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Miscellaneous 479. For the purposes of this Part, the Governor in Council may make regulations (a) defining the interests of a bank in real property; (b) determining the method of valuing those interests; or (c) exempting classes of banks from the application of sections 475 to 478.
Divestment order
Divestment order
480. (1) The Superintendent may, by order, direct a bank to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Part. (2) If, in the opinion of the Superintendent, (a) an investment by a bank or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the bank to control the body corporate or the unincorporated entity, or (b) the bank or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the bank, the entity it controls or the nominee, the Superintendent may, by order, require the bank, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the bank no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b).
Divestment order
(3) If (a) a bank (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 470(1), (2) or (4), or
Institutions f (ii) is in default of an undertaking referred to in subsection 470(1) or (2) and the default is not remedied within ninety days after the day of receipt by the bank of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 470(4) is in default of an undertaking referred to in that subsection and the default is not remedied within ninety days after the day of receipt by the bank of a notice from the Superintendent of the default, the Superintendent may, by order, require the bank, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the bank no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which a bank has a substantial investment permitted by this Part.
Deemed temporary investment
481. If a bank controls or has a substantial investment in an entity as permitted by this Part and the bank becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 468(5) or (6), the bank is deemed to have acquired, on the day the bank becomes aware of the change, a temporary investment in respect of which section 471 applies.
Asset transactions
482. (1) A bank shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B>C where A is the value of the assets; B is the total value of all assets that the bank and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and
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C is ten per cent of the total value of the assets of the bank, as shown in the last annual statement of the bank prepared before the acquisition or transfer. Exception
(2) The prohibition in subsection (1) does not apply in respect of (a) assets that are debt obligations that are (i) guaranteed by any financial institution other than the bank, (ii) fully secured by deposits with any financial institution, including the bank, or (iii) fully secured by debt obligations that are guaranteed by any financial institution other than the bank; (b) assets that are debt obligations issued (i) by, or by any agency of, (A) the Government of Canada, (B) the government of a province, (C) a municipality, or (D) the government of a foreign country or any political subdivision of a foreign country, or (ii) by a prescribed international agency; (c) assets that are debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in paragraph (b); (d) assets that are debt obligations that are widely distributed, as that expression is defined by the regulations; (e) assets that are debt obligations of an entity controlled by the bank; or (f) a transaction or series of transactions by the bank with another financial institution as a result of the bank’s participation in one or more syndicated loans with that financial institution.
2001 Exception
Institutions f (3) The approval of the Superintendent is not required if (a) the bank sells assets under a sale agreement that is approved by the Minister under section 236; (b) the bank or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 468(5) is required or the approval of the Superintendent under subsection 468(6) is required; or (c) the transaction has been approved by the Minister under subsection 678(1) of this Act or subsection 715(1) of the Insurance Companies Act.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the bank after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the bank prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the bank or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the bank, the fair market value of the assets of the entity at the date of the acquisition.
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Transitional
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(6) For the purposes of subsection (1), the total value of all assets that the bank or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the bank prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank before the transfer, the value of the assets of the entity as stated in the annual statement. 483. Nothing in this Part requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date; (c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date. But if the loan or investment would be precluded or limited by this Part, the amount of the loan or investment may not, except as provided in subsections 471(2), 472(3) and 473(3), be increased after that date.
Saving
484. A loan or investment referred to in section 483 is deemed not to be prohibited by the provisions of this Part. 128. (1) Subsection 487(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b) and by adding the following after paragraph (c): (d) transactions approved by the Minister under subsection 678(1) of this Act or subsection 715(1) of the Insurance Companies Act; or (e) if a bank is controlled by a widely held bank holding company or a widely held insurance holding company, transactions approved by the Superintendent that are entered as part of, or in the course of, a restructuring of the holding company or of any entity controlled by it.
Institutions f
1997, c. 15, s. 69
(2) Subsection 487(4) of the Act is replaced by the following:
Exception for holding body corporate
(4) A holding body corporate of a bank is not a related party of the bank if the holding body corporate is a Canadian financial institution that is referred to in any of paragraphs (a) to (d) of the definition ‘‘financial institution’’ in section 2. 129. The Act is amended by adding the following after section 495:
Transactions with holding companies
495.1 (1) Subject to subsection (2) and sections 495.2 and 495.3, if a widely held bank holding company or a widely held insurance holding company has a significant interest in any class of shares of a bank, the bank may enter into any transaction with the holding company or with any other related party of the bank that is an entity in which the holding company has a substantial investment.
Policies and procedures
(2) The bank shall adhere to policies and procedures established under subsection 195(3) when entering into the transaction.
Restriction
495.2 (1) If a bank enters into a transaction with a related party of the bank with whom the bank may enter into transactions under subsection 495.1(1) and that is not a federal financial institution, the bank shall not directly or indirectly make, take an assignment of or otherwise acquire a loan to the related party, make an acceptance, endorsement or other guarantee on behalf of the related party or make an investment in the securities of the related party if, immediately following the transaction, the aggregate financial exposure, as that expression is defined by the regulations, of the bank would exceed (a) in respect of all transactions of the bank with the related party, the prescribed percentage of the bank’s regulatory capital or, if no percentage is prescribed, five per cent of the bank’s regulatory capital; or (b) in respect of all transactions of the bank with such related parties of the bank, the prescribed percentage of the bank’s regulatory capital or, if no percentage is prescribed, ten per cent of the bank’s regulatory capital.
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(2) If the Superintendent is of the opinion that it is necessary for the protection of the interests of the depositors and creditors of a bank, the Superintendent may, by order, (a) reduce the limit in paragraph (1)(a) or (b) that would otherwise apply to the bank; and (b) impose limits on transactions by the bank with related parties with whom the bank may enter into transactions under subsection 495.1(1) that are federal financial institutions.
Order
(3) The Superintendent may, by order, increase the limit in paragraph (1)(a) or (b) that would otherwise apply to a bank on transactions by the bank with related parties that are financial institutions that are regulated in a manner acceptable to the Superintendent.
Assets transactions
495.3 (1) Despite subsection 494(3), a bank shall not, without the approval of the Superintendent and its conduct review committee, directly or indirectly acquire assets from a related party of the bank with whom the bank may enter into transactions under subsection 495.1(1) that is not a federal financial institution, or directly or indirectly transfer assets to such a related party if A+B>C where A is the value of the assets; B is the total value of all assets that the bank directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the twelve months ending immediately before the acquisition or transfer; and C is five per cent, or the percentage that may be prescribed, of the total value of the assets of the bank, as shown in the last annual statement of the bank prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of assets purchased or otherwise acquired under subsection 494(1), assets sold under subsection 494(2) or any other assets as may be prescribed.
2001 Exception
Institutions f (3) The approval of the Superintendent is not required if (a) the bank sells assets under a sale agreement that is approved by the Minister under section 236; or (b) the bank or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 468(5) is required or the approval of the Superintendent under subsection 468(6) is required.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the bank after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the bank prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the bank or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the bank, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the bank or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated
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in the last annual statement of the bank prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank before the transfer, the value of the assets of the entity as stated in the annual statement. 130. Paragraph 501(2)(b) of the Act is replaced by the following: (b) in respect of any other transaction, (i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arm’s length and who are acting prudently, knowledgeably and willingly, or (ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arm’s length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the bank with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly. 131. Section 506 of the Act is replaced by the following: Order to void contract or to grant other remedy
506. (1) If a bank enters into a transaction that it is prohibited from entering into by this Part, the bank or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate remedy, including an order directing that the related party of the bank involved in the transaction account to the bank for any profit or gain realized or that any director or senior officer of the bank who authorized the transaction compensate the bank for any loss or damage incurred by the bank.
Time limit
(2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in
Institutions f section 505 in respect of the transaction is given to the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction.
Certificate
(3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof.
1991, c. 47, par. 756(1)(b); 1994, c. 47, s. 26; 1997, c. 15, ss. 76 to 85; 1999, c. 28, ss. 27 to 34, c. 31, s. 15(F)
132. Part XII of the Act is replaced by the following:
PART XII FOREIGN BANKS DIVISION 1 INTERPRETATION AND APPLICATION Definitions
507. (1) The following definitions apply in this Part.
‘‘designated foreign bank’’ « banque étrangère désignée »
‘‘designated foreign bank’’ means a foreign bank that is the subject of a designation order.
‘‘designation order’’ « arrêté de désignation »
‘‘designation order’’ means an order made under subsection 508(1).
‘‘exemption order’’ « arrêté d’exemption »
‘‘exemption order’’ means an order made under subsection 509(1).
‘‘finance entity’’ « entité s’occupant de financement »
‘‘finance entity’’ means a Canadian entity that is a finance entity as defined in the regulations.
‘‘financial leasing entity’’ « entité s’occupant de crédit-bail »
‘‘financial leasing entity’’ means a Canadian entity that is a financial leasing entity as defined in subsection 464(1).
��� ‘‘financial services entity’’ « entité s’occupant de services financiers »
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‘‘financial services entity’’ means an entity, other than an entity referred to in any of paragraphs 468(1)(a) to (i) or a leasing entity, that engages in activities at least the prescribed portion — or if no portion is prescribed, 10 per cent — of which, determined in the prescribed manner, consists of one or more of the following activities: (a) providing any financial service; (b) acting as a financial agent; (c) providing investment counselling and portfolio management services; (d) issuing payment, credit or charge cards and, in cooperation with others, including other financial institutions, operating a payment, credit or charge card plan; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ in subsection 464(1); (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed; (g) engaging in any activity referred to in paragraphs (a) to (f) as an agent for another entity referred to in any of those paragraphs or in any of paragraphs 468(1)(a) to (j); or (h) acquiring or holding control of, or becoming a major owner of, an entity referred to in any of paragraphs (a) to (g) or any of paragraphs 468(1)(a) to (j).
‘‘foreign cooperative credit society’’ « société coopérative de crédit étrangère »
‘‘foreign cooperative credit society’’ means an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province, and that, outside Canada, engages in or carries on the business of a cooperative credit society.
‘‘foreign insurance company’’ « société d’assurances étrangère »
‘‘foreign insurance company’’ means a foreign company as defined in subsection 2(1) of the Insurance Companies Act.
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‘‘foreign securities dealer’’ « courtier de valeurs mobilières étranger »
‘‘foreign securities dealer’’ means an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province, and that, outside Canada, engages in or carries on the business of dealing in securities.
‘‘leasing activities’’ « activités de location »
‘‘leasing activities’’ means (a) the financial leasing of personal property and the related activities that a financial leasing entity may engage in; and (b) all other leasing of personal property.
‘‘leasing entity’’ « entité s’occupant de location »
‘‘leasing entity’’ means an entity that engages in only (a) leasing activities; or (b) leasing activities and activities other than those described in paragraphs (a) to (h) of the definition ‘‘financial services entity’’.
‘‘limited commercial entity’’ « entité à activités commerciales restreintes »
‘‘limited commercial entity’’ means a Canadian entity that a foreign bank or an entity associated with a foreign bank may control in accordance with section 522.09, or in which a foreign bank or an entity associated with a foreign bank is permitted to acquire a substantial investment in accordance with that section.
‘‘non-bank affiliate of a foreign bank’’ « établissement affilié à une banque étrangère »
‘‘non-bank affiliate of a foreign bank’’ means a Canadian entity, other than a bank, (a) in which a foreign bank or an entity associated with a foreign bank holds a substantial investment, or (b) that is controlled by a foreign bank or an entity associated with a foreign bank, but a Canadian entity is not a non-bank affiliate of a foreign bank by reason only that a bank that is a subsidiary of the foreign bank or of the entity associated with a
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foreign bank controls, or holds a substantial investment in, the Canadian entity. ‘‘permitted Canadian entity’’ « entité canadienne admissible »
‘‘permitted Canadian entity’’ means a Canadian entity that a foreign bank or an entity associated with a foreign bank may control in accordance with section 522.08, or in which a foreign bank or an entity associated with a foreign bank is permitted to acquire a substantial investment in accordance with that section.
‘‘representative office’’ « bureau de représentation »
‘‘representative office’’ means an office established to represent a foreign bank in Canada that is not subject to the direction of, or management by, an entity incorporated or formed by or under an Act of Parliament or of the legislature of a province, and the personnel of which are employed directly or indirectly by the foreign bank.
‘‘specialized financing entity’’ « entité s’occupant de financement spécial »
‘‘specialized financing entity’’ means a Canadian entity that is a specialized financing entity as defined in the regulations.
Entity associated with foreign bank
(2) For the purposes of this Part, (a) an entity is associated with a foreign bank if (i) the entity controls, or is controlled by, the foreign bank, or (ii) the entity and the foreign bank are controlled by the same person; (b) an entity may be associated with more than one foreign bank; and (c) a foreign bank may be associated with another foreign bank.
Entity deemed to be associated with a foreign bank
(3) For the purposes of this Part, the Minister may deem an entity to be associated with a foreign bank if, in the opinion of the Minister, it is reasonable to conclude that under any agreement, commitment or understanding, whether formal or informal, verbal or written, (a) the foreign bank is acting, jointly or in concert, in relation to the shares or owner2001
Institutions f ship interests of the entity, with one or more other persons such that, if they were one person, they would control the entity; (b) the entity is acting, jointly or in concert, in relation to the shares or ownership interests of the foreign bank, with one or more other persons such that, if they were one person, they would control the foreign bank; (c) another entity that is associated with the foreign bank is acting, jointly or in concert, in relation to the shares or ownership interests of the entity, with one or more other persons such that, if they were one person, they would control the entity; (d) a person who controls the entity is acting, jointly or in concert, in relation to the shares or ownership interests of the foreign bank, with one or more other persons, such that, if they were one person, they would control the foreign bank; (e) a person who controls the foreign bank is acting, jointly or in concert, in relation to the shares or ownership interests of the entity, with one or more other persons, such that, if they were one person, they would control the entity; or (f) two or more persons are acting, jointly or in concert, in relation to the shares or ownership interests of the entity and the foreign bank such that, if they were one person, they would control the entity and the foreign bank.
Deemed substantial investment by foreign bank
(4) For the purposes of this Part, a foreign bank is deemed to hold a substantial investment in a Canadian entity if (a) the foreign bank and one or more entities associated with the foreign bank, or (b) two or more entities associated with the foreign bank
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would, if they were one person, hold a substantial investment in the Canadian entity. Deemed substantial investment by entity associated
(5) For the purposes of this Part, an entity associated with a foreign bank is deemed to hold a substantial investment in a Canadian entity if (a) the entity and the foreign bank, or (b) the entity and one or more other entities associated with the foreign bank would, if they were one person, hold a substantial investment in the Canadian entity.
Deemed control by foreign bank
(6) For the purposes of this Part, a foreign bank is deemed to control a Canadian entity if (a) the foreign bank and one or more entities associated with the foreign bank, or (b) two or more entities associated with the foreign bank would, if they were one person, control the Canadian entity.
Deemed control by entity associated
(7) For the purposes of this Part, an entity associated with a foreign bank is deemed to control a Canadian entity if (a) the entity and the foreign bank, or (b) the entity and one or more other entities associated with the foreign bank would, if they were one person, control the Canadian entity.
Person is a major owner
(8) For the purposes of this Part, a person, other than a foreign bank or an entity associated with a foreign bank, (a) is a major owner of an unincorporated Canadian entity if the aggregate of any ownership interests, however designated, into which the unincorporated Canadian entity is divided that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 35 per cent of all of the ownership interests into which the unincorporated Canadian entity is divided; and (b) is a major owner of a Canadian entity that is a body corporate if (i) the aggregate of the shares of any class of voting shares of the Canadian entity that are beneficially owned by the person
Institutions f and that are beneficially owned by any entities controlled by the person is more than 20 per cent of the outstanding shares of that class of voting shares of the Canadian entity, or (ii) the aggregate of the shares of any class of non-voting shares of the Canadian entity that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 30 per cent of the outstanding shares of that class of nonvoting shares of the Canadian entity.
Foreign bank a major owner
(9) For the purposes of this Part, a foreign bank (a) is a major owner of an unincorporated Canadian entity if the aggregate of any ownership interests, however designated, into which the unincorporated Canadian entity is divided that are beneficially owned by the foreign bank and that are beneficially owned by any entities associated with the foreign bank is more than 35 per cent of all of the ownership interests into which the unincorporated Canadian entity is divided; and (b) is a major owner of a Canadian entity that is a body corporate if (i) the aggregate of the shares of any class of voting shares of the Canadian entity that are beneficially owned by the foreign bank and that are beneficially owned by any entities associated with the foreign bank is more than 20 per cent of the outstanding shares of that class of voting shares of the Canadian entity, or (ii) the aggregate of the shares of any class of non-voting shares of the Canadian entity that are beneficially owned by the foreign bank and that are beneficially owned by any entities associated with the foreign bank is more than 30 per cent of the outstanding shares of that class of non-voting shares of the Canadian entity.
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(10) For the purposes of this Part, an entity associated with a foreign bank (a) is a major owner of an unincorporated Canadian entity if the aggregate of any ownership interests, however designated, into which the unincorporated Canadian entity is divided that are beneficially owned by the entity associated with the foreign bank, that are beneficially owned by the foreign bank and that are beneficially owned by any other entities associated with the foreign bank is more than 35 per cent of all of the ownership interests into which the unincorporated Canadian entity is divided; and (b) is a major owner of a Canadian entity that is a body corporate if (i) the aggregate of the shares of any class of voting shares of the Canadian entity that are beneficially owned by the entity associated with the foreign bank, that are beneficially owned by the foreign bank and that are beneficially owned by any other entities associated with the foreign bank is more than 20 per cent of the outstanding shares of that class of voting shares of the Canadian entity, or (ii) the aggregate of the shares of any class of non-voting shares of the Canadian entity that are beneficially owned by the entity associated with the foreign bank, that are beneficially owned by the foreign bank and that are beneficially owned by any other entities associated with the foreign bank is more than 30 per cent of the outstanding shares of that class of non-voting shares of the Canadian entity.
Deemed major owner — person
(11) For the purposes of this Part, the Minister may deem a person to be a major owner of a Canadian entity if, in the opinion of the Minister, it is reasonable to conclude that under any agreement, commitment or understanding, whether formal or informal, verbal or written, the person is acting, jointly or in concert, in relation to the shares or ownership interests of the Canadian entity,
Institutions f with one or more other persons such that, if they were one person, they would be a major owner of the Canadian entity.
Deemed major owner — foreign bank
(12) For the purposes of this Part, the Minister may deem a foreign bank to be a major owner of a Canadian entity if, in the opinion of the Minister, it is reasonable to conclude that under any agreement, commitment or understanding, whether formal or informal, verbal or written, (a) the foreign bank is acting, jointly or in concert, in relation to the shares or ownership interests of the Canadian entity, with one or more other persons such that, if they were one person, they would be a major owner of the Canadian entity; or (b) two or more persons are acting, jointly or in concert in relation to the shares or ownership interests of the Canadian entity and in relation to the shares or ownership interests of the foreign bank such that, if they were one person, they would control the foreign bank and be a major owner of the Canadian entity.
Deemed major owner — entity associated with a foreign bank
(13) For the purposes of this Part, the Minister may deem an entity associated with a foreign bank to be a major owner of a Canadian entity if, in the opinion of the Minister, it is reasonable to conclude that under any agreement, commitment or understanding, whether formal or informal, verbal or written, the entity associated with the foreign bank is acting, jointly or in concert, in relation to the shares and ownership interests of the Canadian entity with one or more other persons, such that, if they were one person, they would be a major owner of the Canadian entity.
Member of foreign bank’s group
(14) For the purposes of this Part, a member of a foreign bank’s group is any of the following: (a) an entity associated with the foreign bank;
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(b) an entity in which the foreign bank or an entity associated with the foreign bank holds a substantial investment; and (c) a prescribed entity, in relation to the foreign bank. Foreign bank that has a financial establishment in Canada
(15) For the purposes of this Part, a foreign bank has, or is deemed to have, a financial establishment in Canada if the foreign bank or any entity associated with the foreign bank (a) is an authorized foreign bank; (b) is a foreign insurance company; (c) is a foreign securities dealer, or a foreign cooperative credit society, that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or to carry on the business of dealing in securities or the business of a cooperative credit society; or (d) controls, or is a major owner of, (i) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i), or (ii) a Canadian entity that is a financial services entity.
Associated entity that has a financial establishment in Canada
(16) For the purposes of this Part, an entity associated with a foreign bank has, or is deemed to have, a financial establishment in Canada if the entity, the foreign bank or any other entity associated with the foreign bank (a) is an authorized foreign bank; (b) is a foreign insurance company; (c) is a foreign securities dealer, or a foreign cooperative credit society, that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or to carry on the business of dealing in securities or the business of a cooperative credit society; or (d) controls, or is a major owner of, (i) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i), or (ii) a Canadian entity that is a financial services entity.
Regulations concerning exemption from associated status
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(17) The Governor in Council may make regulations (a) respecting the exemption, from the application of any provision of this Act, of any class or classes of entities associated with a foreign bank from the status of being associated with a foreign bank; and (b) authorizing the Minister, by order, and subject to any terms and conditions that the Minister considers appropriate, to deem, for the purposes of any provision of this Act, any entity not to be an entity associated with a foreign bank.
Revocation or variation of order
(18) The Minister may, by further order, revoke or vary any order referred to in paragraph (17)(b) and any such revocation or variation comes into effect three months after the date the further order is made unless the Minister and the entity to which the order relates agree that the revocation or variation is to take effect at some other time agreed to by them.
Publication
(19) If the Minister makes an order referred to in paragraph (17)(b) or subsection (18), the Minister shall publish in the Canada Gazette a notice of the making of the order.
Designation order
508. (1) Subject to subsection (2), the Minister may, by order, designate a foreign bank to be a designated foreign bank for the purposes of this Part if (a) the foreign bank is a bank according to the laws of the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business; (b) the foreign bank engages, directly or indirectly, in the business of providing financial services and employs, to identify or describe its business, a name that includes the word ‘‘bank’’, ‘‘banque’’, ‘‘banking’’ or ‘‘bancaire’’, either alone or in combination with other words, or any word or words in any language other than English or French corresponding generally thereto;
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(c) the foreign bank, in the opinion of the Minister, after consultation with the Superintendent, is regulated as or like a bank, according to the jurisdiction under whose laws it was incorporated or in any jurisdiction in which it carries on business; or (d) the foreign bank is not a foreign bank described in any of paragraphs (a) to (c) and one of the following conditions is met: (i) subject to the regulations, the following ratio, expressed as a percentage, is equal to or greater than the prescribed material percentage: the value of the total assets of foreign banks described in any of paragraphs (a) to (c) that are associated with the foreign bank to the value of the total assets of the foreign bank and entities associated with the foreign bank, or (ii) subject to the regulations, the following ratio, expressed as a percentage, is equal to or greater than the prescribed material percentage: the value of the total revenues of foreign banks described in any of paragraphs (a) to (c) that are associated with the foreign bank to the value of the total revenues of the foreign bank and entities associated with the foreign bank.
Restriction
(2) The Minister may only make an order under subsection (1) in respect of a foreign bank described in any of paragraphs (1)(a) to (c) if (a) the foreign bank or an entity controlled by the foreign bank is or will be (i) engaging in or carrying on business in Canada, other than holding, managing or otherwise dealing with real property, (ii) maintaining a branch in Canada, other than an office referred to in section 522, (iii) establishing, maintaining or acquiring for use in Canada an automated banking machine, a remote service unit or a similar automated service, or, in
Institutions f Canada, accepting data from such a machine, unit or service other than in circumstances described in section 511 or 512, (iv) acquiring or holding control of, or a substantial investment in, a Canadian entity, or (v) acquiring or holding any share or ownership interest in a Canadian entity and (A) an entity associated with the foreign bank holds control of, or a substantial investment in, the Canadian entity, or (B) an entity associated with the foreign bank and one or more other entities associated with the foreign bank would, if they were one person, hold control of, or a substantial investment in, the Canadian entity; or (b) the foreign bank is controlled by an individual and (i) one of the following conditions is met: (A) subject to the regulations, the following ratio, expressed as a percentage, is equal to or greater than the prescribed material percentage: the value of the total assets of the foreign bank and other foreign banks described in any of paragraphs (1)(a) to (c) that are associated with the foreign bank to the value of the total assets of the foreign bank and entities associated with the foreign bank, or (B) subject to the regulations, the following ratio, expressed as a percentage, is equal to or greater than the prescribed material percentage: the value of the total revenues of the foreign bank and other foreign banks described in any of paragraphs (1)(a) to (c) that are associated with the foreign bank to the value of the total revenues of the foreign bank and entities associated with the foreign bank, and
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Subsections 507(4) to (7) do not apply
(2.1) Subsections 507(4) to (7) do not apply with respect to the making of any determination relating to control or a substantial investment for the purposes of paragraph (2)(a).
Deeming
(3) A foreign bank that was designated under subsection 521(1.06) as that subsection read immediately before the coming into force of this subsection and whose designation has not been revoked is deemed to be the subject of a designation order.
Exemption order
509. (1) The Minister may, by order, determine that this Part, other than this section, sections 507 and 508, subsection 522.25(3), sections 522.26 and 522.28, subsection 522.29(2) and section 522.3, does not apply to a foreign bank.
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Restriction
(2) No order may be made under subsection (1) in respect of a designated foreign bank or a foreign bank that is associated with a designated foreign bank.
Deemed order
(3) An exemption order is deemed to have been made on the coming into force of this subsection in respect of a foreign bank if, immediately before the coming into force of this subsection, the foreign bank had received consent under subsection 521(1), the consent had not been revoked and the foreign bank or an entity associated with it was not designated under subsection 521(1.06), as those subsections read immediately before the coming into force of this subsection.
Change in circumstances
(4) A foreign bank that is the subject of an exemption order shall advise the Minister in writing of any change in circumstances that may affect its eligibility for a designation order.
Revocation of order
(5) An exemption order in respect of a foreign bank is deemed to be revoked if the foreign bank, or another foreign bank that is an entity associated with the foreign bank, is a designated foreign bank. The Minister may revoke an exemption order in respect of a foreign bank if the conditions for designation set out in section 508 are met by the foreign bank or by another foreign bank that is an entity associated with the foreign bank.
Effect of exemption order on associated entities
(6) This Part, other than this section, sections 507 and 508, subsection 522.25(3), sections 522.26 and 522.28, subsection 522.29(2) and section 522.3, does not apply to an entity associated with a foreign bank that is the subject of an exemption order.
Authorization
(7) If an exemption order in respect of a foreign bank is revoked or deemed to be revoked under subsection (5), the Minister may, by order, authorize the foreign bank and any entity associated with it to continue to hold control of, or a substantial investment in, a Canadian entity that the foreign bank or the entity associated with the foreign bank would not otherwise be allowed to continue to hold under Division 3 or 4 or to continue to engage in any activities or to engage in or carry on any business or to maintain a branch that the
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foreign bank or the entity associated with the foreign bank would not otherwise be allowed to continue to engage in or carry on or maintain under Division 3 or 4. Non-application re federal institutions associated with a foreign bank
509.1 Subsection 510(1) does not apply to (a) an entity referred to in any of paragraphs 468(1)(a) to (f) that is an entity associated with a foreign bank; or (b) a Canadian entity that an entity referred to in paragraph (a) controls, or in which such an entity has a substantial investment.
DIVISION 2 GENERAL PROHIBITIONS AND EXCEPTIONS Prohibited activities
510. (1) Except as permitted by this Part, a foreign bank or an entity associated with a foreign bank shall not (a) in Canada, engage in or carry on (i) any business that a bank is permitted to engage in or carry on under this Act, or (ii) any other business; (b) maintain a branch in Canada for any purpose; (c) establish, maintain or acquire for use in Canada an automated banking machine, a remote service unit or a similar automated service, or in Canada accept data from such a machine, unit or service; or (d) acquire or hold control of, or a substantial investment in, a Canadian entity.
Deeming re acts of agent, etc. — foreign banks
(2) For the purposes of this Part, a foreign bank is deemed to be carrying out or to have carried out anything prohibited by subsection (1) if it is carried out by a nominee or agent of the foreign bank acting as such.
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Deeming re acts of agent, etc. — associated entities
(3) For the purposes of this Part, an entity associated with a foreign bank is deemed to be carrying out or to have carried out anything prohibited by subsection (1) if it is carried out by a nominee or agent of the entity associated with the foreign bank acting as such.
Exception re accessing accounts
511. Nothing in paragraphs 510(1)(a) to (c) is to be construed as prohibiting a foreign bank or an entity associated with a foreign bank from entering into an arrangement with one or more Canadian financial institutions by which customers of the foreign bank or the entity who are natural persons not ordinarily resident in Canada may access in Canada their accounts located outside Canada through the use of automated banking machines located in Canada and operated by the Canadian financial institution or institutions.
Exception re quotations
512. Nothing in paragraphs 510(1)(a) to (c) is to be construed as prohibiting a foreign bank or an entity associated with a foreign bank from establishing, maintaining or using a private telephone service or similar facility for the purpose of quoting to customers in Canada, or entering with customers in Canada into verbal agreements relating to, foreign exchange, deposit or loan rates if there is no accounting or information processing involved in the private telephone service or similar facility.
Exception re automated services
513. (1) A foreign bank, or an entity associated with a foreign bank, that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of dealing in securities or the business of a cooperative credit society may (a) if it is a foreign securities dealer that has also received the approval of the Minister under paragraph 522.22(1)(i), engage in the activities referred to in paragraph 510(1)(c) so long as they relate to its business of dealing in securities engaged in or carried on by it in accordance with provincial laws relating to securities dealing; and (b) if it is a foreign cooperative credit society, engage in the activities referred to in paragraph 510(1)(c) so long as they relate to its business as a cooperative credit
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society engaged in or carried on by it in accordance with provincial laws relating to cooperative credit societies.
Non-application
(2) Paragraph 510(1)(c) does not apply to (a) a Canadian entity referred to in any of paragraphs 468(1)(g) to (i); (b) a prescribed Canadian entity, other than a permitted Canadian entity, that is controlled by a Canadian entity referred to in paragraph (a); or (c) any other Canadian entity, other than a limited commercial entity, that is acquired or held by a foreign bank or an entity associated with a foreign bank in accordance with Divisions 4 and 5, and that has received the approval of the Minister under paragraph 522.22(1)(i).
Exception re real property holding and management
514. Except as may be prescribed, paragraphs 510(1)(a) and (b) do not apply in respect of the holding, managing and other dealing with real property in Canada by a foreign bank or an entity associated with a foreign bank.
Non-application re Canadian entity associated with a foreign bank
515. Paragraphs 510(1)(a) and (b) do not apply to a Canadian entity that is an entity associated with a foreign bank and that is held or acquired in accordance with this Part.
Change of status
516. (1) If a foreign bank maintains a branch or engages in or carries on business in Canada that it maintained or engaged in or carried on before becoming a foreign bank and that branch or business is not permitted by or under this Part, the foreign bank may continue to maintain that branch or engage in or carry on that business for a period of six months from the time it became a foreign bank or for any other shorter period that may be specified or approved by the Minister.
Change of status
(2) If a foreign bank holds control of or holds a substantial investment in a Canadian entity and it did so before becoming a foreign bank and that holding is not permitted by or under this Part, the foreign bank may continue
Institutions f to hold control of, or a substantial investment in, the Canadian entity for a period of six months from the time it became a foreign bank or for any other shorter period that may be specified or approved by the Minister.
Change of status
517. (1) If an entity associated with a foreign bank maintains a branch or engages in or carries on business in Canada that it maintained or engaged in or carried on before the foreign bank became a foreign bank and that branch or business is not permitted by or under this Part, the entity may continue to maintain that branch or engage in or carry on that business for a period of six months from the time the foreign bank became a foreign bank or for any other shorter period that may be specified or approved by the Minister.
Change of status
(2) If an entity associated with a foreign bank holds control of or holds a substantial investment in a Canadian entity and it did so before the foreign bank became a foreign bank and that holding is not permitted by or under this Part, the entity may continue to hold control of, or a substantial investment in, the Canadian entity for a period of six months from the time the foreign bank became a foreign bank or for any other shorter period that may be specified or approved by the Minister.
Restriction
517.1 If an order has been made under subsection 973.1(1) in respect of a foreign bank or an entity associated with a foreign bank and section 516 applies to the foreign bank or section 517 applies to the entity, as the case may be, the period under section 516 or 517 may not extend beyond the expiry of the period referred to in the order made under subsection 973.1(1).
Prohibition re guarantee and acceptance of securities and bills
518. (1) Subject to subsections (2) to (4), (a) a foreign bank shall not guarantee any securities or accept any bills of exchange or depository bills that are issued by a person resident in Canada and that are intended by the issuer or by any party to the security or bill to be sold or traded in Canada; and
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(b) no person shall participate in any arrangement in connection with a guarantee or acceptance prohibited by paragraph (a). Exception
(2) Subsection (1) does not apply in respect of the guarantee or acceptance by a foreign bank of securities, bills of exchange or depository bills that are issued by (a) a non-bank affiliate of the foreign bank; (b) any other person resident in Canada and guaranteed or accepted by (i) a bank that is a subsidiary of the foreign bank or of an entity associated with the foreign bank, (ii) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i) in which a bank that is a subsidiary of the foreign bank, or of an entity associated with the foreign bank, holds a substantial investment, (iii) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i) that is controlled by a bank that is a subsidiary of the foreign bank, or of an entity associated with the foreign bank, (iv) a Canadian entity referred to in any of paragraphs 468(1)(b) to (i) that is a non-bank affiliate of the foreign bank, or (v) a prescribed entity; (c) a bank that is a subsidiary of the foreign bank or of an entity associated with the foreign bank; (d) a Canadian entity in which a bank that is a subsidiary of the foreign bank, or of an entity associated with the foreign bank, holds a substantial investment; (e) a Canadian entity controlled by a bank that is a subsidiary of the foreign bank or of an entity associated with the foreign bank; or (f) a prescribed entity.
Exception
(3) Subsection (1) does not apply in respect of (a) the business in Canada of an authorized foreign bank; or
Institutions f (b) a foreign insurance company in relation to its insurance business in Canada.
Exception
(4) Despite subsection (1), a foreign bank, or an entity associated with a foreign bank, that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of dealing in securities or the business of a cooperative credit society may (a) if it is a foreign securities dealer, guarantee any securities or accept any bills of exchange or depository bills in relation to its business of dealing in securities engaged in or carried on by it in accordance with provincial laws relating to securities dealing; and (b) if it is a foreign cooperative credit society, guarantee any securities or accept any bills of exchange or depository bills in relation to its business as a cooperative credit society engaged in or carried on by it in accordance with provincial laws relating to cooperative credit societies.
Prohibited activities — non-bank affiliates
519. (1) Despite anything in this Part, but subject to subsection (5) and section 509, a non-bank affiliate of a foreign bank shall not, in Canada, (a) engage in the business of accepting deposit liabilities; (b) engage in the business of acting as an agent for the acceptance of deposit liabilities for a foreign bank or an entity associated with a foreign bank, other than for (i) an authorized foreign bank, (ii) a foreign cooperative credit society that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of a cooperative credit society, or (iii) an entity referred to in any of paragraphs 468(1)(a), (c), (d) and (h) or a trust or loan corporation referred to in paragraph 468(1)(g); or
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(c) represent to the public that any instrument issued by it is a deposit or that any liability incurred by it is a deposit. Disclosure of status
(2) Despite anything in this Part, but subject to subsections (4) to (6) and section 509, a non-bank affiliate of a foreign bank that carries on as part of its business the provision of financial services shall not borrow money in Canada from the public without disclosing that (a) the non-bank affiliate is not a member institution of the Canada Deposit Insurance Corporation; (b) the liability incurred by the non-bank affiliate through the borrowing is not a deposit; and (c) the non-bank affiliate is not regulated as a financial institution in Canada.
Manner of disclosure
(3) The disclosure shall be (a) in a prospectus, information circular or other offering document or a similar document related to the borrowing or, if there is no such document, in a statement delivered to the lender; or (b) in any other manner that may be prescribed.
Exception for certain borrowing
(4) Subsection (2) does not apply (a) to a borrowing of a prescribed class or type or to a borrowing in prescribed circumstances or in a prescribed manner; or (b) except as may be provided in any regulations, to a borrowing (i) from a person in an amount of $150,000 or more, or (ii) through the issue of instruments in denominations of $150,000 or more.
Exception deposit-taking institutions
(5) Subsections (1) and (2) do not apply to a non-bank affiliate that is (a) a trust or loan corporation incorporated under an Act of Parliament or of the legislature of a province; (b) a Canadian entity referred to in paragraph 468(1)(d) or (h); or
Institutions f (c) a prescribed entity.
Exception — insurance company or securities dealer
(6) Subsection (2) does not apply if the non-bank affiliate is (a) an insurance company incorporated under an Act of Parliament or of the legislature of a province; (b) a bank holding company or an insurance holding company; (c) an entity controlled by a bank holding company or an insurance holding company or in which a bank holding company or an insurance holding company has a substantial investment; (d) a financial institution referred to in paragraph (g) of the definition ‘‘financial institution’’ in section 2; or (e) a prescribed entity.
Prohibition re deposits
520. (1) Despite anything in this Part, but subject to subsection (5) and section 509, a foreign bank — or an entity that is associated with a foreign bank and that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province — shall not, as part of its business in Canada, (a) engage in the business of accepting deposit liabilities; (b) engage in the business of acting as an agent for the acceptance of deposit liabilities for a foreign bank or an entity associated with a foreign bank, other than for (i) an authorized foreign bank, (ii) a foreign cooperative credit society that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of a cooperative credit society, or (iii) an entity referred to in any of paragraphs 468(1)(a), (c), (d) and (h) or a trust or loan corporation referred to in paragraph 468(1)(g); or
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(c) represent to the public that any instrument issued by it is a deposit or that any liability incurred by it is a deposit. Disclosure of status
(2) Despite anything in this Part, but subject to subsections (4) to (6) and section 509, a foreign bank or entity referred to in subsection (1) that carries on, as part of its business in Canada, the provision of financial services shall not borrow money in Canada from the public without disclosing that (a) the foreign bank or entity is not a member institution of the Canada Deposit Insurance Corporation; (b) the liability incurred through the borrowing is not a deposit; and (c) the foreign bank or entity is not regulated as a financial institution in Canada.
Manner of disclosure
(3) The disclosure shall be (a) in a prospectus, information circular or other offering document or a similar document related to the borrowing or, if there is no such document, in a statement delivered to the lender; or (b) in any other manner that may be prescribed.
Exception for certain borrowing
(4) Subsection (2) does not apply (a) to a borrowing of a prescribed class or type or to a borrowing in prescribed circumstances or in a prescribed manner; or (b) except as may be provided in any regulations, to a borrowing (i) from a person in an amount of $150,000 or more, or (ii) through the issue of instruments in denominations of $150,000 or more.
Non-applicatition — authorized foreign banks and foreign cooperative credit societies
(5) Subsections (1) and (2) do not apply to
Institutions f (a) a foreign bank that is an authorized foreign bank; or (b) a foreign cooperative credit society that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of a cooperative credit society.
Non-application foreign insurance company or securities dealer
(6) Subsection (2) does not apply to a foreign bank, or an entity associated with a foreign bank, that is (a) a foreign insurance company; or (b) a foreign securities dealer that has received the approval of the Minister under paragraph 522.22(1)(f) to engage in or carry on the business of dealing in securities.
Regulations
Permitted Canadian offices
521. The Governor in Council may make regulations exempting any class or classes of businesses, investments, activities and branches from any of the prohibitions set out in section 510 or 518. 522. A foreign bank may (a) with the approval of the Superintendent and (i) subject to any terms and conditions that are attached to the approval, and (ii) subject to and in accordance with rules that are prescribed in relation to the operation of representative offices and the conduct of their personnel, maintain representative offices in Canada that are registered with the Superintendent in the prescribed manner; and (b) with the approval of the Governor in Council and subject to any terms and conditions that are attached to the approval, locate its head office in Canada and, from that office, issue directions and do all other things reasonably necessary for the conduct of its banking business outside Canada.
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Examination of representative offices
522.01 (1) The Superintendent shall, from time to time, make or cause to be made any examination and inquiry into the operation of any representative office of a foreign bank and the conduct of the personnel in that office that the Superintendent considers necessary for the purpose of ascertaining whether the office is being operated, and whether the personnel of the office are conducting themselves, in accordance with the rules prescribed for the purposes of paragraph 522(a).
Powers of Superintendent
(2) For the purposes of subsection (1), the Superintendent and any person acting under the direction of the Superintendent have the same powers and obligations that the Superintendent has in relation to the examination of banks under this Act.
Cancellation of registration
522.02 The Superintendent may, by order, cancel the registration of a representative office of a foreign bank if (a) the foreign bank requests the Superintendent to cancel the registration; or (b) the Superintendent is of the opinion that the representative office is not being operated, or the personnel of that office are not conducting themselves, in accordance with the rules prescribed for the purposes of paragraph 522(a).
Business conducted from head office in Canada
522.03 (1) Subject to subsections (2) and (3), if the head office of a foreign bank is located in Canada under paragraph 522(b), the foreign bank shall not conduct any business from that office with persons resident in Canada or with Her Majesty in right of Canada or a province except for the purpose of acquiring premises, supplies, services and staff for that office.
Exception
(2) If a foreign bank, immediately before the establishment of its head office in Canada under paragraph 522(b), held deposits of, or had loans outstanding to, persons resident in Canada or Her Majesty in right of Canada or a province, the foreign bank may repay those deposits and collect those loans through the head office in Canada.
2001 Exception
Institutions f (3) If a foreign bank controlled a bank or was a major shareholder of a bank immediately before the establishment of the foreign bank’s head office in Canada under paragraph 522(b), the foreign bank may continue to carry out from the head office in Canada any activities that were carried out from the head office of the foreign bank in relation to the bank before the establishment of the head office in Canada. DIVISION 3 NO FINANCIAL ESTABLISHMENT IN CANADA
Permitted investment — foreign bank
522.04 (1) A foreign bank that does not have a financial establishment in Canada may acquire or hold control of, or a substantial investment in, a Canadian entity, so long as, by virtue of the acquisition, neither the foreign bank nor any entity associated with the foreign bank controls or becomes a major owner of (a) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i); or (b) a Canadian entity that is a financial services entity.
Permitted investment — associated entity
(2) An entity that is associated with a foreign bank and that does not have a financial establishment in Canada may acquire or hold control of, or a substantial investment in, a Canadian entity, so long as, by virtue of the acquisition, neither the entity nor the foreign bank, nor any other entity associated with the foreign bank, controls or becomes a major owner of (a) a Canadian entity referred to in any of paragraphs 468(1)(a) to (i); or (b) a Canadian entity that is a financial services entity.
Permitted Canadian commercial branch
522.05 A foreign bank, or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province and that is associated with a foreign bank, that does not have a financial establishment in Canada may maintain a branch in Canada or engage in or carry on business in Canada so long as less than
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(a) the prescribed portion — or if no portion is prescribed, 10 per cent — of its business in Canada, determined in the prescribed manner, consists of one or more of the activities referred to in any of paragraphs (a) to (g) of the definition ‘‘financial services entity’’ in subsection 507(1); and (b) the prescribed portion — or if no portion is prescribed, 10 per cent — of its business outside Canada, determined in the prescribed manner, consists of one or more activities referred to in any of (i) paragraphs (a) to (g) of the definition ‘‘financial services entity’’ in subsection 507(1), and (ii) paragraph (h) of that definition, except under prescribed circumstances.
Permitted branches re leasing
522.06 Despite section 522.05, a foreign bank, or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province and that is associated with a foreign bank, that does not have a financial establishment in Canada and that outside Canada (a) engages only in the activities referred to in the definition ‘‘leasing entity’’ in subsection 507(1), or (b) engages only in activities other than those referred to in any of (i) paragraphs (a) to (g) of the definition ‘‘financial services entity’’ in subsection 507(1), and (ii) paragraph (h) of that definition, except under prescribed circumstances, may in Canada engage in the activities of a leasing entity so long as it does not engage in any other activity in Canada.
Institutions f DIVISION 4 FINANCIAL ESTABLISHMENT IN CANADA Investments
Investment in a financial institution
522.07 Subject to the requirements relating to designation and approval set out in Division 5, a foreign bank or an entity associated with a foreign bank may acquire or hold control of, or a substantial investment in, a Canadian entity referred to in any of paragraphs 468(1)(a) to (i).
Permitted investments
522.08 (1) Subject to subsection (2) and the requirements relating to designation and approval set out in Division 5, a foreign bank or an entity associated with a foreign bank may acquire or hold control of, or a substantial investment in, a Canadian entity, other than an entity referred to in paragraphs 468(1)(a) to (i), whose business is limited to one or more of the following: (a) engaging in (i) any financial service activity that a bank is permitted to engage in under any of paragraphs 409(2)(a) to (d), or (ii) any other activity that a bank is permitted to engage in under section 410 or 411; (b) acquiring or holding shares of, or ownership interests in, entities that a foreign bank or an entity associated with a foreign bank is permitted to acquire or hold under this Division or Division 8, other than limited commercial entities, except in prescribed circumstances, including shares or ownership interests acquired or held in accordance with regulations made under paragraph 522.23(a) concerning specialized financing; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the Canadian entity is providing those services to the foreign bank or to any member of the foreign bank’s group, namely, (i) the foreign bank,
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Financial In (ii) any member of the foreign bank’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any entity in which an entity referred to in subparagraph (iii) has a substantial investment and that is (A) an entity in which a bank is permitted to acquire a substantial investment under section 468, (B) an entity in which a foreign bank or an entity associated with a foreign bank is permitted to acquire a substantial investment under this section and section 522.07, or (C) a prescribed entity, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed;
(d) engaging in any activity that a bank is permitted to engage in — or in any other prescribed activity —, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the foreign bank or by any member of the foreign bank’s group, or (ii) if a significant portion of the business of the Canadian entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’, ‘‘mutual fund distribution entity’’ or ‘‘real property brokerage entity’’ in subsection 464(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
2001 Additional restriction
Institutions f (2) A foreign bank or an entity associated with a foreign bank may not acquire or hold control of, or a substantial investment in, a Canadian entity whose business includes any activity referred to in any of paragraphs (1)(a) to (e) if the activities of the Canadian entity include (a) activities that a bank is not permitted to engage in under section 412, 417 or 418; (b) dealing in securities, except as may be permitted under paragraph (1)(e) or as may be permitted to a bank under paragraph 409(2)(c); (c) activities that a bank is not permitted to engage in under section 416, if the Canadian entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring or holding control of, or a substantial investment in, another Canadian entity unless (i) in the case of a Canadian entity that is controlled by the foreign bank or the entity associated with a foreign bank, the foreign bank or the entity associated with a foreign bank itself would be permitted to acquire or hold control of, or a substantial investment in, the other Canadian entity under this section, section 522.07, any of paragraphs 522.1(a) to (d) or Division 8, or (ii) in the case of a Canadian entity that is not controlled by the foreign bank or the entity associated with a foreign bank, the foreign bank or the entity associated with a foreign bank itself would be permitted to acquire or hold control of, or a substantial investment in, the other Canadian entity under this section, section 522.07, paragraph 522.1(a), (c) or (d) or Division 8; or (e) any prescribed activity.
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522.09 Subject to the requirements relating to approval and designation set out in Division 5, a foreign bank or an entity associated with a foreign bank that has a financial establishment in Canada may acquire or hold control of, or a substantial investment in, a Canadian entity that is not (a) an entity referred to in any of paragraphs 468(1)(a) to (i), or (b) a Canadian entity that engages in more than the prescribed portion of — or if no portion is prescribed, 10 per cent of — the activities referred to in paragraphs 522.08(1)(a) to (f) or in any of paragraphs (a) to (h) of the definition ‘‘financial services entity’’ in subsection 507(1), determined in the prescribed manner, if the Canadian entity does not engage in any leasing activities and, in the opinion of the Minister, engages in or carries on business that is the same as, or similar, related or incidental to, the business outside Canada of the foreign bank or the entity associated with a foreign bank.
Acquisition of other investments
522.1 A foreign bank or an entity associated with a foreign bank may acquire or hold control of, or a substantial investment in, a Canadian entity (a) by way of an investment permitted by any of sections 522.11 to 522.13; (b) by way of a temporary investment permitted by section 522.14; (c) as a result of a default that has occurred under the terms of an agreement with respect to a loan or under any other documents governing the terms of a loan, as permitted by section 522.15; or (d) through a realization of security, as permitted by section 522.15.
Indirect investments through federal institutions
522.11 (1) A foreign bank or an entity associated with a foreign bank may acquire or hold control of, or a substantial investment in, a Canadian entity by way of
Institutions f (a) an acquisition or holding of the control of a Canadian entity referred to in any of paragraphs 468(1)(a) to (f), or of a prescribed Canadian entity, that controls or has a substantial investment in the Canadian entity; or (b) an acquisition or holding of shares or ownership interests in the Canadian entity by (i) a Canadian entity referred to in any of paragraphs 468(1)(a) to (f), or a prescribed Canadian entity, that is controlled by the foreign bank or the entity associated with the foreign bank, or (ii) a Canadian entity controlled by a Canadian entity referred to in subparagraph (i).
Indirect investments through federal institutions
(2) If a foreign bank or an entity associated with a foreign bank acquires or holds control of, or a substantial investment in, a Canadian entity under subsection (1), none of the requirements relating to designation and approval set out in Division 5 apply in respect of that acquisition or holding.
Investments through provincial institutions
522.12 An entity that is associated with a foreign bank and that is (a) an entity referred to in any of paragraphs 468(1)(g) to (i), or (b) a Canadian entity controlled by an entity referred to in any of paragraphs 468(1)(g) to (i) may acquire or hold control of, or a substantial investment in, a Canadian entity that is not a permitted Canadian entity or an entity referred to in paragraphs 468(1)(a) to (i), and if it does so, none of the requirements relating to approval set out in Division 5 apply in respect of that acquisition or holding.
Indirect investments through provincial institutions
522.13 A foreign bank or an entity associated with a foreign bank may acquire or hold control of, or a substantial investment in, a Canadian entity, other than a permitted Canadian entity or a Canadian entity referred to in any of paragraphs 468(1)(a) to (i), by way of
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(a) an acquisition or holding of the control of a Canadian entity referred to in any of paragraphs 468(1)(g) to (i), or of a prescribed Canadian entity, that controls or has a substantial investment in the Canadian entity; or (b) an acquisition or holding of shares or ownership interests in the Canadian entity by (i) a Canadian entity referred to in any of paragraphs 468(1)(g) to (i), or a prescribed Canadian entity, that is controlled by the foreign bank or the entity associated with the foreign bank, or (ii) a Canadian entity controlled by a Canadian entity referred to in subparagraph (i). Temporary investments
522.14 (1) Subject to the requirements relating to designation set out in Division 5, a foreign bank or an entity associated with a foreign bank may, by way of temporary investment, acquire or hold control of, or a substantial investment in, a Canadian entity if the foreign bank or the entity associated with a foreign bank has a financial establishment in Canada or would, by virtue of the temporary investment, have a financial establishment in Canada.
Divestiture
(2) If subsection (1) applies in respect of a foreign bank or an entity associated with a foreign bank, the foreign bank or entity shall do all things necessary to ensure that, within two years after acquiring the control or the substantial investment or within any other period that may be specified or approved by the Minister, it no longer controls or has a substantial investment in the entity.
Extension
(3) On application by a foreign bank, or an entity associated with a foreign bank, the Minister may extend the period referred to in subsection (2) by any further period or periods.
Exception
(4) When a foreign bank, or an entity associated with a foreign bank, acquires or holds, by way of a temporary investment, control of, or a substantial investment in, a Canadian entity for which the approval of the Minister is required under this Part, the
Institutions f foreign bank or entity associated with the foreign bank shall, within 90 days after acquiring control, or after acquiring the substantial investment, (a) apply to the Minister for approval to retain control of the Canadian entity or to continue to hold the substantial investment in the Canadian entity for a period specified by the Minister or for an indeterminate period; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the Canadian entity or holds a substantial investment in the Canadian entity.
Deemed temporary investment
(5) If a foreign bank or an entity associated with a foreign bank holds control of, or a substantial investment in, a Canadian entity as permitted by this Division and the foreign bank or the entity associated with the foreign bank becomes aware of a change in the business, affairs or activities of the Canadian entity that, if the change had taken place before the acquisition of control or the substantial investment, would have caused the entity not to be a limited commercial entity or a Canadian entity referred to in section 522.07 or 522.08 or would have been such that approval for the acquisition would have been required under any of paragraphs 522.22(1)(a) to (e) or (g), the foreign bank or the entity associated with the foreign bank is deemed to have acquired, on the day it becomes aware of the change, a temporary investment in respect of which subsections (1) to (4) apply.
Notification
(6) Within 90 days after acquiring control or a substantial investment under subsection (1) or (5), a foreign bank or an entity associated with a foreign bank shall notify the Minister in writing of the acquisition.
Acquisition by loan workout or realization of security
522.15 (1) If a foreign bank or an entity associated with a foreign bank acquires or holds control of, or a substantial investment in, a Canadian entity (a) as a result of a default that has occurred under the terms of an agreement with respect to a loan made between the foreign
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bank — or the entity associated with a foreign bank — and the Canadian entity, or under any other documents governing the terms of the loan, or (b) through the realization of a security interest for any loan or advance made by the foreign bank or the entity associated with the foreign bank, or for any other debt or liability owing to it, it may retain the control or the substantial investment for five years, but it shall do all things necessary to ensure that, within five years after the acquisition, it no longer controls the Canadian entity or holds a substantial investment in the Canadian entity. Extension
(2) On application by a foreign bank or an entity associated with a foreign bank, the Minister may extend the period referred to in subsection (1) by any further period or periods.
Exception
(3) If, under subsection (1), a foreign bank or an entity associated with a foreign bank acquires or holds control of, or a substantial investment in, a Canadian entity for which the approval of the Minister is required under Division 5, the foreign bank or entity associated with the foreign bank may retain control of the Canadian entity, or continue to hold the substantial investment, for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (1) or of any extension granted under subsection (2). Branches
Bank branches
522.16 A foreign bank may, under Part XII.1, maintain a branch in Canada to carry on business in Canada.
Insurance branches
522.17 A foreign bank, or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province and that is associated with a foreign bank may obtain an order under Part XIII of the Insurance Companies Act to insure, in Canada, risks.
2001 Business of a cooperative credit society and dealing in securities
Institutions f 522.18 Subject to the requirements relating to designation and approval set out in Division 5, a foreign bank — or an entity associated with a foreign bank — (a) that is a foreign cooperative credit society may, in Canada, engage in or carry on the business of a cooperative credit society, so long as that business is engaged in or carried on in accordance with provincial laws relating to cooperative credit societies; or (b) that is a foreign securities dealer may, in Canada, engage in or carry on the business of dealing in securities, so long as that business is engaged in or carried on in accordance with provincial laws relating to securities dealing.
Limited commercial branches
522.19 (1) Subject to the requirements relating to designation and approval in Division 5 and subject to subsection (2), a foreign bank, or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province and that is associated with a foreign bank, that has a financial establishment in Canada may maintain a branch in Canada or engage in or carry on business in Canada, so long as (a) less than the prescribed portion — or if no portion is prescribed, 10 per cent — of its business in Canada, determined in the prescribed manner, consists of one or more of the activities referred to in any of (i) paragraphs 522.08(1)(a) to (f), and (ii) paragraphs (a) to (g) of the definition ‘‘financial services entity’’ in subsection 507(1); (b) less than the prescribed portion — or if no portion is prescribed, 10 per cent — of its business outside Canada, determined in the prescribed manner, consists of one or more of the activities referred to in any of (i) paragraphs 522.08(1)(a) to (f), (ii) paragraphs (a) to (g) of the definition ‘‘financial services entity’’ in subsection 507(1), and
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(c) in the opinion of the Minister, the business in Canada is the same as, or similar, related or incidental to, the business outside Canada of the foreign bank or the entity associated with a foreign bank.
Prohibition
(2) A foreign bank — or an entity associated with a foreign bank — that maintains a branch or engages in or carries on any business under subsection (1) may not in Canada engage in any leasing activities. DIVISION 5 DESIGNATION AND APPROVALS
Non-application
522.2 This Division does not apply in respect of investments acquired and held, branches maintained and businesses engaged in or carried on in accordance with Division 3.
Obligation to be designated
522.21 (1) A foreign bank that does not have a financial establishment in Canada must be a designated foreign bank or be associated with a designated foreign bank in order to (a) acquire or hold control of, or be a major owner of, (i) an entity referred to in any of paragraphs 468(1)(g) to (i), (ii) a permitted Canadian entity that is a financial services entity, or (iii) a Canadian entity that is a financial services entity, by way of a temporary investment permitted by section 522.14; or (b) in Canada, engage in or carry on the business of dealing in securities or the business of a cooperative credit society referred to in section 522.18.
Entity associated with a designated foreign bank
Institutions f
(2) An entity that is associated with a foreign bank and that does not have a financial establishment in Canada must be associated with a designated foreign bank in order for the entity to (a) acquire or hold control of, or be a major owner of, (i) an entity referred to in any of paragraphs 468(1)(g) to (i), (ii) a permitted Canadian entity that is a financial services entity, or (iii) a Canadian entity that is a financial services entity, by way of a temporary investment permitted by section 522.14; or (b) in Canada, engage in or carry on the business of dealing in securities or the business of a cooperative credit society referred to in section 522.18.
Designated foreign bank that has a financial establishment in Canada
(3) A foreign bank that has a financial establishment in Canada must be a designated foreign bank or be associated with a designated foreign bank in order to (a) acquire or hold control of, or a substantial investment in, (i) an entity referred to in any of paragraphs 468(1)(g) to (i), (ii) a permitted Canadian entity, (iii) a Canadian entity, by way of a temporary investment permitted by section 522.14, or (iv) a limited commercial entity; (b) in Canada, engage in or carry on the business of dealing in securities or the business of a cooperative credit society referred to in section 522.18; or
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(c) maintain a branch or engage in or carry on a business permitted by section 522.19.
Entity associated with designated foreign bank that has a financial establishment in Canada
(4) An entity that is associated with a foreign bank and that has a financial establishment in Canada must be an entity associated with a foreign bank that is a designated foreign bank in order for the entity to (a) acquire or hold control of, or a substantial investment in, (i) an entity referred to in any of paragraphs 468(1)(g) to (i), (ii) a permitted Canadian entity, (iii) a Canadian entity, by way of a temporary investment permitted by section 522.14, or (iv) a limited commercial entity; (b) in Canada, engage in or carry on the business of dealing in securities or the business of a cooperative credit society referred to in section 522.18; or (c) maintain a branch or engage in or carry on a business permitted by section 522.19.
Minister’s approval
522.22 (1) Subject to subsection (2) and the regulations, a foreign bank or an entity associated with a foreign bank may not, without the prior written approval of the Minister, given by order, (a) acquire control of a Canadian entity referred to in any of paragraphs 468(1)(g) to (i) from a person who is not a member of the foreign bank’s group; (b) acquire control of a Canadian entity whose business includes one or more of the activities referred to in paragraph 522.08(1)(a) and that engages, as part of its
Institutions f business, in any financial intermediary activity that exposes the Canadian entity to material market or credit risk — including a finance entity — if the control is acquired from an entity referred to in any of paragraphs 468(1)(a) to (f) that is not a member of the foreign bank’s group, but does not include a Canadian entity whose activities are limited to the activities of one or more of the following entities: (i) a factoring entity as defined in the regulations, or (ii) a financial leasing entity; (c) acquire or hold control of, or a substantial investment in, a Canadian entity whose business includes one or more of the activities referred to in paragraph 522.08(1)(d); (d) acquire or hold control of, or a substantial investment in, a Canadian entity that engages in an activity described in paragraph 410(1)(c) or (c.1); (e) acquire or hold control of, or a substantial investment in, a Canadian entity that engages in an activity prescribed for the purposes of paragraph 522.08(1)(f); (f) engage in or carry on the business of dealing in securities or the business of a cooperative credit society referred to in section 522.18; (g) acquire or hold control of, or a substantial investment in, a limited commercial entity; (h) maintain a branch or engage in or carry on a business permitted by section 522.19; or (i) engage in an activity referred to in paragraph 510(1)(c) in the circumstances described in paragraph 513(1)(a) or (2)(c).
Approval for indirect investments
(2) Subject to the regulations, if a foreign bank or an entity associated with a foreign bank (a) obtains the approval of the Minister under any of paragraphs (1)(a) to (e) and (g) to acquire or hold control of, or a substantial investment in, a Canadian entity, and
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(b) through that acquisition or holding, indirectly acquires control of, or a substantial investment in, another Canadian entity that would require the approval of the Minister under any of those paragraphs, and that indirect acquisition is disclosed to the Minister in writing before the approval is obtained, the foreign bank or the entity associated with a foreign bank is deemed to have obtained the approval of the Minister for that indirect acquisition. Ministerial approval of more than one entity
(3) If the Minister, under paragraph (1)(g), approves the acquisition or holding of control of, or a substantial investment in, a limited commercial entity by a foreign bank or by an entity associated with a foreign bank, the Minister may also authorize the foreign bank or entity associated with a foreign bank to, at any time, acquire and hold control of, or a substantial investment in, another limited commercial entity that engages in activities that are substantially the same as those engaged in by the Canadian entity in respect of which the approval was given.
Substantial investment by underwriter
(4) Nothing in this Part precludes a foreign bank or an entity associated with a foreign bank from acquiring a substantial investment in a Canadian entity if the substantial investment is acquired in the course of a distribution to the public of shares or ownership interests in the Canadian entity by a securities underwriter so long as the securities underwriter holds the substantial investment for no longer than six months.
DIVISION 6 ADMINISTRATION Regulations
522.23 The Governor in Council may make regulations for the purposes of this Part and, in particular, may make regulations (a) concerning specialized financing for the purposes of paragraph 522.08(1)(b); (b) for the purposes of subsection 522.22(1) or (2), permitting the acquisition or holding of control or the acquisition or holding of
Institutions f substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the foreign banks, entities associated with foreign banks or other entities in respect of which either of those subsections does not apply, including prescribing foreign banks, entities associated with foreign banks or other entities on the basis of the activities they engage in; (c) restricting the ownership by foreign banks, or entities associated with foreign banks, of shares in a body corporate or of ownership interests in an unincorporated entity under Division 3 or 4 and imposing terms and conditions applicable to foreign banks, or entities associated with foreign banks, that own such shares or interests; (d) in respect of sections 409 to 411, for the purposes of paragraph 522.08(1)(a), subsection 522.22(1) and section 522.24; (e) respecting the calculation referred to in paragraphs 508(1)(d) and (2)(b), including regulations respecting the classes of entities associated with the foreign bank, and the classes of foreign banks described in any of paragraphs 508(1)(a) to (c) that are associated with the foreign bank, that are to be taken into account in that calculation; (f) defining any terms in paragraphs 508(1)(d) and (2)(b); and (g) defining ‘‘factoring entity’’ for the purpose of paragraph 522.22(1)(b).
Application of regulations
522.24 Any regulations made for the purposes of sections 409 to 411 apply for the purposes of paragraph 522.08(1)(a) and subsection 522.22(1) unless otherwise provided in the regulations.
Divestiture
522.25 (1) If a foreign bank or an entity associated with a foreign bank contravenes any provision of Division 4 or fails to comply with any terms and conditions imposed by any order made for the purpose of any of those provisions, the Minister may, if the Minister considers it in the public interest to do so, by order, direct the foreign bank or the entity to
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divest itself of the control of, or a substantial investment in, a bank or bank holding company to which the offence relates. Ceasing to engage in or carry on business
(2) If an authorized foreign bank or an entity associated with an authorized foreign bank contravenes any provision of Division 4 or fails to comply with any terms and conditions imposed by any order made for the purpose of any of those provisions, the Minister may, if the Minister considers it in the public interest to do so, revoke the order made under subsection 524(1).
Divestment order
(3) The Minister may, by order, direct a foreign bank or an entity associated with a foreign bank, within any period that the Minister considers reasonable, to dispose of assets used in a business or activity engaged in or carried on, or to dispose of the control of an entity or a substantial investment in an entity acquired or held, in contravention of this Part or in contravention of any terms and conditions imposed (a) under subsection 522.26(2); or (b) under subsection 518(4) or 521(1.02), as it read immediately before the coming into force of this section.
Definition
522.26 (1) In this section and section 522.27, ‘‘decision’’ means a decision, an order, an approval, an extension or a permission of or by the Minister under this Part.
Ministerial terms and condition
(2) A decision may include any terms and conditions that the Minister considers appropriate.
Minister may vary or revoke
(3) The Minister may vary or revoke a previous decision.
Effective date of decision
(4) A decision varying or revoking a previous decision takes effect three months after the day it is made, or at any other time that is agreed to by the Minister and the foreign bank, or the entity associated with a foreign bank, to which the decision relates.
Publication
(5) The Minister shall publish in the Canada Gazette a notice of the making or revocation of a designation order or an exemption order.
2001 Statements and returns
Institutions f 522.27 Not later than six months after the end of its financial year or any other period that the Superintendent may specify, a foreign bank or an entity associated with a foreign bank in respect of which a decision has been made by the Minister shall, except to the extent that the Superintendent has exempted it in relation to any of the following, provide the Superintendent with (a) a copy of its financial statements and those of each non-bank affiliate of the foreign bank for the financial year; (b) a list, in a form satisfactory to the Superintendent, of businesses and activities engaged in or carried on by it under sections 514, 522.18 and 522.19; (c) a list, in a form satisfactory to the Superintendent, of each non-bank affiliate of the foreign bank, with a description of the nature of the business engaged in or carried on by it; and (d) any other information that may be prescribed for the purposes of this section. DIVISION 7 NON-APPLICATION OF INVESTMENT CANADA ACT
Investment Canada Act
522.28 The Investment Canada Act does not apply in respect of any of the following, whether it occurs directly or indirectly: (a) the acquisition of control, within the meaning of that Act, of an entity referred to in any of paragraphs 468(1)(a) to (f) by a foreign bank or by an entity associated with a foreign bank; (b) the establishment of a new Canadian business, within the meaning of that Act, that is the insurance business in Canada of a foreign insurance company that is a foreign bank that is the subject of an exemption order or that is an entity associated with a foreign bank that is the subject of an exemption order; (c) the acquisition of control, within the meaning of that Act, of a Canadian entity by an entity referred to in any of paragraphs 468(1)(a) to (f) that is controlled by a
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foreign bank or by an entity associated with a foreign bank; (d) the establishment of a new Canadian business, within the meaning of that Act, that is authorized by Division 4 by a foreign bank, or by an entity associated with a foreign bank; and (e) the acquisition of control, within the meaning of that Act, of a Canadian entity in accordance with Division 4 by a foreign bank, or by an entity associated with a foreign bank. DIVISION 8 TRANSITIONAL Definitions
522.29 (1) The following definitions apply in this Division.
‘‘affected entity’’ « entité visée »
‘‘affected entity’’ means (a) an entity associated with a foreign bank that is an affected foreign bank and that has a financial establishment in Canada; or (b) a prescribed entity associated with a foreign bank referred to in paragraph (c) of the definition ‘‘affected foreign bank’’.
‘‘affected foreign bank’’ « banque étran- gère visée »
‘‘affected foreign bank’’ means a foreign bank that (a) immediately before the day this Division comes into force, was the subject of an order made under subsection 524(1) or former subsection 521(1.06) and whose order has not been revoked; (b) on or before June 13, 2000, controlled a foreign bank subsidiary as defined in former section 2; or (c) for the purposes of subsections 522.32(6) and (7) is a prescribed foreign bank that meets any of the conditions for designation set out in any of paragraphs 508(1)(a) to (d).
Institutions f
Former provision
(2) Every reference in this Division to a former provision means a reference to that provision as it read immediately before the day this Division comes into force.
Former s. 507(4)
522.3 (1) Every order made under former subsection 507(4) exempting an entity from the status of being associated with a foreign bank or exempting a Canadian entity from being a ‘‘non-bank affiliate of a foreign bank’’ that is in force on the day this Division comes in force continues in force, subject to any further order that the Minister may make varying or revoking it.
Date order takes effect
(2) A revocation order or variation order takes effect three months after the date it is made unless the Minister and the entity to which it relates agree that the order is to take effect at another time.
Publication
(3) The Minister shall publish in the Canada Gazette a notice of every revocation order.
Former par. 518(3)(b) or s. 521(1)
522.31 Every order made under former paragraph 518(3)(b) or former subsection 521(1) that is in force on the day this Division comes into force continues in force, subject to any further order that the Minister may make varying or revoking it.
Former s. 521(1)
522.32 (1) An affected foreign bank or affected entity that had received consent under former subsection 521(1) to acquire or hold control of, or a substantial investment in, a Canadian entity that is a financial services entity but is not a permitted Canadian entity or an entity referred to in any of paragraphs 468(1)(a) to (i) may continue to hold control of, or a substantial investment in, the Canadian entity on and after the day this Division comes into force if the consent had not been revoked before that day.
Application
(2) Subsection (1) applies so long as (a) the Canadian entity restricts its businesses in accordance with any terms and conditions in the consent under former subsection 521(1), or in an undertaking to the Minister or Superintendent, other than a term or condition that limits the size of the Canadian entity’s assets; and
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(b) neither the affected foreign bank nor any affected entity in relation to the foreign bank (i) is an authorized foreign bank, or (ii) controls or is a major shareholder of a bank or a bank holding company. Former par. 518(3)(b) and former s. 521(1)
(3) An affected foreign bank or an affected entity that, immediately before the day this Division comes into force, holds control of, or a substantial investment in, a Canadian entity that is a permitted Canadian entity or an entity referred to in any of paragraphs 468(1)(g) to (i) by virtue of former paragraph 518(3)(b) or a consent received under former subsection 521(1) may continue to hold control of, or a substantial investment in, the Canadian entity on and after the day this Division comes into force if the approval or consent had not been revoked before that day and, if it does so, it is deemed to have received any approval required under paragraphs 522.22(1)(a) to (e) in respect of the Canadian entity.
Former par. 518(3)(b)
(4) An affected foreign bank or affected entity that, immediately before the day this Division comes into force, holds, by virtue of former paragraph 518(3)(b), control of, or a substantial investment in, a Canadian entity that is not a permitted Canadian entity or a financial services entity may continue to hold control of, or a substantial investment in, the Canadian entity on and after the day this Division comes into force if any approval of the Minister under that former paragraph has not been revoked before that day, so long as the Canadian entity does not engage in leasing activities.
Application
(5) Subsections (3) and (4) apply so long as (a) after the coming into force of this Division, the Canadian entity restricts its businesses in accordance with any terms and conditions in the Minister’s approval under former paragraph 518(3)(b), or in a consent received under former subsection 521(1), as the case may be, or in an undertaking to the Minister or Superintendent given before the day this Division comes into force, other than a term or condition that limits the size of the Canadian entity’s assets;
Institutions f (b) within one year after the coming into force of this Division, the affected foreign bank or affected entity discloses to the Minister the nature of its businesses and activities on June 13, 2000; and (c) after the coming into force of this Division, the Canadian entity does not change the nature of its businesses as of (i) June 13, 2000, or (ii) any other date after June 13, 2000 and before the coming into force of this Division on which the businesses of the Canadian entity were approved by the Minister.
Holding other than by virtue of former par. 518(3)(b) or s. 521(1)
Application
(6) An affected foreign bank or an affected entity that, immediately before the day this Division comes into force, holds, otherwise than by virtue of former paragraph 518(3)(b) or a consent received under former subsection 521(1), control of, or a substantial investment in, a Canadian entity that is not a permitted Canadian entity or a financial services entity may continue to hold control of, or a substantial investment in, the Canadian entity on and after the day this Division comes into force. (7) Subsection (6) applies so long as (a) within one year after the coming into force of this Division, the affected foreign bank or affected entity discloses to the Minister the nature of its businesses on June 13, 2000; (b) after the coming into force of this Division, the Canadian entity does not change the nature of its businesses as of June 13, 2000 and its businesses remain in conformity with former paragraph 518(3)(a); (c) the Canadian entity does not engage in leasing activities; and (d) neither the affected foreign bank nor any affected entity (i) is an authorized foreign bank, or (ii) controls or is a major shareholder of a bank or a bank holding company.
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522.33 (1) Despite section 517 and subject to subsection (2), paragraph 510(1)(d) does not apply in respect of the holding of control of, or a substantial investment in, a Canadian entity whose principal activity in Canada is an activity referred to in any of former subparagraphs 518(3)(a)(i) to (v) and that was acquired by a foreign bank or an entity associated with a foreign bank before August 1, 1997 and before (a) the foreign bank became a foreign bank or the foreign bank with which the entity is associated became a foreign bank, as the case may be; or (b) the Canadian entity’s principal activity in Canada became an activity described in those subparagraphs.
Restriction
(2) Subsection (1) applies only if the foreign bank or an entity associated with the foreign bank (a) is not an authorized foreign bank; and (b) does not control, and is not a major shareholder of, a bank or a bank holding company.
1999, c. 28, ss. 35(1) and (2)
133. (1) Subsection 524(3) of the Act is replaced by the following:
Reciprocal treatment
(3) The Minister may make an order only if the Minister is satisfied that, if the application is made by a non-WTO Member foreign bank, treatment as favourable for banks to which this Act applies exists or will be provided in the jurisdiction in which the authorized foreign bank principally carries on business, either directly or through a subsidiary.
1999, c. 28, s. 35(1)
(2) Paragraph 524(4)(b) of the Act is replaced by the following: (b) the applicant’s principal activity is the provision of (i) financial services, or (ii) services that would be permitted by this Act if they were provided by a bank in Canada. 134. The Act is amended by adding the following after section 524:
2001 Prohibition
Institutions f 524.1 No foreign bank may establish a branch in Canada to carry on business in Canada under this Part if the foreign bank or an entity affiliated with the foreign bank (a) has control of or has a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in; or (b) engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in.
Prohibition
524.2 No authorized foreign bank and no entity affiliated with an authorized foreign bank may (a) control or have a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in; or (b) engage in Canada in any personal property leasing activity that a financial leasing entity as defined in subsection 464(1) is prohibited from engaging in.
1999, c. 28, s. 35(1)
135. Section 526 of the Act is replaced by the following:
Factors to be considered by Minister
526. Before making an order under subsection 524(1), the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the foreign bank as a source of continuing financial support for the carrying on of its business in Canada; (b) the soundness and feasibility of plans of the foreign bank for the future conduct and development of its business in Canada; (c) the business record and past performance of the foreign bank; (d) the reputation of the foreign bank for being operated in a manner that is consistent with the standards of good character and integrity;
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(e) whether the proposed authorized foreign bank will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations in Canada of the authorized foreign bank with those of its affiliates in Canada on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada. 1999, c. 28, s. 35(1)
136. (1) Paragraphs 529(1)(e) and (f) of the Act are replaced by the following: (f) in the case of an authorized foreign bank that is not subject to the restrictions and requirements referred to in subsection 524(2), carry on business in Canada without having to deposit assets having a value of at least five million dollars, as required by subparagraphs 534(3)(a)(ii) and 582(1)(b)(i), where the authorized foreign bank continues to hold a substantial investment in (i) a bank that is a subsidiary of the foreign bank and the Minister has approved an application for voluntary liquidation and dissolution made by the subsidiary under section 344, or (ii) a company to which the Trust and Loan Companies Act applies and the Minister has approved an application for voluntary liquidation and dissolution made by the company under section 349 of that Act; or
1999, c. 28, s. 35(1)
(2) Paragraph 529(5)(c) of the Act is replaced by the following: (c) with respect to matters described in paragraph (1)(f), that purports to be effective more than seven years after the day on which an order made under subsection 534(1) becomes effective in respect of the authorized foreign bank.
1999, c. 28, s. 35(1)
Institutions f
137. Paragraph 530(1)(e) of the Act is replaced by the following: (e) reserved under section 43 for an existing or proposed bank or for an existing or proposed authorized foreign bank or under section 697 for an existing or proposed bank holding company.
1999, c. 28, s. 35(1)
138. Subparagraph 534(3)(a)(ii) of the Act is replaced by the following: (ii) in any other case, five million dollars or any greater amount that the Superintendent specifies;
1999, c. 28, s. 35(1)
139. (1) The portion of subsection 539(1) of the English version of the Act before paragraph (a) is replaced by the following:
Additional activities
539. (1) In addition, an authorized foreign bank may, in Canada,
1999, c. 28, s. 35(1)
(2) Paragraph 539(1)(b) of the Act is replaced by the following; (b) provide prescribed bank-related data processing services; (b.1) with the prior written approval of the Minister, engage in any of the following activities, namely, (i) collecting, manipulating and transmitting (A) information that is primarily financial or economic in nature, (B) information that relates to the business of an entity in which a bank is permitted to acquire a substantial investment under section 468 or to the business of a Canadian entity acquired or held under section 522.08, and (C) any other information that the Minister may, by order, specify,
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Financial In (ii) providing advisory or other services in the design, development or implementation of information management systems, (iii) designing, developing or marketing computer software, and (iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subparagraphs (i) to (iii) that the authorized foreign bank is engaging in, computer equipment integral to the provision of information services related to the business of financial institutions or to the provision of financial services;
(b.2) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used (i) to provide information that is primarily financial or economic in nature, (ii) to provide information that relates to the business of an entity in which a bank is permitted to acquire a substantial investment under section 468 or to the business of a Canadian entity acquired or held under section 522.08, or (iii) for a prescribed purpose or in prescribed circumstances; (b.3) engage in prescribed specialized business management or advisory services;
1999, c. 28, s. 35(1)
(3) Paragraphs 539(3)(a) and (b) of the Act are replaced by the following: (a) respecting what an authorized foreign bank may or may not do with respect to the carrying on of the activities referred to in paragraphs (1)(b.1) to (b.3); (b) imposing terms and conditions in respect of
Institutions f (i) the provision of financial services referred to in paragraph 538(2)(a) that are financial planning services, (ii) the provision of services referred to in paragraph 538(2)(c), and (iii) the carrying on of the activities referred to in any of paragraphs (1)(b.1) to (b.3); and (c) respecting the circumstances in which authorized foreign banks may be exempted from the requirement to obtain the approval of the Minister before carrying on a particular activity referred to in paragraph (1)(b.1) or (b.2). 140. The Act is amended by adding the following after section 539:
Regulations apply
539.1 Regulations made for the purpose of any of sections 409 to 411 apply in respect of authorized foreign banks with any modifications that the circumstances require unless regulations made under subsection 539(3) provide otherwise.
1999, c. 28, s. 35(1)
141. (1) Paragraphs 540(1)(b) and (c) of the Act are replaced by the following: (b) subject to the regulations, act as an agent for any person in the taking of deposit liabilities; or (c) guarantee any securities or accept any bills of exchange or depository bills that are (i) issued by any person, and (ii) intended by the issuer or any party to be sold or traded.
1999, c. 28, s. 35(1)
(2) Subparagraph 540(4)(a)(ii) of the Act is replaced by the following: (ii) a foreign bank that is or is deemed to be the subject of a designation order under section 508, (3) Subsection 540(6) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d) and by adding the following after that paragraph: (d.1) respecting circumstances in which and the conditions under which an authorized foreign bank that is subject to the restrictions and requirements referred to in sub���
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section 524(2) may act as agent for any person in the taking of deposit liabilities; and 1999, c. 28, s. 35(1)
142. Paragraph 543(1)(a) of the Act is replaced by the following: (a) act as agent for any person in respect of the provision of any service that is provided by a financial institution, an entity in which a bank is permitted to acquire a substantial investment under section 468 or a Canadian entity acquired or held under section 522.08 and may enter into an arrangement with any person in respect of the provision of that service; or
1999, c. 28, s. 35(1)
143. (1) Subsection 546(1) of the Act is replaced by the following:
Deposits less than $150,000
546. (1) Subject to the regulations, an authorized foreign bank that is not subject to the restrictions and requirements referred to in subsection 524(2) may not, in respect of its business in Canada, act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada. (2) Section 546 of the Act is amended by adding the following after subsection (2):
Regulations
(3) The Governor in Council may make regulations respecting the circumstances in which, and the conditions under which, an authorized foreign bank referred to in subsection (1) may act as agent for any person in the taking of a deposit that is less than $150,000 and payable in Canada.
1999, c. 28, s. 35(1)
144. (1) Subsection 547(1) of the Act is replaced by the following:
Shared premises
547. (1) Subject to the regulations, no authorized foreign bank shall carry on business in Canada on premises that are shared with those of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the authorized foreign bank.
1999, c. 28, s. 35(1)
(2) Subsection 547(3) of the Act is replaced by the following:
Institutions f
Adjacent premises
(3) Subject to the regulations, no authorized foreign bank shall carry on business in Canada on premises that are adjacent to a branch or office of a member institution, within the meaning of section 2 of the Canada Deposit Insurance Corporation Act, that is affiliated with the authorized foreign bank, unless the authorized foreign bank clearly indicates to its customers that its business and the premises on which it is carried on are separate and distinct from the business and premises of the affiliated member institution.
Regulations
(4) The Governor in Council may make regulations (a) respecting the circumstances in which, and the conditions under which, an authorized foreign bank may carry on business in Canada on premises that are shared with those of a member institution referred to in subsection (1); and (b) respecting the circumstances in which, and the conditions under which, an authorized foreign bank may carry on business in Canada on premises that are adjacent to a branch or office of a member institution referred to in subsection (3).
1999, c. 28, s. 35(1)
145. Section 550 of the Act is replaced by the following:
Restriction on leasing
550. An authorized foreign bank shall not engage in Canada in any personal property leasing activity in which a financial leasing entity as defined in subsection 464(1) is not permitted to engage.
1999, c. 28, s. 35(1)
146. Section 552 of the Act is repealed.
1999, c. 28, s. 35(1)
147. Subsection 553.1(1) of the Act is replaced by the following:
Restriction on partnerships
553.1 (1) Except with the approval of the Superintendent, an authorized foreign bank may not, in respect of its business in Canada, be a general partner in a limited partnership or a partner in a general partnership.
1999, c. 28, s. 35(1)
148. Subsection 556(3) of the Act is replaced by the following:
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Execution of trust
(3) An authorized foreign bank is not, in respect of its business in Canada, bound to see to the execution of any trust to which a deposit made under the authority of this Act is subject.
Payment when authorized foreign bank has notice of trust
(4) Subsection (3) applies regardless of whether the trust is express or arises by the operation of law, and it applies even when the authorized foreign bank has notice of the trust if it acts on the order of or under the authority of the holder or holders of the account into which the deposit is made.
1999, c. 28, s. 35(1)
149. The headings before section 559 of the Act are replaced by the following:
Accounts 1999, c. 28, s. 35(1)
150. Subsection 560(2) of the Act is replaced by the following:
Exception
(2) Subsection (1) does not apply in respect of an interest-bearing deposit account that is opened with a deposit in excess of $150,000 or any greater amount that is prescribed.
1999, c. 28, s. 35(1)
151. (1) The portion of subsection 564(1) of the Act before paragraph (a) is replaced by the following:
Disclosure required on opening a deposit account
564. (1) Subject to subsections (2) to (4), an authorized foreign bank shall not open a deposit account in the name of a customer unless, at or before the time the account is opened, it provides in writing to the individual who requests the opening of the account
1999, c. 28, s. 35(1)
(2) Subsections 564(2) to (5) of the Act are replaced by the following:
Exception
(2) If a deposit account is not a personal deposit account and the amount of a charge applicable to the account cannot be established at or before the time the account is opened, the authorized foreign bank shall, as soon as is practicable after the amount is established, provide the customer in whose name the account is kept with a notice in writing of the amount of the charge.
Exception
(3) If an authorized foreign bank has a deposit account in the name of a customer and the customer by telephone requests the opening of another deposit account in the name of
Institutions f the customer and the authorized foreign bank has not complied with subsection (1) in respect of the opening of that other account, the authorized foreign bank shall not open the account unless it provides the customer orally with any information prescribed at or before the time the account is opened.
Disclosure in writing
(4) If an authorized foreign bank opens an account under subsection (3), it shall, not later than seven business days after the account is opened, provide to the customer in writing the agreement and information referred to in subsection (1).
Right to close account
(5) A customer may, within 14 business days after a deposit account is opened under subsection (3), close the account without charge and in such case is entitled to a refund of any charges related to the operation of the account, other than interest charges, incurred while the account was open.
Regulations
(6) For the purposes of subsection (4), the Governor in Council may make regulations prescribing circumstances in which, and the time when, the agreement and information will be deemed to have been provided to the customer.
1999, c. 28, s. 35(1)
152. The heading before section 567 of the Act is converted from roman type to italics. 153. Section 567 of the Act, as enacted by subsection 35(4) of An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts, being chapter 28 of the Statutes of Canada, 1999, is replaced by the following:
Definition of ‘‘cost of borrowing’’
567. For the purposes of this section and sections 567.1 to 574, ‘‘cost of borrowing’’ in respect of a loan made by an authorized foreign bank means (a) the interest or discount applicable to the loan; (b) any amount charged in connection with the loan that is payable by the borrower to the authorized foreign bank; and
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(c) any charge prescribed to be included in the cost of borrowing. For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. 154. The Act is amended by adding the following before section 573: Complaints 1999, c. 28, s. 35(1)
155. (1) Paragraph 573(1)(a) of the Act is replaced by the following: (a) establish procedures for dealing with complaints made by persons having requested or received products or services from the authorized foreign bank; (2) If this section comes into force before paragraph 573(1)(a) of the Act, as enacted by subsection 35(9) of An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts, being chapter 28 of the Statutes of Canada, 1999, comes into force, then subsection 35(9) of that Act is repealed.
1999, c. 28, s. 35(1)
(3) Subsection 573(2) of the Act is replaced by the following:
Procedures to be filed with Commissioner
(2) An authorized foreign bank shall file with the Commissioner a copy of its procedures established under paragraph (1)(a). 156. The Act is amended by adding the following after section 573:
Obligation to be member
573.1 An authorized foreign bank shall be a member of any body corporate that is designated under subsection 455.1(1).
1999, c. 28, s. 35(1)
157. (1) Section 574 of the Act is replaced by the following:
Information on contacting Agency
574. (1) An authorized foreign bank shall, in the prescribed manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about an arrangement referred to in subsection 570(3), a payment, credit or charge card, the disclosure of or manner of calculating the cost of borrowing in respect of a loan, or about any other obligation of the authorized foreign bank under a consumer provision.
Report
Institutions f
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by authorized foreign banks pursuant to paragraph 573(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from an authorized foreign bank.
(2) If this section comes into force before subsection 574(1) of the Act, as enacted by subsection 35(10) of An Act to amend the Bank Act, the Winding-up and Restructuring Act and other Acts relating to financial institutions and to make consequential amendments to other Acts, being chapter 28 of the Statutes of Canada, 1999, then subsection 35(10) of that Act is repealed.
1999, c. 28, s. 35(1)
158. (1) Subsections 576.1(1) to (3) of the Act are replaced by the following:
Restriction on tied selling
576.1 (1) An authorized foreign bank shall not impose undue pressure on, or coerce, a person to obtain a product or service from a particular person, including the authorized foreign bank and any of its affiliates, as a condition for obtaining another product or service from the authorized foreign bank.
Favourable authorized foreign bank product or service tied to other sale
(2) For greater certainty, an authorized foreign bank may offer a product or service to a person on more favourable terms or conditions than the authorized foreign bank would otherwise offer, where the more favourable terms and conditions are offered on the condition that the person obtain another product or service from any particular person.
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(3) For greater certainty, an affiliate of an authorized foreign bank may offer a product or service to a person on more favourable terms or conditions than the affiliate would otherwise offer, where the more favourable terms and conditions are offered on the condition that the person obtain another product or service from the authorized foreign bank. (2) Section 576.1 of the Act is amended by adding the following after subsection (4):
Disclosure
(4.1) An authorized foreign bank shall disclose the prohibition on coercive tied selling set out in subsection (1) in a statement in plain language that is clear and concise, displayed and available to customers and the public at all of its branches and at all prescribed points of service in Canada.
Regulations
(4.2) The Governor in Council may make regulations for the purposes of subsection (4.1) defining ‘‘point of service’’ and prescribing points of service. 159. The Act is amended by adding the following after section 576.1:
Regulations re disclosure
576.2 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by authorized foreign banks or any prescribed class of authorized foreign banks, including regulations respecting (a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them, (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which and the persons to whom information is to be disclosed; and
Institutions f (c) the content and form of any advertisement by authorized foreign banks or any prescribed class of authorized foreign banks relating to any matter referred to in paragraph (a).
1999, c. 28, s. 35(1)
160. Section 579 of the Act is replaced by the following:
Effect of writ, etc.
579. (1) Subject to subsections (3) and (4), the following documents are binding on property belonging to a person and in the possession of an authorized foreign bank, or on money owing to a person by reason of a deposit account in an authorized foreign bank, only if the document or a notice of it is served at the branch of the authorized foreign bank that has possession of the property or that is the branch of account in respect of the deposit account, as the case may be: (a) a writ or process originating a legal proceeding or issued in or pursuant to a legal proceeding; (b) an order or injunction made by a court; (c) an instrument purporting to assign, perfect or otherwise dispose of an interest in the property or the deposit account; or (d) an enforcement notice in respect of a support order or support provision.
Notices
(2) Any notification sent to an authorized foreign bank with respect to a customer of the authorized foreign bank, other than a document referred to in subsection (1) or (3), constitutes notice to the authorized foreign bank and fixes the authorized foreign bank with knowledge of its contents only if sent to and received at the branch of the authorized foreign bank that is the branch of account of an account held in the name of that customer.
Exception
(3) Subsections (1) and (2) do not apply in respect of an enforcement notice in respect of a support order or support provision if (a) the enforcement notice, accompanied by a written statement containing the information required by the regulations, is served at an office of an authorized foreign bank designated in accordance with the regulations in respect of a province; and
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(b) the order or provision can be enforced under the laws of that province. Time of application
(4) Subsection (3) does not apply in respect of an enforcement notice in respect of a support order or support provision until the second business day following the day of service referred to in that subsection.
Regulations
(5) The Governor in Council may make regulations (a) respecting the designation by an authorized foreign bank, for the purpose of subsection (3), of a place in any province for the service of enforcement notices in respect of support orders and support provisions; (b) prescribing the manner in which an authorized foreign bank shall publicize the locations of designated offices of the authorized foreign bank; and (c) respecting the information that must accompany enforcement notices in respect of support orders and support provisions.
Definitions
(6) The following definitions apply in this section.
‘‘designated office’’ « bureau désigné »
‘‘designated office’’ means a place designated in accordance with regulations made for the purpose of subsection (3).
‘‘enforcement notice’’ « avis d’exécution »
‘‘enforcement notice’’, in respect of a support order or support provision, means a garnishee summons or other instrument issued under the laws of a province for the enforcement of the support order or support provision.
‘‘support order’’ « ordonnance alimentaire »
‘‘support order’’ means an order or judgment or interim order or judgment for family financial support.
‘‘support provision’’ « disposition alimentaire »
‘‘support provision’’ means a provision of an agreement relating to the payment of maintenance or family financial support.
1999, c. 28, s. 35(1)
161. Subparagraph 582(1)(b)(i) of the Act is replaced by the following: (i) five million dollars, and
1999, c. 28, s. 35(1)
162. Subsection 594(1) of the Act is replaced by the following:
Institutions f
Auditor’s report to principal officer
594. (1) The auditor of an authorized foreign bank shall make a report to the principal officer of the authorized foreign bank in writing on the annual return not later than five months after the end of the financial year in respect of which the annual return is prepared.
1999, c. 28, s. 35(1)
163. (1) Paragraph 597(1)(b) of the Act is replaced by the following: (b) accounting records respecting its business in Canada; (2) Section 597 of the Act is amended by adding the following after subsection (6):
Electronic access
(7) An authorized foreign bank may make the information contained in records referred to in subsection (1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time.
1999, c. 28, s. 35(1)
164. Subsection 606(1) of the Act is replaced by the following:
Confidential information
606. (1) Subject to sections 608 and 609, all information regarding the business or affairs of an authorized foreign bank, or regarding a person dealing with an authorized foreign bank, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
1999, c. 28, s. 35(1)
165. Section 612 of the Act is replaced by the following:
Report respecting disclosure
612. The Superintendent shall prepare a report respecting the disclosure of information by authorized foreign banks and describing the state of progress made in enhancing the disclosure of information in the financial services industry. The report is to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act.
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1999, c. 28, s. 35(1)
166. Subsection 613(1) of the Act is replaced by the following:
Examination of authorized foreign banks
613. (1) The Superintendent, from time to time, but, in the case of an authorized foreign bank that is not subject to the restrictions and requirements referred to in subsection 524(2), at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each authorized foreign bank that the Superintendent considers to be necessary or expedient to determine whether the authorized foreign bank is complying with the provisions of this Act and, after the conclusion of each examination and inquiry, shall report on it to the Minister. 167. The Act is amended by adding the following after the heading ‘‘Remedial Powers’’ after section 614: Prudential Agreements
Prudential agreement
614.1 The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with an authorized foreign bank for the purposes of implementing any measure designed to protect the interests of its depositors and creditors in respect of its business in Canada.
1999, c. 28, s. 35(1)
168. Subsection 616(1) of the Act is replaced by the following:
Court enforcement
616. (1) Where an authorized foreign bank or a person (a) is contravening or has failed to comply with a prudential agreement entered into under section 614.1 or a direction of the Superintendent made under subsection 615(1) or (3), (b) is contravening this Act, or (c) has omitted to do any thing under this Act that is required to be done by or on the part of the authorized foreign bank or person, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the authorized foreign bank or person to comply with the prudential agreement or the direction, cease the contravention or do any thing that is
Institutions f required to be done, and on the application the court may so order and make any other order it thinks fit. 169. The Act is amended by adding the following after section 617: Disqualification and Removal of Principal Officers
Application
617.1 (1) This section applies only in respect of an authorized foreign bank (a) that has been notified by the Superintendent that this section applies to it where the authorized foreign bank is subject to measures designed to protect the interests of its depositors and creditors in respect of its business in Canada, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of business in Canada by the authorized foreign bank, or (ii) are contained in a prudential agreement entered into under section 614.1 or an undertaking given by the authorized foreign bank to the Superintendent; or (b) that is the subject of a direction made under section 615 or an order made under section 617.
Information to be provided
(2) An authorized foreign bank shall provide the Superintendent with the name of any person who has been selected by the authorized foreign bank for appointment as principal officer, together with such other information about the background, business record and experience of the person as the Superintendent may require.
When information to be provided
(3) The information required by subsection (2) shall be provided to the Superintendent at least 30 days prior to the date of the appointment or within any shorter period that the Superintendent may allow.
Disqualification
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold the position of principal officer, the Superintendent may, by order, disqualify the person from being appointed to that office.
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Risk of prejudice
(5) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the authorized foreign bank in respect of its business in Canada would likely be prejudiced if the person were to take office.
Representations may be made
(6) The Superintendent must in writing notify the person concerned and the authorized foreign bank of an order that the Superintendent proposes to make under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Prohibition
(7) If an order is made under subsection (4) disqualifying a person from being appointed as principal officer, the person shall not be, and the authorized foreign bank shall not permit the person to be, appointed to that position.
Removal
617.2 (1) The Superintendent may, by order, remove a person from office as the principal officer of an authorized foreign bank if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 615, (iii) an order made under section 617, (iv) a condition or limitation in respect of the order approving the commencement and carrying on of business in Canada by the authorized foreign bank, or (v) a prudential agreement entered into under section 614.1 or an undertaking given by the authorized foreign bank to the Superintendent.
Institutions f
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the authorized foreign bank in respect of its business in Canada have been or are likely to be prejudiced by the person’s holding office as principal officer.
Representations may be made
(3) The Superintendent must in writing notify the principal officer and the authorized foreign bank of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest is likely to be prejudiced by the principal officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the principal officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the principal officer and the authorized foreign bank of a removal order or suspension order.
Consequences of removal order
(6) The principal officer ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The principal officer or the authorized foreign bank may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
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Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
1999, c. 28, s. 35(1)
170. (1) Paragraph 619(2)(c) of the Act is repealed. (2) Subsection 619(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (e), by adding the word ‘‘or’’ at the end of paragraph (f) and by adding the following after paragraph (f): (g) in the opinion of the Superintendent, any other state of affairs exists in respect of the authorized foreign bank that may be materially prejudicial to the interests of the authorized foreign bank’s depositors or creditors in respect of its business in Canada or the owners of any assets under the authorized foreign bank’s administration in respect of its business in Canada, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in respect of the holding body corporate of the authorized foreign bank.
1999, c. 28, s. 35(1)
171. Subsection 627(2) of the Act is replaced by the following:
Priority not affected
(2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of an authorized foreign bank. 172. The title of Part XIII of the Act is replaced by the following: REGULATION OF BANKS — SUPERINTENDENT
1999, c. 28, s. 39
173. Sections 633 and 634 of the Act are replaced by the following:
Copy of by-laws
633. A bank shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Register of banks
634. (1) The Superintendent shall, in respect of each bank for which an order approving the commencement and carrying on of business has been made, cause a register to be maintained containing a copy of (a) the incorporating instrument of the bank; and
Institutions f (b) the information referred to in paragraphs 632(1)(a), (c) and (e) to (h) contained in the latest return sent to the Superintendent under section 632.
Form
(2) The register may be maintained in (a) a bound or loose-leaf form or in a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.
1999, c. 28, s. 41
174. Subsection 636(1) of the Act is replaced by the following:
Confidential information
636. (1) Subject to sections 638 and 639, all information regarding the business or affairs of a bank or a foreign bank, or regarding a person dealing with a bank or a foreign bank, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
1996, c. 6, s. 12; 1999, c. 28, s. 46
175. Section 642 of the Act is replaced by the following:
Report respecting disclosure
642. The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by banks and describing the state of progress made in enhancing the disclosure of information in the financial services industry.
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1999, c. 28, s. 46
176. Subsection 643(1) of the Act is replaced by the following:
Examination of banks
643. (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each bank that the Superintendent considers to be necessary or expedient to determine whether the bank is complying with the provisions of this Act and whether the bank is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister. 177. The Act is amended by adding the following after the heading ‘‘Remedial Powers’’ after section 644: Prudential Agreements
Prudential agreement
644.1 The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with a bank for the purposes of implementing any measure designed to maintain or improve its safety and soundness.
1999, c. 28, s. 48
178. Subsection 646(1) of the Act is replaced by the following:
Court enforcement
646. (1) Where a bank or person (a) is contravening or has failed to comply with a prudential agreement entered into under section 644.1 or a direction of the Superintendent made under subsection 645(1) or (3), (b) is contravening this Act, or (c) has omitted to do any thing under this Act that is required to be done by or on the part of the bank or person, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the bank or person to comply with the prudential agreement or the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.
1996, c. 6, s. 14
179. The heading before section 647 of the Act is replaced by the following:
Institutions f Disqualification and Removal of Directors or Senior Officers
Meaning of ‘‘senior officer’’
646.1 In sections 647 and 647.1, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer or controller of a bank or any other officer reporting directly to the bank’s board of directors or chief executive officer.
1996, c. 6, s. 14; 1999, c. 28, s. 49
180. (1) Paragraphs 647(1)(a) and (b) of the Act are replaced by the following: (a) that has been notified by the Superintendent that this section applies to it where the bank is subject to measures designed to maintain or improve its safety and soundness, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the bank’s business, or (ii) are contained in a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent; or (b) that is the subject of a direction made under section 645 or an order made under subsection 485(3).
1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(2) Paragraph 647(2)(b) of the Act is replaced by the following: (b) each person who has been selected by the bank for appointment as a senior officer, and
1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(3) The portion of subsection 647(2) of the French version of the Act after paragraph (c) is replaced by the following: Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel qu’il peut exiger.
1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(4) Subsections 647(4) and (5) of the Act are replaced by the following:
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(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order, (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a bank or from being appointed as a senior officer; or (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the bank.
Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the bank would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(5) The Superintendent must in writing notify the person concerned and the bank of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
1996, c. 6, s. 14; 1999, c. 28, s. 49(1)
(5) Subsection 647(6) of the English version of the Act is replaced by the following:
Prohibition
(6) Where an order has been made under subsection (4) (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the bank shall not permit the person to be, elected or appointed to the position; or (b) removing a director from office, the person shall not continue to hold, and the bank shall not permit the person to continue to hold, office as a director. 181. The Act is amended by adding the following after section 647:
2001 Removal of directors or senior officers
Institutions f 647.1 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a bank if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 645, (iii) an order made under subsection 485(3), (iv) a condition or limitation in respect of the order approving the commencement and carrying on of the bank’s business, or (v) a prudential agreement entered into under section 644.1 or an undertaking given by the bank to the Superintendent.
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the bank have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the bank of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend
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beyond 10 days after the expiration of that period. Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the bank of a removal order or suspension order.
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The director or senior officer, as the case may be, or the bank may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
1997, c. 15, s. 88(3); 1999, c. 28, s. 50
182. (1) Paragraph 648(1.1)(b) of the Act is repealed. (2) Subsection 648(1.1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (f), by adding the word ‘‘or’’ at the end of paragraph (g) and by adding the following after paragraph (g): (h) in the opinion of the Superintendent, any other state of affairs exists in respect of the bank that may be materially prejudicial to the interests of the bank’s depositors or creditors or the owners of any assets under the bank’s administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the bank.
1991, c. 46, par. 580(b); 1996, c. 6, s. 20; 1997, c. 15, ss. 89 to 92; 1999, c. 28, ss. 58 to 73, c. 31, s. 16; 2000, c. 12, s. 6
183. Parts XIV and XV of the Act are replaced by the following:
Institutions f PART XIV REGULATION OF BANKS — COMMISSIONER
Required information
657. A bank or an authorized foreign bank shall provide the Commissioner with the information at the times and in the form that the Commissioner may require for the purposes of the administration of the Financial Consumer Agency of Canada Act and the consumer provisions.
Confidential information
658. (1) Subject to subsection (2), information regarding the business or affairs of a bank or authorized foreign bank or regarding persons dealing with any of them that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsection 5(1) of the Financial Consumer Agency of Canada Act, and any information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (c) to the Canada Deposit Insurance Corporation, for purposes related to its operation; and (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions.
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Examination of banks
659. (1) The Commissioner, from time to time but at least once in each calendar year, shall make or cause to be made any examination and inquiry that the Commissioner considers necessary for the purposes of satisfying the Commissioner that the applicable consumer provisions are being complied with and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
Access to records of bank
(2) The Commissioner or a person acting under the Commissioner’s direction in carrying out his or her duties under subsection (1) (a) has a right of access to any records, including electronic records, of a bank or authorized foreign bank; and (b) may require the directors or officers of a bank or authorized foreign bank to provide information and explanations, to the extent that they are reasonably able to do so, in respect of any matter subject to examination or inquiry under subsection (1).
Power of Commissioner on inquiry
660. The Commissioner, in carrying out his or her duties in relation to consumer provisions, has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Commissioner’s direction.
Compliance agreement
661. The Commissioner may enter into an agreement, called a ‘‘compliance agreement’’, with a bank or an authorized foreign bank for the purposes of implementing any measure designed to further compliance by it with the consumer provisions. PART XV BANK HOLDING COMPANIES Purpose
Purpose
662. The purpose of this Part is to provide for the incorporation, formation and regulation of bank holding companies.
Institutions f DIVISION 1 INTERPRETATION
Definitions
663. (1) The following definitions apply in this Part.
‘‘complainant’’ « plaignant »
‘‘complainant’’, in relation to a bank holding company or any matter concerning a bank holding company, means (a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of a bank holding company or any of its affiliates; (b) a director or an officer, or a former director or officer, of a bank holding company or any of its affiliates; or (c) any other person who, in the discretion of a court, is a proper person to make an application under section 334, 338 or 989.
‘‘subordinated indebtedness’’ « titre secondaire »
‘‘subordinated indebtedness’’ means an instrument evidencing an indebtedness of a bank holding company that by its terms provides that the indebtedness will, in the event of the insolvency or winding-up of the bank holding company, be subordinate in right of payment to all liabilities of the bank holding company except those that, by their terms, rank equally with or are subordinate to such indebtedness.
Provisions in other Parts
(2) A reference in a provision of this Part to a provision in any other Part is deemed to be a reference to that provision as it has been made applicable by this Part in respect of bank holding companies.
References in other Parts
(3) A reference in a provision of another Part to a provision that has been made applicable in respect of bank holding companies by this Part is to be read as including a reference to that provision as it has been made applicable in respect of bank holding companies. DIVISION 2 STATUS AND POWERS
Corporate powers
664. (1) A bank holding company has the capacity of a natural person and, subject to this Act, the rights, powers and privileges of a natural person.
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Powers restricted
(2) A bank holding company shall not carry on any business or exercise any power that it is restricted by this Act from carrying on or exercising, or exercise any of its powers in a manner contrary to this Act.
Business in Canada
(3) A bank holding company may carry on business throughout Canada.
Powers outside Canada
(4) Subject to this Act, a bank holding company has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Canada to the extent and in the manner that the laws of that jurisdiction permit.
No invalidity
665. No act of a bank holding company, including any transfer of property to or by a bank holding company, is invalid by reason only that the act or transfer is contrary to the bank holding company’s incorporating instrument or this Act.
By-law not necessary
666. It is not necessary for a bank holding company to pass a by-law in order to confer any particular power on the bank holding company or its directors.
No personal liability
667. The shareholders of a bank holding company are not, as shareholders, liable for any liability, act or default of the bank holding company except as otherwise provided by this Act.
No constructive notice
668. No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning a bank holding company by reason only that the document has been filed with the Superintendent or the Minister or is available for inspection at an office of the bank holding company.
Authority of directors and officers
669. A bank holding company or a guarantor of an obligation of a bank holding company may not assert against a person dealing with the bank holding company or with any person who has acquired rights from the bank holding company that (a) the bank holding company’s incorporating instrument or any by-laws of the bank
Institutions f holding company have not been complied with, (b) the persons named as directors of the bank holding company in the most recent return sent to the Superintendent under section 951 are not the directors of the bank holding company, (c) the place named in the incorporating instrument or the by-laws of the bank holding company is not the head office of the bank holding company, (d) a person held out by the bank holding company as a director, an officer or a representative of the bank holding company has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the bank holding company or usual for such director, officer or representative, or (e) a document issued by any director, officer or representative of the bank holding company with actual or usual authority to issue the document is not valid or not genuine, except where the person has or ought to have by virtue of the person’s position with or relationship to the bank holding company knowledge to that effect.
Sunset provision
670. (1) Subject to subsection (2), bank holding companies shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, bank holding companies may continue to carry on business until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.
Extension
(2) The Governor in Council may, by order, extend by up to six months the time during which bank holding companies may continue to carry on business. No more than one order may be made under this subsection.
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Financial In DIVISION 3 INCORPORATION AND CONTINUANCE Formalities of Incorporation
Incorporation of bank holding company
671. On the application of one or more persons made in accordance with this Part, the Minister may, subject to this Division, issue letters patent incorporating a bank holding company.
Restrictions on incorporation
672. Letters patent incorporating a bank holding company may not be issued if the application therefor is made by or on behalf of (a) Her Majesty in right of Canada or in right of a province, an agency of Her Majesty in either of those rights, or an entity controlled by Her Majesty in either of those rights; (b) the government of a foreign country or any political subdivision thereof; (c) an agency of the government of a foreign country or any political subdivision thereof; or (d) an entity, other than a foreign institution or any subsidiary of a foreign institution, that is controlled by the government of a foreign country or any political subdivision thereof.
National treatment
673. If a proposed bank holding company would be a subsidiary of a foreign bank, within the meaning of any of paragraphs (a) to (f) of the definition ‘‘foreign bank’’ in section 2, letters patent to incorporate the bank holding company may not be issued unless the Minister is satisfied that, if the application is made by a non-WTO Member foreign bank, treatment as favourable for bank holding companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign bank principally carries on business, either directly or through a subsidiary.
Application for incorporation
674. An application for letters patent to incorporate a bank holding company setting out the names of the first directors of the bank holding company shall be filed with the Superintendent, together with such other information, material and evidence as the Superintendent may require.
2001 Matters for consideration
Institutions f 675. Before issuing letters patent to incorporate a bank holding company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the bank that is proposed to be its subsidiary; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the bank that is proposed to be its subsidiary; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the bank holding company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the bank holding company and its affiliates on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada.
Contents of letters patent
676. (1) There shall be set out in the letters patent incorporating a bank holding company (a) the name of the bank holding company; (b) the place in Canada where the head office of the bank holding company is to be situated; and (c) the date that the bank holding company came, or is to come, into existence.
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Provisions in letters patent
(2) The Minister may set out in the letters patent incorporating a bank holding company any provision not contrary to this Act that the Minister considers advisable in order to take into account the particular circumstances of the proposed bank holding company.
Terms and conditions
(3) The Minister may impose such terms and conditions in respect of the issuance of letters patent incorporating a bank holding company as the Minister considers necessary or appropriate.
Letters patent of incorporation on application of banks
677. (1) If, under section 671, the Minister issues letters patent incorporating a bank holding company on the application of a bank, there may, on the request of the bank, and with the approval of the Minister, be included in the letters patent of incorporation of the bank holding company a provision deeming shares of the bank holding company to be issued, on a share for share basis, to all shareholders of the bank in exchange for all the issued and outstanding shares of the bank.
Effect of provision
(2) Shares of a bank holding company deemed to be issued under subsection (1) are subject to the same designation, rights, privileges and restrictions or conditions and, subject to any agreement to the contrary, to the same charges, encumbrances and other restrictions as the shares of the bank for which they are exchanged and the shares of the bank, on the issuance of the letters patent, become the property of the bank holding company free and clear of any charge, encumbrance or other restriction.
Effect of provision
(3) An exchange of shares of a bank referred to in subsection (1) under a provision included in the letters patent incorporating a bank holding company does not deprive a person who was a holder of shares of the bank immediately before the exchange of any right or privilege with respect to the shares or relieve the person of any liability in respect of the shares, but that right or privilege must be exercised in accordance with this Act.
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Transfer and voting of shares
(4) Despite subsection (3), no share of a bank holding company that is deemed to be issued under a provision included in the letters patent incorporating a bank holding company may subsequently be transferred or voted contrary to this Act.
Shareholder approval
(5) No provision described in subsection (1) may be included in letters patent issued under section 671 unless the application for the letters patent is accompanied by evidence that the request for the provision was approved by a special resolution of the shareholders of the bank at a shareholders’ meeting called to consider the application.
Exchange of share certificates
(6) If, under a provision included in the letters patent incorporating a bank holding company, a share exchange is deemed to have taken place, the bank holding company shall, within ninety days after the issuance of the letters patent, make provision for the issue of share certificates representing shares of the bank holding company and for the exchange of those certificates for share certificates representing the shares of the bank that were outstanding on the effective date of the letters patent.
Proposal involving fundamental change
678. (1) On application, made in accordance with the regulations, by a bank to give effect to a proposal to incorporate a bank holding company as the holding body corporate of the bank, to continue a body corporate as a bank holding company of the bank or to amalgamate two or more bodies corporate and continue those bodies corporate as a bank holding company of the bank — and to make any other fundamental change to or in respect of the bank, including an exchange of any or all of the shares of the bank for shares of the bank holding company—, the Minister may, to give effect to the proposal, (a) include in the letters patent of the bank holding company issued under section 671, 684 or 809 any provision the Minister considers necessary; or (b) despite any provision of the Act specified in regulations made under paragraph
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2(e), give any approval that the Minister considers necessary.
Regulations
(2) The Governor in Council may make regulations (a) respecting applications referred to in subsection (1), including their form and the information to be contained in them, and authorizing the Superintendent to require additional information in respect of such applications; (b) respecting proposals to which subsection (1) applies, including the information to be contained in the proposals and the times within which the transactions involved in them must occur; (c) respecting the procedures to be followed by a bank that makes an application under subsection (1); (d) respecting the approval, confirmation or authorization, if any, of all or any portion of proposals to which subsection (1) applies, including the approval of shareholders and including the terms and conditions of those approvals, confirmations or authorizations and their effect; and (e) specifying provisions of the Act for the purpose of paragraph (1)(b).
Notice of issue of letters patent
679. The Superintendent shall cause to be published in the Canada Gazette a notice of the issuance of letters patent incorporating a bank holding company.
First directors
680. The first directors of a bank holding company are the directors named in the application for letters patent to incorporate the bank holding company.
Effect of letters patent
681. A bank holding company comes into existence on the date provided therefor in its letters patent.
Institutions f Continuance
Federal corporations
682. (1) A body corporate incorporated under the Canada Business Corporations Act or any other Act of Parliament, including a bank, may apply to the Minister for letters patent continuing the body corporate as a bank holding company under this Part.
Other corporations
(2) A body corporate incorporated otherwise than by or under an Act of Parliament may, if so authorized by the laws of the jurisdiction where it is incorporated, apply to the Minister for letters patent continuing the body corporate as a bank holding company under this Part.
Application for continuance
683. (1) Where a body corporate applies for letters patent under subsection 682(1) or (2), sections 672 to 675 apply in respect of the application, with such modifications as the circumstances require.
Special resolution approval
(2) Where a body corporate applies for letters patent under subsection 682(1) or (2), the application must be duly authorized by a special resolution.
Copy of special resolution
(3) A copy of the special resolution referred to in subsection (2) shall be filed with the application.
Power to issue letters patent
684. (1) On the application of a body corporate under subsection 682(1) or (2), the Minister may, subject to this Division, issue letters patent continuing the body corporate as a bank holding company under this Part.
Issue of letters patent
(2) Where letters patent are issued to a body corporate under subsection (1), section 676 applies in respect of the issue of letters patent, with such modifications as the circumstances require.
Effect of letters patent
685. On the day set out in the letters patent continuing a body corporate as a bank holding company under subsection 684(1), (a) the body corporate becomes a bank holding company as if it had been incorporated under this Part; and
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(b) the letters patent are deemed to be the incorporating instrument of the continued bank holding company. Copy of letters patent
686. (1) Where a body corporate is continued as a bank holding company under this Part, the Superintendent shall without delay send a copy of the letters patent to the appropriate official or public body in the jurisdiction in which the body corporate was authorized to apply to be continued under this Part.
Notice of issuance of letters patent
(2) The Superintendent shall cause to be published in the Canada Gazette a notice of the issuance of letters patent continuing a body corporate as a bank holding company under this Part.
Effects of continuance
687. Where a body corporate is continued as a bank holding company under this Part, (a) the property of the body corporate continues to be the property of the bank holding company; (b) the bank holding company continues to be liable for the obligations of the body corporate; (c) an existing cause of action or claim by or against the body corporate or any liability of the body corporate to prosecution is unaffected; (d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may continue to be prosecuted by or against the bank holding company; (e) a conviction against, or any ruling, order or judgment in favour of or against the body corporate may be enforced by or against the bank holding company; (f) a person who, on the day the body corporate becomes a bank holding company, was the holder of a security issued by the body corporate is not deprived of any right or privilege available to the person at that time in respect of the security or relieved of any liability in respect thereof, but any such right or privilege may be exercised only in accordance with this Act; and
Institutions f (g) the by-laws of the body corporate, except those that are in conflict with this Act, continue as the by-laws of the bank holding company.
Transitional
688. (1) Notwithstanding any other provision of this Act or the regulations, the Minister may, on the recommendation of the Superintendent, by order, grant to a bank holding company in respect of which letters patent were issued under subsection 684(1) permission to (a) engage in a business activity specified in the order that a bank holding company is not otherwise permitted by this Act to engage in and that the body corporate continued as the bank holding company was engaging in at the time the application for the letters patent was made; (b) continue to have issued and outstanding debt obligations the issue of which is not authorized by this Act if the debt obligations were outstanding at the time the application for the letters patent was made; (c) hold assets that a bank holding company is not otherwise permitted by this Act to hold if the assets were held by the body corporate continued as the bank holding company at the time the application for the letters patent was made; (d) acquire and hold assets that a bank holding company is not otherwise permitted by this Act to acquire or hold if the body corporate continued as the bank holding company was obliged, at the time the application for the letters patent was made, to acquire those assets; and (e) maintain outside Canada any records or registers required by this Act to be maintained in Canada and maintain and process outside Canada information and data relating to the preparation and maintenance of such records or registers.
Duration
(2) The permission granted under subsection (1) shall be expressed to be granted for a period specified in the order not exceeding (a) with respect to any activity described in paragraph (1)(a), thirty days after the
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effective date of the letters patent or, where the activity is conducted pursuant to an agreement existing on the effective date of the letters patent, the expiration of the agreement; (b) with respect to any matter described in paragraph (1)(b), ten years; and (c) with respect to any matter described in any of paragraphs (1)(c) to (e), two years. Renewal
(3) Subject to subsection (4), the Minister may, on the recommendation of the Superintendent, by order, renew a permission granted by order under subsection (1) with respect to any matter described in paragraphs (1)(b) to (d) for such further period or periods as the Minister considers necessary.
Limitation
(4) The Minister shall not grant to a bank holding company any permission (a) with respect to matters described in paragraph (1)(b), that purports to be effective more than ten years after the effective date of the letters patent, unless the Minister is satisfied on the basis of evidence on oath provided by an officer of the bank holding company that the bank holding company will not be able at law to redeem at the end of the ten years the outstanding debt obligations to which the permission relates; and (b) with respect to matters described in paragraphs (1)(c) and (d), that purports to be effective more than ten years after the effective date of the letters patent. Discontinuance
Transferring to other Acts
689. (1) A bank holding company may, with the approval in writing of the Minister, apply to be continued as a body corporate under any other Act of Parliament or any Act of the legislature of a province.
Conditions for approval
(2) No approval referred to in subsection (1) may be given to a bank holding company unless the Minister is satisfied that the application of the bank holding company has been authorized by a special resolution.
Institutions f
Meaning of ‘‘bank holding company without a bank subsidiary’’
690. (1) For the purpose of this section, ‘‘bank holding company without a bank subsidiary’’ means a bank holding company that does not, at any time within one year after it came into existence, have a subsidiary that is a bank or that does not, for a period of one year, have a subsidiary that is a bank.
Obligation to apply
(2) A bank holding company without a bank subsidiary must, within 30 days after becoming a bank holding company without a bank subsidiary, apply to be continued under subsection 689(1).
Cessation of existence
(3) Except for the sole purpose of winding up its affairs, a bank holding company without a bank subsidiary that has no other subsidiary that fails to make an application under subsection (2) within the time provided for in that subsection ceases to exist on the expiration of that period.
Act ceases to apply
691. On the day specified by the Minister, this Act ceases to apply to the body corporate continued under the other Act of Parliament or under the Act of the legislature of a province.
Withdrawing application
692. Where a special resolution authorizing the application under subsection 689(1) so states, the directors of a bank holding company may, without further approval of the shareholders, withdraw the application before it is acted on. Corporate Name
Prohibited names
693. A bank holding company may not be incorporated under this Part with a name (a) that is prohibited by an Act of Parliament; (b) that is, in the opinion of the Superintendent, deceptively misdescriptive; (c) that is the same as or, in the opinion of the Superintendent, substantially the same as or confusingly similar to, any existing (i) trade-mark or trade name, or (ii) corporate name of a body corporate, except where the trade-mark or trade name is being changed or the body corporate is being dissolved or is changing its corporate
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name and consent to the use of the trademark, trade name or corporate name is signified to the Superintendent in such manner as the Superintendent may require; (d) that is the same as or, in the opinion of the Superintendent, substantially the same as or confusingly similar to, the known name under or by which any entity carries on business or is identified; or (e) that is reserved under section 43 for a bank or an authorized foreign bank or a proposed bank or proposed authorized foreign bank or under section 697 for another bank holding company or a proposed bank holding company. Affiliated bank holding company
694. Despite section 693 and subject to section 695, a bank holding company that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, (a) be incorporated with, or change its name to, substantially the same name as that of the affiliated entity; or (b) subject to any terms and conditions that may be prescribed, carry on business under or identify itself by a name, other than its corporate name, that is substantially the same as the corporate name of the affiliated entity or that is another name under which or with which the affiliated entity carries on business or otherwise identifies itself.
Restriction
695. A bank holding company may not be incorporated or continued with, change its name to or carry on business or identify itself by, a name that is substantially similar to that of a bank unless the name contains words that, in the opinion of the Superintendent, indicate to the public that the bank holding company is distinct from any bank that is a subsidiary of the bank holding company.
French or English form of name
696. (1) The name of a bank holding company may be set out in its letters patent in an English form, a French form, an English form and a French form or in a combined English and French form, and the bank holding company may use and be legally designated by any such form.
Institutions f
Mandatory abbreviation
(2) Despite any other provision of this Act and subject to the regulations, every bank holding company shall have as part of its name, the abbreviations ‘‘bhc’’ or ‘‘spb’’.
Alternate name
(3) A bank holding company may identify itself outside Canada by its name in any language and the bank holding company may use and be legally designated by any such form of its name outside Canada.
Other name
(4) Subject to subsection (5) and section 832, a bank holding company may carry on business under or identify itself by a name other than its corporate name.
Directions
(5) Where a bank holding company is carrying on business under or identifying itself by a name other than its corporate name, the Superintendent may, by order, direct the bank holding company not to use that other name if the Superintendent is of the opinion that that other name is a name referred to in any of paragraphs 693(a) to (e).
Regulations
(6) The Governor in Council may make regulations respecting the use of the abbreviations ‘‘bhc’’ or ‘‘spb’’ in the name of bank holding companies.
Reserved name
697. The Superintendent may, on request, reserve for ninety days a name for a proposed bank holding company or for a bank holding company that intends to change its name.
Directing change of name
698. (1) If through inadvertence or otherwise a bank holding company (a) comes into existence or is continued with a name, or (b) on an application to change its name, is granted a name that is prohibited by section 693 or 695, the Superintendent may, by order, direct the bank holding company to change its name and the bank holding company shall comply with that direction.
Revoking name
(2) Where a bank holding company has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Part, the
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Superintendent may revoke the name of the bank holding company and assign to it a name and, until changed in accordance with section 215 or 217, the name of the bank holding company is thereafter the name so assigned. Publication of Information Publication of information
699. The Superintendent shall, within sixty days after the end of each year, cause a notice to be published in the Canada Gazette, showing (a) the name of every bank holding company; and (b) the place in Canada where the head office of the bank holding company is situated. DIVISION 4 ORGANIZATION AND COMMENCEMENT
First directors’ meeting
700. (1) After letters patent incorporating a bank holding company are issued, a meeting of the directors of the bank holding company shall be held at which the directors may, subject to this Division, (a) make by-laws; (b) adopt forms of share certificates and corporate records; (c) authorize the issue of shares of the bank holding company; (d) appoint officers; (e) appoint an auditor to hold office until the first meeting of shareholders; (f) make banking arrangements; and
Calling directors’ meeting
Calling shareholders’ meeting
(g) deal with any other matters necessary to organize the bank holding company. (2) An incorporator or a director named in the application for letters patent may call the meeting referred to in subsection (1) by giving, subject to subsection 770(2), no fewer than five days notice of the purpose, time and place of the meeting to each director of the bank holding company. 701. (1) After the meeting referred to in subsection 700(1) is held, the directors of the bank holding company shall without delay call a meeting of the shareholders of the bank holding company.
2001 Meeting of shareholders
Institutions f (2) The shareholders of a bank holding company shall, by resolution at the meeting of shareholders called pursuant to subsection (1), (a) approve, amend or reject any by-law made by the directors of the bank holding company; (b) subject to section 756, elect directors to hold office for a term expiring not later than the close of the third annual meeting of shareholders following the election; and (c) appoint an auditor to hold office until the close of the first annual meeting of shareholders.
Term of first directors
702. A director named in the application for letters patent to incorporate a bank holding company holds office until the election of directors at the meeting of shareholders called pursuant to subsection 701(1). DIVISION 5 CAPITAL STRUCTURE Share Capital
Power to issue shares
703. (1) Subject to this Part and the by-laws of the bank holding company, shares of a bank holding company may be issued at such times and to such persons and for such consideration as the directors of the bank holding company may determine.
Shares
(2) Shares of a bank holding company shall be in registered form and shall be without nominal or par value. (3) Where a body corporate is continued as a bank holding company under this Part, shares with nominal or par value issued by the body corporate before it was so continued are deemed to be shares without nominal or par value.
Shares of continued bank holding company
Deemed share conditions
(4) If a right of a holder of a share with nominal or par value of a body corporate continued as a bank holding company under this Part, other than a voting right, was stated or expressed in terms of the nominal or par value of the share immediately before the body corporate was continued under this Part, that right is deemed, after the continuance, to be the same right stated or expressed without reference to the nominal or par value of the share.
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704. (1) A bank holding company shall have one class of shares, to be designated as ‘‘common shares’’, which are non-redeemable and in which the rights of the holders thereof are equal in all respects, and those rights include (a) the right to vote at all meetings of shareholders except where only holders of a specified class of shares are entitled to vote; (b) the right to receive dividends declared on those shares; and (c) the right to receive the remaining property of the bank holding company on dissolution.
Designations of shares
(2) No bank holding company shall designate more than one class of its shares as ‘‘common shares’’ or any variation of that term.
Continued bank holding company
(3) A body corporate continued as a bank holding company under this Part that is not in compliance with subsection (2) on the date letters patent continuing it as a bank holding company are issued shall, within twelve months after that date, redesignate its shares to comply with that subsection.
Classes of shares
705. (1) The by-laws of a bank holding company may provide for more than one class of shares and, if they so provide, shall set out (a) the rights, privileges, restrictions and conditions attaching to the shares of each class; and (b) the maximum number, if any, of shares of any class that the bank holding company is authorized to issue.
Shareholder approval
(2) Where a by-law referred to in subsection (1) is made, the directors of the bank holding company shall submit the by-law to the shareholders at the next meeting of shareholders.
Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2).
Institutions f
Shares in series
706. (1) The by-laws of a bank holding company made pursuant to section 705 may authorize the issue of any class of shares in one or more series and may authorize the directors of the bank holding company to fix the maximum number, if any, of shares in each series and to determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series, subject to the limitations set out in the by-laws.
Series participation
(2) If any cumulative dividend or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital.
Voting rights
(3) Where voting rights are attached to any series of a class of shares, the shares of every other series of that class shall have the same voting rights.
Restriction on series
(4) No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section confer on the series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding.
Material to Superintendent
(5) Before the issue of shares of a series of shares authorized under this section, the directors shall send to the Superintendent a copy of the by-law authorizing the directors to fix the rights, privileges, restrictions and conditions of those shares and shall provide the Superintendent with particulars of the proposed series of shares.
One share, one vote
707. Where voting rights are attached to a share of a bank holding company, the voting rights may confer only one vote in respect of that share.
Shares non-assessable
708. Shares issued by a bank holding company are non-assessable and the shareholders are not liable to the bank holding company or to its creditors in respect thereof.
Consideration for share
709. (1) No share of any class of shares of a bank holding company shall be issued until it is fully paid for in money or, with the approval of the Superintendent, in property.
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Other currencies
(2) When issuing shares, a bank holding company may provide that any aspect of the shares relating to money or involving the payment of or the liability to pay money be in a currency other than the currency of Canada.
Stated capital account
710. (1) A bank holding company shall maintain a separate stated capital account for each class and series of shares it issues.
Addition to stated capital account
(2) A bank holding company shall record in the appropriate stated capital account the full amount of any consideration it receives for any shares it issues.
Exception
(3) Notwithstanding subsection (2), a bank holding company may record in the appropriate stated capital account part of the amount of any consideration it receives for shares it issues (a) in exchange for (i) property of a person who immediately before the exchange did not deal with the bank holding company at arm’s length within the meaning of the Income Tax Act, or (ii) shares of a body corporate that immediately before the exchange, or because of the exchange, did not deal with the bank holding company at arm’s length within the meaning of the Income Tax Act; or (b) under an agreement referred to in subsection 804(1) to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated bank holding company.
Limit on addition to a stated capital account
(4) On the issuance of a share, a bank holding company shall not add to the stated capital account in respect of the share an amount greater than the amount of the consideration it receives for the share.
Constraint on addition to a stated capital account
(5) Where a bank holding company that has issued any outstanding shares of more than one class or series proposes to add to a stated capital account that it maintains in respect of a class or series of shares an amount that was not received by the bank holding company as consideration for the issue of shares, the
Institutions f addition must be approved by special resolution unless all the issued and outstanding shares are of not more than two classes of convertible shares referred to in subsection 720(4).
Stated capital of continued bank holding company
711. (1) Where a body corporate is continued as a bank holding company under this Part, the bank holding company shall record in the stated capital account maintained for each class and series of shares then outstanding an amount that is equal to the aggregate of (a) the aggregate amount paid up on the shares of each class and series of shares immediately before the body corporate was so continued, and (b) the amount of the contributed surplus of the bank holding company that is attributable to those shares.
Contributed surplus entry
(2) The amount of any contributed surplus recorded in the stated capital account pursuant to paragraph (1)(b) shall be deducted from the contributed surplus account of the bank holding company.
Shares issued before continuance
(3) Any amount unpaid in respect of a share issued by a body corporate before it was continued as a bank holding company under this Part and paid after it was so continued shall be recorded in the stated capital account maintained by the bank holding company for the shares of that class or series.
Pre-emptive right
712. (1) Where the by-laws of a bank holding company so provide, no shares of any class shall be issued unless the shares have first been offered to the shareholders holding shares of that class, and those shareholders have a pre-emptive right to acquire the offered shares in proportion to their holdings of the shares of that class, at such price and on such terms as those shares are to be offered to others.
Exception
(2) Notwithstanding the existence of a pre-emptive right, a shareholder of a bank holding company has no pre-emptive right in respect of shares of a class to be issued (a) for a consideration other than money; (b) as a share dividend; or
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(c) pursuant to the exercise of conversion privileges, options or rights previously granted by the bank holding company. Exception
(3) Notwithstanding the existence of a pre-emptive right, a shareholder of a bank holding company has no pre-emptive right in respect of shares to be issued (a) where the issue of shares to the shareholder is prohibited by this Part; or (b) where, to the knowledge of the directors of the bank holding company, the offer of shares to a shareholder whose recorded address is in a country other than Canada ought not to be made unless the appropriate authority in that country is provided with information in addition to that submitted to the shareholders at the last annual meeting.
Conversion privileges
713. (1) A bank holding company may issue conversion privileges, options or rights to acquire securities of the bank holding company, and shall set out the conditions thereof (a) in the documents that evidence the conversion privileges, options or rights; or (b) in the securities to which the conversion privileges, options or rights are attached.
Transferable rights
(2) Conversion privileges, options and rights to acquire securities of a bank holding company may be made transferable or nontransferable, and options and rights to acquire such securities may be made separable or inseparable from any securities to which they are attached.
Reserved shares
(3) Where a bank holding company has granted privileges to convert any securities issued by the bank holding company into shares, or into shares of another class or series, or has issued or granted options or rights to acquire shares, if the by-laws limit the number of authorized shares, the bank holding company shall reserve and continue to reserve sufficient authorized shares to meet the exercise of such conversion privileges, options and rights. 714. Except as provided in sections 715 to 717, or unless permitted by the regulations, a bank holding company shall not
Holding of own shares
(a) hold shares of the bank holding company or of any body corporate that controls the bank holding company;
Institutions f (b) hold any ownership interests of any unincorporated entity that controls the bank holding company; (c) permit any of its subsidiaries to hold any shares of the bank holding company or of any body corporate that controls the bank holding company; or (d) permit any of its subsidiaries to hold any ownership interests of any unincorporated entity that controls the bank holding company.
Purchase and redemption of shares
715. (1) Subject to subsection (2) and to its by-laws, a bank holding company may, with the consent of the Superintendent, purchase, for the purpose of cancellation, any shares issued by it, or redeem any redeemable shares issued by it at prices not exceeding the redemption price thereof calculated according to a formula stated in its by-laws or the conditions attaching to the shares.
Restrictions on purchase and redemption
(2) A bank holding company shall not make any payment to purchase or redeem any shares issued by it if there are reasonable grounds for believing that the bank holding company is, or the payment would cause the bank holding company to be, in contravention of any regulation referred to in subsection 949(1) or (2) or any direction made pursuant to subsection 949(3).
Donated shares
(3) A bank holding company may accept from any shareholder a share of the bank holding company surrendered to it as a gift, but may not extinguish or reduce a liability in respect of an amount unpaid on any such share except in accordance with section 718.
Holding as personal representative
716. (1) A bank holding company may permit its subsidiaries to hold, in the capacity of a personal representative, shares of the bank holding company or of any body corporate that controls the bank holding company or ownership interests in any unincorporated entity that controls the bank holding company, but only if the subsidiary does not have a beneficial interest in the shares or ownership interests.
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Security interest
(2) A bank holding company may permit its subsidiaries to hold by way of a security interest shares of the bank holding company or of any body corporate that controls the bank holding company, or any ownership interests of any entity that controls the bank holding company, if the security interest is nominal or immaterial when measured by criteria established by the bank holding company that have been approved in writing by the Superintendent.
Cancellation of shares
717. (1) Subject to subsection (2), where a bank holding company purchases shares of the bank holding company or fractions thereof or redeems or otherwise acquires shares of the bank holding company, the bank holding company shall cancel those shares.
Requirement to sell
(2) If a subsidiary of a bank holding company, through the realization of security, acquires any shares of the bank holding company or of any body corporate that controls the bank holding company or any ownership interests in an unincorporated entity that controls the bank holding company, the bank holding company shall cause its subsidiary to, within six months after the day of the realization, sell or otherwise dispose of the shares or ownership interests.
Reduction of capital
718. (1) The stated capital of a bank holding company may be reduced by special resolution.
Limitation
(2) A bank holding company shall not reduce its stated capital by special resolution if there are reasonable grounds for believing that the bank holding company is, or the reduction would cause the bank holding company to be, in contravention of any regulation referred to in subsection 949(1) or (2) or any direction made pursuant to subsection 949(3).
Contents of special resolution
(3) A special resolution to reduce the stated capital of a bank holding company shall specify the stated capital account or accounts from which the reduction of stated capital effected by the special resolution will be deducted.
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Approval by Superintendent
(4) A special resolution to reduce the stated capital of a bank holding company has no effect until it is approved in writing by the Superintendent.
Conditions for approval
(5) No approval to reduce the stated capital of a bank holding company may be given by the Superintendent unless application therefor is made within three months after the time of the passing of the special resolution and a copy of the special resolution, together with a notice of intention to apply for approval, has been published in the Canada Gazette.
Statements to be submitted
(6) In addition to evidence of the passing of a special resolution to reduce the stated capital of a bank holding company and of the publication thereof, statements showing (a) the number of the bank holding company’s shares issued and outstanding, (b) the results of the voting by class of shares of the bank holding company, (c) the bank holding company’s assets and liabilities, and (d) the reason why the bank holding company seeks the reduction of capital shall be submitted to the Superintendent at the time of the application for approval of the special resolution.
Recovery by action
719. (1) Where any money or property was paid or distributed to a shareholder or other person as a consequence of a reduction of capital made contrary to section 718, a creditor of the bank holding company may apply to a court for an order compelling the shareholder or other person to pay the money or deliver the property to the bank holding company.
Shares held by personal representative
(2) No person holding shares in the capacity of a personal representative and registered on the records of the bank holding company as a shareholder and therein described as the personal representative of a named person is personally liable under subsection (1), but the named person is subject to all the liabilities imposed by that subsection.
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Limitation
(3) An action to enforce a liability imposed by subsection (1) may not be commenced more than two years after the date of the act complained of.
Remedy preserved
(4) This section does not affect any liability that arises under section 794.
Adjustment of stated capital account
720. (1) On a purchase, redemption or other acquisition by a bank holding company of shares or fractions thereof issued by it, the bank holding company shall deduct from the stated capital account maintained for the class or series of shares so purchased, redeemed or otherwise acquired an amount equal to the result obtained by multiplying the stated capital in respect of the shares of that class or series by the number of shares of that class or series so purchased, redeemed or otherwise acquired and dividing by the number of shares of that class or series outstanding immediately before the purchase, redemption or other acquisition.
Adjustment of stated capital account
(2) A bank holding company shall adjust its stated capital account or accounts in accordance with any special resolution referred to in section 718.
Shares converted to another class
(3) On a conversion of outstanding shares of a bank holding company into shares of another class or series, or on a change of outstanding shares of the bank holding company into shares of another class or series, the bank holding company shall (a) deduct from the stated capital account maintained for the class or series of shares converted or changed an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series converted or changed, and dividing by the number of outstanding shares of that class or series immediately before the conversion or change; and (b) record the result obtained under paragraph (a) and any additional consideration received pursuant to the conversion or change in the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been converted or changed.
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Stated capital of convertible shares
(4) For the purposes of subsection (3) and subject to the bank holding company’s bylaws, where a bank holding company issues two classes of shares and there is attached to each class a right to convert a share of one class into a share of the other class and a share is so converted, the amount of stated capital attributable to a share in either class is the aggregate of the stated capital of both classes divided by the number of outstanding shares of both classes immediately before the conversion.
Conversion or change of shares
(5) Shares issued by a bank holding company and converted into shares of another class or series, or changed under subsection 217(1) into shares of another class or series, become issued shares of the class or series of shares into which the shares have been converted or changed.
Addition to stated capital account
721. On a conversion of any debt obligation of a bank holding company into shares of a class or series of shares, the bank holding company shall (a) deduct from the liabilities of the bank holding company the nominal value of the debt obligation being converted; and (b) record the result obtained under paragraph (a) and any additional consideration received for the conversion in the stated capital account maintained or to be maintained for the class or series of shares into which the debt obligation has been converted.
Declaration of dividend
722. (1) The directors of a bank holding company may declare and a bank holding company may pay a dividend by issuing fully paid shares of the bank holding company or options or rights to acquire fully paid shares of the bank holding company and, subject to subsection (4), the directors of a bank holding company may declare and a bank holding company may pay a dividend in money or property, and where a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada.
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Notice to Superintendent
(2) The directors of a bank holding company shall notify the Superintendent of the declaration of a dividend at least ten days prior to the day fixed for its payment.
Share dividend
(3) If shares of a bank holding company are issued in payment of a dividend, the bank holding company shall record in the stated capital account maintained or to be maintained for the shares of the class or series issued in payment of the dividend the declared amount of the dividend stated as an amount of money.
When dividend not to be declared
(4) The directors of a bank holding company shall not declare and a bank holding company shall not pay a dividend if there are reasonable grounds for believing that the bank holding company is, or the payment would cause the bank holding company to be, in contravention of any regulation referred to in subsection 949(1) or (2) or any direction made pursuant to subsection 949(3). Subordinated Indebtedness
Restriction on subordinated indebtedness
723. (1) A bank holding company shall not issue subordinated indebtedness unless the subordinated indebtedness is fully paid for in money or, with the approval of the Superintendent, in property.
References to subordinated indebtedness
(2) A person shall not in any prospectus, advertisement, correspondence or literature relating to any subordinated indebtedness issued or to be issued by a bank holding company refer to the subordinated indebtedness otherwise than as subordinated indebtedness.
Other currencies
(3) When issuing subordinated indebtedness, a bank holding company may provide that any aspect of the subordinated indebtedness relating to money or involving the payment of or the liability to pay money in relation thereto be in a currency other than that of Canada including, without restricting the generality of the foregoing, the payment of any interest thereon.
Institutions f Security Certificates and Transfers
Sections 81 to 135 apply
724. Sections 81 to 135 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; (c) references to ‘‘Part VII’’ in those sections are to be read as references to ‘‘Division 7 of Part XV’’; (d) references to ‘‘this Part’’ in those sections are to be read as references to ‘‘this Division’’; (e) the reference to ‘‘subsections 137(2) to (5) and sections 138 to 141 and 145’’ in subsection 93(1) is to be read as a reference to ‘‘subsections 726(2) to (5) and sections 727 to 730 and 734’’; and (f) the reference to ‘‘section 71 or 77’’ in subsection 97(3) is to be read as a reference to ‘‘section 715 or 720’’. DIVISION 6 CORPORATE GOVERNANCE
Shareholders Place of meetings
725. Meetings of shareholders of a bank holding company shall be held at the place within Canada provided for in the by-laws of the bank holding company or, in the absence of any such provision, at the place within Canada that the directors determine.
Calling meetings
726. (1) The directors of a bank holding company (a) shall, after the meeting called pursuant to subsection 701(1), call the first annual meeting of shareholders of the bank holding company, which meeting must be held not later than six months after the end of the first financial year of the bank holding company, and subsequently call an annual meeting of shareholders, which meeting
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must be held not later than six months after the end of each financial year; and (b) may at any time call a special meeting of shareholders. Fixing record date
(2) For the purpose of determining shareholders (a) entitled to receive payment of a dividend, (b) entitled to participate in a liquidation distribution, or (c) for any other purpose except the right to receive notice of, or to vote at, a meeting, the directors may fix in advance a date as the record date for the determination of shareholders, but the record date so fixed shall not precede by more than fifty days the particular action to be taken.
Record date for meetings
(3) For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, the directors may fix in advance a date as the record date for the determination of shareholders, but the record date so fixed shall not precede by more than fifty days or by less than twenty-one days the date on which the meeting is to be held.
No record date fixed
(4) If no record date is fixed pursuant to subsection (2) or (3), (a) the record date for the determination of shareholders for any purpose, other than to establish a shareholder’s right to receive notice of a meeting or to vote, is the day on which the directors pass the resolution relating to the particular purpose; and (b) the record date for the determination of shareholders entitled to receive notice of, or to vote at, a meeting of shareholders is (i) the day immediately preceding the day on which the notice is given, or (ii) if no notice is given, the day on which the meeting is held.
When record date fixed
(5) When a record date is fixed for a bank holding company, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the central securities register at the close of business on the date the
Institutions f directors fix the record date, notice thereof shall, not less than seven days before the record date, be given (a) by advertisement in a newspaper in general circulation in the place where the head office of the bank holding company is situated and in each place in Canada where the bank holding company has a transfer agent or where a transfer of the bank holding company’s shares may be recorded; and (b) by written notice to each stock exchange, if any, in Canada on which the shares of the bank holding company are listed for trading.
Notice of meeting
727. (1) Notice of the time and place of a meeting of shareholders of a bank holding company shall be sent not less than twentyone days or more than fifty days before the meeting (a) to each shareholder entitled to vote at the meeting; (b) to each director; and (c) to the auditor of the bank holding company.
Number of eligible votes
(2) A bank holding company with equity of five billion dollars or more shall set out in the notice of a meeting the number of eligible votes, as defined under subsection 156.09(1), that may be cast at the meeting as of the record date for determining those shareholders entitled to receive the notice of meeting, or if there are to be separate votes of shareholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting.
Publication in newspaper
(3) In addition to the notice required under subsection (1), where any class of shares of a bank holding company is publicly traded on a recognized stock exchange in Canada, notice of the time and place of a meeting of shareholders shall be published once a week for at least four consecutive weeks before the date of the meeting in a newspaper in general circulation in the place where the head office of the bank holding company is situated and in each place in Canada where the bank holding
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company has a transfer agent or where a transfer of the bank holding company’s shares may be recorded. When notice not required
728. (1) A notice of a meeting of shareholders is not required to be sent to shareholders who were not registered on the records of the bank holding company or its transfer agent on the record date fixed or determined under subsection 726(3) or (4).
Effect of default
(2) Failure to receive a notice of a meeting of shareholders does not deprive a shareholder of the right to vote at the meeting.
Notice of adjourned meeting
729. (1) If a meeting of shareholders is adjourned for less than thirty days, it is not necessary, unless the by-laws otherwise provide, to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned.
Notice where adjournment is longer
(2) If a meeting of shareholders is adjourned by one or more adjournments for a total of thirty days or more, notice of the continuation of the meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for a total of more than ninety days, subsection 156.04(1) does not apply.
Special business
730. (1) All matters dealt with at a special meeting of shareholders and all matters dealt with at an annual meeting of shareholders, except consideration of the financial statements, report of the auditor, election of directors, remuneration of directors and reappointment of the incumbent auditor, are deemed to be special business.
Notice of special business
(2) Notice of a meeting of shareholders at which special business is to be transacted must (a) state the nature of the special business in sufficient detail to permit a shareholder to form a reasoned judgment thereon; and (b) contain the text of any special resolution to be submitted to the meeting.
Waiver of notice
731. (1) A shareholder and any other person entitled to attend a meeting of shareholders may in any manner waive notice of a meeting of shareholders.
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Attendance is waiver
(2) Attendance at a meeting of shareholders is a waiver of notice of the meeting, except when a person attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Shareholder’s proposal
732. (1) A shareholder entitled to vote at an annual meeting of shareholders of a bank holding company may (a) submit to the bank holding company notice of any matter that the shareholder proposes to raise at the meeting; and (b) discuss at the meeting any matter in respect of which the shareholder would have been entitled to submit a proposal.
Circulation of proposal
(2) A bank holding company shall attach any proposal of a shareholder submitted for consideration at a meeting of shareholders to the notice of the meeting.
Shareholder’s statement
(3) If so requested by a shareholder who submits a proposal to a bank holding company, the bank holding company shall attach to the notice of the meeting a statement by the shareholder of not more than two hundred words in support of the proposal and the name and address of the shareholder.
Nominations for directors
(4) A proposal may include nominations for the election of directors if the proposal is signed by one or more holders of shares representing in the aggregate not less than 5 per cent of the shares or 5 per cent of the shares of a class of shares of the bank holding company entitled to vote at the meeting to which the proposal is to be presented.
Conditions precedent for proposals
(5) A bank holding company is not required to comply with subsections (2) and (3) if (a) the proposal is not submitted to the bank holding company at least ninety days before the anniversary date of the previous annual meeting of shareholders; (b) it clearly appears that the proposal is submitted by the shareholder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the bank holding company or its directors, officers or security holders, or primarily for the purpose of promoting general econom���
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ic, political, racial, religious, social or similar causes; (c) the bank holding company, at the shareholder’s request, attached a proposal to the notice of a meeting of shareholders held within two years preceding the receipt of the request, and the shareholder failed to present the proposal, in person or by proxy, at the meeting; (d) substantially the same proposal was submitted to shareholders in a dissident’s proxy circular relating to, or was attached to the notice of, a meeting of shareholders held within two years preceding the receipt of the shareholder’s request and the proposal was defeated; or (e) the rights conferred by subsections (1) to (4) are being abused to secure publicity. Immunity for proposal and statement
(6) No bank holding company or person acting on behalf of a bank holding company incurs any liability by reason only of circulating a proposal or statement in compliance with subsections (2) and (3).
Refusal of proposal
733. (1) If a bank holding company refuses to attach a proposal to a notice of a meeting, the bank holding company shall, within ten days after receiving the proposal, notify the shareholder submitting the proposal of its intention to not attach the proposal to the notice of the meeting and send to the shareholder a statement of the reasons for the refusal.
Appeal to court
(2) On the application of a shareholder claiming to be aggrieved by a bank holding company’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order it thinks fit.
Appeal to court
(3) A bank holding company or any person claiming to be aggrieved by a proposal may apply to a court for an order permitting the bank holding company to not attach the proposal to the notice of a meeting, and the court, if it is satisfied that subsection 732(5) applies, may make such order as it thinks fit.
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Notice to Superintendent
(4) An applicant under subsection (2) or (3) shall give the Superintendent written notice of the application and the Superintendent may appear and be heard at the hearing of the application in person or by counsel.
Shareholder list
734. (1) A bank holding company shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 727(1)(a), arranged in alphabetical order and showing the number of shares held by each shareholder, which list must be prepared (a) if a record date is fixed under subsection 726(3), not later than ten days after that date; or (b) if no record date is fixed, (i) at the close of business on the day immediately preceding the day on which the notice is given, or (ii) where no notice is given, on the day on which the meeting is held.
Effect of list
(2) Where a bank holding company fixes a record date under subsection 726(3), a person named in the list prepared under paragraph (1)(a) is, subject to this Part, entitled to vote the shares shown opposite that person’s name at the meeting to which the list relates, except to the extent that (a) the person has transferred the ownership of any of those shares after the record date, and (b) the transferee of those shares (i) produces properly endorsed share certificates, or (ii) otherwise establishes that the transferee owns the shares, and demands, not later than ten days before the meeting or such shorter period before the meeting as the by-laws of the bank holding company provide, that the transferee’s name be included in the list before the meeting, in which case the transferee may vote those transferred shares at the meeting.
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(3) Where a bank holding company does not fix a record date under subsection 726(3), a person named in the list prepared under paragraph (1)(b) is, subject to this Part, entitled to vote the shares shown opposite that person’s name at the meeting to which the list relates, except to the extent that (a) the person has transferred the ownership of any of those shares after the date on which a list was prepared under subparagraph (1)(b)(i), and (b) the transferee of those shares (i) produces properly endorsed share certificates, or (ii) otherwise establishes that the transferee owns the shares, and demands, not later than ten days before the meeting or such shorter period before the meeting as the by-laws of the bank holding company provide, that the transferee’s name be included in the list before the meeting, in which case the transferee may vote those transferred shares at the meeting.
Examination of list
(4) A shareholder of a bank holding company may examine the list of shareholders referred to in subsection (1) (a) during usual business hours at the head office of the bank holding company or at the place where its central securities register is maintained; and (b) at the meeting of shareholders for which the list was prepared.
Quorum
735. (1) Unless the by-laws otherwise provide, a quorum of shareholders is present at a meeting of shareholders if the holders of a majority of the shares who are entitled to vote at the meeting are present in person or represented by proxyholders.
Quorum present at opening
(2) If a quorum is present at the opening of a meeting of shareholders, the shareholders present may, unless the by-laws otherwise provide, proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting.
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Quorum not present at opening
(3) If a quorum is not present at the opening of a meeting of shareholders, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other business.
One shareholder meeting
736. If a bank holding company has only one shareholder, or only one holder of any class or series of shares, the shareholder present in person or represented by a proxyholder constitutes a meeting of shareholders or a meeting of shareholders of that class or series.
One share — one vote
737. Subject to subsection 156.09, if a share of a bank holding company entitles the holder of the share to vote at a meeting of shareholders, that share entitles the shareholder to one vote at the meeting.
Representative shareholder
738. (1) If an entity is a shareholder of a bank holding company, the bank holding company shall recognize any natural person authorized by a resolution of the directors or governing body or similar authority of the entity to represent it at meetings of shareholders of the bank holding company.
Powers
(2) A natural person authorized under subsection (1) to represent an entity may exercise on behalf of the entity all the powers the entity could exercise if it were a natural person as well as a shareholder.
Joint shareholders
739. Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present in person or represented by proxyholder vote, they shall vote as one on the shares jointly held by them.
Voting by hands or ballot
740. (1) Unless the by-laws otherwise provide, voting at a meeting of shareholders shall take place by show of hands except when a ballot is demanded by either a shareholder or proxyholder entitled to vote at the meeting.
Ballot
(2) A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands.
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741. (1) Except where a written statement is submitted by a director under section 762 or by an auditor under subsection 853(1), (a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and (b) a resolution in writing dealing with all matters required by this Part to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Part relating to meetings of shareholders.
Filing resolution
(2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders.
Requisitioned meeting
742. (1) Shareholders who together hold not less than 5 per cent of the issued and outstanding shares of a bank holding company that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition.
Form
(2) A requisition referred to in subsection (1) (a) must state the business to be transacted at the meeting and must be sent to each director and to the head office of the bank holding company; and (b) may consist of several documents of like form, each signed by one or more shareholders.
Directors calling meeting
(3) On receipt of a requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless (a) a record date has been fixed under subsection 726(3) and notice thereof has been given under subsection 726(5); (b) the directors have called a meeting of shareholders and have given notice thereof under section 727; or (c) the business of the meeting as stated in the requisition includes matters described in paragraphs 732(5)(b) to (e).
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Shareholders’ power
(4) If the directors do not call a meeting within twenty-one days after receiving the requisition referred to in subsection (1), any shareholder who signed the requisition may call the meeting.
Procedure
(5) A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws and this Part.
Reimbursement
(6) Unless the shareholders otherwise resolve at a meeting called under subsection (4), the bank holding company shall reimburse the shareholders for any expenses reasonably incurred by them in requisitioning, calling and holding the meeting.
Meeting called by court
743. (1) Where it is impracticable (a) to call a meeting of shareholders of a bank holding company in the manner in which meetings of those shareholders are to be called, or (b) to conduct the meeting in the manner required by the by-laws and this Part, or where a court thinks fit to do so for any other reason, the court, on the application of a director or a shareholder entitled to vote at the meeting, may order a meeting to be called, held and conducted in such manner as the court directs.
Varying quorum
(2) Without restricting the generality of subsection (1), a court may order that the quorum required by the by-laws or this Part be varied or dispensed with at a meeting called, held and conducted pursuant to this section.
Valid meeting
(3) A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the bank holding company duly called, held and conducted.
Court review of election
744. (1) A bank holding company or a shareholder or director of a bank holding company may apply to a court to resolve any dispute in respect of the election or appointment of a director or an auditor of the bank holding company.
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(2) On an application under subsection (1), a court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (b) an order declaring the result of the disputed election or appointment; (c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the bank holding company until a new election is held or the new appointment is made; and (d) an order determining the voting rights of shareholders and of persons claiming to own shares.
Notice to Superintendent
745. (1) A person who makes an application under subsection 743(1) or 744(1) shall give notice of the application to the Superintendent before the hearing and shall deliver a copy of the order of the court, if any, to the Superintendent.
Superintendent representation
(2) The Superintendent may appear and be heard in person or by counsel at the hearing of an application referred to in subsection (1). Proxies and Voting Restrictions
Sections 156.01 to 156.09 apply
746. Sections 156.01 to 156.09 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Part’’ in those sections are to be read as references to ‘‘this Division’’; (c) the English version of subsection 156.05(1) is to be read without reference to ‘‘or auditors’’; (d) the reference to ‘‘section 375’’ in subsection 156.09(4) is to be read as a reference to ‘‘section 878’’; and
Institutions f (e) the reference to ‘‘subsection 138(1.1)’’ in subsection 156.09(11) is to be read as a reference to ‘‘subsection 727(2)’’. Directors and Officers Duties
Duty to manage
747. (1) Subject to this Act, the directors of a bank holding company shall manage or supervise the management of the business and affairs of the bank holding company.
Specific duties
(2) Without limiting the generality of subsection (1), the directors of a bank holding company shall (a) establish an audit committee to perform the duties referred to in subsections 782(3) and (4); (b) establish procedures to resolve conflicts of interest, including techniques for the identification of potential conflict situations and for restricting the use of confidential information; (c) designate a committee of the board of directors to monitor the procedures referred to in paragraph (b); and (d) establish investment and lending policies, standards and procedures in accordance with section 927.
Exception
(3) Paragraph (2)(a) does not apply to the directors of a bank holding company if (a) all the voting shares of the bank holding company are beneficially owned by a Canadian financial institution described in any of paragraphs (a) to (d) of the definition ‘‘financial institution’’ in section 2; and (b) the audit committee of the financial institution performs for and on behalf of the bank holding company all the functions that would otherwise be required to be performed by the audit committee of the bank holding company under this Part.
Duty of care
748. (1) Every director and officer of a bank holding company in exercising any of the powers of a director or an officer and discharging any of the duties of a director or an officer shall
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(a) act honestly and in good faith with a view to the best interests of the bank holding company; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Duty to comply
(2) Every director, officer and employee of a bank holding company shall comply with this Act, the regulations, the bank holding company’s incorporating instrument and the by-laws of the bank holding company.
No exculpation
(3) No provision in any contract, in any resolution or in the by-laws of a bank holding company relieves any director, officer or employee of the bank holding company from the duty to act in accordance with this Act and the regulations or relieves a director, officer or employee from liability for a breach thereof. Qualification and Number — Directors
Minimum number of directors
749. (1) A bank holding company shall have at least seven directors.
Residency requirement
(2) At least one half of the directors of a bank holding company that is a subsidiary of a foreign bank and at least two-thirds of the directors of any other bank holding company must be, at the time of each director’s election or appointment, resident Canadians.
Disqualified persons
750. The following persons are disqualified from being directors of a bank holding company: (a) a person who is less than eighteen years of age; (b) a person who is of unsound mind and has been so found by a court in Canada or elsewhere; (c) a person who has the status of a bankrupt; (d) a person who is not a natural person; (e) a person who is prohibited by subsection 156.09(9) or section 901 or 914 from exercising voting rights attached to shares of the bank holding company; (f) a person who is an officer, director or full time employee of an entity that is prohibited
Institutions f by subsection 156.09(9) or section 901 or 914 from exercising voting rights attached to shares of the bank holding company; (g) a person who is an agent or employee of Her Majesty in right of Canada or in right of a province; (h) a minister of Her Majesty in right of Canada or in right of a province; and (i) a person who is an agent or employee of the government of a foreign country or any political subdivision thereof.
No shareholder requirement
751. A director of a bank holding company is not required to hold shares of the bank holding company.
Limit on directors
752. No more than 15 per cent of the directors of a bank holding company may, at each director’s election or appointment, be employees of the bank holding company or a subsidiary of the bank holding company, except that up to four persons who are employees of the bank holding company or a subsidiary of the bank holding company may be directors of the bank holding company if those directors constitute not more than one half of the directors of the bank holding company. Election and Tenure — Directors
Number of directors
753. (1) Subject to section 217, subsection 749(1) and section 756, the directors of a bank holding company shall, by by-law, determine the number of directors or the minimum and maximum number of directors, but no by-law that decreases the number of directors shortens the term of an incumbent director.
Election at annual meeting
(2) A by-law made pursuant to subsection (1) that provides for a minimum and maximum number of directors may provide that the number of directors to be elected at any annual meeting of the shareholders be such number as is fixed by the directors prior to the annual meeting.
Term of directors
754. (1) Except where this Part or the by-laws of a bank holding company provide for cumulative voting, a bank holding company may, by by-law, provide that the directors be elected for terms of one, two or three years.
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Term of one, two or three years
(2) A director elected for a term of one, two or three years holds office until the close of the first, second or third annual meeting of shareholders, as the case may be, following the election of the director.
No stated term
(3) A director who is not elected for an expressly stated term of office ceases to hold office at the close of the next annual meeting of shareholders following the election of the director.
Tenure of office
(4) It is not necessary that all directors elected at a meeting of shareholders hold office for the same term.
Tenure of office
(5) If a by-law of a bank holding company provides that the directors be elected for a term of two or three years, it may also provide that the term of office of each director be for the whole of that term, or that, as nearly as may be, one half of the directors retire each year if the term is two years, and that one third of the directors retire each year if the term is three years.
Composition requirements
(6) If a director of a bank holding company is elected or appointed for a term of more than one year, the bank holding company shall comply with subsection 749(2) and section 752 at each annual meeting of shareholders during the director’s term of office as if that director were elected or appointed on that date.
Determining election of directors
755. (1) Except where this Part or the by-laws of a bank holding company provide for cumulative voting, the persons, to the number authorized to be elected, who receive the greatest number of votes at an election of directors of a bank holding company shall be the directors thereof.
Determining election of directors
(2) If, at any election of directors referred to in subsection (1), two or more persons receive an equal number of votes and there are not sufficient vacancies remaining to enable all the persons receiving an equal number of votes to be elected, the directors who receive a greater number of votes or the majority of them shall, in order to complete the full
Institutions f number of directors, determine which of the persons so receiving an equal number of votes are to be elected.
Cumulative voting
756. (1) Where this Part or the by-laws provide for cumulative voting, (a) there shall be a stated number of directors fixed by by-law and not a minimum and maximum number of directors; (b) each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by the shareholder multiplied by the number of directors to be elected, and the shareholder may cast all such votes in favour of one candidate or distribute them among the candidates in any manner; (c) a separate vote of shareholders shall be taken with respect to each candidate nominated for director unless a resolution is passed unanimously permitting two or more persons to be elected by a single vote; (d) if a shareholder has voted for more than one candidate without specifying the distribution of the votes among the candidates, the shareholder is deemed to have distributed the votes equally among the candidates for whom the shareholder voted; (e) if the number of candidates nominated for director exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled; (f) each director ceases to hold office at the close of the next annual meeting of shareholders following the director’s election; (g) a director may not be removed from office if the votes cast against the removal would be sufficient to elect the director and those votes could be voted cumulatively at an election at which the same total number of votes were cast and the same number of directors required by the by-laws were then being elected; and (h) the number of directors required by the by-laws may not be decreased if the votes cast against the motion to decrease would
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be sufficient to elect a director and those votes could be voted cumulatively at an election at which the same total number of votes were cast and the same number of directors required by the by-laws were then being elected. Mandatory cumulative voting
(2) Where the aggregate of the voting shares beneficially owned by a person and any entities controlled by the person carries more than 10 per cent of the voting rights attached to all the outstanding voting shares of a bank holding company, the directors shall be elected by cumulative voting.
Exception
(3) Subsection (2) does not apply if all the voting shares of the bank holding company that are outstanding are beneficially owned by (a) one person; (b) one person and one or more entities controlled by that person; or (c) one or more entities controlled by the same person.
Exception
(4) Subsection (2) does not apply to a widely held bank holding company with equity of five billion dollars or more or to a widely held bank holding company that controls a bank to which subsection 378(1) applies.
Transitional election
(5) Where this Part or the by-laws of a bank holding company provide for cumulative voting, the shareholders of the bank holding company shall (a) at the first annual meeting of shareholders held not earlier than ninety days following the date that cumulative voting is required under subsection (2) or provided for in the by-laws, and (b) at each succeeding annual meeting, elect the stated number of directors to hold office until the close of the next annual meeting of shareholders following their election.
Exception
(6) Nothing in this Part precludes the holders of any class or series of shares of a bank holding company from having an exclusive right to elect one or more directors.
2001 Re-election of directors
Institutions f 757. A director who has completed a term of office is, if otherwise qualified, eligible for re-election. Incomplete Elections and Director Vacancies
Void election or appointment
758. (1) If, immediately after the time of any purported election or appointment of directors, the board of directors would fail to comply with subsection 749(2) or section 752, the purported election or appointment of all persons purported to be elected or appointed at that time is void unless the directors, within forty-five days after the discovery of the non-compliance, develop a plan, approved by the Superintendent, to rectify the non-compliance.
Failure to elect minimum
(2) Where, at the close of a meeting of shareholders of a bank holding company, the shareholders have failed to elect the number or minimum number of directors required by this Part or the by-laws of a bank holding company, the purported election of directors at the meeting (a) is valid if the directors purported to be elected and those incumbent directors, if any, whose terms did not expire at the close of the meeting, together constitute a quorum; or (b) is void if the directors purported to be elected and those incumbent directors, if any, whose terms did not expire at the close of the meeting, together do not constitute a quorum.
Directors where elections incomplete or void
759. (1) Notwithstanding subsections 754(2) and (3) and paragraphs 756(1)(f) and 760(1)(a), where subsection 758(1) or (2) applies at the close of any meeting of shareholders of a bank holding company, the board of directors shall, until their successors are elected or appointed, consist solely of (a) where paragraph 758(2)(a) applies, the directors referred to in that paragraph; or (b) where subsection 758(1) or paragraph 758(2)(b) applies, the persons who were the incumbent directors immediately before the meeting.
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Where there is no approved rectification plan
(2) Notwithstanding subsections 754(2) and (3) and paragraphs 756(1)(f) and 760(1)(a), where a plan to rectify the non-compliance referred to in subsection 758(1) has not been approved by the Superintendent by the end of the forty-five day period referred to in that subsection, the board of directors shall, until their successors are elected or appointed, consist solely of the persons who were the incumbent directors immediately before the meeting at which the purported election or appointment referred to in that subsection occurred.
Directors to call meeting
(3) Where subsection (1) or (2) applies, the board of directors referred to in that subsection shall without delay call a special meeting of shareholders to fill the vacancies, where paragraph 758(2)(a) applies, or elect a new board of directors, where subsection 758(1) or paragraph 758(2)(b) applies.
Shareholder may call meeting
(4) Where the directors fail to call a special meeting required by subsection (3), the meeting may be called by any shareholder.
Ceasing to hold office
760. (1) A director ceases to hold office (a) at the close of the annual meeting at which the director’s term of office expires; (b) when the director dies or resigns; (c) when the director becomes disqualified under section 750 or ineligible to hold office pursuant to subsection 790(2); (d) when the director is removed under section 761; or (e) when the director is removed from office under section 963 or 964.
Date of resignation
(2) The resignation of a director of a bank holding company becomes effective at the time a written resignation is sent to the bank holding company by the director or at the time specified in the resignation, whichever is later.
Removal of director
761. (1) Subject to paragraph 756(1)(g), the shareholders of a bank holding company may by resolution at a special meeting remove any director or all the directors from office.
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Exception
(2) Where the holders of any class or series of shares of a bank holding company have the exclusive right to elect one or more directors, a director so elected may be removed only by a resolution at a meeting of the shareholders of that class or series.
Vacancy by removal
(3) Subject to paragraphs 756(1)(b) to (e), a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed or, if not so filled, may be filled under section 765 or 766.
Statement of director
762. (1) A director who (a) resigns, (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the director from office, or (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed or elected to fill the office of director, whether because of the director’s resignation or removal or because the director’s term of office has expired or is about to expire, is entitled to submit to the bank holding company a written statement giving the reasons for the resignation or the reasons why the director opposes any proposed action or resolution.
Statement re disagreement
(2) Where a director resigns as a result of a disagreement with the other directors or the officers of a bank holding company, the director shall submit to the bank holding company and the Superintendent a written statement setting out the nature of the disagreement.
Circulation of statement
763. (1) A bank holding company shall without delay on receipt of a director’s statement referred to in subsection 762(1) relating to a matter referred to in paragraph 762(1)(b) or (c), or a director’s statement referred to in subsection 762(2), send a copy of it to each shareholder entitled to receive a notice of meetings and to the Superintendent, unless the statement is attached to a notice of a meeting.
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Immunity for statement
(2) No bank holding company or person acting on its behalf incurs any liability by reason only of circulating a director’s statement in compliance with subsection (1).
Shareholders filling vacancy
764. The by-laws of a bank holding company may provide that a vacancy among the directors is to be filled only (a) by a vote of the shareholders; or (b) by a vote of the holders of any class or series of shares having an exclusive right to elect one or more directors if the vacancy occurs among the directors elected by the holders of that class or series.
Directors filling vacancy
765. (1) Notwithstanding section 772 but subject to subsection (2) and sections 764 and 766, a quorum of directors may fill a vacancy among the directors except a vacancy among the directors resulting from a change in the by-laws by which the number or minimum number of directors is increased or from a failure to elect the number or minimum number of directors required by the by-laws.
Where composition fails
(2) Notwithstanding sections 764 and 772, where by reason of a vacancy the number of directors or the composition of the board of directors fails to meet any of the requirements of section 749 or section 752, the directors who, in the absence of any by-law, would be empowered to fill that vacancy shall do so forthwith.
Class vacancy
766. Notwithstanding section 772, where the holders of any class or series of shares of a bank holding company have an exclusive right to elect one or more directors and a vacancy occurs among those directors, then, subject to section 764, (a) the remaining directors elected by the holders of that class or series may fill the vacancy except a vacancy resulting from an increase in the number or minimum number of directors for that class or series or from a failure to elect the number or minimum number of directors for that class or series; (b) if there are no such remaining directors and, by reason of the vacancy, the number of directors or the composition of the board
Institutions f of directors fails to meet any of the requirements of section 749 or section 752, the other directors may fill that vacancy; and (c) if there are no such remaining directors and paragraph (b) does not apply, any holder of shares of that class or series may call a meeting of the holders thereof for the purpose of filling the vacancy.
Unexpired term
767. Unless the by-laws otherwise provide, a director elected or appointed to fill a vacancy holds office for the unexpired term of the director’s predecessor in office.
Additional directors
768. (1) The directors of a bank holding company may appoint one or more additional directors where the by-laws of the bank holding company allow them to do so and the by-laws determine the minimum and maximum numbers of directors.
Term of office
(2) A director appointed under subsection (1) holds office for a term expiring not later than the close of the next annual meeting of shareholders of the bank holding company.
Limit on number appointed
(3) The total number of directors appointed under subsection (1) may not exceed one third of the number of directors elected at the previous annual meeting of shareholders of the bank holding company. Meetings of the Board
Meetings required
769. (1) The directors shall meet at least four times during each financial year.
Place for meetings
(2) The directors may meet at any place unless the by-laws provide otherwise.
Notice for meetings
(3) The notice for the meetings must be given as required by the by-laws.
Notice of meeting
770. (1) A notice of a meeting of directors shall specify each matter referred to in section 785 that is to be dealt with at the meeting but, unless the by-laws otherwise provide, need not otherwise specify the purpose of or the business to be transacted at the meeting.
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Waiver of notice
(2) A director may in any manner waive notice of a meeting of directors and the attendance of a director at a meeting of directors is a waiver of notice of that meeting except where the director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Adjourned meeting
(3) Notice of an adjourned meeting of directors is not required to be given if the time and place of the adjourned meeting were announced at the original meeting.
Quorum
771. (1) Subject to section 772, the number of directors referred to in subsection (2) constitutes a quorum at any meeting of directors or a committee of directors and, notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors.
Quorum
(2) The number of directors constituting a quorum at any meeting of directors or a committee of directors shall be (a) a majority of the minimum number of directors required by this Part for the board of directors or a committee of directors; or (b) such greater number of directors than the number calculated pursuant to paragraph (a) as may be established by the by-laws of the bank holding company.
Director continues to be present
(3) Any director present at a meeting of directors who is not present at any particular time during the meeting for the purposes of subsection 790(1) shall be considered as being present for the purposes of this section.
Resident Canadian majority
772. (1) The directors of a bank holding company shall not transact business at a meeting of directors unless (a) in the case of a bank holding company that is a subsidiary of a foreign bank, at least one half of the directors present are resident Canadians; or (b) in any other case, a majority of the directors present are resident Canadians.
Exception
(2) Notwithstanding subsection (1), the directors of a bank holding company may transact business at a meeting of directors or of a committee of directors without the
Institutions f required proportion of directors present who are resident Canadians if (a) a director who is a resident Canadian unable to be present approves, in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting; and (b) there would have been present the required proportion of directors who are resident Canadians had that director been present at the meeting.
Electronic meeting
773. (1) Subject to the by-laws of a bank holding company, a meeting of directors or of a committee of directors may be held by means of such telephonic, electronic or other communications facilities as permit all persons participating in the meeting to communicate adequately with each other during the meeting.
Deemed present
(2) A director participating in a meeting by any means referred to in subsection (1) is deemed for the purposes of this Part to be present at that meeting.
Resolution outside board meeting
774. (1) A resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of directors is as valid as if it had been passed at a meeting of directors.
Filing directors’ resolution
(2) A copy of the resolution referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors.
Resolution outside committee meeting
(3) A resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of a committee of directors, other than a resolution of the audit committee in carrying out its duties under subsection 782(3), is as valid as if it had been passed at a meeting of that committee.
Filing committee resolution
(4) A copy of the resolution referred to in subsection (3) shall be kept with the minutes of the proceedings of that committee.
Dissent of director
775. (1) A director of a bank holding company who is present at a meeting of directors or a committee of directors is deemed to have consented to any resolution passed or action taken at that meeting unless
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(a) the director requests that the director’s dissent be entered or the director’s dissent is entered in the minutes of the meeting; (b) the director sends a written dissent to the secretary of the meeting before the meeting is adjourned; or (c) the director sends the director’s dissent by registered mail or delivers it to the head office of the bank holding company immediately after the meeting is adjourned. Loss of right to dissent
(2) A director of a bank holding company who votes for or consents to a resolution is not entitled to dissent under subsection (1).
Dissent of absent director
(3) A director of a bank holding company who is not present at a meeting at which a resolution is passed or action taken is deemed to have consented thereto unless, within seven days after the director becomes aware of the resolution, the director (a) causes the director’s dissent to be placed with the minutes of the meeting; or (b) sends the director’s dissent by registered mail or delivers it to the head office of the bank holding company.
Record of attendance
776. (1) A bank holding company shall keep a record of the attendance at each meeting of directors and each committee meeting of directors.
Statement to shareholders
(2) A bank holding company shall attach to the notice of each annual meeting it sends to its shareholders a statement showing, in respect of the financial year immediately preceding the meeting, the total number of directors’ meetings and directors’ committee meetings held during the financial year and the number of those meetings attended by each director.
Meeting required by Superintendent
777. (1) Where in the opinion of the Superintendent it is necessary, the Superintendent may, by notice in writing, require a bank holding company to hold a meeting of directors of the bank holding company to consider the matters set out in the notice.
2001 Attendance of Superintendent
Institutions f (2) The Superintendent may attend and be heard at a meeting referred to in subsection (1). By-laws
By-laws
778. (1) Unless this Part otherwise provides, the directors of a bank holding company may by resolution make, amend or repeal any by-law that regulates the business or affairs of the bank holding company.
Shareholder approval
(2) The directors shall submit a by-law, or an amendment to or a repeal of a by-law, that is made under subsection (1) to the shareholders at the next meeting of shareholders, and the shareholders may, by resolution, confirm or amend the by-law, amendment or repeal.
Effective date of by-law
(3) Unless this Part otherwise provides, a by-law, or an amendment to or a repeal of a by-law, is effective from the date of the resolution of the directors under subsection (1) until it is confirmed, confirmed as amended or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed, or confirmed as amended, it continues in effect in the form in which it was so confirmed.
Effect where no shareholder approval
(4) If a by-law, or an amendment to or a repeal of a by-law, is rejected by the shareholders, or is not submitted to the shareholders by the directors as required under subsection (2), the by-law, amendment or repeal ceases to be effective from the date of its rejection or the date of the next meeting of shareholders, as the case may be, and no subsequent resolution of the directors to make, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed, or confirmed as amended, by the shareholders.
Shareholder proposal of by-law
779. A shareholder entitled to vote at an annual meeting of shareholders may, in accordance with sections 732 and 733, make a proposal to make, amend or repeal a by-law.
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Deemed by-laws
780. (1) Any matter that, immediately prior to the day a body corporate is continued as a bank holding company, was provided for in the incorporating instrument of the body corporate, and that, under this Part, would be provided for in the by-laws of a bank holding company, is deemed to be provided for in the by-laws of the bank holding company.
By-law prevails
(2) Where a by-law of the bank holding company made in accordance with sections 778 and 779 amends or repeals any matter referred to in subsection (1), the by-law prevails. Committees of the Board
Committees
781. The directors of a bank holding company may appoint from their number, in addition to the committees referred to in subsection 747(2), such other committees as they deem necessary and, subject to section 785, delegate to those committees such powers of the directors, and assign to those committees such duties, as the directors consider appropriate.
Audit committee
782. (1) The audit committee of a bank holding company shall consist of at least three directors.
Membership
(2) None of the members of the audit committee may be officers or employees of the bank holding company or any of its subsidiaries.
Duties of audit committee
(3) The audit committee of a bank holding company shall (a) review the annual statement of the bank holding company before the annual statement is approved by the directors; (b) review such returns of the bank holding company as the Superintendent may specify; (c) require the management of the bank holding company to implement and maintain appropriate internal control procedures; (d) review, evaluate and approve those procedures;
Institutions f (e) review such investments and transactions that could adversely affect the wellbeing of the bank holding company as the auditor or any officer of the bank holding company may bring to the attention of the committee; (f) meet with the auditor to discuss the annual statement and the returns and transactions referred to in this subsection; and (g) meet with the chief internal auditor of the bank holding company, or the officer or employee of the bank holding company acting in a similar capacity, and with management of the bank holding company, to discuss the effectiveness of the internal control procedures established for the bank holding company.
Report
(4) In the case of the annual statement and returns of a bank holding company that under this Part must be approved by the directors of the bank holding company, the audit committee of the bank holding company shall report thereon to the directors before the approval is given.
Required meeting of directors
(5) The audit committee of a bank holding company may call a meeting of the directors of the bank holding company to consider any matter of concern to the committee. Directors and Officers — Authority
Chief executive officer
783. The directors of a bank holding company shall appoint from their number a chief executive officer who must be ordinarily resident in Canada and, subject to section 785, may delegate to that officer any of the powers of the directors.
Appointment of officers
784. (1) The directors of a bank holding company may, subject to the by-laws, designate the offices of the bank holding company, appoint officers thereto, specify the duties of those officers and delegate to them powers, subject to section 785, to manage the business and affairs of the bank holding company.
Directors as officers
(2) Subject to section 752, a director of a bank holding company may be appointed to any office of the bank holding company.
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Two or more offices
(3) Two or more offices of a bank holding company may be held by the same person.
Limits on power to delegate
785. The directors of a bank holding company may not delegate any of the following powers, namely, the power to (a) submit to the shareholders a question or matter requiring the approval of the shareholders; (b) fill a vacancy among the directors or a committee of directors or in the office of the auditor of the bank holding company; (c) issue or cause to be issued securities except in the manner and on terms authorized by the directors; (d) declare a dividend; (e) authorize the redemption or other acquisition by the bank holding company pursuant to section 715 of shares issued by the bank holding company; (f) authorize the payment of a commission on a share issue; (g) approve a management proxy circular; (h) except as provided in this Part, approve the annual statement of the bank holding company and any other financial statements issued by the bank holding company; or (i) adopt, amend or repeal by-laws.
Remuneration of directors, officers and employees
786. (1) Subject to this section and the by-laws, the directors of a bank holding company may fix the remuneration of the directors, officers and employees of the bank holding company.
By-law required
(2) No remuneration shall be paid to a director as director until a by-law fixing the aggregate of all amounts that may be paid to all directors in respect of directors’ remuneration during a fixed period of time has been confirmed by special resolution.
Validity of acts
787. (1) An act of a director or an officer of a bank holding company is valid notwithstanding a defect in the director’s qualification or an irregularity in the director’s election or in the appointment of the director or officer.
Institutions f
Validity of acts
(2) An act of the board of directors of a bank holding company is valid notwithstanding a defect in the composition of the board or an irregularity in the election of the board or in the appointment of a member of the board.
Right to attend meetings
788. A director of a bank holding company is entitled to attend and to be heard at every meeting of shareholders. Conflicts of Interest
Disclosure of interest
789. (1) A director or an officer of a bank holding company who (a) is a party to a material contract or proposed material contract with the bank holding company, (b) is a director or an officer of any entity that is a party to a material contract or proposed material contract with the bank holding company, or (c) has a material interest in any person who is a party to a material contract or proposed material contract with the bank holding company shall disclose in writing to the bank holding company or request to have entered in the minutes of the meetings of directors the nature and extent of that interest.
Time of disclosure for director
(2) The disclosure required by subsection (1) shall be made, in the case of a director, (a) at the meeting of directors at which a proposed contract is first considered; (b) if the director was not then interested in a proposed contract, at the first meeting after the director becomes so interested; (c) if the director becomes interested after a contract is made, at the first meeting after the director becomes so interested; or (d) if a person who is interested in a contract later becomes a director, at the first meeting after that person becomes a director.
Time of disclosure for officer
(3) The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director, (a) forthwith after the officer becomes aware that a proposed contract is to be considered or a contract has been considered at a meeting of directors;
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(b) if the officer becomes interested after a contract is made, forthwith after the officer becomes so interested; or (c) if a person who is interested in a contract later becomes an officer, forthwith after the person becomes an officer. Time of disclosure for director or officer
(4) If a material contract or proposed material contract is one that, in the ordinary course of business of the bank holding company, would not require approval by the directors or shareholders, a director or an officer referred to in subsection (1) shall disclose in writing to the bank holding company or request to have entered in the minutes of meetings of directors the nature and extent of the director’s or officer’s interest forthwith after the director or officer becomes aware of the contract or proposed contract.
Where director must abstain
790. (1) Where subsection 789(1) applies to a director in respect of a contract, the director shall not be present at any meeting of directors while the contract is being considered at the meeting or vote on any resolution to approve the contract unless the contract is (a) an arrangement by way of security for money lent to or obligations undertaken by the director for the benefit of the bank holding company or a subsidiary of the bank holding company; (b) a contract relating primarily to the director’s remuneration as a director or an officer, employee or agent of the bank holding company or a subsidiary of the bank holding company or an entity controlled by the bank holding company or an entity in which the bank holding company has a substantial investment; (c) a contract for indemnity under section 799 or for insurance under section 800; or (d) a contract with an affiliate of the bank holding company.
Ineligibility
(2) Any director who knowingly contravenes subsection (1) ceases to hold office as director and is not eligible, for a period of five years after the date on which the contravention occurred, for election or appointment as a director of any bank holding company, any
Institutions f insurance holding company or any financial institution that is incorporated or formed by or under an Act of Parliament.
Validity of acts
(3) An act of the board of directors of a bank holding company, or of a committee of the board of directors, is not invalid because a person acting as a director had ceased under subsection (2) to hold office as a director.
Continuing disclosure
791. For the purposes of subsection 789(1), a general notice to the directors by a director or an officer declaring that the director or officer is a director or officer of an entity, or has a material interest in a person, and is to be regarded as interested in any contract made with that entity or person, is a sufficient declaration of interest in relation to any contract so made.
Avoidance standards
792. A material contract between a bank holding company and one or more of its directors or officers, or between a bank holding company and another entity of which a director or an officer of the bank holding company is a director or an officer or between a bank holding company and a person in which the director or officer has a material interest, is neither void nor voidable (a) by reason only of that relationship, or (b) by reason only that a director with an interest in the contract is present at or is counted to determine the presence of a quorum at the meeting of directors or the committee of directors that authorized the contract, if the director or officer disclosed the interest in accordance with subsection 789(2), (3) or (4) or section 791 and the contract was approved by the directors or the shareholders and it was reasonable and fair to the bank holding company at the time it was approved.
Application to court
793. Where a director or an officer of a bank holding company fails to disclose an interest in a material contract in accordance with sections 789 and 791, a court may, on the application of the bank holding company or a shareholder of the bank holding company, set aside the contract on such terms as the court thinks fit.
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Liability, Exculpation and Indemnification Directors’ liability
794. (1) The directors of a bank holding company who vote for or consent to a resolution of the directors authorizing the issue of a share contrary to subsection 709(1) or the issue of subordinated indebtedness contrary to section 723 for a consideration other than money are jointly and severally liable to the bank holding company to make good any amount by which the consideration received is less than the fair equivalent of the money that the bank holding company would have received if the share or subordinated indebtedness had been issued for money on the date of the resolution.
Further liabilities
(2) The directors of a bank holding company who vote for or consent to a resolution of the directors authorizing (a) a redemption or purchase of shares contrary to section 715, (b) a reduction of capital contrary to section 718, (c) a payment of a dividend contrary to section 722, or (d) a payment of an indemnity contrary to section 799 are jointly and severally liable to restore to the bank holding company any amounts so distributed or paid and not otherwise recovered by the bank holding company and any amounts in relation to any loss suffered by the bank holding company.
Contribution
795. (1) A director who has satisfied a judgment in relation to the director’s liability under section 794 is entitled to contribution from the other directors who voted for or consented to the unlawful act on which the judgment was founded.
Recovery
(2) A director who is liable under section 794 is entitled to apply to a court for an order compelling a shareholder or other person to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other person contrary to section 715, 718, 722 or 799.
2001 Court order
Institutions f (3) Where an application is made to a court under subsection (2), the court may, where it is satisfied that it is equitable to do so, (a) order a shareholder or other person to pay or deliver to a director any money or property that was paid or distributed to the shareholder or other person contrary to section 715, 718, 722 or 799; (b) order a bank holding company to return or issue shares to a person from whom the bank holding company has purchased, redeemed or otherwise acquired shares; or (c) make any further order it thinks fit.
Limitation
796. An action to enforce a liability imposed by section 794 may not be commenced after two years from the date of the resolution authorizing the action complained of.
Liability for wages
797. (1) Subject to subsections (2) and (3), the directors of a bank holding company are jointly and severally liable to each employee of the bank holding company for all debts not exceeding six months wages payable to the employee for services performed for the bank holding company while they are directors.
Conditions precedent
(2) A director is not liable under subsection (1) unless (a) the bank holding company has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part; (b) the bank holding company has commenced liquidation and dissolution proceedings or has been dissolved and a claim for the debt has been proven within six months after the earlier of the date of commencement of the liquidation and dissolution proceedings and the date of dissolution; or (c) the bank holding company has made an assignment or a receiving order has been made against it under the Bankruptcy and Insolvency Act and a claim for the debt has been proved within six months after the assignment or receiving order.
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Limitations
(3) A director is not liable under subsection (1) unless the director is sued for a debt referred to in that subsection while a director or within two years after the director has ceased to be a director.
Amount due after execution
(4) Where execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.
Subrogation of director
(5) Where a director of a bank holding company pays a debt referred to in subsection (1) that is proven in liquidation and dissolution or bankruptcy proceedings, the director is entitled to any preference that the employee would have been entitled to and, where a judgment has been obtained, the director is entitled to an assignment of the judgment.
Contribution entitlement
(6) A director of a bank holding company who has satisfied a claim under this section is entitled to a contribution from the other directors of the bank holding company who are liable for the claim.
Reliance on statement
798. A director, an officer or an employee of a bank holding company is not liable under subsection 748(1) or (2) or section 794 or 797 if the director, officer or employee relies in good faith on (a) financial statements of the bank holding company represented to the director, officer or employee by an officer of the bank holding company or in a written report of the auditor of the bank holding company fairly to reflect the financial condition of the bank holding company; or (b) a report of an accountant, lawyer, notary or other professional person whose profession lends credibility to a statement made by the professional person.
Indemnification of directors and officers
799. (1) Except in respect of an action by or on behalf of the bank holding company to procure a judgment in its favour, a bank holding company may indemnify (a) a director or an officer of the bank holding company, (b) a former director or officer of the bank holding company, or
Institutions f (c) any person who acts or acted at the bank holding company’s request as a director or an officer of an entity of which the bank holding company is or was a shareholder or creditor against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment reasonably incurred by the person in respect of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a person referred to in any of paragraphs (a) to (c), if (d) the director, officer or person acted honestly and in good faith with a view to the best interests of the bank holding company, and (e) in the case of a criminal or administrative action or proceeding enforced by a monetary penalty, the director, officer or person had reasonable grounds for believing that the impugned conduct was lawful.
Indemnification in derivative action
(2) A bank holding company may, with the approval of a court, indemnify a person referred to in subsection (1), in respect of an action by or on behalf of the bank holding company or entity to procure a judgment in its favour to which the person is made a party by reason of being or having been a director or an officer of the bank holding company or entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the person in connection with that action if the person fulfils the conditions set out in paragraphs (1)(d) and (e).
Right to indemnity
(3) Notwithstanding anything in this section, a person referred to in subsection (1) is entitled to indemnity from the bank holding company in respect of all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the person in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a director or an officer of the bank holding company or an entity, if the person seeking indemnity
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(a) was substantially successful on the merits in the defence of the action or proceedings; and (b) fulfils the conditions set out in paragraphs (1)(d) and (e). Heirs
(4) A bank holding company may, to the extent referred to in subsections (1) to (3) in respect of the person, indemnify the heirs or personal representatives of any person the bank holding company may indemnify pursuant to subsections (1) to (3).
Directors’ and officers’ insurance
800. A bank holding company may purchase and maintain insurance for the benefit of any person referred to in section 799 against any liability incurred by the person (a) in the capacity of a director or an officer of the bank holding company, except where the liability relates to a failure to act honestly and in good faith with a view to the best interests of the bank holding company; or (b) in the capacity of a director or an officer of another entity where the person acts or acted in that capacity at the bank holding company’s request, except where the liability relates to a failure to act honestly and in good faith with a view to the best interests of the entity.
Application to court for indemnification
801. (1) A bank holding company or a person referred to in section 799 may apply to a court for an order approving an indemnity under that section and the court may so order and make any further order it thinks fit.
Notice to Superintendent
(2) An applicant under subsection (1) shall give the Superintendent written notice of the application and the Superintendent is entitled to appear and to be heard at the hearing of the application in person or by counsel.
Other notice
(3) On an application under subsection (1), the court may order notice to be given to any interested person and that person is entitled to appear and to be heard in person or by counsel at the hearing of the application.
Institutions f Fundamental Changes Amendments
Sections 215 to 222 apply
802. Sections 215 to 222 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; (c) the reference to ‘‘subsection 159(1) and section 168’’ in paragraph 217(1)(i) is to be read as a reference to ‘‘subsection 749(1) and section 756’’; and (d) the reference to ‘‘sections 143 and 144’’ in subsection 221(1) is to be read as a reference to ‘‘sections 732 and 733’’. Amalgamation
Application to amalgamate
803. (1) On the joint application of two or more bodies corporate incorporated by or under an Act of Parliament, including banks and bank holding companies, the Minister may issue letters patent amalgamating and continuing the applicants as one bank holding company.
Restriction
(2) Despite subsection (1), if one of the applicants is a bank holding company that controls a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, other than a bank in respect of which the Minister has specified that subsection 378(1) no longer applies, the Minister shall not issue letters patent referred to in subsection (1) unless (a) the amalgamated bank holding company would be a widely held bank holding company; or (b) the amalgamated bank holding company would be controlled by a widely held bank holding company that, at the time the application was made, controlled (i) the applicant, or
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Financial In (ii) any other applicant that is a bank holding company that controls a bank named in Schedule I as that Schedule read immediately before the day section 184 of the Financial Consumer Agency of Canada Act comes into force, other than a bank in respect of which the Minister has specified that subsection 378(1) no longer applies.
Restriction
(3) Despite subsection (1), if the amalgamated bank holding company would be a bank holding company with equity of five billion dollars or more, the Minister shall not issue letters patent referred to in that subsection unless the amalgamated bank holding company is (a) widely held; (b) controlled, within the meaning of paragraphs 3(1)(a) and (d), by a widely held bank, or by a widely held bank holding company, that controlled one of the applicants at the time the application was made; or (c) controlled, within the meaning of paragraph 3(1)(d), by a widely held insurance holding company, or by an eligible Canadian financial institution, within the meaning of subsection 370(1), other than a bank, or by an eligible foreign institution, within the meaning of subsection 370(1), that controlled one of the applicants at the time the application was made.
Amalgamation agreement
804. (1) Each applicant proposing to amalgamate shall enter into an amalgamation agreement.
Contents of agreement
(2) Every amalgamation agreement shall set out the terms and means of effecting the amalgamation and, in particular, (a) the name of the amalgamated bank holding company and the place in Canada where its head office is to be situated; (b) the name and place of ordinary residence of each proposed director of the amalgamated bank holding company; (c) the manner in which the shares of each applicant are to be converted into shares or other securities of the amalgamated bank holding company;
Institutions f (d) if any shares of an applicant are not to be converted into shares or other securities of the amalgamated bank holding company, the amount of money or securities that the holders of those shares are to receive in addition to or in lieu of shares or other securities of the amalgamated bank holding company; (e) the manner of payment of money in lieu of the issue of fractional shares of the amalgamated bank holding company or of any other body corporate that are to be issued in the amalgamation; (f) the proposed by-laws of the amalgamated bank holding company; (g) details of any other matter necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated bank holding company; and (h) the proposed effective date of the amalgamation.
Cross ownership of shares
(3) If shares of one of the applicants are held by or on behalf of another of the applicants, other than shares held in the capacity of a personal representative or by way of security, the amalgamation agreement must provide for the cancellation of those shares when the amalgamation becomes effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of those shares into shares of the amalgamated bank holding company.
Approval of agreement by Minister
805. An amalgamation agreement shall be submitted to the Minister for approval and any approval of such an agreement pursuant to subsection 806(4) by the holders of any class or series of shares of an applicant is invalid unless, prior to the date of the approval, the Minister has approved the agreement in writing.
Shareholder approval
806. (1) The directors of each applicant shall submit an amalgamation agreement for approval to a meeting of the holders of shares of the applicant body corporate of which they are directors and, subject to subsection (3), to the holders of each class or series of such shares.
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Right to vote
(2) Each share of an applicant carries the right to vote in respect of an amalgamation whether or not it otherwise carries the right to vote.
Class vote
(3) The holders of shares of a class or series of shares of an applicant are entitled to vote separately as a class or series in respect of an amalgamation if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the by-laws or incorporating instrument of the applicant, would entitle those holders to vote separately as a class or series.
Special resolution
(4) Subject to subsection (3), an amalgamation agreement is approved when the shareholders of each applicant that is a body corporate have approved the amalgamation by special resolution.
Termination
(5) An amalgamation agreement may provide that, at any time before the issue of letters patent of amalgamation, the agreement may be terminated by the directors of an applicant notwithstanding that the agreement has been approved by the shareholders of all or any of the applicant bodies corporate.
Vertical short-form amalgamation
807. (1) A bank holding company may, without complying with sections 804 to 806, amalgamate with one or more bodies corporate that are incorporated by or under an Act of Parliament if the body or bodies corporate, as the case may be, are wholly-owned subsidiaries of the bank holding company and (a) the amalgamation is approved by a resolution of the directors of the bank holding company and of each amalgamating subsidiary; and (b) the resolutions provide that (i) the shares of each amalgamating subsidiary will be cancelled without any repayment of capital in respect thereof, (ii) the letters patent of amalgamation and the by-laws of the amalgamated bank holding company will be the same as the incorporating instrument and the by-laws of the amalgamating bank holding company that is the holding body corporate, and
Institutions f (iii) no securities will be issued by the amalgamated bank holding company in connection with the amalgamation.
Horizontal short-form amalgamation
(2) Two or more bodies corporate incorporated by or under an Act of Parliament may amalgamate and continue as one bank holding company without complying with sections 804 to 806 if (a) at least one of the applicants is a bank holding company; (b) the applicants are all wholly-owned subsidiaries of the same holding body corporate; (c) the amalgamation is approved by a resolution of the directors of each of the applicants; and (d) the resolutions provide that (i) the shares of all applicants, except those of one of the applicants that is a bank holding company, will be cancelled without any repayment of capital in respect thereof, (ii) the letters patent of amalgamation and the by-laws of the amalgamated bank holding company will be the same as the incorporating instrument and the by-laws of the amalgamating bank holding company whose shares are not cancelled, and (iii) the stated capital of the amalgamating bank holding companies and bodies corporate whose shares are cancelled will be added to the stated capital of the amalgamating bank holding company whose shares are not cancelled.
Joint application to Minister
808. (1) Subject to subsection (2), unless an amalgamation agreement is terminated in accordance with subsection 806(5), the applicants shall, within three months after the approval of the agreement in accordance with subsection 806(4) or the approval of the directors in accordance with subsection 807(1) or (2), jointly apply to the Minister for letters patent of amalgamation continuing the applicants as one bank holding company.
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(2) No application for the issue of letters patent under subsection (1) may be made unless (a) notice of intention to make such an application has been published at least once a week for a period of four consecutive weeks in the Canada Gazette and in a newspaper in general circulation at or near the place where the head office of each applicant is situated; and (b) the application is supported by satisfactory evidence that the applicants have complied with the requirements of this Part relating to amalgamations.
Application of sections 672 to 674
(3) If two or more bodies corporate, none of which is a bank holding company, apply for letters patent under subsection (1), sections 672 to 674 apply in respect of the application with any modifications that the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one bank holding company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the sources of continuing financial support for any bank that will be a subsidiary of the amalgamated bank holding company; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of any bank that will be a subsidiary of the amalgamated bank holding company; (c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the amalgamated bank holding company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution;
Institutions f (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; (g) the opinion of the Superintendent regarding the extent to which the proposed corporate structure of the amalgamated bank holding company and its affiliates may affect the supervision and regulation of any bank that will be its subsidiary, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the affiliates of the amalgamated bank holding company, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the amalgamated bank holding company; and (h) the best interests of the financial system in Canada.
Issue of letters patent
809. (1) Where an application has been made to the Minister in accordance with section 808, the Minister may issue letters patent of amalgamation continuing the applicants as one bank holding company.
Letters patent
(2) Where letters patent are issued pursuant to this section, section 676 applies with such modifications as the circumstances require in respect of the issue of the letters patent.
Publication of notice
(3) The Superintendent shall cause to be published in the Canada Gazette notice of the issuance of letters patent pursuant to subsection (1).
Court enforcement
810. (1) If a bank holding company or any director, officer, employee or agent of a bank holding company is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the bank holding company or the director, officer, employee or agent to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on
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the application the court may so order and make any other order it thinks fit. Appeal
(2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
Effect of letters patent
811. (1) On the day provided for in the letters patent issued under section 809, (a) the amalgamation of the applicants and their continuance as one bank holding company becomes effective; (b) the property of each applicant continues to be the property of the amalgamated bank holding company; (c) the amalgamated bank holding company continues to be liable for the obligations of each applicant; (d) any existing cause of action, claim or liability to prosecution is unaffected; (e) any civil, criminal or administrative action or proceeding pending by or against an applicant may be continued to be prosecuted by or against the amalgamated bank holding company; (f) any conviction against, or ruling, order or judgment in favour of or against, an applicant may be enforced by or against the amalgamated bank holding company; (g) if any director or officer of an applicant continues as a director or officer of the amalgamated bank holding company, any disclosure by that director or officer of a material interest in any contract made to the applicant shall be deemed to be disclosure to the amalgamated bank holding company; and (h) the letters patent of amalgamation are the incorporating instrument of the amalgamated bank holding company.
Minutes
(2) Any deemed disclosure under paragraph (1)(g) shall be recorded in the minutes of the first meeting of directors of the amalgamated bank holding company.
2001 Transitional
Institutions f 812. (1) Despite any other provision of this Act or the regulations, the Minister may, by order, on the recommendation of the Superintendent, grant to a bank holding company in respect of which letters patent were issued under subsection 809(1) permission to (a) engage in a business activity specified in the order that a bank holding company is not otherwise permitted by this Act to engage in and that one or more of the amalgamating bodies corporate was engaging in at the time application for the letters patent was made; (b) continue to have issued and outstanding debt obligations the issue of which is not authorized by this Act if the debt obligations were outstanding at the time the application for the letters patent was made; (c) hold assets that a bank holding company is not otherwise permitted by this Act to hold if the assets were held by one or more of the amalgamating bodies corporate at the time the application for the letters patent was made; (d) acquire and hold assets that a bank holding company is not otherwise permitted by this Act to acquire or hold if one or more of the amalgamating bodies corporate were obliged, at the time the application for the letters patent was made, to acquire those assets; and (e) maintain outside Canada any records or registers required by this Act to be maintained in Canada and maintain and process, outside Canada, information and data relating to the preparation and maintenance of such records or registers.
Duration of exceptions
(2) The permission granted under subsection (1) shall be expressed to be granted for a period specified in the order not exceeding (a) with respect to any matter described in paragraph (1)(a), thirty days after the date of issue of the letters patent or, where the activity is conducted pursuant to an agreement existing on the date of issue of the letters patent, the expiration of the agreement;
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(b) with respect to any matter described in paragraph (1)(b), ten years; and (c) with respect to any matter described in any of paragraphs (1)(c) to (e), two years. Renewal
(3) Subject to subsection (4), the Minister may, by order on the recommendation of the Superintendent, renew a permission granted by order under subsection (1) with respect to any matter described in any of paragraphs (1)(b) to (d) for any further period or periods that the Minister considers necessary.
Limitation
(4) The Minister shall not grant to a bank holding company any permission (a) with respect to matters described in paragraph (1)(b), that purports to be effective more than ten years after the effective date of the letters patent of amalgamation, unless the Minister is satisfied on the basis of evidence on oath provided by an officer of the bank holding company that the bank holding company will not be able at law to redeem at the end of the ten years the outstanding debt obligations to which the permission relates; and (b) with respect to matters described in paragraphs (1)(c) and (d), that purports to be effective more than ten years after the effective date of the letters patent.
Transfer of Business Shareholder approval
813. (1) A sale, lease or exchange of all or substantially all the property of a bank holding company requires the approval of the shareholders in accordance with subsections (2) to (7).
Notice of meeting
(2) A notice of a meeting of shareholders complying with sections 727 and 730 shall be sent in accordance with those sections to each shareholder and shall include or be accompanied by a copy or summary of the agreement of sale, lease or exchange.
Shareholder approval
(3) At the meeting referred to in the notice, the shareholders may authorize the sale, lease or exchange and may fix or authorize the directors to fix any of the sale’s, lease’s or exchange’s terms and conditions.
Institutions f
Right to vote
(4) Each share of the bank holding company carries the right to vote in respect of the proposal whether or not the share otherwise carries the right to vote.
Class vote
(5) The holders of shares of a class or series of shares of the bank holding company are entitled to vote separately as a class or series in respect of the proposal if the shares of the class or series are affected by the proposed transaction in a manner different from the shares of another class or series.
Special resolution
(6) For the purpose of subsection (1), the proposal is not approved unless the holders of the shares of each class or series of shares entitled to vote separately on the proposal have approved the proposal by special resolution.
Abandoning transaction
(7) Where a special resolution under subsection (6) approving a proposed transaction so states, the directors of a bank holding company may, subject to the rights of third parties, abandon the transaction without further approval of the shareholders. Corporate Records Head Office and Corporate Records
Head office
814. (1) A bank holding company shall at all times have a head office in the place within Canada specified in its incorporating instrument or by-laws.
Change of head office
(2) The directors of a bank holding company may change the address of the head office within the place specified in the incorporating instrument or by-laws.
Notice of change of address
(3) A bank holding company shall send to the Superintendent, within fifteen days after any change of address of its head office, a notice of the change of address.
Bank holding company records
815. (1) A bank holding company shall prepare and maintain records containing (a) its incorporating instrument and by-laws and all amendments to them; (b) minutes of meetings and resolutions of shareholders; (c) the information referred to in paragraphs 951(1)(a) and (c) to (g) contained in all
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returns provided to the Superintendent pursuant to section 951; and (d) particulars of exceptions granted under section 688 or 812 that are from time to time applicable to the bank holding company. Additional records
(2) In addition to the records described in subsection (1), a bank holding company shall prepare and maintain adequate (a) corporate accounting records; and (b) records containing minutes of meetings and resolutions of the board of directors and those of its committees.
Continued bank holding companies
(3) For the purposes of paragraph (1)(b) and subsection (2), (a) in the case of a body corporate continued as a bank holding company, ‘‘records’’ includes similar records required by law to be maintained by the body corporate before it was so continued; and (b) in the case of a body corporate amalgamated and continued as a bank holding company, ‘‘records’’ includes similar records required by law to be maintained by the body corporate before it was so amalgamated.
Place of records
816. (1) The records described in section 815 shall be kept at the head office of the bank holding company or at such other place in Canada as the directors think fit.
Notice of place of records
(2) Where any of the records described in section 815 are not kept at the head office of a bank holding company, the bank holding company shall notify the Superintendent of the place where the records are kept.
Inspection
(3) The records described in section 815 shall at all reasonable times be open to inspection by the directors.
Access to bank holding company records
(4) Shareholders and creditors of a bank holding company and their personal representatives may examine the records referred to in subsection 815(1) during the usual business hours of the bank holding company, and may take extracts therefrom, free of charge, or have copies made thereof on payment of a reason2001
Institutions f able fee and, where the bank holding company is a distributing bank holding company within the meaning of subsection 265(1), any other person may, on payment of a reasonable fee, examine such records and take extracts therefrom or copies thereof.
Copies of by-laws
(5) Every shareholder of a bank holding company is entitled, on request made not more frequently than once in each calendar year, to receive, free of charge, one copy of the by-laws of the bank holding company.
Electronic access
(6) A bank holding company may make the information contained in records referred to in subsection 815(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time.
Shareholder lists
817. (1) A person who is entitled to a basic list of shareholders of a bank holding company (in this section referred to as the ‘‘applicant’’) may request the bank holding company to furnish the applicant with a basic list within ten days after receipt by the bank holding company of the affidavit referred to in subsection (2) and, on payment of a reasonable fee by the applicant, the bank holding company shall comply with the request.
Affidavit and contents
(2) A request under subsection (1) must be accompanied by an affidavit containing (a) the name and address of the applicant, (b) the name and address for service of the entity, if the applicant is an entity, and (c) an undertaking that the basic list and any supplemental lists obtained pursuant to subsections (5) and (6) will not be used except as permitted under section 819, and, if the applicant is an entity, the affidavit shall be made by a director or an officer of the entity, or any person acting in a similar capacity.
Entitlement
(3) Every shareholder or creditor of a bank holding company or the personal representative of a shareholder or creditor of a bank holding company is entitled to a basic list of shareholders of the bank holding company,
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but, if the bank holding company is a distributing bank holding company within the meaning of subsection 265(1), any person is entitled to a basic list of shareholders of the bank holding company on request therefor. Basic list
(4) A basic list of shareholders of a bank holding company consists of a list of shareholders that is made up to a date not more than ten days before the receipt of the affidavit referred to in subsection (2) and that sets out (a) the names of the shareholders of the bank holding company; (b) the number of shares owned by each shareholder; and (c) the address of each shareholder as shown in the records of the bank holding company.
Supplemental lists
(5) A person requiring a bank holding company to supply a basic list of shareholders may, if the person states in the accompanying affidavit that supplemental lists are required, request the bank holding company or its agent, on payment of a reasonable fee, to provide supplemental lists of shareholders setting out any changes from the basic list in the names and addresses of the shareholders and the number of shares owned by each shareholder for each business day following the date to which the basic list is made up.
When supplemental lists to be furnished
(6) A bank holding company or its agent shall provide a supplemental list of shareholders required under subsection (5) (a) within ten days following the date the basic list is provided, where the information relates to changes that took place prior to that date; and (b) within ten days following the day to which the supplemental list relates, where the information relates to changes that took place on or after the date the basic list was provided.
Option holders
818. A person requiring a bank holding company to supply a basic list or a supplemental list of shareholders may also require the bank holding company to include in that list the name and address of any known holder of an option or right to acquire shares of the bank holding company.
2001 Use of shareholder list
Institutions f 819. A list of shareholders obtained under section 817 shall not be used by any person except in connection with (a) an effort to influence the voting of shareholders of the bank holding company; (b) an offer to acquire shares of the bank holding company; or (c) any other matter relating to the affairs of the bank holding company.
Form of records
820. (1) A register or other record required or authorized by this Part to be prepared and maintained by a bank holding company (a) may be in a bound or loose-leaf form or in a photographic film form; or (b) may be entered or recorded by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Conversion of records
(2) Registers and records maintained in one form may be converted to any other form.
Destruction of converted records
(3) Notwithstanding section 823, a bank holding company may destroy any register or other record referred to in subsection (1) at any time after the register or other record has been converted to another form.
Protection of records
821. A bank holding company and its agents shall take reasonable precautions to (a) prevent loss or destruction of, (b) prevent falsification of entries in, (c) facilitate detection and correction of inaccuracies in, and (d) ensure that unauthorized persons do not have access to or use of information in the registers and records required or authorized by this Part to be prepared and maintained.
Location and processing of information
822. (1) Subject to subsection (3), a bank holding company shall maintain and process in Canada any information or data relating to the preparation and maintenance of the records referred to in section 815 unless the Superintendent has, subject to such terms and
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conditions as the Superintendent considers appropriate, exempted the bank holding company from the application of this section. Copies
(2) Subject to subsections (3) and (4), a bank holding company may maintain copies of the records referred to in subsection (1) outside Canada and may further process outside Canada any information or data relating to those copies.
Information for Superintendent
(3) Where a bank holding company, in accordance with subsection (2), maintains outside Canada copies of any records referred to in subsection (1) or further processes information or data relating to those copies outside Canada, the bank holding company shall so inform the Superintendent and provide the Superintendent with a list of those copies maintained outside Canada and a description of the further processing of information or data relating to those copies outside Canada and such other information as the Superintendent may require from time to time.
Processing information in Canada
(4) If the Superintendent is at any time of the opinion that the maintenance outside Canada of any copies referred to in subsection (3), or the further processing of information or data relating to any such copies outside Canada, is incompatible with the fulfilment of the Superintendent’s responsibilities under this Part or the Superintendent is advised by the Minister that, in the opinion of the Minister, such maintenance or further processing is not in the national interest, the Superintendent shall direct the bank holding company to maintain those copies, or to further process information or data relating to those copies, in Canada.
Bank holding company to comply
(5) A bank holding company shall forthwith comply with any direction issued under subsection (4).
Guidelines
(6) The Superintendent shall issue guidelines respecting the circumstances under which an exemption referred to in subsection (1) may be available.
2001 Retention of records
Institutions f 823. A bank holding company shall retain (a) the records of the bank holding company referred to in subsection 815(1); (b) any record of the bank holding company referred to in paragraph 815(2)(a) or (b); and (c) the central securities register referred to in subsection 825(1).
Regulations
824. The Governor in Council may make regulations respecting the records, papers and documents to be retained by a bank holding company and the length of time those records, papers and documents are to be retained. Securities Registers
Central securities register
825. (1) A bank holding company shall maintain a central securities register in which it shall record the securities, within the meaning of section 81, issued by it in registered form, showing in respect of each class or series of securities (a) the names, alphabetically arranged, and latest known addresses of the persons who are security holders, and the names and latest known addresses of the persons who have been security holders; (b) the number of securities held by each security holder; and (c) the date and particulars of the issue and transfer of each security.
Existing and continued bank holding companies
(2) For the purposes of subsection (1), ‘‘central securities register’’ includes similar registers required by law to be maintained by a body corporate continued, or amalgamated and continued, as a bank holding company under this Part before the continuance, or amalgamation, as the case may be.
Application of certain provisions
(3) Subsections 816(4) and (6) and sections 817 and 819 to 822 apply, with such modifications as the circumstances require, in respect of a central securities register.
Branch registers
826. A bank holding company may establish as many branch securities registers as it considers necessary.
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Agents
827. A bank holding company may appoint an agent to maintain its central securities register and each of its branch securities registers.
Location of central securities register
828. (1) The central securities register of a bank holding company shall be maintained by the bank holding company at its head office or at any other place in Canada designated by the directors of the bank holding company.
Location of branch securities register
(2) A branch securities register of a bank holding company may be kept at any place in or outside Canada designated by the directors of the bank holding company.
Effect of registration
829. Registration of the issue or transfer of a security in the central securities register or in a branch securities register is complete and valid registration for all purposes.
Particulars in branch register
830. (1) A branch securities register shall only contain particulars of the securities issued or transferred at the branch for which that register is established.
Particulars in central register
(2) Particulars of each issue or transfer of a security registered in a branch securities register of a bank holding company shall also be kept in the central securities register of the bank holding company.
Destruction of certificates
831. A bank holding company, its agent or a trustee within the meaning of section 294 is not required to produce (a) a cancelled security certificate in registered form or an instrument referred to in subsection 713(1) that is cancelled or a like cancelled instrument in registered form after six years from the date of its cancellation; (b) a cancelled security certificate in bearer form or an instrument referred to in subsection 713(1) that is cancelled or a like cancelled instrument in bearer form after the date of its cancellation; or (c) an instrument referred to in subsection 713(1) or a like instrument, irrespective of its form, after the date of its expiration.
Institutions f Corporate Name and Seal
Publication of name
832. A bank holding company shall set out its name in legible characters in all contracts, invoices, negotiable instruments and other documents evidencing rights or obligations with respect to other parties that are issued or made by or on behalf of the bank holding company.
Corporate seal
833. An instrument or agreement executed on behalf of a bank holding company by a director, an officer or an agent of the bank holding company is not invalid merely because a corporate seal is not affixed thereto. Insiders
Sections 265 to 272 apply
834. Sections 265 to 272 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; and (b) the reference to ‘‘this Act’’ in subsection 266(3) is to be read as a reference to ‘‘this Part’’. Prospectus
Sections 273 to 282 apply
835. Sections 273 to 282 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; and (c) subsection 274(1) is to be read without reference to ‘‘or auditors’’. Compulsory Acquisitions
Sections 283 to 292 apply
836. Sections 283 to 292 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘another deposit-taking financial institution’’ in subsection 287(3)
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are to be read as references to ‘‘a deposittaking financial institution’’; and (c) the reference to ‘‘the Minister’’ in subsection 291(4) is to be read as a reference to ‘‘the Receiver General’’. Recovery
837. If at any time a person establishes an entitlement to any moneys paid to the Receiver General under subsection 291(4), the Receiver General shall pay an equivalent amount to that person out of the Consolidated Revenue Fund. Trust Indentures
Sections 294 to 306 apply
838. Sections 294 to 306 apply in respect to bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; and (c) references to ‘‘subordinated indebtedness’’ in those sections are to be read as references to ‘‘subordinated indebtedness’’ as defined in subsection 663(1). Financial Statements and Auditor Annual Financial Statement
Financial year of bank holding company
839. (1) The financial year of a bank holding company ends, at the election of the bank holding company in its by-laws, on the expiration of the thirty-first day of October of each year or the thirty-first day of December of each year.
First financial year
(2) If, in any year, a bank holding company comes into existence after the first day of July, its first financial year ends, at its election in its by-laws, on the expiration of the thirty-first day of October or the thirty-first day of December in the next calendar year.
Annual financial statement
840. (1) The directors of a bank holding company shall place before the shareholders at every annual meeting (a) a comparative annual financial statement (in this Part referred to as an ‘‘annual statement’’) relating separately to
Institutions f (i) the financial year immediately preceding the meeting, and (ii) the financial year, if any, immediately preceding the financial year referred to in subparagraph (i); (b) the report of the auditor of the bank holding company; and (c) any further information respecting the financial position of the bank holding company and the results of its operations required by the by-laws of the bank holding company to be placed before the shareholders at the annual meeting.
Contents of annual statement
(2) An annual statement of a bank holding company must contain, with respect to each of the financial years to which it relates, (a) a balance sheet as at the end of the financial year, (b) a statement of income for the financial year, (c) a statement of change of financial position for the financial year, and (d) a statement of changes in shareholders’ equity for the financial year, showing such information and particulars as in the opinion of the directors are necessary to present fairly, in accordance with the accounting principles referred to in subsection (4), the financial position of the bank holding company as at the end of the financial year to which it relates and the results of the operations and changes in the financial position of the bank holding company for that financial year.
Additional information
(3) A bank holding company shall include with its annual statement (a) a list of the subsidiaries of the bank holding company, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 934 or pursuant to a realization of security in accordance with section 935 and which the bank holding company would not otherwise be permitted to hold, showing, with respect to each subsidiary,
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Financial In (i) its name and the address of its head or principal office, (ii) the book value of the aggregate of any shares of the subsidiary beneficially owned by the bank holding company and by other subsidiaries of the bank holding company, and (iii) the percentage of the voting rights attached to all the outstanding voting shares of the subsidiary that is carried by the aggregate of any voting shares of the subsidiary beneficially owned by the bank holding company and by other subsidiaries of the bank holding company; and
(b) such other information as the Governor in Council may, by order, require in such form as may be prescribed. Accounting principles
(4) The financial statements referred to in subsection (1), paragraph (3)(b) and subsection 842(1) shall, except as otherwise specified by the Superintendent, be prepared in accordance with generally accepted accounting principles, the primary source of which is the Handbook of the Canadian Institute of Chartered Accountants. A reference in any provision of this Act to the accounting principles referred to in this subsection shall be construed as a reference to those generally accepted accounting principles with any specifications so made.
Regulations
(5) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(a).
Approval by directors
841. (1) The directors of a bank holding company shall approve the annual statement and the approval of the directors shall be evidenced by the signature of (a) the chief executive officer or, in the event of that officer’s absence or inability to act, any other officer of the bank holding company authorized by the directors to sign in the stead of the chief executive officer; and (b) one director, if the signature required by paragraph (a) is that of a director, or two
Institutions f directors if the signature required by that paragraph is that of an officer who is not a director.
Condition precedent to publication
(2) A bank holding company shall not publish copies of an annual statement unless it is approved and signed in accordance with subsection (1).
Statements — subsidiaries
842. (1) A bank holding company shall keep at its head office a copy of the current financial statements of each subsidiary of the bank holding company.
Examination
(2) Subject to this section, the shareholders of a bank holding company and their personal representatives may, on request therefor, examine the statements referred to in subsection (1) during the usual business hours of the bank holding company and may take extracts therefrom free of charge.
Barring examination
(3) A bank holding company may refuse to permit an examination under subsection (2) by any person.
Application for order
(4) Within fifteen days after a refusal under subsection (3), the bank holding company shall apply to a court for an order barring the right of the person concerned to make an examination under subsection (2) and the court shall either order the bank holding company to permit the examination or, if it is satisfied that the examination would be detrimental to the bank holding company or to any other body corporate the financial statements of which would be subject to examination, bar the right and make any further order it thinks fit.
Notice to Superintendent
(5) A bank holding company shall give the Superintendent and the person seeking to examine the statements referred to in subsection (1) notice of an application to a court under subsection (4), and the Superintendent and the person may appear and be heard in person or by counsel at the hearing of the application.
Distribution of annual statement
843. (1) A bank holding company shall, not later than twenty-one days before the date of each annual meeting or before the signing of a resolution under paragraph 741(1)(b) in lieu of the annual meeting, send to each sharehold���
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er at the shareholder’s recorded address a copy of the documents referred to in subsections 840(1) and (3), unless that time period is waived by the shareholder. Exception
(2) A bank holding company is not required to comply with subsection (1) with respect to a shareholder who has informed the bank holding company, in writing, that the shareholder does not wish to receive the annual statement.
Effect of default
(3) Where a bank holding company is required to comply with subsection (1) and the bank holding company does not comply with that subsection, the annual meeting at which the documents referred to in that subsection are to be considered shall be adjourned until that subsection has been complied with.
Copy to Superintendent
844. (1) Subject to subsection (2), a bank holding company shall send to the Superintendent a copy of the documents referred to in subsections 840(1) and (3) not later than twenty-one days before the date of each annual meeting of shareholders of the bank holding company.
Later filing
(2) If a bank holding company’s shareholders sign a resolution under paragraph 741(1)(b) in lieu of an annual meeting, the bank holding company shall send a copy of the documents referred to in subsections 840(1) and (3) to the Superintendent not later than thirty days after the signing of the resolution. Auditors
Definitions
845. The following definitions apply in this section and sections 846 to 864.
‘‘firm of accountants’’ « cabinet de comptables »
‘‘firm of accountants’’ means a partnership, the members of which are accountants engaged in the practice of accounting, or a body corporate that is incorporated by or under an Act of the legislature of a province and engaged in the practice of accounting.
‘‘member’’ « membre »
‘‘member’’, in relation to a firm of accountants, means (a) an accountant who is a partner in a partnership, the members of which are accountants engaged in the practice of accounting; or
Institutions f (b) an accountant who is an employee of a firm of accountants.
Appointment of auditor
846. (1) The shareholders of a bank holding company shall, by ordinary resolution at the first meeting of shareholders and at each succeeding annual meeting, appoint a firm of accountants to be the auditor of the bank holding company until the close of the next annual meeting.
Remuneration of auditor
(2) The remuneration of the auditor may be fixed by ordinary resolution of the shareholders but, if not so fixed, shall be fixed by the directors.
Qualification of auditor
847. (1) A firm of accountants is qualified to be an auditor of a bank holding company if (a) two or more members thereof are accountants who (i) are members in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province, (ii) each have at least five years experience at a senior level in performing audits of a financial institution, (iii) are ordinarily resident in Canada, and (iv) are independent of the bank holding company; and (b) the member of the firm jointly designated by the firm and the bank holding company to conduct the audit of the bank holding company on behalf of the firm is qualified in accordance with paragraph (a).
Independence
(2) For the purposes of subsection (1), (a) independence is a question of fact; and (b) a member of a firm of accountants is deemed not to be independent of a bank holding company if that member or any other member of the firm of accountants, or if the firm of accountants (i) is a director or an officer or employee of the bank holding company or of any affiliate of the bank holding company or is a business partner of any director, officer or employee of the bank holding
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Financial In company or of any affiliate of the bank holding company, (ii) beneficially owns or controls, directly or indirectly, a material interest in the shares of the bank holding company or of any affiliate of the bank holding company, or (iii) has been a liquidator, trustee in bankruptcy, receiver or receiver and manager of any affiliate of the bank holding company within the two years immediately preceding the firm’s proposed appointment as auditor of the bank holding company, other than an affiliate that is a subsidiary of the bank holding company acquired pursuant to section 934 or through a realization of security pursuant to section 935.
Notice of designation
(3) Within fifteen days after appointing a firm of accountants as auditor of a bank holding company, the bank holding company and the firm of accountants shall jointly designate a member of the firm who has the qualifications described in subsection (1) to conduct the audit of the bank holding company on behalf of the firm and the bank holding company shall forthwith notify the Superintendent in writing of the designation.
New designation
(4) Where for any reason a member of a firm of accountants designated pursuant to subsection (3) ceases to conduct the audit of the bank holding company, the bank holding company and the firm of accountants may jointly designate another member of the same firm of accountants who has the qualifications described in subsection (1) to conduct the audit of the bank holding company and the bank holding company shall forthwith notify the Superintendent in writing of the designation.
Deemed vacancy
(5) In any case where subsection (4) applies and a designation is not made pursuant to that subsection within thirty days after the designated member ceases to conduct the audit of the bank holding company, there shall be deemed to be a vacancy in the office of auditor of the bank holding company.
Institutions f
Duty to resign
848. (1) An auditor that ceases to be qualified under section 847 shall resign forthwith after any member of the firm becomes aware that the firm has ceased to be so qualified.
Disqualification order
(2) Any interested person may apply to a court for an order declaring that an auditor of a bank holding company has ceased to be qualified under section 847 and declaring the office of auditor to be vacant.
Revocation of appointment
849. (1) The shareholders of a bank holding company may, by ordinary resolution at a special meeting, revoke the appointment of an auditor.
Revocation of appointment
(2) The Superintendent may at any time revoke the appointment of an auditor made under subsection (3) or 846(1) or section 851 by notice in writing signed by the Superintendent and sent by registered mail to the auditor and to the bank holding company addressed to the usual place of business of the auditor and the bank holding company.
Filling vacancy
(3) A vacancy created by the revocation of the appointment of an auditor under subsection (1) may be filled at the meeting at which the appointment was revoked and, if not so filled, shall be filled by the directors under section 851.
Ceasing to hold office
850. (1) An auditor of a bank holding company ceases to hold office when (a) the auditor resigns; or (b) the appointment of the auditor is revoked by the shareholders or the Superintendent.
Effective date of resignation
(2) The resignation of an auditor becomes effective at the time a written resignation is sent to the bank holding company or at the time specified in the resignation, whichever is later.
Filling vacancy
851. (1) Subject to subsection 849(3), where a vacancy occurs in the office of auditor of a bank holding company, the directors shall forthwith fill the vacancy, and the auditor so appointed holds office for the unexpired term of office of the predecessor of that auditor.
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Where Superintendent may fill vacancy
(2) Where the directors fail to fill a vacancy in accordance with subsection (1), the Superintendent may fill the vacancy and the auditor so appointed holds office for the unexpired term of office of the predecessor of that auditor.
Designation of member of firm
(3) Where the Superintendent has, pursuant to subsection (2), appointed a firm of accountants to fill a vacancy, the Superintendent shall designate the member of the firm who is to conduct the audit of the bank holding company on behalf of the firm.
Right to attend meetings
852. (1) The auditor of a bank holding company is entitled to receive notice of every meeting of shareholders and, at the expense of the bank holding company, to attend and be heard thereat on matters relating to the duties of the auditor.
Duty to attend meeting
(2) If a director or shareholder of a bank holding company, whether or not the shareholder is entitled to vote at the meeting, gives written notice, not less than ten days before a meeting of shareholders, to an auditor or former auditor of the bank holding company that the director or shareholder wishes the auditor’s attendance at the meeting, the auditor or former auditor shall attend the meeting at the expense of the bank holding company and answer questions relating to the auditor’s or former auditor’s duties as auditor.
Notice to bank holding company
(3) A director or shareholder who gives notice under subsection (2) shall send concurrently a copy of the notice to the bank holding company and the bank holding company shall forthwith send a copy thereof to the Superintendent.
Superintendent may attend
(4) The Superintendent may attend and be heard at any meeting referred to in subsection (2).
Statement of auditor
853. (1) An auditor of a bank holding company that (a) resigns, (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of revoking the appointment of the auditor, or
Institutions f (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another firm of accountants is to be appointed in its stead, whether because of the auditor’s resignation or revocation of appointment or because the auditor’s term of office has expired or is about to expire, shall submit to the bank holding company and the Superintendent a written statement giving the reasons for the resignation or the reasons why the auditor opposes any proposed action.
Statement to be sent to shareholders
(2) Where a bank holding company receives a written statement referred to in subsection (1) that relates to a resignation as a result of a disagreement with the directors or officers of the bank holding company or that relates to a matter referred to in paragraph (1)(b) or (c), the bank holding company shall forthwith send a copy of the statement to each shareholder who is entitled to vote at the annual meeting of shareholders.
Duty of replacement auditor
854. (1) Where an auditor of a bank holding company has resigned or the appointment of an auditor has been revoked, no firm of accountants shall accept an appointment as auditor of the bank holding company or consent to be an auditor of the bank holding company until the firm of accountants has requested and received from the other auditor a written statement of the circumstances and reasons why the other auditor resigned or why, in the other auditor’s opinion, the other auditor’s appointment was revoked.
Exception
(2) Notwithstanding subsection (1), a firm of accountants may accept an appointment or consent to be appointed as auditor of a bank holding company if, within fifteen days after a request under that subsection is made, no reply from the other auditor is received.
Effect of non-compliance
(3) Unless subsection (2) applies, an appointment as auditor of a bank holding company is void if subsection (1) has not been complied with.
Auditors’ examination
855. (1) The auditor of a bank holding company shall make such examination as the auditor considers necessary to enable the auditor to report on the annual statement and on other financial statements required by this
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Part to be placed before the shareholders, except such annual statements or parts thereof as relate to the period referred to in subparagraph 840(1)(a)(ii). Auditing standards
(2) The examination of the auditor referred to in subsection (1) shall, except as otherwise specified by the Superintendent, be conducted in accordance with generally accepted auditing standards, the primary source of which is the Handbook of the Canadian Institute of Chartered Accountants.
Right to information
856. (1) On the request of the auditor of a bank holding company, the present or former directors, officers, employees or agents of the bank holding company shall, to the extent that such persons are reasonably able to do so, (a) permit access to such records, assets and security held by the bank holding company or any entity in which the bank holding company has a substantial investment, and (b) provide such information and explanations as are, in the opinion of the auditor, necessary to enable the auditor to perform the duties of the auditor of the bank holding company.
Directors to provide information
(2) On the request of the auditor of a bank holding company, the directors of the bank holding company shall, to the extent that they are reasonably able to do so, (a) obtain from the present or former directors, officers, employees and agents of any entity in which the bank holding company has a substantial investment the information and explanations that such persons are reasonably able to provide and that are, in the opinion of the auditor, necessary to enable them to perform the duties of the auditor of the bank holding company; and (b) provide the auditor with the information and explanations so obtained.
No civil liability
(3) A person who in good faith makes an oral or written communication under subsection (1) or (2) shall not be liable in any civil action arising from having made the communication.
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Auditor’s report and extended examination
857. (1) The Superintendent may, in writing, require that the auditor of a bank holding company report to the Superintendent on the extent of the procedures of the auditor in the examination of the annual statement and may, in writing, require that the auditor enlarge or extend the scope of that examination or direct that any other particular procedure be performed in any particular case, and the auditor shall comply with any such requirement of the Superintendent and report to the Superintendent thereon.
Special examination
(2) The Superintendent may, in writing, require that the auditor of a bank holding company make a particular examination to determine whether any procedures adopted by the bank holding company may be prejudicial to the interests of depositors, policyholders or creditors of any federal financial institution that is affiliated with the bank holding company, or any other examination as, in the Superintendent’s opinion, the public interest may require, and report to the Superintendent thereon.
Special examination
(3) The Superintendent may direct that a special audit of a bank holding company be made if, in the opinion of the Superintendent, it is so required and may appoint for that purpose a firm of accountants qualified pursuant to subsection 847(1) to be an auditor of the bank holding company.
Expenses payable by bank holding company
(4) The expenses entailed by any examination or audit referred to in any of subsections (1) to (3) are payable by the bank holding company on being approved in writing by the Superintendent.
Auditor’s report
858. (1) The auditor shall, not less than twenty-one days before the date of the annual meeting of the shareholders of the bank holding company, make a report in writing to the shareholders on the annual statement referred to in subsection 840(1).
Audit for shareholders
(2) In each report required under subsection (1), the auditor shall state whether, in the opinion of the auditor, the annual statement presents fairly, in accordance with the accounting principles referred to in subsection 840(4), the financial position of the bank holding company as at the end of the financial
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year to which it relates and the results of the operations and changes in the financial position of the bank holding company for that financial year. Auditor’s remarks
(3) In each report referred to in subsection (2), the auditor shall include such remarks as the auditor considers necessary when (a) the examination has not been made in accordance with the auditing standards referred to in subsection 855(2); (b) the annual statement has not been prepared on a basis consistent with that of the preceding financial year; or (c) the annual statement does not present fairly, in accordance with the accounting principles referred to in subsection 840(4), the financial position of the bank holding company as at the end of the financial year to which it relates or the results of the operations or changes in the financial position of the bank holding company for that financial year.
Report on directors’ statement
859. (1) The auditor of a bank holding company shall, if required by the shareholders, audit and report to the shareholders on any financial statement submitted by the directors to the shareholders, and the report shall state whether, in the opinion of the auditor, the financial statement presents fairly the information required by the shareholders.
Making of report
(2) A report of the auditor made under subsection (1) shall be attached to the financial statement to which it relates and a copy of the statement and report shall be sent by the directors to every shareholder and to the Superintendent.
Auditor of subsidiaries
860. (1) A bank holding company shall take all necessary steps to ensure that each of its subsidiaries has as its auditor the auditor of the bank holding company.
Subsidiary outside Canada
(2) Subsection (1) applies in the case of a subsidiary that carries on its operations in a country other than Canada unless the laws of that country do not permit the appointment of an auditor of the bank holding company as the auditor of that subsidiary.
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Exception
(3) Subsection (1) does not apply in respect of any particular subsidiary where the bank holding company, after having consulted its auditor, is of the opinion that the total assets of the subsidiary are not a material part of the total assets of the bank holding company.
Auditor’s attendance
861. (1) The auditor of a bank holding company is entitled to receive notice of every meeting of the audit committee of the bank holding company and, at the expense of the bank holding company, to attend and be heard at that meeting.
Attendance
(2) If so requested by a member of the audit committee, the auditor shall attend every meeting of the audit committee held during the member’s term of office.
Calling meeting
862. (1) The auditor of a bank holding company or a member of the audit committee may call a meeting of the audit committee.
Right to interview
(2) The chief internal auditor of a bank holding company or any officer or employee of the bank holding company acting in a similar capacity shall, at the request of the auditor of the bank holding company and on receipt of reasonable notice, meet with the auditor.
Notice of errors
863. (1) A director or an officer of a bank holding company shall forthwith notify the audit committee and the auditor of the bank holding company of any error or misstatement of which the director or officer becomes aware in an annual statement or other financial statement on which the auditor or any former auditor has reported.
Error noted by auditor
(2) If the auditor or former auditor of a bank holding company is notified or becomes aware of an error or misstatement in an annual statement or other financial statement on which the auditor reported and in the opinion of the auditor the error or misstatement is material, the auditor or former auditor shall inform each director of the bank holding company accordingly.
Duty of directors
(3) When under subsection (2) the auditor or former auditor of a bank holding company informs the directors of an error or misstatement in an annual statement or other financial statement, the directors shall
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(a) prepare and issue a revised annual statement or financial statement; or (b) otherwise inform the shareholders and the Superintendent of the error or misstatement. Qualified privilege for statements
864. Any oral or written statement or report made under this Part by the auditor or former auditor of a bank holding company has qualified privilege.
Remedial Actions Sections 334 to 338 apply
865. Sections 334 to 338 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; and (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’. Liquidation and Dissolution
Definition of ‘‘court’’
866. For the purposes of subsections 346(1) and 347(1) and (2), sections 348 to 352, subsection 353(1), sections 355 and 357 to 359, subsections 363(3) and (4) and section 368, ‘‘court’’ means a court having jurisdiction in the place where the bank holding company has its head office.
Non-application of certain provisions
867. (1) Subsection (2) and sections 342 to 365, 368 and 868 do not apply to a bank holding company that is an insolvent person or a bankrupt as those terms are defined in subsection 2(1) of the Bankruptcy and Insolvency Act.
Staying proceedings on insolvency
(2) Any proceedings taken under this Division to dissolve or to liquidate and dissolve a bank holding company shall be stayed if the bank holding company is at any time found, in a proceeding under the Bankruptcy and Insolvency Act, to be an insolvent person as defined in subsection 2(1) of that Act.
Winding-up and Restructuring Act does not apply
(3) The Winding-up and Restructuring Act does not apply to a bank holding company.
2001 Returns to Superintendent
Institutions f 868. A liquidator appointed under this Division to wind up the business of a bank holding company shall provide the Superintendent with such information relating to the business and affairs of the bank holding company in such form as the Superintendent requires. Simple Liquidation
Sections 342 to 346 apply
869. Sections 342 to 346 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; and (b) the reference to ‘‘sections 143 and 144’’ in subsection 343(1) is to be read as a reference to ‘‘sections 732 and 733’’. Court-supervised Liquidation
Sections 347 to 360 apply
870. Sections 347 to 360 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) the reference to ‘‘subsection 308(1)’’ in subsection 353(1) is to be read as a reference to ‘‘subsection 840(1)’’; and (c) paragraph 354(a) is to be read without reference to ‘‘or auditors’’. General
Sections 361 to 365 and 368 apply
871. Sections 361 to 365 and 368 apply in respect of bank holding companies, subject to the following: (a) references to ‘‘bank’’ in those sections are to be read as references to ‘‘bank holding company’’; (b) references to ‘‘this Part’’ in those sections are to be read as references to ‘‘this Division’’; (c) the reference to ‘‘section 632’’ in subsection 362(2) is to be read as a reference to ‘‘section 951’’; (d) the reference to ‘‘section 366’’ in section 364 is to be read as a reference to ‘‘section 872’’; and
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(e) the reference to ‘‘sections 366 and 367’’ in section 365 is to be read as a reference to ‘‘section 872’’. Unknown claimants
872. (1) On the dissolution of a bank holding company under this Act, the portion of the property distributable to a creditor or shareholder who cannot be found shall be converted into money and paid to the Receiver General.
Constructive satisfaction
(2) A payment under subsection (1) is deemed to be in satisfaction of a debt or claim of such creditor or shareholder.
Recovery
(3) If at any time a person establishes that he or she is entitled to any moneys paid to the Receiver General under this Act, the Receiver General shall pay an equivalent amount to him or her out of the Consolidated Revenue Fund. DIVISION 7 OWNERSHIP Constraints on Ownership
Sections 370 and 371 apply
873. Sections 370 and 371 apply in respect of bank holding companies, except that references to ‘‘bank’’ in section 371 are to read as references to ‘‘bank holding company’’.
Significant interest
874. Except as permitted by this Division, no person shall have a significant interest in any class of shares of a bank holding company.
Acquisition of significant interest
875. (1) Subject to section 876, no person, or entity controlled by a person, shall, without the approval of the Minister, purchase or otherwise acquire any share of a bank holding company or purchase or otherwise acquire control of any entity that holds any share of a bank holding company if (a) the acquisition would cause the person to have a significant interest in any class of shares of the bank holding company; or (b) if the person has a significant interest in a class of shares of the bank holding company, the acquisition would increase the significant interest of the person in that class of shares.
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Amalgamation, etc., constitutes acquisition
(2) If, as a result of an amalgamation, merger or reorganization, the entity that results would have a significant interest in a class of shares of a bank holding company, that entity is deemed to be acquiring a significant interest in that class of shares of the bank holding company through an acquisition for which the approval of the Minister is required.
Limitations on share holdings
876. (1) No person may be a major shareholder of a bank holding company with equity of five billion dollars or more.
Exception — widely held bank
(2) Subsection (1) does not apply to a widely held bank that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank holding company with equity of five billion dollars or more if it controlled, within the meaning of those paragraphs, the bank holding company on the day the bank holding company’s equity reached five billion dollars and it has controlled, within the meaning of those paragraphs, the bank holding company since that day.
Exception — widely held bank holding company
(3) Subsection (1) does not apply to a widely held bank holding company that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank holding company with equity of five billion dollars or more if the widely held bank holding company controlled, within the meaning of those paragraphs, the bank holding company on the day the bank holding company’s equity reached five billion dollars and the widely held bank holding company has controlled, within the meaning of those paragraphs, the bank holding company since that day.
Exception — insurance holding companies and certain institutions
(4) Subsection (1) does not apply to any of the following that controls, within the meaning of paragraph 3(1)(d), the bank holding company with equity of five billion dollars or more if it controlled, within the meaning of that paragraph, the bank holding company on the day the bank holding company’s equity reached five billion dollars and it has controlled, within the meaning of that paragraph, the bank holding company since that day:
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(a) a widely held insurance holding company; (b) an eligible Canadian financial institution, other than a bank; or (c) an eligible foreign institution. Exception — other entities
(5) Subsection (1) does not apply to an entity that controls, within the meaning of paragraphs 3(1)(a) and (d), the bank holding company with equity of five billion dollars or more if the entity is controlled, within the meaning of those paragraphs, by a widely held bank to which subsection (2) applies, or a widely held bank holding company to which subsection (3) applies, that controls the bank holding company.
Exception — other entities
(6) Subsection (1) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the bank holding company with equity of five billion dollars or more if the entity is controlled, within the meaning of that paragraph, by (a) a widely held insurance holding company to which subsection (4) applies that controls the bank holding company; (b) an eligible Canadian financial institution, other than a bank, to which subsection (4) applies that controls the bank holding company; or (c) an eligible foreign institution to which subsection (4) applies that controls the bank holding company.
Exception
877. (1) Despite section 876, if a bank holding company with equity of five billion dollars or more was formed as the result of an amalgamation, a person who is a major shareholder of the bank holding company on the effective date of the letters patent of amalgamation shall do all things necessary to ensure that the person is no longer a major shareholder of the bank holding company on the day that is one year after that day or on the day that is after any shorter period specified by the Minister.
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Exception — widely held banks and bank holding companies
(2) Subsection (1) does not apply to a widely held bank or a widely held bank holding company that controlled, within the meaning of paragraphs 3(1)(a) and (d), one of the applicants for the letters patent of amalgamation and that has controlled, within the meaning of those paragraphs, the amalgamated bank holding company since the effective date of those letters patent.
Exception — insurance holding companies and certain institutions
(3) Subsection (1) does not apply to any of the following that controlled, within the meaning of paragraph 3(1)(d), one of the applicants for the letters patent of amalgamation if it has controlled, within the meaning of that paragraph, the amalgamated bank holding company since the effective date of those letters patent: (a) a widely held insurance holding company; (b) an eligible Canadian financial institution, other than a bank; or (c) an eligible foreign institution.
Exception — other entities
(4) Subsection (1) does not apply to an entity that controls, within the meaning of paragraphs 3(1)(a) and (d), the amalgamated bank holding company if the entity is controlled, within the meaning of those paragraphs, by a widely held bank or widely held bank holding company to which subsection (2) applies that controls the amalgamated bank holding company.
Exception — other entities
(5) Subsection (1) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the amalgamated bank holding company if the entity is controlled, within the meaning of that paragraph, by any of the following: (a) a widely held insurance holding company to which subsection (3) applies that controls the amalgamated bank holding company; (b) an eligible Canadian financial institution to which subsection (3) applies, other than a bank, that controls the amalgamated bank holding company; or
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(c) an eligible foreign institution to which subsection (3) applies that controls the amalgamated bank holding company. Extension
(6) If general market conditions so warrant and the Minister is satisfied that the person has used the person’s best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which the person must comply with that subsection.
Limitation on share holdings
878. (1) If a person is a major shareholder of a bank holding company with equity of less than five billion dollars and the bank holding company’s equity reaches five billion dollars or more, the person shall do all things necessary to ensure that the person is not a major shareholder of the bank holding company on the day that is three years after the day the bank holding company’s equity reached five billion dollars.
Exception
(2) Subsection (1) does not apply if any of subsections 876(2) to (6) applies to the person in respect of the bank holding company.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the person has used the person’s best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which the person must comply with that subsection.
Obligation of widely held bank holding company
879. (1) If a widely held bank holding company with equity of five billion dollars or more controls a bank and a person becomes a major shareholder of the bank or of any entity that also controls the bank, the widely held bank holding company must do all things necessary to ensure that, on the day that is one year after the person became a major shareholder of the bank or entity that controls it, (a) the widely held bank holding company no longer controls the bank; or (b) the bank or the entity that controls the bank does not have any major shareholder other than the widely held bank holding company or any entity that it controls.
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Exception
(2) Subsection (1) does not apply in respect of a bank with equity of less than two hundred and fifty million dollars, or any other prescribed amount.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the widely held bank holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Obligation of widely held bank holding company
879.1 (1) Despite subsection 879(1), if a widely held bank holding company with equity of five billion dollars or more controls a bank in respect of which that subsection does not apply by reason of subsection 879(2) and the equity of the bank reaches two hundred and fifty million dollars or more or any other amount that is prescribed and on the day the equity of the bank reaches two hundred and fifty million dollars or more or the prescribed amount, as the case may be, a person is a major shareholder of the bank or of any entity that also controls the bank, the widely held bank holding company must do all things necessary to ensure that, on the day that is three years after that day, (a) the widely held bank holding company no longer controls the bank; or (b) the bank or the entity that controls the bank does not have any major shareholder other than the widely held bank holding company or any entity that the widely held bank holding company controls.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the widely held bank holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Prohibition against significant interest
880. No person who has a significant interest in any class of shares of a widely held bank holding company with equity of five billion dollars or more may have a significant
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interest in any class of shares of a subsidiary of the widely held bank holding company that is a bank or a bank holding company.
Prohibition against significant interest
881. No person who has a significant interest in any class of shares of a bank holding company may have a significant interest in any class of shares of any widely held bank with equity of five billion dollars or more, or of any widely held bank holding company with equity of five billion dollars or more, that controls the bank holding company.
Prohibition against control
882. (1) No person shall control, within the meaning of paragraph 3(1)(d), a bank holding company with equity of five billion dollars or more.
Exception — widely held bank
(2) Subsection (1) does not apply if any of subsections 876(2) to (6) applies in respect of the person in respect of the bank holding company.
Restriction on control
883. No person shall, without the prior approval of the Minister, acquire control, within the meaning of paragraph 3(1)(d), of a bank holding company with equity of less than five billion dollars.
Deeming
884. A bank holding company with equity of less than five billion dollars that controls a bank to which subsection 378(1) applies is deemed, for the purposes of sections 156.09, 727, 876, 879, 879.1, 880, 881, 882, 888 and 890, subsection 891(2), section 893 and subsection 906(2), to be a bank holding company with equity of five billion dollars or more.
Prohibition
885. No person may control or be a major shareholder of a bank holding company if the person or an entity affiliated with the person (a) has control of or has a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity within
Institutions f the meaning of subsection 464(1) is prohibited from engaging in; or (b) engages in Canada in any personal property leasing activity that a financial leasing entity within the meaning of subsection 464(1) is prohibited from engaging in.
Prohibition
886. No person who controls a bank holding company or who is a major shareholder of a bank holding company, and no entity affiliated with that person, may (a) control or have a substantial investment in an entity that engages in Canada in any personal property leasing activity that a financial leasing entity within the meaning of subsection 464(1) is prohibited from engaging in; or (b) engage in Canada in any personal property leasing activity that a financial leasing entity within the meaning of subsection 464(1) is prohibited from engaging in.
Constraint on registration
887. No bank holding company shall, unless the acquisition of the share has been approved by the Minister, record in its securities register a transfer or issue of any share of the bank holding company to any person or to any entity controlled by a person if (a) the transfer or issue of the share would cause the person to have a significant interest in any class of shares of the bank holding company; or (b) where the person has a significant interest in a class of shares of the bank holding company, the transfer or issue of the share would increase the significant interest of the person in that class of shares.
Exemption
888. On application by a bank holding company, other than a bank holding company with equity of five billion dollars or more, the Superintendent may exempt any class of non-voting shares of the bank holding company the aggregate book value of which is not more than 30 per cent of the aggregate book value of all the outstanding shares of the bank holding company from the application of sections 875 and 887.
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Exception for small holdings
889. Despite section 887, if, as a result of a transfer or issue of shares of a class of shares of a bank holding company to a person, the total number of shares of that class registered in the securities register of the bank holding company in the name of that person would not exceed five thousand and would not exceed 0.1 per cent of the outstanding shares of that class, the bank holding company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the bank holding company as a result of that issue or transfer of shares.
When approval not required
890. (1) Despite sections 875 and 887, the approval of the Minister is not required in respect of a bank holding company with equity of less than five billion dollars if a person with a significant interest in a class of shares of the bank holding company, or an entity controlled by a person with a significant interest in a class of shares of the bank holding company, purchases or otherwise acquires shares of that class, or acquires control of any entity that holds any share of that class, and the number of shares of that class purchased or otherwise acquired, or the acquisition of control of the entity, as the case may be, would not increase the significant interest of the person in that class of shares of the bank holding company to a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever is applicable.
Percentage
(2) Subject to subsection (3) and for the purpose of subsection (1), the percentage is 5 percentage points in excess of the significant interest of the person in that class of shares of the bank holding company on the day of the most recent purchase or acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank holding company, or of control of an entity that held shares of that class of shares of the bank holding company, for which approval was given by the Minister.
When approval not required
(3) If a person has a significant interest in a class of shares of a bank holding company and the person’s percentage of that class has decreased after the date of the most recent
Institutions f purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank holding company, or of control of an entity that held shares of that class of shares of the bank holding company, for which approval was given by the Minister, the percentage for the purposes of subsection (1) is the percentage that is the lesser of (a) 5 percentage points in excess of the significant interest of the person in that class of shares of the bank holding company on the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank holding company, or of control of an entity that held shares of that class of shares of the bank holding company, for which approval was given by the Minister, and (b) 10 percentage points in excess of the lowest significant interest of the person in that class of shares of the bank holding company at any time after the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the bank holding company, or of control of an entity that held shares of that class of shares of the bank holding company, for which approval was given by the Minister.
Exception
(4) Subsection (1) does not apply if the purchase or other acquisition of shares or the acquisition of control referred to in that subsection would (a) result in the acquisition of control of the bank holding company by the person referred to in that subsection; (b) if the person controls the bank holding company but the voting rights attached to the aggregate of any voting shares of the bank holding company beneficially owned by the person and by entities controlled by the person do not exceed 50 per cent of the
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voting rights attached to all of the outstanding voting shares of the bank holding company, cause the voting rights attached to that aggregate to exceed 50 per cent of the voting rights attached to all of the outstanding voting shares of the bank holding company; (c) result in the acquisition of a significant interest in a class of shares of the bank holding company by an entity controlled by the person and the acquisition of that investment is not exempted by the regulations; or (d) result in an increase in a significant interest in a class of shares of the bank holding company by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever applies, and the increase is not exempted by the regulations.
Regulations
(5) The Governor in Council may make regulations (a) exempting from the application of paragraph (4)(c) the acquisition of a significant interest in a class of shares of the bank holding company by an entity controlled by the person; and (b) exempting from the application of paragraph (4)(d) an increase in a significant interest in a class of shares of the bank holding company by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever applies.
When approval not required
891. (1) Despite sections 875 and 887, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the bank holding company to increase its capital and shares of the bank holding company are issued and acquired in accordance with the terms and conditions, if any, that may be specified in the order; or (b) a person who controls, within the meaning of paragraph 3(1)(a), the bank
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Exception
(2) Paragraph (1)(a) does not apply in respect of a bank holding company with equity of five billion dollars or more.
Pre-approval
892. For the purposes of sections 875 and 887, the Minister may approve (a) the purchase or other acquisition of any number or percentage of shares of a bank holding company that may be required in a particular transaction or series of transactions; or (b) the purchase or other acquisition of up to a specified number or percentage of shares of a bank holding company within a specified period.
Public holding requirement
893. (1) Every bank holding company with equity of one billion dollars or more but less than five billion dollars shall, from and after the day determined under this section in respect of that bank holding company, have, and continue to have, voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the bank holding company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the bank holding company in respect of the voting shares of the bank holding company or by any entity that is controlled by a person who is a major shareholder of the bank holding company in respect of such shares.
Determination of day
(2) The day referred to in subsection (1) is (a) if the bank holding company had equity of one billion dollars or more but less than five billion dollars on the day the bank holding company was formed or came into existence, the day that is three years after that day; and (b) in any other case, the day that is three years after the day of the first annual meeting of the shareholders of the bank
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holding company held after the equity of the bank holding company first reaches one billion dollars.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that a bank holding company has used its best efforts to be in compliance with this section on the day determined under subsection (2), the Minister may specify a later day as the day from and after which the bank holding company must comply with subsection (1).
Public holding requirement
894. If a bank holding company to which section 893 applies becomes a bank holding company with equity of five billion dollars or more, that section continues to apply to the bank holding company until no person is a major shareholder of the bank holding company, other than a person in respect of whom subsections 876(2) to (6) applies.
Limit on assets
895. (1) Unless an exemption order with respect to the bank holding company is granted under section 897, if a bank holding company fails to comply with section 893 in any month, the Minister may, by order, require the bank holding company not to have, until it complies with that section, average total assets in any three month period ending on the last day of a subsequent month exceeding the bank holding company’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order.
Average total assets
(2) For the purposes of subsection (1), the average total assets of a bank holding company in a three month period is to be computed by adding the total assets of the bank holding company as calculated for the month end of each of the three months in the period and by dividing the sum by three.
Definition of ‘‘total assets’’
(3) For the purposes of subsections (1) and (2), ‘‘total assets’’, in respect of a bank holding company, has the meaning given that expression by the regulations.
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Increase of capital
896. If the Superintendent has, by order, directed a bank holding company with equity of one billion dollars or more but less than five billion dollars to increase its capital and shares of the bank holding company are issued and acquired in accordance with any terms and conditions that may be specified in the order, section 893 does not apply in respect of the bank holding company until the time that the Superintendent may, by order, specify.
Exemption by order of the Minister
897. (1) On application by a bank holding company, the Minister may, if the Minister considers it appropriate to do so, by order exempt the bank holding company from the requirements of section 893, subject to any terms and conditions that the Minister considers appropriate.
Compliance with section 893
(2) If an exemption order granted under this section in respect of a bank holding company expires, the bank holding company shall comply with section 893 as of the day the exemption order expires.
Limit on assets
(3) If a bank holding company fails to comply with section 893 on the day referred to in subsection (2), the bank holding company shall not, until it complies with that section, have average total assets in any three month period ending on the last day of a subsequent month exceeding the bank holding company’s average total assets in the three month period ending on the last day of the month immediately before the day referred to in subsection (2) or any later day that the Minister may, by order, specify.
Application of ss. 895(2) and (3)
(4) Subsections 895(2) and (3) apply for the purposes of subsection (3).
Exception
898. (1) If a bank holding company fails to comply with section 893 as the result of any of the following, section 895 does not apply in respect of the bank holding company until the expiration of six months after the day it failed to comply with section 893: (a) a distribution to the public of voting shares of the bank holding company; (b) a redemption or purchase of voting shares of the bank holding company;
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(c) the exercise of any option to acquire voting shares of the bank holding company; or (d) the conversion of any convertible securities into voting shares of the bank holding company. Shares acquiring voting rights
(2) If, as the result of an event that has occurred and is continuing, shares of a bank holding company acquire voting rights in such number as to cause the bank holding company to no longer be in compliance with section 893, section 895 does not apply in respect of that bank holding company until the expiration of six months after the day the bank holding company ceased to be in compliance with section 893 or any later day that the Minister may, by order, specify.
Acquisition of control permitted
899. (1) Subject to subsection (2) and sections 887 and 900, section 893 does not apply in respect of a bank holding company if a person acquires control of the bank holding company through the purchase or other acquisition of all or any number of the shares of the bank holding company by the person or by any entity controlled by the person.
Undertaking required
(2) Subsection (1) applies only if the person referred to in that subsection provides the Minister with an undertaking satisfactory to the Minister to do all things necessary so that, within three years after the acquisition, or any other period that the Minister may specify, the bank holding company has voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the bank holding company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the bank holding company in respect of the voting shares of the bank holding company or by any entity that is controlled by a person who is a major shareholder of the bank holding company in respect such shares.
Institutions f
Application of section 893
900. At the expiration of the period for compliance with an undertaking referred to in subsection 899(2), section 893 shall apply in respect of the bank holding company to which the undertaking relates.
Restriction on voting rights
901. (1) If, with respect to any bank holding company, a particular person contravenes section 874, subsection 875(1), 876(1) or 878(1), section 880 or 881 or subsection 882(1) or section 883 or fails to comply with an undertaking referred to in subsection 899(2) or with any term or condition imposed under section 907, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights (a) that are attached to shares of the bank holding company beneficially owned by the particular person or any entity controlled by the particular person; or (b) that are subject to an agreement entered into by the particular person, or any entity controlled by the particular person, pertaining to the exercise of the voting rights.
Subsection (1) ceases to apply
(2) Subsection (1) shall cease to apply in respect of a person when, as the case may be, (a) the shares to which the contravention relates have been disposed of; (b) the person ceases to control the bank holding company within the meaning of paragraph 3(1)(d); (c) if the person failed to comply with an undertaking referred to in subsection 899(2), the bank holding company complies with section 893; or (d) if the person failed to comply with a term or condition imposed under section 907, the person complies with the term or condition.
Saving
(3) Despite subsection (1), if a person contravenes subsection 876(1) by reason only that, as a result of an event that has occurred and is continuing and is not within the control of the person, shares of the bank holding company beneficially owned by the person or by any entity controlled by the person acquire
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voting rights in such number so as to cause the person to be a major shareholder of the bank holding company, the Minister may, after consideration of the circumstances, permit the person and any entity controlled by the person to exercise voting rights, in person or by proxy, in respect of any class of voting shares of the bank holding company beneficially owned by them that do not in aggregate exceed 20 per cent of the voting rights attached to that class of voting shares. Loss of control — bank and bank holding company
902. (1) Despite sections 876 and 882, a widely held bank or a widely held bank holding company may be a major shareholder of a bank holding company with equity of five billion dollars or more and cease to control, within the meaning of paragraphs 3(1)(a) and (d), the bank holding company if it has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the bank holding company on the expiration of the day specified in the agreement.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the bank or the bank holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Loss of control — other entities
903. (1) Despite sections 876 and 882, an eligible foreign institution, an eligible Canadian financial institution, other than a bank, or a widely held insurance holding company may be a major shareholder of a bank holding company with equity of five billion dollars or more and cease to control, within the meaning of paragraph 3(1)(d), the bank holding company if it has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the bank holding company on the expiration of the day specified in the agreement.
Institutions f
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the institution or insurance holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Change in status
904. (1) If a body corporate that is an eligible financial institution other than a bank controls, within the meaning of paragraph 3(1)(d), a bank holding company with equity of five billion dollars or more and the body corporate subsequently ceases to be an eligible financial institution, the body corporate must do all things necessary to ensure that, on the day that is one year after the day it ceased to be an eligible financial institution, (a) it does not control, within the meaning of paragraph 3(1)(d), the bank holding company; and (b) it is not a major shareholder of the bank holding company.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the body corporate has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection. Approval Process
Application for approval
905. (1) An application for an approval of the Minister required under this Division must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
Applicant
(2) If, with respect to any particular transaction, this Division applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons.
Matters for consideration
906. (1) Subject to subsection (2), if an application for an approval under section 875 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including
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(a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support of any bank that is a subsidiary of the bank holding company; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of any bank that is a subsidiary of the bank holding company; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the bank holding company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the bank holding company and its affiliates on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada. Exception
(2) Subject to subsection 882(1), the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding (a) more than 10 per cent but no more than 20 per cent of any class of the outstanding voting shares of a widely held bank holding company with equity of five billion dollars or more; or (b) more than 10 per cent but no more than 30 per cent of any class of the outstanding non-voting shares of such a bank holding company.
Institutions f
Favourable treatment
(3) The Minister shall not approve a transaction that would cause a bank holding company to become a subsidiary of a foreign bank within the meaning of any of paragraphs (a) to (f) of the definition ‘‘foreign bank’’ in section 2 that is a non-WTO Member foreign bank, unless the Minister is satisfied that treatment as favourable for bank holding companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign bank principally carries on business, either directly or through a subsidiary.
Terms and conditions
907. The Minister may impose any terms and conditions in respect of an approval given under this Division that the Minister considers necessary to ensure compliance with any provision of this Act.
Certifying receipt of application
908. (1) If, in the opinion of the Superintendent, an application filed under this Division contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent.
Incomplete application
(2) If, in the opinion of the Superintendent, an application filed under this Division is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application.
Notice of decision
909. (1) Subject to subsections (2) and (3) and 910(1), the Minister shall, within a period of thirty days after the certified date referred to in subsection 908(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Notice of decision
(2) Subject to subsections (4) and 910(2), if an application involves the acquisition of control of a bank holding company, the Minister shall, within a period of forty-five
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days after the certified date referred to in subsection 908(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter. Extension of period for notice
(3) If the Minister is unable to complete the consideration of an application within the period referred to in subsection (1), the Minister shall, (a) within that period, send a notice to that effect to the applicant; and (b) within a further period of thirty days after the date of the sending of the notice referred to in paragraph (a) or within any other further period that may be agreed on by the applicant and the Minister, send a notice referred to in paragraph (1)(a) or (b) to the applicant.
Further extensions
(4) If the Minister considers it appropriate to do so, the Minister may extend the period referred to in subsection (2) for one or more periods of forty-five days.
Reasonable opportunity to make representations
910. (1) If, after receipt of the notice referred to in paragraph 909(1)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of thirty days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
Reasonable opportunity to make representations
(2) If, after receipt of the notice referred to in paragraph 909(2)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of forty-five days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
Institutions f
Notice of decision
911. (1) Within a period of thirty days after the expiration of the period for making representations referred to in subsection 910(1), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Notice of decision
(2) Within a period of forty-five days after the expiration of the period for making representations referred to in subsection 910(2), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Deemed approval
912. If the Minister does not send a notice under subsection 909(1) or (3) or 911(1) within the period provided for in those subsections, the Minister is deemed to have approved the transaction to which the application relates.
Constraining registration: Crown and foreign governments
913. (1) No bank holding company shall record in its securities register a transfer or issue of any share of the bank holding company to (a) Her Majesty in right of Canada or of a province or any agent or agency of Her Majesty in either of those rights; or (b) the government of a foreign country or any political subdivision of a foreign country, or any agent or agency of a foreign government.
Exception
(2) Despite subsection (1), a bank holding company may record in its securities register a transfer or issue of any share of the bank holding company to a foreign bank, or to a foreign institution, that is controlled by the government of a foreign country or any political subdivision of a foreign country or any agent or agency of a foreign country if the bank holding company is a subsidiary of the foreign bank or foreign institution.
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914. (1) Despite section 737, no person shall, in person or by proxy, exercise any voting rights attached to any share of a bank holding company that is beneficially owned by (a) Her Majesty in right of Canada or of a province or any agency of Her Majesty in either of those rights; or (b) the government of a foreign country or any political subdivision thereof, or any agency thereof.
Exception
(2) Subsection (1) does not apply to a foreign bank, or to a foreign institution, that is controlled by the government of a foreign country or any political subdivision of a foreign country or any agent or agency of a foreign country and that has a significant interest in a class of shares of a bank holding company that is a subsidiary of the foreign bank or foreign institution.
Disposition of shareholdings
915. (1) If, with respect to any bank holding company, a person contravenes section 874 or subsection 875(1), 876(1) or 878(1) or section 880 or 881 or subsection 882(1) or section 883 or fails to comply with an undertaking referred to in subsection 899(2) or with any terms and conditions imposed under section 907, the Minister may, if the Minister deems it in the public interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the bank holding company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order.
Representations
(2) No direction shall be made under subsection (1) unless the Minister has provided each person to whom the direction relates and the bank holding company concerned with a reasonable opportunity to make representations in respect of the subject-matter of the direction.
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Appeal
916. Any person with respect to whom a direction has been made under subsection 915(1) may, within thirty days after the date of the direction, appeal the matter in accordance with section 977.
Application to court
917. (1) Where a person fails to comply with a direction made under subsection 915(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
Court order
(2) A court may, on an application under subsection (1), make such order as the circumstances require to give effect to the terms of the direction and may, without limiting the generality of the foregoing, require the bank holding company concerned to sell the shares that are the subject-matter of the direction.
Appeal
(3) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
Interest of securities underwriter
918. This Division does not apply to a securities underwriter in respect of shares of a body corporate or ownership interests in an unincorporated entity that are acquired by the underwriter in the course of a distribution to the public of those shares or ownership interests and that are held by the underwriter for a period of not more than six months.
Arrangements to effect compliance
919. (1) The directors of a bank holding company may make such arrangements as they deem necessary to carry out the intent of this Division and, in particular, but without limiting the generality of the foregoing, may (a) require any person in whose name a share of the bank holding company is held to submit a declaration setting out (i) the beneficial ownership of the share, and (ii) such other information as the directors deem relevant for the purposes of this Division; (b) require any person who wishes to have a transfer of a share registered in the name of, or to have a share issued to, that person to submit a declaration referred to in paragraph (a) as though the person were the holder of that share; and
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(c) determine the circumstances in which a declaration referred to in paragraph (a) is to be required, the form of the declaration and the times at which it is to be submitted. Order of Superintendent
(2) The Superintendent may, by order, direct a bank holding company to obtain from any person in whose name a share of the bank holding company is held a declaration setting out the name of every entity controlled by that person and containing information concerning (a) the ownership or beneficial ownership of the share; and (b) such other related matters as are specified by the Superintendent.
Compliance required
(3) As soon as possible after receipt by a bank holding company of a direction under subsection (2), (a) the bank holding company shall comply with the direction; and (b) every person who is requested by the bank holding company to provide a declaration containing information referred to in subsection (1) or (2) shall comply with the request.
Outstanding declaration: effect
(4) Where, pursuant to this section, a declaration is required to be submitted by a shareholder or other person in respect of the issue or transfer of any share, a bank holding company may refuse to issue the share or register the transfer unless the required declaration is submitted.
Reliance on information
920. A bank holding company and any person who is a director or an officer, employee or agent of the bank holding company may rely on any information contained in a declaration required by the directors pursuant to section 919 or on any information otherwise acquired in respect of any matter that might be the subject of such a declaration, and no action lies against the bank holding company or any such person for anything done or omitted to be done in good faith in reliance on any such information.
Competition Act
921. Nothing in, or done under the authority of, this Act affects the operation of the Competition Act.
Institutions f DIVISION 8 BUSINESS AND POWERS
Main business
922. (1) Subject to this Part, a bank holding company shall not engage in or carry on any business other than (a) acquiring, holding and administering investments that are permitted by this Part; (b) providing management, advisory, financing, accounting, information processing and other prescribed services to entities in which it has a substantial investment; and (c) any other prescribed business.
Regulations
(2) The Governor in Council may make regulations prescribing businesses or services for the purposes of subsection (1).
Restriction on guarantees
923. (1) A bank holding company shall not guarantee on behalf of any person the payment or repayment of any sum of money.
Exception
(2) Subsection (1) does not apply if (a) the person on whose behalf the bank holding company has undertaken to guarantee the payment or repayment is a subsidiary of the bank holding company; and (b) the subsidiary has an unqualified obligation to reimburse the bank holding company for the full amount of the payment or repayment to be guaranteed.
Regulations
(3) The Governor in Council may make regulations imposing terms and conditions in respect of guarantees permitted by this section.
Restriction on partnerships
924. (1) Except with the approval of the Superintendent, a bank holding company shall not be a general partner in a limited partnership or a partner in a general partnership.
Meaning of ‘‘general partnership’’
(2) For the purposes of subsection (1), ‘‘general partnership’’ means any partnership other than a limited partnership.
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Financial In DIVISION 9 INVESTMENTS Interpretation
Definitions
925. (1) The definitions in subsection 464(1) apply in respect of bank holding companies, except that the reference to ‘‘section 468’’ in the definition ‘‘permitted entity’’ is to be read as a reference to ‘‘section 930’’ and the reference to ‘‘bank’’ in that definition is to be read as a reference to ‘‘bank holding company’’.
Members of a bank holding company’s group
(2) For the purpose of this Division, a member of a bank holding company’s group is any of the following: (a) an entity referred to in any of paragraphs 930(1)(a) to (f) that controls the bank holding company; (b) a subsidiary of the bank holding company or of an entity referred to in any of paragraphs 930(1)(a) to (f) that controls the bank holding company; (c) an entity in which the bank holding company, or an entity referred to in any of paragraphs 930(1)(a) to (f) that controls the bank holding company, has a substantial investment; or (d) a prescribed entity in relation to the bank holding company.
Nonapplication of Division
(3) This Division does not apply in respect of (a) the holding of a security interest in real property, unless the security interest is prescribed under paragraph 941(a) to be an interest in real property; or (b) the holding of a security interest in securities of an entity. Investments
Investments
926. Subject to this Division, a bank holding company may invest its funds in the shares of or ownership interests in any entity or make any other investment that its directors consider necessary or advisable to manage the bank holding company’s liquidity.
Institutions f General Constraints on Investments
Investment standards
927. The directors of a bank holding company shall establish and the bank holding company shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply to avoid undue risk of loss and obtain a reasonable return.
Restriction on control and substantial investments
928. (1) Subject to subsections (2) and (3), no bank holding company shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) A bank holding company may acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 930(1)(a) to (j), a specialized financing entity or a prescribed entity that controls or has a substantial investment in the entity; or (b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 930(1)(a) to (j), a specialized financing entity or a prescribed entity that is controlled by the bank holding company, or (ii) an entity controlled by an entity referred to in any of paragraphs 930(1)(a) to (j), a specialized financing entity or a prescribed entity that is controlled by the bank holding company.
Exception: temporary investments, realizations and loan workouts
(3) A bank holding company may acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 933;
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(b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 934; or (c) a realization of security permitted by section 935. Exception: uncontrolled event
(4) A bank holding company is deemed not to contravene subsection (1) if the bank holding company acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the bank holding company.
Regulations re limits
929. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Division; (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a bank holding company and its prescribed subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) prescribing terms and conditions under which a bank holding company may acquire control of, or acquire or increase a substantial investment in, a specialized financing entity.
Subsidiaries and Equity Investments Permitted investments
930. (1) Subject to subsections (4) to (6), a bank holding company may acquire control of, or acquire or increase a substantial investment in (a) a bank; (b) a bank holding company; (c) a body corporate to which the Trust and Loan Companies Act applies; (d) an association to which the Cooperative Credit Associations Act applies;
Institutions f (e) an insurance company or a fraternal benefit society incorporated or formed by or under the Insurance Companies Act; (f) an insurance holding company; (g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; (h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities.
Permitted investments
(2) Subject to subsections (3) to (6), a bank holding company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity that a bank is permitted to engage in under any of paragraphs 409(2)(a) to (d) or any other activity that a bank is permitted to engage in under section 410 or 411; (b) acquiring or holding shares of, or ownership interests in, entities in which a bank holding company is permitted under this Division to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the bank holding company or any member of the bank holding company’s group: (i) the bank holding company,
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(d) engaging in any activity that a bank is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any member of the bank holding company’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’, ‘‘mutual fund distribution entity’’ or ‘‘real property brokerage entity’’ in subsection 464(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) A bank holding company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit
Institutions f liabilities or if the activities of the entity include (a) activities that a bank is not permitted to engage in under any of sections 412, 417 and 418; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a bank under paragraph 409(2)(c); (c) activities that a bank is not permitted to engage in under section 416 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the bank holding company, a bank would be permitted under Part IX to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the bank holding company, a bank would be permitted to acquire a substantial investment in the other entity under subsection 466(2), paragraph 466(3)(b) or (c) or subsection 466(4) or 468(1) or (2); or (e) any prescribed activity.
Control
(4) Subject to subsection (8) and the regulations, a bank holding company may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in paragraph (1)(a) or (b), unless (i) the bank holding company controls, within the meaning of paragraphs 3(1)(a) and (d), the entity or would thereby acquire control, within the meaning of those paragraphs, of the entity, or (ii) the bank holding company is permitted by regulations made under paragraph 936(a) to acquire or increase the substantial investment;
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(b) an entity referred to in any of paragraphs (1)(c) to (j), unless (i) the bank holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the bank holding company is permitted by regulations made under paragraph 936(a) to acquire or increase the substantial investment; (c) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the bank holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the bank holding company is permitted by regulations made under paragraph 936(a) to acquire or increase the substantial investment; or (d) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless (i) the bank holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, (ii) the bank holding company is permitted by regulations made under paragraph 936(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred
Institutions f to in any of paragraphs (a) to (c) or an entity that is not a permitted entity.
Minister’s approval
(5) Subject to the regulations, a bank holding company may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in paragraphs (1)(g) to (i) from a person who is not a member of the bank holding company’s group; (b) acquire control of an entity referred to in paragraph (1)(j) or (4)(c), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the bank holding company’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 410(1)(c) or (c.1); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f).
Superintendent’s approval
(6) Subject to subsection (7) and the regulations, a bank holding company may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (4)(c) and (d) unless the bank holding company obtains the approval of the Superintendent.
Exception
(7) Subsection (6) does not apply in respect of a particular transaction if (a) the bank holding company is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b), other than a specialized financing entity;
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(b) the bank holding company is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 931(1). Control not required
(8) A bank holding company need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the bank holding company to control the entity.
Giving up control prohibited
(9) A bank holding company that controls, within the meaning of paragraphs 3(1)(a) and (d), an entity referred to in paragraph (1)(a) or (b) may not give up control, within the meaning of paragraph 3(1)(a) or (d), of the entity while continuing to control, within the meaning of the other paragraph, the entity.
Prohibition on giving up control in fact
(10) A bank holding company that, under paragraph (4)(b), (c) or (d), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Giving up control
(11) A bank holding company that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if (a) the bank holding company is permitted to do so by regulations made under paragraph 936(c); or (b) the entity meets the conditions referred to in subparagraph (4)(d)(iii).
Subsections do not apply
(12) If a bank holding company controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the bank holding company of its substantial investment in the entity so long as the bank holding company continues to control the entity.
Institutions f
Approval for indirect investments
931. (1) If a bank holding company obtains the approval of the Minister under subsection 930(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the bank holding company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 930(5) or the Superintendent under subsection 930(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the bank holding company is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
Approval for indirect investments
(2) If a bank holding company obtains the approval of the Superintendent under subsection 930(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the bank holding company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the bank holding company is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
932. (1) If a bank holding company controls a permitted entity, other than an entity referred to in any of paragraphs 930(1)(a) to (f), the bank holding company shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If a bank holding company acquires control of an entity referred to in any of paragraphs 930(1)(g) to (j), the bank holding company shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
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Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in any of paragraphs 930(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Division, a bank holding company shall not control a permitted entity, other than an entity referred to in any of paragraphs 930(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the bank holding company obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. Exceptions and Exclusions
Temporary investments in entity
933. (1) Subject to subsection (3), a bank holding company may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Extension
(2) The Superintendent may, in the case of any particular bank holding company that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(3) If a bank holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 930(5) is required, the bank holding company must, within 90
Institutions f days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Indeterminate extension
(4) If a bank holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 930(6) is required, the Superintendent may, in the case of any particular bank holding company that makes an application under this subsection, permit the bank holding company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
934. (1) Despite anything in this Division, if any subsidiary of a bank holding company has made a loan to an entity and, under the terms of the agreement between the subsidiary and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the bank holding company may acquire, through the subsidiary, (a) a substantial investment in the entity to which the loan was made; (b) a substantial investment in any entity that is an affiliate of the entity; or (c) a substantial investment in an entity that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity to which the loan was made or any of the affiliates of that entity.
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Obligation of bank holding company
(2) If a bank holding company acquires a substantial investment in an entity under subsection (1), the bank holding company shall, within five years after acquiring the substantial investment, cause the subsidiary that made the loan to do all things necessary to ensure that the bank holding company does not control the entity or have a substantial investment in the entity.
Extension
(3) The Superintendent may, in the case of any particular bank holding company that makes an application under this subsection, extend the period of five years referred to in subsection (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(4) Despite anything in this Division, if a subsidiary of a bank holding company has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the subsidiary and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the bank holding company may acquire, through the subsidiary, a substantial investment in that entity or in any other entity designated by that government if the acquisition is part of a debt restructuring program of that government.
Time for holding substantial investment
(5) If a bank holding company acquires a substantial investment in any entity under subsection (4), the bank holding company may, on any terms and conditions that the Superintendent considers appropriate, continue to hold the substantial investment for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(6) If, under subsection (1), a bank holding company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 930, the bank holding company may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the
Institutions f approval in writing of the Minister is obtained before the end of the period referred to in subsection (2), including any extension of it granted under subsection (3).
Realizations
935. (1) Despite anything in this Part, a bank holding company may acquire control of, or a substantial investment in, an entity if the control or the substantial investment is acquired through the realization of a security interest held by a subsidiary of the bank holding company.
Disposition
(2) Subject to subsection 717(2), if a bank holding company acquires control of, or a substantial investment in, an entity by way of the realization of a security interest held by any of its subsidiaries, the bank holding company shall, within five years after the day on which control or the substantial investment is acquired, cause the subsidiary to do all things necessary to ensure that the bank holding company no longer controls the entity or has a substantial investment in the entity.
Extension
(3) The Superintendent may, in the case of any particular bank holding company that makes an application under this subsection, extend the period of five years referred to in subsection (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(4) If, under subsection (1), a bank holding company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 930, the bank holding company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2), including any extension of it granted under subsection (3).
Regulations restricting ownership
936. The Governor in Council may make regulations (a) for the purposes of subsection 930(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the bank holding companies or other
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entities in respect of which that subsection does not apply, including prescribing bank holding companies or other entities on the basis of the activities they engage in; (b) for the purposes of subsection 930(5) or (6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the bank holding companies or other entities in respect of which either of those subsections does not apply, including prescribing bank holding companies or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 930(11), permitting a bank holding company to give up control of an entity; and (d) restricting the ownership by a bank holding company of shares of a body corporate or of ownership interests in an unincorporated entity under sections 930 to 935 and imposing terms and conditions applicable to bank holding companies that own such shares or interests.
Portfolio Limits Exclusion from portfolio limits
937. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by a bank holding company and any of its prescribed subsidiaries under section 934 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the bank holding company and its prescribed subsidiaries under sections 938 to 940 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
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Extension
(2) The Superintendent may, in the case of any particular bank holding company, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 941 to be an interest in real property and (a) the bank holding company or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 941 to be an interest in real property; or (b) the bank holding company or the subsidiary acquired the investment or interest under section 934 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 941 to be an interest in real property. Real Property
Limit on total property interest
938. A bank holding company shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the bank holding company or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the bank holding company in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank holding company. Equities
Limits on equity acquisitions
939. A bank holding company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the bank holding company has, or by virtue of the acquisition would have, a substantial investment, or
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(b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the bank holding company has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the bank holding company has a substantial investment, beneficially owned by the bank holding company and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank holding company. Aggregate Limit Aggregate limit
940. A bank holding company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the bank holding company has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the bank holding company has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the bank holding company or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the bank holding company and its prescribed subsidiaries, and (d) all interests of the bank holding company in real property referred to in subparagraph (a)(iii)
Institutions f exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the bank holding company. Miscellaneous
Regulations
941. For the purposes of this Division, the Governor in Council may make regulations (a) defining the interests of a bank holding company in real property; (b) determining the method of valuing those interests; or (c) exempting classes of bank holding companies from the application of sections 937 to 940.
Divestment order
942. (1) The Superintendent may, by order, direct a bank holding company to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Division.
Divestment order
(2) If, in the opinion of the Superintendent, (a) an investment by a bank holding company or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the bank holding company to control the body corporate or the unincorporated entity, or (b) the bank holding company or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the bank holding company, the entity it controls or the nominee, the Superintendent may, by order, require the bank holding company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the bank
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holding company no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b). Divestment order
(3) If (a) a bank holding company (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 932(1), (2) or (4), or (ii) is in default of an undertaking referred to in subsection 932(1) or (2) and the default is not remedied within ninety days after the day of receipt by the bank holding company of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 932(4) is in default of an undertaking referred to in subsection 932(4) and the default is not remedied within ninety days after the day of receipt by the bank holding company of a notice from the Superintendent of the default, the Superintendent may, by order, require the bank holding company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the bank holding company no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which a bank holding company has a substantial investment permitted by this Division.
Deemed temporary investment
943. If a bank holding company controls or has a substantial investment in an entity as permitted by this Division and the bank holding company becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 930(5) or (6), the bank holding company is deemed to have acquired, on the day the bank holding compa2001
Institutions f ny becomes aware of the change, a temporary investment in respect of which section 933 applies.
Asset transactions
944. (1) A bank holding company shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B�C where A is the value of the assets; B is the total value of all assets that the bank holding company and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the bank holding company, as shown in the last annual statement of the bank holding company prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of (a) assets that are debt obligations that are (i) guaranteed by any financial institution, (ii) fully secured by deposits with any financial institution, or (iii) fully secured by debt obligations that are guaranteed by any financial institution; (b) assets that are debt obligations issued (i) by, or by any agency of, (A) the Government of Canada, (B) the government of a province, (C) a municipality, or (D) the government of a foreign country or any political subdivision of a foreign country, or (ii) by a prescribed international agency; (c) assets that are debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in paragraph (b);
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(d) assets that are debt obligations that are widely distributed, as that expression is defined by the regulations; (e) assets that are debt obligations of an entity controlled by the bank holding company; or (f) a transaction or series of transactions by a subsidiary of the bank holding company with a financial institution as a result of the subsidiary’s participation in one or more syndicated loans with that financial institution.
Exception
(3) The approval of the Superintendent is not required if (a) the bank holding company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Division 7 or subsection 930(5) is required or the approval of the Superintendent under subsection 930(6) is required; or (b) the transaction has been approved by the Minister under subsection 678(1) of this Act or subsection 715(1) of the Insurance Companies Act.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the bank holding company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the bank holding
Institutions f company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank holding company before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the bank holding company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the bank holding company, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the bank holding company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the bank holding company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the bank holding company before the transfer, the value of the assets of the entity as stated in the annual statement.
Transitional
945. Nothing in this Division requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date; (c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date. But if the loan or investment would be precluded or limited by this Division, the amount of the loan or investment may not be increased after that date.
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Saving
946. A loan or investment referred to in section 945 is deemed not to be prohibited by the provisions of this Division.
Meaning of ‘‘non-bank entity’’
947. (1) Subject to subsection (2), for the purpose of section 948 ‘‘non-bank entity’’ means a Canadian entity, other than a bank, that is controlled by a bank holding company or in which a bank holding company has a substantial investment.
Exception
(2) A Canadian entity is not a non-bank entity by reason only that a subsidiary of a bank holding company that is a bank controls, or has a substantial investment in, the Canadian entity.
Prohibited activities
948. (1) A non-bank entity shall not, in Canada, (a) engage in the business of accepting deposit liabilities; or (b) represent to the public that any instrument issued by the non-bank entity is a deposit or that any liability incurred by the non-bank entity is a deposit.
Disclosure of status
(2) A non-bank entity that carries on as part of its business the provision of financial services shall not borrow money in Canada from the public without disclosing that (a) the non-bank entity is not a member institution of the Canada Deposit Insurance Corporation; (b) the liability incurred by the non-bank entity through the borrowing is not a deposit; and (c) the non-bank entity is not regulated as a financial institution in Canada.
Manner of disclosure
(3) The disclosure shall be (a) in a prospectus, information circular or other offering document related to the borrowing or in a similar document related to the borrowing or, if there is no such document, in a statement delivered to the lender; or
Institutions f (b) in any other manner that may be prescribed.
Exception for certain borrowings
(4) Subsection (2) does not apply (a) to a borrowing of a prescribed class or type or to a borrowing in prescribed circumstances or in a prescribed manner; or (b) except as may be provided in any regulations, to a borrowing (i) from a person in an amount of $150,000 or more, or (ii) through the issue of instruments in denominations of $150,000 or more.
Exception
(5) Subsections (1) and (2) do not apply if the non-bank entity is (a) a trust or loan corporation incorporated under an Act of Parliament or of the legislature of a province; (b) an entity referred to in paragraph 930(1)(d) or (h); or (c) a prescribed entity.
Exception
(6) Subsection (2) does not apply if the non-bank entity is (a) an insurance company incorporated under an Act of Parliament or of the legislature of a province; (b) a bank holding company or an insurance holding company; (c) an entity that is controlled by an insurance holding company or in which an insurance holding company has a substantial investment; (d) a financial institution that is described in paragraph (g) of the definition ‘‘financial institution’’ in section 2; or (e) a prescribed entity. DIVISION 10 ADEQUACY OF CAPITAL AND LIQUIDITY
Adequacy of capital and liquidity
949. (1) A bank holding company shall, in relation to its business, maintain (a) adequate capital, and
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(b) adequate and appropriate forms of liquidity, and shall comply with any regulations in relation thereto. Regulations and guidelines
(2) The Governor in Council may make regulations and the Superintendent may make guidelines respecting the maintenance by bank holding companies of adequate capital and adequate and appropriate forms of liquidity.
Directives
(3) Notwithstanding that a bank holding company is complying with regulations or guidelines made under subsection (2), the Superintendent may, by order, direct the bank holding company (a) to increase its capital; or (b) to provide additional liquidity in such forms and amounts as the Superintendent may require.
Compliance
(4) A bank holding company shall comply with an order made under subsection (3) within such time as the Superintendent specifies therein. DIVISION 11 REGULATION OF BANK HOLDING COMPANIES
Supervision Returns Required information
950. A bank holding company shall provide the Superintendent with such information, at such times and in such form as the Superintendent may require.
Names of directors and auditor
951. (1) A bank holding company shall, within thirty days after each annual meeting of the bank holding company, provide the Superintendent with a return showing (a) the name, residence and citizenship of each director holding office immediately following the meeting; (b) the mailing address of each director holding office immediately following the meeting; (c) the bodies corporate of which each director referred to in paragraph (a) is an
Institutions f officer or director and the firms of which each director is a member; (d) the names of the directors referred to in paragraph (a) who are officers or employees of the bank holding company or any affiliate of the bank holding company, and the positions they occupy; (e) the name of each committee of the bank holding company on which each director referred to in paragraph (a) serves; (f) the date of expiration of the term of each director referred to in paragraph (a); and (g) the name, address and date of appointment of the auditor of the bank holding company.
Changes
(2) Where (a) any information relating to a director or an auditor of a bank holding company shown in the latest return made to the Superintendent under subsection (1), other than information referred to in paragraph (1)(c), becomes inaccurate or incomplete, (b) a vacancy in the office of auditor of the bank holding company occurs or is filled by another person, or (c) a vacancy on the board of directors of the bank holding company occurs or is filled, the bank holding company shall forthwith provide the Superintendent with such information as is required to maintain the return in a complete and accurate form.
Copy of by-laws
952. A bank holding company shall send to the Superintendent within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Register of bank holding companies
953. (1) The Superintendent shall, in respect of each bank holding company, cause a register to be maintained containing a copy of (a) the incorporating instrument of the bank holding company; and (b) the information referred to in paragraphs 951(1)(a) and (c) to (g) contained in the latest return sent to the Superintendent pursuant to section 951.
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(2) The register may be maintained in (a) a bound or loose-leaf form or in a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.
Production of information and documents
954. (1) The Superintendent may, by order, direct a person who controls a bank holding company or any entity that is affiliated with a bank holding company to provide the Superintendent with the information or documents that are specified in the order if the Superintendent believes that the production of the information or documents is necessary in order to (a) determine whether the bank holding company is complying with the provisions of this Act; or (b) ascertain the financial condition of the bank holding company.
Time
(2) Any person to whom a direction has been issued under subsection (1) shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time.
Exemption
(3) Subsection (1) does not apply in respect of an entity that controls a bank holding company or is affiliated with a bank holding company where that entity is a financial institution regulated (a) by or under an Act of Parliament; or
Institutions f (b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions in that province concerning the sharing of information on such financial institutions.
Confidential information
955. (1) All information regarding the business or affairs of a bank holding company, or regarding a person dealing with a bank holding company, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) Nothing in subsection (1) prevents the Superintendent from disclosing any information (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, (c) to the Canada Deposit Insurance Corporation or any compensation association designated by order of the Minister pursuant to subsection 449(1) of the Insurance Companies Act, for purposes related to its operation, and (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions, if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed.
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956. The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by bank holding companies of prescribed supervisory information.
Inspection of Bank Holding Companies Examination of bank holding companies
957. (1) The Superintendent, from time to time, shall make or cause to be made any examination and inquiry into the business and affairs of each bank holding company that the Superintendent considers to be necessary or expedient to determine whether the bank holding company is complying with the provisions of this Act and to ascertain the financial condition of the bank holding company.
Access to records of bank holding company
(2) The Superintendent or a person acting under the Superintendent’s direction (a) has a right of access to any records, cash, assets and security held by or on behalf of a bank holding company; and (b) may require the directors, officers and the auditor of a bank holding company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of the condition and affairs of the bank holding company or any entity in which the bank holding company has a substantial investment.
Power of Superintendent on inquiry
958. The Superintendent has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Superintendent’s direction. Remedial Powers Prudential Agreements
Prudential agreement
959. The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with a bank holding company for the purposes of implementing any measure designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it.
Institutions f Directions of Compliance
Superintendent’s directions to bank holding company
960. (1) If, in the opinion of the Superintendent, a bank holding company, one of its affiliates or any person with respect to a bank holding company is committing, or is about to commit, an act — or is pursuing or is about to pursue a course of conduct — that may directly or indirectly be prejudicial to the interest of depositors, policyholders or creditors of a federal financial institution that is affiliated with the bank holding company, the Superintendent may direct the bank holding company to (a) cease or refrain from committing the act or pursuing the course of conduct; (b) cause the affiliate or person to cease or refrain from committing the act or pursuing the course of conduct, to the extent that the bank holding company is able to do so; (c) perform any act that in the opinion of the Superintendent is necessary to remedy the situation or to minimize the prejudice; or (d) cause the affiliate or person to perform any act that in the opinion of the Superintendent is necessary to remedy the situation or to minimize the prejudice, to the extent that the bank holding company is able to do so.
Opportunity for representations
(2) Subject to subsection (4), no direction shall be issued unless the bank holding company is provided with a reasonable opportunity to make representations in respect of the matter.
Temporary direction
(3) If, in the opinion of the Superintendent, the length of time required for representations to be made might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) to (d) having effect for a period of not more than fifteen days.
Continued effect
(4) A temporary direction made under subsection (3) continues to have effect after the expiration of the fifteen day period referred to in that subsection if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the bank
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holding company that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction. Court enforcement
961. (1) If a bank holding company is contravening or has failed to comply with a prudential agreement entered into under section 959 or a direction of the Superintendent issued to the bank holding company under section 960 or is contravening this Act or has omitted to do any thing under this Act that it is required to do, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the bank holding company to comply with the prudential agreement or the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court. Disqualification and Removal of Directors or Senior Officers
Meaning of ‘‘senior officer’’
962. In sections 963 and 964, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer or controller of a bank holding company or any other officer reporting directly to the bank holding company’s board of directors or chief executive officer.
Application
963. (1) This section applies only in respect of a bank holding company (a) that has been notified by the Superintendent that this section applies to it where the bank holding company is subject to measures designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it, which measures are contained in a prudential agreement entered into under section 959 or an undertaking given by the bank holding company to the Superintendent; or (b) that is the subject of a direction made under section 960, or an order made under subsection 949(3).
2001 Information to be provided
Institutions f (2) A bank holding company shall provide the Superintendent with the name of (a) each person who has been nominated for election or appointment as a member of its board of directors, (b) each person who has been selected by the bank holding company for appointment as a senior officer, and (c) each person who is newly elected as a director of the bank holding company at a meeting of shareholders and who was not proposed for election by anyone involved in the management of the bank holding company, together with such other information about the background, business record and experience of the person as the Superintendent may require.
When information to be provided
(3) The information required by subsection (2) shall be provided to the Superintendent (a) at least 30 days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or (b) in the case of a person referred to in paragraph (2)(c), within 15 days after the date of the election of the person.
Disqualification or removal
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order, (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a bank holding company or from being appointed as a senior officer; or (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the bank holding company.
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Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors, policyholders and creditors of any federal financial institution affiliated with the bank holding company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(5) The Superintendent must in writing notify the person concerned and the bank holding company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Prohibition
(6) Where an order has been made under subsection (4) (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the bank holding company shall not permit the person to be, elected or appointed to the position; or (b) removing a director from office, the person shall not continue to hold, and the bank holding company shall not permit the person to continue to hold, office as a director.
Removal of directors or senior officers
964. (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a bank holding company if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 960, (iii) an order made under subsection 949(3), or
Institutions f (iv) a prudential agreement entered into under section 959 or an undertaking given by the bank holding company to the Superintendent.
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors, policyholders and creditors of any federal financial institution affiliated with the bank holding company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the bank holding company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the bank holding company of a removal order or suspension order.
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The director or senior officer, as the case may be, or the bank holding company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
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Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal. PART XVI ADMINISTRATION Notices and Other Documents
Notice to directors and shareholders
965. A notice or document required by this Act or the regulations or by the incorporating instrument or by-laws of a bank or a bank holding company to be sent to a shareholder or director of the bank or bank holding company may be sent by prepaid mail addressed to, or may be delivered personally to, (a) the shareholder at the shareholder’s latest address as shown in the records of the bank or bank holding company, or its transfer agent; and (b) the director at the director’s latest address as shown in the records of the bank or bank holding company, or in the latest return made under section 632 or 951.
Presumption from return
966. A director named in the latest return sent by a bank or a bank holding company to the Superintendent under section 632 or 951 is presumed for the purposes of this Act to be a director of the bank or bank holding company referred to in the return.
Presumption of receipt
967. (1) A notice or document sent by mail in accordance with section 965 to a shareholder or director is deemed to be received by the shareholder or director at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the shareholder or director did not receive the notice or document at that time or at all.
Undelivered notices
(2) If a bank or a bank holding company sends a notice or document to a shareholder in accordance with section 965 and the notice or document is returned on three consecutive occasions because the shareholder cannot be found, the bank or bank holding company is not required to send any further notices or documents to the shareholder until informed in writing of the shareholder’s new address.
Institutions f
Service on a bank, bank holding company or authorized foreign bank
968. A notice or document required by this Act to be sent to or served on a bank, a bank holding company or an authorized foreign bank may be sent by registered mail to the head office of the bank or bank holding company, or to the principal office of the authorized foreign bank, as the case may be, and, if sent, is deemed to be received or served at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the bank, bank holding company or authorized foreign bank did not receive it at that time or at all.
Certificate
969. (1) A certificate issued on behalf of a bank or a bank holding company stating any fact that is set out in the incorporating instrument, the by-laws, the minutes of the meetings of the directors, a committee of directors or the shareholders, or in a contract to which the bank or bank holding company is a party, may be signed by a director or an officer of the bank or bank holding company.
Proof of certain cases
(2) When introduced as evidence in any civil, criminal or administrative action or proceeding, the following are, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate: (a) a fact stated in a certificate referred to in subsection (1); (b) a certified extract from a securities register of a bank or a bank holding company; or (c) a certified copy of, or an extract from, minutes of a meeting of shareholders, directors or a committee of directors of a bank or a bank holding company.
Entry in securities register
970. An entry in the securities register of, or on a security certificate issued by, a bank or a bank holding company is evidence that the person in whose name the security is registered is the owner of the securities described in the register or in the certificate.
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Verification of documents or fact
971. (1) The Superintendent may require that a document or a fact stated in a document that is required by or under this Act to be sent to the Superintendent or to the Minister be verified in accordance with subsection (2).
Form of proof
(2) A document or fact required by this Act or by the Superintendent to be verified may be verified by affidavit made under oath or by statutory declaration under the Canada Evidence Act before any commissioner for oaths or for taking affidavits.
Alternative means of publication
972. (1) Anything that is required by a provision of this Act to be published in the Canada Gazette or to be published in any other way may, instead of being published in that way, be published in any manner that may be prescribed for the purpose of that provision.
Alternative means of publishing summaries
(2) Anything that is required by a provision of this Act to be summarized in a publication may instead be summarized and published in any manner that may be prescribed for the purpose of that provision.
Publication conditions
(3) Any condition under a provision of this Act that something be published in the Canada Gazette or in any other way is satisfied if that thing is published instead in any manner that may be prescribed for the purpose of that provision.
Other consequences
(4) If a provision of this Act provides for consequences to follow the publication of something in the Canada Gazette or in any other manner, the same consequences follow the publication of that thing in any other manner that may be prescribed for the purpose of that provision. Approvals — Terms, Conditions and Undertakings
Definition of ‘‘approval’’
973. (1) In this section, ‘‘approval’’ includes any consent, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent.
Institutions f
Minister — terms, conditions and undertakings
(2) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose such terms and conditions or require such undertaking as the Minister considers necessary, including any terms, conditions or undertaking specified by the Superintendent to maintain or improve the safety and soundness of any financial institution regulated under an Act of Parliament and to which the approval relates or that may be affected by it.
Superintendent — terms, conditions and undertakings
(3) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose such terms and conditions or require such undertaking as the Superintendent considers necessary.
Effect of noncompliance on approval
(4) Unless otherwise expressly provided in this Act, a failure to comply with a term or condition or an undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates.
Noncompliance
(5) In addition to any other action that may be taken under this Act, in the case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or the Superintendent, as the case may be, may (a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or (b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such application the court may so order and make any other order it thinks fit.
Representations
(6) Before taking any action under subsection (5), the Minister or the Superintendent, as the case may be, shall afford the person concerned a reasonable opportunity to make representations.
Revocation, suspension or amendment
(7) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her or may revoke or suspend an undertaking given to him or her or approve its amendment.
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Short-term exemption order
973.1 (1) Despite sections 378.1 and 378.2, paragraph 522.32(2)(b), subsection 522.32(4), paragraphs 522.32(7)(c) and (d) and sections 524.1, 524.2, 885 and 886, the Minister may, by order, provide that any of those provisions do not apply in respect of a person specified in the order for a period of up to twelve months, subject to any terms and conditions that the Minister considers appropriate.
Restriction
(2) If section 516 or 517 applies in respect of a foreign bank or an entity associated with a foreign bank, the Minister may only make an order under subsection (1) to the extent that the aggregate of the period that applied under that section and the period specified in the order under subsection (1) does not exceed twelve months. Orders and Directives
Not statutory instruments
974. An instrument issued or made under this Act and directed to a single bank, bank holding company, authorized foreign bank or person, other than an order referred to in section 499, is not a statutory instrument for the purposes of the Statutory Instruments Act.
Form
975. The Superintendent may, by order, establish the form of any application to be made to the Minister or the Superintendent under this Act. Applications to Superintendent
Content of applications
976. (1) The following applications to the Superintendent must contain the information, material and evidence that the Superintendent may require: (a) applications for approval under subsection 65(1), 72(2), 75(4), 79(5), 80(1), 170(1), 217(3), 421(1), 468(6) or (11), 471(1) or (2) or 482(1), subparagraph 487(2)(a)(vi), section 490 or subsection 494(3) or (4), 495.3(1), 553.1(1), 709(1), 716(2), 718(4), 723(1), 758(1), 924(1), 930(6) or (11), 933(1) or 944(1); (b) applications for consent under subsection 71(1) or 715(1);
Institutions f (c) applications for exemptions under subsection 156.05(3), 245(1) or 822(1); and (d) applications for extensions of time under subsection 471(3) or (5), 472(4), 473(4), 933(2) or (4), 934(3) or 935(3).
Receipt
(2) Without delay after receiving the application, the Superintendent shall send a receipt to the applicant certifying the date on which it was received.
Notice of decision to applicant
(3) Subject to subsection (4), the Superintendent shall, within a period of thirty days after the receipt of the application, send to the applicant (a) a notice approving the application, subject to any terms and conditions that the Superintendent considers appropriate; or (b) if the Superintendent is not satisfied that it should be approved, a notice to that effect.
Extension of period
(4) If the Superintendent is unable to complete the consideration of the application within the period referred to in subsection (3), the Superintendent shall, within that period, send a notice to the applicant informing the applicant that the Superintendent has extended the period for a further period set out in the notice.
Deemed approval
(5) If the applicant does not receive the notice required by subsection (3) and, where applicable, subsection (4), within the required period, the Superintendent is deemed to have approved the application and granted the approval, consent, extension or exemption to which the application relates, regardless of whether the approval, consent, extension or exemption is to be in writing or not. Appeals
Appeal to Federal Court
977. (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 402(1) or 915(1).
Powers
(2) The Federal Court may, in an appeal under subsection (1), (a) dismiss the appeal; (b) set aside the direction or decision; or
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(c) set aside the direction or decision and refer the matter back for re-determination. Certificate
(3) For the purposes of an appeal under subsection (1), the Minister shall, at the request of the bank, bank holding company or person making the appeal, provide the bank, bank holding company or person with a certificate in writing setting out the direction or decision appealed from and the reasons why the direction or decision was made. Regulations
Power to make regulations
978. The Governor in Council may make regulations (a) prescribing anything that is required or authorized by this Act to be prescribed; (b) prescribing the way in which anything that is required or authorized by this Act to be prescribed is to be determined; (c) respecting, for any purpose of any provision of the Act, the determination of the equity of a bank or a bank holding company; (d) defining words and expressions to be defined for the purposes of this Act; (e) requiring the payment of a fee in respect of the filing, examining or issuing of any document or in respect of any action that the Superintendent is required or authorized to take under this Act, and fixing the amount of the fee or the manner of determining its amount; (f) respecting the regulatory capital and total assets of a bank or a bank holding company; (g) respecting the retention, in Canada, of assets of a bank or a bank holding company; (h) respecting the value of assets of a bank or a bank holding company to be held in Canada and the manner in which those assets are to be held; (i) respecting the protection and maintenance of assets of a bank or a bank holding company, including regulations respecting the bonding of directors, officers and employees of a bank or a bank holding company;
Institutions f (j) respecting the holding of shares and ownership interests for the purposes of sections 70, 74 and 714; (k) respecting information, in addition to the information required by section 634 or 953, to be maintained in the register referred to in that section; and (l) generally for carrying out the purposes and provisions of this Act. Delegation
Delegation
979. The Minister may delegate any of the Minister’s powers, duties and functions under this Act to any Minister of State appointed under the Ministries and Ministers of State Act to assist the Minister. PART XVII SANCTIONS
Offence
980. Every person who, without reasonable cause, contravenes any provision of this Act or the regulations is guilty of an offence.
Undue preference to creditor
981. Every director, officer or employee of a bank or an authorized foreign bank who wilfully gives or concurs in giving to any creditor of the bank or authorized foreign bank any fraudulent, undue or unfair preference over other creditors, by giving security to the creditor, by changing the nature of the creditor’s claim or otherwise, is guilty of an offence.
Failure to provide information
982. Every person who, without reasonable cause, refuses or fails to comply with a requirement made under paragraph 643(2)(b) or 957(2)(b) is guilty of an offence.
Use of name
983. (1) Except to the extent permitted by the regulations, every person who uses the name of a bank or of a bank holding company in a prospectus, offering memorandum, takeover bid circular, advertisement for a transaction related to securities or in any other document in connection with a transaction related to securities is guilty of an offence.
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Unauthorized use of title ‘‘bank’’, etc.
(2) Subject to the regulations and subsections (4) to (6.1) and (10) to (12), every entity that acquires, adopts or retains a name that, in any language, includes the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’, either alone or in combination with other words, or any word or words of import equivalent thereto, and every person who, in any language, uses the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’, either alone or in combination with other words, or any word or words of import equivalent thereto, to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Unauthorized use of the name of a bank holding company
(3) Subject to the regulations and subsections (7) to (9.1), every entity that acquires, adopts or retains, in any language, the name of a bank holding company and every person who, in any language, uses the name of a bank holding company to indicate or describe a business in Canada or any part of a business in Canada, without being authorized to do so by this Act or any other Act of Parliament, is guilty of an offence.
Permitted use
(4) No person commits an offence who uses the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ (a) in relation to a business that is not engaged in financial activities, unless the business is carried out by a prescribed entity; (b) in a description of the corporate relationship of an entity controlled by a bank to that bank; (b.1) with the approval of the Minister and subject to terms and conditions that the Minister may impose, in a description of the corporate relationship of an entity in which a bank has a substantial investment to that bank; (b.2) in a description of the corporate relationship of an entity controlled by a
Institutions f bank holding company to that bank holding company; (b.3) with the approval of the Minister and subject to terms and conditions that the Minister may impose, in a description of the corporate relationship of an entity in which a bank holding company has a substantial investment to that bank holding company; (c) in an advertisement in Canada by or on behalf of a foreign bank in respect of its facilities outside Canada; (d) in the identification of representative offices of a foreign bank in Canada; (e) in relation to the business in Canada of an authorized foreign bank; (f) in a description made in accordance with the regulations of the corporate relationship of a bank or a bank holding company with a foreign bank or an entity associated with a foreign bank within the meaning of section 507 that controls the bank or bank holding company; (g) in a description made in accordance with the regulations of the corporate relationship of a prescribed Canadian entity with a foreign bank or an entity associated with a foreign bank within the meaning of section 507; (h) in a description made in accordance with the regulations of the corporate relationship of a prescribed entity associated with a foreign bank within the meaning of section 507 with the foreign bank or with another prescribed entity; (i) in the identification of a body corporate that was a non-bank affiliate of a foreign bank within the meaning of subsection 303(1) of the Bank Act, being chapter B-1 of the Revised Statutes of Canada, 1985, at any time before June 1, 1981; (j) in the identification of a Canadian financial institution that (i) was controlled by a bank that was a subsidiary of a foreign bank before June 15, 1997 but that has ceased to be so controlled,
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(k) in the identification of a bank holding company. Permitted use
(5) No subsidiary of a bank commits an offence by reason only that it uses the name of the bank of which it is a subsidiary in its corporate name or a name under which it carries on business or by reason only that it uses any identifying mark, logogram or insignia of that bank in carrying on its business.
Permitted use
(5.1) No entity in which a bank has a substantial investment commits an offence by reason only that it uses the name of the bank in its corporate name or a name under which it carries on business or by reason only that it uses any identifying mark, logogram or insignia of that bank in carrying on its business if it does so with the approval of the Minister and subject to terms and conditions that the Minister may impose.
Permitted use
(6) No financial institution that was controlled by a bank on June 25, 1999 and that had a name that included the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ on that day commits an offence by reason only that it uses that word in its name or in a name under which it carries on business if the financial institution is a subsidiary of a bank holding company that controls the bank.
Permitted use
(6.1) No financial institution in which a bank had a substantial investment on June 25, 1999 and that had a name that included the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ on that day commits an offence by reason only that it uses that word in its name or in a name under which it carries on business if the financial institution is an entity in which the bank or a bank holding company that controls the bank has a substantial investment and the financial
Institutions f institution uses that word with the approval of the Minister and subject to terms and conditions that the Minister may impose.
Permitted use
(7) No subsidiary of a bank holding company commits an offence by reason only that it uses the name of the bank holding company in the subsidiary’s corporate name or in a name under which it carries on business, so long as, if the subsidiary is not a bank or a subsidiary of the bank, it does not use the word ‘‘bank’’, ‘‘banker’’ or banking’’ in its corporate name or in a name under which it carries on business.
Permitted use
(7.1) No entity in which a bank holding company has a substantial investment commits an offence by reason only that it uses the name of the bank holding company in its corporate name or in a name under which it carries on business, so long as (a) it uses that name with the approval of the Minister and subject to terms and conditions that the Minister may impose; and (b) if the entity is not any of the following, it does not use the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ in its corporate name or in a name under which it carries on business: (i) a bank, (ii) a subsidiary of a bank, and (iii) an entity that has received an approval under subsection (5.1).
Permitted use
(8) No subsidiary of a bank holding company commits an offence by reason only that it uses any identifying mark, logogram or insignia of the bank holding company in carrying on the subsidiary’s business, so long as, if the subsidiary is not a bank or a subsidiary of the bank, it does not use any identifying mark, logogram or insignia that includes the word ‘‘bank’’, ‘‘banker’’ or banking’’.
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(8.1) No entity in which a bank holding company has a substantial investment commits an offence by reason only that it uses any identifying mark, logogram or insignia of the bank holding company in carrying on its business, so long as (a) it does so with the approval of the Minister and subject to terms and conditions that the Minister may impose; and (b) if the entity is not any of the following, it does not use any identifying mark, logogram or insignia that includes the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking‘‘: (i) a bank, (ii) a subsidiary of a bank, and (iii) an entity that has received an approval under subsection (5.1).
Permitted use
(9) No subsidiary of a bank holding company commits an offence by reason only that it uses the name of the bank holding company in a description of its corporate relationship to the bank holding company.
Permitted use
(9.1) No entity in which a bank holding company has a substantial investment commits an offence by reason only that it uses the name of the bank holding company in a description of its corporate relationship to the bank holding company if it does so with the approval of the Minister and subject to terms and conditions that the Minister may impose.
Permitted use
(10) No Canadian entity that is an entity associated with a foreign bank within the meaning of section 507 commits an offence by reason only that it uses the name of the foreign bank or any identifying mark, logogram or insignia of the foreign bank or the name of a prescribed entity associated with a foreign bank within the meaning of section 507 or any identifying mark, logogram or insignia of any such entity, so long as it does not use, in any language, the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ and so long as (a) it does so with the approval of the Minister and subject to terms and conditions that the Minister may impose; or
Institutions f (b) it does so in prescribed circumstances and in accordance with prescribed terms and conditions.
Permitted use
(10.1) No Canadian entity in which a foreign bank or an entity associated with a foreign bank within the meaning of section 507 has a substantial investment commits an offence by reason only that it uses the name of the foreign bank or any identifying mark, logogram or insignia of the foreign bank or the name of a prescribed entity associated with a foreign bank within the meaning of section 507 or any identifying mark, logogram or insignia of that prescribed entity, so long as it does not use, in any language, the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ and so long as (a) it does so with the approval of the Minister and subject to terms and conditions that the Minister may impose; or (b) it does so in prescribed circumstances and in accordance with prescribed terms and conditions.
Permitted use
(11) Subject to subsection (12), no foreign bank that carries on a business or activity referred to in section 514, 522.05, 522.18 or 522.19 and no entity incorporated or formed by or under the laws of a country other than Canada that carries on a business or activity referred to in any of those provisions and that is an entity associated with a foreign bank within the meaning of section 507 commits an offence by reason only that it uses (a) its name or any of its identifying marks, logograms or insignia, or (b) the name of an entity associated with a foreign bank within the meaning of section 507 or any identifying mark, logogram or insignia of that entity, so long as it does not use, in any language, the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’.
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Permitted use
(12) A foreign bank, or an entity associated with a foreign bank, that is referred to in subsection (11) may use the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking’’ in prescribed circumstances if it does so in accordance with prescribed terms and conditions.
Deemed use of ‘‘bank’’, etc.
(13) For the purposes of this section, the following are deemed to be a use of the word ‘‘bank’’, ‘‘banker’’ or ‘‘banking‘‘: (a) any statement that a business, other than a bank that is a subsidiary of a foreign bank or the business in Canada of an authorized foreign bank, is connected, associated or affiliated with a bank or a foreign bank; and (b) the use of any identifying mark, logogram, insignia or name of a bank or a foreign bank or a name substantially similar to any such name.
Deeming
(14) For the purposes of this section, the use of the name of a bank holding company is deemed to include the use of any identifying mark, logogram, insignia or name of the bank holding company or a name substantially similar to any such name.
Deeming
(15) For the purposes of this section, the identifying mark, logogram or insignia of an entity is deemed to include the logo, initials or acronym of that entity.
Regulations
(16) The Governor in Council may make regulations for the purposes of subsections (1) to (3) or paragraph (4)(a), (f), (g) or (h).
Making false statements
984. (1) Every person is guilty of an offence who wilfully makes a false statement (a) in a warehouse receipt or bill of lading given to a bank or authorized foreign bank under the authority of this Act; or (b) in a document giving or purporting to give security on property to a bank under section 426 or 427 or to an authorized foreign bank under either of those sections as incorporated by section 555.
Wilfully disposing of or withholding goods covered by security
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(2) Every person is guilty of an offence who, having possession or control of property mentioned in or covered by a warehouse receipt, bill of lading or any security given to a bank under section 426 or 427 or to an authorized foreign bank under either of those sections as incorporated by section 555, and having knowledge of the receipt, bill of lading or security, without the consent of the bank or authorized foreign bank in writing before the loan, advance, debt or liability secured by it has been fully paid (a) wilfully alienates or parts with any of the property; or (b) wilfully withholds from the bank or authorized foreign bank possession of any of the property if demand for its possession is made by the bank or authorized foreign bank after failure to pay the loan, advance, debt or liability.
Noncompliance with requirements for sale
(3) If a debt or liability to a bank or authorized foreign bank is secured by a warehouse receipt or bill of lading or security on property given to a bank under section 426 or 427 or to an authorized foreign bank under either of those sections as incorporated by section 555 and is not paid, the bank or authorized foreign bank is guilty of an offence if it sells the property covered by the warehouse receipt, bill of lading or security under the power of sale conferred on it by this Act without complying with the provisions of this Act applicable to the exercise of the power of sale.
Acquisition of warehouse receipts, bills of lading, etc.
(4) Every bank or authorized foreign bank that acquires or holds a warehouse receipt or bill of lading or a document signed and delivered to it giving or purporting to give to the bank security on property under section 426 or 427, or to give the authorized foreign bank security or property under either of those sections as incorporated by section 555, to secure the payment of any debt, liability, loan or advance, is guilty of an offence unless
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(a) the debt, liability, loan or advance is contracted or made at the time of the acquisition by the bank or authorized foreign bank of the warehouse receipt, bill of lading or document; (b) the debt, liability, loan or advance was contracted or made on the written promise or agreement that the warehouse receipt, bill of lading or security would be given to the bank or authorized foreign bank; or (c) the acquisition or holding by the bank or authorized foreign bank of the warehouse receipt, bill of lading or security is otherwise authorized by an Act of Parliament.
Definitions
(5) For the purposes of this section, the expressions ‘‘warehouse receipt’’ and ‘‘bill of lading’’ have the meaning assigned to those expressions by section 425.
Punishment
985. (1) Every person who is guilty of an offence under any of sections 980 to 984 is (a) in the case of a natural person, liable (i) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than twelve months, or to both, or (ii) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both; and (b) in the case of an entity, liable (i) on summary conviction, to a fine of not more than $500,000, or (ii) on conviction on indictment, to a fine of not more than $5,000,000.
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Order to comply
(2) If a person has been convicted of an offence under this Act, the court may, in addition to any punishment it may otherwise impose, order the person to comply with the provisions of this Act or the regulations in respect of which the person was convicted.
Additional fine
(3) If a person has been convicted of an offence under this Act, the court may, if it is satisfied that as a result of the commission of the offence the convicted person acquired any monetary benefits or that monetary benefits accrued to the convicted person or to the spouse, common-law partner or other dependant of the convicted person, order the convicted person to pay, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court’s estimation of the amount of those monetary benefits.
Liability of officers, directors, etc.
986. If an entity commits an offence under this Act, any officer, director, agent or principal officer of the entity who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on summary conviction or on conviction on indictment to the punishment provided under paragraph 985(1)(a) for the offence, whether or not the entity has been prosecuted or convicted.
Limitation period
987. (1) Proceedings by way of summary conviction in respect of an offence under a provision of this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known, in the case of an offence under a consumer provision, to the Commissioner and, in any other case, to the Superintendent.
Certificate of Superintendent or Commissioner
(2) A document appearing to have been issued by the Superintendent or the Commissioner, as the case may be, certifying the day on which the subject-matter of any proceedings became known to the Superintendent or the Commissioner is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
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Effect of offence on contracts
988. Unless otherwise expressly provided in this Act, a contravention of any provision of this Act or the regulations does not invalidate any contract entered into in contravention of the provision.
Compliance or restraining order — bank
989. (1) If a bank or a bank holding company or any director, officer, employee or agent of one does not comply with any provision of this Act or the regulations other than a consumer provision, or of the incorporating instrument or any by-law of the bank or bank holding company, the Superintendent, any complainant or any creditor of the bank or bank holding company may, in addition to any other right that that person has, apply to a court for an order directing the bank, bank holding company, director, officer, employee or agent to comply with — or restraining the bank, bank holding company, director, officer, employee or agent from acting in breach of — the provision and, on the application, the court may so order and make any further order it thinks fit.
Compliance or restraining order — authorized foreign bank
(2) If an authorized foreign bank or any of its directors, officers, employees or agents does not comply with any provision of this Act or the regulations other than a consumer provision, or of an order made under subsection 524(1), 528(1) or 534(1) in respect of the authorized foreign bank, the Superintendent, any complainant or any creditor of the authorized foreign bank may, in addition to any other right that that person has, apply to a court for an order directing the authorized foreign bank, director, officer, employee or agent to comply with — or restraining the authorized foreign bank, director, officer, employee or agent from acting in breach of — the provision and, on the application, the court may so order and make any further order it thinks fit.
Compliance or restraining order — consumer provisions
(3) If a bank or an authorized foreign bank or any director, officer, employee or agent of one does not comply with any applicable consumer provision, the Commissioner or any complainant may, in addition to any other right that that person has, apply to a court for an order directing the bank, authorized foreign bank, director, officer, employee or agent to comply with — or restraining the bank, au2001
Institutions f thorized foreign bank, director, officer, employee or agent from acting in breach of — the consumer provision and, on the application, the court may so order and make any further order it thinks fit.
Appeals
990. Any decision or order of a court under this Act may be appealed to the court of appeal.
Recovery and application of fines
991. All fines payable under this Act are recoverable and enforceable, with costs, at the suit of Her Majesty in right of Canada, instituted by the Attorney General of Canada, and, when recovered, belong to Her Majesty in right of Canada. 184. Schedules I and II to the Act are replaced by Schedules I and II set out in Schedule 2 to this Act.
R.S., c. B-2
Bank of Canada Act 185. The definition ‘‘notes’’ in section 2 of the Bank of Canada Act is replaced by the following:
‘‘notes’’ « billets »
‘‘notes’’ means notes intended for circulation in Canada. 186. Subsection 5(2) of the English version of the Act is replaced by the following:
Deputy Minister of Finance to be member of Board
(2) In addition to the members of the Board as constituted by subsection (1), the Deputy Minister of Finance or, if he or she is absent or unable to act or the office is vacant, such other officer of the Department of Finance as the Minister may nominate, is a member of the Board but does not have the right to vote.
1997, c. 15, s. 94
187. Paragraph 6(4)(d) of the Act is replaced by the following: (d) except as authorized by or under any Act of Parliament, is a director, partner, officer, employee or shareholder of (i) a member of the Canadian Payments Association, (ii) a clearing house or participant, as defined in section 2 of the Payment Clearing and Settlement Act, (iii) an investment dealer that acts as a primary distributor of new Government of Canada securities, or
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188. Subsection 8(3) of the Act is replaced by the following: Absence, etc., of Governor and Deputy
(3) The Board may authorize one of the directors or one of the persons appointed under section 7 to act as the Governor in the event that the Governor and Deputy Governor are absent or unable to act or the offices are vacant, but no such person has authority to act as Governor for a period exceeding one month without the approval of the Governor in Council. 189. (1) Subsection 9(1) of the Act is replaced by the following:
Directors
9. (1) The Minister, with the approval of the Governor in Council, shall appoint directors to hold office, during good behaviour, subject to removal by the Governor in Council at any time for cause, to replace the directors whose terms of office have expired. The term of a director begins on the day he or she is appointed and ends immediately before March 1 of the year that is three years after the year in which the term of office of the director’s predecessor expired.
Continuation in office
(1.1) If, on the expiry of a director’s term of office, no new director is appointed, the director whose term of office expired may continue in office until a director is appointed under subsection (1). (2) Subsection 9(2) of the English version of the Act is replaced by the following:
Vacancy
(2) If a person ceases to be a director during the term for which he or she was appointed, the Minister shall, with the approval of the Governor in Council, appoint a qualified person to hold office for the remainder of the term.
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1992, c. 1, s. 142(1) (Sch. V, item 5(2)(E)); 1997, c. 15, s. 95; 1999, c. 28, s. 94
190. (1) Subsection 10(2) of the Act is replaced by the following:
Ineligible persons
(2) No person is eligible to be appointed or to continue as a director if the person is a director, a partner, an officer or an employee of any of the following institutions: (a) a direct clearer as defined in the by-laws of the Canadian Payments Association; (b) a clearing house of a clearing and settlement system designated under subsection 4(1) of the Payment Clearing and Settlement Act; (c) a participant in the Large Value Transfer System, or its successor, operated by the Canadian Payments Association; (d) an investment dealer that acts as a distributor of new Government of Canada securities; or (e) an institution that controls, or is controlled by, an institution referred to in any of paragraphs (a) to (d).
(2) Subsection 10(5) of the Act is repealed. 191. The Act is amended by adding the following after section 10: Disclosure of conflict
10.1 (1) A director shall disclose to the Bank, in writing or by requesting to have it entered in the minutes of a meeting of the Board, the nature and extent of the director’s interest if the director (a) is a party to a material contract or transaction, or proposed material contract or transaction, with the Bank; (b) is a director or an officer of, or has a material interest in, any person who is a party to a material contract or transaction, or proposed material contract or transaction, with the Bank; (c) is or is likely to be materially affected by any action taken or proposed to be taken by
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the Bank or the Governor under the Payment Clearing and Settlement Act; or (d) is a director or an officer of, or has a material interest in, any person who is or is likely to be materially affected by any action taken or proposed to be taken by the Bank or the Governor under the Payment Clearing and Settlement Act.
Time of disclosure
(2) The disclosure shall be made as soon as the director becomes aware of the contract, transaction or action.
Restriction on voting
(3) A director who is required to make a disclosure shall not vote on any resolution to approve the contract, transaction or action, unless it relates to directors’ fees.
Continuing disclosure
(4) For the purpose of this section, a general notice to the Board by a director, declaring that he or she is a director or officer of or has a material interest in a person, and that he or she is to be regarded as interested in a contract or transaction entered into with that person or an action that affects that person, is a sufficient declaration of interest in relation to a contract or transaction with that person or action that affects that person. 192. Section 12 of the English version of the Act is replaced by the following:
Chair
12. The Governor is Chair of the Board of Directors.
1997, c. 15, s. 97
193. Section 16 of the Act is replaced by the following:
Oath of directors and staff
16. Before a person starts to act as a director, an officer or an employee of the Bank, he or she shall take an oath, or make a solemn affirmation, of fidelity and secrecy, in the form set out in the schedule, before a commissioner for taking affidavits. 194. (1) Paragraphs 18(d) and (e) of the Act are replaced by the following: (d) buy and sell securities issued or guaranteed by the Government of the United States of America or Japan or the government of a country in the European Union;
2001 1997, c. 15, s. 98(1); 1999, c. 28, s. 95(2)
Institutions f (2) Paragraphs 18(g.1) to (i) of the Act are replaced by the following: (g.1) if the Governor is of the opinion that there is a severe and unusual stress on a financial market or financial system, buy and sell any other securities, treasury bills, obligations, bills of exchange or promissory notes, to the extent determined necessary by the Governor for the purpose of promoting the stability of the Canadian financial system; (h) make loans or advances for periods not exceeding six months to members of the Canadian Payments Association on taking security in any property that the institution to which the loan or advance is made is authorized to hold; (i) make loans or advances for periods not exceeding six months to the Government of Canada or the government of a province on taking security in readily marketable securities issued or guaranteed by Canada or any province;
1997, c. 15, s. 99; 1999, c. 28, s. 96
195. Sections 19 and 20 of the Act are replaced by the following:
Publication
19. If the Bank takes any action under paragraph 18(g.1), the Bank shall cause a notice to be published in the Canada Gazette that the Governor has formed an opinion that there is a severe and unusual stress on a financial market or financial system. The notice is to be published as soon as the Governor is of the opinion that its publication will not materially contribute to the stress to which the notice relates.
Acquisition of collateral securities
20. The Bank may (a) acquire from any bank or authorized foreign bank that is not subject to the restrictions and requirements referred to in subsection 524(2) of the Bank Act and hold any property held by the bank or authorized foreign bank as security under Part VIII of the Bank Act; and
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(b) exercise every right and remedy in respect of any security acquired under paragraph (a) that could have been exercised by the bank or authorized foreign bank. 1999, c. 28, s. 97(1)
196. The definition ‘‘federal financial institution’’ in subsection 22(5) of the Act is replaced by the following:
‘‘federal financial institution’’ « institution financière fédérale »
‘‘federal financial institution’’ means a bank, an authorized foreign bank, a company to which the Trust and Loan Companies Act applies or an association to which the Cooperative Credit Associations Act applies; 197. Subsection 24(3) of the English version of the Act is replaced by the following:
Canadian Government cheques to be paid or negotiated at par
(3) The Bank shall not make any charge for cashing or negotiating a cheque drawn on the Receiver General or on the account of the Receiver General, or for cashing or negotiating any other instrument issued as authority for the payment of money out of the Consolidated Revenue Fund, or on a cheque drawn in favour of the Government of Canada or any of its departments and tendered for deposit in the Consolidated Revenue Fund. 198. (1) Subsections 25(1) and (2) of the Act are replaced by the following:
Sole right of note issue
25. (1) The Bank has the sole right to issue notes and those notes shall be a first charge on the assets of the Bank.
Arrangements for issue
(2) It is the duty of the Bank to make adequate arrangements for the issue of its notes in Canada and to supply those notes as required for circulation in Canada. (2) Subsection 25(3) of the French version of the Act is replaced by the following:
Coupures
(3) Les coupures des billets de la Banque, de même que leurs modalités d’impression et de validation, sont déterminées par règlement du gouverneur en conseil. (3) Subsections 25(4) and (5) of the Act are replaced by the following:
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Form and material
(4) The form and material of the notes of the Bank shall be subject to approval by the Minister, but each note shall be printed in both the English and French languages.
Notes previously printed
(5) Notwithstanding anything contained in this section, each note of the Bank printed before June 23, 1936, whether issued before, on or after that date, is a valid and binding obligation of the Bank.
1997, c. 15, s. 104
199. Section 29 of the Act is replaced by the following:
Weekly balance sheet
29. (1) The Bank shall, as soon as practicable after the close of business on Wednesday of each week, make up and transmit to the Minister its balance sheet as at the close of business on that day.
Monthly balance sheet
(2) The Bank shall, as soon as practicable after the last business day of each month, make up and transmit to the Minister its balance sheet as at the close of business on that day. The balance sheet shall set out information regarding the Bank’s investments in securities issued or guaranteed by the Government of Canada.
Publication of balance sheets
(3) A copy of each balance sheet shall be published in the issue of the Canada Gazette next following its transmission to the Minister. 200. The Act is amended by adding the following after section 30: LIABILITY
No liability if in good faith
30.1 No action lies against Her Majesty, the Minister, any officer, employee or director of the Bank or any person acting under the direction of the Governor for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed. 201. Sections 31 to 33 of the Act are replaced by the following:
Holding office when ineligible
31. Every person who holds office or continues to hold office as the Governor or as a Deputy Governor or director of the Bank, knowing that he or she is not eligible for that office, is guilty of an offence and liable on
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summary conviction to a fine of not more than one hundred thousand dollars or to imprisonment for a term of not more than six months or to both. Verifying false statement, account or list
32. Every director, officer or auditor of the Bank who verifies any statement, account or list required to be furnished to the Minister pursuant to this Act, or who has to do with the delivering or transmitting of that statement, account or list to the Minister, knowing it to be false in any material particular, is guilty of an offence and liable on summary conviction to a fine of not more than one hundred thousand dollars or to imprisonment for a term of not more than six months or to both.
Contravention of Act
33. Any officer of the Bank or any officer of a bank or any other person who fails or omits to comply with any provision of this Act is guilty of an offence and, unless otherwise provided by this Act, liable on summary conviction to a fine of not more than one hundred thousand dollars or to imprisonment for a term of not more than six months or to both.
1997, c. 15, ss. 107 to 110
202. Schedules I to III to the Act are replaced by the schedule set out in Schedule 3 to this Act.
R.S., c. C-3
Canada Deposit Insurance Corporation Act 203. The definitions ‘‘federal institution’’ and ‘‘member institution’’ in section 2 of the Canada Deposit Insurance Corporation Act are replaced by the following:
‘‘federal institution’’ « institution fédérale »
‘‘federal institution’’ means a bank, company or association referred to in section 8;
‘‘member institution’’ « institution membre »
‘‘member institution’’ means a corporation that has deposit insurance under this Act;
R.S., c. 18 (3rd Supp.), s. 48
204. Paragraphs 5(1)(b) to (c) of the Act are replaced by the following: (b) the persons who for the time being hold the offices of the Governor of the Bank of Canada, the Deputy Minister of Finance,
Institutions f the Superintendent of Financial Institutions and the Commissioner of the Financial Consumer Agency of Canada; (b.1) a Deputy Superintendent of Financial Institutions, or an officer of the Office of the Superintendent of Financial Institutions, appointed by the Minister; and (c) not more than five other members appointed by the Minister with the approval of the Governor in Council. 205. Section 8 of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) an association to which the Cooperative Credit Associations Act applies. 206. Subsection 10(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (i) and by adding the following after paragraph (i): (i.1) settle or compromise any claim by or against the Corporation; and
1996, c. 6, s. 29
207. The portion of subsection 23(1) of the Act before paragraph (b) is replaced by the following:
Calculation of first premium
23. (1) The premium payable by a member institution in respect of the premium year in which it becomes a member institution shall be the same proportion of the lesser of (a) the annual premium for that member determined by by-law made under subsection 21(2) based on an amount equal to the sum of so much of the deposits as are considered to be insured by the Corporation and deposited with the member institution as of the end of the month in which it becomes a member institution, and
1996, c. 6, s. 30
208. Section 24.1 of the Act is replaced by the following:
No set-off on premium payment
24.1 No member institution shall, without the prior agreement of the Corporation, reduce or extinguish a premium payment, interest or other payment to be made to the Corporation
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by reason of a set-off or claim by the member institution against the Corporation. 1997, c. 15, s. 114
209. Paragraph 26.03(1)(a) of the Act is repealed.
1996, c. 6, s. 34; 1999, c. 28, s. 106
210. Section 29 of the Act is replaced by the following:
Examination considerations
29. (1) The person who conducts an examination under section 27 or an inspection under section 28 in respect of a member institution shall make all examinations or inspections that the person considers necessary to (a) provide, by way of a rating or any other means, an assessment of the safety and soundness of the member institution, including its financial condition; (b) comment on the operations of the member institution, taking into account the standards of sound business and financial practices established by the by-laws; and (c) if the member institution is a provincial institution and the Corporation and the person agree, comment on whether the provisions of the statutes governing the provincial institution are being complied with.
Reports
(2) The person shall provide written reports to the Corporation on the matters referred to in paragraphs (1)(a) to (c) in a timely manner.
Right of Corporation to information
(3) The Corporation is entitled to all information obtained by or produced by or for the person, whether in the course of conducting an examination or inspection or otherwise, regarding the affairs of the member institution or any of its affiliates or subsidiaries or of any person dealing with the member institution or any of its affiliates or subsidiaries, that relates to the safety and soundness, or the operations, of the member institution.
Obligation to provide other information
(4) Without limiting subsection (3), the person shall provide the Corporation with any information that the person considers relevant to any matter referred to in any of paragraphs (1)(a) to (c) or to any report provided under subsection (2).
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Obligation to inform
(5) The person shall without delay inform the Corporation if, at any time, whether in the course of conducting an examination or inspection or otherwise, there comes to the attention of the person any change in the circumstances of the member institution that might materially affect the position of the Corporation as an insurer.
Review of returns
29.1 If requested to do so by the Corporation, the person who conducts an examination under section 27 or an inspection under section 28 in respect of a member institution shall review, or cause another person to review on the person’s behalf, within the time specified by the Corporation, the correctness of the returns made by the member institution on which its premiums are based and through which its premium classification is in part determined.
Certain reports to be provided to Corporation
29.2 When a report is sent by the Superintendent to the Minister under section 643 of the Bank Act, section 505 of the Trust and Loan Companies Act or section 437 of the Cooperative Credit Associations Act, a copy of the report shall be sent by the Superintendent at the same time to the Corporation.
1996, c. 6, s. 41
211. (1) Paragraph 39.1(1)(b) of the Act is replaced by the following: (b) the viability of the federal member institution cannot be restored or preserved by the exercise of the Superintendent’s powers under the Bank Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act,
1996, c. 6, s. 41
(2) Paragraph 39.1(2)(c) of the Act is replaced by the following: (c) the federal member institution’s regulatory capital, within the meaning assigned to that expression by the Bank Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act, whichever is applicable, is or is about to become substantially deficient; or
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(3) Paragraph 39.1(3)(a) of the Act is replaced by the following: (a) circumstances exist in respect of a federal member institution that would allow the Superintendent to take control of the federal member institution under the Bank Act, the Trust and Loan Companies Act or the Cooperative Credit Associations Act, and
1996, c. 6, s. 41
212. (1) Subsection 39.15(3) of the Act is replaced by the following:
Clearing arrangements
(3) Subsections (1) and (2) do not apply so as to prevent a member of the Canadian Payments Association from acting or ceasing to act as a clearing agent for a federal member institution in accordance with the Canadian Payments Act and the by-laws and rules of that Association.
1996, c. 6, s. 41
(2) Paragraph 39.15(6)(b) of the Act is replaced by the following: (b) the Superintendent, on the application of the federal member institution, exempted the security agreement from the application of those paragraphs and that subsection before the making of an order under subsection 39.13(1).
1996, c. 6, s. 41
213. (1) Paragraphs 39.19(1)(a) to (c) of the Act are replaced by the following: (a) sections 372, 373, 374, 375, 376, 376.1, 376.2, 377, 377.1 379, 385, 401.2 and 401.3 of the Bank Act; (b) sections 407, 407.01, 407.02, 407.03, 407.1, 407.2, 408, 411, 428 and 430 of the Insurance Companies Act; and (c) sections 375, 375.1, 376, 379 and 396 and subsection 399(2) of the Trust and Loan Companies Act.
1996, c. 6, s. 41
(2) Subsection 39.19(2) of the Act is replaced by the following:
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Public holding requirement re parent
(2) An exemption from the application of section 385 of the Bank Act, section 411 of the Insurance Companies Act or section 379 of the Trust and Loan Companies Act that is granted under section 388 of the Bank Act, section 414 of the Insurance Companies Act or section 382 of the Trust and Loan Companies Act continues in force notwithstanding that the entity that controls the bank, insurance company, trust company or loan company is a federal member institution the shares of which are vested in the Corporation by an order made under paragraph 39.13(1)(a).
1996, c. 6, s. 43
214. Section 45.2 of the Act is replaced by the following:
Confidentiality
45.2 All information regarding the affairs of a federal institution or provincial institution or of any person dealing therewith that is obtained or produced by or for the Corporation is confidential and shall be treated accordingly.
1996, c. 6, s. 45
215. Section 47 of the Act is replaced by the following:
False statements
47. A person is guilty of an offence if the person prepares, signs, approves or concurs in any account, statement, return, report or other document required to be submitted to the Corporation under this Act, the by-laws or an application to become a member institution or a policy of deposit insurance that (a) contains any false or deceptive information; or (b) fails to present fairly information required to be submitted to the Corporation. 216. Subsection 2(4) of the schedule to the Act is repealed.
R.S., c. C-21
Canadian Payments Association Act 217. The long title of the Canadian Payments Association Act is replaced by the following: An Act respecting the Canadian Payments Association and the regulation of systems and arrangements for the making of payments
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218. Section 1 of the Act is replaced by the following: Short title
1. This Act may be cited as the Canadian Payments Act.
R.S., c. 18 (3rd Supp.), s. 33(2)
219. (1) The definitions ‘‘federation of cooperative credit societies’’ or ‘‘federation’’ and ‘‘Superintendent’’ in subsection 2(1) of the Act are repealed. (2) The definition ‘‘Chairman’’ in subsection 2(1) of the English version of the Act is repealed. (3) The definition ‘‘payment item’’ in subsection 2(1) of the Act is replaced by the following:
‘‘payment item’’ « instrument de paiement »
‘‘payment item’’ means a bill of exchange drawn on a member and includes any other class of items approved by by-law;
(4) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: ‘‘cooperative credit association’’ « association coopérative de crédit »
‘‘cooperative credit association’’ means an association to which the Cooperative Credit Associations Act applies;
‘‘life insurance company’’ « société d’assurancevie »
‘‘life insurance company’’ means (a) a life company within the meaning of subsection 2(1) of the Insurance Companies Act, (b) a foreign life company within the meaning of section 571 of that Act, acting in respect of its insurance business in Canada, or (c) a body corporate that carries on under a constating instrument issued under an Act of the legislature of a province a business substantially similar to the business of a life company referred to in paragraph (a);
‘‘money market mutual fund’’ « fonds mutuel en instruments du marché monétaire »
‘‘money market mutual fund’’ means a fund (a) the assets of which are fully or principally invested in short-term and highly liquid debt securities, and
Institutions f (b) that satisfies conditions prescribed by regulation;
‘‘qualified corporation’’ « société admissible »
‘‘qualified corporation’’ means a body corporate (a) that has issued shares to the public under a prospectus, filed in accordance with the laws of the province in which the shares were issued, having conditions attached to the shares requiring the body corporate to accept the surrender of any fully-paid shares, or fractions or portions of the shares, (i) at the demand of their holder, and (ii) at prices determined and payable in accordance with specified conditions, (b) whose shares referred to in paragraph (a) have a fair market value, determined without regard to any voting rights attached to the shares, that is not less than 95 % of the fair market value of all of the issued shares of the capital stock of the body corporate, and (c) having assets that constitute a money market mutual fund;
‘‘qualified trust’’ « fiducie admissible »
‘‘qualified trust’’ means an inter vivos trust (a) in which the interest of its beneficiaries is described by reference to units of the trust that have been issued to the public under a prospectus, filed in accordance with the laws of the province in which the units were issued, having conditions attached to the units requiring the trustee to accept the surrender of any fully-paid units, or fractions or portions of the units, (i) at the demand of their holder, and (ii) at prices determined and payable in accordance with specified conditions,
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Financial In (b) whose units referred to in paragraph (a) have a fair market value, determined without regard to any voting rights attached to the units, that is not less than 95 % of the fair market value of all of the issued units of the trust, and (c) whose assets constitute a money market mutual fund;
‘‘securities dealer’’ « courtier en valeurs mobilières »
‘‘securities dealer’’ means a body corporate that is registered or licensed under the laws of a province to trade in securities, as agent or for its own behalf;
‘‘trustee’’ « fiduciaire »
‘‘trustee’’, in respect of a qualified trust, means a trustee that is a body corporate;
‘‘user’’ « usager »
‘‘user’’ means (a) in Part 1, a person who is a user of payment services but is not a member, and (b) in Part 2, a person who is a user of services provided by a participant of a payment system but is not a participant in the system. (5) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
‘‘Chairperson’’ « président »
‘‘Chairperson’’ means the Chairperson of the Board referred to in section 15;
1991. c. 45, s. 546(2)
(6) Subsection 2(2) of the Act is replaced by the following:
Societies and federations
(2) For the purposes of Part 1, a local cooperative credit society, a cooperative credit association, a central cooperative credit society or a federation of cooperative credit societies is deemed not to be a loan company or a trust company.
Rule not statutory instrument
(3) A rule is not a statutory instrument for the purposes of the Statutory Instruments Act. 220. The Act is amended by adding the following after section 2:
Institutions f ACT BINDING ON HER MAJESTY
Her Majesty
2.1 (1) This Act is binding on Her Majesty in right of Canada.
Her Majesty in right of a province
(2) If Her Majesty in right of a province becomes a member of the Association, this Act is binding on Her Majesty in right of the province. 221. The heading before section 3 of the Act is replaced by the following: PART 1 CANADIAN PAYMENTS ASSOCIATION
Establishment and Membership 222. The heading before section 4 of the Act is repealed. 223. (1) Paragraph 4(1)(d) of the Act is replaced by the following: (d) any other person who is entitled under this Part to be a member and who, on application to the Association for membership in the Association, establishes entitlement to be a member. (2) Subsections 4(2) to (4) of the Act are replaced by the following: Entitled members
(2) Each of the following persons is entitled to be a member of the Association if they meet the requirements set out in the regulations and the by-laws: (a) a central, a trust company, a loan company and any other person, other than a local that is a member of a central or a cooperative credit association, that accepts deposits transferable by order to a third party; (b) a federation, if the federation has as one of its members a central that is a member of the Association, except that the federation may not vote at any meeting of members of the Association; (c) Her Majesty in right of a province or an agent thereof, if Her Majesty in right of the province or the agent thereof accepts deposits transferable by order to a third party; (d) a life insurance company;
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(e) a securities dealer; (f) a cooperative credit association; (g) the trustee of a qualified trust; and (h) a qualified corporation, on behalf of its money market mutual fund. (3) Paragraph 4(2)(b) of the Act, as enacted by subsection (2), is repealed. (4) Subsection 4(6) of the Act is replaced by the following: Termination of membership
(6) A member, other than a member referred to in paragraphs (1)(a) to (c), ceases being a member of the Association three days after the day on which the Board adopts a resolution, by a majority of not less than two-thirds of the votes cast by directors voting in respect of the resolution, declaring that, in the opinion of the Board, the member does not meet the requirements set out in the regulations and the by-laws. (5) Paragraph 4(7)(b) of the Act is replaced by the following: (b) eligible, despite any other provision of this Part, for readmission to the Association as a member until a resolution is adopted by the Board, by a majority of not less than two-thirds of the votes cast by directors voting in respect of the resolution, declaring that, in the opinion of the Board, the member or former member concerned meets the requirements set out in the regulations and the by-laws; or 224. Section 5 of the Act is replaced by the following:
Objects
5. (1) The objects of the Association are to (a) establish and operate national systems for the clearing and settlement of payments and other arrangements for the making or exchange of payments; (b) facilitate the interaction of its clearing and settlement systems and related arrangements with other systems or arrangements involved in the exchange, clearing or settlement of payments; and (c) facilitate the development of new payment methods and technologies.
2001 Duty of Association
Institutions f (2) In pursuing its objects, the Association shall promote the efficiency, safety and soundness of its clearing and settlement systems and take into account the interests of users. 225. The portion of subsection 6(1) of the Act before paragraph (a) is replaced by the following:
Powers
6. (1) The Association may, in carrying out its objects, 226. Section 8 of the Act is replaced by the following:
Composition
8. There shall be a Board of Directors of the Association consisting of sixteen persons elected or appointed in accordance with section 9. 227. (1) Paragraph 9(1)(b) of the English version of the Act is replaced by the following: (b) an officer of the Bank to be an alternate director to the director appointed under paragraph (a) and the alternate director so appointed may act as a director during any period in which the director for whom he or she is an alternate is, by reason of absence or incapacity, unable to act.
1993, c. 34, s. 46(F); 1999, c. 28, s. 112
(2) Subsections 9(2) to (4) of the Act are replaced by the following:
Appointments by Minister
(1.1) The Minister shall appoint three directors of the Association to hold office for a term of not more than three years, except that the first director appointed shall be appointed to hold office for a term of three years, the second shall be appointed to hold office for a term of two years and the third shall be appointed to hold office for a term of one year.
Disqualifications
(1.2) No person is eligible to be appointed under subsection (1.1) or, having been appointed under that subsection, to continue as a member of the Board who is (a) a director, an officer or an employee of a person that is eligible to apply to be a member of the Association, or of an affiliate of such a person; (b) employed in any capacity in the public service of Canada or a province or holds any
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office or position for which any salary or other remuneration is payable out of public moneys; or (c) a member of the Senate or House of Commons or a member of a provincial legislature. Election by members
(2) Subject to subsection (3), twelve directors of the Association shall be elected by the members to hold office for a term of three years, except that of those first elected four shall be elected for a term of three years, four for a term of two years and four for a term of one year.
Composition of Board
(3) For the purpose of election of directors, the members, other than the Bank of Canada, shall be grouped into seven classes, namely, (a) banks and authorized foreign banks; (b) centrals and cooperative credit associations; (c) trust companies and loan companies; (d) qualified corporations and trustees of qualified trusts; (e) securities dealers; (f) life insurance companies; and (g) other members.
Removal of director
(4) If a resolution passed by a two-thirds majority of the members of a class described in subsection (3) who are present at a special meeting of members of that class called to consider the resolution provides for the recall of a director elected by that class, then, despite subsection (2), that director ceases to be a director of the Association at the time notice of the resolution is given to the director or at any other time that may be fixed by by-law.
Remuneration of directors
(5) A director appointed under subsection (1.1) shall be paid by the Association such remuneration as may be fixed by by-law.
Affiliated bodies corporate
(6) For the purposes of paragraph (1.2)(a), (a) one body corporate is affiliated with another body corporate if one of them is the subsidiary of the other or both are subsid2001
Institutions f iaries of the same body corporate or each of them is controlled by the same person; and (b) if two bodies corporate are affiliated with the same body corporate at the same time, they are deemed to be affiliated with each other.
Definition of control
1993, c. 34, s. 47(F); 1999, c. 28, s. 113
(7) In paragraph (6)(a), ‘‘control’’ means control in any manner that results in control in fact, whether directly through the ownership of securities or indirectly through a trust, agreement or arrangement, the ownership of any body corporate or otherwise. 228. Section 10 of the Act is repealed.
229. Section 12 of the English version of the Act is replaced by the following: Election of alternates
12. At every meeting of members at which a director is elected, the members of the class that elected the director shall elect an alternate director for that director and the alternate director so elected may act as a director during any period in which the director for whom he or she is an alternate is, by reason of absence or incapacity, unable to act. 230. Subsections 13(2) and (3) of the Act are replaced by the following:
Quorum
(2) At a meeting of a class of members at which a director is to be elected, the members of that class present or deemed to be present, in person or by proxy, constitute a quorum if, together, they are entitled to cast a majority of the votes that may be cast for the election of a director by all members of that class. 231. The heading before section 15 of the Act is replaced by the following: Chairperson 232. Subsection 15(3) of the English version of the Act is replaced by the following:
Additional vote
(3) The Chairperson or, in the absence or incapacity of the Chairperson, his or her alternate has, in the event of a tie vote on any matter before the Board at a meeting of the Board, a second vote.
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233. Subsection 18(1) of the Act is replaced by the following: By-laws
18. (1) The Board may make such by-laws as it considers necessary for the attainment of the objects of the Association and in particular, but without limiting the generality of the foregoing, may make by-laws (a) respecting the procedure in all business at meetings of the Board, or its committees; (b) establishing, subject to this Part, requirements for membership in the Association; (c) for the administration and management of the business of the Association; (c.1) respecting the remuneration of directors appointed under subsection 9(1.1); (d) respecting the exchange and clearing of payment items and related matters; (e) respecting settlements and related matters; (f) respecting the payment of dues by the members and establishing the method of determining the amount of those dues; (f.1) respecting the payment of fees for services performed by or on behalf of the Association and establishing the method of determining the amount of those fees; (g) establishing penalties to be paid by members for failure to comply with the by-laws and rules, and procedures in respect of the imposition of penalties; (h) respecting the authenticity and integrity of payment items and messages; and (i) respecting the identification and authentication of members and other persons. 234. (1) Subsection 19(1) of the Act is replaced by the following:
Rules
19. (1) Subject to the by-laws, the Board may make such rules as it considers necessary for the attainment of the objects of the Association and, without limiting the generality of the foregoing, may make rules (a) respecting payment items acceptable for exchange, clearing or settlement;
Institutions f (b) establishing standards and procedures in respect of the exchange and clearing of payment items; (c) respecting settlements and related matters; (d) respecting the authenticity and integrity of payment items and messages; and (e) respecting the identification and authentication of members and other persons. (2) Subsection 19(3) of the Act is replaced by the following:
Rules to be available
(3) The Association shall make a copy of every rule available to members in the manner determined by the General Manager.
Copies of rules to be sent to Minister
(4) A copy of every rule shall be sent to the Minister within ten days after it is made. 235. The Act is amended by adding the following after section 19:
Statements of principle and standards
19.1 Subject to the by-laws and rules, the Board may make such statements of principle and standards as it considers necessary for the attainment of the objects of the Association.
Disallowance Effective date of rule
19.2 (1) A rule, including an amendment to or a repeal of a rule, made under subsection 19(1) shall not come into force before the thirtieth day after a copy of it is sent to the Minister in accordance with subsection 19(4), but the Minister may declare the rule to be in force at any time before that period expires.
Extension of time
(2) If the Minister is of the opinion that an extension of the period mentioned in subsection (1) is necessary to permit adequate review of a rule, the Minister may within 10 days after its receipt, on written notice to the sender of the rule, extend that period by up to 30 days.
Minister’s disallowance
(3) The Minister may disallow the whole or a part of a rule.
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Directives by Minister
19.3 (1) If the Minister is of the opinion that it is in the public interest to do so, the Minister may, in writing, direct the Association to make, amend or repeal a by-law, rule or standard.
Consultation
(2) Before a directive is given to the Association, the Minister shall consult the Board, and may consult any interested party, with respect to the content and effect of the directive.
Notification of implementation
(3) As soon as is practicable after implementing a directive and completing any action required to be taken in connection with it, the Association shall notify the Minister that the directive has been implemented and the action completed.
Directive not statutory instrument
(4) A directive is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.
Implementation
(5) The Board shall ensure that a directive is implemented in a prompt and efficient manner.
Duty to comply
(6) Every director, officer and employee of the Association shall comply with any directive given to the Association. Information Requirements
Request by Minister
19.4 For the purpose of the administration of this Part, the Association shall provide the Minister with such information and documents as the Minister may from time to time request. 236. The heading before section 20 of the Act is replaced by the following: Committees 237. Subsection 20(2) of the English version of the Act is replaced by the following:
Chairperson
(2) The Chairperson is the chairperson of the Executive Committee.
Institutions f 238. Section 21 of the Act is replaced by the following:
Other committees
21. The Board may, subject to the regulations, establish other committees consisting of such persons as the Board considers appropriate.
Powers and duties
21.1 Subject to the by-laws, the Board may delegate to its committees such powers and duties as the Board considers appropriate.
Stakeholder Advisory Council
21.2 (1) There shall be a Stakeholder Advisory Council consisting of not more than twenty persons appointed in accordance with subsections (3) and (4).
Object
(2) The object of the Council is to provide counsel and advice to the Board on payment and clearing and settlement matters and any other matter relating to the objects of the Association.
Appointment of directors
(3) The Board shall appoint up to two directors elected under subsection 9(2) to be members of the Council.
Appointment of other members
(4) The remaining members shall be appointed by the Board, in consultation with the Minister, for a term of not more than three years, except that as far as possible one third of the first members shall be appointed for a term of three years, one third shall be appointed for a term of two years and one third shall be appointed for a term of one year.
Representative character
(5) The Council must be broadly representative of users and service providers to payment systems.
Chairperson and vice-chairperson
(6) The members of the Council shall elect a chairperson and a vice-chairperson of the Council from among the members of the Council for a term of not more than two years.
Remuneration
(7) The members of the Council shall serve without remuneration but may be paid by the Association any reasonable travel and living expenses incurred by them when engaged on the business of the Council while absent from their ordinary places of residence.
��� R.S., c. 18 (3rd Supp.), s. 34
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239. The heading before section 27 and sections 27 and 28 of the Act are replaced by the following: Fiscal Year
Fiscal year
27. The fiscal year of the Association is the calendar year. Electronic Meetings
Electronic meetings
28. (1) Subject to the by-laws, a meeting of the Board or of a committee of the Board, a meeting of the members or a meeting of the Stakeholder Advisory Council may be held by means of such telephonic, electronic or other communications facilities as permit all persons participating in the meeting to communicate adequately with each other during the meeting.
Deemed present
(2) A person participating in a meeting by any means referred to in subsection (1) is deemed for the purposes of this Part to be present at the meeting.
1991, c. 48, s. 489; 1997, c. 15, s. 115; 1999, c. 28, s. 114
240. Section 30 of the Act and the heading before it are repealed.
1993, c. 34, s. 48(E)
241. Section 33 of the Act and the heading before it are repealed. 242. Subsection 34(2) of the Act is replaced by the following:
Exemption from Canada Corporations Act
(2) The Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, does not apply to the Association. 243. Section 35 of the Act is replaced by the following:
Regulations by Governor in Council
35. (1) The Governor in Council may make regulations (a) establishing the number of members of committees of the Board and the number of members of the Board that shall be designated by the Board from each class of members established under subsection 9(3); (b) respecting the election of directors of the Association, including regulations
Institutions f (i) respecting the eligibility of persons to be elected as directors, (ii) determining the number of directors, if any, to be elected in respect of each class established under subsection 9(3), and (iii) prescribing the circumstances when two or more of the classes established under subsection 9(3) are to be deemed to be one class and determining the number of directors to be elected in respect of that deemed class; (c) determining the number of votes that a member is entitled to cast for the election of directors; (d) establishing requirements for membership in the Association to be met by persons or classes of persons; (e) respecting the conditions that a money market mutual fund must satisfy; and (f) generally, for carrying out the purposes and provisions of this Part.
Deeming
(2) A director elected in respect of classes that are deemed to be one class under regulations made under subparagraph (1)(b)(iii) is deemed to be elected by and to represent the members of each of the affected classes for the purposes of subsection 9(4) and sections 11 to 13. 244. The Act is amended by adding the following after section 35: PART 2 DESIGNATED PAYMENT SYSTEMS Interpretation
Definitions
36. The definitions in this section apply in this Part.
‘‘designated payment system’’ « système de paiement désigné »
‘‘designated payment system’’ means a payment system designated under subsection 37(1).
‘‘participant’’ « participant »
‘‘participant’’ means a party to an arrangement in respect of a payment system.
‘‘payment system’’ « système de paiement »
‘‘payment system’’ means a system or arrangement for the exchange of messages ef���
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fecting, ordering, enabling or facilitating the making of payments or transfers of value. ‘‘rule’’ « règle »
‘‘rule’’ means a rule, by whatever name called, that governs a designated payment system. It includes an amendment to or a repeal of a rule.
Application Application
36.1 This Part does not apply to the Association. Designation
Designation by Minister
37. (1) The Minister may, if he or she considers that it is in the public interest to do so, designate a payment system that in the opinion of the Minister (a) is national or substantially national in its scope; or (b) plays a major role in supporting transactions in Canadian financial markets or the Canadian economy.
Factors
(2) The following factors shall be considered in a determination of whether it is in the public interest to designate a payment system: (a) the level of financial safety provided by the payment system to the participants and users; (b) the efficiency and competitiveness of payment systems in Canada; and (c) the best interests of the financial system in Canada.
Consultation
(3) Before a payment system is designated, the Minister shall consult the manager and the participants of the payment system and may consult interested parties, with respect to the effect of the designation.
Notice
(4) The Minister shall notify the manager and the participants of a designated payment system in any manner that the Minister considers appropriate.
Designation not statutory instrument
(5) A designation is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.
Institutions f Rules
Copies of rules to be sent to Minister
38. (1) A copy of every rule governing a designated payment system shall be sent by the manager of the designated payment system or, if there is none, by the participants to the Minister (a) in the case of a rule made before the designation of the payment system, within 30 days after the designation; and (b) in the case of a rule made after the designation, within 10 days after it is made.
Effective date of rule
(2) A rule, other than a rule referred to in paragraph (1)(a), does not come into force before the thirtieth day after a copy of it is sent to the Minister under subsection (1), but the Minister may declare the rule to be in force at any time before that period expires.
Extension of time
(3) If the Minister is of the opinion that an extension of the period mentioned in subsection (2) is necessary to permit adequate review of a rule, the Minister may within 10 days after its receipt, on written notice to the sender of the rule, extend that period by up to 30 days.
Disallowance
(4) The Minister may disallow the whole or a part of a rule.
Exemption
(5) The Minister may exempt a designated payment system from the application of subsection (2). Guidelines and Directives
Minister may issue guidelines
39. (1) The Minister may issue guidelines in respect of any matter relating to the administration or enforcement of this Part.
Guidelines public
(2) Guidelines shall be made available to the public and the Minister shall give notice of them in any manner that the Minister considers appropriate.
Minister may issue directive
40. (1) The Minister may issue a written directive to the manager or a participant of a designated payment system in respect of (a) the conditions a person must meet to become a participant in the designated payment system; (b) the operation of the designated payment system;
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(c) the interaction of the designated payment system with other payment systems; or (d) the relationship of the designated payment system with users. Consultation
(2) Before giving a directive, the Minister shall consult the person to whom it is to be given, and may consult any interested party, with respect to the content and effect of the directive.
Content
(3) The Minister may specify in a directive that a manager of a designated payment system or a participant shall, within such time as the Minister considers necessary, (a) cease or refrain from engaging in an act or course of conduct; (b) perform such acts as in the opinion of the Minister are necessary in the public interest; or (c) make, amend or repeal a rule.
Notification of implementation
(4) As soon as is practicable after implementing a directive and completing any actions required to be taken in connection with it, the person to whom it is given shall notify the Minister that the directive has been implemented and the action completed.
Directive not statutory instrument
(5) A directive is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.
Duty to comply
(6) A directive is binding on the person to whom it is given. Information Requirements
Information requests
41. (1) If the Minister requires information in order to determine whether a payment system should be designated under subsection 37(1), the Minister may request that the manager of the payment system or a participant provide the Minister with any information and documents regarding the system that the Minister may require.
Ongoing information requests
(2) Every manager of a designated payment system or, if there is none, the participants shall, in respect of the designated payment system, provide the Minister with such information and documents as the Minister may from time to time request.
2001 Compliance with request required
Institutions f (3) Every person to whom a request is directed shall comply with the request. Participants
Responsibility if foreign system manager
42. (1) If a designated payment system does not have a Canadian manager, the Canadian participants (a) shall comply with the obligations imposed under this Part on a manager of a designated payment system, and (b) have all the rights conferred by this Part on a manager of a designated payment system in the same manner and to the same extent as if the Canadian participants were the manager of the designated payment system on which those obligations and rights are imposed or conferred and, for that purpose, any action that the Minister may take in respect of the manager of the designated payment system may only be taken in respect of its Canadian participants.
Failure to comply of system manager
(2) If a manager of a designated payment system fails to comply with the obligations imposed on it under this Part in respect of the designated payment system or otherwise contravenes this Part, the participants jointly and severally shall comply with those obligations or are liable for the contravention in the same manner and to the same extent as the manager.
Interpretation
(3) In subsection (1), a manager of a designated payment system or a participant is ‘‘Canadian’’ if the manager or participant is incorporated or formed under the laws of Canada or a province. PART 3 GENERAL
Information is confidential
43. (1) Information and documents obtained under this Act are confidential and shall be treated accordingly.
Disclosure permitted
(2) Nothing in subsection (1) prevents the Minister from disclosing any information or documents to (a) any government agency or regulatory body charged with the regulation of financial institutions, as defined in section 2 of
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the Bank Act, for purposes related to that regulation, (b) the Bank of Canada or any officer of the Bank authorized in writing by the Governor of the Bank, and (c) the Chairperson of the Canada Deposit Insurance Corporation or any officer of that Corporation authorized in writing by the Chairperson, if the Minister is satisfied that the information or documents will be treated as confidential by the agency, body or person to whom they are disclosed. No liability if in good faith
44. No action lies against Her Majesty, the Minister, any officer or employee of the Department of Finance or any person acting under the direction of the Minister for anything done or omitted to be done in good faith in the administration or discharge of any powers or duties that under this Act are intended or authorized to be executed or performed.
Compliance orders
45. If a person fails to comply with a provision of this Act or a directive issued to it by the Minister under subsection 19.3(1) or 40(1) in connection with any matter under this Act, or a person to whom a request referred to in section 41 is directed fails to comply with the request, the Minister may apply to a superior court for an order directing the person to comply with the provision, directive or request and, on the application, the court may so order and make any further order it thinks fit.
No stay on judicial review
46. On an application for judicial review under the Federal Court Act of a designation under subsection 37(1) or of a directive issued under subsection 19.3(1) or 40(1), no stay of the designation or directive shall be granted pending the final disposition of the application.
Offence and punishment
47. Every person who, without reasonable cause, contravenes any provision of this Act is guilty of an offence and (a) in the case of a natural person, liable on summary conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding twelve months, or to both; or
Institutions f (b) in the case of any other entity, liable on summary conviction to a fine not exceeding $500,000.
Replacement of ‘‘Chairman’’ with ‘‘Chairperson’’
245. The English version of the Act is amended by replacing the word ‘‘Chairman’’ with the word ‘‘Chairperson’’ wherever it occurs in the following provisions: (a) subsections 15(1) and (2); (b) subsection 16(2); (c) subsection 19(2); (d) subsection 20(1); and (e) subsection 20(3).
Change of headings
246. The headings before sections 5, 7, 8, 16, 17, 22, 25, 26, 29, 31, 34 and 35 of the Act are converted from roman to italic type to conform with the format of the new Parts enacted by this Act.
Chairperson continued
247. (1) The person who holds the office of Chairperson of the Board of the Canadian Payments Association immediately before section 8 of the Canadian Payments Act, as amended by section 218 of this Act, comes into force continues in office as the Chairperson of the Board for the remainder of the term for which that person was appointed Chairperson.
Directors continued
(2) Each person who holds office as a director of the Canadian Payments Association immediately before the day subsection 9(2) of the Canadian Payments Act, as amended by subsection 219(2) of this Act, comes into force ceases to hold office at the close of the next annual meeting of the members of the Association that is held after the coming into force of that subsection. The new directors of the Board shall be elected at that meeting.
Coming into force of rules
247.1 Every rule of the Canadian Payments Association made under the Canadian Payments Association Act before the coming into force of subsection 2(3) of that Act, as enacted by section 219 of this Act, is deemed to have come into force on the day the rule was made.
��� 1991, c. 48
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248. (1) The definition ‘‘subsidiary’’ in section 2 of the Cooperative Credit Associations Act is replaced by the following: ‘‘subsidiary’’ « filiale »
‘‘subsidiary’’ means an entity that is a subsidiary of another entity within the meaning of section 5;
1991, c. 48, par. 497(a)
(2) Paragraph (d) of the definition ‘‘financial institution’’ in section 2 of the Act is replaced by the following: (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act, (3) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘Agency’’ « Agence »
‘‘Agency’’ means the Financial Consumer Agency of Canada established under section 3 of the Financial Consumer Agency of Canada Act;
‘‘branch’’ « bureau »
‘‘branch’’, in respect of an association, means an agency, the head office and any other office of the association;
‘‘Commissioner’’ « commissaire »
‘‘Commissioner’’ means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act;
‘‘consumer provision’’ « disposition visant les consommateurs »
‘‘consumer provision’’ means a provision referred to in paragraph (b) of the definition ‘‘consumer provision’’ in section 2 of the Financial Consumer Agency of Canada Act;
‘‘league’’ « confédération »
‘‘league’’ means a cooperative corporation incorporated by or under an Act of the legislature of a province whose membership consists wholly or primarily of local cooperative credit societies and whose principal purpose is the provision of administrative, technical, research and consultative services, and goods related to those services, to any cooperative credit society or to persons intending to organize or operate such a society;
‘‘retail association’’ « association de détail »
‘‘retail association’’, for the purpose of any particular provision of this Act, means an association as defined in the regulations;
Institutions f
249. (1) Paragraph 3(1)(e) of the French version of the Act is replaced by the following: e) dans tous les cas, la personne dont l’influence directe ou indirecte auprès de l’entité est telle que son exercice aurait pour résultat le contrôle de fait de celle-ci. (2) The portion of subsection 3(3) of the Act before paragraph (a) is replaced by the following: Deemed control
(3) A person is deemed to control, within the meaning of paragraph (1)(a), (b) or (d), an entity if the aggregate of
(3) Section 3 of the Act is amended by adding the following after subsection (3): Guidelines
(4) The Minister may, for any purpose of any provision of this Act that refers to control within the meaning of paragraph (1)(e), make guidelines respecting what constitutes such control, including guidelines describing the policy objectives that the guidelines and the relevant provisions of the Act are intended to achieve and, if any such guidelines are made, the reference to paragraph (1)(e) in that provision shall be interpreted in accordance with the guidelines. 250. Sections 4 and 5 of the Act are replaced by the following:
Holding body corporate
4. A body corporate is the holding body corporate of any entity that is its subsidiary.
Subsidiary
5. An entity is a subsidiary of another entity if it is controlled by the other entity. 251. Subsection 6(2) of the Act is repealed.
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252. The Act is amended by adding the following after section 13: References in other Acts
13.1 A reference in any other Act of Parliament to ‘‘an association to which the Cooperative Credit Associations Act applies’’ is to be construed as not including a central cooperative credit society for which an order has been made under subsection 473(1). 253. Section 14 of the Act is replaced by the following:
Application of Act
14. This Act applies to the former-Act association, and to every body corporate incorporated or formed by or under this Act, so long as it is not discontinued under this Act.
1997, c. 15, s. 116
254. Section 22 of the Act is replaced by the following:
Sunset provision
22. (1) Subject to subsection (2), associations shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, associations may continue to carry on business until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.
Extension
(2) The Governor in Council may, by order, extend by up to six months the time during which associations may continue to carry on business. No more than one order may be made under this subsection. 255. The heading of Part III of the Act is replaced by the following: INCORPORATION, CONTINUANCE AND DISCONTINUANCE 256. Sections 23 and 24 of the Act are replaced by the following:
Incorporation of association
23. On the application of one or more persons made in accordance with this Act, the Minister may, subject to this Part, issue letters patent incorporating an association.
2001 Who may apply for incorporation
Institutions f 24. An application for incorporation of an association may only be made by (a) an association; or (b) persons who are entitled to be members of an association under Part IV that include at least (i) two central cooperative credit societies not all of which are incorporated under the laws of one province, (ii) ten local cooperative credit societies not all of which are incorporated under the laws of one province, or (iii) two or more leagues not all of which are incorporated under the laws of one province. 257. Section 27 of the Act is replaced by the following:
Matters for consideration
27. Before issuing letters patent to incorporate an association, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the association; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the association; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the association will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the association
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on the conduct of those businesses and operations; (g) whether the association is to be operated in accordance with cooperative principles; and (h) the best interests of the financial system in Canada and, in particular, the cooperative financial system in Canada. 258. The Act is amended by adding the following after section 31: Continuance Federal corporations
31.1 (1) A body corporate incorporated under the Canada Business Corporations Act or any other Act of Parliament may apply to the Minister for letters patent continuing the body corporate as an association.
Other corporations
(2) A body corporate incorporated otherwise than by or under an Act of Parliament may, if so authorized by the laws of the jurisdiction where it is incorporated, apply to the Minister for letters patent continuing the body corporate as an association.
Continuance for the purpose of amalgamation
(3) A body corporate incorporated or continued otherwise than under this Act may apply to the Minister for letters patent continuing the body corporate as an association if the body corporate proposes to be continued under this Act for the purpose of amalgamating with another body corporate in compliance with this Act.
Application for continuance
31.2 (1) When a body corporate applies for letters patent under section 31.1, sections 24 to 27 apply in respect of the application, with any modifications that the circumstances require.
Special resolution approval
(2) When a body corporate applies for letters patent under section 31.1, the application must be duly authorized by a special resolution.
Copy of special resolution
(3) A copy of the special resolution must be filed with the application.
Power to issue letters patent
31.3 (1) On the application of a body corporate under subsection 31.1(1) or (2), the Minister may, subject to this Part, issue letters patent continuing the body corporate as an association if the body corporate
Institutions f (a) satisfies the requirements for incorporation as an association or will, immediately after the letters patent are issued, satisfy those requirements; (b) is organized and operated and carries on its business on a cooperative basis or will, immediately after the letters patent are issued, be organized and operated and carry on its business on a cooperative basis; and (c) has a capital and corporate structure that, if set out in the letters patent and by-laws, would meet the requirements of this Act.
Power to issue letters patent
(2) On the application of a body corporate under subsection 31.1(3), the Minister may, subject to this Part, issue letters patent continuing the body corporate as an association only if the Minister is of the opinion that the association that results from the amalgamation will (a) satisfy the requirements for incorporation as an association; (b) be organized and operated and carry on its business on a cooperative basis; and (c) have a capital and corporate structure that meet the requirements of this Act.
Issue of letters patent
(3) If letters patent are issued to a body corporate under subsection (1) or (2), section 27 applies in respect of the issue of letters patent, with any modifications that the circumstances require.
Effect of letters patent
31.4 On the day set out in the letters patent continuing a body corporate as an association under section 31.3, (a) the body corporate becomes an association as if it had been incorporated under this Act; and (b) the letters patent are deemed to be the incorporating instrument of the continued company.
Copy of letters patent
31.5 (1) When a body corporate is continued as an association under section 31.3, the Superintendent shall without delay send a copy of the letters patent to the appropriate
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official or public body in the jurisdiction in which the body corporate was incorporated. Notice of issuance of letters patent
(2) The Superintendent shall cause to be published in the Canada Gazette a notice of the issuance of letters patent continuing a body corporate as an association.
Effects of continuance
31.6 Where a body corporate is continued as an association, (a) the property of the body corporate continues to be the property of the association; (b) the association continues to be liable for the obligations of the body corporate; (c) an existing cause of action or claim by or against the body corporate or any liability of the body corporate to prosecution is unaffected; (d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may continue to be prosecuted by or against the association; (e) a conviction against, or any ruling, order or judgment in favour of or against the body corporate may be enforced by or against the association; (f) a person who, on the day the body corporate becomes an association, was the holder of a security issued by the body corporate is not deprived of any right or privilege available to the person at that time in respect of the security or relieved of any liability in respect of the security, but any such right or privilege may be exercised only in accordance with this Act; and (g) the by-laws of the body corporate, except those that are in conflict with this Act, continue as the by-laws of the association.
Transitional
31.7 (1) Despite any other provision of this Act or the regulations, the Minister may, on the recommendation of the Superintendent, by order, grant to an association in respect of which letters patent were issued under section 31.3 permission to (a) engage in a business activity specified in the order that an association is not otherwise permitted by this Act to engage in and that
Institutions f the body corporate continued as the association was engaging in at the time the application for the letters patent was made; (b) continue to have issued and outstanding debt obligations the issue of which is not authorized by this Act if the debt obligations were outstanding at the time the application for the letters patent was made; (c) hold assets that an association is not otherwise permitted by this Act to hold if the assets were held by the body corporate continued as the association at the time the application for the letters patent was made; (d) acquire and hold assets that an association is not otherwise permitted by this Act to acquire or hold if the body corporate continued as the association was obliged, at the time the application for the letters patent was made, to acquire those assets; and (e) maintain outside Canada any records or registers required by this Act to be maintained in Canada and maintain and process outside Canada information and data relating to the preparation and maintenance of those records or registers.
Duration
(2) The permission shall be expressed to be granted for a period specified in the order not exceeding (a) with respect to any activity described in paragraph (1)(a), thirty days after the date of issue of the letters patent or, if the activity is conducted under an agreement existing on the date of issue of the letters patent, the expiration of the agreement; (b) with respect to any matter described in paragraph (1)(b), ten years; and (c) with respect to any matter described in any of paragraphs (1)(c) to (e), two years.
Renewal
(3) Subject to subsection (4), the Minister may, on the recommendation of the Superintendent, by order, renew a permission with respect to any matter described in paragraphs (1)(b) to (d) for any further period or periods that the Minister considers necessary.
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(4) The Minister shall not grant to an association a permission (a) with respect to matters described in paragraph (1)(b), that purports to be effective more than ten years after the date of the approval for the association to commence and carry on business, unless the Minister is satisfied on the basis of evidence on oath provided by an officer of the association that the association will not be able at law to redeem at the end of the ten years the outstanding debt obligations to which the permission relates; and (b) with respect to matters referred to in paragraphs (1)(c) and (d), that purports to be effective more than ten years after the date of the approval for the association to commence and carry on business.
1998, c. 1, s. 382 Transferring to other federal Acts
259. Sections 32 to 34 of the Act are replaced by the following: 32. (1) An association may (a) apply for letters patent continuing the association as a company under subsection 33(1) of the Trust and Loan Companies Act or amalgamating and continuing the association as a company under section 228 and subsection 234(1) of that Act; (b) apply for letters patent continuing the association as a bank under subsection 35(1) of the Bank Act or amalgamating and continuing the association as a bank under section 223 and subsection 229(1) of that Act; (c) apply for letters patent continuing the association as a bank holding company under subsection 684(1) of the Bank Act or amalgamating and continuing the association as a bank holding company under section 803 and subsection 809(1) of that Act; (d) with the approval of the Minister, apply for a certificate of continuance under section 187 of the Canada Business Corporations Act; or
Institutions f (e) with the approval of the Minister, apply for a certificate of continuance, or a certificate of continuance and a certificate of amalgamation, under section 285 of the Canada Cooperatives Act.
Conditions for approval
(2) No approval referred to in paragraph (1)(d) or (e) may be given to an association unless the Minister is satisfied that (a) the application has been authorized by a special resolution of the members; and (b) the association holds no deposits that are insured under the Canada Deposit Insurance Corporation Act.
Effect of letters patent or certificate
33. On the day specified in the letters patent or certificate of continuance referred to in any of paragraphs 32(1)(a) to (e), the Act referred to in the relevant paragraph applies and this Act ceases to apply to the body corporate continued under that Act.
Withdrawing application
34. If a special resolution authorizing the application for letters patent or a certificate of continuance referred to in any of paragraphs 32(1)(a) to (e) so states, the directors of an association may, without further approval of the members, withdraw the application before it is acted on. 260. Section 36 of the Act is replaced by the following:
Name
36. The name of an association shall include (a) the word ‘‘cooperative’’ or ‘‘coopérative’’, along with another word or expression indicating the financial nature of the association, (b) the phrase ‘‘central credit union’’, ‘‘credit union central’’ or ‘‘fédération de caisses populaires’’, or (c) any word or phrase specified by the Minister or any combination or derivative thereof.
1996, c. 6, s. 50
261. Section 37 of the Act is replaced by the following:
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Affiliated entity
37. Despite section 35, an association that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, be incorporated with, or change its name to, substantially the same name as that of the affiliated entity.
1996, c. 6, s. 52
262. Subsection 40(2) of the Act is replaced by the following:
Revoking name
(2) If an association has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Act, the Superintendent may revoke the name of the association and assign to it a name and, until changed in accordance with section 219 or 221, the name of the association is thereafter the name so assigned. 263. Subsection 41(1) of the Act is replaced by the following:
Members
41. (1) Only a person that is an association, a central cooperative credit society, a local cooperative credit society, a cooperative corporation, a league, a deposit protection agency or an unincorporated organization consisting wholly of any of those entities may be admitted to membership in an association. 264. Subsection 41(3) of the Act is repealed.
1998, c. 1, s. 38
265. Section 50 of the Act is replaced by the following:
Minimum membership
50. (1) The membership in an association must include at least (a) an association; (b) two central cooperative credit societies not all of which are incorporated under the laws of one province; (c) ten local cooperative credit societies not all of which are incorporated under the laws of one province; or (d) two or more leagues not all of which are incorporated under the laws of one province.
2001 Where minimum not attained
Institutions f (2) If, at any time, the membership in an association is not in accordance with subsection (1), the association shall without delay take the steps that are necessary to (a) apply for a certificate of continuation or letters patent referred to in subsection 32(1); or (b) liquidate and dissolve the association under Part VII. 266. Section 52 of the Act is replaced by the following:
No control
52. No person other than an association may control an association. 267. Paragraph 60(1)(b) of the Act is replaced by the following: (b) the association has paid-in capital of at least five million dollars or such greater amount as the Minister may specify; 268. Section 61 of the Act is replaced by the following:
Conditions of order
61. An order approving the commencement and carrying on of business by an association may contain any conditions or limitations that the Superintendent considers appropriate. 269. Subsection 70(2) of the Act is replaced by the following:
Approval required
(2) A by-law referred to in subsection (1) must be approved by special resolution. 270. Section 74 of the Act is amended by adding the following after subsection (2):
When approval not necessary
(3) The by-laws of an association may, with the approval of the Superintendent, provide for a formula or procedure for valuing a member of the association or any of its assets or liabilities when the member, or the asset or liability, is proposed to be acquired by the association in exchange for membership shares or shares of the association. The approval of the Superintendent under subsection (1) is not necessary when such shares are issued in accordance with such a by-law.
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1997, c. 15, s. 118
271. The portion of subsection 75(2.1) of the Act before paragraph (b) is replaced by the following:
Exception
(2.1) Despite subsection (2), an association may, subject to subsection (2.2), record in the appropriate stated capital account part of the amount of any consideration it receives for shares it issues (a) in exchange for (i) property of a person who immediately before the exchange did not deal with the association at arm’s length within the meaning of that expression in the Income Tax Act or property of any other prescribed person, or (ii) shares of, or another interest in, a body corporate that immediately before the exchange, or because of the exchange, did not deal with the association at arm’s length within the meaning of that expression in the Income Tax Act or shares of or another interest in any prescribed entity; or 272. (1) Subsection 86(1) of the Act is replaced by the following:
Declaration of dividend
86. (1) The directors of an association may declare and an association may pay a dividend by issuing fully paid membership shares or options or rights to acquire membership shares to members or fully paid shares or options or rights to acquire fully paid shares to members or shareholders and, subject to subsections (4) and (5), the directors of an association may declare and an association may pay a dividend in money or property, and if a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada. (2) Section 86 of the Act is amended by adding the following after subsection (4):
When dividend not to be declared
(5) The directors of an association shall not declare and an association shall not pay a dividend in any financial year without the approval of the Superintendent if, on the day the dividend is declared, the total of all dividends declared by the association in that year would exceed the aggregate of the
Institutions f association’s net income up to that day in that year and its retained net income for the preceding two financial years. 273. Subsection 151(2) of the French version of the Act is replaced by the following:
Renonciation à l’avis
(2) La présence à l’assemblée équivaut à une renonciation de l’avis de convocation, sauf lorsque la personne y assiste spécialement pour s’opposer aux délibérations au motif que l’assemblée n’est pas régulièrement convoquée. 274. (1) Subsection 154(1) of the Act is replaced by the following:
Member list
154. (1) An association shall prepare a list, which may be in electronic form, of its members entitled to receive notice of a meeting under paragraph 146(1)(a), arranged in alphabetical order, which list must be prepared at the close of business on the day immediately preceding the day on which notice is given. (2) The portion of subsection 154(2) of the Act before paragraph (a) is replaced by the following:
Shareholder list
(2) An association shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 146(1)(b), arranged in alphabetical order and showing the number of shares held by each shareholder, which list must be prepared 275. Subsection 167(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d) and by adding the following after paragraph (e): (f) in the case of a retail association, establish procedures to provide disclosure of information to customers of the association that is required to be disclosed by this Act and for dealing with complaints as required by section 385.22; and (g) designate a committee of the board of directors to monitor the procedures referred to in paragraph (f) and satisfy itself that they are being adhered to by the retail association.
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276. Subsection 169(2) of the Act is replaced by the following: Residency requirement
(2) At least two thirds of the directors of an association must be, at the time of each director’s election or appointment, resident Canadians. 277. Subsection 179(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) when the director is removed from office under section 441.2.
1997, c. 15, s. 127(2)
278. Paragraph 200(3)(b) of the Act is replaced by the following: (b) review those procedures and their effectiveness in ensuring that the association is complying with Part XII; and 279. The portion of section 215 of the Act before paragraph (a) is replaced by the following:
Reliance on statement
215. A director, an officer or an employee of an association is not liable under subsection 168(1) or (2) or section 211 or 214 or subsection 430(1) if the director, officer or employee relies in good faith on 280. The portion of subsection 216(1) of the French version of the Act before paragraph (a) is replaced by the following:
Indemnisation
216. (1) L’association peut indemniser ses administrateurs ou ses dirigeants — ou leurs prédécesseurs —, ainsi que les personnes qui, à sa demande, agissent ou ont agi en cette qualité pour une entité dont elle est ou a été associée, actionnaire ou créancière, de tous leurs frais, y compris les montants versés en règlement d’une action ou pour satisfaire à un jugement, entraînés par des procédures civiles, pénales ou administratives auxquelles ils étaient parties en cette qualité, sauf à l’occasion d’actions intentées par l’association ou pour son compte en vue d’obtenir un jugement favorable, si :
Institutions f 281. Section 219 of the Act is replaced by the following:
Incorporating instrument
219. On the application of an association duly authorized by special resolution of the members, the Minister may approve a proposal to add, change or remove any provision that is permitted by this Act to be set out in the association’s incorporating instrument. 282. Subsection 220(1) of the Act is replaced by the following:
Letters patent to amend
220. (1) On receipt of an application referred to in section 219, the Minister may issue letters patent to effect the proposal. 283. (1) Subsection 221(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (i) and by adding the following after paragraph (i): (i.1) change the name of the association; or (2) Subsection 221(2) of the Act is replaced by the following:
Effective date of by-law
(2) A by-law, or an amendment to or a repeal of a by-law, made under paragraph (1)(i.1) is not effective until it is approved by the Superintendent. 284. Subsection 224(1) of the Act is replaced by the following:
Proposal to amend
224. (1) Subject to subsection (2), a member may, in accordance with sections 152 and 153, make a proposal to make an application referred to in section 219 or to make, amend or repeal the by-laws referred to in subsection 221(1) of the association. 285. Section 226 of the Act is replaced by the following:
Application to amalgamate
226. On the joint application of two or more bodies corporate incorporated by or under an Act of Parliament, including associations, the Minister may issue letters patent amalgamating and continuing the applicants as one association if the proposed capital and corporate structure of the amalgamated association meets the requirements for an association to be incorporated under this Act.
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286. Section 230 of the Act is renumbered as subsection 230(1) and is amended by adding the following: Horizontal short-form amalgamation
(2) Two or more bodies corporate incorporated by or under an Act of Parliament may amalgamate and continue as an association without complying with sections 227 to 229 if (a) at least one of the applicants is an association; (b) the applicants are all wholly-owned subsidiaries of the same holding body corporate; (c) the amalgamation is approved by a resolution of the directors of each of the applicants; and (d) the resolutions provide that (i) the shares of all applicants, except those of one of the applicants that is an association, will be cancelled without any repayment of capital in respect of those shares, (ii) the letters patent of amalgamation and the by-laws of the amalgamated association will be the same as the incorporating instrument and the by-laws of the amalgamating association whose shares are not cancelled, and (iii) the stated capital of the amalgamating association and bodies corporate whose shares are cancelled will be added to the stated capital of the amalgamating association whose shares are not cancelled. 287. Section 231 of the Act is amended by adding the following after subsection (2):
Application of sections 24 to 26
(3) If two or more bodies corporate, none of which is an association, apply for letters patent under subsection (1), sections 24 to 26 apply in respect of the application with any modifications that the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one association, the Minister shall take into account all matters that the Minister considers relevant to the application, including
Institutions f (a) the sources of continuing financial support for the amalgamated association; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of the amalgamated association; (c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the amalgamated association will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; (g) whether the association is to be operated in accordance with cooperative principles; and
Court enforcement
Appeal
(h) the best interests of the financial system in Canada and, in particular, the cooperative financial system in Canada. 288. The Act is amended by adding the following after section 232: 232.1 (1) If an association or any director, officer, employee or agent of an association is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the association or the director, officer, employee or agent to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on the application the court may so order and make any other order it thinks fit. (2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court. 289. The Act is amended by adding the following after section 233:
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Sale by association
233.1 (1) An association may sell all or substantially all of its assets to a financial institution incorporated by or under an Act of Parliament, a central cooperative credit society for which an order has been made under subsection 473(1), a bank holding company or an authorized foreign bank in respect of its business in Canada if the purchasing financial institution, central cooperative credit society, bank holding company or authorized foreign bank assumes all or substantially all of the liabilities of the association.
Sale agreement
(2) An agreement of purchase and sale (in subsection (3), section 233.2, subsections 233.3(1) and (4) and section 233.5 referred to as a ‘‘sale agreement’’) must set out the terms of, and means of effecting, the sale of assets referred to in subsection (1).
Consideration
(3) Despite anything in this Act, the consideration for a sale referred to in subsection (1) may be cash or fully paid securities of the purchasing financial institution, central cooperative credit society for which an order has been made under subsection 473(1), bank holding company or authorized foreign bank or in part cash and in part fully paid securities of the purchasing financial institution, central cooperative credit society, bank holding company or authorized foreign bank or any other consideration that is provided for in the sale agreement.
Meaning of ‘‘authorized foreign bank’’ and ‘‘bank holding company’’
(4) In this section, ‘‘authorized foreign bank’’ and ‘‘bank holding company’’ have the meaning assigned to those expressions by section 2 of the Bank Act.
Agreement to Minister
233.2 A sale agreement must be submitted to the Minister before the sending of the sale agreement to members and shareholders of the selling association under subsection 233.3(1).
Approval
233.3 (1) The directors of a selling association shall submit a sale agreement for approval to a meeting of the members, and to a meeting of shareholders, of the association and, subject to subsection (3), to the holders of each class or series of shares of the association.
Institutions f
Right to vote
(2) Each share of a selling association carries the right to vote in respect of a sale referred to in subsection 233.1(1) whether or not the share otherwise carries the right to vote.
Class vote
(3) The holders of shares of a class or series of shares of a selling association are entitled to vote separately as a class or series in respect of a sale referred to in subsection 233.1(1) only if the shares of the class or series are affected by the sale in a manner different from the shares of another class or series.
Special resolution
(4) A sale agreement is approved when the members and shareholders, and the holders of each class or series of shares entitled to vote separately as a class or series under subsection (3), of the selling association have approved the sale by special resolution.
Abandoning sale
233.4 If a special resolution approving a sale under subsection 233.3(4) so states, the directors of a selling association may, subject to the rights of third parties, abandon the sale without further approval of the members and shareholders.
Application to Minister
233.5 (1) Subject to subsection (2), unless a sale agreement is abandoned in accordance with section 233.4, the selling association shall, within three months after the approval of the sale agreement in accordance with subsection 233.3(4), apply to the Minister for approval of the sale agreement.
Conditions precedent to application
(2) No application for approval under subsection (1) may be made unless (a) a notice of intention to make the application has been published at least once a week for a period of four consecutive weeks in the Canada Gazette and in a newspaper in general circulation at or near the place where the head office of the selling association is situated; and (b) the application is supported by satisfactory evidence that the selling association has complied with the requirements of sections 233.1 to 233.4 and this section.
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Approval by Minister
(3) A sale agreement has no force or effect until it has been approved by the Minister.
Approval by Minister
(4) If an application has been made to the Minister in accordance with subsections (1) and (2), the Minister may approve the sale agreement to which the application relates. 290. (1) Section 236 of the Act is amended by adding the following after subsection (4):
Electronic access
(4.1) An association may make the information contained in records referred to in subsection 235(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time. (2) Subsection 236(5) of the French version of the Act is replaced by the following:
Exemplaires
(5) Les associés et les actionnaires peuvent sur demande et sans frais, une fois par année civile, obtenir un exemplaire des règlements administratifs de l’association. 291. Subsection 242(1) of the Act is replaced by the following:
Location and processing of information
242. (1) Subject to subsection (3), an association shall maintain and process in Canada any information or data relating to the preparation and maintenance of the records referred to in section 235 unless the Superintendent has, subject to any terms and conditions that the Superintendent considers appropriate, exempted the association from the application of this section. 292. Subsection 245(3) of the Act is replaced by the following:
Application of certain provisions
(3) Subsections 236(4) and (4.1) and sections 237 and 239 to 242 apply, with any modifications that the circumstances require, in respect of a central securities register.
Institutions f 293. (1) The portion of paragraph 292(3)(a) of the Act before subparagraph (i) is replaced by the following: (a) a list of the subsidiaries of the association, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 394 or pursuant to a realization of security in accordance with section 395 and which the association would not otherwise be permitted to hold, showing, with respect to each subsidiary, (2) Section 292 of the Act is amended by adding the following after subsection (4):
Regulations
(5) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(a).
1997, c. 15, s. 135
294. Section 296 of the Act is replaced by the following:
Copy to Superintendent
296. (1) Subject to subsection (2), an association shall send to the Superintendent a copy of the documents referred to in subsections 292(1) and (3) not later than twenty-one days before the date of each annual meeting of members of the association.
Later filing
(2) If an association’s shareholders or members sign a resolution under paragraph 161(1)(b) in lieu of an annual meeting, the association shall send a copy of the documents referred to in subsections 292(1) and (3) to the Superintendent not later than thirty days after the signing of the resolution. 295. (1) Subsection 299(3) of the Act is replaced by the following:
Notice of designation
(3) Within fifteen days after the appointment of a firm of accountants as auditor of the association, the association and the firm of accountants shall jointly designate a member of the firm who meets the qualifications described in subsection (1) to conduct the audit of the association on behalf of the firm and the association shall forthwith notify the Superintendent in writing of the designation.
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(2) Subsection 299(4) of the French version of the Act is replaced by the following: Remplacement d’un membre désigné
Priority not affected
1993, c. 34, s. 54 Exemption
Definition of ‘‘equity’’
No acquisition of control without approval
When approval not required
(4) Si, pour une raison quelconque, le membre désigné cesse de remplir ses fonctions, l’association et le cabinet de comptables peuvent désigner conjointement un autre membre qui remplit les conditions du paragraphe (1); l’association en avise sans délai par écrit le surintendant. 296. Subsection 353(2) of the Act is replaced by the following: (2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of an association. 297. Subsections 354(3) and (4) of the Act are replaced by the following: (3) On application by an association, the Superintendent may exempt from the application of this section and section 355 any class of shares of the association that do not amount to more than 30 % of the equity of the association. (4) For the purposes of this section, ‘‘equity’’, in respect of an association, means its equity as determined in accordance with the regulations. 298. The Act is amended by adding the following after section 354: 354.1 No person shall acquire control, within the meaning of paragraph 3(1)(e), of an association without the prior approval of the Minister. 299. Subsection 357(1) of the Act is replaced by the following: 357. (1) Despite subsections 354(1) and (2) and section 355, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the association to increase its capital and shares of the association are issued and acquired in accordance with the terms and conditions, if any, that may be specified in the order; or (b) a person who controls, within the meaning of paragraph 3(1)(d), the association acquires additional shares of the association.
Institutions f 300. Sections 358 and 359 of the Act are replaced by the following:
Application for approval
358. (1) An application for an approval of the Minister required under this Part must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
Applicant
(2) If, with respect to any particular transaction, this Part applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons.
Matters for consideration
358.1 If an application for an approval under subsection 354(1) is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the association; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the association; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the association will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the association on the conduct of those businesses and operations;
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(g) whether the association is to be operated in accordance with cooperative principles; and (h) the best interests of the financial system in Canada and, in particular, the cooperative financial system in Canada. Terms and conditions
359. The Minister may impose any terms and conditions in respect of an approval given under this Part that the Minister considers necessary to ensure compliance with any provision of this Act. 301. Section 361 of the Act is replaced by following:
Notice of decision to applicant
361. (1) Subject to subsections (2) and (3) and section 362, the Minister shall, within a period of thirty days after the certified date referred to in subsection 360(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Notice of decision
(2) Subject to subsections (4) and 362(2), if an application involves the acquisition of control of an association, the Minister shall, within a period of forty-five days after the certified date referred to in subsection 360(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) if the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Extension of period for notice
(3) If the Minister is unable to complete the consideration of an application within the period referred to in subsection (1), the Minister shall (a) within that period, send a notice to that effect to the applicant; and
Institutions f (b) within a further period of thirty days after the date of the sending of the notice referred to in paragraph (a) or within any other further period that may be agreed on by the applicant and the Minister, send a notice referred to in paragraph (1)(a) or (b) to the applicant.
Further extensions
(4) If the Minister considers it appropriate to do so, the Minister may extend the period referred to in subsection (2) for one or more periods of forty-five days. 302. Section 362 of the Act is renumbered as subsection 362(1) and is amended by adding the following:
Reasonable opportunity to make representations
(2) If after receipt of the notice referred to in paragraph 361(2)(b) the applicant advises the Minister that the applicant wishes to make representations, the Minister must provide the applicant with a reasonable opportunity within a period of forty-five days after the date of the notice, or within any further period that may be agreed on by the applicant and the Minister, to make representations in respect of the matter. 303. Sections 363 and 364 of the Act are replaced by the following:
Notice of decision
363. (1) Within a period of thirty days after the expiration of the period for making representations referred to in subsection 362(1), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Notice of decision
(2) Within a period of forty-five days after the expiration of the period for making representations referred to in subsection 362(2), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Deemed approval
364. If the Minister does not send a notice under subsection 361(1) or (3) or 363(1) within the period provided for in those subsections, the Minister is deemed to have
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approved the transaction to which the application relates. 304. The portion of subsection 368(1) of the Act before paragraph (a) is replaced by the following: Disposition of shareholdings
368. (1) If, with respect to any association, a person contravenes section 354 or 354.1 or fails to comply with any terms and conditions imposed under section 359, the Minister may, if the Minister deems it in the public interest to do so, by order, 305. The Act is amended by adding the following immediately before section 375: General Business
1997, c. 15, s. 137
306. (1) The portion of subsection 375(1) of the Act before subparagraph (a)(i) is replaced by the following:
Main business
375. (1) Subject to this Act, an association shall not engage in or carry on any business other than such business as generally appertains to the business of (a) providing financial services to one or more of the following:
1997, c. 15, s. 137
(2) Subparagraphs 375(1)(a)(iii) to (v) of the Act are replaced by the following: (ii.1) another association, (iii) a cooperative credit society, (iv) a cooperative corporation, or (v) an entity controlled by an entity or group of entities described by any of subparagraphs (i) to (iv); and (3) Subsection 375(3) of the Act is replaced by the following:
Restriction
(3) Subject to any order that may be made by the Superintendent under section 61 or 62, an association shall not receive money on deposit from a local cooperative credit society, or a cooperative corporation, that is not a member of the association.
1997, c. 15, s. 138
307. Section 376 of the Act is replaced by the following:
2001 Additional businesses
Institutions f 375.1 (1) In addition to engaging in or carrying on any business that an association is permitted to engage in or carry on under subsection 375(1), an association may, with the approval of the Minister and subject to any order of the Superintendent that may be made under section 61 or 62, (a) provide financial services to persons or entities that are not persons or entities referred to in any of subparagraphs 375(1)(a)(i) to (v); or (b) provide clearing, settlement and payment services to members of the Canadian Payments Association and engage in or carry on ancillary services related to those clearing, settlement and payment services.
Terms and conditions
(2) The Minister may impose any terms and conditions in respect of the provision of financial services provided by a retail association as the Minister considers necessary or appropriate. The Minister may also vary or revoke any of those terms and conditions.
Regulations
(3) The Governor in Council may make regulations (a) respecting what an association may or may not do with respect to the provision of services and products referred to in paragraphs (1)(a) and (b); and (b) imposing terms and conditions in respect of the provision of services and products referred to in paragraphs (1)(a) and (b).
Additional activities
376. (1) In addition, an association may (a) hold, manage and otherwise deal with real property; (b) act as a custodian of property on behalf of any entity referred to in paragraph 375(1)(a) or, if the association is a retail association, on behalf of any person to whom the association may provide financial services; (c) receive money on deposit, on such terms as to interest and time and mode of repayment as may be agreed on, from (i) the government of Canada, a province or a municipality in Canada, or any agency thereof, and
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(d) make loans to and investments in entities that are not members of the association; (e) make loans to officers and employees of the association; (f) provide management, investment, administrative, advisory, educational, promotional, technical, research and consultative services to the entities described in paragraph 375(1)(a); (g) outside Canada, or with the prior written approval of the Minister, in Canada, provide the following services to entities described in paragraph 375(1)(a) or, if the association is a retail association, to any person: (i) collecting, manipulating and transmitting (A) information that is primarily financial or economic in nature, (B) information that relates to the business of a permitted entity, as defined in subsection 386(1), or (C) any other information that the Minister may, by order, specify, (ii) providing advisory or other services in the design, development or implementation of information management systems, (iii) designing, developing or marketing computer software, and (iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subparagraphs (i) to (iii) that the association is engaging in, computer equipment integral to the provision of information services related to the business of financial institutions or to the provision of financial services; (h) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used
Institutions f (i) to provide information that is primarily financial or economic in nature, (ii) to provide information that relates to the business of a permitted entity, as defined in subsection 386(1), or (iii) for a prescribed purpose or in prescribed circumstances; and (i) if it is a retail association, (i) act as a financial agent, (ii) provide investment counselling services and portfolio management services, (iii) issue payment, credit or charge cards and, in cooperation with others including other financial institutions, operate a payment, credit or charge card plan, (iv) promote merchandise and services to the holders of any payment, credit or charge card issued by the association, (v) engage in the sale of (A) tickets, including lottery tickets, on a non-profit public service basis in connection with special, temporary and infrequent non-commercial celebrations or projects that are of local, municipal, provincial or national interest, (B) urban transit tickets, and (C) tickets in respect of a lottery sponsored by the federal government or a provincial or municipal government or an agency of any such government or governments, and (vi) act as receiver, liquidator or sequestrator.
Specialized business management or advisory services
(2) A retail association may engage, under prescribed terms and conditions, if any are prescribed, in specialized business management or advisory services.
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Restriction
(3) Except as authorized by or under this Act, an association shall not deal in goods or engage in any trade or business.
Regulations
(4) The Governor in Council may make regulations (a) respecting what an association may or may not do with respect to the provision of services and products referred to in paragraphs (1)(g) and (h) and subsection (2); (b) imposing terms and conditions in respect of the provision of investment counselling and portfolio management services and the provision of services and products referred to in paragraphs (1)(g) and (h) and subsection (2); and (c) respecting the circumstances in which associations may be exempted from the requirement to obtain the approval of the Minister before carrying on a particular activity referred to in paragraph (1)(g) or (h). 308. Paragraphs 377(a) and (b) of the Act are replaced by the following: (a) act as agent for any entity referred to in paragraph 375(1)(a), any member of a cooperative credit society or, if the association is a retail association, any other person in respect of the provision of any service that is provided by a financial institution, a permitted entity as defined in subsection 386(1) or a prescribed entity and may enter into an arrangement with any person in respect of the provision of that service; or (b) refer any person to any such financial institution or entity. 309. The Act is amended by adding the following after section 378:
Restriction on deposit taking
378.1 A retail association shall not accept deposits in Canada unless it is a member institution within the meaning of section 2 of the Canada Deposit Insurance Corporation Act.
Institutions f 310. (1) The portion of subsection 379(1) of the Act before paragraph (a) is replaced by the following:
Restriction on guarantees
379. (1) An association shall not guarantee on behalf of any person the payment or repayment of any sum of money unless
1997, c. 15, s. 139
(2) Subsection 379(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de l’association garante, celle-ci peut garantir une somme qui n’est pas fixe. (3) Subsection 379(3) of the Act is replaced by the following:
Exception
(3) Paragraph (1)(a) does not apply in respect of a guarantee given on behalf of a central, within the meaning of section 472, or a local cooperative credit society if the payment guaranteed represents the obligation of the central or the local cooperative credit society to settle for payment items in accordance with the by-laws and rules of the Canadian Payments Association. 311. Sections 382 and 383 of the Act are replaced by the following:
Restriction on leasing
382. An association shall not engage in Canada in any personal property leasing activity in which a financial leasing entity, within the meaning of subsection 386(1), is not permitted to engage.
Restriction on residential mortgages
382.1 (1) A retail association shall not make a loan in Canada on the security of residential property in Canada for the purpose of purchasing, renovating or improving that property, or refinance such a loan, if the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, would exceed 75 % of the value of the property at the time of the loan.
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(2) Subsection (1) does not apply in respect of (a) a loan made or guaranteed under the National Housing Act or any other Act of Parliament by or under which a different limit on the value of property on the security of which the association may make a loan is established; (b) a loan if repayment of the amount of the loan that exceeds the maximum amount set out in subsection (1) is guaranteed or insured by a government agency or a private insurer approved by the Superintendent; (c) the acquisition by the association from an entity of securities issued or guaranteed by the entity that are secured on any residential property, whether in favour of a trustee or otherwise, or the making of a loan by the association to the entity against the issue of such securities; or (d) a loan secured by a mortgage where (i) the mortgage is taken back by the association on a property disposed of by the association, including where the disposition is by way of a realization of a security interest, and (ii) the mortgage secures payment of an amount payable to the association for the property.
Policies re security interests
383. (1) The directors of an association shall establish and the association shall adhere to policies regarding the creation of security interests in property of the association to secure obligations of the association and the acquisition by the association of beneficial interests in property that is subject to security interests.
Order to amend policies
(2) The Superintendent may, by order, direct an association to amend its policies as specified in the order.
Compliance
(3) An association shall comply with an order made under subsection (2) within the time specified in the order.
Regulations and guidelines
383.1 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by an association of security interests in its property
Institutions f to secure obligations of the association and the acquisition by the association of beneficial interests in property that is subject to security interests.
Exception
383.2 Sections 383 and 383.1 do not apply in respect of a security interest created by an association to secure an obligation of the association to the Bank of Canada or the Canada Deposit Insurance Corporation. 312. Subsection 385(1) of the Act is replaced by the following:
Restriction on partnerships
385. (1) Except with the approval of the Superintendent, an association may not be a general partner in a limited partnership or a partner in a general partnership. 313. The Act is amended by adding the following after section 385: Deposit Acceptance
Deposit acceptance
385.01 (1) A retail association may, without the intervention of any other person, (a) accept a deposit from any person whether or not the person is qualified by law to enter into contracts; and (b) pay all or part of the principal of the deposit and all or part of the interest on that principal to or to the order of that person.
Exception
(2) Paragraph (1)(b) does not apply if, before payment, the money deposited in the association pursuant to paragraph (1)(a) is claimed by some other person (a) in any action or proceeding to which the association is a party and in respect of which service of a writ or other process originating that action or proceeding has been made on the association; or (b) in any other action or proceeding pursuant to which an injunction or order made by the court requiring the association not to make payment of that money or to make payment thereof to some person other than the depositor has been served on the association. If such a claim is made, the money so deposited may be paid to the depositor with the consent of the claimant or to the claimant with the consent of the depositor.
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Payment when association has notice of trust
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385.02 (1) An association is not bound to see to the execution of any trust to which any deposit made under the authority of this Act is subject. (2) Subsection (1) applies regardless of whether the trust is express or arises by the operation of law, and it applies even when the association has notice of the trust if it acts on the order of or under the authority of the holder or holders of the account into which the deposit is made. Unclaimed Balances
Unclaimed balances
385.03 (1) Where (a) a deposit has been made in Canada that is payable in Canada in Canadian currency and in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor during a period of ten years (i) in the case of a deposit made for a fixed period, from the day on which the fixed period terminated, and (ii) in the case of any other deposit, from the day on which the last transaction took place or a statement of account was last requested or acknowledged by the creditor, whichever is later, or (b) a cheque, draft or bill of exchange (including any such instrument drawn by one branch of a retail association on another branch of the association but not including such an instrument issued in payment of a dividend on the capital of an association) payable in Canada in Canadian currency has been issued, certified or accepted by an association in Canada and no payment has been made in respect of the instrument for a period of ten years after the date of issue, certification, acceptance or maturity, whichever is later, the retail association shall pay to the Bank of Canada not later than December 31 in each year an amount equal to the principal amount of the deposit or instrument, plus interest, if any, calculated in accordance with the terms of the deposit or instrument, and payment ac2001
Institutions f cordingly discharges the association from all liability in respect of the deposit or instrument.
Particulars
(2) A retail association shall, on making a payment under subsection (1), provide the Bank of Canada, for each deposit or instrument in respect of which the payment is made, with all the particulars of the deposit or instrument listed in subsection 431.1(3) or 431.2(2), as the case may be, current as of the day the payment is made.
Payment to claimant
(3) Subject to section 22 of the Bank of Canada Act, if a payment has been made to the Bank of Canada under subsection (1) in respect of any deposit or instrument, and if payment is demanded or the instrument is presented at the Bank of Canada by the person who, but for that section, would be entitled to receive payment of the deposit or instrument, the Bank of Canada is liable to pay, at its agency in the province in which the deposit or instrument was payable, an amount equal to the amount so paid to it together with interest, if interest was payable under the terms of the deposit or instrument, (a) for a period not exceeding ten years from the day on which the payment was received by the Bank of Canada until the date of payment to the claimant; and (b) at the rate and computed in the manner that the Minister determines.
Enforcing liability
(4) The liability of the Bank of Canada under subsection (3) may be enforced by action against the Bank of Canada in the court in the province in which the deposit or instrument was payable.
Application of subsection (1)
(5) Subsection (1) applies only in respect of deposits made, and cheques, drafts and bills of exchange issued, certified or accepted, after the day that subsection comes into force.
Notice of unpaid amount
385.04 (1) A retail association shall mail to each person, insofar as is known to the association, to whom a deposit referred to in paragraph 385.03(1)(a) is payable, or to whom or at whose request an instrument referred to in paragraph 385.03(1)(b) was issued, certified or accepted, at the person’s
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recorded address, a notice stating that the deposit or instrument remains unpaid. When notice to be given
(2) A notice required by subsection (1) must be given during the month of January next following the end of the first two year period, and also during the month of January next following the end of the first five year period, (a) in the case of a deposit made for a fixed period, after the fixed period has terminated; (b) in the case of any other deposit in respect of which no transaction has taken place and no statement of account has been requested or acknowledged by the creditor; and (c) in the case of a cheque, draft or bill of exchange, in respect of which the instrument has remained unpaid. Accounts
Definitions
385.05 The following definitions apply in this section and sections 385.1 to 385.13, 385.27 and 385.28.
‘‘member association’’ « association membre »
‘‘member association’’ means a retail association that is a member institution as defined in section 2 of the Canada Deposit Insurance Corporation Act.
‘‘personal deposit account’’ « compte de dépôt personnel »
‘‘personal deposit account’’ means a deposit account in the name of one or more natural persons that is kept by that person or those persons for a purpose other than that of carrying on business.
‘‘retail deposit account’’ « compte de dépôt de détail »
‘‘retail deposit account’’ means a personal deposit account that is opened with a deposit of less than $150,000 or any greater amount that may be prescribed.
Account charges
385.06 A retail association shall not, directly or indirectly, charge or receive any sum for the keeping of an account unless the charge is made by express agreement between the association and a customer or by order of a court.
Disclosure on opening account
385.07 (1) A retail association shall not open or maintain an interest-bearing deposit account in Canada in the name of any natural person unless the association discloses, in accordance with the regulations, to the person
Institutions f who requests the association to open the account, the rate of interest applicable to the account and how the amount of interest to be paid is to be calculated.
Exception
(2) Subsection (1) does not apply in respect of an interest-bearing deposit account that is opened with a deposit in excess of $150,000 or any greater amount that may be prescribed.
Disclosure in advertisements
385.08 No person shall authorize the publication, issue or appearance of any advertisement in Canada that indicates the rate of interest offered by a retail association on an interest-bearing deposit or a debt obligation unless the advertisement discloses, in accordance with the regulations, how the amount of interest is to be calculated.
Disclosure regulations
385.09 The Governor in Council may make regulations respecting (a) the manner in which and the time at which disclosure is to be made by a retail association of (i) interest rates applicable to debts of the association and deposits with the association, and (ii) the manner in which the amount of interest paid is to be calculated; (b) the manner in which any charges for the keeping of an account are to be disclosed by a retail association to its customers and when the disclosure is to be made; and (c) any other matters or things that may be necessary to carry out the requirements of sections 385.06 to 385.08.
Disclosure required on opening a deposit account
385.1 (1) Subject to subsections (2) to (4), a retail association shall not open a deposit account in the name of a customer unless, at or before the time the account is opened, the retail association provides in writing to the individual who requests the opening of the account (a) a copy of the account agreement with the association; (b) information about all charges applicable to the account;
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(c) information about how the customer will be notified of any increase in those charges and of any new charges applicable to the account; (d) information about the association’s procedures relating to complaints about the application of any charge applicable to the account; and (e) any other information that may be prescribed. Exception
(2) If a deposit account is not a personal deposit account and the amount of a charge applicable to the account cannot be established at or before the time the account is opened, the retail association shall, as soon as is practicable after the amount is established, provide the customer in whose name the account is kept with a notice in writing of the amount of the charge.
Exception
(3) If a retail association has a deposit account in the name of a customer and the customer by telephone requests the opening of another deposit account in the name of the customer and the retail association has not complied with subsection (1) in respect of the opening of that other account, the retail association shall not open the account unless it provides the customer orally with any information prescribed at or before the time the account is opened.
Disclosure in writing
(4) If a retail association opens an account under subsection (3), it shall, not later than seven business days after the account is opened, provide to the customer in writing the agreement and information referred to in subsection (1).
Right to close account
(5) A customer may, within 14 business days after a deposit account is opened under subsection (3), close the account without charge and in such case is entitled to a refund of any charges related to the operation of the account, other than interest charges, incurred while the account was open.
Regulations
(6) For the purposes of subsection (4), the Governor in Council may make regulations prescribing circumstances in which, and the time when, the agreement and information will be deemed to have been provided to the customer.
Institutions f
Disclosure of charges
385.11 A retail association shall disclose, in the prescribed manner and at the prescribed time, to its customers and to the public, the charges applicable to deposit accounts with the association and the usual amount, if any, charged by the association for services normally provided by the association to its customers and to the public.
No increase or new charges without disclosure
385.12 (1) A retail association shall not increase any charge applicable to a personal deposit account with the association or introduce any new charge applicable to a personal deposit account with the association unless the association discloses the charge in the prescribed manner and at the prescribed time to the customer in whose name the account is kept.
No increase or new charges without disclosure
(2) With respect to such services in relation to deposit accounts, other than personal deposit accounts, as are prescribed, a retail association shall not increase any charge for any such service in relation to a deposit account with the association or introduce any new charge for any such service in relation to a deposit account with the association unless the association discloses the charge in the prescribed manner and at the prescribed time to the customer in whose name the account is kept.
Application
385.13 Sections 385.1 to 385.12 apply only in respect of charges applicable to deposit accounts with the retail association in Canada and services provided by it in Canada.
Borrowing Costs Definition of ‘‘cost of borrowing’’
385.14 For the purposes of this section and sections 385.15 to 385.24, ‘‘cost of borrowing’’ means, in respect of a loan made by a retail association, (a) the interest or discount applicable to the loan; (b) any amount charged in connection with the loan that is payable by the borrower to the association; and (c) any charge prescribed to be included in the cost of borrowing.
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For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. Rebate of borrowing costs
385.15 (1) If a retail association makes a loan in respect of which the disclosure requirements of section 385.16 apply and the loan is not secured by a mortgage on real property and is required to be repaid either on a fixed future date or by instalments, the association shall, if there is a prepayment of the loan, rebate to the borrower a portion of the charges included in the cost of borrowing in respect of the loan.
Exception
(2) The charges to be rebated do not include the interest or discount applicable to the loan.
Regulations
(3) The Governor in Council may make regulations governing the rebate of charges under subsection (1). The rebate shall be made in accordance with those regulations.
Disclosing borrowing costs
385.16 (1) A retail association shall not make a loan to a natural person that is repayable in Canada unless the cost of borrowing, as calculated and expressed in accordance with section 385.17, and other prescribed information have in the prescribed manner and at the prescribed time been disclosed by the association to the borrower.
Nonapplication
(2) Subsection (1) does not apply in respect of a loan that is of a prescribed class of loans.
Calculating borrowing costs
385.17 The cost of borrowing shall be calculated, in the prescribed manner, on the basis that all obligations of the borrower are duly fulfilled and shall be expressed as a rate per annum and, in prescribed circumstances, as an amount in dollars and cents.
Additional disclosure
385.18 (1) If a retail association makes a loan in respect of which the disclosure requirements of section 385.16 are applicable and the loan is required to be repaid either on a fixed future date or by instalments, the association shall disclose to the borrower, in accordance with the regulations, (a) whether the borrower has the right to repay the amount borrowed before the maturity of the loan and, if applicable,
Institutions f (i) any terms and conditions relating to that right, including the particulars of the circumstances in which the borrower may exercise that right, and (ii) whether, in the event that the borrower exercises the right, any portion of the cost of borrowing is to be rebated, the manner in which any such rebate is to be calculated or, if a charge or penalty will be imposed on the borrower, the manner in which the charge or penalty is to be calculated; (b) in the event that an amount borrowed is not repaid at maturity or, if applicable, an instalment is not paid on the day the instalment is due to be paid, particulars of the charges or penalties to be paid by the borrower because of the failure to repay or pay in accordance with the contract governing the loan; (c) at such time and in such manner as may be prescribed, any changes respecting the cost of borrowing or the loan agreement as may be prescribed; (d) particulars of any other rights and obligations of the borrower; and (e) any other prescribed information, at such time and in such form and manner as may be prescribed.
Disclosure in credit card applications
(2) A retail association shall, in accordance with the regulations, at such time and in such manner as may be prescribed, provide prescribed information in any application forms or related documents that it prepares for the issuance of credit, payment or charge cards and provide prescribed information to any person applying to it for a credit, payment or charge card.
Disclosure re credit cards
(3) If a retail association issues or has issued a credit, payment or charge card to a natural person, the association shall, in addition to disclosing the costs of borrowing in respect of any loan obtained through the use of the card, disclose to the person, in accordance with the regulations, (a) any charges or penalties described in paragraph (1)(b);
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(b) particulars of the person’s rights and obligations; (c) any charges for which the person becomes responsible by accepting or using the card; (d) at such time and in such manner as may be prescribed, any changes respecting the cost of borrowing or the loan agreement as may be prescribed; and (e) any other prescribed information, at such time and in such form and manner as may be prescribed. Additional disclosure re other loans
(4) If a retail association enters into or has entered into an arrangement, including a line of credit, for the making of a loan in respect of which the disclosure requirements of section 385.16 apply and the loan is not a loan in respect of which subsection (1) or (3) applies, the association shall, in addition to disclosing the costs of borrowing, disclose to the person to whom the loan is made, in accordance with the regulations, (a) any charges or penalties described in paragraph (1)(b); (b) particulars of the person’s rights and obligations; (c) any charges for which the person is responsible under the arrangement; (d) at such time and in such manner as may be prescribed, any changes respecting the cost of borrowing under the arrangement as may be prescribed; and (e) any other prescribed information, at such time and in such form and manner as may be prescribed.
Renewal statement
385.19 If a retail association makes a loan in respect of which the disclosure requirements of section 385.16 apply and the loan is secured by a mortgage on real property, the association shall disclose to the borrower, at such time and in such manner as may be prescribed, such information as may be prescribed respecting the renewal of the loan.
Institutions f
Disclosure in advertising
385.2 No person shall authorize the publication, issue or appearance of any advertisement in Canada relating to arrangements referred to in subsection 385.18(4), loans, credit cards, payment cards or charge cards, offered to natural persons by a retail association, and purporting to disclose prescribed information about the cost of borrowing or about any other matter unless the advertisement contains such information as may be required by the regulations, in such form and manner as may be prescribed.
Regulations re borrowing costs
385.21 The Governor in Council may make regulations (a) respecting the manner in which, and the time at which, a retail association is to disclose to a borrower (i) the cost of borrowing, (ii) any rebate of the cost of borrowing, and (iii) any other information relating to a loan, arrangement, credit card, payment card or charge card referred to in section 385.18; (b) respecting the contents of any statement disclosing the cost of borrowing and other information required to be disclosed by a retail association to a borrower; (c) respecting the manner of calculating the cost of borrowing; (d) respecting the circumstances under which the cost of borrowing is to be expressed as an amount in dollars and cents; (e) specifying any class of loans that are not to be subject to section 385.15, subsection 385.16(1) or 385.18(1) or (4) or section 385.19 or 385.2 or the regulations or any specified provisions of the regulations; (f) respecting the manner in which and the time at which any rights, obligations, charges or penalties referred to in sections 385.15 to 385.2 are to be disclosed; (g) prohibiting the imposition of any charge or penalty referred to in section 385.18 or providing that the charge or penalty, if imposed, will not exceed a prescribed amount;
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(h) respecting the nature or amount of any charge or penalty referred to in paragraph 385.18(1)(b), (3)(a) or (4)(a) and the costs of the retail association that may be included or excluded in the determination of the charge or penalty; (i) respecting the method of calculating the amount of rebate of the cost of borrowing, or the portion of the cost of borrowing referred to in subparagraph 385.18(1)(a)(ii); (j) respecting advertisements made by a retail association regarding arrangements referred to in subsection 385.18(4), loans, credit cards, payment cards or charge cards; (k) respecting the renewal of loans; and (l) respecting such other matters or things as are necessary to carry out the purposes of sections 385.15 to 385.2. Complaints Procedures for dealing with complaints
385.22 (1) A retail association shall (a) establish procedures for dealing with complaints made by persons having requested or received products or services in Canada from the retail association; (b) designate an officer or employee of the association to be responsible for implementing those procedures; and (c) designate one or more officers or employees of the association to receive and deal with those complaints.
Procedures to be filed with Commissioner
(2) A retail association shall file with the Commissioner a copy of its procedures established under paragraph (1)(a).
Obligation to be member
385.23 In any province, if there is no law of the province that makes a retail association subject to the jurisdiction of an organization that deals with complaints made by persons having requested or received products or services in the province from a retail association, the retail association shall be a member of an organization that is not controlled by it and that deals with those complaints that have
Institutions f not been resolved to the satisfaction of the persons under procedures established by retail associations under paragraph 385.22(1)(a).
Information on contacting Agency
385.24 (1) A retail association shall, in the prescribed manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about a deposit account, an arrangement referred to in subsection 385.18(4), a payment, credit or charge card, the disclosure of or manner of calculating the cost of borrowing in respect of a loan or about any other obligation of the retail association under a consumer provision.
Report
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by retail associations pursuant to paragraph 385.22(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a retail association.
Miscellaneous Prepayment protected
385.25 (1) A retail association shall not make a loan to a natural person that is repayable in Canada, the terms of which prohibit prepayment of the money advanced or any instalment thereon before its due date.
Minimum balance
(2) Except by express agreement between the retail association and the borrower, the making in Canada of a loan or advance by a retail association to a borrower shall not be subject to a condition that the borrower maintain a minimum credit balance with the association.
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(3) Subsection (1) does not apply in respect of a loan that is (a) secured by a mortgage on real property; or (b) made for business purposes and the principal amount of which is more than $100,000 or such other amount as may be prescribed.
Government cheques
(4) A retail association shall not make a charge (a) for cashing a cheque or other instrument drawn on the Receiver General or on the Receiver General’s account in the Bank of Canada, in an association or in any other deposit-taking Canadian financial institution incorporated by or under an Act of Parliament; (b) for cashing any other instrument issued as authority for the payment of money out of the Consolidated Revenue Fund; or (c) in respect of any cheque or other instrument that is (i) drawn in favour of the Receiver General, the Government of Canada or any department thereof or any public officer acting in the capacity of a public officer, and (ii) tendered for deposit to the credit of the Receiver General.
Deposits of Government of Canada
(5) Nothing in subsection (4) precludes any arrangement between the Government of Canada and a retail association concerning (a) compensation for services performed by the association for the Government of Canada; or (b) interest to be paid on any or all deposits of the Government of Canada with the association.
Regulations re customer information
385.26 The Governor in Council may make regulations (a) requiring a retail association to establish procedures regarding the collection, retention, use and disclosure of any information
Institutions f about its customers or any class of customers; (b) requiring a retail association to establish procedures for dealing with complaints made by a customer about the collection, retention, use or disclosure of information about the customer; (c) respecting the disclosure by a retail association of information relating to the procedures referred to in paragraphs (a) and (b); (d) requiring a retail association to designate the officers and employees of the association who are responsible for (i) implementing the procedures referred to in paragraph (b), and (ii) receiving and dealing with complaints made by a customer of the association about the collection, retention, use or disclosure of information about the customer; (e) requiring a retail association to report information relating to (i) complaints made by customers of the association about the collection, retention, use or disclosure of information, and (ii) the actions taken by the association to deal with the complaints; and (f) defining ‘‘information’’, ‘‘collection’’ and ‘‘retention’’ for the purposes of paragraphs (a) to (e) and the regulations made under those paragraphs.
Notice of branch closure
385.27 (1) Subject to regulations made under subsection (5), a member association with a branch in Canada at which it, through a natural person, opens retail deposit accounts and disburses cash to customers, shall give notice in accordance with those regulations before closing that branch or having it cease to carry on either of those activities.
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Pre-closure meeting
(2) After notice is given but before the branch is closed or ceases to carry on the activities, the Commissioner may, in prescribed situations, require the member association to convene and hold a meeting between representatives of the member association, representatives of the Agency and interested parties in the vicinity of the branch in order to exchange views about the closing or cessation of activities.
Meeting details
(3) The Commissioner may establish rules for convening a meeting referred to in subsection (2) and for its conduct.
Not statutory instruments
(4) The Statutory Instruments Act does not apply to rules established under subsection (3).
Regulations
(5) The Governor in Council may make regulations prescribing (a) the manner and time, which may vary according to circumstances specified in the regulation, in which notice shall be given under subsection (1), to whom it shall be given and the information to be included; (b) circumstances in which a member association is not required to give notice under subsection (1), circumstances in which the Commissioner may exempt a member association from the requirement to give notice under that subsection, and circumstances in which the Commissioner may vary the manner and time in which notice is required to be given under any regulation made under paragraph (a); and (c) circumstances in which a meeting may be convened under subsection (2).
Regulations re disclosure
385.28 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by retail associations or any prescribed class of retail associations, including regulations respecting (a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them,
Institutions f (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which and the persons to whom information is to be disclosed; and (c) the content and form of any advertisement, by retail associations or any prescribed class of retail associations, relating to any matter referred to in paragraph (a).
Bank Act security
385.29 A bank that is continued as an association under this Act that, immediately before that continuance, held any outstanding security pursuant to section 426 or 427 of the Bank Act may continue to hold the security for the life of the loan to which the security relates and all the provisions of the Bank Act relating to the security and its enforcement continue to apply to the association as though it were a bank.
Transmission in case of death
385.3 (1) If the transmission of a debt owing by a retail association by reason of a deposit, of property held by a retail association as security or for safe-keeping or of rights with respect to a safety deposit box and property deposited therein takes place because of the death of a person, the delivery to the association of (a) an affidavit or declaration in writing in a form satisfactory to the association signed by or on behalf of a person claiming by virtue of the transmission stating the nature and effect of the transmission, and (b) one of the following documents, namely, (i) when the claim is based on a will or other testamentary instrument or on a grant of probate thereof or on such a grant and letters testamentary or other document of like import or on a grant of letters of administration or other document of
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Financial In like import, purporting to be issued by any court of authority in Canada or elsewhere, an authenticated copy or certificate thereof under the seal of the court or authority without proof of the authenticity of the seal or other proof, or (ii) when the claim is based on a notarial will, an authenticated copy thereof,
is sufficient justification and authority for giving effect to the transmission in accordance with the claim.
Transmission in case of death
(2) Nothing in subsection (1) shall be construed to prevent a retail association from refusing to give effect to a transmission until there has been delivered to the association such documentary or other evidence of or in connection with the transmission as it may deem requisite.
Branch of account with respect to deposits
385.31 (1) For the purposes of this Act, the branch of account with respect to a deposit account is (a) the branch the address or name of which appears on the specimen signature card or other signing authority signed by a depositor with respect to the deposit account or that is designated by an agreement between the retail association and the depositor at the time of opening of the deposit account; or (b) if no branch has been identified or agreed on as provided in paragraph (a), the branch that is designated as the branch of account with respect thereto by the retail association by notice in writing to the depositor.
Where debt payable
(2) The amount of any debt owing by a retail association by reason of a deposit in a deposit account in the association is payable to the person entitled thereto only at the branch of account and the person entitled thereto is not entitled to demand payment or to be paid at any other branch of the association.
Institutions f
Where debt payable
(3) Despite subsection (2), a retail association may permit, either occasionally or as a regular practice, the person to whom the association is indebted by reason of a deposit in a deposit account in the association to withdraw moneys owing by reason of that deposit at a branch of the association other than the branch of account or to draw cheques or other orders for the payment of such moneys at a branch other than the branch of account.
Situs of indebtedness
(4) The indebtedness of a retail association by reason of a deposit in a deposit account in the association shall be deemed for all purposes to be situated at the place where the branch of account is situated.
Effect of writ, etc.
385.32 (1) Subject to subsections (3) and (4), the following documents are binding on property belonging to a person and in the possession of an association, or on money owing to a person by reason of a deposit account in an association, only if the document or a notice of it is served at the branch of the association that has possession of the property or that is the branch of account in respect of the deposit account, as the case may be: (a) a writ or process originating a legal proceeding or issued in or pursuant to a legal proceeding; (b) an order or injunction made by a court; (c) an instrument purporting to assign, perfect or otherwise dispose of an interest in the property or the deposit account; or (d) an enforcement notice in respect of a support order or support provision.
Notices
(2) Any notification sent to an association with respect to a customer of the association, other than a document referred to in subsection (1) or (3), constitutes notice to the association and fixes the association with knowledge of its contents only if sent to and received at the branch of the association that is the branch of account of an account held in the name of that customer.
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(3) Subsections (1) and (2) do not apply in respect of an enforcement notice in respect of a support order or support provision if (a) the enforcement notice, accompanied by a written statement containing the information required by the regulations, is served at an office of an association designated in accordance with the regulations in respect of a province; and (b) the order or provision can be enforced under the laws of that province.
Time of application
(4) Subsection (3) does not apply in respect of an enforcement notice in respect of a support order or support provision until the second business day following the day of service referred to in that subsection.
Regulations
(5) The Governor in Council may make regulations (a) respecting the designation by an association, for the purpose of subsection (3), of a place in any province for the service of enforcement notices in respect of support orders and support provisions; (b) prescribing the manner in which an association shall publicize the locations of designated offices of the association; and (c) respecting the information that must accompany enforcement notices in respect of support orders and support provisions.
Definitions
(6) The following definitions apply in this section.
‘‘designated office’’ « bureau désigné »
‘‘designated office’’ means a place designated in accordance with regulations made for the purpose of subsection (3).
‘‘enforcement notice’’ « avis d’exécution »
‘‘enforcement notice’’, in respect of a support order or support provision, means a garnishee summons or other instrument issued under the laws of a province for the enforcement of the support order or support provision.
‘‘support order’’ « ordonnance alimentaire »
‘‘support order’’ means an order or judgment or interim order or judgment for family financial support.
Institutions f
‘‘support provision’’ « disposition alimentaire »
‘‘support provision’’ means a provision of an agreement relating to the payment of maintenance or family financial support.
1993, c. 34, s. 55(F); 1997, c. 15, ss. 140 to 149; 1999, c. 28, s. 116
314. Sections 386 to 408 of the Act are replaced by the following:
Definitions
386. (1) The following definitions apply in this Part.
‘‘commercial loan’’ « prêt commercial »
‘‘commercial loan’’ means (a) any loan made or acquired by an association, other than (i) a loan to a natural person in an amount of two hundred and fifty thousand dollars or less, (ii) a loan to the Government of Canada, the government of a province, a municipality, or to any agency thereof, or to the government of a foreign country or any political subdivision thereof, or any agency thereof, or to a prescribed international agency, (iii) a loan that is guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 75 % of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 75 % of
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Financial In the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (v) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and (III) at the time the loan is made or acquired, the property provides an annual income sufficient to
Institutions f pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (vi) a loan that (A) consists of a deposit made by the association with a financial institution, (B) is fully secured by a deposit with any financial institution, including the association, (C) is fully secured by debt obligations guaranteed by any financial institution other than the association, or (D) is fully secured by a guarantee of a financial institution other than the association, (vii) a loan to another association under prescribed terms and conditions, if any are prescribed, or (viii) a loan to any prescribed entity under prescribed terms and conditions, if any are prescribed; (b) an investment in debt obligations, other than (i) debt obligations that are (A) guaranteed by any financial institution other than the association, (B) fully secured by deposits with any financial institution, including the association, or (C) fully secured by debt obligations that are guaranteed by any financial institution other than the association, (ii) debt obligations issued by the Government of Canada, the government of a province, a municipality, or by any agency thereof, or by the government of a foreign country or any political subdivision thereof, or by any agency thereof, or by a prescribed international agency,
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Financial In (iii) debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) debt obligations that are widely distributed, as that expression is defined by the regulations, (v) debt obligations that are issued by another association under prescribed terms and conditions, if any are prescribed, (vi) debt obligations of an entity controlled by the association, or (vii) debt obligations of a prescribed entity that are issued under prescribed terms and conditions, if any are prescribed; and (c) an investment in shares of a body corporate or ownership interests in an unincorporated entity, other than (i) shares or ownership interests that are widely distributed, as that expression is defined by the regulations, (ii) shares or ownership interests of an entity controlled by the association, or (iii) participating shares.
‘‘factoring entity’’ « entité s’occupant d’affacturage »
‘‘factoring entity’’ means a factoring entity as defined in the regulations.
‘‘finance entity’’ « entité s’occupant de financement »
‘‘finance entity’’ means a finance entity as defined in the regulations.
‘‘financial leasing entity’’ « entité s’occupant de crédit-bail »
‘‘financial leasing entity’’ means an entity (a) whose activities are limited to the financial leasing of personal property and such related activities as are prescribed and whose activities conform to such restrictions and limitations thereon as are prescribed; and
Institutions f (b) that, in conducting the activities referred to in paragraph (a) in Canada, does not (i) direct its customers or potential customers to particular dealers in the leased property or the property to be leased, (ii) enter into lease agreements with persons in respect of any motor vehicle having a gross vehicle weight, as that expression is defined by the regulations, of less than twenty-one tonnes, or (iii) enter into lease agreements with natural persons in respect of personal household property, as that expression is defined by the regulations.
‘‘loan’’ « prêt » ou « emprunt »
‘‘loan’’ includes an acceptance, endorsement or other guarantee, a deposit, a financial lease, a conditional sales contract, a repurchase agreement and any other similar arrangement for obtaining funds or credit but does not include investments in securities.
‘‘motor vehicle’’ « véhicule à moteur »
‘‘motor vehicle’’ means a motorized vehicle designed to be used primarily on a public highway for the transportation of persons or things, but does not include (a) a fire-engine, bus, ambulance or utility truck; or (b) any other special purpose motorized vehicle that contains significant special features that make it suitable for a specific purpose.
‘‘mutual fund distribution entity’’ « courtier de fonds mutuels »
‘‘mutual fund distribution entity’’ means an entity whose principal activity is acting as a selling agent of units, shares or other interests in a mutual fund and acting as a collecting agent in the collection of payments for any such interests if (a) the proceeds of the sales of any such interests, less any sales commissions and service fees, are paid to the mutual fund; and (b) the existence of a sales commission and service fee in respect of the sale of any such interest is disclosed to the purchaser of the interest before the purchase of the interest.
��� ‘‘mutual fund entity’’ « entité s’occupant de fonds mutuels »
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‘‘mutual fund entity’’ means an entity (a) whose activities are limited to the investing of the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities; and (b) whose securities entitle their holders to receive, on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of its net assets, including a separate fund or trust account of the entity.
‘‘participating share’’ « action participante »
‘‘participating share’’ means a share of a body corporate that carries the right to participate in the earnings of the body corporate to an unlimited degree and to participate in a distribution of the remaining property of the body corporate on dissolution.
‘‘permitted entity’’ « entité admissible »
‘‘permitted entity’’ means an entity in which an association is permitted to acquire a substantial investment under section 390.
‘‘prescribed subsidiary’’ « filiale réglementaire »
‘‘prescribed subsidiary’’ means a subsidiary that is one of a prescribed class of subsidiaries.
‘‘real property brokerage entity’’ « courtier immobilier »
‘‘real property brokerage entity’’ means an entity that is primarily engaged in (a) acting as an agent for vendors, purchasers, mortgagors, mortgagees, lessors or lessees of real property; and (b) the provision of consulting or appraisal services in respect of real property.
‘‘specialized financing entity’’ « entité s’occupant de financement spécial »
‘‘specialized financing entity’’ means a specialized financing entity as defined in the regulations.
2001 Members of an association’s group
Institutions f (2) For the purpose of this Part, a member of an association’s group is any of the following: (a) an entity referred to in paragraph 390(1)(a) that controls the association; (b) a subsidiary of the association or of an entity referred to in paragraph 390(1)(a) that controls the association; (c) an entity in which the association, or an entity referred to in paragraph 390(1)(a) that controls the association, has a substantial investment; or (d) a prescribed entity in relation to the association.
Nonapplication of Part
(3) This Part does not apply in respect of (a) the holding of a security interest in real property, unless the security interest is prescribed under paragraph 403(a) to be an interest in real property; or (b) the holding of a security interest in securities of an entity. General Constraints on Investments
Investment standards
387. The directors of an association shall establish and the association shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments and loans to avoid undue risk of loss and obtain a reasonable return.
Restriction on control and substantial investments
388. (1) Subject to subsections (2) to (4), no association shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) An association may, subject to Part XII, acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 390(1)(a) to (h), a specialized financing entity or a prescribed entity that controls or has a substantial investment in the entity; or
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(b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 390(1)(a) to (h), a specialized financing entity or a prescribed entity that is controlled by the association, or (ii) an entity controlled by an entity referred to in any of paragraphs 390(1)(a) to (h), a specialized financing entity or a prescribed entity that is controlled by the association.
Exception: temporary investments, realizations and loan workouts
(3) An association may, subject to Part XII, acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 393; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 394; or (c) a realization of security permitted by section 395.
Exception: specialized financing regulations
(4) A retail association may, subject to Part XII, acquire control of, or hold, acquire or increase a substantial investment in, an entity other than a permitted entity if it does so in accordance with regulations made under paragraph 389(d) concerning specialized financing.
Exception: uncontrolled event
(5) An association is deemed not to contravene subsection (1) if the association acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the association.
Regulations re limits
389. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Part;
Institutions f (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by an association and its prescribed subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) concerning specialized financing for the purposes of subsection 388(4).
Subsidiaries and Equity Investments Permitted investments
390. (1) Subject to subsections (4) to (6) and Part XII, an association may acquire control of, or acquire or increase a substantial investment in, (a) an association; (b) a bank or a bank holding company as that expression is defined in section 2 of the Bank Act; (c) a body corporate to which the Trust and Loan Companies Act applies; (d) an insurance company, a fraternal benefit society or an insurance holding company incorporated or formed by or under the Insurance Companies Act; (e) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; (f) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (g) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (h) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the busi���
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ness of providing fiduciary services or the business of dealing in securities. Permitted investments
(2) Subject to subsections (3) to (6) and Part XII, an association may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (h), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a retail association is permitted to engage in under subsection 375(2) or section 376 or 377; (b) acquiring or holding shares of, or ownership interests in, entities in which an association is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the association or any member of the association’s group: (i) the association, (ii) any member of the association’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a retail association is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the association or any member of the association’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a finan2001
Institutions f cial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’, ‘‘mutual fund distribution entity’’ or ‘‘real property brokerage entity’’ in subsection 386(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) An association may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that an association is not permitted to engage in under any of sections 378, 382 and 382.1; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted either to an association under paragraph 376(1)(f) or to a retail association under subparagraph 376(1)(i)(ii); (c) activities that an association is not permitted to engage in under section 381 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the association, the association itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the association, the association itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (2) or 388(2), paragraph 388(3)(b) or (c) or subsection 388(4); or
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(e) any prescribed activity.
Control
(4) Subject to subsection (8) and the regulations, an association may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in any of paragraphs (1)(a) to (h), unless (i) the association controls, within the meaning of paragraph 3(1)(e), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the association is permitted by regulations made under paragraph 396(a) to acquire or increase the substantial investment; (b) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the association controls, within the meaning of paragraph 3(1)(e), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the association is permitted by regulations made under paragraph 396(a) to acquire or increase the substantial investment; or (c) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless (i) the association controls, within the meaning of paragraph 3(1)(e), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity,
Institutions f (ii) the association is permitted by regulations made under paragraph 396(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or (b) or an entity that is not a permitted entity.
Minister’s approval
(5) Subject to the regulations, an association may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in any of paragraphs (1)(e) to (g) from a person who is not a member of the association’s group; (b) acquire control of an entity referred to in paragraph (1)(h) or (4)(b), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (d) that is not a member of the association’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 376(1)(g) or (h); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f).
Superintendent’s approval
(6) Subject to subsection (7) and the regulations, an association may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(e) to (g) and (4)(b) and (c),
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unless the association obtains the approval of the Superintendent. Exception
(7) Subsection (6) does not apply in respect of a particular transaction if (a) the association is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b), other than a specialized financing entity; (b) the association is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 391(1).
Control not required
(8) An association need not control an entity referred to in paragraph (1)(h), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the association to control the entity.
Prohibition on giving up control in fact
(9) An association that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(e), of the entity while it continues to control the entity.
Giving up control
(10) An association that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if (a) the association is permitted to do so by regulations made under paragraph 396(c); or (b) the entity meets the conditions referred to in subparagraph (4)(c)(iii).
Subsections do not apply
(11) If an association controls, within the meaning of paragraph 3(1)(a), (b), (c) or (d), an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the association of its substantial investment in the
Institutions f entity so long as the association continues to control the entity.
Approval for indirect investments
391. (1) If an association obtains the approval of the Minister under subsection 390(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the association indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 390(5) or the Superintendent under subsection 390(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the association is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
Approval for indirect investments
(2) If an association obtains the approval of the Superintendent under subsection 390(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the association indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the association is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
392. (1) If an association controls a permitted entity, other than an entity referred to in any of paragraphs 390(1)(a) to (d), the association shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If an association acquires control of an entity referred to in any of paragraphs 390(1)(e) to (g), the association shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
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Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in any of paragraphs 390(1)(e) to (g) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Part, an association shall not control a permitted entity, other than an entity referred to in any of paragraphs 390(1)(a) to (d), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the association obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. Exceptions and Exclusions
Temporary investments in entity
393. (1) Subject to subsection (4), an association may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Transitional
(2) Despite subsection (1), if an association that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 12 and the association subsequently increases that substantial investment by way of a temporary investment, the association shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
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Extension
(3) The Superintendent may, in the case of any particular association that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(4) If an association, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 390(5) is required, the association must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Indeterminate extension
(5) If an association, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 390(6) is required, the Superintendent may, in the case of any particular association that makes an application under this subsection, permit the association to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
394. (1) Despite anything in this Part, if an association or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the association, or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the association may acquire
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(a) if the entity is a body corporate, all or any of the shares of the body corporate; (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates. Obligation of association
(2) If an association acquires shares or ownership interests in an entity under subsection (1), the association shall, within five years after acquiring them, do all things necessary to ensure that the association does not control the entity or have a substantial investment in the entity.
Transitional
(3) Despite subsection (1), if an association that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 12 and the association later increases that substantial investment by way of an investment made under subsection (1), the association shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular association that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(5) Despite anything in this Part, if an association has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the association and that government or the entity, as the case may
Institutions f be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the association may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government.
Time for holding shares
(6) If an association acquires any shares or ownership interests under subsection (5), the association may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(7) If, under subsection (1), an association acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 390, the association may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Realizations
395. (1) Despite anything in this Act, an association may acquire (a) an investment in a body corporate, (b) an interest in an unincorporated entity, or (c) an interest in real property, if the investment or interest is acquired through the realization of a security interest held by the association or any of its subsidiaries.
Disposition
(2) Subject to subsection 81(2), if an association acquires control of, or a substantial investment in, an entity by way of the realization of a security interest held by the association or any of its subsidiaries, the association shall, within five years after the day on which the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the case may be, to ensure that the association no
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longer controls the entity or has a substantial investment in the entity. Transitional
(3) Despite subsection (2), if an association that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 12 and the association later increases that substantial investment by way of a realization of a security interest under subsection (1), the association shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular association that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(5) If, under subsection (1), an association acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 390, the association may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Regulations restricting ownership
396. The Governor in Council may make regulations (a) for the purposes of subsection 390(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the associations or other entities in respect of which that subsection does not apply, including prescribing associations or other entities on the basis of the activities they engage in;
Institutions f (b) for the purposes of subsection 390(5) or (6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the associations or other entities in respect of which either of those subsections does not apply, including prescribing associations or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 390(10), permitting an association to give up control of an entity; and (d) restricting the ownership by an association of shares of a body corporate or of ownership interests in an unincorporated entity under sections 390 to 395 and imposing terms and conditions applicable to associations that own such shares or interests. Portfolio Limits
Exclusion from portfolio limits
397. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by an association and any of its prescribed subsidiaries under section 394 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the association and its prescribed subsidiaries under sections 398 to 402 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
Extension
(2) The Superintendent may, in the case of any particular association, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
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(3) Subsection (1) does not apply in respect of an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 403 to be an interest in real property and (a) the association or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 403 to be an interest in real property; or (b) the association or the subsidiary acquired the investment or interest under section 394 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 403 to be an interest in real property. Commercial Loans
Lending limit: regulatory capital of $25 million or less
398. An association with twenty-five million dollars or less of regulatory capital shall not, and shall not permit its prescribed subsidiaries to, (a) make or acquire a commercial loan, or (b) acquire control of a permitted entity that holds commercial loans, if the aggregate value of all commercial loans held by the association and its prescribed subsidiaries exceeds, or the acquisition or making of the commercial loan or the acquisition of control of the entity would cause the aggregate value of all commercial loans held by the association and its prescribed subsidiaries to exceed, 5 % of the total assets of the association.
Lending limit: regulatory capital over $25 million
399. An association with more than twentyfive million dollars of regulatory capital may (a) make or acquire commercial loans, or (b) acquire control of a permitted entity that holds commercial loans, if the aggregate value of all commercial loans held by the association and its prescribed subsidiaries would thereby exceed 5 % of the total assets of the association only with the prior approval in writing of the Superintendent and in accordance with any terms and conditions that the Superintendent may specify.
2001 Meaning of ‘‘total assets’’
Institutions f 400. For the purposes of sections 398 and 399, ‘‘total assets’’, in respect of an association, has the meaning given to that expression by the regulations. Real Property
Limit on total property interest
401. An association shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the association or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the association in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the association. Equities
Limits on equity acquisitions
402. An association shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the association has, or by virtue of the acquisition would have, a substantial investment, or (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the association has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the association has a substantial investment, beneficially owned by the association and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the association.
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Regulations
403. For the purposes of this Part, the Governor in Council may make regulations (a) defining the interests of an association in real property; (b) determining the method of valuing those interests; or (c) exempting classes of associations from the application of sections 397 to 402.
Divestment order
404. (1) The Superintendent may, by order, direct an association to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Part.
Divestment order
(2) If, in the opinion of the Superintendent, (a) an investment by an association or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the association to control the body corporate or the unincorporated entity, or (b) the association or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the association, the entity it controls or the nominee, the Superintendent may, by order, require the association, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the association no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b).
Divestment order
(3) If (a) an association
Institutions f (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 392(1), (2) or (4), or (ii) is in default of an undertaking referred to in subsection 392(1) or (2) and the default is not remedied within ninety days after the day of receipt by the association of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 392(4) is in default of an undertaking referred to in subsection 392(4) and the default is not remedied within ninety days after the day of receipt by the association of a notice from the Superintendent of the default, the Superintendent may, by order, require the association, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the association no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which an association has a substantial investment permitted by this Part.
Deemed temporary investment
405. If an association controls or has a substantial investment in an entity as permitted by this Part and the association becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 390(5) or (6), the association is deemed to have acquired, on the day the association becomes aware of the change, a temporary investment in respect of which section 393 applies.
Asset transactions
406. (1) An association shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B�C where
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A is the value of the assets; B is the total value of all assets that the association and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the association, as shown in the last annual statement of the association prepared before the acquisition or transfer. Restriction
(2) The prohibition in subsection (1) does not apply in respect of a transaction or series of transactions between an association and a member of the association.
Exception
(3) The prohibition in subsection (1) does not apply in respect of (a) an asset that is a debt obligation referred to in subparagraphs (b)(i) to (vi) of the definition ‘‘commercial loan’’ in subsection 386(1); or (b) a transaction or series of transactions by an association with another financial institution as a result of the association’s participation in one or more syndicated loans with that financial institution.
Exception
(4) The approval of the Superintendent is not required if (a) the association sells assets under a sale agreement that is approved by the Minister under section 233.5; or (b) the association or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VIII or subsection 390(5) is required or the approval of the Superintendent under subsection 390(6) is required.
Value of assets
(5) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the association
Institutions f after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the association prepared before the transfer, or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the association before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the association or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the association, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(7) For the purposes of subsection (1), the total value of all assets that the association or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the association prepared before the transfer, or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the association before the transfer, the value of the assets of the entity as stated in the annual statement.
Transitional
407. Nothing in this Part requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date; (c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date.
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But if the loan or investment would be precluded or limited by this Part, the amount of the loan or investment may not, except as provided in subsections 393(2), 394(3) and 395(3), be increased after that date. Saving
408. A loan or investment referred to in section 407 is deemed not to be prohibited by the provisions of this Part.
1997, c. 15, s. 151(1)
315. (1) Paragraph 410(1)(b) of the Act is replaced by the following: (b) is a director or senior officer of the association or of a body corporate that controls the association; (2) Subsection 410(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (d.1) is an entity in which a person who controls the association has a substantial investment; or (3) Section 410 of the Act is amended by adding the following after subsection (1):
Related party of retail association
(1.1) Subject to the regulations, for the purposes of this Part, a person is a related party of a retail association if the person is (a) a member of the association or of an association that controls, or has a significant interest in, the association; (b) a director or senior officer of the association or of a body corporate that controls the association; (c) the spouse or common-law partner, or a child who is less than eighteen years of age, of a person referred to in paragraph (a) or (b); (d) an entity that is controlled, within the meaning of section 3, determined without regard to paragraph 3(1)(e), by a person referred to in any of paragraphs (a) to (c); or (e) a person, or a member of a class of persons, designated under subsection (2) or (3) as, or deemed under subsection (4) to be, a related party of the association.
2001 Exception — subsidiaries and substantial investments of associations
Institutions f (1.2) If an entity in which an association has a substantial investment would, but for this subsection, be a related party of the association only because a person who controls the association controls the entity or has a substantial investment in the entity, and the person does not control the entity or have a substantial investment in the entity otherwise than through the person’s controlling interest in the association, the entity is not a related party of the association. 316. (1) Paragraph 411(2)(a) of the Act is amended by adding the following after subparagraph (ii): (ii.1) in exchange for shares of a body corporate that has been continued as an association under Part III, (2) Paragraph 411(2)(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (iii) and by adding the following after subparagraph (iii): (iii.1) by way of consideration in accordance with the terms of a sale agreement under Part VII, or (3) Section 411 of the Act is amended by adding the following after subsection (3):
Exception for holding body corporate
(4) Subject to subsection (5), a holding body corporate of an association is not a related party of the association.
Holding body corporate of a retail association
(5) Unless the regulations provide otherwise, a holding body corporate of a retail association is a related party of the retail association.
Substantial investment — related party exception
(6) If a holding body corporate of an association is, because of subsection (4), not a related party of the association, any entity in which the holding body corporate has a substantial investment is not a related party of the association if no related party of the association has a substantial investment in the entity otherwise than through the control of the holding body corporate. 317. Section 418 of the Act is amended by adding the following after subsection (3):
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(3.1) Despite any of the provisions of subsections (1) and (2), an association may acquire any assets from, or dispose of any assets to, a related party of the association as part of, or in the course of, a restructuring, if the acquisition or disposition has been approved in writing by the Superintendent. 318. (1) Subsection 419(1) of the Act is amended by adding the following after paragraph (a): (a.1) in the case of a retail association, involves, subject to subsection (4), the provision of services, other than loans or guarantees, normally provided to the public by the association in the ordinary course of business; (2) Section 419 of the Act is amended by adding the following after subsection (3):
Loans or guarantees not included
(4) The provision of services, for the purposes of paragraph (1)(a.1), does not include the making of loans or guarantees.
1997, c. 15, s. 153(1); 2000, c. 12, par. 86(b)
319. (1) Subparagraphs 420(1)(a)(i) and (ii) of the English version of the Act are replaced by the following: (i) a director or senior officer of the association or of an entity that controls the association, or (ii) the spouse or common-law partner, or a child who is less than eighteen years of age, of a director or senior officer of the association or of an entity that controls the association.
1997, c. 15, s. 153(1); 2000, c. 12, par. 86(c)
(2) Subparagraphs 420(1)(b)(i) and (ii) of the English version of the Act are replaced by the following: (i) a director or senior officer of the association or of an entity that controls the association, or (ii) the spouse or common-law partner, or a child who is less than eighteen years of age, of a director or senior officer of the association or of an entity that controls the association.
1997, c. 15, s. 153(2)
(3) Subsection 420(2) of the Act is replaced by the following:
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Loans to full-time senior officers
(2) An association may, with respect to a related party of the association referred to in subsection (1) who is a full-time senior officer of the association, make, take an assignment of or otherwise acquire a loan to the related party only if the aggregate principal amount of all outstanding loans to the related party that are held by the association and its subsidiaries, together with the principal amount of the proposed loan, does not exceed the greater of twice the annual salary of the related party and $100,000.
1997, c. 15, s. 153(3)
(4) Subsection 420(5) of the Act is replaced by the following:
Preferred terms — loan to spouse or common-law partner of senior officer
(4.1) Despite section 425, an association may make a loan referred to in paragraph 415(b) to the spouse or common-law partner of a senior officer of the association on terms and conditions more favourable than market terms and conditions, as defined in subsection 425(2), by the association if those terms and conditions have been approved by the conduct review committee of the association.
Preferred terms — other financial services
(5) Despite section 425, an association may offer financial services, other than loans or guarantees, to a senior officer of the association, or to the spouse or common-law partner, or to a child who is less than eighteen years of age, of a senior officer of the association, on terms and conditions more favourable than market terms and conditions, as defined in subsection 425(2), if (a) the financial services are offered by the association to employees of the association on those favourable terms and conditions; and (b) the conduct review committee of the association has approved the practice of making those financial services available on those favourable terms and conditions to senior officers of the association or to the spouses or the common-law partners, or to the children under eighteen years of age, of senior officers of the association.
1997, c. 15, s. 155
320. Section 422 of the Act is replaced by the following:
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422. The Superintendent may establish terms and conditions with respect to the making by an association of margin loans to a director or senior officer of the association. 321. Subsection 425(2) of the Act is replaced the following:
Meaning of ‘‘market terms and conditions’’
(2) For the purposes of subsection (1), ‘‘market terms and conditions’’ means (a) in respect of a service or a loan facility or a deposit facility offered to the public by the association in the ordinary course of business, terms and conditions that are no more or less favourable than those offered to the public by the association in the ordinary course of business; and (b) in respect of any other transaction, (i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arm’s length and who are acting prudently, knowledgeably and willingly, or (ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arm’s length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the association with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly. 322. Section 430 of the Act is replaced by the following:
Voidable contracts
430. (1) If an association enters into a transaction that it is prohibited from entering into by this Part, the association or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate remedy, including an order directing that the related party of the association involved in the transaction account to the association for any profit or gain realized or
Institutions f that any director or senior officer of the association who authorized the transaction compensate the association for any loss or damage incurred by the association.
Time limit
(2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in section 429 in respect of the transaction is given to the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction.
Certificate
(3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof. 323. The title of Part XIII of the Act is replaced by the following: REGULATION OF ASSOCIATIONS — SUPERINTENDENT 324. The Act is amended by adding the following after section 431:
Report of unclaimed deposits
431.1 (1) A retail association shall, within sixty days after the end of each calendar year, provide the Superintendent with a return, in the form that the Superintendent may determine, as of the end of that calendar year, in respect of all deposits made with the association in Canada in Canadian currency for which no transaction has taken place and no statement of account has been requested or acknowledged by the depositors during a period of nine years or more.
Period
(2) The period referred to in subsection (1) shall be calculated (a) in the case of a deposit made for a fixed period, from the day on which the fixed period terminated, and
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(b) in the case of any other deposit, from the day on which the last transaction took place or a statement of account was last requested or acknowledged by the depositor, whichever is later, until the date of the return under that subsection. Content of return
(3) A return made under subsection (1) must show, insofar as is known to the association, (a) the name of each depositor in whose name each deposit is held; (b) the recorded address of each such depositor; (c) the outstanding amount of each deposit; and (d) the branch of the association at which the last transaction took place in respect of the deposit, and the date of that transaction.
Amounts under one hundred dollars
(4) If the total outstanding amount of deposits in the name of a depositor is less than one hundred dollars, the association may omit the particulars in respect thereof required by subsection (3) from the return required by subsection (1).
Return on unclaimed bills of exchange
431.2 (1) A retail association shall, within sixty days after the end of each calendar year, provide the Superintendent with a return, in the form that the Superintendent may determine, as of the end of that calendar year, in respect of all negotiable instruments (including instruments drawn by one branch of the association on another branch of the association but not including instruments issued in payment of a dividend on the capital of the association) payable in Canada in Canadian currency that have been issued, certified or accepted by the association at branches of the association in Canada and for which no payment has been made for a period of nine years or more calculated from the date of issue, certification, acceptance or maturity, whichever is the latest, until the date of the return.
Content of return
(2) A return made under subsection (1) must show, insofar as is known to the association, (a) the name of each person to whom or at whose request each instrument was issued, certified or accepted;
Institutions f (b) the recorded address of each such person; (c) the name of the payee of each instrument; (d) the amount and date of each instrument; (e) the name of the place where each instrument was payable; and (f) the branch of the association at which each instrument was issued, certified or accepted.
Amounts under one hundred dollars
(3) If the amount of an instrument in respect of which subsection (1) applies is less than one hundred dollars, the association may omit the particulars in respect thereof required by subsection (2) from the return required by subsection (1).
Money orders
(4) A retail association may omit from a return required by subsection (1) the particulars required by subsection (2) in respect of any money order in respect of which subsection (1) applies.
Total to be reported
431.3 If a retail association, under subsection 431.1(4) or 431.2(3) or (4), omits from a return required by subsection 431.1(1) or 431.2(1) the particulars of any deposit or instrument, the total of the amounts of all deposits or instruments that have been so omitted must be reported in the return. 325. Sections 433 and 434 of the Act are replaced by the following:
Copy of by-laws
433. An association shall send to the Superintendent within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Register of associations
434. (1) The Superintendent shall, in respect of each association, cause a register to be maintained containing a copy of (a) the incorporating instrument of the association; and (b) the information referred to in paragraphs 432(1)(a) and (c) to (g) contained in the latest return sent to the Superintendent under section 432.
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(2) The register may be maintained in (a) a bound or loose-leaf form or in a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent. 326. (1) Subsection 435(1) of the Act is replaced by the following:
Confidential information
435. (1) Subject to section 436, all information regarding the business or affairs of an association, or regarding a person dealing with an association, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly. (2) Subsection 435(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a.1) and by adding the following after paragraph (a.1): (a.2) to the Canada Deposit Insurance Corporation for purposes related to its operation, and 327. The Act is amended by adding the following after section 435.1:
Publication
435.2 The Superintendent shall cause to be published in the Canada Gazette the information contained in each of the returns made under sections 431.1 and 431.2 within sixty days after the expiration of the time provided by this Act for providing the return.
Institutions f
1996, c. 6, s. 57
328. Section 436.3 of the Act is replaced by the following:
Report respecting disclosure
436.3 The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by associations and describing the state of progress made in enhancing the disclosure of information in the financial services industry. 329. Subsection 437(1) of the Act is replaced by the following:
Examination of associations
437. (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each association that the Superintendent considers to be necessary or expedient to determine whether the association is complying with the provisions of this Act and whether the association is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister. 330. The Act is amended by adding the following after the heading ‘‘Remedial Powers’’ after section 438: Prudential Agreements
Prudential agreement
438.1 The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with an association for the purposes of implementing any measure designed to maintain or improve its safety and soundness. 331. Subsection 441(1) of the Act is replaced by the following:
Court enforcement
441. (1) Where an association or person (a) is contravening or has failed to comply with a prudential agreement entered into under section 438.1 or a direction of the Superintendent issued to the association or person pursuant to subsection 439(1) or (3), (b) is contravening this Act, or (c) has omitted to do any thing under this Act that is required to be done by or on the part of the association or person,
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the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the association or person to comply with the prudential agreement or the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit. 1996, c. 6, s. 59
332. The heading before section 441.1 of the Act is replaced by the following: Disqualification and Removal of Directors or Senior Officers
Meaning of ‘‘senior officer’’
441.01 In sections 441.1 and 441.2, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer, controller of an association or any other officer reporting directly to the association’s board of directors or chief executive officer.
1996, c. 6, s. 59
333. (1) Paragraphs 441.1(1)(a) and (b) of the Act are replaced by the following: (a) that has been notified by the Superintendent that this section applies to it where the association is subject to measures designed to maintain or improve its safety and soundness, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the association’s business, or (ii) are contained in a prudential agreement entered into under section 438.1 or an undertaking given by the association to the Superintendent; or (b) that is the subject of a direction made under section 439 or an order made under subsection 409(3).
1996, c. 6, s. 59
(2) Paragraph 441.1(2)(b) of the Act is replaced by the following: (b) each person who has been selected by the association for appointment as a senior officer,
2001 1996, c. 6, s. 59
Institutions f (3) The portion of subsection 441.1(2) of the French version of the Act after paragraph (b) is replaced by the following: Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel qu’il peut exiger.
1996, c. 6, s. 59
(4) Subsections 441.1(4) and (5) of the Act are replaced by the following:
Disqualification
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order, disqualify the person from being elected or appointed as a director of an association or from being appointed as a senior officer.
Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the association would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(5) The Superintendent must in writing notify the person concerned and the association of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter. 334. The Act is amended by adding the following after section 441.1:
Removal of directors or senior officers
441.2 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of an association if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of
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Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the association have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the association of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the association of a removal order or suspension order.
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
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Appeal
(7) The director or senior officer, as the case may be, or the association may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
1996, c. 6, s. 60
335. (1) Paragraphs 442(1.1)(b) to (f) of the Act are replaced by the following: (c) the assets of the association are not, in the opinion of the Superintendent, sufficient to give adequate protection to its depositors and creditors; (d) any asset appearing on the books or records of the association or held under the administration of the association is not, in the opinion of the Superintendent, satisfactorily accounted for; (e) the regulatory capital of the association has, in the opinion of the Superintendent, reached a level or is eroding in a manner that may detrimentally affect its depositors and creditors; (f) the association has failed to comply with an order of the Superintendent under paragraph 409(3)(a); (g) in the case of a retail association, the association’s deposit insurance has been terminated by the Canada Deposit Insurance Corporation; or (h) in the opinion of the Superintendent, any other state of affairs exists in respect of the association that may be materially prejudicial to the interests of the depositors or creditors of the association or to those of the owners of any assets under the association’s administration. (2) Subsection 442(2) of the Act is replaced by the following:
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(2) If, pursuant to subsection (1), the Superintendent has control of the assets of an association referred to in that subsection, the Superintendent may do all things necessary or expedient to protect the rights and interests of the depositors and creditors of the association. 336. The Act is amended by adding the following after section 452: PART XIII.1 REGULATION OF RETAIL ASSOCIATIONS — COMMISSIONER
Required information
452.1 A retail association shall provide the Commissioner with the information at the times and in the form that the Commissioner may require for the purposes of the administration of the Financial Consumer Agency of Canada Act and the consumer provisions.
Confidential information
452.2 (1) Subject to subsection (2), information regarding the business or affairs of a retail association or regarding persons dealing with one that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsection 5(1) of the Financial Consumer Agency of Canada Act, and any information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (c) to the Canada Deposit Insurance Corporation, for purposes related to its operation; and
Institutions f (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions.
Examination
452.3 (1) The Commissioner, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry that the Commissioner considers necessary for the purposes of satisfying the Commissioner that the applicable consumer provisions are being complied with and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
Access to records of retail association
(2) The Commissioner or a person acting under the Commissioner’s direction in carrying out his or her duties under subsection (1) (a) has a right of access to any records, including electronic records, of a retail association; and (b) may require the directors or officers of a retail association to provide information and explanations, to the extent that they are reasonably able to do so, in respect of any matter subject to examination or inquiry under subsection (1).
Power of Commissioner on inquiry
452.4 The Commissioner, in carrying out his or her duties in relation to consumer provisions, has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Commissioner’s direction.
Compliance agreement
452.5 The Commissioner may enter into an agreement, called a ‘‘compliance agreement’’, with a retail association for the purposes of implementing any measure designed to further compliance by it with the consumer provisions. 337. The Act is amended by adding the following after section 459.1:
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Definition of ‘‘approval’’
459.2 (1) In this section, ‘‘approval’’ includes any consent, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent.
Minister — terms, conditions and undertakings
(2) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose such terms and conditions or require such undertaking as the Minister considers necessary, including any terms, conditions or undertaking specified by the Superintendent to maintain or improve the safety and soundness of any financial institution regulated under an Act of Parliament and to which the approval relates or that may be affected by it.
Superintendent — terms, conditions and undertakings
(3) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose such terms and conditions or require such undertaking as the Superintendent considers necessary.
Effect of non-compliance on approval
(4) Unless otherwise expressly provided in this Act, a failure to comply with a term or condition or an undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates.
Noncompliance
(5) In addition to any other action that may be taken under this Act, in case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or Superintendent, as the case may be, may (a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or (b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such application the court may so order and make any other order it thinks fit.
Institutions f
Representations
(6) Before taking any action under subsection (5), the Minister or the Superintendent, as the case may be, shall afford the person concerned a reasonable opportunity to make representations.
Revocation, suspension or amendment
(7) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her or may revoke or suspend an undertaking given to him or her or approve its amendment. 338. The Act is amended by adding the following after section 461: Applications to Superintendent
Content of applications
461.1 (1) The following applications to the Superintendent must contain the information, material and evidence that the Superintendent may require: (a) applications for approval under subsection 74(1), 80(2), 82(4), 86(5), 87(1), 177(1), 221(2), 385(1), 390(6) or (10), 393(1) or (2) or 406(1), subparagraph 411(2)(a)(iv), section 414 or subsection 418(3) or (3.1); (b) applications for consent under subsection 79(1); (c) applications for exemptions under subsection 166.05(3) or 242(1); and (d) applications for extensions of time under subsection 393(3) or (5), 394(4) or 395(4).
Receipt
(2) Without delay after receiving the application, the Superintendent shall send a receipt to the applicant certifying the date on which it was received.
Notice of decision to applicant
(3) Subject to subsection (4), the Superintendent shall, within a period of thirty days after the receipt of the application, send to the applicant (a) a notice approving the application, subject to any terms and conditions that the Superintendent considers appropriate; or (b) if the Superintendent is not satisfied that it should be approved, a notice to that effect.
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Extension of period
(4) If the Superintendent is unable to complete the consideration of the application within the period referred to in subsection (3), the Superintendent shall, within that period, send a notice to the applicant informing the applicant that the Superintendent has extended the period for a further period set out in the notice.
Deemed approval
(5) If the applicant does not receive the notice required by subsection (3) and, where applicable, subsection (4), within the required period, the Superintendent is deemed to have approved the application and granted the approval, consent, extension or exemption to which the application relates, regardless of whether the approval, consent, extension or exemption is to be in writing or not. 339. Section 463 of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (i) and by adding the following after paragraph (i): (i.1) respecting the determination of the equity of an association; (i.2) respecting persons who are a related party to a retail association; and 340. The Act is amended by adding the following after section 467:
Limitation period
467.1 (1) Proceedings by way of summary conviction in respect of an offence under a provision of this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known, in the case of an offence under a consumer provision, to the Commissioner and, in any other case, to the Superintendent.
Certificate of Superintendent or Commissioner
(2) A document appearing to have been issued by the Superintendent or Commissioner, as the case may be, certifying the day on which the subject-matter of any proceedings became known to the Superintendent or Commissioner is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Institutions f 341. Section 469 of the Act is replaced by the following:
Compliance or restraining order
469. (1) If an association or any director, officer, employee or agent of an association does not comply with any provision of this Act or the regulations other than a consumer provision, or of the incorporating instrument or any by-law of the association, the Superintendent, any complainant or any creditor of the association may, in addition to any other right that that person has, apply to a court for an order directing the association, director, officer, employee or agent to comply with — or restraining the association, director, officer, employee or agent from acting in breach of —the provision and, on the application, the court may so order and make any further order it thinks fit.
Compliance or restraining order — consumer provisions
(2) If a retail association or any director, officer, employee or agent of a retail association does not comply with any applicable consumer provision, the Commissioner or any complainant may, in addition to any other right that that person has, apply to a court for an order directing the retail association, director, officer, employee or agent to comply with — or restraining the retail association, director, officer, employee or agent from acting in breach of — the consumer provision and, on the application, the court may so order and make any further order it thinks fit.
1997, c. 15, s. 163
342. (1) Paragraph 474(1)(d) of the Act is replaced by the following: (d) Parts IX to XV and XVII, other than subsection 375(3), section 375.1 and paragraph 442(1.1)(g),
(2) Section 474 of the Act is amended by adding the following after subsection (4):
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Exception
(5) Paragraph 390(4)(a) does not apply to the acquisition or increase of a substantial investment by a central in an association referred to in section 14.
1992, c. 56
Green Shield Canada Act
1997, c. 15, s. 164(1)
343. (1) The portion of subsection 17(1) of the Green Shield Canada Act before paragraph (a) is replaced by the following:
Application of the Insurance Companies Act
17. (1) Subject to any other provision of this Act, the following provisions of the Insurance Companies Act as amended or enacted by An Act to establish the Financial Consumer Agency of Canada and to amend certain Acts in relation to financial institutions, enacted during the first session of the thirty-seventh Parliament, together with any regulations made under or for the purposes of those provisions, apply to the Association, with such modifications as the circumstances require:
1997, c. 15, s. 164(2)
(2) Paragraph 17(1)(e) of the Act is replaced by the following: (e) sections 160 to 162, paragraphs 165(a) to (e), (h) and (i), sections 166 and 167, subsection 168(1), sections 170 to 172, subsections 174(1) and (3) to (6), 174(7) (excepting therefrom the reference to subsection 173(4)) and 175(1) and (4), sections 177 and 189 to 194, subsection 195(1), sections 196, 202 and 203, subsections 204(1) and (2), paragraphs 204(3)(a) to (c), subsections 204(4) to (6), sections 205 and 206, paragraphs 207(a), (b), (c), (h) and (i), sections 208 to 215, paragraphs 216(2)(d) and (e), subsections 217(1) and (2), paragraphs 217(3)(a) and (c), sections 218 to 223, 244, 254 to 256 and 260, subsections 261(1) and (2) and 262(1) to (6), sections 266 to 268, paragraphs 269(a) and (b), sections 270, 278, 279 and 330, subsections 331(1) and (2), paragraphs 331(3)(b) and (c), subsections 331(4) and (6), sections 332 to 357 and 359.1 to 380, paragraph 381(1)(a), subsection 381(2) and sections 382 to 406 of Part VI;
Institutions f (3) Paragraph 17(1)(f) of the Act is replaced by the following: (f) paragraph 441(1)(d), subsection 441(3) and sections 448, 450, 465 to 472 and 476 to 478 of Part VIII; (f.1) paragraphs 165(2)(f) and (g) of Part VI and sections 479 to 489 and 489.2 of Part VIII; (4) Paragraphs 17(1)(h) and (i) of the Act are replaced by the following: (h) sections 515 to 517 of Part X; and (i) Part XI, except sections 528.1 to 528.3, and Parts XV, XVI, XVIII and XIX. 344. Subsection 17(2) of the Act is amended by adding the following after paragraph (l): (l.1) a reference to a consumer provision shall be deemed to be a reference to a provision referred to in paragraph (e) of the definition ‘‘consumer provision’’ in section 2 of the Financial Consumer Agency of Canada Act;
1991, c. 47
Insurance Companies Act
1996, c. 6, s. 66(1)
345. (1) Paragraph (a) of the definition ‘‘provincial company’’ in subsection 2(1) of the Insurance Companies Act is repealed.
1996, c. 6, s. 66(1)
(2) The definitions ‘‘annual statement’’, ‘‘central securities register’’ or ‘‘securities register’’, ‘‘head office’’, ‘‘incorporator’’, ‘‘recorded address’’, ‘‘regulatory capital’’, ‘‘subsidiary’’ and ‘‘total assets’’ in subsection 2(1) of the Act are replaced by the following:
‘‘annual statement’’ « rapport annuel »
‘‘annual statement’’, in relation to a company, means the annual financial statement of the company within the meaning of paragraph 331(1)(a) and, in relation to an insurance holding company, means the annual financial statement of the insurance holding company within the meaning of paragraph 887(1)(a);
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‘‘central securities register’’ or ‘‘securities register’’ « registre central des valeurs mobilières » ou « registre des valeurs mobilières »
‘‘central securities register’’ or ‘‘securities register’’, in relation to a company or an insurance holding company, means the register referred to in section 271;
‘‘head office’’ « siège »
‘‘head office’’ means (a) in relation to a company, the office required to be maintained by the company under section 260, (b) in relation to a society, the office required to be maintained by the society under section 544, and (c) in relation to an insurance holding company, the office required to be maintained by the insurance holding company under section 868;
‘‘incorporator’’ « fondateur »
‘‘incorporator’’, in relation to a company or an insurance holding company, means a person who applied for letters patent to incorporate the company or insurance holding company, as the case may be;
‘‘recorded address’’ « adresse enregistrée »
‘‘recorded address’’ means (a) in relation to a person who is a shareholder of a company or an insurance holding company, the latest postal address of the person according to the central securities register of the company or the insurance holding company, as the case may be, and (b) in relation to a person in any other respect, the latest postal address of the person according to the records of the company or insurance holding company;
‘‘regulatory capital’’ « capital réglementaire »
‘‘regulatory capital’’, in respect of a company, a society, a provincial company or an insurance holding company, has the meaning given that expression by the regulations;
‘‘subsidiary’’ « filiale »
‘‘subsidiary’’ means an entity that is a subsidiary of another entity within the meaning of section 5;
‘‘total assets’’ « actif total »
‘‘total assets’’, in respect of a company, society, provincial company or insurance holding company, has the meaning given that expression by the regulations;
Institutions f (3) Paragraph (c) of the definition ‘‘complainant’’ in subsection 2(1) of the Act is replaced by the following: (c) any other person who, in the discretion of a court, is a proper person to make an application under section 371, 375 or 1031;
1991, c. 48, par. 495(1)(a)
(4) Paragraph (d) of the definition ‘‘financial institution’’ in subsection 2(1) of the Act is replaced by the following: (d) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, (5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘Agency’’ « Agence »
‘‘Agency’’ means the Financial Consumer Agency of Canada established under section 3 of the Financial Consumer Agency of Canada Act;
‘‘bank holding company’’ « société de portefeuille bancaire »
‘‘bank holding company’’ means a body corporate that is incorporated or formed under Part XV of the Bank Act;
‘‘Commissioner’’ « commissaire »
‘‘Commissioner’’ means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act;
‘‘consumer provision’’ « disposition visant les consommateurs »
‘‘consumer provision’’ means a provision referred to in paragraph (c) of the definition ‘‘consumer provision’’ in section 2 of the Financial Consumer Agency of Canada Act;
‘‘converted company’’ « société transformée »
‘‘converted company’’ means a mutual company that has been converted under this Act into a company with common shares;
‘‘equity’’ « capitaux propres »
‘‘equity’’, in respect of a company or an insurance holding company, means its equity as determined in accordance with the regulations;
‘‘federal financial institution’’ « institution financière fédérale »
‘‘federal financial institution’’ means
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‘‘insurance holding company’’ « société de portefeuille d’assurances »
‘‘insurance holding company’’ means a body corporate that is incorporated or formed under Part XVII;
(6) Section 2 of the Act is amended by adding the following after subsection (2): Major shareholder
(3) For the purposes of this Act, a person is a major shareholder of a body corporate if (a) the aggregate of the shares of any class of voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 20 per cent of the outstanding shares of that class of voting shares of the body corporate; or (b) the aggregate of the shares of any class of non-voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 30 per cent of the outstanding shares of that class of non-voting shares of the body corporate.
Widely held
(4) For the purposes of this Act, a body corporate is widely held if it has no major shareholder. 346. (1) Paragraph 3(1)(d) of the French version of the Act is replaced by the following: d) dans tous les cas, la personne dont l’influence directe ou indirecte auprès de
Institutions f l’entité est telle que son exercice aurait pour résultat le contrôle de fait de celle-ci. (2) The portion of subsection 3(3) of the Act before paragraph (a) is replaced by the following:
Deemed control
(3) A person is deemed to control, within the meaning of paragraph (1)(a) or (b), an entity if the aggregate of
(3) Section 3 of the Act is amended by adding the following after subsection (3): Guidelines
(4) The Minister may, for any purpose of any provision of this Act that refers to control within the meaning of paragraph (1)(d), make guidelines respecting what constitutes such control, including guidelines describing the policy objectives that the guidelines and the relevant provisions of the Act are intended to achieve and, if any such guidelines are made, the reference to paragraph (1)(d) in that provision shall be interpreted in accordance with the guidelines. 347. Sections 4 and 5 of the Act are replaced by the following:
Holding body corporate
4. A body corporate is the holding body corporate of any entity that is its subsidiary.
Subsidiary
5. An entity is a subsidiary of another entity if it is controlled by the other entity. 348. Subsection 6(2) of the Act is replaced by the following:
Affiliated entities
(2) Despite subsection (1), for the purposes of Divisions VIII and X of Part VI and Subdivisions 8 and 10 of Division 6 of Part XVII, one entity is affiliated with another entity if one of them is controlled, determined without regard to paragraph 3(1)(d), by the other or both are controlled, determined without regard to paragraph 3(1)(d), by the same person.
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349. Section 8 of the Act is replaced by the following: Significant interest
8. (1) A person has a significant interest in a class of shares of a company or an insurance holding company if the aggregate of (a) any shares of that class beneficially owned by the person, and (b) any shares of that class beneficially owned by entities controlled by the person exceeds 10 per cent of all of the outstanding shares of that class of shares of the company or insurance holding company, as the case may be.
Increasing significant interest
(2) A person who has a significant interest in a class of shares of a company or insurance holding company increases that significant interest in the class of shares if the person or any entity controlled by the person (a) acquires beneficial ownership of additional shares of that class, or (b) acquires control of any entity that beneficially owns shares of that class, in such number as to increase the percentage of shares of that class that are beneficially owned by the person and by any entities controlled by the person. 350. Subsections 9(1) and (2) of the Act are replaced by the following:
Acting in concert
9. (1) For the purposes of Part VII and Division 7 of Part XVII, if two or more persons have agreed, under any agreement, commitment or understanding, whether formal or informal, verbal or written, to act jointly or in concert in respect of (a) shares of a company or of an insurance holding company that they beneficially own, (b) shares or ownership interests that they beneficially own of any entity that beneficially owns shares of a company or of an insurance holding company, or (c) shares or ownership interests that they beneficially own of any entity that controls any entity that beneficially owns shares of a company or insurance holding company,
Institutions f those persons are deemed to be a single person who is acquiring beneficial ownership of the aggregate number of shares of the company or insurance holding company or shares or ownership interests of the entity that are beneficially owned by them.
Acting in concert
(2) Without limiting the generality of subsection (1), any agreement, commitment or understanding by or between two or more persons who beneficially own shares of a company or insurance holding company or shares or ownership interests of any entity referred to in paragraph (1)(b) or (c), (a) whereby any of them or their nominees may veto any proposal put before the board of directors of the company or insurance holding company, as the case may be, or (b) under which no proposal put before the board of directors of the company or insurance holding company, as the case may be, may be approved except with the consent of any of them or their nominees, is deemed to be an agreement, commitment or understanding referred to in subsection (1).
351. Subsections 11(2) and (3) of the Act are replaced by the following: Exemption
(2) On application by a company or insurance holding company, the Superintendent may determine that a security of the company or insurance holding company is not or was not part of a distribution to the public if the Superintendent is satisfied that the determination would not prejudice any security holder of the company or insurance holding company.
Securities deemed part of distribution
(3) For the purposes of this Act, securities of a company or insurance holding company issued on the conversion of other securities or issued in exchange for other securities are deemed to be securities that are part of a distribution to the public if those other securities were part of a distribution to the public.
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1999, c. 31, s. 138
352. The portion of subsection 13(2) of the Act before paragraph (a) is replaced by the following:
Application of certain provisions
(2) This Part and Parts II to IV, sections 224, 225, 245 to 258 and 489 and Parts X, XII, XV, XVI, XVIII and XIX apply to every body corporate
1997, c. 15, s. 168
353. Section 21 of the Act is replaced by the following:
Sunset provision
21. (1) Subject to subsection (2), companies and societies shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, companies and societies may continue to carry on business until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.
Extension
(2) The Governor in Council may, by order, extend by up to six months the time during which companies and societies may continue to carry on business. No more than one order may be made under this subsection.
1999, c. 28, s. 120
354. Subsection 24(1) of the Act is replaced by the following:
National treatment
24. (1) If a proposed company would be a subsidiary of a foreign institution that is engaged in the insurance business, letters patent to incorporate the company may not be issued unless the Minister is satisfied that, if the application is made by a non-WTO Member foreign institution, treatment as favourable for companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign institution principally carries on business, either directly or through a subsidiary.
Institutions f 355. Section 27 of the Act is replaced by the following:
Matters for consideration
27. Before issuing letters patent to incorporate a company or society, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company or society; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the company or society; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the company or society will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicant or applicants with those of the company or society on the conduct of those operations and businesses; and (g) the best interests of the financial system in Canada. 356. The Act is amended by adding the following after section 28:
Letters patent of incorporation on application of converted companies
28.1 (1) If the Minister, under section 22, issues letters patent incorporating a company on the application of a converted company in respect of which subsection 407(4) or (11) applies or applied at any time, the Minister may include in the letters patent of incorporation of the company a provision deeming shares of the company to be issued, on a share for share basis, to all shareholders of the converted company in exchange for all the
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issued and outstanding shares of the converted company. Effect of provision
(2) Shares of a company deemed to be issued under subsection (1) are subject to the same designation, rights, privileges and restrictions or conditions and, subject to any agreement to the contrary, to the same charges, encumbrances and other restrictions as the shares of the converted company for which they are exchanged and the shares of the converted company, on the issuance of the letters patent, become the property of the company free and clear of any charge, encumbrance or other restriction.
Effect of provision
(3) An exchange of shares of a converted company referred to in subsection (1) under a provision included in the letters patent incorporating a company does not deprive a person who was a holder of shares of the converted company immediately before the exchange of any right or privilege with respect to the shares or relieve the person of any liability in respect of the shares, but that right or privilege must be exercised in accordance with this Act.
Transfer and voting of company shares
(4) Despite subsection (3), no share of a company that is deemed to be issued under a provision included in the letters patent incorporating a company may subsequently be transferred or voted contrary to this Act.
Shareholder and policyholder approval
(5) No provision described in subsection (1) may be included in letters patent issued under section 22 unless the application for the letters patent is accompanied by evidence that the request for the provision was approved by a special resolution of the shareholders and policyholders of the converted company who are entitled to vote at a meeting of shareholders and policyholders called to consider the application.
Exchange of share certificates
(6) If, under a provision included in the letters patent incorporating a company, a share exchange is deemed to have taken place, the company shall, within ninety days after the issuance of the letters patent, make provision for the issue of share certificates representing
Institutions f shares of the company and for the exchange of those certificates for share certificates representing the shares of the converted company that were outstanding on the day the letters patent were issued.
Proposal involving fundamental change
28.2 (1) On application, made in accordance with the regulations, by a converted company in respect of which subsection 407(4) or (11) applies or applied at any time to give effect to a proposal to incorporate a company as the holding body corporate of the converted company, to continue a body corporate as a company that is the holding body corporate of the converted company or to amalgamate two or more bodies corporate and continue those bodies corporate as a company that is the holding body corporate of the converted company — and to make any other fundamental change to the converted company, including an exchange of any or all of the shares of the converted company for shares of the company —, the Minister may, to give effect to the proposal, (a) include in the letters patent of the company issued under section 22, 34 or 251 any provision the Minister considers necessary; or (b) despite any provision of the Act specified in regulations made under paragraph (2)(e), give any approval that the Minister considers necessary.
Regulations
(2) The Governor in Council may make regulations (a) respecting applications referred to in subsection (1), including their form and the information to be contained in them, and authorizing the Superintendent to require additional information in respect of such applications; (b) respecting proposals to which subsection (1) applies, including the information to be contained in the proposals and the times within which the transactions involved in them must occur; (c) respecting the procedures to be followed by a converted company that makes an application under subsection (1);
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(d) respecting the approval, confirmation or authorization, if any, of all or any portion of proposals to which subsection (1) applies, including the approval of shareholders and policyholders and including the terms and conditions of those approvals, confirmations or authorizations and their effect; and (e) specifying provisions of the Act for the purpose of paragraph (1)(b). 1997, c. 15, s. 170(1) (F)
357. Subsection 32(1) of the Act is replaced by the following:
Federal corporations
32. (1) A body corporate incorporated under the Canada Business Corporations Act or any other Act of Parliament, including an insurance holding company, may apply to the Minister for letters patent continuing the body corporate as a company under this Act.
1991, c. 47, s. 759; 1994, c. 24, par. 34(1)(l) (F)
358. Sections 39 to 41 of the Act are replaced by the following:
Transferring to other federal Acts
39. (1) A company or society may (a) apply, with the approval in writing of the Minister, for a certificate of continuance under section 187 of the Canada Business Corporations Act; or (b) apply for letters patent continuing the company or society as a bank under subsection 35(1) of the Bank Act or amalgamating and continuing the company or society as a bank under subsections 223(1) and 229(1) of that Act.
Transferring to other federal Acts — societies
(1.1) A society may also, with the approval in writing of the Minister, (a) apply, under section 156 of the Canada Corporations Act, for letters patent creating it as a corporation under Part II of that Act; or (b) apply, under section 285 of the Canada Cooperatives Act, for a certificate of continuance, or a certificate of continuance and a certificate of amalgamation, under that Act.
Conditions for approval
Institutions f
(2) No approval referred to in paragraph (1)(a) may be given to a company or society and no approval referred to in subsection (1.1) may be given to a society unless the Minister is satisfied that (a) the application has been authorized by a special resolution; (b) the company or society has discharged, or provided for the discharge of, all its policy liabilities; and (c) unless the company or society is an entity referred to in paragraph 47(2)(b) or (c), the company or society will not use the word ‘‘assurance’’, ‘‘assurances’’ or ‘‘insurance’’ in its name after a certificate or letters patent referred to in subsection (1) or (1.1) are issued in respect of the company or society.
Withdrawing application
(3) If a special resolution authorizing the application for the certificate or letters patent so states, the directors of a company or society may, without further approval of the shareholders, policyholders entitled to vote or members, withdraw the application before it is acted on.
Day this Act ceases to apply
(4) On the day specified in the certificate or letters patent, this Act ceases to apply to the body corporate to which the certificate or letters patent relate.
1996, c. 6, s. 67
359. Paragraph 42(1)(e) of the Act is replaced by the following: (e) that is reserved under section 45 for another company or society or a proposed company or society or under section 734 for an insurance holding company or a proposed insurance holding company.
1996, c. 6, s. 68
360. Section 43 of the Act is replaced by the following:
Affiliated company or society
43. Despite section 42, a company or society that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, be incorporated with, or change its name to, substantially the same name as that of the affiliated entity.
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1996, c. 6, s. 70
361. Subsection 46(2) of the Act is replaced by the following:
Revoking name
(2) If a company or society has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Act, the Superintendent may revoke the name of the company or society and assign to it a name and, until changed in accordance with section 224, 238 or 544.1, the name of the company or society is thereafter the name so assigned. 362. Subsection 47(2) of the Act is amended by adding the following after paragraph (a): (a.1) an insurance holding company;
1996, c. 6, s. 70
363. Section 48 of the Act is replaced by the following:
Subsidiaries
48. Despite subsection 47(1), a subsidiary of a company or society may use the company’s or society’s name in its name. 364. Subsection 50(1) of the Act is replaced by the following:
Calling shareholders’ meeting
50. (1) If at least five million dollars, or any greater amount that the Minister may specify, has been received by a company, other than a mutual company, in respect of which letters patent were issued under section 22 from the issue of its shares, the directors of the company shall without delay call a meeting of the shareholders of the company. 365. Clause 57(1)(a)(ii)(B) of the Act is replaced by the following: (B) at least five million dollars or any greater amount that is specified by the Minister under subsection 50(1), in the case of a company other than a mutual company, 366. The Act is amended by adding the following after section 59:
Limit on assets
59.1 (1) The Minister may, by order, require a company that is a converted company in respect of which the Minister has issued an order under subsection 407(8) or a converted company in respect of which subsection
Institutions f 407(11) applied at any time not to have average total assets in any three month period ending on the last day of a month subsequent to the month specified in the order exceeding the company’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order if the Minister is of the opinion that it is in the best interests of the financial system in Canada to do so, after having considered the Superintendent’s opinion on (a) the nature and extent of the financial services activities carried out by entities affiliated with the company; and (b) the impact that the nature and degree of supervision and regulation of those financial services activities have on the supervision and regulation of the company.
Revocation of order
(2) If the Minister is of the opinion that the circumstances giving rise to the order have ceased to exist or have changed substantially, the Minister may, by further order, revoke the order.
Average total assets
(3) For the purposes of subsection (1), the average total assets of a company in a three month period shall be computed by adding the total assets of the company as calculated for the month end of each of the three months in the period and by dividing the sum by three. 367. Subsection 65(3) of the Act is replaced by the following:
Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders and policyholders at the meeting referred to in subsection (2).
1997, c. 15, s. 183
368. The portion of section 76.1 of the Act before paragraph (a) is replaced by the following:
Holding in market-indexed segregated fund
76.1 A company may hold shares of the company or shares or ownership interests of an entity that controls the company, if
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369. Section 83 of the Act is amended by adding the following after subsection (4): When dividend not to be declared
(5) The directors of a company shall not declare and a company shall not pay a dividend in any financial year without the approval of the Superintendent if, on the day the dividend is declared, the total of all dividends declared by the company in that year would exceed the aggregate of the company’s net income up to that day in that year and its retained net income for the preceding two financial years. 370. (1) Section 143 of the Act is amended by adding the following after subsection (1):
Number of eligible votes
(1.01) A converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies shall set out in the notice of a meeting the number of eligible votes, as defined under subsection 164.08(1), that may be cast at the meeting as of the record date for determining the shareholders or policyholders entitled to receive the notice of meeting or, if there are to be separate votes of shareholders or policyholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting.
1997, c. 15, s. 187(2)
(2) Subsection 143(1.2) of the French version of the Act is replaced by the following:
Renonciation à l’avis
(1.2) La présence à l’assemblée équivaut à une renonciation de l’avis de convocation, sauf lorsque la personne y assiste spécialement pour s’opposer aux délibérations au motif que l’assemblée n’est pas régulièrement convoquée. 371. Subsection 147(3) of the French version of the Act is replaced by the following:
Déclaration à l’appui de propositions
(3) La société doit, sur demande, annexer à l’avis de l’assemblée une déclaration de deux cents mots au plus préparée par l’actionnaire ou le souscripteur à l’appui de sa proposition, avec ses nom et adresse.
Institutions f 372. Subsections 150(2) and (3) of the Act are replaced by the following:
Policyholders
(2) Unless the by-laws otherwise provide, a quorum of policyholders is present at a meeting of policyholders if at least five hundred policyholders who are entitled to vote at the meeting, or one per cent of the total number of those policyholders, whichever is lesser, are present in person or represented by proxyholders.
Shareholders and policyholders
(3) Unless the by-laws otherwise provide, a quorum of shareholders and policyholders is present at a meeting of shareholders and policyholders if the holders of a majority of the shares and at least five hundred policyholders, or one per cent of the total number of policyholders, whichever is lesser, who are entitled to vote at the meeting are present in person or represented by proxyholders. 373. Section 152 of the Act is replaced by the following:
One share — one vote
152. Subject to section 164.08, if a share of a company entitles the holder of the share to vote at a meeting of shareholders or shareholders and policyholders, that share entitles the shareholder to one vote at the meeting. 374. The Act is amended by adding the following after section 164.07: DIVISION I.2 RESTRICTIONS ON VOTING
Meaning of ‘‘eligible votes’’
164.08 (1) In this section, ‘‘eligible votes’’ means the total number of votes that may be cast by or on behalf of shareholders and policyholders on a vote of shareholders or shareholders and policyholders or a vote of holders of a class or series of shares, as the case may be, in respect of any particular matter, calculated without regard to subsection (2).
Restriction
(2) At a meeting of shareholders and policyholders of a company in respect of which subsection 407(4) applies or of a company to which subsection 407(5) applies, no person and no entity controlled by any person may, in respect of any vote of shareholders or shareholders and policyholders or holders of any class or series of shares of the
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company, cast votes in respect of any shares beneficially owned by the person or the entity that are, in aggregate, more than 20 per cent of the eligible votes that may be cast in respect of that vote. Proxyholders
(3) No person who is a proxyholder for a person or for an entity controlled by a person may cast votes to which the proxy relates that the person or entity may not cast by reason of subsection (2).
Exception
(4) Subsections (2) and (3) do not apply in respect of votes cast by or on behalf of (a) a company to which subsection 407(5) applies, or an insurance holding company to which subsection 407(6) applies, that controls the company; or (b) any entity that is controlled by a company or an insurance holding company referred to in paragraph (a).
Exception
(5) Subsections (2) and (3) do not apply in respect of a vote held under section 239.
Validity of vote
(6) A vote in respect of a particular matter is not invalid merely because a person voted contrary to subsection (2) or (3).
Disposition of shareholdings
(7) If, with respect to any company, a person contravenes subsection (2) or (3), the Minister may, by order, direct the shareholder of the shares to which the contravention relates or any person controlled by that shareholder to dispose of any number of shares of the company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the shareholder and the persons controlled by that shareholder that is specified in the order.
Restriction on voting rights
(8) If the Minister makes an order under subsection (7), the person to whom the order relates may not, in person or by proxy, exercise any voting rights that are attached to shares of the company beneficially owned by the person.
Institutions f
Subsection (8) ceases to apply
(9) Subsection (8) ceases to apply in respect of a person when the shares to which the order relates have been disposed of.
Reliance on number in notice
(10) For the purpose of this section, a person is entitled to rely on the number of eligible votes set out in a notice of a meeting under subsection 143(1.01).
Designation of persons
(11) For the purpose of this section, the Minister may, with respect to a particular company, designate two or more persons who are parties to an agreement, commitment or understanding referred to in section 9 to be a single person. 375. Paragraph 165(2)(g) of the French version of the Act is replaced by the following: g) désigner l’un des comités du conseil d’administration pour surveiller l’application des mécanismes et procédures visés à l’alinéa f) et s’assurer que ces mécanismes et procédures soient respectés par la société; 376. Subsection 167(2) of the Act is replaced by the following:
Residency requirement
(2) At least one half of the directors of a company that is a subsidiary of a foreign institution or of a prescribed holding body corporate of a foreign institution and at least two thirds of the directors of any other company must be, at the time of each director’s election or appointment, resident Canadians.
1997, c. 15, s. 200
377. Paragraphs 168(1)(e) and (f) of the Act are replaced by the following: (e) a person who is prohibited by subsection 164.08(8) or section 418 or 430 from exercising voting rights attached to shares of the company; (f) a person who is an officer, director or full time employee of an entity that is prohibited by subsection 164.08(8) or section 418 or 430 from exercising voting rights attached to shares of the company;
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378. Subsection 171(2) of the Act, as amended by section 201 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is repealed. 379. Section 176 of the Act is amended by adding the following after subsection (3): Exception
(3.1) Subsection (2) does not apply to a converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies. 380. Subsection 180(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) when the director is removed from office under section 678.1 or 678.2. 381. The Act is amended by adding the following after section 192:
Presence of unaffiliated director
192.1 (1) The directors of a company shall not transact business at a meeting of directors unless at least one of the directors who is not affiliated with the company is present.
Exception
(2) Despite subsection (1), the directors of a company may transact business at a meeting of directors if a director who is not affiliated with the company and who is not able to be present approves, in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting.
Exception
(3) Subsection (1) does not apply if all the voting shares of the company, other than directors’ qualifying shares, if any, are beneficially owned by a Canadian financial institution incorporated by or under an Act of Parliament. 382. Subsection 197(3) of the Act is replaced by the following:
Separate vote
(2.1) If a by-law made, amended or repealed under subsection (1) deals with the quorum of policyholders at a meeting of shareholders and policyholders, the policyholders who are entitled to vote on a resolution
Institutions f to confirm or amend the by-law, amendment or repeal are entitled to vote on it separately from the shareholders.
Effective date of by-law
(3) Unless this Act otherwise provides, a by-law, or an amendment to or a repeal of a by-law, is effective from the date of the resolution of the directors under subsection (1) until it is confirmed, confirmed as amended or rejected by the shareholders and policyholders under subsection (2) or (2.1) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed, or confirmed as amended, it continues in effect in the form in which it was so confirmed.
1997, c. 15, s. 211(1)
383. Paragraph 204(3)(b) of the Act is replaced by the following: (b) review those procedures and their effectiveness in ensuring that the company is complying with Part XI; (b.1) if an insurance holding company or a bank holding company that is widely held has a significant interest in any class of shares of the company, (i) establish policies for entering into transactions referred to in subsection 528.1(1), and (ii) review transactions referred to in subsection 528.3(1); and 384. The portion of section 220 of the Act before paragraph (a) is replaced by the following:
Reliance on statement
220. A director, an officer or an employee of a company is not liable under subsection 166(1) or (2), section 216 or 219 or subsection 539(1) if the director, officer or employee relies in good faith on 385. The portion of subsection 221(1) of the French version of the Act before paragraph (a) is replaced by the following:
Indemnisation
221. (1) La société peut indemniser ses administrateurs ou ses dirigeants — ou leurs prédécesseurs —, ainsi que les personnes qui, à sa demande, agissent ou ont agi en cette qualité pour une entité dont elle est ou a été actionnaire ou créancière, de tous leurs frais, y compris les montants versés en règlement d’une action ou pour satisfaire à un jugement,
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entraînés par des procédures civiles, pénales ou administratives auxquelles ils étaient parties en cette qualité, sauf à l’occasion d’actions intentées par la société ou pour son compte en vue d’obtenir un jugement favorable, si : 1997, c. 15, s. 214
386. Section 224 of the Act is replaced by the following:
Incorporating instrument
224. On the application of a company or society duly authorized by special resolution, the Minister may approve a proposal to add, change or remove any provision that is permitted by this Act to be set out in the incorporating instrument of the company or society. 387. Subsection 225(1) of the Act is replaced by the following:
Letters patent to amend
225. (1) On receipt of an application referred to in section 224, the Minister may issue letters patent to effect the proposal. 388. (1) Subsection 238(1) of the Act is amended by adding the following after paragraph (i): (i.1) change the name of the company; (2) Subsection 238(3) of the Act is replaced by the following:
Effective date of by-law
(3) A by-law, or an amendment to or a repeal of a by-law, made under subsection (1) is not effective until it is confirmed or confirmed as amended by the shareholders and policyholders under subsection (2) and, in the case of a by-law referred to in paragraph (1)(i.1), approved by the Superintendent. 389. Subsection 243(1) of the Act is replaced by the following:
Proposal to amend
243. (1) Subject to subsection (2), a director or a shareholder or policyholder who is entitled to vote at an annual meeting of shareholders and policyholders of a company may, in accordance with sections 147 and 148, make a proposal to make an application referred to in section 224 or to make, amend or repeal the by-laws referred to in subsection 238(1) of the company.
Institutions f 390. Subsections 245(1) and (2) of the Act are replaced by the following:
Application to amalgamate
245. (1) On the joint application of two or more bodies corporate, incorporated by or under an Act of Parliament, including companies and insurance holding companies, the Minister may issue letters patent amalgamating and continuing the applicants as one mutual company.
Application to amalgamate
(2) On the joint application of two or more bodies corporate incorporated by or under an Act of Parliament, including companies — other than mutual companies — and insurance holding companies, the Minister may issue letters patent amalgamating and continuing the applicants as one company.
1997, c. 15, s. 222(2)
391. Subsection 250(3) of the Act is replaced by the following:
Application of sections 23 to 26
(3) If two or more bodies corporate, none of which is a company or society, apply for letters patent under subsection (1), sections 23 to 26 apply in respect of the application with any modifications that the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one company or society, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the sources of continuing financial support for the amalgamated company or society; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of the amalgamated company or society; (c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the amalgamated company or society will be operated responsibly by persons with the competence and experi���
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ence suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; (g) if one of the applicants is a converted company in respect of which the Minister has issued an order under subsection 407(8) or a converted company in respect of which subsection 407(11) applied at any time, or a body corporate that controls, within the meaning of paragraph 3(1)(d), such a company, the opinion of the Superintendent regarding the extent to which the proposed corporate structure of the amalgamated company and its affiliates may affect the supervision and regulation of the amalgamated company, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the amalgamated company and its affiliates, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the amalgamated company; and (h) the best interests of the financial system in Canada. Restriction
(5) The Minister may not, before January 1, 2002, issue letters patent under section 251 amalgamating a converted company in respect of which subsection 407(4) or (11) applies, a company to which subsection 407(5) or (12) applies or an insurance holding company to which subsection 407(6) or (13) applies with any other body corporate.
Restriction
(6) If one of the applicants for letters patent of amalgamation is a converted company in respect of which subsection 407(4) applies, or a company to which subsection 407(5) applies or an insurance holding company to which subsection 407(6) applies, the Minister may
Institutions f not issue the letters patent of amalgamation unless the amalgamated company is (a) widely held; or (b) controlled, within the meaning of paragraph 3(1)(d), by a company to which subsection 407(5) applies, or by an insurance holding company to which subsection 407(6) applies, that controlled one of the applicants at the time the application was made.
Deeming
(7) If one of the applicants for letters patent of amalgamation is a converted company in respect of which subsection 407(4) applies, a company to which subsection 407(5) applies or an insurance holding company to which subsection 407(6) applies and the letters patent of amalgamation are issued, the amalgamated company is deemed to be a converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies, as the case may be. 392. The Act is amended by adding the following after section 251:
Court enforcement
251.1 (1) If a company or society, or any director, officer, employee or agent of a company or society, is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the company or society, or the director, officer, employee or agent, to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on the application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
1997, c. 15, s. 226(1)
393. (1) The portion of subsection 254(1) of the Act before paragraph (a) is replaced by the following:
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254. (1) Except in accordance with this section or an order made under subsection 678.5(1), a company or society shall not (2) Subsection 254(2) of the Act is amended by adding the following after paragraph (a.1): (a.2) transfer all or any portion of its policies to any body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance being transferred; (a.3) cause itself to be reinsured, on an assumption basis, against all or any portion of the risks undertaken by it by any body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance to be reinsured if the Superintendent has entered into satisfactory arrangements concerning the reinsurance with (i) the appropriate official or public body responsible for the supervision of the body corporate, (ii) the body corporate, or (iii) the appropriate official or public body and the body corporate; 394. Section 257 of the Act is amended by adding the following after subsection (7):
When section does not apply
(8) This section does not apply if the transfer or reinsurance is made under an order made under subsection 678.5(1). 395. Section 262 of the Act is amended by adding the following after subsection (5):
Electronic access
(5.1) A company may make the information contained in records referred to in subsection 261(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time. 396. Subsection 268(1) of the Act is replaced by the following:
2001 Location and processing of information
Institutions f 268. (1) Subject to subsection (3), a company shall maintain and process in Canada information or data relating to the preparation and maintenance of the records referred to in section 261 unless the Superintendent has, subject to any terms and conditions that the Superintendent considers appropriate, exempted the company from the application of this section. 397. Subsection 271(3) of the Act is replaced by the following:
Application of certain provisions
(3) Subsections 262(5) and (5.1) and sections 263 and 265 to 268 apply, with any modifications that the circumstances require, in respect of a central securities register. 398. (1) The portion of paragraph 331(3)(b) of the Act before subparagraph (i) is replaced by the following: (b) a list of the subsidiaries of the company, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 499 or pursuant to a realization of security in accordance with section 500 and which the company would not otherwise be permitted to hold, showing, with respect to each subsidiary, (2) Section 331 of the Act is amended by adding the following after subsection (5):
Regulations
(6) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(b).
1997, c. 15, s. 235
399. Section 335 of the Act is replaced by the following:
Copy to Superintendent
335. (1) Subject to subsection (2), a company shall send to the Superintendent a copy of the documents referred to in subsections 331(1) and (3) not later than twenty-one days before the date of each annual meeting of shareholders and policyholders of the company.
Later filing
(2) If a company’s shareholders and policyholders sign a resolution under paragraph 158(1)(b) in lieu of an annual meeting, the company shall send a copy of the documents referred to in subsections 331(1) and (3) to the
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Superintendent not later than thirty days after the signing of the resolution. 400. (1) Subparagraph 338(2)(b)(iii) of the French version of the Act is replaced by the following: (iii) soit a été séquestre, séquestre-gérant, liquidateur ou syndic de faillite de toute entité du groupe dont fait partie la société dans les deux ans précédant la date de la proposition de sa nomination au poste de vérificateur, sauf si l’entité est une filiale de la société acquise conformément à l’article 499 ou dont l’acquisition découle de la réalisation d’une sûreté en vertu de l’article 500. (2) Subsection 338(3) of the Act is replaced by the following: Notice of designation
(3) Within fifteen days after the appointment of a firm of accountants as auditor of a company, the company and the firm of accountants shall jointly designate a member of the firm who meets the qualifications described in subsection (1) to conduct the audit of the company on behalf of the firm and the company shall forthwith notify the Superintendent in writing of the designation. (3) Subsection 338(4) of the French version of the Act is replaced by the following:
Remplacement d’un membre désigné
(4) Si, pour une raison quelconque, le membre désigné cesse de remplir ses fonctions, la société et le cabinet de comptables peuvent désigner conjointement un autre membre qui remplit les conditions du paragraphe (1); la société en avise sans délai par écrit le surintendant.
1993, c. 34, s. 79; 1997, c. 15, s. 241; 1999, c. 1, s. 7
401. Subsections 407(3) to (5) of the Act are replaced by the following:
Exemption
(3) On application by a company, other than a converted company in respect of which subsection (4) or (11) applies or a company to which subsection (5) or (12) applies, the Superintendent may exempt from the application of subsection (1) and section 408 any class of non-voting shares of the company if
Institutions f (a) the aggregate book value of the shares of the class is not more than 30 per cent of the aggregate book value of all the outstanding shares of the company; or (b) in the case of a mutual company, the aggregate book value of the shares of the class is not more than 30 per cent of the aggregate book value of all the outstanding shares of the company and the surplus of the company.
Limitations on share holdings
(4) Despite subsection (1), no person may be a major shareholder of a converted company having an aggregate of surplus and minority interests of five billion dollars or more according to its last annual statement dated before the effective date of the letters patent of conversion of the converted company.
Exception
(5) Subsection (4) does not apply to a widely held company that controls, within the meaning of paragraph 3(1)(d), a converted company if it (a) controlled the converted company on the day on which the letters patent of conversion that gave effect to the conversion of the converted company became effective and it has continued to control, within the meaning of that paragraph, the converted company since that day; or (b) acquired control, within the meaning of that paragraph, of the converted company under section 28.1 or 28.2 and it has continued to control, within the meaning of that paragraph, the converted company since the day it acquired control.
Exception — widely held insurance holding company
(6) Subsection (4) does not apply to a widely held insurance holding company that controls, within the meaning of paragraph 3(1)(d), the converted company if (a) the insurance holding company acquired control, within the meaning of that paragraph, of the converted company or of the company to which subsection (5) applies, as the case may be, under section 714 or 715 and the insurance holding company has continued to control, within the meaning of that paragraph, the converted company since the day the insurance holding company acquired control; or
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(b) the converted company was a subsidiary of the company to which subsection (5) applies that was continued under section 721 as the insurance holding company and the insurance holding company has continued to control, within the meaning of paragraph 3(1)(d), the converted company since the day it came into existence as an insurance holding company. Exception — other entities
(7) Subsection (4) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the converted company if the entity is controlled, within the meaning of paragraph 3(1)(d), by a company to which subsection (5) applies, or by an insurance holding company to which subsection (6) applies, that is permitted under that subsection to be a major shareholder of the converted company.
Exception
(8) The Minister may, at any time after the day that is two years after December 31, 1999, by order, determine that subsection (4) no longer applies in respect of any particular company.
Limitation on share holdings
(9) Despite subsection (1), no person may be a major shareholder of a company to which subsection (5) applies.
Exception
(10) Subsection (9) does not apply to a widely held insurance holding company that controls, within the meaning of paragraph 3(1)(d), a company to which subsection (5) applies if the insurance holding company acquired control, within the meaning of that paragraph, of the company under section 714 or 715 and the insurance holding company has continued to control, within the meaning of that paragraph, the company since the day the insurance holding company acquired control.
Limitations on share holdings
(11) Despite subsection (1), until a day that is two years after December 31, 1999, no person may have a significant interest in any class of shares of a converted company having an aggregate of surplus and minority interests in an amount that is one billion dollars or more but less than five billion dollars, according to its last annual statement dated before the effective date of the letters patent of conversion of the converted company.
Exception
Institutions f
(12) Subsection (11) does not apply to a company if no person has a significant interest in any class of shares of the company and the company controls, within the meaning of paragraph 3(1)(d), the converted company if it (a) controlled the converted company on the day on which the letters patent of conversion that gave effect to the conversion of the converted company became effective and it has continued to control, within the meaning of that paragraph, the converted company since that day; or (b) acquired control, within the meaning of that paragraph, of the converted company under section 28.1 or 28.2 and it has continued to control, within the meaning of that paragraph, the converted company since the day it acquired control.
Exception — insurance holding company
(13) Subsection (11) does not apply to an insurance holding company if no person has a significant interest in any class of shares of the insurance holding company and the insurance holding company controls, within the meaning of paragraph 3(1)(d), the converted company if (a) the insurance holding company acquired control, within the meaning of that paragraph, of the converted company or of the company to which subsection (12) applies, as the case may be, under section 714 or 715 and the insurance holding company has continued to control, within the meaning of that paragraph, the converted company since the day the insurance holding company acquired control; or (b) the converted company was a subsidiary of the company to which subsection (12) applies that was continued under section 721 as the insurance holding company and the insurance holding company has continued to control, within the meaning of that paragraph, the converted company since the day it came into existence as an insurance holding company.
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Exception — other entities
(14) Subsection (11) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the converted company if the entity is controlled, within the meaning of that paragraph, by a company to which subsection (12) applies, or by an insurance holding company to which subsection (13) applies, that is permitted under that subsection to have a significant interest in any class of shares of the converted company.
Limitation on share holdings
(15) Despite subsection (1), no person may have a significant interest in any class of shares of a company to which subsection (12) applies.
Exception
(16) Subsection (15) does not apply to an insurance holding company that controls, within the meaning of paragraph 3(1)(d), a company to which subsection (12) applies if (a) no person has a significant interest in any class of shares of the insurance holding company; and (b) the insurance holding company acquired control, within the meaning of that paragraph, under section 714 or 715 of the company to which subsection (12) applies and the insurance holding company has continued to control, within the meaning of that paragraph, the company since the day the insurance holding company acquired control.
Deeming
(17) For the purposes of this Act, if the Minister makes an order under subsection (8) to the effect that subsection (4) no longer applies in respect of a particular company, (a) the particular company is deemed, as of the effective date of the order, to no longer be a company in respect of which subsection (4) applies; (b) a widely held company that controls, within the meaning of paragraph 3(1)(d), the particular company in the circumstances referred to in subsection (5) is deemed, as of the effective date of the order, to no longer be a company to which subsection (5) applies; and
Institutions f (c) a widely held insurance holding company that controls, within the meaning of paragraph 3(1)(d), the particular company in the circumstances referred to in subsection (6) is deemed, as of the effective date of the order, to no longer be an insurance holding company to which subsection (6) applies.
Deeming
(18) For the purposes of this Act, after the day that is two years after December 31, 1999, (a) a converted company having an aggregate of surplus and minority interests in an amount that is one billion dollars or more but less than five billion dollars, according to its last annual statement dated before the effective date of the letters patent of conversion of the converted company is deemed to no longer be a company in respect of which subsection (11) applies; (b) a company that controls, within the meaning of paragraph 3(1)(d), a converted company referred to in paragraph (a) in the circumstances referred to in subsection (12) is deemed to no longer be a company to which subsection (12) applies; and (c) an insurance holding company that controls, within the meaning of paragraph 3(1)(d), a converted company referred to in paragraph (a) in the circumstances referred to in subsection (13) is deemed to no longer be an insurance holding company to which subsection (13) applies. 402. The Act is amended by adding the following after section 407:
Life companies — major shareholder
407.01 (1) If a converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies controls a life company and a person becomes a major shareholder of the life company or of any entity that also controls the life company, the converted company or company, as the case may be, must do all things necessary to ensure that, on the day that is one year after the person became a major shareholder of the life company or entity that controls the life company,
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(a) the converted company or the company no longer controls the life company; or (b) the life company or the entity that controls the life company does not have any major shareholder other than the converted company or the company, as the case may be, or any entity that the converted company or the company controls. Exemption
(2) Subsection (1) does not apply in respect of a life company with equity of less than two hundred and fifty million dollars, or any other amount that may be prescribed.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the converted company or the company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Life companies — major shareholder
407.011 (1) Despite subsection 407.01(1), if a converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies controls a life company in respect of which subsection 407.01(1) does not apply by reason of subsection 407.01(2) and the equity of the life company reaches two hundred and fifty million dollars or more or any other amount that is prescribed and on the day the equity of the life company reaches two hundred and fifty million dollars or more, or the prescribed amount, as the case may be, a person is a major shareholder of the life company or of any entity that also controls the life company, the converted company or company must do all things necessary to ensure that, on the day that is three years after that day, (a) the converted company or company no longer controls the life company; or (b) the life company or the entity that controls the life company does not have any major shareholder other than the converted company or the company or any entity that the converted company or company controls.
Institutions f
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the converted company or the company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Life companies — significant interest
407.02 (1) If a converted company in respect of which subsection 407(11) applies or a company to which subsection 407(12) applies controls a life company and a person acquires a significant interest in any class of shares of the life company or of any entity that also controls the life company, the converted company or company, as the case may be, must do all things necessary to ensure that, on the day that is one year after the person acquired the significant interest in the class of shares of the life company or entity that controls the life company, (a) the converted company or the company no longer controls the life company; or (b) no person has a significant interest in any class of shares of the life company or the entity that controls the life company, other than the converted company or the company, as the case may be, or any entity that the converted company or the company controls.
Exemption
(2) Subsection (1) does not apply in respect of a life company with equity of less than two hundred and fifty million dollars, or any other amount that may be prescribed.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the converted company or the company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Prohibition against significant interest
407.03 (1) No person who has a significant interest in any class of shares of a widely held converted company in respect of which subsection 407(4) applies or of a widely held company to which subsection 407(5) applies may have a significant interest in any class of shares of a subsidiary of the converted compa���
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ny or company, as the case may be, that is a life company or an insurance holding company.
Prohibition against significant interest
(2) No person who has a significant interest in any class of shares of a life company may have a significant interest in any class of shares of (a) a widely held converted company in respect of which subsection 407(4) applies that controls the life company; (b) a widely held company to which subsection 407(5) applies that controls the life company; or (c) a widely held insurance holding company to which subsection 407(6) applies that controls the life company. 403. The Act is amended by adding the following after section 407.1:
Prohibition against control
407.2 (1) Despite section 407.1, no person shall control, within the meaning of paragraph 3(1)(d), a converted company in respect of which subsection 407(4) or (11) applies or a company to which subsection 407(5) or (12) applies.
Exception
(2) Subsection (1) does not apply to a company to which subsection 407(5) or (12) applies or to an insurance holding company to which subsection 407(6) or (13) applies that is permitted to control, within the meaning of paragraph 3(1)(d), under those subsections, the converted company.
Exception
(2.1) Subsection (1) does not apply to an insurance holding company to which subsection 407(10) or (16) applies that is permitted to control, within the meaning of paragraph 3(1)(d), under those subsections, the company.
Exception — other entities
(3) Subsection (1) does not apply to an entity that controls, within the meaning of paragraph 3(1)(d), the converted company or company, as the case may be, if the entity is controlled, within the meaning of that paragraph, by a company to which subsection
Institutions f 407(5) or (12) applies, or an insurance holding company to which subsection 407(6) or (13) applies, that is permitted to be a major shareholder of the converted company or company, as the case may be, or to have a significant interest in any class of shares of the converted company or company, as the case may be.
Loss of control
(4) Despite subsections (1) and 407(4), if the converted company referred to in subsection (1) is a converted company in respect of which subsection 407(4) applies, a company to which subsection 407(5) applies or an insurance holding company to which subsection 407(6) applies may be a major shareholder of the converted company and cease to control, within the meaning of paragraph 3(1)(d), the converted company if the company or the insurance holding company, as the case may be, has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the converted company on the expiration of the day specified in the agreement.
Exception
(4.1) Despite subsections (1) and 407(9), if the company referred to in subsection (1) is a company to which subsection 407(5) applies, an insurance holding company to which subsection 407(6) applies may be a major shareholder of the company and cease to control, within the meaning of paragraph 3(1)(d), the company if the insurance holding company has entered into an agreement with the Minister to do all things necessary to ensure that it is not a major shareholder of the company on the expiration of the day specified in the agreement.
Extension
(5) If general market conditions so warrant and the Minister is satisfied that the company or the insurance holding company, as the case may be, has used its best efforts to be in compliance with subsection (4) or (4.1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Loss of control
(6) Despite subsections (1) and 407(11), if the converted company referred to in subsection (1) is a converted company in respect of which subsection 407(11) applies, a company
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to which subsection 407(12) applies or an insurance holding company to which subsection 407(13) applies may have a significant interest in a class of shares of the converted company and cease to control, within the meaning of paragraph 3(1)(d), the converted company if the company or the insurance holding company, as the case may be, has entered into an agreement with the Minister to do all things necessary to ensure that it does not have a significant interest in any class of shares of the converted company on the expiration of the day specified in the agreement. Exception
(6.1) Despite subsections (1) and 407(15), if the company referred to in subsection (1) is a company to which subsection 407(12) applies, an insurance holding company to which subsection 407(13) applies may have a significant interest in a class of shares of the company and cease to control, within the meaning of paragraph 3(1)(d), the company if the insurance holding company has entered into an agreement with the Minister to do all things necessary to ensure that it does not have a significant interest in any class of shares of the company on the expiration of the day specified in the agreement.
Extension
(7) If general market conditions so warrant and the Minister is satisfied that the company or the insurance holding company, as the case may be, has used its best efforts to be in compliance with subsection (6) or (6.1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection. 404. Subsections 409(1) to (3) of the Act are replaced by the following:
Where approval not required
409. (1) Despite subsections 407(1) and (2) and section 408, the approval of the Minister is not required in respect of a company, other than a converted company in respect of which subsection 407(4) applies or a company to which subsection 407(5) applies, if a person with a significant interest in a class of shares of the company or an entity controlled by a person with a significant interest in a class of shares of the company purchases or otherwise acquires shares of that class, or acquires
Institutions f control of any entity that holds any share of that class, and the number of shares of that class purchased or otherwise acquired, or the acquisition of control of the entity, as the case may be, would not increase the significant interest of the person in that class of shares of the company to a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever is applicable.
Percentage
(2) Subject to subsection (3), for the purposes of subsection (1), the percentage is 5 percentage points in excess of the significant interest of the person in that class of shares of the company on the later of June 1, 1992 and the day of the most recent purchase or acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the company, or of control of an entity that held shares of that class of shares of the company, for which approval was given by the Minister.
When approval not required
(3) If a person has a significant interest in a class of shares of a company and the person’s percentage of that class has decreased after the date of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the company, or of control of an entity that held shares of that class of shares of the company, for which approval was given by the Minister, the percentage for the purposes of subsection (1) is the percentage that is the lesser of (a) 5 percentage points in excess of the significant interest of the person in that class of shares of the company on the later of June 1, 1992 and the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the company, or of control of an entity that held shares of that class of shares of the company, for which approval was given by the Minister, and
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(b) 10 percentage points in excess of the lowest significant interest of the person in that class of shares of the company at any time after the later of June 1, 1992 and the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the company, or of control of an entity that held shares of that class of shares of the company, for which approval was given by the Minister. 405. Subsection 410(1) of the Act is replaced by the following: When approval not required
410. (1) Despite subsections 407(1) and (2) and section 408, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the company to increase its capital and shares of the company are issued and acquired in accordance with the terms and conditions, if any, that may be specified in the order; or (b) a person who controls, within the meaning of paragraph 3(1)(a), the company acquires additional shares of the company.
Exception
(1.1) Paragraph (1)(a) does not apply in respect of a converted company in respect of which subsection 407(4) or (11) applies or a company to which subsection 407(5) or (12) applies. 406. Section 411 of the Act is replaced by the following:
Public holding requirement
411. (1) Every company shall, from and after the day determined under this section in respect of that company, have, and continue to have, voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the company in respect of the voting shares of the company or by any
Institutions f entity that is controlled by a person who is a major shareholder of the company in respect of such shares.
Determination of day
(2) If the company has equity of one billion dollars or more on the day it comes into existence, the day referred to in subsection (1) is the day that is three years after that day and, in the case of any other company, the day referred to in subsection (1) is the day that is three years after the day of the first annual meeting of the shareholders and policyholders of the company held after the equity of the company first reaches one billion dollars.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that a company has used its best efforts to be in compliance with this section on the day determined under subsection (2), the Minister may specify a later day as the day from and after which the company must comply with subsection (1). 407. Subsection 412(1) of the Act is replaced by the following:
Limit on assets
412. (1) Unless an exemption order with respect to the company is granted under section 414, if a company fails to comply with section 411 in any month, the Minister may, by order, require the company not to have, until it complies with that section, average total assets in any three month period ending on the last day of a subsequent month exceeding the company’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order. 408. (1) The portion of subsection 414(1) of the Act before paragraph (c) is replaced by the following:
Exemption by order of Minister
414. (1) An entity that controls a company and that is (a) an insurance holding company that is in compliance with section 938, (b) a widely held bank, (b.1) a bank that would be in compliance with section 411 if it were a company, (b.2) a widely held bank holding company,
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(b.3) a bank holding company that would be in compliance with section 411 if it were a company,
(2) Paragraph 414(1)(e) of the Act is replaced by the following: (e) an association to which the Cooperative Credit Associations Act applies, (3) Paragraph 414(5)(a) of the Act is replaced by the following: (a) the entity that applied for the exemption order ceases to control the company; 409. Section 416 of the Act is replaced by the following: Acquisition of control permitted
416. (1) Subject to subsection (2) and sections 408 and 417, section 411 does not apply in respect of a company if a person acquires control of a company with equity of one billion dollars or more through the purchase or other acquisition of all or any number of the shares of the company by the person or by any entity controlled by the person.
Undertaking required
(2) Subsection (1) applies only if the person provides the Minister with an undertaking satisfactory to the Minister to do all things necessary so that, within three years after the acquisition, or any other period that the Minister may specify, the company has voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the company in respect of the voting shares of the company or by any entity that is controlled by a person who is a major shareholder of the company in respect of such shares.
Institutions f
1997, c. 15, s. 246
410. (1) The portion of subsection 418(1) of the Act before paragraph (a) is replaced by the following:
Restriction on voting rights
418. (1) If, with respect to any company, a particular person contravenes subsection 407(1), (4), (9), (11) or (15) or section 407.03, 407.1 or 407.2 or fails to comply with an undertaking referred to in subsection 416(2) or with any term or condition imposed under section 421, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights
1997, c. 15, s. 246
(2) Subsection 418(2) of the Act is replaced by the following:
Subsection (1) ceases to apply
(2) Subsection (1) ceases to apply in respect of a person when, as the case may be, (a) the shares to which the contravention relates have been disposed of; (b) the person ceases to control the company within the meaning of paragraph 3(1)(d); (c) if the person failed to comply with an undertaking referred to in subsection 416(2), the company complies with section 411; or (d) if the person failed to comply with a term or condition imposed under section 421, the person complies with the term or condition.
Saving
(3) Despite subsection (1), if a person contravenes subsection 407(4) by reason only that, as a result of an event that has occurred and is continuing and is not within the control of the person, shares of the converted company beneficially owned by the person or by any entity controlled by the person acquire voting rights in such number so as to cause the person to be a major shareholder of the converted company, the Minister may, after consideration of the circumstances, permit the person and any entity controlled by the person to exercise voting rights, in person or by proxy, in respect of any class of voting shares of the converted company beneficially owned by them that do not in aggregate exceed 20 per cent of the voting rights attached to that class of voting shares.
��� Saving
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(4) Despite subsection (1), if a person contravenes subsection 407(9) by reason only that, as a result of an event that has occurred and is continuing and is not within the control of the person, shares of the company beneficially owned by the person or by any entity controlled by the person acquire voting rights in such number so as to cause the person to be a major shareholder of the company, the Minister may, after consideration of the circumstances, permit the person and any entity controlled by the person to exercise voting rights, in person or by proxy, in respect of any class of voting shares of the company beneficially owned by them that do not in aggregate exceed 20 per cent of the voting rights attached to that class of voting shares. 411. Section 419 of the Act is replaced by the following:
Application for approval
419. (1) An application for an approval of the Minister required under this Part must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
Applicant
(2) If, with respect to any particular transaction, this Part applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons. 412. Subsection 420(1) of the Act is replaced by the following:
Matters for consideration
420. (1) Subject to subsection (1.1), if an application for an approval under section 407 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the company; (c) the business record and experience of the applicant or applicants;
Institutions f (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) if the company is a converted company in respect of which the Minister has issued an order under subsection 407(8) or a converted company in respect of which subsection 407(11) applied at any time, or a company that controls, within the meaning of paragraph 3(1)(d), such a converted company, the opinion of the Superintendent regarding the extent to which the corporate structure of the applicant or applicants and their affiliates may affect the supervision and regulation of the company, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the company and its affiliates, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the company; (g) the impact of any integration of the businesses and operations of the applicant or applicants with those of the company on the conduct of those businesses and operations; and (h) the best interests of the financial system in Canada.
Exception
(1.1) Subject to subsection 407.2(1), the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding (a) more than 10 per cent but no more than 20 per cent of any class of the outstanding voting shares of a converted company in respect of which subsection 407(4) applies or of a company to which subsection 407(5) applies; or
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(b) more than 10 per cent but no more than 30 per cent of any class of the outstanding non-voting shares of such a converted company or company. 413. Section 421 of the Act is replaced by the following: Terms and conditions
421. The Minister may impose any terms and conditions in respect of an approval given under this Part that the Minister considers necessary to ensure compliance with any provision of this Act. 414. (1) Subsection 422(1) of the Act is replaced by the following:
Certifying receipt of application
422. (1) If, in the opinion of the Superintendent, an application filed under this Part contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent. (2) Subsection 422(2) of the English version of the Act is replaced by the following:
Incomplete application
(2) If, in the opinion of the Superintendent, an application filed under this Part is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application.
1996, c. 6, s. 78
415. (1) Subsection 432(1) of the Act is replaced by the following:
Disposition of shareholdings
432. (1) If, with respect to any company, a person contravenes subsection 407(1), (4), (9), (11) or (15) or section 407.03, 407.1 or 407.2 or fails to comply with an undertaking referred to in subsection 416(2) or with any term or condition imposed under section 421, the Minister may, if the Minister considers it in the public interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the bank beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order.
Institutions f (2) Subsections 432(3) and (4) of the Act are replaced by the following:
Appeal
(3) Any person with respect to whom a direction has been made under subsection (1) may, within thirty days after the date of the direction, appeal the matter in accordance with section 1020.
1997, c. 15, s. 247
416. (1) The portion of subsection 441(1) of the Act before paragraph (e) is replaced by the following:
Additional activities
441. (1) In addition, a company may (a) act as an agent for vendors, purchasers, mortgagors, mortgagees, lessors or lessees of real property and provide consulting or appraisal services in respect of real property; (b) hold, manage and otherwise deal with real property; (c) provide information processing services in Canada that the company has developed for its own use and that are an integral part of the company’s operations to entities in which the company has a substantial investment that do not provide information processing services to other entities; (d) outside Canada, or with the prior written approval of the Minister, in Canada, engage in any of the following activities, namely, (i) collecting, manipulating and transmitting (A) information that is primarily financial or economic in nature, (B) information that relates to the business of a permitted entity, as defined in subsection 490(1), or (C) any other information that the Minister may, by order, specify, (ii) providing advisory or other services in the design, development or implementation of information management systems, (iii) designing, developing or marketing computer software, and (iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subpara���
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(d.1) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used (i) to provide information that is primarily financial or economic in nature, (ii) to provide information that relates to the business of a permitted entity, as defined in subsection 490(1), or (iii) for a prescribed purpose or in prescribed circumstances;
1997, c. 15, s. 247(4)
(2) Subsection 441(1.1) of the Act is replaced by the following:
Additional activities — life companies
(1.1) A life company may engage under prescribed terms and conditions, if any are prescribed, in specialized business management or advisory services.
1997, c. 15, s. 247(5)
(3) Paragraphs 441(4)(a) and (b) of the Act are replaced by the following: (a) respecting what a company may or may not do with respect to the carrying on of the activities referred to in any of paragraphs (1)(d) and (d.1) and subsection (1.1); (b) imposing terms and conditions in respect of (i) the provision of services referred to in paragraphs (1)(a) and 440(2)(b), and (ii) the carrying on of the activities referred to in any of paragraphs (1)(d) and (d.1) and subsection (1.1); and (c) respecting the circumstances in which companies may be exempted from the requirement to obtain the approval of the
Institutions f Minister before carrying on a particular activity referred to in paragraph (1)(d) or (d.1). 417. (1) Paragraph 442(1)(a) of the Act is replaced by the following: (a) act as agent for any person in respect of the provision of any service that is provided by a financial institution, a permitted entity as defined in subsection 490(1) or a prescribed entity; (2) Paragraph 442(1)(c) of the Act is replaced by the following: (c) refer any person to any such financial institution or entity. 418. Section 470 of the Act is replaced by the following:
Policies re security interests
470. (1) The directors of a company shall establish and the company shall adhere to policies regarding the creation of security interests in property of the company to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests.
Order to amend policies
(2) The Superintendent may, by order, direct a company to amend its policies as specified in the order.
Compliance
(3) A company shall comply with an order made under subsection (2) within the time specified in the order.
Regulations and guidelines
470.1 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a company of security interests in its property to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests.
Exception
470.2 Sections 470 and 470.1 do not apply in respect of a security interest created by a company to secure an obligation of the company to the Bank of Canada. 419. Subsection 472(1) of the Act is replaced by the following:
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472. (1) Except with the approval of the Superintendent, a company may not be a general partner in a limited partnership or a partner in a general partnership. 420. (1) The portion of subsection 474(1) of the Act before paragraph (a) is replaced by the following:
Restriction on guarantees
474. (1) A life company shall not guarantee on behalf of any person the payment or repayment of any sum of money unless
1997, c. 15, s. 254
(2) Subsection 474(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de la société garante, celle-ci peut garantir une somme qui n’est pas fixe. 421. Section 475 of the Act is replaced by the following:
Restriction on leasing
475. A life company shall not engage in Canada in any personal property leasing activity in which a financial leasing entity, within the meaning of subsection 490(1), is not permitted to engage.
1997, c. 15, s. 255
422. Subsection 477(1) of the Act is replaced by the following:
Restriction on guarantees
477. (1) A property and casualty company shall not guarantee on behalf of any person the payment or repayment of any sum of money unless the person on whose behalf the company has undertaken to guarantee the payment or repayment is a subsidiary of the company and has an unqualified obligation to reimburse the company for the full amount of the payment or repayment to be guaranteed. 423. Section 479 of the Act, as enacted by section 256 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is replaced by the following:
2001 Definition of ‘‘cost of borrowing’’
Institutions f 479. For the purposes of this section and sections 479.1 to 487, ‘‘cost of borrowing’’ means, in respect of a loan or an advance on the security or against the cash surrender value of a policy made by a company, (a) the interest or discount applicable to the loan or advance; (b) any amount charged in connection with the loan or advance that is payable by the borrower to the company; and (c) any charge prescribed to be included in the cost of borrowing. For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. 424. (1) Sections 486 and 487 of the Act are replaced by the following: Complaints
Procedures for dealing with complaints
486. (1) A company shall (a) establish procedures for dealing with complaints made by persons having requested or received products or services in Canada from the company; (b) designate an officer or employee of the company to be responsible for implementing those procedures; and (c) designate one or more officers or employees of the company to receive and deal with those complaints.
Procedures to be filed with Commissioner
(2) A company shall file with the Commissioner a copy of its procedures established under paragraph (1)(a).
Obligation to be member of complaints body
486.1 In any province, if there is no law of the province that makes a company subject to the jurisdiction of an organization that deals with complaints made by persons having requested or received products or services in the province from a company, the company shall be a member of an organization that is not controlled by it and that deals with those complaints that have not been resolved to the satisfaction of the persons under procedures established by companies under paragraph 486(1)(a).
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Information on contacting Agency
487. (1) A company shall, in the prescribed manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about an arrangement referred to in subsection 482(3), a payment, credit or charge card, the disclosure of or manner of calculating the cost of borrowing in respect of a loan or an advance on the security or against the cash surrender value of a policy, or about any other obligation of the company under a consumer provision.
Report
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by companies pursuant to paragraph 486(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a company. (2) If this section comes into force before paragraph 486(1)(a) and subsection 487(1) of the Act, as enacted, respectively, by sections 260 and 261 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, come into force, then sections 260 and 261 of that Act are repealed. 425. The Act is amended by adding the following after section 489:
Public accountability statements
489.1 (1) A company with equity of $1 billion or more shall, in accordance with regulations made under subsection (4), annually publish a statement describing the contribution of the company and its prescribed affiliates to the Canadian economy and society.
Institutions f
Filing
(2) A company shall, in the manner and at the time prescribed, file a copy of the statement with the Commissioner.
Provision of statement to public
(3) A company shall, in the manner and at the time prescribed, disclose the statement to its customers and to the public.
Regulations
(4) The Governor in Council may make regulations prescribing (a) the name, contents and form of a statement referred to in subsection (1) and the time in which it must be prepared; (b) affiliates of a company referred to in subsection (1); (c) the manner and time in which a statement must be filed under subsection (2); and (d) the manner and time in which a statement mentioned in subsection (3) is to be disclosed, respectively, to a company’s customers and to the public.
Regulations re disclosure
489.2 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by companies or any prescribed class of companies, including regulations respecting (a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them, (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which, and the persons to whom information is to be disclosed; and (c) the content and form of any advertisement by companies or any prescribed class
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of companies relating to any matter referred to in paragraph (a). 1991, c. 47, s. 760; 1993, c. 34, ss. 81(F), 82, 83; 1997, c. 15, ss. 264 to 274; 1999, c. 28, ss. 122 to 124
426. Sections 490 to 513 of the Act are replaced by the following:
Definitions
490. (1) The definitions in this subsection apply in this Part.
‘‘commercial loan’’ « prêt commercial »
‘‘commercial loan’’ means (a) any loan made or acquired by a company, other than (i) a loan to a natural person in an amount of two hundred and fifty thousand dollars or less, (ii) a loan to the Government of Canada, the government of a province, a municipality, or to any agency thereof, or to the government of a foreign country or any political subdivision thereof, or any agency thereof, or to a prescribed international agency, (iii) a loan that is guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 75 % of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the
Institutions f property, does not exceed 75 % of the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (v) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and
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Institutions f political subdivision thereof, or by any agency thereof, or by a prescribed international agency, (iii) debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) debt obligations that are widely distributed, as that expression is defined by the regulations, or (v) debt obligations of an entity controlled by the company; and (c) an investment in shares of a body corporate or ownership interests in an unincorporated entity, other than (i) shares or ownership interests that are widely distributed, as that expression is defined by the regulations, (ii) shares or ownership interests of an entity controlled by the company, or (iii) participating shares.
‘‘factoring entity’’ « entité s’occupant d’affacturage »
‘‘factoring entity’’ means a factoring entity as defined in the regulations.
‘‘finance entity’’ « entité s’occupant de financement »
‘‘finance entity’’ means a finance entity as defined in the regulations.
‘‘financial leasing entity’’ « entité s’occupant de crédit-bail »
‘‘financial leasing entity’’ means an entity (a) the activities of which are limited to the financial leasing of personal property and such related activities as are prescribed and whose activities conform to such restrictions and limitations thereon as are prescribed; and (b) that, in conducting the activities referred to in paragraph (a) in Canada, does not (i) direct its customers or potential customers to particular dealers in the leased property or the property to be leased,
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Financial In (ii) enter into lease agreements with persons in respect of any motor vehicle having a gross vehicle weight, as that expression is defined by the regulations, of less than twenty-one tonnes, or (iii) enter into lease agreements with natural persons in respect of personal household property, as that expression is defined by the regulations.
‘‘loan’’ « prêt » ou « emprunt »
‘‘loan’’ includes an acceptance, advance on the security of or against the cash surrender value of a policy, endorsement or other guarantee, a deposit, a financial lease, a conditional sales contract, a repurchase agreement and any other similar arrangement for obtaining funds or credit but does not include investments in securities.
‘‘motor vehicle’’ « véhicule à moteur »
‘‘motor vehicle’’ means a motorized vehicle designed to be used primarily on a public highway for the transportation of persons or things, but does not include (a) a fire-engine, bus, ambulance or utility truck; or (b) any other special purpose motorized vehicle that contains significant special features that make it suitable for a specific purpose.
‘‘mutual fund distribution entity’’ « courtier de fonds mutuels »
‘‘mutual fund distribution entity’’ means an entity whose principal activity is acting as a selling agent of units, shares or other interests in a mutual fund and acting as a collecting agent in the collection of payments for any such interests if (a) the proceeds of the sales of any such interests, less any sales commissions and service fees, are paid to the mutual fund; and (b) the existence of a sales commission and service fee in respect of the sale of any such interest is disclosed to the purchaser of the interest before the purchase of the interest.
‘‘mutual fund entity’’ « entité s’occupant de fonds mutuels »
‘‘mutual fund entity’’ means an entity
Institutions f (a) whose activities are limited to the investing of the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities; and (b) whose securities entitle their holders to receive, on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of its net assets, including a separate fund or trust account of the entity.
‘‘participating share’’ « action participante »
‘‘participating share’’ means a share of a body corporate that carries the right to participate in the earnings of the body corporate to an unlimited degree and to participate in a distribution of the remaining property of the body corporate on dissolution.
‘‘permitted entity’’ « entité admissible »
‘‘permitted entity’’ means an entity in which a company is permitted to acquire a substantial investment under section 495.
‘‘prescribed subsidiary’’ « filiale réglementaire »
‘‘prescribed subsidiary’’ means a subsidiary that is one of a prescribed class of subsidiaries.
‘‘specialized financing entity’’ « entité s’occupant de financement spécial »
‘‘specialized financing entity’’ means a specialized financing entity as defined in the regulations.
Members of a company’s group
(2) For the purpose of this Part, a member of a company’s group is any of the following: (a) an entity referred to in any of paragraphs 495(1)(a) to (f) that controls the company; (b) a subsidiary of the company or of an entity referred to in any of paragraphs 495(1)(a) to (f) that controls the company; (c) an entity in which the company, or an entity referred to in any of paragraphs 495(1)(a) to (f) that controls the company, has a substantial investment; or (d) a prescribed entity in relation to the company.
��� Exclusion of assets and liabilities of segregated funds
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(3) A reference in this Part to the assets or liabilities of a company does not include (a) assets of a segregated fund maintained pursuant to section 451; or (b) liabilities of the company under the policies and for the amounts in respect of which such a fund is maintained.
Nonapplication of Part
491. This Part does not apply in respect of (a) assets of a segregated fund maintained pursuant to section 451; (b) the holding of a security interest in real property, unless the security interest is prescribed under paragraph 509(a) to be an interest in real property; or (c) the holding of a security interest in securities of an entity. General Constraints on Investments
Investment standards
492. The directors of a company shall establish and the company shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments and loans to avoid undue risk of loss and obtain a reasonable return.
Restriction on control and substantial investments
493. (1) Subject to subsections (2) to (4), no company shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 495(1)(a) to (j), or of a prescribed entity, that controls or has a substantial investment in the entity; or (b) an acquisition of shares or ownership interests in the entity by
Institutions f (i) an entity referred to in any of paragraphs 495(1)(a) to (j), or a prescribed entity, that is controlled by the company, or (ii) an entity controlled by an entity referred to in any of paragraphs 495(1)(a) to (j), or a prescribed entity, that is controlled by the company.
Exception: temporary investments, realizations and loan workouts
(3) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 498; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 499; or (c) a realization of security permitted by section 500.
Exception: specialized financing regulations
(4) A life company may, subject to Part XI, acquire control of, or hold, acquire or increase a substantial investment in, an entity other than a permitted entity if it does so in accordance with regulations made under paragraph 494(d) concerning specialized financing.
Exception: uncontrolled event
(5) A company is deemed not to contravene subsection (1) if the company acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the company.
Regulations
494. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Part; (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a company and its prescribed
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subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) concerning specialized financing for the purposes of subsection 493(4).
Subsidiaries and Equity Investments Permitted investments
495. (1) Subject to subsections (6) to (8) and Part XI, a company may acquire control of, or acquire or increase a substantial investment in (a) a company or a society; (b) an insurance holding company; (c) a bank; (d) a bank holding company; (e) a body corporate to which the Trust and Loan Companies Act applies; (f) an association to which the Cooperative Credit Associations Act applies; (g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; (h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities.
2001 Permitted investments — life companies
Institutions f (2) Subject to subsections (3) and (6) to (8) and Part XI, a life company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a life company is permitted to engage in under subsection 440(2) or section 441 or 442, other than paragraph 441(1)(h); (b) acquiring or holding shares of, or ownership interests in, entities in which a company is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the company or any member of the company’s group: (i) the company, (ii) any member of the company’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a life company is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the life company or any member of the life company’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is
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Financial In provided by any other entity that is primarily engaged in the business of providing financial services;
(e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ in subsection 490(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction — life company
(3) A life company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a company is not permitted to engage in under any of sections 466, 469 and 475; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 440(2)(b); (c) activities that a company is not permitted to engage in under any regulation made under section 489 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the company, the company itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the company, the company itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (2) or 493(2), paragraph 493(3)(b) or (c) or subsection 493(4); or
Institutions f (e) any prescribed activity.
Permitted investments — property and casualty companies
(4) Subject to subsections (5) to (8) and Part XI, a property and casualty company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a property and casualty company is permitted to engage in under subsection 440(2) or section 441 or 442, other than paragraph 441(1)(h); (b) acquiring or holding shares of, or ownership interests in, entities in which a property and casualty company is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the company or any member of the company’s group: (i) the company, (ii) any member of the company’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a property and casualty company is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the property and casualty company or any member of the property and casualty company’s group, or
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Financial In (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services;
(e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ in subsection 490(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed. Restriction — property and casualty company
(5) A property and casualty company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (4)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a company is not permitted to engage in under any of sections 466, 469 and 478; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 440(2)(b); (c) any financial intermediary activity that exposes the entity to material market or credit risk, including the activities of a finance entity, a factoring entity and a financial leasing entity; (c.1) the activities of a specialized financing entity; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the company, the company itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the company, the company
Institutions f itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (4) or 493(2) or paragraph 493(3)(b) or (c); or (e) any prescribed activity.
Control
(6) Subject to subsection (10) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in any of paragraphs (1)(a) to (j), unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the company is permitted by regulations made under paragraph 501(a) to acquire or increase the substantial investment; (b) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the company is permitted by regulations made under paragraph 501(a) to acquire or increase the substantial investment; or (c) an entity whose business includes an activity referred to in paragraph (2)(b) or (4)(b), including a specialized financing entity, unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity,
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Financial In (ii) the company is permitted by regulations made under paragraph 501(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or (b) or an entity that is not a permitted entity.
Minister’s approval
(7) Subject to the regulations, a company may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in paragraphs (1)(g) to (i) from a person who is not a member of the company’s group; (b) acquire control of an entity referred to in paragraph (1)(j) or (6)(b), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the company’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d) or (4)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 441(1)(d) or (d.1); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f) or (4)(f).
Superintendent’s approval
(8) Subject to subsection (9) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (6)(b) and (c)
Institutions f unless the company obtains the approval of the Superintendent.
Exception
(9) Subsection (8) does not apply in respect of a particular transaction if (a) the company is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b) or (4)(b), other than a specialized financing entity; (b) the company is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (7) or is deemed to have approved it under subsection 496(1).
Control not required
(10) A company need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the company to control the entity.
Prohibition on giving up control in fact
(11) A company that, under subsection (6), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Giving up control
(12) A company that, under subsection (6), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if (a) the company is permitted to do so by regulations made under paragraph 501(c); or (b) the entity meets the conditions referred to in subparagraph (6)(c)(iii).
Subsections do not apply
(13) If a company controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsections (7) and (8) do not apply in respect of any subsequent increases by the company of its substantial investment in the
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entity so long as the company continues to control the entity. Approval for indirect investments
496. (1) If a company obtains the approval of the Minister under subsection 495(7) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 495(7) or the Superintendent under subsection 495(8) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the company is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
Approval for indirect investments
(2) If a company obtains the approval of the Superintendent under subsection 495(8) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the company is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
497. (1) If a company controls a permitted entity, other than an entity referred to in any of paragraphs 495(1)(a) to (f), the company shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If a company acquires control of an entity referred to in any of paragraphs 495(1)(g) to (j), the company shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
Institutions f
Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in any of paragraphs 495(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Part, a company shall not control a permitted entity, other than an entity referred to in any of paragraphs 495(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the company obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. Exceptions and Exclusions
Temporary investments in entity
498. (1) Subject to subsection (4), a company may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Transitional
(2) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company subsequently increases that substantial investment by way of a temporary investment, the company shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
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Extension
(3) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(4) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 495(7) is required, the company must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Indeterminate extension
(5) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 495(8) is required, the Superintendent may, in the case of any particular company that makes an application under this subsection, permit the company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
499. (1) Despite anything in this Part, if a company or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the company, or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the company may acquire
Institutions f (a) if the entity is a body corporate, all or any of the shares of the body corporate; (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates.
Obligation of company
(2) If a company acquires shares or ownership interests in an entity under subsection (1), the company shall, within five years after acquiring them, do all things necessary to ensure that the company does not control the entity or have a substantial investment in the entity.
Transitional
(3) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of an investment made under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(5) Despite anything in this Part, if a company has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms
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of the agreement between the company and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the company may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government. Time for holding shares
(6) If a company acquires any shares or ownership interests under subsection (5), the company may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(7) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 495, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Realizations
500. (1) Despite anything in this Act, a company may acquire (a) an investment in a body corporate, (b) an interest in an unincorporated entity, or (c) an interest in real property, if the investment or interest is acquired through the realization of a security interest held by the company or any of its subsidiaries.
Disposition
(2) Subject to subsection 77(2), if a company acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by the company or any of its subsidiaries, the company shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the
Institutions f case may be, to ensure that the company no longer controls the entity or has a substantial investment in the entity.
Transitional
(3) Despite subsection (2), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of a realization of a security interest under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(5) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 495, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Regulations restricting ownership
501. The Governor in Council may make regulations (a) for the purposes of subsection 495(6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the companies or other entities in respect of which that subsection does not apply, including prescribing companies or other entities on the basis of the activities they engage in;
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(b) for the purposes of subsection 495(7) or (8), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the companies or other entities in respect of which either of those subsections does not apply, including prescribing companies or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 495(12), permitting a company to give up control of an entity; and (d) restricting the ownership by a company of shares of a body corporate or of ownership interests in an unincorporated entity under sections 495 to 500 and imposing terms and conditions applicable to companies that own such shares or interests. Portfolio Limits Exclusion from portfolio limits
502. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by a company and any of its prescribed subsidiaries under section 499 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the company and its prescribed subsidiaries under sections 503 to 508 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
Extension
(2) The Superintendent may, in the case of any particular company, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
2001 Exception
Institutions f (3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 509 to be an interest in real property and (a) the company or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 509 to be an interest in real property; or (b) the company or the subsidiary acquired the investment or interest under section 499 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 509 to be an interest in real property. Commercial Lending by Life Companies
Lending limit: companies with regulatory capital of $25 million or less
503. Subject to section 504, a life company that has twenty-five million dollars or less of regulatory capital shall not, and shall not permit its prescribed subsidiaries to, make or acquire a commercial loan or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries exceeds, or the making or acquisition of the commercial loan or acquisition of control of the entity would cause the aggregate value of all commercial loans held by the company and its prescribed subsidiaries to exceed, 5 per cent of the total assets of the company.
Lending limit: regulatory capital over $25 million
504. A life company that has twenty-five million dollars or less of regulatory capital that is controlled by a financial institution that has the equivalent of more than twenty-five million dollars of regulatory capital or a life company that has more than twenty-five million dollars of regulatory capital may make or acquire commercial loans or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries would thereby exceed the limit set out in section 503 only with the prior approval in writing of the Superinten���
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dent and in accordance with any terms and conditions that the Superintendent may specify. Consumer and Commercial Lending by Property and Casualty Companies Lending limit — property and casualty companies
505. A property and casualty company shall not, and shall not permit its prescribed subsidiaries to, (a) make or acquire a commercial loan or a loan to a natural person, or (b) acquire control of a permitted entity that holds commercial loans or loans to natural persons if the aggregate value of all such loans held by the company and its prescribed subsidiaries exceeds, or the making or acquisition of the loan or the acquisition of control of the permitted entity would cause the aggregate value of all such loans held by the company and its prescribed subsidiaries to exceed, the prescribed percentage of the total assets of the company. Real Property
Limit on total property interest
506. A company shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the company or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the company in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Equities
Limits on equity acquisitions
507. A company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or
Institutions f (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the company has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the company has a substantial investment, beneficially owned by the company and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Aggregate Limit
Aggregate limit
508. A company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the company or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the company and its prescribed subsidiaries, and (d) all interests of the company in real property referred to in subparagraph (a)(iii)
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exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Miscellaneous Regulations
509. For the purposes of this Part, the Governor in Council may make regulations (a) defining the interests of a company in real property; (b) determining the method of valuing those interests; (c) exempting classes of companies from the application of sections 502 to 508; or (d) respecting the determination of an amount for the purpose of each of sections 506, 507 and 508.
Divestment order
510. (1) The Superintendent may, by order, direct a company to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Part.
Divestment order
(2) If, in the opinion of the Superintendent, (a) an investment by a company or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the company to control the body corporate or the unincorporated entity, or (b) the company or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the company, the entity it controls or the nominee, the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer controls the body corporate or unincorporated entity or has the ability to veto or other2001
Institutions f wise defeat any proposal referred to in paragraph (b).
Divestment order
(3) If (a) a company (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 497(1), (2) or (4), or (ii) is in default of an undertaking referred to in subsection 497(1) or (2) and the default is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 497(4) is in default of an undertaking referred to in subsection 497(4) and the default is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default, the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which a company has a substantial investment permitted by this Part.
Deemed temporary investment
511. If a company controls or has a substantial investment in an entity as permitted by this Part and the company becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 495(7) or (8), the company is deemed to have acquired, on the day the company becomes aware of the change, a temporary investment in respect of which section 498 applies.
��� Asset transactions
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512. (1) A company shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B�C where A is the value of the assets; B is the total value of all assets that the company and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of (a) an asset that is a debt obligation referred to in subparagraphs (b)(i) to (v) of the definition ‘‘commercial loan’’ in subsection 490(1); or (b) a transaction or series of transactions by a company with another financial institution as a result of the company’s participation in one or more syndicated loans with that financial institution.
Exception
(3) The approval of the Superintendent is not required if (a) the company sells assets under a sale agreement that is approved by the Minister under subsection 254(2); (b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 495(7) is required or the approval of the Superintendent under subsection 495(8) is required; or (c) the transaction has been approved by the Minister under subsection 715(1) of this Act or subsection 678(1) of the Bank Act.
2001 Value of assets
Institutions f (4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement.
Transitional
513. Nothing in this Part requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date;
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(c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date. But if the loan or investment would be precluded or limited by this Part, the amount of the loan or investment may not, except as provided in subsections 498(2), 499(3) and 500(3), be increased after that date.
1996, c. 6, s. 81
427. Section 515 of the Act is replaced by the following:
Adequacy of capital and liquidity — companies and societies
515. (1) A company and society shall, in relation to its operations, maintain adequate capital and adequate and appropriate forms of liquidity and shall comply with any regulations in relation to adequate capital and adequate and appropriate forms of liquidity.
Regulations and guidelines
(2) The Governor in Council may make regulations and the Superintendent may make guidelines respecting the maintenance by companies and societies of adequate capital and adequate and appropriate forms of liquidity.
Directives
(3) Notwithstanding that a company or society is complying with regulations or guidelines made under subsection (2), the Superintendent may, by order, direct the company or society to increase its capital or to provide additional liquidity in any forms and amounts that the Superintendent may require.
Compliance
(4) A company and society shall comply with an order made under subsection (3) within the time that the Superintendent specifies in the order. 428. (1) Subsection 519(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (d): (e) transactions approved by the Minister under subsection 715(1) of this Act or subsection 678(1) of the Bank Act; or
Institutions f (f) if a company is controlled by a widely held insurance holding company or a widely held bank holding company, transactions approved by the Superintendent that are entered as part of, or in the course of, a restructuring of the holding company or of any entity controlled by it.
1997, c. 15, s. 278
(2) Subsection 519(4) of the Act is replaced by the following:
Exception for holding body corporate
(4) A holding body corporate of a company is not a related party of the company if the holding body corporate is a Canadian financial institution that is referred to in any of paragraphs (a) to (d) of the definition ‘‘financial institution’’ in subsection 2(1). 429. The Act is amended by adding the following after section 528:
Transactions with holding companies
528.1 (1) Subject to subsection (2) and sections 528.2 and 528.3, if a widely held insurance holding company or a widely held bank holding company has a significant interest in any class of shares of a company, the company may enter into any transaction with the holding company or with any other related party of the company that is an entity in which the holding company has a substantial investment.
Policies and procedures
(2) The company shall adhere to policies and procedures established under subsection 204(3) when entering into the transaction.
Restriction
528.2 (1) If a company enters into a transaction with a related party of the company with whom the company may enter into transactions under subsection 528.1(1) and that is not a federal financial institution, the company shall not directly or indirectly make, take an assignment of or otherwise acquire a loan to the related party, make an acceptance, endorsement or other guarantee on behalf of the related party or make an investment in the securities of the related party if, immediately following the transaction, the aggregate financial exposure, as that expression is defined by the regulations, of the company would exceed (a) in respect of all transactions of the company with the related party, the prescribed percentage of the company’s regu���
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latory capital or, if no percentage is prescribed, five per cent of the company’s regulatory capital; or (b) in respect of all transactions of company with such related parties of company, the prescribed percentage of company’s regulatory capital or, if percentage is prescribed, ten per cent of company’s regulatory capital. Order
the the the no the
(2) If the Superintendent is of the opinion that it is necessary for the protection of the interests of the policyholders and creditors of a company, the Superintendent may, by order, (a) reduce the limit in paragraph (1)(a) or (b) that would otherwise apply to the company; and (b) impose limits on transactions by the company with related parties with whom the company may enter into transactions under subsection 528.1(1) that are federal financial institutions.
Order
(3) The Superintendent may, by order, increase the limit in paragraph (1)(a) or (b) that would otherwise apply to a company on transactions by the company with related parties that are financial institutions that are regulated in a manner acceptable to the Superintendent.
Assets transactions
528.3 (1) Despite subsection 527(3), a company shall not, without the approval of the Superintendent and its conduct review committee, directly or indirectly acquire assets from a related party of the company with whom the company may enter into transactions under subsection 528.1(1) that is not a federal financial institution, or directly or indirectly transfer assets to such a related party if A+B�C where A is the value of the assets; B is the total value of all assets that the company directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the twelve months ending immediately before the acquisition or transfer; and
Institutions f C is five per cent, or the percentage that may be prescribed, of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of assets purchased or otherwise acquired under subsection 527(1), assets sold under subsection 527(2) or any other assets that may be prescribed.
Exception
(3) The approval of the Superintendent is not required if (a) the company sells assets under a sale agreement that is approved by the Minister under subsection 254(2); or (b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 495(7) is required or the approval of the Superintendent under subsection 495(8) is required.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement.
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Total value of all assets
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(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition. (6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement. 430. Paragraph 534(2)(b) of the Act is replaced by the following: (b) in respect of any other transaction, (i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arm’s length and who are acting prudently, knowledgeably and willingly, or (ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arm’s length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the company with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly. 431. Section 539 of the Act is replaced by the following:
Institutions f
Order to void contract or to grant other remedy
539. (1) If a company enters into a transaction that it is prohibited from entering into by this Part, the company or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate remedy, including an order directing that the related party of the company involved in the transaction account to the company for any profit or gain realized or that any director or senior officer of the company who authorized the transaction compensate the company for any loss or damage incurred by the company.
Time limit
(2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in section 538 in respect of the transaction is given to the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction.
Certificate
(3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof. 432. (1) Subsection 540(1) of the Act is amended by adding the following in alphabetical order:
‘‘permitted entity’’ « entité admissible »
‘‘permitted entity’’ means an entity in which a society is permitted to acquire a substantial investment under section 554. (2) Subsection 540(2) of the Act is replaced by the following:
Members of a society’s group
(2) For the purpose of section 554, a member of a society’s group is any of the following: (a) a subsidiary of the society; (b) an entity in which the society has a substantial investment; or (c) a prescribed entity in relation to the society.
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Words of Part IX
(3) Words and expressions that are defined for the purposes of Part IX and referred to in this Part, other than ‘‘permitted entity’’, have, for the purposes of this Part, the meanings assigned to them by that Part with any modifications that the circumstances require.
1997, c. 15, s. 285
433. Section 542.07 of the Act is replaced by the following:
Policies re security interests
542.07 (1) The directors of a society shall establish and the society shall adhere to policies regarding the creation of security interests in property of the society to secure obligations of the society and the acquisition by the society of beneficial interests in property that is subject to security interests.
Order to amend policies
(2) The Superintendent may, by order, direct a society to amend its policies as specified in the order.
Compliance
(3) A society shall comply with an order made under subsection (2) within the time specified in the order.
Regulations and guidelines
542.071 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a society of security interests in its property to secure obligations of the society and the acquisition by the society of beneficial interests in property that is subject to security interests.
1997, c. 15, s. 285
434. Section 542.09 of the Act is replaced by the following:
Restriction on partnerships
542.09 Except with the approval of the Superintendent, a society may not be a general partner in a limited partnership or a partner in any partnership other than a limited partnership.
1997, c. 15, s. 285
435. (1) The portion of subsection 542.11(1) of the Act before paragraph (a) is replaced by the following:
Restriction on guarantees
542.11 (1) A society shall not guarantee on behalf of any person the payment or repayment of any sum of money unless
Institutions f
1997, c. 15, s. 285
(2) Subsection 542.11(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de la société garante, celle-ci peut garantir une somme qui n’est pas fixe. 436. The Act is amended by adding the following after section 544:
Change of name
544.1 (1) Despite anything contained in its incorporating instrument, a society may, by by-law passed and approved by the votes of at least two thirds of the members entitled to vote by the by-laws of the society who are present or represented at a special meeting duly called for considering the by-law, change the name of the society.
Effective date
(2) A by-law referred to in subsection (1) is not effective until the Superintendent approves it.
1997, c. 15, ss. 290 to 293; 1999, c. 31, s. 144
437. Sections 552 to 560 of the Act are replaced by the following:
Restriction on control and substantial investments
552. (1) Subject to subsections (2) and (3), no society shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) A society may acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 554(1)(a) to (c), or of a prescribed entity, that controls or has a substantial investment in the entity; or (b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 554(1)(a) to (c), or a prescribed entity, that is controlled by the society, or
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Financial In (ii) an entity controlled by an entity referred to in any of paragraphs 554(1)(a) to (c), or a prescribed entity, that is controlled by the society.
Exception: temporary investments, realizations and loan workouts
(3) A society may acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 557; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 558; or (c) a realization of security permitted by section 559.
Exception: uncontrolled event
(4) A society is deemed not to contravene subsection (1) if the society acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the society.
Regulations re limits
553. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of sections 550 to 570; (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a society and its prescribed subsidiaries to or in a person and any persons connected with that person; and (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b).
Institutions f Subsidiaries and Equity Investments
Permitted investments
554. (1) Subject to subsections (4) and (5), a society may acquire control of, or acquire or increase a substantial investment in, (a) a company or a society; (b) an insurance corporation incorporated or formed by or under an Act of the legislature of a province; or (c) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of insurance.
Permitted investments
(2) Subject to subsections (3) to (5), a society may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (c), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a property and casualty company is permitted to engage in under subsection 440(2) or section 441 or 442, other than paragraph 441(1)(h); (b) acquiring or holding shares of, or ownership interests in, entities in which a society is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the society or any member of the society’s group: (i) the society, (ii) any member of the society’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or
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Financial In (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed;
(d) engaging in any activity that a society is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the society or any member of the society’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ in subsection 490(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) A society may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a property and casualty company is not permitted to engage in under any of sections 466, 469 and 478; (b) any financial intermediary activity that exposes the entity to material market or credit risk, including the activities of a finance entity, a factoring entity and a financial leasing entity; (b.1) the activities of a specialized financing entity; (c) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 440(2)(b);
Institutions f (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the society, the society itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the society, the society itself would be permitted to acquire a substantial investment in the other entity under subsection (1) or (2) or 552(2) or paragraph 552(3)(b) or (c); or (e) any prescribed activity.
Control
(4) Subject to subsection (6) and the regulations, a society may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in any of paragraphs (1)(a) to (c), unless the society controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity; or (b) an entity whose business includes an activity referred to in paragraph (2)(b), unless (i) the society controls, within the meaning of paragraph 3(1)(d), the entity, or (ii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or an entity that is not a permitted entity.
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Minister’s approval
(5) Subject to the regulations, a society may not, without the prior written approval of the Minister, acquire control of, or acquire or increase a substantial investment in, a permitted entity.
Control not required
(6) A society need not control an entity referred to in paragraph (1)(c), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the society to control the entity.
Prohibition on giving up control in fact
(7) A society that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Subsections do not apply
(8) If a society controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsection (5) does not apply in respect of any subsequent increases by the society to its substantial investment in the entity so long as the society continues to control the entity.
Regulations
(9) The Governor in Council may make regulations (a) for the purposes of subsection (4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the societies or other entities in respect of which that subsection does not apply, including prescribing societies or other entities on the basis of the activities they engage in; and (b) for the purposes of subsection (5), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the societies or other entities in respect of which that subsection does not apply, including prescribing societies or other entities on the basis of the activities they engage in.
Institutions f
Approval for indirect investments
555. If a society obtains the approval of the Minister under subsection 554(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the society indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 554(5) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the society is deemed to have obtained the approval of the Minister for that indirect acquisition or increase.
Undertakings
556. (1) If a society controls a permitted entity, other than an entity referred to in any of paragraphs 554(1)(a) to (c), the society shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If a society acquires control of an entity referred to in paragraph 554(1)(b) or (c), the society shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in paragraph 554(1)(b) or (c) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Part, a society shall not control a permitted entity, other than an entity referred to in paragraph 554(1)(a), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the society obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity.
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Financial In Exceptions and Exclusions
Temporary investments in entity
557. (1) Subject to subsection (4), a society may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Transitional
(2) Despite subsection (1), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society subsequently increases that substantial investment by way of a temporary investment, the society shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(3) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(4) If a society, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 554(5) is required, the society must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and
Institutions f conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Loan workouts
558. (1) Despite anything in this Part, if a society or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the society, or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the society may acquire (a) if the entity is a body corporate, all or any of the shares of the body corporate; (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates.
Obligation
(2) If a society acquires shares or ownership interests in an entity under subsection (1), the society shall, within five years after acquiring them, do all things necessary to ensure that the society does not control the entity or have a substantial investment in the entity.
Transitional
(3) Despite subsection (1), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society later increases that substantial investment by way of an investment made under subsection (1), the society shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
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Extension
(4) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(5) Despite anything in this Part, if a society has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the society and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the society may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government.
Time for holding shares
(6) If a society acquires any shares or ownership interests under subsection (5), the society may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(7) If, under subsection (1), a society acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 554, the society may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Realizations
559. (1) Despite anything in this Act, a society may acquire (a) an investment in a body corporate, (b) an interest in an unincorporated entity, or (c) an interest in real property,
Institutions f if the investment or interest is acquired through the realization of a security interest held by the society or any of its subsidiaries.
Disposition
(2) If a society acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by the society or any of its subsidiaries, the society shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the case may be, to ensure that the society no longer controls the entity or has a substantial investment in the entity.
Transitional
(3) Despite subsection (2), if a society that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the society later increases that substantial investment by way of a realization of a security interest under subsection (1), the society shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular society that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(5) If, under subsection (1), a society acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 554, the society may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
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560. The Governor in Council may make regulations restricting the ownership under sections 554 to 559 by a society of shares of a body corporate or of ownership interest in an unincorporated entity and imposing terms and conditions applicable to societies that own such shares or interests. 438. Paragraph 562(b) of the Act is replaced by the following: (b) acquire control of a permitted entity that holds commercial loans or loans to natural persons
1993, c. 34, s. 84(F); 1997, c. 15, ss. 295 and 296
439. Sections 563 to 566 of the Act are replaced by the following:
Limit on total property interest
563. A society shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire an interest in real property, or (b) make an improvement to any real property in which the society or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the society in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations.
Regulations
564. For the purposes of this Part, the Governor in Council may make regulations (a) defining the interests of a society in real property; (b) determining the method of valuing those interests; and (c) respecting the determination of an amount for the purpose of each of sections 563, 565 and 566. Equities
Limits on equity acquisitions
565. A society shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a per2001
Institutions f mitted entity in which the society has, or by virtue of the acquisition would have, a substantial investment, or (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the society has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the society has a substantial investment, beneficially owned by the society and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Aggregate Limit
Aggregate limit
566. A society shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the society has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the society has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the society or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the society and its prescribed subsidiaries, and (d) all interests of the society in real property referred to in subparagraph (a)(iii)
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exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations. 1997, c. 15, s. 297
440. Sections 568 and 569 of the Act are replaced by the following:
Deemed temporary investment
568. If a society controls or has a substantial investment in an entity as permitted by this Part and the society becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 554(5), the society is deemed to have acquired, on the day the society becomes aware of the change, a temporary investment in respect of which section 557 applies.
Asset transactions
569. (1) A society shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B>C where A is the value of the assets; B is the total value of all assets that the society and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the society, as shown in the last annual statement of the society prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of (a) an asset that is a debt obligation referred to in subparagraphs (b)(i) to (v) of the definition ‘‘commercial loan’’ in subsection 490(1); or
Institutions f (b) a transaction or series of transactions by a society with another financial institution as a result of the society’s participation in one or more syndicated loans with that financial institution.
Exception
(3) The approval of the Superintendent is not required if (a) the society sells assets under a sale agreement that is approved by the Minister under subsection 254(2); or (b) the society or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 554(5) is required.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the society after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the society prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the society before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the society or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the society, the fair market value of the assets of the entity at the date of the acquisition.
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(6) For the purposes of subsection (1), the total value of all assets that the society or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the society prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the society before the transfer, the value of the assets of the entity as stated in the annual statement. 441. The Act is amended by adding the following after section 570:
Saving
570.001 A loan or investment referred to in section 570 is deemed not to be prohibited by the provisions of this Part.
1997, c. 15, s. 303
442. (1) The portion of subsection 587.1(1) of the Act before paragraph (a) is replaced by the following:
Restricted transactions
587.1 (1) Except in accordance with this section or an order made under subsection 678.6(1), a foreign company shall not (2) Subsection 587.1(2) of the Act is amended by adding the following after paragraph (a): (a.1) transfer all or any portion of its policies in Canada to any body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance being transferred; (a.2) cause itself to be reinsured, on an assumption basis, against all or any portion of the risks undertaken by it in respect of its policies in Canada by any body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance to be reinsured if the Superintendent has entered into satisfactory arrangements concerning the reinsurance with (i) the appropriate official or public body responsible for the supervision of the body corporate, (ii) the body corporate, or (iii) the appropriate official or public body and the body corporate;
Institutions f 443. Section 598 of the Act, as enacted by section 307 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is replaced by the following:
Definition of ‘‘cost of borrowing’’
598. For the purposes of this section and sections 598.1 to 605, ‘‘cost of borrowing’’ means, in respect of a loan or an advance on the security or against the cash surrender value of a policy made by a foreign company, (a) the interest or discount applicable to the loan or advance; (b) any amount charged in connection with the loan or advance that is payable by the borrower to the foreign company; and (c) any charge prescribed to be included in the cost of borrowing. For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. 444. (1) Sections 604 and 605 of the Act are replaced by the following:
Complaints Procedures for dealing with complaints
604. (1) A foreign company shall (a) establish procedures for dealing with complaints made by persons in Canada having requested or received products or services in Canada from the foreign company; (b) designate an officer or employee of the foreign company to be responsible for implementing those procedures; and (c) designate one or more officers or employees of the foreign company to receive and deal with those complaints.
Procedures to be filed with Commissioner
(2) A foreign company shall file with the Commissioner a copy of its procedures established under paragraph (1)(a).
Obligation to be member of complaints body
604.1 In any province, if there is no law of the province that makes a foreign company subject to the jurisdiction of an organization that deals with complaints made by persons having requested or received products or services in the province from a foreign
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company, the foreign company shall be a member of an organization that is not controlled by it and that deals with those complaints that have not been resolved to the satisfaction of the persons under procedures established by foreign companies under paragraph 604(1)(a). Information on contacting Agency
605. (1) A foreign company shall, in the prescribed manner, provide a person in Canada requesting or receiving a product or service in Canada from it with prescribed information on how to contact the Agency if the person has a complaint about an arrangement referred to in subsection 601(3), a payment, credit or charge card referred to in subsection 601(2), the disclosure of or manner of calculating the cost of borrowing in respect of a loan repayable in Canada or an advance on the security or against the cash surrender value of a policy in Canada, or about any other obligation of the foreign company under a consumer provision.
Report
(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by foreign companies pursuant to paragraph 604(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a foreign company. (2) If this section comes into force before paragraph 604(1)(a) and subsection 605(1) of the Act, as enacted, respectively, by sections 311 and 312 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, come into force, then sections 311 and 312 of that Act are repealed. 445. The Act is amended by adding the following after section 607:
2001 Regulations re disclosure
Institutions f 607.1 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by foreign companies or any prescribed class of foreign companies, including regulations respecting (a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them, (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which, and the persons to whom, information is to be disclosed; and (c) the content and form of any advertisement by foreign companies or any prescribed class of foreign companies relating to any matter referred to in paragraph (a).
1996, c. 6, s. 87
446. Section 608 of the Act is replaced by the following:
Adequacy of capital and liquidity — foreign company
608. (1) A foreign company shall, in relation to its insurance risks in Canada, maintain an adequate margin of assets in Canada over liabilities in Canada and adequate and appropriate forms of liquidity and shall comply with any regulations in relation to an adequate margin of assets in Canada over liabilities in Canada and adequate and appropriate forms of liquidity.
Liabilities
(2) For the purposes of subsection (1), the liabilities in Canada of a foreign company include the reserve included in the annual return required under subsection 665(2).
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Guidelines
(3) The Superintendent may make guidelines in respect of any matter referred to in paragraph 610(1)(a).
Directives
(4) Notwithstanding that a foreign company is complying with regulations made under paragraph 610(1)(a) or guidelines made under subsection (3), the Superintendent may, by order, direct the foreign company to increase the margin of its assets in Canada over its liabilities in Canada or to provide additional liquidity in the forms and the amounts that the Superintendent requires.
Compliance
(5) A foreign company shall comply with an order made under subsection (4) within the time that the Superintendent specifies in the order. 447. Paragraph 610(1)(a) of the English version of the Act is replaced by the following: (a) respecting the maintenance by foreign companies of an adequate margin of assets in Canada over liabilities in Canada and adequate and appropriate forms of liquidity; 448. Subsections 611(1) and (2) of the Act are replaced by the following:
Vesting in trust
611. (1) The assets that a foreign company is required to maintain in Canada under sections 608 and 609 and the regulations made under section 610 must be vested in trust in a Canadian financial institution chosen by the foreign company.
Conflict of interest
(2) No Canadian financial institution may be appointed as trustee if at the time of the appointment there is a material conflict of interest between the Canadian financial institution’s role as trustee and any other of its roles. 449. Paragraph 647(1)(b) of the Act is replaced by the following: (b) accounting records respecting its insurance business in Canada; and 450. Paragraphs 660(2)(a) and (b) of the Act are replaced by the following: (a) require the management of the provincial company to establish procedures for complying with Part XI;
Institutions f (b) review those procedures and their effectiveness in ensuring that the provincial company is complying with Part XI; (b.1) if an insurance holding company or a bank holding company that is widely held has a significant interest in any class of shares of the provincial company, establish policies for entering into transactions referred to in section 528.1; and 451. The title of Part XV of the Act is replaced by the following: REGULATION OF COMPANIES, SOCIETIES, FOREIGN COMPANIES AND PROVINCIAL COMPANIES — SUPERINTENDENT 452. Section 669 of the Act is replaced by the following:
Copy of by-laws
669. A company shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
1997, c. 15, s. 324
453. (1) Subsection 670(2) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (a), by striking out the word ‘‘and’’ at the end of paragraph (b) and by repealing paragraph (c).
1997, c. 15, s. 324
(2) Subsection 670(3) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (a), by striking out the word ‘‘and’’ at the end of paragraph (b) and by repealing paragraph (c).
1997, c. 15, s. 324
(3) Subsection 670(4) of the Act is replaced by the following:
Form
(4) The register may be maintained in (a) a bound or loose-leaf form or a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(5) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
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(6) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent. 454. Subsection 672(1) of the Act is replaced by the following:
Confidential information
672. (1) Subject to section 673, all information regarding the business or affairs of a company, society, foreign company or provincial company, or regarding a person dealing with any of them, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
1996, c. 6, s. 93
455. Section 673.3 of the Act is replaced by the following:
Report respecting disclosure
673.3 The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by companies, societies, foreign companies or provincial companies and describing the state of progress made in enhancing the disclosure of information in the financial services industry. 456. Subsections 674(1) and (2) of the Act are replaced by the following:
Examination of companies, etc.
674. (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each company, society, foreign company and provincial company that the Superintendent considers to be necessary or expedient to determine whether the company, society, foreign company or provincial company is complying with the provisions of this Act and whether the company, society or provincial company or the insurance business in Canada of the foreign company is in a sound financial condition and, after the conclusion of each
Institutions f examination and inquiry, shall report on it to the Minister.
Examination need not be made annually
(2) If, in the opinion of the Superintendent, the circumstances so warrant in the case of a company, a provincial company or a foreign company that is not a fraternal benefit society, the examination and inquiry may be made less frequently than annually but not less frequently than triennially.
Examination need not be made annually
(2.1) If, in the opinion of the Superintendent, the circumstances so warrant in the case of a society or a foreign company that is a fraternal benefit society, the examination and inquiry may be made less frequently than annually. 457. The Act is amended by adding the following after the heading ‘‘Remedial Powers’’ after section 675: Prudential Agreements
Prudential agreement
675.1 The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with a company, society or provincial company for the purposes of implementing any measure designed to maintain or improve its safety and soundness or with a foreign company for the purposes of implementing any measure designed to protect the interests of its policyholders and creditors in respect of its insurance business in Canada. 458. Subsection 678(1) of the Act is replaced by the following:
Court enforcement
678. (1) Where a company, society, foreign company, provincial company or person (a) is contravening or has failed to comply with a prudential agreement entered into under section 675.1 or a direction of the Superintendent issued to the company, society, foreign company, provincial company or person pursuant to subsection 676(1) or (3), (b) is contravening this Act, or (c) has omitted to do any thing under this Act that is required to be done by or on the part of the company, society, foreign company, provincial company or person,
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the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the company, society, foreign company, provincial company or person to comply with the prudential agreement or direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit. 1996, c. 6, s. 95
459. The heading before section 678.1 of the Act is replaced by the following: Disqualification and Removal
Meaning of ‘‘senior officer’’
678.01 In sections 678.1 and 678.2, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer, controller or actuary of a company, society or provincial company, or any other officer reporting directly to its board of directors or chief executive officer.
1996, c. 6, s. 95
460. (1) Paragraphs 678.1(1)(a) and (b) of the Act are replaced by the following: (a) that has been notified by the Superintendent that this section applies to it where the company, society or provincial company is subject to measures designed to maintain or improve its safety and soundness, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of its business, or (ii) are contained in a prudential agreement entered into under section 675.1 or an undertaking given by the company, society or provincial company to the Superintendent; or (b) that is the subject of a direction made under section 676 or an order made under subsection 515(3) or 516(4).
1996, c. 6, s. 95
(2) Paragraph 678.1(2)(b) of the Act is replaced by the following: (b) each person who has been selected by the company, society or provincial company for appointment as a senior officer, and
2001 1996, c. 6, s. 95
Institutions f (3) The portion of subsection 678.1(2) of the French version of the Act after paragraph (c) is replaced by the following: Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel qu’il peut exiger.
1996, c. 6, s. 95
(4) Subsections 678.1(4) and (5) of the Act are replaced by the following:
Disqualification or removal
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of the company, society or provincial company or from being appointed as a senior officer; or (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the company, society or provincial company.
Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the policyholders and creditors of the company, society or provincial company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(5) The Superintendent must in writing notify the person concerned and the company, society or provincial company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
1996, c. 6, s. 95
(5) Subsection 678.1(6) of the English version of the Act is replaced by the following:
Prohibition
(6) Where an order has been made under subsection (4)
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(a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the company, society or provincial company shall not permit the person to be, elected or appointed to the position; or (b) removing a director from office, the person shall not continue to hold, and the company, society or provincial company shall not permit the person to continue to hold, office as a director. 461. The Act is amended by adding the following after section 678.1: Removal of directors or senior officers
678.2 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a company, society or provincial company if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 676, (iii) an order made under subsection 515(3) or 516(4), (iv) a condition or limitation in respect of the order approving the commencement and carrying on of business by the company, society or provincial company, or (v) a prudential agreement entered into under section 675.1 or an undertaking given by the company, society or provincial company to the Superintendent.
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the policyholders and creditors of the company, society or provincial company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Institutions f
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the company, society or provincial company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the company, society or provincial company of a removal order or suspension order.
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The director or senior officer, as the case may be, or the company, society or provincial company, as the case may be, may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
Application
678.3 (1) This section applies only in respect of a foreign company (a) that has been notified by the Superintendent that this section applies to it where the foreign company is subject to measures designed to protect the interests of its
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policyholders and creditors in respect of its insurance business in Canada, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the insuring in Canada of risks by the foreign company, or (ii) are contained in a prudential agreement entered into under section 675.1 or an undertaking given by the foreign company to the Superintendent; or (b) that is the subject of a direction made under section 676 or an order made under subsection 608(4) or 609(2). Information to be provided
(2) A foreign company shall provide the Superintendent with the name of any person who has been selected by the foreign company for appointment as chief agent together with such other information about the background, business record and experience of the person as the Superintendent may require.
When information to be provided
(3) The information required by subsection (2) shall be provided to the Superintendent at least 30 days prior to the date of the appointment or within any shorter period that the Superintendent may allow.
Disqualification
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold the position of chief agent, the Superintendent may, by order, disqualify the person from being appointed to that office.
Risk of prejudice
(5) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the policyholders and creditors of the foreign company in respect of its insurance business in Canada would likely be prejudiced if the person were to take office.
Representations may be made
(6) The Superintendent must in writing notify the person concerned and the foreign company of an order that the Superintendent proposes to make under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows,
Institutions f to make representations to the Superintendent in relation to the matter.
Prohibition
(7) If an order is made under subsection (4) disqualifying a person from being appointed as chief agent, the person shall not be, and the foreign company shall not permit the person to be, appointed to that position.
Removal
678.4 (1) The Superintendent may, by order, remove a person from office as the chief agent of a foreign company if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 676, (iii) an order made under subsection 608(4) or 609(2), (iv) a condition or limitation in respect of the order approving the insuring in Canada of risks by the foreign company, or (v) a prudential agreement entered into under section 675.1 or an undertaking given by the foreign company to the Superintendent.
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the policyholders and creditors of the foreign company in respect of its insurance business in Canada have been or are likely to be prejudiced by the person’s holding office as chief agent.
Representations may be made
(3) The Superintendent must in writing notify the chief agent and the foreign company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
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Suspension
(4) If the Superintendent is of the opinion that the public interest is likely to be prejudiced by the chief agent continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the chief agent. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the chief agent and the foreign company of a removal order or suspension order.
Consequences of removal order
(6) The chief agent ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The chief agent or the foreign company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal. 462. The Act is amended by adding the following before section 679:
Direction to transfer policies or to reinsure risks — society
678.5 (1) If the circumstances described in any of paragraphs 679(1.1)(a) to (e) or (g) exist in respect of a society, the Superintendent may, by order, subject to any terms and conditions the Superintendent may specify, direct it to transfer all or any portion of its policies to, or cause itself to be reinsured against all or any portion of the risks undertaken by it by, any company, society, foreign company or body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance to be so transferred or reinsured.
Compliance
(2) The society shall comply with the order within the time that the Superintendent specifies in the order or within any further period specified by the Superintendent.
Institutions f
Opportunity for representations
(3) No order shall be issued to a society under subsection (1) unless the society is provided with a reasonable opportunity to make representations in respect of the matter.
Direction to transfer policies or to reinsure risks — foreign company that is a fraternal benefit society
678.6 (1) If the circumstances described in any of paragraphs 679(1.2)(a) to (d) or (f) exist in respect of a foreign company that is a fraternal benefit society, the Superintendent may, by order, subject to any terms and conditions the Superintendent may specify, direct it to transfer all or any portion of its policies in Canada to, or cause itself to be reinsured against all or any portion of the risks undertaken by it in respect of its policies in Canada by, any company, society, foreign company or body corporate incorporated under the laws of a province that is authorized to transact the classes of insurance to be so transferred or reinsured.
Compliance
(2) The foreign company shall comply with the order within the time that the Superintendent specifies in the order or within any further period specified by the Superintendent.
Opportunity for representations
(3) No order shall be issued to a foreign company under subsection (1) unless the foreign company is provided with a reasonable opportunity to make representations in respect of the matter.
1997, c. 15, s. 326(3)
463. (1) Paragraph 679(1.1)(b) of the Act is repealed.
1996, c. 6, s. 96
(2) Subsection 679(1.1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (e) and by replacing paragraph (f) with the following: (f) the company, society or provincial company has failed to comply with an order of the Superintendent made under subsection 515(3) to increase its capital or with an order of the Superintendent made under subsection 516(4) or 678.5(1); or (g) in the opinion of the Superintendent, any other state of affairs exists in respect of the company, society or provincial company that may be materially prejudicial to the interests of the company’s, society’s or provincial company’s policyholders or creditors or the owners of any assets under
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the company’s, society’s or provincial company’s administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the company or provincial company. 1996, c. 6, s. 96
(3) Paragraph 679(1.2)(b) of the Act is repealed.
1996, c. 6, s. 96
(4) Subsection 679(1.2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (d) and by replacing paragraph (e) with the following: (e) it has failed to comply with an order of the Superintendent made under subsection 608(4) to increase the margin of its assets in Canada over its liabilities in Canada or with an order of the Superintendent made under subsection 609(2) or 678.6(1); or (f) in the opinion of the Superintendent, any other state of affairs exists in respect of the foreign company that may be materially prejudicial to the interests of the foreign company’s policyholders or creditors in Canada or the owners of any assets under the foreign company’s administration in Canada, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the foreign company.
1997, c. 15, s. 28
464. Section 692 of the French version of the Act is replaced by the following:
Réduction de la cotisation
692. Tout montant payé à Sa Majesté ou recouvré par elle conformément à l’article 691 de la présente loi ou à l’alinéa 161(1)d), au paragraphe 161(6) ou à l’alinéa 161(8)d) de la Loi sur les liquidations et les restructurations à l’égard d’une société est imputé dans la mesure et selon les modalités réglementaires.
1991, c. 47, par. 704(4)(b); 1996, c. 6, ss. 102, 103; 1997, c. 15, ss. 329 to 332; 1999, c. 31, s. 145(F); 2000, c. 12, s. 157
465. Parts XVI to XVIII of the Act are replaced by the following:
Institutions f PART XVI REGULATION OF COMPANIES AND FOREIGN COMPANIES — COMMISSIONER
Definition of ‘‘société’’
693. In the French version of this Part, ‘‘société’’ means a ‘‘société’’ or ‘‘société étrangère’’ within the meaning of section 2.
Required information
694. A company or foreign company shall provide the Commissioner with the information at the times and in the form that the Commissioner may require for the purposes of the administration of the Financial Consumer Agency of Canada Act and the consumer provisions.
Confidential information
695. (1) Subject to subsection (2), information regarding the business or affairs of a company or foreign company or regarding persons dealing with any of them that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsection 5(1) of the Financial Consumer Agency of Canada Act, and any information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (c) to any compensation association designated by order of the Minister under subsection 449(1) or 591(1), for purposes related to its operation; and (d) to the Deputy Minister of Finance or any officer of the Department of Finance autho���
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rized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions. Examination
696. (1) The Commissioner, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry that the Commissioner considers necessary for the purposes of satisfying the Commissioner that the applicable consumer provisions are being complied with and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
Access to records
(2) The Commissioner or a person acting under the Commissioner’s direction in carrying out his or her duties under subsection (1) (a) has a right of access to any records, including electronic records, of a company or foreign company; and (b) may require the directors or officers of a company or foreign company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of any matter subject to examination or inquiry under subsection (1).
Power of Commissioner on inquiry
697. The Commissioner, in carrying out his or her duties in relation to consumer provisions, has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Commissioner’s direction.
Compliance agreement
698. The Commissioner may enter into an agreement, called a ‘‘compliance agreement’’, with a company or foreign company for the purposes of implementing any measure designed to further compliance by it with the consumer provisions.
Institutions f PART XVII INSURANCE HOLDING COMPANIES
Purpose Purpose
699. The purpose of this Part is to provide for the incorporation, formation and regulation of insurance holding companies that are holding bodies corporate of life companies.
DIVISION 1 INTERPRETATION Definitions
700. (1) The following definitions apply in this Part.
‘‘affairs’’ « affaires internes »
‘‘affairs’’, with respect to an insurance holding company, means the relationships among the insurance holding company and its affiliates and the shareholders, directors and officers of the insurance holding company and its affiliates, but does not include the business of the insurance holding company or any of its affiliates.
‘‘complainant’’ « plaignant »
‘‘complainant’’, in relation to an insurance holding company or any matter concerning an insurance holding company, means (a) a registered holder or beneficial owner, and a former registered holder or beneficial owner, of a security of the insurance holding company or any of its affiliates; (b) a director or an officer, or a former director or officer, of the insurance holding company or any of its affiliates; or (c) any other person who, in the discretion of a court, is a proper person to make an application under section 912, 916 or 1031.
‘‘subordinated indebtedness’’ « titre secondaire »
‘‘subordinated indebtedness’’ means an instrument evidencing an indebtedness of an insurance holding company that by its terms provides that the indebtedness will, in the event of the insolvency or winding-up of the insurance holding company, be subordinate in right of payment to all liabilities of the insurance holding company except
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those liabilities that, by their terms, rank equally with or are subordinate to such indebtedness. Provisions in other Parts
(2) A reference in a provision in this Part to a provision in any other Part is deemed to be a reference to that provision as it has been made applicable by this Part in respect of insurance holding companies.
References in other Parts
(3) A reference in a provision of another Part to a provision that has been made applicable in respect of insurance holding companies by this Part is to be read as including a reference to that provision as it has been made applicable in respect of insurance holding companies. DIVISION 2 STATUS AND POWERS
Corporate powers
701. (1) An insurance holding company has the capacity of a natural person and, subject to this Act, the rights, powers and privileges of a natural person.
Powers restricted
(2) An insurance holding company shall not carry on any business or exercise any power that it is restricted by this Act from carrying on or exercising, or exercise any of its powers in a manner contrary to this Act.
Business in Canada
(3) An insurance holding company may carry on business throughout Canada.
Powers outside Canada
(4) Subject to this Act, an insurance holding company has the capacity to carry on its business, conduct its affairs and exercise its powers in any jurisdiction outside Canada to the extent and in the manner that the laws of that jurisdiction permit.
No invalidity
702. No act of an insurance holding company, including any transfer of property to or by an insurance holding company, is invalid by reason only that the act or transfer is contrary to the insurance holding company’s incorporating instrument or this Act.
By-law not necessary
703. It is not necessary for an insurance holding company to pass a by-law in order to confer any particular power on the insurance holding company or its directors.
Institutions f
No personal liability
704. The shareholders of an insurance holding company are not, as shareholders, liable for any liability, act or default of the insurance holding company except as otherwise provided by this Act.
No constructive notice
705. No person is affected by or is deemed to have notice or knowledge of the contents of a document concerning an insurance holding company by reason only that the document has been filed with the Superintendent or the Minister or is available for inspection at an office of the insurance holding company.
Authority of directors and officers
706. An insurance holding company or a guarantor of an obligation of an insurance holding company may not assert against a person dealing with the insurance holding company or with any person who has acquired rights from the insurance holding company that (a) the insurance holding company’s incorporating instrument or any by-laws of the insurance holding company have not been complied with, (b) the persons named as directors of the insurance holding company in the most recent return sent to the Superintendent under section 994 are not the directors of the insurance holding company, (c) the place named in the incorporating instrument or the by-laws of the insurance holding company is not the head office of the insurance holding company, (d) a person held out by the insurance holding company as a director, an officer or a representative of the insurance holding company has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the insurance holding company or usual for any such director, officer or representative, or (e) a document issued by any director, officer or representative of the insurance holding company with actual or usual authority to issue the document is not valid or not genuine,
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except where the person has or ought to have by virtue of the person’s position with or relationship to the insurance holding company knowledge to that effect. Sunset provision
Extension
707. (1) Subject to subsection (2), insurance holding companies shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, insurance holding companies may continue to carry on business until the day that is one hundred and eighty days after the first day of the first session of the next Parliament. (2) The Governor in Council may, by order, extend by up to six months the time during which insurance holding companies may continue to carry on business. No more than one order may be made under this subsection. DIVISION 3 INCORPORATION, CONTINUANCE AND DISCONTINUANCE Formalities of Incorporation
Incorporation of insurance holding company
708. On the application of one or more persons made in accordance with this Part, the Minister may, subject to this Division, issue letters patent incorporating an insurance holding company.
Restrictions on incorporation
709. Letters patent incorporating an insurance holding company may not be issued if the application therefor is made by or on behalf of (a) Her Majesty in right of Canada or in right of a province, an agency of Her Majesty in either of those rights, or an entity controlled by Her Majesty in either of those rights; (b) the government of a foreign country or any political subdivision thereof; (c) an agency of the government of a foreign country or any political subdivision thereof; or (d) an entity, other than a foreign institution or any subsidiary of a foreign institution, that is controlled by the government of a foreign country or any political subdivision thereof.
Institutions f
National treatment
710. (1) If a proposed insurance holding company would be a subsidiary of a foreign institution that is engaged in the insurance business, letters patent to incorporate the insurance holding company may not be issued unless the Minister is satisfied that, if the application is made by a non-WTO Member foreign institution, treatment as favourable for insurance holding companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign institution principally carries on business, either directly or through a subsidiary.
Part XII of the Bank Act
(2) Nothing in subsection (1) affects the operation of Part XII of the Bank Act.
Application for incorporation
711. An application for letters patent to incorporate an insurance holding company setting out the names of the first directors of the insurance holding company shall be filed with the Superintendent, together with such other information, material and evidence as the Superintendent may require.
Matters for consideration
712. Before issuing letters patent to incorporate an insurance holding company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company that is proposed to be its subsidiary; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the company that is proposed to be its subsidiary; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity;
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(e) whether the insurance holding company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the insurance holding company and its affiliates on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada. Contents of letters patent
713. (1) There shall be set out in the letters patent incorporating an insurance holding company (a) the name of the insurance holding company; (b) the place in Canada where the head office of the insurance holding company is to be situated; and (c) the date that the insurance holding company came, or is to come, into existence.
Provisions in letters patent
(2) The Minister may set out in the letters patent incorporating an insurance holding company any provision not contrary to this Act that the Minister considers advisable in order to take into account the particular circumstances of the proposed insurance holding company.
Terms and conditions
(3) The Minister may impose such terms and conditions in respect of the issuance of letters patent incorporating an insurance holding company as the Minister considers necessary or appropriate.
Letters patent of incorporation on application of life company
714. (1) If the Minister, under section 708, issues letters patent incorporating an insurance holding company on the application of a life company, including a converted company, there may, on the request of the company, and with the approval of the Minister, be included in the letters patent of incorporation of the insurance holding company a provision deeming shares of the insurance holding company to be issued, on a share for share basis, to all shareholders of the company in exchange for
Institutions f all the issued and outstanding shares of the company.
Effect of provision
(2) Shares of an insurance holding company deemed to be issued under subsection (1) are subject to the same designation, rights, privileges and restrictions or conditions and, subject to any agreement to the contrary, to the same charges, encumbrances and other restrictions as the shares of the company for which they are exchanged and the shares of the company, on the issuance of the letters patent, become the property of the insurance holding company free and clear of any charge, encumbrance or other restriction.
Effect of provision
(3) An exchange of shares of a company referred to in subsection (1) under a provision included in the letters patent incorporating an insurance holding company does not deprive a person who was a holder of shares of the company immediately before the exchange of any right or privilege with respect to the shares or relieve the person of any liability in respect of the shares, but that right or privilege must be exercised in accordance with this Act.
Transfer and voting of company shares
(4) Despite subsection (3), no share of an insurance holding company that is deemed to be issued under a provision included in the letters patent incorporating an insurance holding company may subsequently be transferred or voted contrary to this Act.
Shareholder and policyholder approval
(5) No provision described in subsection (1) may be included in letters patent issued under section 708 unless the application for the letters patent is accompanied by evidence that the request for the provision was approved by a special resolution of the shareholders and the policyholders of the company who are entitled to vote at a meeting of shareholders and policyholders called to consider the application.
Exchange of share certificates
(6) If, under a provision included in the letters patent incorporating an insurance holding company, a share exchange is deemed to have taken place, the insurance holding company shall, within ninety days after the
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issuance of the letters patent, make provision for the issue of share certificates representing shares of the insurance holding company and for the exchange of those certificates for share certificates representing the shares of the company that were outstanding on the effective date of the letters patent. Proposal involving fundamental change
715. (1) On application, made in accordance with the regulations, by a life company, including a converted company, to give effect to a proposal to incorporate an insurance holding company as the holding body corporate of the company, to continue a body corporate as an insurance holding company of the company or to amalgamate two or more bodies corporate and continue those bodies corporate as an insurance holding company of the company — and to make any other fundamental change to the company, including an exchange of any or all of the shares of the company for shares of the insurance holding company —, the Minister may, to give effect to the proposal, (a) include in the letters patent of the insurance holding company issued under section 708, 721 or 863 any provision the Minister considers necessary; or (b) despite any provision of the Act specified in regulations made under paragraph (2)(e), give any approval that the Minister considers necessary.
Regulations
(2) The Governor in Council may make regulations (a) respecting applications referred to in subsection (1), including their form and the information to be contained in them, and authorizing the Superintendent to require additional information in respect of such applications; (b) respecting proposals to which subsection (1) applies, including the information to be contained in the proposals and the times within which the transactions involved in them must occur; (c) respecting the procedures to be followed by the company that makes an application under subsection (1);
Institutions f (d) respecting the approval, confirmation or authorization, if any, of all or any portion of proposals to which subsection (1) applies, and including the approval of shareholders and policyholders and including the terms and conditions of those approvals, confirmations or authorizations and their effect; and (e) specifying provisions of the Act for the purpose of paragraph (1)(b).
Notice of issue of letters patent
716. The Superintendent shall cause to be published in the Canada Gazette a notice of the issuance of letters patent incorporating an insurance holding company.
First directors
717. The first directors of an insurance holding company are the directors named in the application for letters patent to incorporate the insurance holding company.
Effect of letters patent
718. An insurance holding company comes into existence on the date provided therefor in its letters patent. Continuance
Federal corporations
719. (1) A body corporate incorporated under the Canada Business Corporations Act or any other Act of Parliament, including a company, may apply to the Minister for letters patent continuing the body corporate as an insurance holding company under this Part.
Other corporations
(2) A body corporate incorporated otherwise than by or under an Act of Parliament may, if so authorized by the laws of the jurisdiction where it is incorporated, apply to the Minister for letters patent continuing the body corporate as an insurance holding company under this Part.
Application for continuance
720. (1) Where a body corporate applies for letters patent under subsection 719(1) or (2), sections 709 to 712 apply in respect of the application, with such modifications as the circumstances require.
Special resolution approval
(2) Where a body corporate applies for letters patent under subsection 719(1) or (2), the application must be duly authorized by a special resolution.
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Copy of special resolution
(3) A copy of the special resolution referred to in subsection (2) shall be filed with the application.
Power to issue letters patent
721. (1) On the application of a body corporate under subsection 719(1) or (2), the Minister may, subject to this Division, issue letters patent continuing the body corporate as an insurance holding company under this Part.
Issue of letters patent
(2) Section 713 applies in respect of the issue of letters patent under subsection (1), with such modifications as the circumstances require.
Effect of letters patent
722. On the day set out in the letters patent continuing a body corporate as an insurance holding company under subsection 721(1), (a) the body corporate becomes an insurance holding company as if it had been incorporated under this Part; and (b) the letters patent are deemed to be the incorporating instrument of the continued insurance holding company.
Copy of letters patent
723. (1) Where a body corporate is continued as an insurance holding company under this Part, the Superintendent shall without delay send a copy of the letters patent to the appropriate official or public body in the jurisdiction in which the body corporate was authorized to apply to be continued under this Part.
Notice of issuance of letters patent
(2) The Superintendent shall publish in the Canada Gazette a notice of the issuance of letters patent continuing a body corporate as an insurance holding company under this Part.
Effects of continuance
724. Where a body corporate is continued as an insurance holding company under this Part, (a) the property of the body corporate continues to be the property of the insurance holding company; (b) the insurance holding company continues to be liable for the obligations of the body corporate; (c) an existing cause of action or claim by or against the body corporate or any liabil2001
Institutions f ity of the body corporate to prosecution is unaffected; (d) a civil, criminal or administrative action or proceeding pending by or against the body corporate may continue to be prosecuted by or against the insurance holding company; (e) a conviction against, or any ruling, order or judgment in favour of or against, the body corporate may be enforced by or against the insurance holding company; (f) a person who, on the day the body corporate becomes an insurance holding company, is the holder of a security issued by the body corporate is not deprived of any right or privilege available to the person at that time in respect of the security or relieved of any liability in respect of it, but any such right or privilege may be exercised only in accordance with this Act; and (g) the by-laws of the body corporate, except those that are in conflict with this Act, continue as the by-laws of the insurance holding company.
Transitional
725. (1) Despite any other provision of this Act or the regulations, the Minister may, on the recommendation of the Superintendent, by order, grant to an insurance holding company in respect of which letters patent were issued under subsection 721(1) permission to (a) engage in a business activity specified in the order that the insurance holding company would not otherwise be permitted by this Act to engage in and that the body corporate continued as the insurance holding company was engaging in at the time the application for the letters patent was made; (b) continue to have issued and outstanding debt obligations the issue of which is not authorized by this Act if the debt obligations were outstanding at the time the application for the letters patent was made; (c) hold assets that the insurance holding company would not otherwise be permitted by this Act to hold, if the assets were held by the body corporate continued as the insurance holding company at the time the application for the letters patent was made;
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(d) acquire and hold assets that the insurance holding company would not otherwise be permitted by this Act to acquire or hold, if the body corporate continued as the insurance holding company was obliged, at the time the application for the letters patent was made, to acquire those assets; and (e) maintain outside Canada any records or registers required by this Act to be maintained in Canada and maintain and process outside Canada information and data relating to the preparation and maintenance of such records or registers. Duration
(2) The permission granted under subsection (1) shall be expressed to be granted for a period specified in the order not exceeding (a) with respect to any activity described in paragraph (1)(a), thirty days after the effective date of the letters patent or, where the activity is conducted pursuant to an agreement existing on the effective date of the letters patent, the expiration of the agreement; (b) with respect to any matter described in paragraph (1)(b), ten years; and (c) with respect to any matter described in any of paragraphs (1)(c) to (e), two years.
Renewal
(3) Subject to subsection (4), the Minister may, on the recommendation of the Superintendent, by order, renew a permission granted by order under subsection (1) with respect to any matter described in paragraphs (1)(b) to (d) for such further period or periods as the Minister considers necessary.
Limitation
(4) The Minister shall not grant to an insurance holding company any permission (a) with respect to matters described in paragraph (1)(b), that purports to be effective more than ten years after the effective date of the letters patent of continuance issued to continue the insurance holding company under this Part, unless the Minister is satisfied on the basis of evidence on oath provided by an officer of the insurance holding company that the insurance holding company will not be able at law to redeem at the end of the ten years the outstanding debt obligations to which the permission relates; and
Institutions f (b) with respect to matters described in paragraphs (1)(c) and (d), that purports to be effective more than ten years after the effective date of the letters patent of continuance issued to continue the insurance holding company under this Part. Discontinuance
Transferring to other Acts
726. (1) An insurance holding company may, with the approval in writing of the Minister, apply to be continued as a body corporate under any other Act of Parliament or any Act of the legislature of a province.
Conditions for approval
(2) No approval referred to in subsection (1) may be given to an insurance holding company unless the Minister is satisfied that the application of the insurance holding company has been authorized by a special resolution.
Meaning of ‘‘insurance holding company without a life company subsidiary’’
727. (1) For the purpose of this section, ‘‘insurance holding company without a life company subsidiary’’ means an insurance holding company that does not, at any time within one year after it came into existence, have a subsidiary that is a life company or that does not, for a period of one year, have a subsidiary that is a life company.
Obligation to apply
(2) An insurance holding company without a life company subsidiary must, within thirty days after becoming an insurance holding company without a life company subsidiary, apply to be continued under subsection 726(1).
Cessation of existence
(3) Except for the sole purpose of winding up its affairs, an insurance holding company without a life company subsidiary that has no other subsidiary that fails to make an application under subsection (2) within the time provided for in that subsection ceases to exist on the expiration of that period.
Act ceases to apply
728. On the day specified by the Minister, this Act ceases to apply to the body corporate continued under the other Act of Parliament or under the Act of the legislature of a province.
Withdrawing application
729. Where a special resolution authorizing the application under subsection 726(1) so states, the directors of an insurance holding company may, without further approval of the
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shareholders, withdraw the application before it is acted on.
Corporate Name Prohibited names
730. An insurance holding company may not be incorporated under this Part with a name (a) that is prohibited by an Act of Parliament; (b) that is, in the opinion of the Superintendent, deceptively misdescriptive; (c) that is the same as or, in the opinion of the Superintendent, substantially the same as or confusingly similar to any existing (i) trade-mark or trade name, or (ii) corporate name of a body corporate, except where the trade-mark or trade name is being changed or the body corporate is being dissolved or is changing its corporate name and consent to the use of the trademark, trade name or corporate name is signified to the Superintendent in such manner as the Superintendent may require; (d) that is the same as or, in the opinion of the Superintendent, substantially the same as or confusingly similar to the known name under or by which any entity carries on business or is identified; or (e) that is reserved under section 45 for a company or society or a proposed company or society or under section 734 for another insurance holding company or a proposed insurance holding company.
Affiliated insurance holding company
731. Despite section 730 and subject to section 732, an insurance holding company that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, (a) be incorporated with, or change its name to, substantially the same name as that of the affiliated entity; or (b) subject to any terms and conditions that may be prescribed, carry on business under or identify itself by a name, other than its corporate name, that is substantially the
Institutions f same as the corporate name of the affiliated entity or that is another name under which or with which the affiliated entity carries on business or otherwise identifies itself.
Restriction
732. An insurance holding company may not be incorporated or continued with, or change its name to or carry on business or identify itself by, a name that is substantially the same as that of a company unless the name contains words that, in the opinion of the Superintendent, indicate to the public that the insurance holding company is distinct from any company that is a subsidiary of the insurance holding company.
French or English form of name
733. (1) The name of an insurance holding company may be set out in its letters patent in an English form, a French form, an English form and a French form or in a combined English and French form, and the insurance holding company may use and be legally designated by any such form.
Mandatory abbreviation
(2) Despite any other provision of this Act and subject to the regulations, every insurance holding company shall have as part of its name, the abbreviations ‘‘ihc’’ or ‘‘spa’’.
Alternate name
(3) An insurance holding company may identify itself outside Canada by its name in any language and the insurance holding company may use and be legally designated by any such form of its name outside Canada.
Other name
(4) Subject to subsection (5) and section 880, an insurance holding company may carry on business under or identify itself by a name other than its corporate name.
Directions
(5) If an insurance holding company is carrying on business under or identifying itself by a name other than its corporate name, the Superintendent may, by order, direct the insurance holding company not to use that other name if the Superintendent is of the opinion that that other name is a name referred to in any of paragraphs 730(a) to (e).
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Regulations
(6) The Governor in Council may make regulations respecting the use of the abbreviations ‘‘ihc’’ or ‘‘spa’’ in the name of insurance holding companies.
Reserved name
734. The Superintendent may, on request, reserve for ninety days a name for a proposed insurance holding company or for an insurance holding company that intends to change its name.
Directing change of name
735. (1) If through inadvertence or otherwise an insurance holding company (a) comes into existence or is continued with a name, or (b) on an application to change its name, is granted a name that is prohibited by section 730 or 732, the Superintendent may, by order, direct the insurance holding company to change its name and the insurance holding company shall comply with that direction.
Revoking name
(2) Where an insurance holding company has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Part, the Superintendent may revoke the name of the insurance holding company and assign to it a name and, until changed in accordance with section 849 or 851, the name of the insurance holding company is thereafter the name so assigned.
Subsidiaries
736. Despite subsection 47(1), a subsidiary of an insurance holding company may, with the approval in writing of the Superintendent, use the word ‘‘assurance’’, ‘‘assurances’’, ‘‘insurance’’ or ‘‘lifeco’’ or any word or words of import equivalent to any of those words in its name.
Definition of ‘‘reserved name’’
737. (1) In this section, ‘‘reserved name’’ means a name that includes as part thereof the word ‘‘assurance’’, ‘‘assurances’’, ‘‘insurance’’, ‘‘lifeco’’, ‘‘fiduciaire’’, ‘‘fiduciary’’, ‘‘fiducie’’, ‘‘trust’’, ‘‘trustco’’, ‘‘loan’’, ‘‘loanco’’ or ‘‘prêt’’ or any word or words of import equivalent to any of those words.
2001 Termination of control required in certain cases
Institutions f (2) No person, other than a financial institution, who (a) is carrying on business in Canada under a reserved name, and (b) has control or acquires control of an insurance holding company, shall control the insurance holding company one year after the date of acquisition of the control.
Prohibition
(3) No person, other than a financial institution, who (a) controls an entity that is not a financial institution that carries on business in Canada under a reserved name, and (b) has control or acquires control of an insurance holding company, shall control the insurance holding company one year after the date of the acquisition of the control.
Continuing control prohibited
(4) Despite subsection (3), where a financial institution controls an entity that (a) is not a financial institution, (b) carries on business in Canada under a reserved name, and (c) acquires control of an insurance holding company, the entity shall not control the insurance holding company one year after the date on which the entity acquires control of the insurance holding company.
Exceptions
(5) Subsections (2) to (4) do not apply with respect to a person or entity that was carrying on business in Canada under a reserved name on June 25, 1999. Publication of Information
Publication of information
738. The Superintendent shall, within sixty days after the end of each year, cause a notice to be published in the Canada Gazette, showing (a) the name of every insurance holding company; and (b) the place in Canada where the head office of the insurance holding company is situated.
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Financial In DIVISION 4 ORGANIZATION AND COMMENCEMENT
First directors’ meeting
739. (1) After letters patent incorporating an insurance holding company are issued, a meeting of the directors of the insurance holding company shall be held at which the directors may, subject to this Division, (a) make by-laws; (b) adopt forms of share certificates and corporate records; (c) authorize the issue of shares of the insurance holding company; (d) appoint officers; (e) appoint an auditor to hold office until the meeting called under subsection 740(1); (f) make banking arrangements; and (g) deal with any other matters necessary to organize the insurance holding company.
Calling directors’ meeting
(2) An incorporator or a director named in the application for letters patent may call the meeting referred to in subsection (1) by giving, subject to subsection 817(2), no fewer than five days notice of the purpose, time and place of the meeting to each director of the insurance holding company.
Calling shareholders’ meeting
740. (1) After the meeting referred to in subsection 739(1) is held, the directors of the insurance holding company shall without delay call a meeting of the shareholders of the insurance holding company.
Meeting of shareholders or incorporators
(2) The shareholders of an insurance holding company shall, by resolution at the meeting of shareholders called under subsection (1), (a) approve, amend or reject any by-law made by the directors of the insurance holding company; (b) subject to section 803, elect directors to hold office for a term expiring not later than the close of the third annual meeting of shareholders following the election; and (c) appoint an auditor to hold office until the close of the first annual meeting of shareholders.
2001 Term of first directors
Institutions f 741. A director named in the application for letters patent to incorporate an insurance holding company holds office until the election of directors at the meeting of shareholders called under subsection 740(1). DIVISION 5 CAPITAL STRUCTURE Share Capital
Power to issue shares
742. (1) Subject to this Part and the by-laws of the insurance holding company, shares of an insurance holding company may be issued at such times and to such persons and for such consideration as the directors of the insurance holding company may determine.
Shares
(2) Shares of an insurance holding company shall be in registered form and shall be without nominal or par value.
Shares of continued insurance holding company
(3) If a body corporate is continued as an insurance holding company under this Part, shares with nominal or par value issued by the body corporate before it was so continued are deemed to be shares without nominal or par value.
Deemed share conditions
(4) If any right of a holder of a share with nominal or par value of a body corporate continued as an insurance holding company under this Part, other than a voting right, was stated or expressed in terms of the nominal or par value of the share immediately before the continuance under this Part that right is thereafter deemed to be the same right stated or expressed without reference to the nominal or par value of the share.
Common shares
743. (1) An insurance holding company shall have one class of shares, to be designated as ‘‘common shares’’, which are non-redeemable and in which the rights of the holders thereof are equal in all respects, and those rights include (a) the right to vote at all meetings of shareholders except where only holders of a specified class of shares are entitled to vote; (b) the right to receive dividends declared on those shares; and
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(c) the right to receive the remaining property of the insurance holding company on dissolution. Designations of shares
(2) No insurance holding company shall designate more than one class of its shares as ‘‘common shares’’ or any variation of that term.
Continued insurance holding company
(3) A body corporate continued as an insurance holding company under this Part that is not in compliance with subsection (2) on the date letters patent continuing it as an insurance holding company are issued shall, within twelve months after that date, redesignate its shares to comply with that subsection.
Classes of shares
744. (1) The by-laws of an insurance holding company may provide for more than one class of shares and, if they so provide, shall set out (a) the rights, privileges, restrictions and conditions attaching to the shares of each class; and (b) the maximum number, if any, of shares of any class that the insurance holding company is authorized to issue.
Shareholder approval
(2) Where a by-law referred to in subsection (1) is made, the directors of the insurance holding company shall submit the by-law to the shareholders at the next meeting of shareholders.
Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2).
Shares in series
745. (1) The by-laws of an insurance holding company made pursuant to section 744 may authorize the issue of any class of shares in one or more series and may authorize the directors of the insurance holding company to fix the maximum number, if any, of shares in each series and to determine the designation, rights, privileges, restrictions and conditions attaching to the shares of each series, subject to the limitations set out in the by-laws.
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Series participation
(2) If any cumulative dividend or amounts payable on return of capital in respect of a series of shares are not paid in full, the shares of all series of the same class participate rateably in respect of accumulated dividends and return of capital.
Voting rights
(3) Where voting rights are attached to any series of a class of shares, the shares of every other series of that class shall have the same voting rights.
Restriction on series
(4) No rights, privileges, restrictions or conditions attached to a series of shares authorized under this section confer on the series a priority in respect of dividends or return of capital over any other series of shares of the same class that are then outstanding.
Material to Superintendent
(5) Before the issue of shares of a series of shares authorized under this section, the directors shall send to the Superintendent a copy of the by-law authorizing the directors to fix the rights, privileges, restrictions and conditions of those shares and shall provide the Superintendent with particulars of the proposed series of shares.
One share, one vote
746. Where voting rights are attached to a share of an insurance holding company, the voting rights may confer only one vote in respect of that share.
Shares non-assessable
747. Shares issued by an insurance holding company are non-assessable and the shareholders are not liable to the insurance holding company or to its creditors in respect thereof.
Consideration for share
748. (1) No share of any class of shares of an insurance holding company shall be issued until it is fully paid for in money or, with the approval of the Superintendent, in property.
Other currencies
(2) When issuing shares, an insurance holding company may provide that any aspect of the shares relating to money or involving the payment of or the liability to pay money be in a currency other than the currency of Canada.
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Stated capital account
749. (1) An insurance holding company shall maintain a separate stated capital account for each class and series of shares it issues.
Addition to stated capital account
(2) An insurance holding company shall record in the appropriate stated capital account the full amount of any consideration it receives for any shares it issues.
Exception
(3) Despite subsection (2), an insurance holding company may record in the appropriate stated capital account part of the amount of any consideration it receives for shares it issues (a) in exchange for (i) property of a person who immediately before the exchange did not deal with the insurance holding company at arm’s length within the meaning of the Income Tax Act, or (ii) shares of a body corporate that immediately before the exchange, or because of the exchange, did not deal with the insurance holding company at arm’s length within the meaning of the Income Tax Act; or (b) under an agreement referred to in subsection 858(1) to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated insurance holding company.
Limit on addition to a stated capital account
(4) On the issuance of a share, an insurance holding company shall not add to the stated capital account in respect of the share an amount greater than the amount of the consideration it receives for the share.
Constraint on addition to a stated capital account
(5) Where an insurance holding company that has issued any outstanding shares of more than one class or series proposes to add to a stated capital account that it maintains in respect of a class or series of shares an amount that was not received by the insurance holding company as consideration for the issue of shares, the addition must be approved by special resolution unless all the issued and outstanding shares are of not more than two classes of convertible shares referred to in subsection 759(4).
2001 Stated capital of continued insurance holding company
Institutions f 750. (1) Where a body corporate is continued as an insurance holding company under this Part, the insurance holding company shall record in the stated capital account maintained for each class and series of shares then outstanding an amount that is equal to the aggregate of (a) the aggregate amount paid up on the shares of each class and series of shares immediately before the body corporate was so continued, and (b) the amount of the contributed surplus of the insurance holding company that is attributable to those shares.
Contributed surplus entry
(2) The amount of any contributed surplus recorded in the stated capital account pursuant to paragraph (1)(b) shall be deducted from the contributed surplus account of the insurance holding company.
Shares issued before continuance
(3) Any amount unpaid in respect of a share issued by a body corporate before it was continued as an insurance holding company under this Part and paid after it was so continued shall be recorded in the stated capital account maintained by the insurance holding company for the shares of that class or series.
Pre-emptive right
751. (1) Where the by-laws of an insurance holding company so provide, no shares of any class shall be issued unless the shares have first been offered to the shareholders holding shares of that class, and those shareholders have a pre-emptive right to acquire the offered shares in proportion to their holdings of the shares of that class, at such price and on such terms as those shares are to be offered to others.
Exception
(2) Despite the existence of a pre-emptive right, a shareholder of an insurance holding company has no pre-emptive right in respect of shares of a class to be issued (a) for a consideration other than money; (b) as a share dividend; or (c) pursuant to the exercise of conversion privileges, options or rights previously granted by the insurance holding company.
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(3) Despite the existence of a pre-emptive right, a shareholder of an insurance holding company has no pre-emptive right in respect of shares to be issued (a) where the issue of shares to the shareholder is prohibited by this Part; or (b) where, to the knowledge of the directors of the insurance holding company, the offer of shares to a shareholder whose recorded address is in a country other than Canada ought not to be made unless the appropriate authority in that country is provided with information in addition to that submitted to the shareholders at the last annual meeting.
Conversion privileges
752. (1) An insurance holding company may issue conversion privileges, options or rights to acquire securities of the insurance holding company, and shall set out the conditions thereof (a) in the documents that evidence the conversion privileges, options or rights; or (b) in the securities to which the conversion privileges, options or rights are attached.
Transferable rights
(2) Conversion privileges, options and rights to acquire securities of an insurance holding company may be made transferable or non-transferable, and options and rights to acquire such securities may be made separable or inseparable from any securities to which they are attached.
Reserved shares
(3) Where an insurance holding company has granted privileges to convert any securities issued by the insurance holding company into shares, or into shares of another class or series, or has issued or granted options or rights to acquire shares, if the by-laws limit the number of authorized shares, the insurance holding company shall reserve and continue to reserve sufficient authorized shares to meet the exercise of such conversion privileges, options and rights.
Holding of own shares
753. Except as provided in sections 754 to 756, or unless permitted by the regulations, an insurance holding company shall not (a) hold shares of the insurance holding company or of any body corporate that controls the insurance holding company;
Institutions f (b) hold any ownership interests of any unincorporated entity that controls the insurance holding company; (c) permit any of its subsidiaries to hold any shares of the insurance holding company or of any body corporate that controls the insurance holding company; or (d) permit any of its subsidiaries to hold any ownership interests of any unincorporated entity that controls the insurance holding company.
Purchase and redemption of shares
754. (1) Subject to subsection (2) and to its by-laws, an insurance holding company may, with the consent of the Superintendent, purchase, for the purpose of cancellation, any shares issued by it, or redeem any redeemable shares issued by it at prices not exceeding the redemption price thereof calculated according to a formula stated in its by-laws or the conditions attaching to the shares.
Restrictions on purchase and redemption
(2) An insurance holding company shall not make any payment to purchase or redeem any shares issued by it if there are reasonable grounds for believing that it is, or the payment would cause it to be, in contravention of a regulation referred to in subsection 992(1) or (2) or a direction made under subsection 992(3).
Donated shares
(3) An insurance holding company may accept from any shareholder a share of the insurance holding company surrendered to it as a gift, but may not extinguish or reduce a liability in respect of an amount unpaid on any such share except in accordance with section 757.
Holding as personal representative
755. (1) An insurance holding company may permit its subsidiaries to hold, in the capacity of a personal representative, shares of the insurance holding company or of any body corporate that controls the insurance holding company or ownership interests in any unincorporated entity that controls the insurance holding company, but only if the subsidiary does not have a beneficial interest in the shares or ownership interests.
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Security interest
(2) An insurance holding company may permit its subsidiaries to hold, by way of a security interest, shares of the insurance holding company or of any body corporate that controls the insurance holding company or any ownership interests of any entity that controls the insurance holding company if the security interest is nominal or immaterial when measured by criteria established by the insurance holding company that have been approved in writing by the Superintendent.
Cancellation of shares
756. (1) Subject to subsection (2), where an insurance holding company purchases shares of the insurance holding company or fractions thereof or redeems or otherwise acquires shares of the insurance holding company, the insurance holding company shall cancel those shares.
Requirement to sell
(2) If a subsidiary of an insurance holding company, through the realization of security, acquires any shares of the insurance holding company or of any body corporate that controls the insurance holding company or any ownership interests in an unincorporated entity that controls the insurance holding company, the insurance holding company shall cause its subsidiary to, within six months after the day of the realization, sell or otherwise dispose of the shares or ownership interests.
Reduction of capital
757. (1) The stated capital of an insurance holding company may be reduced by special resolution.
Limitation
(2) An insurance holding company shall not reduce its stated capital by special resolution if there are reasonable grounds for believing that the insurance holding company is, or the reduction would cause the insurance holding company to be, in contravention of a regulation referred to in subsection 992(1) or (2) or in a direction made under subsection 992(3).
Contents of special resolution
(3) A special resolution to reduce the stated capital of an insurance holding company shall specify the stated capital account or accounts from which the reduction of stated capital effected by the special resolution will be deducted.
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Approval by Superintendent
(4) A special resolution to reduce the stated capital of an insurance holding company has no effect until it is approved in writing by the Superintendent.
Conditions for approval
(5) No approval to reduce the stated capital of an insurance holding company may be given by the Superintendent unless application therefor is made within three months after the time of the passing of the special resolution and a copy of the special resolution, together with a notice of intention to apply for approval, has been published in the Canada Gazette.
Statements to be submitted
(6) In addition to evidence of the passing of a special resolution to reduce the stated capital of an insurance holding company and of the publication thereof, statements showing (a) the number of the insurance holding company’s shares issued and outstanding, (b) the results of the voting by class of shares of the insurance holding company, (c) the insurance holding company’s assets and liabilities, and (d) the reason why the insurance holding company seeks the reduction of capital shall be submitted to the Superintendent at the time of the application for approval of the special resolution.
Recovery by action
758. (1) Where any money or property was paid or distributed to a shareholder or other person as a consequence of a reduction of capital made contrary to section 757, a creditor of the insurance holding company may apply to a court for an order compelling the shareholder or other person to pay the money or deliver the property to the insurance holding company.
Shares held by personal representative
(2) No person holding shares in the capacity of a personal representative and registered on the records of the insurance holding company as a shareholder and therein described as the personal representative of a named person is personally liable under subsection (1), but the named person is subject to all the liabilities imposed by that subsection.
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Limitation
(3) An action to enforce a liability imposed by subsection (1) may not be commenced more than two years after the date of the act complained of.
Remedy preserved
(4) This section does not affect any liability that arises under section 841.
Adjustment of stated capital account
759. (1) On a purchase, redemption or other acquisition by an insurance holding company of shares or fractions thereof issued by it, the insurance holding company shall deduct from the stated capital account maintained for the class or series of shares so purchased, redeemed or otherwise acquired an amount equal to the result obtained by multiplying the stated capital in respect of the shares of that class or series by the number of shares of that class or series so purchased, redeemed or otherwise acquired and dividing by the number of shares of that class or series outstanding immediately before the purchase, redemption or other acquisition.
Adjustment of stated capital account
(2) An insurance holding company shall adjust its stated capital account or accounts in accordance with any special resolution referred to in section 757.
Shares converted to another class
(3) On a conversion of outstanding shares of an insurance holding company into shares of another class or series, or on a change of outstanding shares of the insurance holding company into shares of another class or series, the insurance holding company shall (a) deduct from the stated capital account maintained for the class or series of shares converted or changed an amount equal to the result obtained by multiplying the stated capital of the shares of that class or series by the number of shares of that class or series converted or changed, and dividing by the number of outstanding shares of that class or series immediately before the conversion or change; and (b) record the result obtained under paragraph (a) and any additional consideration received pursuant to the conversion or change in the stated capital account maintained or to be maintained for the class or series of shares into which the shares have been converted or changed.
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Stated capital of convertible shares
(4) For the purposes of subsection (3) and subject to the insurance holding company’s by-laws, where an insurance holding company issues two classes of shares and there is attached to each class a right to convert a share of one class into a share of the other class and a share is so converted, the amount of stated capital attributable to a share in either class is the aggregate of the stated capital of both classes divided by the number of outstanding shares of both classes immediately before the conversion.
Conversion or change of shares
(5) Shares issued by an insurance holding company and converted into shares of another class or series, or changed under subsection 851(1) into shares of another class or series, become issued shares of the class or series of shares into which the shares have been converted or changed.
Addition to stated capital account
760. On a conversion of any debt obligation of an insurance holding company into shares of a class or series of shares, the insurance holding company shall (a) deduct from the liabilities of the insurance holding company the nominal value of the debt obligation being converted; and (b) record the result obtained under paragraph (a) and any additional consideration received for the conversion in the stated capital account maintained or to be maintained for the class or series of shares into which the debt obligation has been converted.
Declaration of dividend
761. (1) The directors of an insurance holding company may declare and an insurance holding company may pay a dividend by issuing fully paid shares of the insurance holding company or options or rights to acquire fully paid shares of the insurance holding company and, subject to subsection (4), the directors of an insurance holding company may declare and an insurance holding company may pay a dividend in money or property, and, where a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada.
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Notice to Superintendent
(2) The directors of an insurance holding company shall notify the Superintendent of the declaration of a dividend at least ten days prior to the day fixed for its payment.
Share dividend
(3) If shares of an insurance holding company are issued in payment of a dividend, the insurance holding company shall record in the stated capital account maintained or to be maintained for the shares of the class or series issued in payment of the dividend the declared amount of the dividend stated as an amount of money.
When dividend not to be declared
(4) The directors of an insurance holding company shall not declare and an insurance holding company shall not pay a dividend if there are reasonable grounds for believing that the insurance holding company is, or the payment would cause the insurance holding company to be, in contravention of a regulation referred to in subsection 992(1) or (2) or in a direction made under subsection 992(3).
Subordinated Indebtedness Restriction on subordinated indebtedness
762. (1) An insurance holding company shall not issue subordinated indebtedness unless the subordinated indebtedness is fully paid for in money or, with the approval of the Superintendent, in property.
References to subordinated indebtedness
(2) A person shall not in any prospectus, advertisement, correspondence or literature relating to any subordinated indebtedness issued or to be issued by an insurance holding company refer to the subordinated indebtedness otherwise than as subordinated indebtedness.
Other currencies
(3) When issuing subordinated indebtedness, an insurance holding company may provide that any aspect of the subordinated indebtedness relating to money or involving the payment of or the liability to pay money in relation thereto be in a currency other than that of Canada including, without restricting the generality of the foregoing, the payment of any interest thereon.
Institutions f Security Certificates and Transfers
Sections 85 to 139 apply
763. Sections 85 to 139 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; (c) references to ‘‘Part VII’’ in those sections are to be read as references to ‘‘Division 7 of Part XVII’’; (d) references to ‘‘this Part’’ in those sections are to be read as references to ‘‘this Division’’; (e) paragraph 92(1)(a) is to be read without reference to the words ‘‘other than section 427’’; (f) the reference to ‘‘sections 142 to 145 and section 149’’ in subsection 97(1) is to be read as a reference to ‘‘sections 766 to 769 and 772’’; and (g) the reference to ‘‘section 75 or 81’’ in subsection 101(3) is to be read as a reference to ‘‘section 754 or 759’’. DIVISION 6 CORPORATE GOVERNANCE
Subdivision 1 Shareholders Place of Meetings Place of meetings
764. Meetings of shareholders of an insurance holding company shall be held at the place within Canada provided for in the by-laws of the insurance holding company or, in the absence of any such provision, at the place within Canada that the directors determine.
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Calling Meetings Calling meetings
765. The directors of an insurance holding company (a) shall, after the meeting called under subsection 740(1), call the first annual meeting of shareholders of the insurance holding company, which meeting must be held not later than six months after the end of the first financial year of the insurance holding company; (b) shall subsequently call an annual meeting of shareholders, which meeting must be held not later than six months after the end of each financial year; and (c) may at any time call a special meeting of shareholders. Record Dates
Fixing record date
766. (1) For the purpose of determining (a) shareholders entitled to receive payment of a dividend, (b) shareholders entitled to participate in a liquidation distribution, or (c) who is a shareholder for any other purpose except the right to receive notice of, or to vote at, a meeting, the directors may fix in advance a date as the record date for the determination of shareholders, but the record date so fixed shall not precede by more than fifty days the particular action to be taken.
Record date for meetings
(2) For the purpose of determining shareholders entitled to receive notice of a meeting of shareholders, the directors may fix in advance a date as the record date for the determination of shareholders, but the record date so fixed shall not precede the date on which the meeting is to be held by more than fifty days or less than twenty-one days.
No record date fixed under subsection (1)
(3) If no record date is fixed under subsection (1) for the determination of shareholders for any purpose for which a record date could have been fixed under that subsection, the record date for the determination of shareholders for that purpose is the date on which the directors pass the resolution relating to that purpose.
2001 No record date fixed for shareholders under subsection (2)
Institutions f (4) If no record date is fixed under subsection (2) for the determination of shareholders entitled to receive notice of a meeting, the record date for the determination of shareholders entitled to receive notice of, or to vote at, that meeting is (a) the day immediately before the day on which the notice is given; or (b) if no notice is given, the day on which the meeting is held.
Notice of record date
(5) Subject to subsection (6), where a record date is fixed for the determination of shareholders for any purpose, notice of the record date shall, not less than seven days before the record date, be given (a) by advertisement in a newspaper in general circulation in the place where the head office of the insurance holding company is situated and in each place in Canada where the insurance holding company has a transfer agent or where a transfer of the insurance holding company’s shares may be recorded; and (b) by written notice to each stock exchange, if any, in Canada on which the shares of the insurance holding company are listed for trading.
Exception
(6) Notice of a record date need not be given where the requirement to give the notice is waived in writing by every holder of a share of the class or series affected by the fixing of the record date whose name is set out in the central securities register at the close of business on the day on which the directors fix the record date.
Notices of Meetings Notice of meeting
767. (1) Notice of the time and place of a meeting of shareholders of a company shall be sent not less than twenty-one days or more than fifty days before the meeting to (a) each shareholder entitled to vote at the meeting; (b) each director; and (c) the auditor of the insurance holding company.
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Number of eligible votes
(2) An insurance holding company in respect of which subsection 927(4) applies shall set out in the notice of a meeting the number of eligible votes, as defined under subsection 793(1), that may be cast at the meeting as of the record date for determining the shareholders entitled to receive the notice of meeting, or, if there are to be separate votes of shareholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting.
Waiver of notice
(3) An insurance holding company is not required under subsection (1) to send to a person notice of a meeting if the person waives notice of the meeting. That waiver may be in any manner.
Attendance constitutes waiver
(4) A person who attends a meeting of shareholders is deemed to have waived notice of the meeting, except where the person attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Publication in newspaper
(5) In addition to the notice required under subsection (1), where any class of shares of an insurance holding company is publicly traded on a recognized stock exchange in Canada, notice of the time and place of the meeting of shareholders shall be published once a week for at least four consecutive weeks before the date of the meeting in a newspaper in the place where the head office of the insurance holding company is situated and in each place in Canada where the insurance holding company has a transfer agent or where a transfer of the insurance holding company’s shares may be recorded.
When notice not required
(6) A notice of a meeting of shareholders is not required to be sent to shareholders who are not registered on the records of the insurance holding company or its transfer agent on the record date fixed or determined under subsection 766(2) or (4).
Effect of default
(7) Failure to receive a notice of a meeting of shareholders does not deprive a shareholder of the right to vote at the meeting.
Institutions f
Notice of adjourned meeting
768. (1) If a meeting of shareholders is adjourned for less than thirty days, it is not necessary, unless the by-laws otherwise provide, to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned.
Notice after longer adjournment
(2) If a meeting of shareholders is adjourned by one or more adjournments for a total of thirty days or more, notice of the continuation of the meeting shall be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for a total of more than ninety days, subsection 788(1) does not apply.
Special business
769. (1) All matters dealt with at a special meeting of shareholders or at an annual meeting of shareholders are deemed to be special business, except that special business does not include consideration of (a) the financial statements; (b) the auditor’s report; (c) the election of directors; or (d) the remuneration of directors and reappointment of the incumbent auditor.
Notice of special business
(2) Notice of a meeting of shareholders at which special business is to be transacted must (a) state the nature of the special business in sufficient detail to permit a shareholder to form a reasoned judgment thereon; and (b) contain the text of any special resolution to be submitted to the meeting.
Shareholder Proposals Proposal
770. (1) A shareholder entitled to vote at an annual meeting of shareholders of an insurance holding company may (a) submit to the insurance holding company notice of any matter that the shareholder proposes to raise at the meeting; and (b) discuss at the meeting any matter in respect of which the shareholder would have been entitled to submit a proposal.
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Circulation of proposal
(2) An insurance holding company shall attach any proposal of a shareholder submitted for consideration at a meeting of shareholders to the notice of the meeting.
Proponent’s statement
(3) If so requested by a shareholder who submits a proposal to an insurance holding company, the insurance holding company shall attach to the notice of the meeting a statement by the shareholder of not more than two hundred words in support of the proposal and the name and address of the shareholder.
Nominations for directors
(4) A proposal may include nominations for the election of directors if the proposal is signed by one or more holders of shares representing in the aggregate not less than 5 per cent of the shares or 5 per cent of the shares of a class of shares of the insurance holding company entitled to vote at the meeting to which the proposal is to be presented.
Conditions precedent for proposals
(5) An insurance holding company is not required to comply with subsections (2) and (3) if (a) the proposal is not submitted to the insurance holding company at least ninety days before the anniversary date of the previous annual meeting of shareholders; (b) it clearly appears that the proposal is submitted by the shareholder primarily for the purpose of enforcing a personal claim or redressing a personal grievance against the insurance holding company or its directors, officers or security holders, or primarily for the purpose of promoting general economic, political, racial, religious, social or similar causes; (c) the insurance holding company, at the shareholder’s request, attached a proposal to the notice of a meeting of shareholders held within two years preceding the receipt of the request, and the shareholder failed to present the proposal, in person or by proxy, at the meeting; (d) substantially the same proposal was submitted to shareholders in a dissident’s proxy circular relating to, or was attached to the notice of, a meeting of shareholders held within two years preceding the receipt of the shareholder’s request and the proposal was defeated; or
Institutions f (e) the rights conferred by subsections (1) to (4) are being abused to secure publicity.
Immunity for proposal and statement
(6) No insurance holding company or person acting on behalf of an insurance holding company incurs any liability by reason only of circulating a proposal or statement in compliance with subsections (2) and (3).
Refusal of proposal
771. (1) If an insurance holding company refuses to attach a proposal to the notice of the meeting, the insurance holding company shall, within ten days after receiving the proposal, notify the shareholder submitting the proposal of its intention not to attach the proposal to the notice of the meeting and send to the shareholder a statement of the reasons for the refusal.
Appeal to court
(2) On the application of a shareholder claiming to be aggrieved by an insurance holding company’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order it thinks fit.
Appeal to court
(3) An insurance holding company or any person claiming to be aggrieved by a proposal may apply to a court for an order permitting the insurance holding company not to attach the proposal to the notice of the meeting, and the court, if it is satisfied that subsection 770(5) applies, may make such order as it thinks fit.
Notice to Superintendent
(4) An applicant under subsection (2) or (3) shall give the Superintendent written notice of the application and the Superintendent may appear and be heard at the hearing of the application in person or by counsel. Shareholder List
Shareholder list
772. (1) For each meeting of shareholders of an insurance holding company, the insurance holding company shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 767(1)(a), arranged in alphabetical order and showing the number of shares held by each shareholder.
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(2) If a record date is fixed under subsection 766(2), the list referred to in subsection (1) shall be prepared not later than ten days after that record date. If no record date is fixed under that subsection, the list shall be prepared (a) at the close of business on the day before the day on which the notice of the meeting is given; or (b) if no notice is given, on the day on which the meeting is held.
Effect of list
(3) Except as otherwise provided in this Part, at a meeting to which a list prepared under subsection (1) relates, a person named in the list is entitled to vote the shares shown on the list opposite the person’s name unless (a) the person has transferred the ownership of any of those shares after the record date fixed under subsection 766(2) or, if no record date is fixed, after the date on which the list was prepared, and (b) the transferee of those shares (i) produces properly endorsed share certificates, or (ii) otherwise establishes that the transferee owns the shares, and demands, not later than ten days before the meeting or such shorter period before the meeting as the by-laws of the insurance holding company provide, that the transferee’s name be included in the list before the meeting, in which case the transferee may vote those transferred shares at the meeting.
Examination of list
(4) A shareholder of an insurance holding company may examine the list of shareholders referred to in subsection (1) (a) during usual business hours at the head office of the insurance holding company or at the place where its central securities register is maintained; and (b) at the meeting of shareholders for which the list was prepared.
Institutions f Quorum
Shareholders
773. (1) Unless the by-laws otherwise provide, a quorum of shareholders is present at a meeting of shareholders if the holders of a majority of the shares who are entitled to vote at the meeting are present in person or represented by proxyholders.
Quorum at opening
(2) If a quorum is present at the opening of a meeting of shareholders, the shareholders present may, unless the by-laws otherwise provide, proceed with the business of the meeting, notwithstanding that a quorum is not present throughout the meeting.
No quorum at opening
(3) If a quorum is not present at the opening of a meeting of shareholders, the shareholders present may adjourn the meeting to a fixed time and place but may not transact any other business.
One shareholder meeting
774. If an insurance holding company has only one shareholder, or only one holder of any class or series of shares, the shareholder present in person or represented by a proxyholder constitutes a meeting of shareholders or a meeting of shareholders of that class or series.
Voting One share — one vote
775. Subject to section 793, if a share of an insurance holding company entitles the holder of the share to vote at a meeting of shareholders, that share entitles the shareholder to one vote at the meeting.
Representative shareholder
776. (1) If an entity is a shareholder of an insurance holding company, the insurance holding company shall recognize any natural person authorized by a resolution of the directors or governing body or similar authority of the entity to represent it at meetings of shareholders of the insurance holding company.
Powers of representative
(2) A natural person authorized under subsection (1) to represent an entity may exercise on behalf of the entity all the powers the entity could exercise if the entity were a natural person who was a shareholder.
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Joint shareholders
777. Unless the by-laws otherwise provide, if two or more persons hold shares jointly, one of those holders present at a meeting of shareholders may in the absence of the others vote the shares, but if two or more of those persons who are present in person or represented by proxyholder vote, they shall vote as one on the shares jointly held by them.
Voting by hands or ballot
778. (1) Unless the by-laws otherwise provide, voting at a meeting of shareholders shall take place by show of hands except when a ballot is demanded by a shareholder or proxyholder entitled to vote at the meeting.
Ballot
(2) A shareholder or proxyholder may demand a ballot either before or after any vote by show of hands. Resolution in lieu of Meeting
Resolution in lieu of meeting
779. (1) Except where a written statement is submitted by a director under section 809 or by an auditor under subsection 900(1), (a) a resolution in writing signed by all the shareholders entitled to vote on that resolution at a meeting of shareholders is as valid as if it had been passed at a meeting of the shareholders; and (b) a resolution in writing dealing with all matters required by this Part to be dealt with at a meeting of shareholders, and signed by all the shareholders entitled to vote at that meeting, satisfies all the requirements of this Part relating to meetings of shareholders.
Filing resolution
(2) A copy of every resolution referred to in subsection (1) shall be kept with the minutes of the meetings of shareholders. Requisitioned Meetings
Requisitioned meeting
780. (1) Shareholders who together hold not less than 5 per cent of the issued and outstanding shares of an insurance holding company that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition.
2001 Form
Institutions f (2) A requisition referred to in subsection (1) (a) must state the business to be transacted at the meeting and must be sent to each director and to the head office of the insurance holding company; and (b) may consist of several documents of like form, each signed by one or more shareholders.
Directors calling meeting
(3) On receipt of a requisition referred to in subsection (1), the directors shall call a meeting of shareholders to transact the business stated in the requisition, unless (a) a record date has been fixed under subsection 766(2) and notice thereof has been given under subsection 766(5); (b) the directors have called a meeting of shareholders and have given notice thereof under section 767; or (c) the business of the meeting as stated in the requisition includes matters described in paragraphs 770(5)(b) to (e).
Shareholders’ power
(4) If the directors do not call a meeting within twenty-one days after receiving a requisition referred to in subsection (1), any shareholder who signed the requisition may call the meeting.
Procedure
(5) A meeting called under this section shall be called as nearly as possible in the manner in which meetings are to be called pursuant to the by-laws and this Part.
Reimbursement
(6) Unless the shareholders otherwise resolve at a meeting called under subsection (4), the insurance holding company shall reimburse the shareholders for any expenses reasonably incurred by them in requisitioning, calling and holding the meeting.
Powers of the Court Meeting called by court
781. (1) A court may order a meeting of shareholders of an insurance holding company to be called, held and conducted in such manner as the court directs where (a) it is impracticable to call the meeting in the manner in which it is otherwise to be called;
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(b) it is impracticable to conduct the meeting in the manner required by the by-laws and this Part; or (c) the court thinks fit to make the order for any other reason. Who may apply for the order
(2) The court may make that order on the application of (a) the Superintendent; (b) a director; or (c) a shareholder entitled to vote at the meeting.
Varying quorum
(3) Without restricting the generality of subsection (1), a court may order that the quorum required by the by-laws or this Part be varied or dispensed with at a meeting called, held and conducted pursuant to this section.
Valid meeting
(4) A meeting called, held and conducted pursuant to this section is for all purposes a meeting of shareholders of the insurance holding company duly called, held and conducted.
Court review of election
782. (1) An insurance holding company or a shareholder or director of an insurance holding company may apply to a court to resolve any dispute in respect of the election or appointment of a director or an auditor of the insurance holding company.
Powers of court
(2) On an application under subsection (1), a court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order restraining a director or auditor whose election or appointment is challenged from acting pending determination of the dispute; (b) an order declaring the result of the disputed election or appointment; (c) an order requiring a new election or appointment, and including in the order directions for the management of the business and affairs of the insurance holding company until a new election is held or the new appointment is made; and
Institutions f (d) an order determining the voting rights of shareholders and persons claiming to own shares.
Notice to Superintendent
783. (1) A person who makes an application under subsection 781(1) or 782(1) shall give notice of the application to the Superintendent before the hearing and shall deliver a copy of the order of the court, if any, to the Superintendent.
Superintendent representation
(2) The Superintendent may appear and be heard in person or by counsel at the hearing of an application referred to in subsection (1). Pooling Agreements
Pooling agreement
784. A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them will be voted as provided in the agreement. Subdivision 2 Proxies and Restrictions on Voting Proxies
Definitions
785. The following definitions apply in this Subdivision.
‘‘registrant’’ « courtier agréé »
‘‘registrant’’ means a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction.
‘‘solicit’’ or ‘‘solicitation’’ « sollicitation »
‘‘solicit’’ or ‘‘solicitation’’ includes (a) a request for a proxy, whether or not accompanied by or included in a form of proxy, (b) a request to execute or not to execute a form of proxy or to revoke a proxy, (c) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and (d) the sending of a form of proxy to a shareholder under section 788, but does not include (e) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
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Financial In (f) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, (g) the sending by a registrant of the documents referred to in section 791, or (h) a solicitation by a person in respect of shares of which that person is the beneficial owner.
‘‘solicitation by or on behalf of the management of an insurance holding company’’ « sollicitation effectuée par la direction d’une société de portefeuille d’assurances ou pour son compte »
‘‘solicitation by or on behalf of the management of an insurance holding company’’ means a solicitation by any person pursuant to a resolution or instruction of, or with the acquiescence of, the directors or a committee of the directors of the insurance holding company.
Appointing proxyholder
786. (1) A shareholder who is entitled to vote at a meeting of shareholders may, by executing a form of proxy, appoint a proxyholder or one or more alternate proxyholders, who are not required to be shareholders, to attend and act at the meeting in the manner and to the extent authorized by the proxy and with the authority conferred by the proxy.
Execution of proxy
(2) A form of proxy shall be executed by a shareholder or by a shareholder’s attorney authorized in writing to do so.
Limit on authority
(3) No appointment of a proxyholder provides authority for the proxyholder to act in respect of the appointment of an auditor or the election of a director unless a nominee proposed in good faith for the appointment or election is named in the form of proxy, a management proxy circular, a dissident’s proxy circular or a proposal under subsection 770(1).
Institutions f
Required information
(4) A form of proxy must indicate, in bold-face type, that the shareholder by whom or on whose behalf it is executed may appoint a proxyholder, other than a person designated in the form of proxy, to attend and act on the shareholder’s behalf at a meeting to which the proxy relates, and must contain instructions as to the manner in which the shareholder may do so.
Validity of proxy
(5) A proxy is valid only at the meeting in respect of which it is given or at a continuation of the meeting after an adjournment.
Revocation of proxy
(6) A shareholder may revoke a proxy (a) by depositing an instrument in writing executed by the shareholder or by the shareholder’s attorney authorized in writing to do so (i) at the head office of the insurance holding company at any time up to and including the last business day before the day of a meeting, or a continuation of a meeting after an adjournment, at which the proxy is to be used, or (ii) with the chairperson of the meeting on the day of the meeting or a continuation of the meeting after an adjournment; or (b) in any other manner permitted by law.
Deposit of proxies
787. (1) The directors may specify, in a notice calling a meeting of shareholders or a continuation of a meeting of shareholders after an adjournment, a time before which executed forms of proxy to be used at the meeting or the continued meeting must be deposited with the insurance holding company or its transfer agent.
Time for deposit of proxies
(2) The time specified for the deposit of forms of proxy may not precede the meeting or the continued meeting by more than forty-eight hours, excluding Saturdays and holidays.
Mandatory solicitation
788. (1) Subject to subsection 768(2) and subsection (2), the management of an insurance holding company shall, at the same time as they send notice of a meeting of shareholders, send a form of proxy in prescribed form to each shareholder entitled to receive notice of the meeting under section 767.
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Exception
(2) If an insurance holding company has fewer than fifteen shareholders, the management of the insurance holding company is not required to send a form of proxy to the shareholders under subsection (1). For the purpose of this subsection, two or more joint shareholders are counted as one shareholder.
Soliciting proxies
789. (1) A person shall not solicit proxies unless (a) in the case of solicitation by or on behalf of the management of an insurance holding company, a management proxy circular in prescribed form, either as an appendix to or as a separate document accompanying the notice of the meeting, is sent to the auditor of the insurance holding company and to each shareholder whose proxy is solicited; and (b) in the case of any other solicitation, a dissident’s proxy circular in prescribed form stating the purposes of the solicitation is sent to the auditor of the insurance holding company, to each shareholder whose proxy is solicited and to the insurance holding company.
Copy to Superintendent
(2) A person who sends a management proxy circular or dissident’s proxy circular shall at the same time file with the Superintendent (a) in the case of a management proxy circular, a copy of it together with a copy of the notice of meeting, form of proxy and any other documents for use in connection with the meeting; and (b) in the case of a dissident’s proxy circular, a copy of it together with a copy of the form of proxy and any other documents for use in connection with the meeting.
Exemption by Superintendent
(3) On the application of an interested person, the Superintendent may, on any terms that the Superintendent thinks fit, exempt the person from any of the requirements of subsection (1) and section 788, and the exemption may be given retroactive effect.
Institutions f
Reporting exemptions
(4) The Superintendent shall set out in a periodical available to the public the particulars of each exemption granted under subsection (3) together with the reasons for the exemption.
Attendance at meeting
790. (1) A person who solicits a proxy and is appointed proxyholder shall attend in person or cause an alternate proxyholder to attend every meeting in respect of which the proxy is valid, and the proxyholder or alternate proxyholder shall comply with the directions of the shareholder who executed the form of proxy.
Rights of proxyholder
(2) A proxyholder or an alternate proxyholder has the same rights as the appointing shareholder to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting and, except where a proxyholder or an alternate proxyholder has conflicting instructions from more than one shareholder, to vote at the meeting in respect of any matter by way of a show of hands.
Vote by show of hands
(3) Where the chairperson of a meeting of shareholders declares to the meeting that, if a ballot were conducted, the total number of votes represented at the meeting by proxy required to be voted against what, to the knowledge of the chairperson, would be the decision of the meeting in relation to any matter or group of matters is less than five per cent of all the votes that might be cast at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot, (a) the chairperson may conduct the vote in respect of that matter or group of matters by way of a show of hands; and (b) a proxyholder or alternate proxyholder may vote in respect of that matter or group of matters by way of a show of hands.
Duty of registrant
791. (1) Shares of an insurance holding company that are registered in the name of a registrant or registrant’s nominee and that are not beneficially owned by the registrant shall not be voted unless the registrant sends to the beneficial owner (a) a copy of the notice of the meeting, annual statement, management proxy circular, dissident’s proxy circular and any
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other documents, other than the form of proxy, that were sent to shareholders by or on behalf of any person for use in connection with the meeting; and (b) a written request for voting instructions, except where the registrant has already received written voting instructions from the beneficial owner. When documents to be sent
(2) The documents to be sent to the beneficial owner under subsection (1) shall be sent by the registrant without delay after the registrant receives the documents referred to in paragraph (1)(a).
Where registrant not to vote shares
(3) A registrant shall not vote or appoint a proxyholder to vote shares of an insurance holding company registered in the registrant’s name or in the name of the registrant’s nominee that the registrant does not beneficially own unless the registrant receives voting instructions from the beneficial owner.
Copies
(4) A person by or on behalf of whom a solicitation is made shall, at the request of a registrant, without delay provide the registrant, at that person’s expense, with the necessary number of copies of the documents referred to in paragraph (1)(a).
Instructions to registrant
(5) A registrant shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.
Beneficial owner as proxyholder
(6) If requested by a beneficial owner, a registrant shall appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.
Default of registrant — effect
(7) The failure of a registrant to comply with any of subsections (1) to (6) does not render void any meeting of shareholders or any action taken at the meeting.
Right of registrant limited
(8) Nothing in this Subdivision gives a registrant the right to vote shares that the registrant is otherwise prohibited from voting.
Restraining order
792. (1) If a form of proxy, management proxy circular or dissident’s proxy circular contains an untrue statement of a material fact or omits to state a material fact that is required to be contained in it or that is necessary to
Institutions f make a statement contained in it not misleading in light of the circumstances in which the statement is made, an interested person or the Superintendent may apply to a court and the court may make any order it thinks fit including (a) an order restraining the solicitation or the holding of the meeting, or restraining any person from implementing or acting on a resolution passed at the meeting, to which the form of proxy, management proxy circular or dissident’s proxy circular relates; (b) an order requiring correction of any form of proxy or proxy circular and a further solicitation; and (c) an order adjourning the meeting.
Notice of application
(2) Where a person other than the Superintendent is an applicant under subsection (1), the applicant shall give to the Superintendent notice of the application and the Superintendent is entitled to appear and to be heard in person or by counsel. Restrictions on Voting
Meaning of ‘‘eligible votes’’
793. (1) In this section, ‘‘eligible votes’’ means the total number of votes that may be cast by or on behalf of shareholders on a vote of shareholders or a vote of holders of a class or series of shares, as the case may be, in respect of any particular matter, calculated without regard to subsection (2).
Restriction
(2) At a meeting of shareholders of an insurance holding company in respect of which subsection 927(4) applies, no person and no entity controlled by any person may, in respect of any vote of shareholders or holders of any class or series of shares of the company, cast votes in respect of any shares beneficially owned by the person or the entity that are, in aggregate, more than 20 per cent of the eligible votes that may be cast in respect of that vote.
Proxyholders
(3) No person who is a proxyholder for a person or for an entity controlled by a person may cast votes to which the proxy relates that the person or entity may not cast by reason of subsection (2).
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Exception
(4) Subsections (2) and (3) do not apply in respect of a vote held under section 852.
Validity of vote
(5) A vote in respect of a particular matter is not invalid merely because a person voted contrary to subsection (2) or (3).
Disposition of shareholdings
(6) If, with respect to any insurance holding company, a person contravenes subsection (2) or (3), the Minister may, by order, direct the shareholder of the shares to which the contravention relates or any person controlled by that shareholder to dispose of any number of shares of the insurance holding company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the shareholder and the persons controlled by that shareholder that is specified in the order.
Restriction on voting rights
(7) If the Minister makes an order under subsection (6), the person to whom the order relates may not, in person or by proxy, exercise any voting rights that are attached to shares of the company beneficially owned by the person.
Subsection (7) ceases to apply
(8) Subsection (7) shall cease to apply in respect of a person when the shares to which the order relates have been disposed of.
Reliance on number in notice
(9) For the purpose of this section, a person is entitled to rely on the number of eligible votes set out in a notice of a meeting under subsection 767(2).
Designation of persons
(10) For the purpose of this section, the Minister may, with respect to a particular insurance holding company, designate two or more persons who are parties to an agreement, commitment or understanding referred to in section 9 to be a single person.
Institutions f Subdivision 3 Directors and Officers Duties
Duty to manage
794. (1) Subject to this Act, the directors of an insurance holding company shall manage or supervise the management of the business and affairs of the insurance holding company.
Specific duties
(2) Without limiting the generality of subsection (1), the directors of an insurance holding company shall (a) establish an audit committee to perform the duties referred to in subsections 829(3) and (4); (b) establish procedures to resolve conflicts of interest, including techniques for the identification of potential conflict situations and for restricting the use of confidential information; (c) designate a committee of the board of directors to monitor the procedures referred to in paragraph (b); and (d) establish investment and lending policies, standards and procedures in accordance with section 968.
Exception
(3) Paragraph (2)(a) does not apply to the directors of an insurance holding company if (a) all the voting shares of the insurance holding company are beneficially owned by a Canadian financial institution described by any of paragraphs (a) to (d) of the definition ‘‘financial institution’’ in subsection 2(1); and (b) the audit committee of the Canadian financial institution referred to in paragraph (a) performs for and on behalf of the insurance holding company all the functions that would otherwise be required to be performed by the audit committee of the insurance holding company under this Part.
Duty of care
795. (1) Every director and officer of an insurance holding company in exercising any of the powers of a director or an officer and discharging any of the duties of a director or an officer shall
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(a) act honestly and in good faith with a view to the best interests of the insurance holding company; and (b) exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Duty to comply
(2) Every director, officer and employee of an insurance holding company shall comply with this Act, the regulations, the insurance holding company’s incorporating instrument and the by-laws of the insurance holding company.
No exculpation
(3) No provision in any contract, in any resolution or in the by-laws of an insurance holding company relieves any director, officer or employee of the insurance holding company from the duty to act in accordance with this Act and the regulations or relieves a director, officer or employee from liability for a breach thereof. Qualification and Number — Directors
Minimum number of directors
796. (1) An insurance holding company shall have at least seven directors.
Residency requirement
(2) At least one half of the directors of an insurance holding company that is a subsidiary of a foreign institution and at least two thirds of the directors of any other insurance holding company must be, at the time of each director’s election or appointment, resident Canadians.
Disqualified persons
797. The following persons are disqualified from being directors of an insurance holding company: (a) a person who is less than eighteen years of age; (b) a person who is of unsound mind and has been so found by a court in Canada or elsewhere; (c) a person who has the status of a bankrupt; (d) a person who is not a natural person; (e) a person who is prohibited by subsection 793(7) or section 945 or 955 from exercising voting rights attached to shares of the insurance holding company;
Institutions f (f) a person who is an officer, director or full-time employee of an entity that is prohibited by subsection 793(7) or section 945 or 955 from exercising voting rights attached to shares of the insurance holding company; (g) a person who is an agent or employee of Her Majesty in right of Canada or in right of a province; (h) a minister of Her Majesty in right of Canada or in right of a province; and (i) a person who is an agent or employee of the government of a foreign country or any political subdivision thereof.
No requirement to hold shares
798. A director of an insurance holding company is not required to hold shares of the insurance holding company.
Limit on directors
799. No more than 15 per cent of the directors of an insurance holding company may, at each director’s election or appointment, be employees of the insurance holding company or a subsidiary of the insurance holding company, except that up to four persons who are employees of the insurance holding company or a subsidiary of the insurance holding company may be directors of the insurance holding company if those directors constitute not more than one half of the directors of the insurance holding company. Election and Tenure — Directors
Number of directors
800. (1) Subject to subsection 796(1) and sections 803 and 851, the directors of an insurance holding company shall, by by-law, determine the number of directors or the minimum and maximum number of directors, but no by-law that decreases the number of directors shortens the term of an incumbent director.
Election at annual meeting
(2) A by-law made pursuant to subsection (1) that provides for a minimum and maximum number of directors may provide that the number of directors to be elected at any annual meeting of the shareholders be such number as is fixed by the directors prior to the annual meeting.
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Term of directors
801. (1) Except where this Part or the by-laws of an insurance holding company provide for cumulative voting, the insurance holding company may, by by-law, provide that the directors be elected for terms of one, two or three years.
Term of one, two or three years
(2) A director elected for a term of one, two or three years holds office until the close of the first, second or third annual meeting of shareholders, as the case may be, following the election of the director.
No stated term
(3) A director who is not elected for an expressly stated term of office ceases to hold office at the close of the next annual meeting of shareholders following the election of the director.
Tenure of office
(4) It is not necessary that all directors elected at a meeting of shareholders hold office for the same term.
Tenure of office
(5) If a by-law of an insurance holding company provides that the directors be elected for a term of two or three years, it may also provide that the term of office of each director be for the whole of that term, or that, as nearly as may be, one half of the directors retire each year if the term is two years, and that one third of the directors retire each year if the term is three years.
Composition requirements
(6) Where a director of an insurance holding company is elected or appointed for a term of more than one year, the insurance holding company shall comply with subsection 796(2) and section 799 at each annual meeting of shareholders during the director’s term of office as if that director were elected or appointed on that date.
Determining election of directors
802. (1) Except where this Part or the by-laws of an insurance holding company provide for cumulative voting, the persons, to the number authorized to be elected, who receive the greatest number of votes at an election of directors of an insurance holding company shall be the directors thereof.
Equal number of votes
(2) If, at any election of directors referred to in subsection (1), two or more persons receive an equal number of votes and there are not sufficient vacancies remaining to enable all
Institutions f the persons receiving an equal number of votes to be elected, the directors who receive a greater number of votes or the majority of them shall, in order to complete the full number of directors, determine which of the persons so receiving an equal number of votes are to be elected.
Cumulative voting
803. (1) Where this Part or the by-laws provide for cumulative voting, (a) there shall be a stated number determined by by-law, and not a minimum and maximum number, of directors; (b) each shareholder entitled to vote at an election of directors to be elected by cumulative voting has the right to cast a number of votes equal to the number of votes attached to the shares held by the shareholder multiplied by the number of directors to be elected by cumulative voting, and the shareholder may cast all such votes in favour of one candidate or distribute them among the candidates in any manner; (c) a separate vote shall be taken with respect to each candidate nominated for a position that is to be filled by cumulative voting unless a resolution is passed unanimously permitting two or more persons to be elected by a single vote; (d) if a shareholder has voted for more than one candidate without specifying the distribution of the votes among the candidates, the shareholder is deemed to have distributed the votes equally among the candidates for whom the shareholder voted; (e) if the number of candidates nominated exceeds the number of positions to be filled, the candidates who receive the least number of votes shall be eliminated until the number of candidates remaining equals the number of positions to be filled; (f) each director elected by cumulative voting ceases to hold office at the close of the next annual meeting of shareholders following the director’s election; (g) a director elected by cumulative voting may not be removed from office if the votes cast against the removal would be sufficient
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to elect the director and those votes could be voted cumulatively at an election at which the same total number of votes were cast and the same number of directors elected by cumulative voting required by the by-laws were then being elected; and (h) the number of directors elected by cumulative voting required by the by-laws may not be decreased if the votes cast against the motion to decrease would be sufficient to elect a director and those votes could be voted cumulatively at an election at which the same total number of votes were cast and the same number of directors elected by cumulative voting required by the by-laws were then being elected. Mandatory cumulative voting
(2) Where the aggregate of the voting shares beneficially owned by a person and any entities controlled by the person carries more than 10 per cent of the voting rights attached to all the outstanding voting shares of an insurance holding company, the directors shall be elected by cumulative voting.
Exception
(3) Subsection (2) does not apply if all the voting shares of the insurance holding company that are outstanding are beneficially owned by (a) one person; (b) one person and one or more entities controlled by that person; or (c) one or more entities controlled by the same person.
Exception
(4) Subsection (2) does not apply to an insurance holding company in respect of which subsection 927(4) applies.
Transitional election
(5) Where this Part or the by-laws of an insurance holding company provide for cumulative voting, the shareholders of the insurance holding company shall (a) at the first annual meeting of shareholders held not earlier than ninety days following the date that cumulative voting is required under subsection (2) or provided for in the by-laws, and (b) at each succeeding annual meeting,
Institutions f elect the stated number of directors to hold office until the close of the next annual meeting of shareholders following their election.
Class or series of shares
(6) Nothing in this Part precludes the holders of any class or series of shares of an insurance holding company from having an exclusive right to elect one or more directors.
Re-election of directors
804. A director who has completed a term of office is, if otherwise qualified, eligible for re-election. Incomplete Elections and Director Vacancies
Void election or appointment
805. (1) If, immediately after the time of any purported election or appointment of directors, the board of directors would fail to comply with subsection 796(2) or section 799, the purported election or appointment of all persons purported to be elected or appointed at that time is void unless the directors, within forty-five days after the discovery of the non-compliance, develop a plan, approved by the Superintendent, to rectify the non-compliance.
Failure to elect minimum
(2) If, at the close of a meeting of shareholders of an insurance holding company, the shareholders have failed to elect the number or minimum number of directors required by this Part or the by-laws of an insurance holding company, the purported election of directors at the meeting (a) is valid if the directors purported to be elected and those incumbent directors, if any, whose terms did not expire at the close of the meeting, together constitute a quorum; or (b) is void if the directors purported to be elected and those incumbent directors, if any, whose terms did not expire at the close of the meeting, together do not constitute a quorum.
Directors where elections incomplete or void
806. (1) Despite subsections 801(2) and (3) and paragraphs 803(1)(f) and 807(1)(a), where subsection 805(1) or (2) applies at the close of any meeting of shareholders of an insurance holding company, the board of directors shall, until their successors are elected or appointed, consist solely of
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(a) where paragraph 805(2)(a) applies, the directors referred to in that paragraph; or (b) where subsection 805(1) or paragraph 805(2)(b) applies, those persons who were the incumbent directors immediately before the meeting. Where there is no approved rectification plan
(2) Despite subsections 801(2) and (3) and paragraphs 803(1)(f) and 807(1)(a), where a plan to rectify the non-compliance referred to in subsection 805(1) has not been approved by the Superintendent by the end of the forty-five day period referred to in that subsection, the board of directors shall, until their successors are elected or appointed, consist solely of the persons who were the incumbent directors immediately before the meeting at which the purported election or appointment referred to in that subsection occurred.
Directors to call meeting
(3) Where subsection (1) or (2) applies, the board of directors referred to in that subsection shall without delay call a special meeting of shareholders to fill the vacancies, where paragraph 805(2)(a) applies, or elect a new board of directors, where subsection 805(1) or paragraph 805(2)(b) applies.
Shareholder may call meeting
(4) Where the directors fail to call a special meeting required by subsection (3), the meeting may be called by any shareholder.
Ceasing to hold office
807. (1) A director ceases to hold office (a) at the close of the annual meeting at which the director’s term of office expires; (b) when the director dies or resigns; (c) when the director becomes disqualified under section 797 or ineligible to hold office pursuant to subsection 837(2); (d) when the director is removed under section 808; or (e) when the director is removed from office under section 1006 or 1007.
Date of resignation
(2) The resignation of a director of an insurance holding company becomes effective at the time a written resignation is sent to the insurance holding company by the director
Institutions f or at the time specified in the resignation, whichever is later.
Removal of director
808. (1) Subject to paragraph 803(1)(g) and this section, the shareholders of an insurance holding company may by resolution at a special meeting remove any director or all the directors from office.
Removal of director
(2) If the holders of any class or series of shares of an insurance holding company have the exclusive right to elect one or more directors, a director so elected may be removed only by a resolution at a meeting of the shareholders of that class or series.
Vacancy by removal
(3) Subject to paragraphs 803(1)(b) to (e), a vacancy created by the removal of a director may be filled at the meeting of the shareholders at which the director is removed or, if not so filled, may be filled under section 812 or 813.
Statement of director
809. (1) A director who (a) resigns, (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the director from office, or (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed or elected to fill the office of director, whether because of the director’s resignation or removal or because the director’s term of office has expired or is about to expire, is entitled to submit to the insurance holding company a written statement giving the reasons for the resignation or the reasons why the director opposes any proposed action or resolution.
Statement to Superintendent
(2) Where a director resigns as a result of a disagreement with the other directors or the officers of an insurance holding company, the director shall submit to the insurance holding company and the Superintendent a written statement setting out the nature of the disagreement.
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Circulation of statement
810. (1) An insurance holding company shall forthwith on receipt of a director’s statement referred to in subsection 809(1) relating to a matter referred to in paragraph 809(1)(b) or (c), or a director’s statement referred to in subsection 809(2), send a copy thereof to each shareholder entitled to receive a notice of meetings and to the Superintendent, unless the statement is attached to a notice of a meeting.
Immunity for statement
(2) No insurance holding company or person acting on its behalf incurs any liability by reason only of circulating a director’s statement in compliance with subsection (1).
Shareholders filling vacancy
811. The by-laws of an insurance holding company may provide that a vacancy among the directors is to be filled only by vote of (a) the shareholders; or (b) the holders of any class or series of shares having an exclusive right to elect one or more directors if the vacancy occurs among the directors elected by the holders of that class or series.
Directors filling vacancy
812. (1) Despite section 819 but subject to subsection (2) and sections 811 and 813, a quorum of directors may fill a vacancy among the directors except a vacancy among the directors resulting from a change in the by-laws by which the number or minimum number of directors is increased or from a failure to elect the number or minimum number of directors required by the by-laws.
Where composition fails
(2) Despite sections 811 and 819, where by reason of a vacancy the number of directors or the composition of the board of directors fails to meet any of the requirements of section 796 or 799, the directors who, in the absence of any by-law, would be empowered to fill that vacancy shall do so forthwith.
Class vacancy
813. Despite section 819 but subject to section 811, where the holders of any class or series of shares of an insurance holding company have an exclusive right to elect one or more directors and a vacancy occurs among those directors,
Institutions f (a) the remaining directors elected by the holders of that class or series may fill the vacancy except a vacancy resulting from an increase in, or a failure to elect, the number or minimum number of directors for that class or series; (b) if there are no such remaining directors and, by reason of the vacancy, the number of directors or the composition of the board of directors fails to meet any of the requirements of section 796 or 799, the other directors may fill that vacancy; and (c) if there are no such remaining directors and paragraph (b) does not apply, any holder of shares of that class or series may call a meeting of the holders thereof for the purpose of filling the vacancy.
Unexpired term
814. Unless the by-laws otherwise provide, a director elected or appointed to fill a vacancy holds office for the unexpired term of the director’s predecessor in office.
Additional directors
815. (1) The directors may appoint one or more additional directors if the by-laws of the insurance holding company allow them to do so and the by-laws determine the minimum and maximum numbers of directors.
Term of office
(2) A director appointed under subsection (1) holds office for a term expiring not later than the close of the next annual meeting of shareholders of the insurance holding company.
Limit on number appointed
(3) The total number of directors appointed under subsection (1) may not exceed one third of the number of directors elected at the previous annual meeting of shareholders of the insurance holding company. Meetings of the Board
Meetings required
816. (1) The directors shall meet at least four times during each financial year.
Place for meetings
(2) The directors may meet at any place unless the by-laws provide otherwise.
Notice for meetings
(3) The notice for the meetings must be given as required by the by-laws.
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Notice of meeting
817. (1) A notice of a meeting of directors shall specify each matter referred to in section 832 that is to be dealt with at the meeting but, unless the by-laws otherwise provide, need not otherwise specify the purpose of or the business to be transacted at the meeting.
Waiver of notice
(2) A director may in any manner waive notice of a meeting of directors and the attendance of a director at a meeting of directors is a waiver of notice of that meeting except where the director attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.
Adjourned meeting
(3) Notice of an adjourned meeting of directors is not required to be given if the time and place of the adjourned meeting was announced at the original meeting.
Quorum
818. (1) Subject to section 819, the number of directors referred to in subsection (2) constitutes a quorum at any meeting of directors or a committee of directors and, notwithstanding any vacancy among the directors, a quorum of directors may exercise all the powers of the directors.
Quorum
(2) The number of directors constituting a quorum at any meeting of directors or a committee of directors shall be (a) a majority of the minimum number of directors required by this Part for the board of directors or a committee of directors; or (b) such greater number of directors than the number calculated pursuant to paragraph (a) as may be established by the by-laws of the insurance holding company.
Director continues to be present
(3) Any director present at a meeting of directors who is not present at any particular time during the meeting for the purposes of subsection 837(1) shall be considered as being present for the purposes of this section.
Resident Canadian majority
819. (1) The directors of an insurance holding company shall not transact business at a meeting of directors or of a committee of directors unless (a) in the case of an insurance holding company that is the subsidiary of a foreign institution, at least one half, and
Institutions f (b) in the case of any other insurance holding company, a majority of the directors present are resident Canadians.
Exception
(2) Despite subsection (1), the directors of an insurance holding company may transact business at a meeting of directors or of a committee of directors without the required proportion of directors who are resident Canadians if (a) a director who is a resident Canadian unable to be present approves, in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting; and (b) there would have been present the required proportion of directors who are resident Canadians had that director been present at the meeting.
Electronic meeting
820. (1) Subject to the by-laws of an insurance holding company, a meeting of directors or of a committee of directors may be held by means of such telephonic, electronic or other communications facilities as permit all persons participating in the meeting to communicate adequately with each other during the meeting.
Deemed present
(2) A director participating in a meeting by any means referred to in subsection (1) is deemed for the purposes of this Part to be present at that meeting.
Resolution outside board meeting
821. (1) A resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of directors is as valid as if it had been passed at a meeting of directors.
Filing directors’ resolution
(2) A copy of the resolution referred to in subsection (1) shall be kept with the minutes of the proceedings of the directors.
Resolution outside committee meeting
(3) A resolution in writing signed by all the directors entitled to vote on that resolution at a meeting of a committee of directors, other than a resolution of the audit committee in carrying out its duties under subsection 829(3), is as valid as if it had been passed at a meeting of that committee.
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Filing committee resolution
(4) A copy of the resolution referred to in subsection (3) shall be kept with the minutes of the proceedings of that committee.
Dissent of director
822. (1) A director of an insurance holding company who is present at a meeting of directors or a committee of directors is deemed to have consented to any resolution passed or action taken at that meeting unless (a) the director requests that the director’s dissent be entered or the director’s dissent is entered in the minutes of the meeting; (b) the director sends a written dissent to the secretary of the meeting before the meeting is adjourned; or (c) the director sends the director’s dissent by registered mail or delivers it to the head office of the insurance holding company immediately after the meeting is adjourned.
Loss of right to dissent
(2) A director of an insurance holding company who votes for or consents to a resolution is not entitled to dissent under subsection (1).
Dissent of absent director
(3) A director of an insurance holding company who is not present at a meeting at which a resolution is passed or action taken is deemed to have consented thereto unless, within seven days after the director becomes aware of the resolution, the director (a) causes the director’s dissent to be placed with the minutes of the meeting; or (b) sends the director’s dissent by registered mail or delivers it to the head office of the insurance holding company.
Record of attendance
823. (1) An insurance holding company shall keep a record of the attendance at each meeting of directors and each committee meeting of directors.
Statement to shareholders
(2) An insurance holding company shall attach to the notice of each annual meeting it sends to its shareholders a statement showing, in respect of the financial year immediately preceding the meeting, the total number of directors’ meetings and directors’ committee meetings held during the financial year and the number of those meetings attended by each director.
Institutions f
Meeting required by Superintendent
824. (1) Where in the opinion of the Superintendent it is necessary, the Superintendent may, by notice in writing, require an insurance holding company to hold a meeting of directors of the insurance holding company to consider the matters set out in the notice.
Attendance of Superintendent
(2) The Superintendent may attend and be heard at a meeting referred to in subsection (1).
By-laws By-laws
825. (1) Unless this Part otherwise provides, the directors of an insurance holding company may by resolution make, amend or repeal any by-law that regulates the business or affairs of the insurance holding company.
Shareholder approval
(2) The directors shall submit a by-law, or an amendment to or a repeal of a by-law, that is made under subsection (1) to the shareholders at the next meeting of shareholders, and the shareholders may, by resolution, confirm or amend the by-law, amendment or repeal.
Effective date of by-law
(3) Unless this Part otherwise provides, a by-law, or an amendment to or a repeal of a by-law, is effective from the date of the resolution of the directors under subsection (1) until it is confirmed, confirmed as amended or rejected by the shareholders under subsection (2) or until it ceases to be effective under subsection (4) and, where the by-law is confirmed, or confirmed as amended, it continues in effect in the form in which it was so confirmed.
Effect where no shareholder approval
(4) If a by-law, or an amendment to or a repeal of a by-law, is rejected by the shareholders, or is not submitted to the shareholders by the directors as required under subsection (2), the by-law, amendment or repeal ceases to be effective from the date of its rejection or the date of the next meeting of shareholders, as the case may be, and no subsequent resolution of the directors to make, amend or repeal a by-law having substantially the same purpose or effect is effective until it is confirmed, or confirmed as amended, by the shareholders.
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Shareholder proposal of by-law
826. A shareholder entitled to vote at an annual meeting of shareholders may, in accordance with sections 770 and 771, make a proposal to make, amend or repeal a by-law.
Deemed by-laws
827. (1) Any matter provided for in the incorporating instrument of a body corporate continued as an insurance holding company at the time of continuance that, under this Part, would be provided for in the by-laws of an insurance holding company is deemed to be provided for in the by-laws of the insurance holding company.
By-law prevails
(2) If a by-law of the insurance holding company made in accordance with sections 825 and 826 amends or repeals any matter referred to in subsection (1), the by-law prevails. Committees of the Board
Committees
828. The directors of an insurance holding company may appoint from their number, in addition to the committees referred to in subsection 794(2), such other committees as they deem necessary and, subject to section 832, delegate to those committees such powers of the directors, and assign to those committees such duties, as the directors consider appropriate.
Audit committee
829. (1) The audit committee of an insurance holding company shall consist of at least three directors.
Membership
(2) None of the members of the audit committee may be officers or employees of the insurance holding company or of any of its subsidiaries.
Duties of audit committee
(3) The audit committee of an insurance holding company shall (a) review the annual statement of the insurance holding company before the annual statement is approved by the directors; (b) review such returns of the insurance holding company as the Superintendent may specify; (c) require the management of the insurance holding company to implement and main2001
Institutions f tain appropriate internal control procedures; (d) review, evaluate and approve those procedures; (e) review such investments and transactions that could adversely affect the wellbeing of the insurance holding company as the auditor or any officer of the insurance holding company may bring to the attention of the committee; (f) meet with the auditor to discuss the annual statement and the returns and transactions referred to in this subsection; and (g) meet with the chief internal auditor of the insurance holding company, or the officer or employee of the insurance holding company acting in a similar capacity, and with management of the insurance holding company, to discuss the effectiveness of the internal control procedures established for the insurance holding company.
Report
(4) In the case of the annual statement and returns of an insurance holding company that under this Part must be approved by the directors of the insurance holding company, the audit committee of the insurance holding company shall report thereon to the directors before the approval is given.
Required meeting of directors
(5) The audit committee of an insurance holding company may call a meeting of the directors of the insurance holding company to consider any matter of concern to the committee. Directors and Officers — Authority
Chief executive officer
830. The directors of an insurance holding company shall appoint from their number a chief executive officer who must be ordinarily resident in Canada and, subject to section 832, may delegate to that officer any of the powers of the directors.
Appointment of officers
831. (1) The directors of an insurance holding company may, subject to the by-laws, designate the offices of the insurance holding company, appoint officers thereto, specify the duties of those officers and delegate to them powers, subject to section 832, to manage the
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business and affairs of the insurance holding company.
Directors as officers
(2) Subject to section 799, a director of an insurance holding company may be appointed to any office of the insurance holding company.
Two or more offices
(3) Two or more offices of an insurance holding company may be held by the same person.
Limits on power to delegate
832. The directors of an insurance holding company may not delegate any of the following powers, namely, the power to (a) submit to the shareholders a question or matter requiring the approval of the shareholders; (b) fill a vacancy among the directors or a committee of directors or in the office of auditor of the insurance holding company; (c) issue or cause to be issued securities except in the manner and on terms authorized by the directors; (d) declare a dividend; (e) authorize the redemption or other acquisition by the insurance holding company pursuant to section 754 of shares issued by the insurance holding company; (f) authorize the payment of a commission on a share issue; (g) approve a management proxy circular; (h) except as provided in this Part, approve the annual statement of the insurance holding company and any other financial statements issued by the insurance holding company; or (i) adopt, amend or repeal by-laws.
Remuneration of directors, officers and employees
833. (1) Subject to this section and the by-laws, the directors of an insurance holding company may fix the remuneration of the directors, officers and employees of the insurance holding company.
Institutions f
By-law required
(2) No remuneration shall be paid to a director as director until a by-law fixing the aggregate of all amounts that may be paid to all directors in respect of directors’ remuneration during a fixed period of time has been confirmed by special resolution.
Validity of acts
834. (1) An act of a director or an officer of an insurance holding company is valid notwithstanding a defect in the director’s qualification or an irregularity in the director’s election or in the appointment of the director or officer.
Validity of acts
(2) An act of the board of directors of an insurance holding company is valid notwithstanding a defect in the composition of the board or an irregularity in the election of the board or in the appointment of a member of the board.
Right to attend meetings
835. A director of an insurance holding company is entitled to attend and to be heard at every meeting of shareholders. Conflicts of Interest
Disclosure of interest
836. (1) A director or an officer of an insurance holding company who (a) is a party to a material contract or proposed material contract with the insurance holding company, (b) is a director or an officer of any entity that is a party to a material contract or proposed material contract with the insurance holding company, or (c) has a material interest in any person who is a party to a material contract or proposed material contract with the insurance holding company shall disclose in writing to the insurance holding company or request to have entered in the minutes of the meetings of directors the nature and extent of that interest.
Time of disclosure for director
(2) The disclosure required by subsection (1) shall be made, in the case of a director, (a) at the meeting of directors at which a proposed contract is first considered; (b) if the director was not then interested in a proposed contract, at the first meeting after the director becomes so interested;
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(c) if the director becomes interested after a contract is made, at the first meeting after the director becomes so interested; or (d) if a person who is interested in a contract later becomes a director, at the first meeting after that person becomes a director.
Time of disclosure for officer
(3) The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director, (a) forthwith after the officer becomes aware that a proposed contract is to be considered or a contract has been considered at a meeting of directors; (b) if the officer becomes interested after a contract is made, forthwith after the officer becomes so interested; or (c) if a person who is interested in a contract later becomes an officer, forthwith after the person becomes an officer.
Time of disclosure for director or officer
(4) If a material contract or proposed material contract is one that, in the ordinary course of business of the insurance holding company, would not require approval by the directors or the shareholders, a director or an officer referred to in subsection (1) shall disclose in writing to the insurance holding company or request to have entered in the minutes of meetings of directors the nature and extent of the director’s or officer’s interest forthwith after the director or officer becomes aware of the contract or proposed contract.
Where director must abstain
837. (1) Where subsection 836(1) applies to a director in respect of a contract, the director shall not be present at any meeting of directors while the contract is being considered at the meeting or vote on any resolution to approve the contract unless the contract is (a) an arrangement by way of security for money lent to or obligations undertaken by the director for the benefit of the insurance holding company or a subsidiary of the insurance holding company;
Institutions f (b) a contract relating primarily to the director’s remuneration as a director or an officer, employee or agent of the insurance holding company or a subsidiary of the insurance holding company or an entity controlled by the insurance holding company or an entity in which the insurance holding company has a substantial investment; (c) a contract for indemnity under section 846 or for insurance under section 847; or (d) a contract with an affiliate of the insurance holding company.
Ineligibility
(2) A director who knowingly contravenes subsection (1) ceases to hold office as director and is not eligible, for a period of five years after the date on which the contravention occurred, for election or appointment as a director of any insurance holding company, any bank holding company or any financial institution that is incorporated or formed by or under an Act of Parliament.
Validity of acts
(3) An act of the board of directors of an insurance holding company or of a committee of the board of directors is not invalid because a person acting as a director had ceased under subsection (2) to hold office as a director.
Continuing disclosure
838. For the purposes of subsection 836(1), a general notice to the directors by a director or an officer declaring that the director or officer is a director or officer of an entity, or has a material interest in a person, and is to be regarded as interested in any contract made with that entity or person, is a sufficient declaration of interest in relation to any contract so made.
Avoidance standards
839. A material contract between an insurance holding company and one or more of its directors or officers, or between an insurance holding company and another entity of which a director or an officer of the insurance holding company is a director or an officer or between an insurance holding company and a person in which the director or officer has a material interest, is neither void nor voidable (a) by reason only of that relationship, or
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(b) by reason only that a director with an interest in the contract is present at or is counted to determine the presence of a quorum at the meeting of directors or the committee of directors that authorized the contract, if the director or officer disclosed the interest in accordance with subsection 836(2), (3) or (4) or section 838 and the contract was approved by the directors or the shareholders and it was reasonable and fair to the insurance holding company at the time it was approved. Application to court
840. Where a director or an officer of an insurance holding company fails to disclose an interest in a material contract in accordance with sections 836 and 838, a court may, on the application of the insurance holding company or a shareholder of the insurance holding company, set aside the contract on such terms as the court thinks fit.
Liability, Exculpation and Indemnification Directors’ liability
841. (1) The directors of an insurance holding company who vote for or consent to a resolution of the directors authorizing the issue of a share contrary to subsection 748(1) or the issue of subordinated indebtedness contrary to section 762 for a consideration other than money are jointly and severally liable to the insurance holding company to make good any amount by which the consideration received is less than the fair equivalent of the money that the insurance holding company would have received if the share or subordinated indebtedness had been issued for money on the date of the resolution.
Further liabilities
(2) The directors of an insurance holding company who vote for or consent to a resolution of the directors authorizing (a) a redemption or purchase of shares contrary to section 754, (b) a reduction of capital contrary to section 757, (c) a payment of a dividend contrary to section 761, or (d) a payment of an indemnity contrary to section 846
Institutions f are jointly and severally liable to restore to the insurance holding company any amounts so distributed or paid and not otherwise recovered by the insurance holding company and any amounts in relation to any loss suffered by the insurance holding company.
Contribution
842. (1) A director who has satisfied a judgment in relation to the director’s liability under section 841 is entitled to contribution from the other directors who voted for or consented to the unlawful act on which the judgment was founded.
Recovery
(2) A director who is liable under section 841 is entitled to apply to a court for an order compelling a shareholder or other person to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other person contrary to section 754, 757, 761 or 846.
Court order
(3) Where an application is made to a court under subsection (2), the court may, where it is satisfied that it is equitable to do so, (a) order a shareholder or other person to pay or deliver to a director any money or property that was paid or distributed to the shareholder or other person contrary to section 754, 757, 761 or 846; (b) order an insurance holding company to return or issue shares to a person from whom the insurance holding company has purchased, redeemed or otherwise acquired shares; or (c) make any further order it thinks fit.
Limitation
843. An action to enforce a liability imposed by section 841 may not be commenced after two years from the date of the resolution authorizing the action complained of.
Liability for wages
844. (1) Subject to subsections (2) and (3), the directors of an insurance holding company are jointly and severally liable to each employee of the insurance holding company for all debts not exceeding six months wages payable to the employee for services performed for the insurance holding company while they are directors.
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(2) A director is not liable under subsection (1) unless (a) the insurance holding company has been sued for the debt within six months after it has become due and execution has been returned unsatisfied in whole or in part; (b) the insurance holding company has commenced liquidation and dissolution proceedings or has been dissolved and a claim for the debt has been proven within six months after the earlier of the date of commencement of the liquidation and dissolution proceedings and the date of dissolution; or (c) the insurance holding company has made an assignment or a receiving order has been made against it under the Bankruptcy and Insolvency Act and a claim for the debt has been proven within six months after the date of the assignment or receiving order.
Limitations
(3) A director is not liable under subsection (1) unless the director is sued for a debt referred to in that subsection while a director or within two years after the director has ceased to be a director.
Amount due after execution
(4) Where execution referred to in paragraph (2)(a) has issued, the amount recoverable from a director is the amount remaining unsatisfied after execution.
Subrogation of director
(5) Where a director of an insurance holding company pays a debt referred to in subsection (1) that is proven in liquidation and dissolution or bankruptcy proceedings, the director is entitled to any preference that the employee would have been entitled to and, where a judgment has been obtained, the director is entitled to an assignment of the judgment.
Contribution entitlement
(6) A director of an insurance holding company who has satisfied a claim under this section is entitled to a contribution from the other directors of the insurance holding company who are liable for the claim.
Reliance on statement
845. A director, an officer or an employee of an insurance holding company is not liable under subsection 795(1) or (2) or section 841 or 844 if the director, officer or employee relies in good faith on
Institutions f (a) financial statements of the insurance holding company represented to the director, officer or employee by an officer of the insurance holding company or in a written report of the auditor of the insurance holding company fairly to reflect the financial condition of the insurance holding company; or (b) a report of an accountant, actuary, lawyer, notary or other professional person whose profession lends credibility to a statement made by the professional person.
Indemnification of directors and officers
846. (1) Except in respect of an action by or on behalf of the insurance holding company to procure a judgment in its favour, an insurance holding company may indemnify (a) a director or an officer of the insurance holding company, (b) a former director or officer of the insurance holding company, or (c) any person who acts or acted at the insurance holding company’s request as a director or an officer of an entity of which the insurance holding company is or was a shareholder or creditor against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment reasonably incurred by the person in respect of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a person referred to in any of paragraphs (a) to (c), if (d) the director, officer or person acted honestly and in good faith with a view to the best interests of the insurance holding company, and (e) in the case of a criminal or administrative action or proceeding enforced by a monetary penalty, the director, officer or person had reasonable grounds for believing that the impugned conduct was lawful.
Indemnification in derivative action
(2) An insurance holding company may, with the approval of a court, indemnify a person referred to in subsection (1), in respect of an action by or on behalf of the insurance holding company or entity to procure a
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judgment in its favour to which the person is made a party by reason of being or having been a director or an officer of the insurance holding company or entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the person in connection with that action if the person fulfils the conditions set out in paragraphs (1)(d) and (e). Right to indemnity
(3) Despite anything in this section, a person referred to in subsection (1) is entitled to indemnity from the insurance holding company in respect of all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the person in connection with the defence of any civil, criminal or administrative action or proceeding to which the person is made a party by reason of being or having been a director or an officer of the insurance holding company or an entity, if the person seeking indemnity (a) was substantially successful on the merits in the defence of the action or proceedings; and (b) fulfils the conditions set out in paragraphs (1)(d) and (e).
Heirs
(4) An insurance holding company may, to the extent referred to in subsections (1) to (3) in respect of the person, indemnify the heirs or personal representatives of any person the insurance holding company may indemnify pursuant to subsections (1) to (3).
Directors’ and officers’ insurance
847. An insurance holding company may purchase and maintain insurance for the benefit of any person referred to in section 846 against any liability incurred by the person (a) in the capacity of a director or an officer of the insurance holding company, except where the liability relates to a failure to act honestly and in good faith with a view to the best interests of the insurance holding company; or (b) in the capacity of a director or an officer of another entity where the person acts or acted in that capacity at the insurance holding company’s request, except where
Institutions f the liability relates to a failure to act honestly and in good faith with a view to the best interests of the entity.
Application to court for indemnification
848. (1) An insurance holding company or a person referred to in section 846 may apply to a court for an order approving an indemnity under that section and the court may so order and make any further order it thinks fit.
Notice to Superintendent
(2) An applicant under subsection (1) shall give the Superintendent written notice of the application and the Superintendent is entitled to appear and to be heard at the hearing of the application in person or by counsel.
Other notice
(3) On an application under subsection (1), the court may order notice to be given to any interested person and that person is entitled to appear and to be heard in person or by counsel at the hearing of the application. Subdivision 4 Fundamental Changes Amendments — Letters Patent
Incorporating instrument
849. On the application of an insurance holding company duly authorized by special resolution, the Minister may approve a proposal to add, change or remove any provision that is permitted by this Part to be set out in the incorporating instrument of the insurance holding company.
Letters patent to amend
850. (1) On receipt of an application referred to in section 849, the Minister may issue letters patent to effect the proposal.
Effect of letters patent
(2) Letters patent issued pursuant to subsection (1) become effective on the day stated in the letters patent. Amendments — By-laws
By-laws
851. (1) The directors of an insurance holding company may make, amend or repeal any by-laws, in the manner set out in subsections (2) and (3) and sections 852 to 856, to (a) change the maximum number, if any, of shares of any class that the insurance holding company is authorized to issue; (b) create new classes of shares;
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(c) change the designation of any or all of the insurance holding company’s shares, and add, change or remove any rights, privileges, restrictions and conditions, including rights to accrued dividends, in respect of any or all of the insurance holding company’s shares, whether issued or unissued; (d) change the shares of any class or series, whether issued or unissued, into a different number of shares of the same class or series or into the same or a different number of shares of other classes or series; (e) divide a class of shares, whether issued or unissued, into series and fix the maximum number of shares, if any, in each series and the rights, privileges, restrictions and conditions attached thereto; (f) authorize the directors to divide any class of unissued shares into series and fix the maximum number of shares, if any, in each series and the rights, privileges, restrictions and conditions attached thereto; (g) authorize the directors to change the rights, privileges, restrictions and conditions attached to unissued shares of any series; (h) revoke, diminish or enlarge any authority conferred under paragraphs (f) and (g); (i) increase or decrease the number of directors, subject to subsection 796(1) and section 803; (j) change the name of the insurance holding company; or (k) change the place in Canada where the head office of the insurance holding company is to be situated. Shareholder approval
(2) The directors shall submit a by-law, or an amendment to or a repeal of a by-law, that is made under subsection (1) to the shareholders entitled to vote, and the shareholders may, by special resolution, confirm, amend or reject the by-law, amendment or repeal.
Institutions f
Effective date of by-law
(3) A by-law, or an amendment to or a repeal of a by-law, made under subsection (1) is not effective until it is confirmed or confirmed as amended by the shareholders under subsection (2) and, in the case of by-laws referred to in paragraph (1)(j), approved by the Superintendent in writing.
Class vote
852. (1) The holders of shares of a class or, subject to subsection (2), of a series are, unless the by-laws otherwise provide in the case of an amendment to the by-laws referred to in paragraph (a), (b) or (e), entitled to vote separately as a class or series on a proposal to amend the by-laws to (a) increase or decrease any maximum number of authorized shares of that class, or increase any maximum number of authorized shares of a class having rights or privileges equal or superior to the shares of that class; (b) effect an exchange, reclassification or cancellation of all or part of the shares of that class; (c) add, change or remove the rights, privileges, restrictions or conditions attached to the shares of that class and, without limiting the generality of the foregoing, (i) remove or change prejudicially rights to accrued dividends or rights to cumulative dividends, (ii) add, remove or change prejudicially redemption rights, (iii) reduce or remove a dividend preference or a liquidation preference, or (iv) add, remove or change prejudicially conversion privileges, options, voting, transfer or pre-emptive rights, or rights to acquire securities of the insurance holding company, or sinking fund provisions; (d) increase the rights or privileges of any class of shares having rights or privileges equal or superior to the shares of that class; (e) create a new class of shares equal or superior to the shares of that class; (f) make any class of shares having rights or privileges inferior to the shares of that class
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equal or superior to the shares of that class; or (g) effect an exchange or create a right of exchange of all or part of the shares of another class into the shares of that class.
Right limited
(2) The holders of a series of shares of a class are entitled to vote separately as a series under subsection (1) if that series is affected by an addition or amendment to the by-laws in a manner different from other shares of the same class.
Right to vote
(3) Subsections (1) and (2) apply whether or not the shares of a class otherwise carry the right to vote.
Separate resolutions
853. A proposed addition or amendment to the by-laws referred to in subsection 852(1) is adopted when the holders of the shares of each class or series entitled to vote separately thereon as a class or series have approved the addition or amendment by a special resolution.
Revoking resolution
854. Where a special resolution referred to in subsection 851(2) so states, the directors may, without further approval of the shareholders, revoke the special resolution.
Proposal to amend
855. (1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders of an insurance holding company may, in accordance with sections 770 and 771, make a proposal to make an application referred to in section 849 or to make, amend or repeal the by-laws referred to in subsection 851(1) of the insurance holding company.
Notice of amendment
(2) Notice of a meeting of shareholders at which a proposal to amend the incorporating instrument or to make, amend or repeal the by-laws of an insurance holding company to effect any of the changes referred to in subsection 851(1) is to be considered must set out the proposal.
Rights preserved
856. No amendment to the incorporating instrument or by-laws of an insurance holding company affects an existing cause of action or claim or liability to prosecution in favour of or
Institutions f against the insurance holding company or its directors or officers, or any civil, criminal or administrative action or proceeding to which the insurance holding company or any of its directors or officers are a party. Amalgamation
Application to amalgamate
857. On the joint application of two or more bodies corporate incorporated by or under an Act of Parliament, including a company or an insurance holding company but not including a mutual company, the Minister may issue letters patent amalgamating and continuing the applicants as one insurance holding company.
Amalgamation agreement
858. (1) Each applicant proposing to amalgamate shall enter into an amalgamation agreement.
Contents of agreement
(2) Every amalgamation agreement shall set out the terms and means of effecting the amalgamation and, in particular, (a) the name of the amalgamated insurance holding company and the place in Canada where its head office is to be situated; (b) the name and place of ordinary residence of each proposed director of the amalgamated insurance holding company; (c) the manner in which any shares of each applicant are to be converted into shares or other securities of the amalgamated insurance holding company; (d) if any shares of an applicant are not to be converted into shares or other securities of the amalgamated insurance holding company, the amount of money or securities that the holders of those shares are to receive in addition to or in lieu of shares or other securities of the amalgamated insurance holding company; (e) the manner of payment of money in lieu of the issue of fractional shares of the amalgamated insurance holding company or of any other body corporate that are to be issued in the amalgamation; (f) the proposed by-laws of the amalgamated insurance holding company;
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(g) details of any other matter necessary to perfect the amalgamation and to provide for the subsequent management and operation of the amalgamated insurance holding company; and (h) the proposed effective date of the amalgamation.
Cross ownership of shares
(3) If shares of one of the applicants are held by or on behalf of another of the applicants, other than shares held in the capacity of a personal representative or by way of security, the amalgamation agreement must provide for the cancellation of those shares when the amalgamation becomes effective without any repayment of capital in respect thereof, and no provision shall be made in the agreement for the conversion of those shares into shares of the amalgamated insurance holding company.
Approval of agreement by Minister
859. An amalgamation agreement shall be submitted to the Minister for approval. Any approval of the agreement under subsection 860(4) by the shareholders of an applicant is invalid unless, before the date of the approval, the Minister approves the agreement in writing.
Approval by shareholders
860. (1) The directors of each applicant shall submit an amalgamation agreement for approval to a meeting of the shareholders of the body corporate of which they are directors and to the holders of each class or series of shares.
Right to vote
(2) Each share of an applicant carries the right to vote in respect of an amalgamation, whether or not it otherwise carries the right to vote.
Class vote
(3) The holders of shares of a class or series of shares of an applicant are entitled to vote separately as a class or series in respect of an amalgamation if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the by-laws or incorporating instrument of the applicant, would entitle those holders to vote separately as a class or series.
Institutions f
Special resolution
(4) Subject to subsection (3), an amalgamation agreement is approved when it has been approved by special resolution by the shareholders of each applicant body corporate.
Termination
(5) An amalgamation agreement may provide that, at any time before the issue of letters patent of amalgamation, the agreement may be terminated by the directors of an applicant even though the agreement has been approved by the shareholders of all or any of the applicant bodies corporate.
Vertical short-form amalgamation
861. (1) An insurance holding company may, without complying with sections 858 to 860, amalgamate with one or more bodies corporate that (a) are incorporated by or under an Act of Parliament, and (b) are wholly-owned subsidiaries of the insurance holding company if (c) the amalgamation is approved by a resolution of the directors of the insurance holding company and of each amalgamating subsidiary, and (d) the resolutions provide that (i) the shares of each amalgamating subsidiary will be cancelled without any repayment of capital in respect thereof, (ii) the letters patent of amalgamation and the by-laws of the amalgamated insurance holding company will be the same as the incorporating instrument and the by-laws of the amalgamating insurance holding company that is the holding body corporate, and (iii) no securities will be issued by the amalgamated insurance holding company in connection with the amalgamation.
Horizontal short-form amalgamation
(2) Two or more bodies corporate that (a) are incorporated by or under an Act of Parliament, and (b) are wholly-owned subsidiaries of the same holding body corporate
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may amalgamate and continue as one insurance holding company without complying with sections 858 to 860 if (c) at least one of the applicants is an insurance holding company, (d) the amalgamation is approved by a resolution of the directors of each of the applicants, and (e) the resolutions provide that (i) the shares of all applicants, except those of one of the applicants that is an insurance holding company, will be cancelled without any repayment of capital in respect thereof, (ii) the letters patent of amalgamation and the by-laws of the amalgamated insurance holding company will be the same as the incorporating instrument and the by-laws of the amalgamating insurance holding company whose shares are not cancelled, and (iii) the stated capital of the amalgamating insurance holding companies and bodies corporate whose shares are cancelled will be added to the stated capital of the amalgamating insurance holding company whose shares are not cancelled. Joint application to Minister
862. (1) Subject to subsection (2), unless an amalgamation agreement is terminated in accordance with subsection 860(5), the applicants shall, within three months after the approval of the agreement in accordance with subsection 860(4) or the approval of the directors in accordance with subsection 861(1) or (2), jointly apply to the Minister for letters patent of amalgamation continuing the applicants as one insurance holding company.
Conditions precedent to application
(2) No application for the issue of letters patent under subsection (1) may be made unless (a) notice of intention to make such an application has been published at least once a week for a period of four consecutive weeks in the Canada Gazette and in a newspaper in general circulation at or near the place where the head office of each applicant is situated; and
Institutions f (b) the application is supported by satisfactory evidence that the applicants have complied with the requirements of this Part relating to amalgamations.
Application of sections 709 to 711
(3) Where two or more bodies corporate, none of which is an insurance holding company, apply for letters patent under subsection (1), sections 709 to 711 apply in respect of the application with such modifications as the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one insurance holding company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the sources of continuing financial support for any company that will be a subsidiary of the amalgamated insurance holding company; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of any company that will be a subsidiary of the amalgamated insurance holding company; (c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the amalgamated insurance holding company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; (g) if the insurance holding company is an insurance holding company in respect of which subsection 927(5) applies or an insurance holding company in respect of which subsection 927(6) applied at any time, the opinion of the Superintendent regarding the extent to which the proposed
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corporate structure of the amalgamated insurance holding company and its affiliates may affect the supervision and regulation of any company that will be its subsidiary, having regard to (i) the nature and extent of the proposed financial services activities to be carried out by the affiliates of the amalgamated insurance holding company, and (ii) the nature and degree of supervision and regulation applying to the proposed financial services activities to be carried out by the affiliates of the amalgamated insurance holding company; and (h) the best interests of the financial system in Canada. Restriction
(5) The Minister may not, before January 1, 2002, issue letters patent under section 863 amalgamating a converted company in respect of which subsection 407(4) or (11) applies, a company to which subsection 407(5) or (12) applies or an insurance holding company to which subsection 407(6) or (13) applies with any other body corporate.
Restriction
(6) If one of the applicants for letters patent of amalgamation is a converted company in respect of which subsection 407(4) applies, or a company to which subsection 407(5) applies or an insurance holding company to which subsection 407(6) applies, the Minister may not issue the letters patent of amalgamation unless the amalgamated insurance holding company is widely held.
Deeming
(7) If one of the applicants for letters patent of amalgamation is a converted company in respect of which subsection 407(4) applies, a company to which subsection 407(5) applies or an insurance holding company to which subsection 407(6) applies and the letters patent of amalgamation are issued, the amalgamated insurance holding company is deemed to be an insurance holding company in respect of which subsection 927(4) applies.
Institutions f
Issue of letters patent
863. (1) Where an application has been made to the Minister in accordance with section 862, the Minister may issue letters patent of amalgamation continuing the applicants as one insurance holding company.
Letters patent
(2) Where letters patent are issued pursuant to this section, section 713 applies with such modifications as the circumstances require in respect of the issue of the letters patent.
Publication of notice
(3) The Superintendent shall cause to be published in the Canada Gazette notice of the issuance of letters patent pursuant to subsection (1).
Court enforcement
864. (1) If an insurance holding company, or any director, officer, employee or agent of an insurance holding company, is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the insurance holding company, or the director, officer, employee or agent to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on the application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
Effect of letters patent
865. (1) On the day provided for in the letters patent issued under section 863, (a) the amalgamation of the applicants and their continuance as one insurance holding company become effective; (b) the property of each applicant continues to be the property of the amalgamated insurance holding company; (c) the amalgamated insurance holding company continues to be liable for the obligations of each applicant; (d) any existing cause of action, claim or liability to prosecution is unaffected; (e) any civil, criminal or administrative action or proceeding pending by or against
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an applicant may be continued to be prosecuted by or against the amalgamated insurance holding company; (f) any conviction against, or ruling, order or judgment in favour of or against, an applicant may be enforced by or against the amalgamated insurance holding company; (g) if any director or officer of an applicant continues as a director or officer of the amalgamated insurance holding company, any disclosure by that director or officer of a material interest in any contract made to the applicant shall be deemed to be disclosure to the amalgamated insurance holding company; and (h) the letters patent of amalgamation are the incorporating instrument of the amalgamated insurance holding company. Minutes
(2) Any deemed disclosure under paragraph (1)(g) shall be recorded in the minutes of the first meeting of directors of the amalgamated insurance holding company.
Transitional
866. (1) Despite any other provision of this Act or the regulations, the Minister may, by order, on the recommendation of the Superintendent, grant to an insurance holding company in respect of which letters patent were issued under subsection 863(1) permission to (a) engage in a business activity specified in the order that the insurance holding company would not otherwise be permitted by this Act to engage in and that one or more of the amalgamating bodies corporate was engaging in at the time application for the letters patent was made; (b) continue to have issued and outstanding debt obligations the issue of which is not authorized by this Act if the debt obligations were outstanding at the time the application for the letters patent was made; (c) hold assets that the insurance holding company would not otherwise be permitted by this Act to hold, if the assets were held by one or more of the amalgamating bodies corporate at the time the application for the letters patent was made;
Institutions f (d) acquire and hold assets that the insurance holding company would not otherwise be permitted by this Act to acquire or hold, if one or more of the amalgamating bodies corporate were obliged, at the time the application for the letters patent was made, to acquire those assets; and (e) maintain outside Canada any records or registers required by this Act to be maintained in Canada and maintain and process, outside Canada, information and data relating to the preparation and maintenance of such records or registers.
Duration of exceptions
(2) The permission granted under subsection (1) shall be expressed to be granted for a period specified in the order not exceeding (a) with respect to any matter described in paragraph (1)(a), thirty days after the date of issue of the letters patent or, where the activity is conducted pursuant to an agreement existing on the date of issue of the letters patent, the expiration of the agreement; (b) with respect to any matter described in paragraph (1)(b), ten years; and (c) with respect to any matter described in any of paragraphs (1)(c) to (e), two years.
Renewal
(3) Subject to subsection (4), the Minister, on the recommendation of the Superintendent, may by order renew a permission granted by order under subsection (1) with respect to any matter described in any of paragraphs (1)(b) to (d) for any further period or periods that the Minister considers necessary.
Limitation
(4) The Minister shall not grant to an insurance holding company any permission (a) with respect to matters described in paragraph (1)(b), that purports to be effective more than ten years after the effective date of the letters patent of amalgamation issued to effect the amalgamation, unless the Minister is satisfied on the basis of evidence on oath provided by an officer of the insurance holding company that the insurance holding company will not be able at law to redeem at the end of the ten years the outstanding debt obligations to which the permission relates; and
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(b) with respect to matters described in paragraphs (1)(c) and (d), that purports to be effective more than ten years after the effective date of the letters patent of amalgamation issued to effect the amalgamation. Transfer of Business Shareholder approval
867. (1) A sale, lease or exchange of all or substantially all the property of an insurance holding company requires the approval of the shareholders in accordance with subsections (2) to (7).
Notice of meeting
(2) A notice of a meeting of shareholders complying with sections 767 and 769 shall be sent in accordance with those sections to each shareholder and shall include or be accompanied by a copy or summary of the agreement of sale, lease or exchange.
Shareholder approval
(3) At the meeting referred to in the notice, the shareholders may authorize the sale, lease or exchange and may fix or authorize the directors to fix any of the sale’s, lease’s or exchange’s terms and conditions.
Right to vote
(4) Each share of the insurance holding company carries the right to vote in respect of the proposal whether or not the share otherwise carries the right to vote.
Class vote
(5) The holders of shares of a class or series of shares of the insurance holding company are entitled to vote separately as a class or series in respect of the proposal if the shares of the class or series are affected by the proposed transaction in a manner different from the shares of another class or series.
Special resolution
(6) For the purpose of subsection (1), the proposal is not approved unless the holders of the shares of each class or series of shares entitled to vote separately on the proposal have approved the proposal by special resolution.
Abandoning transaction
(7) Where a special resolution under subsection (6) approving a proposed transaction so states, the directors of an insurance holding company may, subject to the rights of third parties, abandon the transaction without further approval of the shareholders.
Institutions f Subdivision 5 Head Office and Corporate Records
Head office
868. (1) An insurance holding company shall at all times have a head office in the place within Canada specified in its incorporating instrument or by-laws.
Change of head office
(2) The directors of an insurance holding company may change the address of the head office within the place specified in the incorporating instrument or by-laws.
Notice of change of address
(3) An insurance holding company shall send to the Superintendent, within fifteen days after any change of address of its head office, a notice of the change of address.
Insurance holding company records
869. (1) An insurance holding company shall prepare and maintain records containing (a) its incorporating instrument and by-laws and all amendments to them; (b) minutes of meetings and resolutions of shareholders; (c) the information referred to in paragraphs 994(1)(a) and (c) to (g) contained in all returns provided to the Superintendent under section 994; and (d) particulars of exceptions granted under section 725 or 866 that are from time to time applicable to the insurance holding company.
Additional records
(2) In addition to the records described in subsection (1), an insurance holding company shall prepare and maintain adequate (a) corporate accounting records; and (b) records containing minutes of meetings and resolutions of the directors and any committee thereof.
Continued insurance holding companies
(3) For the purposes of paragraph (1)(b) and subsection (2), (a) in the case of a body corporate continued as an insurance holding company under this Part, ‘‘records’’ includes similar records required by law to be maintained by the body corporate before it was so continued; and
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(b) in the case of a body corporate amalgamated and continued as an insurance holding company under this Part, ‘‘records’’ includes similar records required by law to be maintained by the body corporate before it was so amalgamated. Place of records
870. (1) The records described in section 869 shall be kept at the head office of the insurance holding company or at such other place in Canada as the directors think fit.
Notice of place of records
(2) Where any of the records described in section 869 are not kept at the head office of an insurance holding company, the insurance holding company shall notify the Superintendent of the place where the records are kept.
Inspection
(3) The records described in section 869 shall at all reasonable times be open to inspection by the directors.
Access to insurance holding company records
(4) Shareholders and creditors of an insurance holding company and their personal representatives may examine the records referred to in subsection 869(1) during the usual business hours of the insurance holding company, and may take extracts therefrom, free of charge, or have copies made thereof on payment of a reasonable fee and, where the insurance holding company is a distributing insurance holding company within the meaning of subsection 288(1), any other person may, on payment of a reasonable fee, examine such records and take extracts therefrom or copies thereof.
Copies of by-laws for shareholders
(5) Every shareholder of an insurance holding company is entitled, on request made not more often than once in each calendar year, to receive free of charge one copy of the by-laws of the insurance holding company.
Electronic access
(6) An insurance holding company may make the information contained in records referred to in subsection 869(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time.
Institutions f
Shareholder lists
871. (1) A person who is entitled to a basic list of shareholders of an insurance holding company (in this section referred to as the ‘‘applicant’’) may request the insurance holding company to furnish the applicant with a basic list within ten days after receipt by the insurance holding company of the affidavit referred to in subsection (2) and, on payment of a reasonable fee by the applicant, the insurance holding company shall comply with the request.
Affidavit and contents
(2) A request under subsection (1) must be accompanied by an affidavit containing (a) the name and address of the applicant, (b) the name and address for service of the entity, if the applicant is an entity, and (c) an undertaking that the basic list and any supplemental lists obtained pursuant to subsections (5) and (6) will not be used except as permitted under section 873, and, if the applicant is an entity, the affidavit shall be made by a director or an officer of the entity, or any person acting in a similar capacity.
Entitlement
(3) Every shareholder or creditor of an insurance holding company or the personal representative of a shareholder or creditor of an insurance holding company is entitled to a basic list of shareholders of the insurance holding company, but, if the insurance holding company is a distributing company within the meaning of subsection 288(1), any person is entitled to a basic list of shareholders of the insurance holding company on request therefor.
Basic list of shareholders
(4) A basic list of shareholders of an insurance holding company consists of a list of shareholders that is made up to a date not more than ten days before the receipt of the affidavit referred to in subsection (2) and that sets out (a) the names of the shareholders of the insurance holding company; (b) the number of shares owned by each shareholder; and (c) the address of each shareholder as shown in the records of the insurance holding company.
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Supplemental lists
(5) A person requiring an insurance holding company to supply a basic list of shareholders may, if the person states in the accompanying affidavit that supplemental lists are required, request the insurance holding company or its agent, on payment of a reasonable fee, to provide supplemental lists of shareholders setting out any changes from the basic list in the names and addresses of the shareholders and the number of shares owned by each shareholder for each business day following the date to which the basic list is made up.
When supplemental lists to be furnished
(6) An insurance holding company or its agent shall provide a supplemental list of shareholders required under subsection (5) (a) within ten days following the date the basic list is provided, where the information relates to changes that took place prior to that date; and (b) within ten days following the day to which the supplemental list relates, where the information relates to changes that took place on or after the date the basic list was provided.
Option holders
872. A person requiring an insurance holding company to supply a basic list or a supplemental list of shareholders may also require the insurance holding company to include in that list the name and address of any known holder of an option or right to acquire shares of the insurance holding company.
Use of shareholder list
873. A list of shareholders obtained under section 871 shall not be used by any person except in connection with (a) an effort to influence the voting of shareholders of the insurance holding company; (b) an offer to acquire shares of the insurance holding company; or (c) any other matter relating to the affairs of the insurance holding company.
Form of records
874. (1) A register or other record required or authorized by this Part to be prepared and maintained by an insurance holding company (a) may be in a bound or loose-leaf form or in a photographic film form; or
Institutions f (b) may be entered or recorded by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Conversion of records
(2) Registers and records maintained in one form may be converted to any other form.
Destruction of converted records
(3) Despite section 877, an insurance holding company may destroy any register or other record referred to in subsection (1) at any time after the register or other record has been converted to another form.
Protection of records
875. An insurance holding company and its agents shall take reasonable precautions to (a) prevent loss or destruction of, (b) prevent falsification of entries in, (c) facilitate detection and correction of inaccuracies in, and (d) ensure that unauthorized persons do not have access to or use of information in, the registers and records required or authorized by this Part to be prepared and maintained.
Location and processing of information
876. (1) Subject to subsection (3), an insurance holding company shall maintain and process in Canada information or data relating to the preparation and maintenance of the records referred to in section 869 unless the Superintendent has, subject to any terms and conditions that the Superintendent considers appropriate, exempted the insurance holding company from the application of this section.
Copies
(2) Subject to subsections (3) and (4), an insurance holding company may maintain copies of the records referred to in subsection (1) outside Canada and may further process outside Canada any information or data relating to those copies.
Information for Superintendent
(3) Where an insurance holding company, in accordance with subsection (2), maintains outside Canada copies of any records referred to in subsection (1) or further processes information or data relating to those copies
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outside Canada, the insurance holding company shall so inform the Superintendent and provide the Superintendent with a list of those copies maintained outside Canada and a description of the further processing of information or data relating to those copies outside Canada and such other information as the Superintendent may require from time to time. Processing information in Canada
(4) If the Superintendent is at any time of the opinion that the maintenance outside Canada of any copies referred to in subsection (3), or the further processing of information or data relating to any such copies outside Canada, is incompatible with the fulfilment of the Superintendent’s responsibilities under this Part or the Superintendent is advised by the Minister that, in the opinion of the Minister, such maintenance or further processing is not in the national interest, the Superintendent shall direct the insurance holding company to maintain those copies, or to further process information or data relating to those copies, in Canada.
Insurance holding company to comply
(5) An insurance holding company shall forthwith comply with any direction issued under subsection (4).
Guidelines
(6) The Superintendent shall issue guidelines respecting the circumstances under which an exemption referred to in subsection (1) may be available.
Retention of records
877. An insurance holding company shall retain (a) the records of the insurance holding company referred to in subsection 869(1); (b) any record of the insurance holding company referred to in paragraph 869(2)(a) or (b); and (c) the central securities register referred to in subsection 271(1).
Regulations
878. The Governor in Council may make regulations respecting the records, papers and documents to be retained by an insurance holding company and the length of time those records, papers and documents are to be retained.
Institutions f Subdivision 6 Securities Registers
Sections 271 to 277 apply
879. Sections 271 to 277 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) the reference to ‘‘Subsection 262(5) and sections 266 to 268’’ in subsection 271(3) is to be read as a reference to ‘‘Subsection 870(4) and sections 874 to 876’’; and (c) the reference to ‘‘subsection 73(1)’’ in section 277 is to be read as a reference to ‘‘subsection 752(1)’’. Subdivision 7 Corporate Name and Seal
Publication of name
880. An insurance holding company shall set out its name in legible characters in all contracts, negotiable instruments and other documents evidencing rights or obligations with respect to other parties that are issued or made by or on behalf of the insurance holding company.
Corporate seal
881. An instrument or agreement executed on behalf of an insurance holding company by a director, an officer or an agent of the insurance holding company is not invalid merely because a corporate seal is not affixed thereto. Subdivision 8 Insiders
Sections 288 to 295 apply
882. Sections 288 to 295 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; and (c) references to ‘‘this Division’’ in those sections are to be read as references to ‘‘this Subdivision’’.
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Sections 296 to 306 apply
883. Sections 296 to 306 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; and (c) references to ‘‘this Division’’ in those sections are to be read as references to ‘‘this Subdivision’’. Subdivision 10 Compulsory Acquisitions
Sections 307 to 316 apply
884. Sections 307 to 316 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; and (b) references to ‘‘this Division’’ in those sections are to be read as references to ‘‘this Subdivision’’. Subdivision 11 Trust Indentures
Sections 317 to 329 apply
885. Sections 317 to 329 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) references to ‘‘this Act’’ in those sections are to be read as references to ‘‘this Part’’; (c) references to ‘‘this Division’’ in those sections are to be read as references to ‘‘this Subdivision’’; and (d) references to ‘‘subordinated indebtedness’’ in those sections are to be read as references to ‘‘subordinated indebtedness’’ as defined in subsection 700(1).
Institutions f Subdivision 12 Financial Statements
Financial year
886. (1) The financial year of an insurance holding company ends, at the election of the insurance holding company in its by-laws, on the expiration of the thirty-first day of October or the thirty-first day of December in each year.
First financial year
(2) If, in any year, an insurance holding company comes into existence after the first day of July, its first financial year ends, at its election in its by-laws, on the expiration of the thirty-first day of October or the thirty-first day of December in the next calendar year.
Annual financial statement
887. (1) The directors of an insurance holding company shall place before the shareholders at every annual meeting (a) a comparative annual financial statement relating separately to (i) the financial year immediately preceding the meeting, and (ii) the financial year, if any, immediately preceding the financial year referred to in subparagraph (i); (b) the report of the auditor of the insurance holding company; and (c) any further information respecting the financial position of the insurance holding company and the results of its operations required by the by-laws of the insurance holding company to be placed before the shareholders at the annual meeting.
Contents of annual statement
(2) An annual statement of an insurance holding company must contain, with respect to each of the financial years to which it relates, (a) a balance sheet as at the end of the financial year, (b) a statement of income for the financial year, (c) a statement of change of financial position for the financial year, and (d) a statement of changes in shareholders’ equity for the financial year,
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showing such information and particulars as in the opinion of the directors are necessary to present fairly, in accordance with the accounting principles referred to in subsection (4), the financial position of the insurance holding company as at the end of the financial year to which it relates and the results of the operations and changes in the financial position of the insurance holding company for that financial year. Additional information
(3) An insurance holding company shall include with its annual statement (a) a list of the subsidiaries of the insurance holding company, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 975 or pursuant to a realization of security in accordance with section 976 and which the insurance holding company would not otherwise be permitted to hold, showing, with respect to each subsidiary, (i) its name and the address of its head or principal office, (ii) the book value of the aggregate of any shares of the subsidiary beneficially owned by the insurance holding company and by other subsidiaries of the insurance holding company, and (iii) the percentage of the voting rights attached to all the outstanding voting shares of the subsidiary that is carried by the aggregate of any voting shares of the subsidiary beneficially owned by the insurance holding company and by other subsidiaries of the insurance holding company; and (b) such other information as may be prescribed in such form as may be prescribed.
Accounting principles
(4) The financial statements referred to in subsection (1), paragraph (3)(a) and subsection 889(1) shall, except as otherwise specified by the Superintendent, be prepared in accordance with generally accepted accounting principles, the primary source of which is the Handbook of the Canadian Institute of
Institutions f Chartered Accountants. A reference in any provision of this Act to the accounting principles referred to in this subsection shall be construed as a reference to those generally accepted accounting principles with any specifications so made.
Actuarial practices
(5) The valuation of the amount, if any, shown in the balance sheet that is included in the annual statement of an insurance holding company in respect of the actuarial and other policy liabilities of the insurance holding company shall be in accordance with generally accepted actuarial practice with such changes as may be determined by the Superintendent and any additional directions that may be made by the Superintendent.
Regulations
(6) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(a).
Approval by directors
888. (1) The directors of an insurance holding company shall approve the annual statement and the approval of the directors shall be evidenced by the signature of (a) the chief executive officer or, in the event of that officer’s absence or inability to act, any other officer of the insurance holding company authorized by the directors to sign in the stead of the chief executive officer; and (b) one director, if the signature required by paragraph (a) is that of a director, or two directors if the signature required by that paragraph is that of an officer who is not a director.
Condition precedent to publication
(2) An insurance holding company shall not publish copies of an annual statement unless it is approved and signed in accordance with subsection (1).
Statements — subsidiaries
889. (1) An insurance holding company shall keep at its head office a copy of the current financial statements of each subsidiary of the insurance holding company.
Examination
(2) Subject to this section, the shareholders of an insurance holding company and their personal representatives may, on request therefor, examine the statements referred to in
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subsection (1) during the usual business hours of the insurance holding company and may take extracts therefrom free of charge. Barring examination
(3) An insurance holding company may refuse to permit an examination under subsection (2) by any person.
Application for order
(4) Within fifteen days after a refusal under subsection (3), the insurance holding company shall apply to a court for an order barring the right of the person concerned to make an examination under subsection (2) and the court shall either order the insurance holding company to permit the examination or, if it is satisfied that the examination would be detrimental to the insurance holding company or to any other body corporate the financial statements of which would be subject to examination, bar the right and make any further order it thinks fit.
Notice to Superintendent
(5) An insurance holding company shall give the Superintendent and the person seeking to examine the statements referred to in subsection (1) notice of an application to a court under subsection (4), and the Superintendent and the person may appear and be heard in person or by counsel at the hearing of the application.
Distribution of annual statement
890. (1) An insurance holding company shall, not later than twenty-one days before the date of each annual meeting or before the signing of a resolution under paragraph 779(1)(b) in lieu of the annual meeting, send a copy of the documents referred to in subsections 887(1) and (3) to each shareholder at the shareholder’s recorded address, unless that time period is waived by the shareholder.
Exception
(2) An insurance holding company is not required to comply with subsection (1) with respect to shareholders who have informed the insurance holding company, in writing, that they do not wish to receive the annual statement.
Effect of default
(3) Where an insurance holding company is required to comply with subsection (1) and the insurance holding company does not comply with that subsection, the annual meeting at which the annual statement is to be considered
Institutions f shall be adjourned until that subsection has been complied with.
Copy to Superintendent
891. (1) Subject to subsection (2), an insurance holding company shall send to the Superintendent a copy of the documents referred to in subsections 887(1) and (3) not later than twenty-one days before the date of each annual meeting of shareholders of the insurance holding company.
Later filing
(2) If an insurance holding company’s shareholders sign a resolution under paragraph 779(1)(b) in lieu of an annual meeting, the insurance holding company shall send a copy of the documents referred to in subsections 887(1) and (3) to the Superintendent not later than thirty days after the signing of the resolution. Subdivision 13 Auditors Interpretation
Definitions
892. The following definitions apply in this Subdivision.
‘‘firm of accountants’’ « cabinet de comptables »
‘‘firm of accountants’’ means a partnership, the members of which are accountants engaged in the practice of accounting, or a body corporate that is incorporated by or under an Act of the legislature of a province and engaged in the practice of accounting.
‘‘member’’ « membre »
‘‘member’’, in relation to a firm of accountants, means (a) an accountant who is a partner in a partnership, the members of which are accountants engaged in the practice of accounting; or (b) an accountant who is an employee of a firm of accountants. Appointment
Appointment of auditor
893. (1) The shareholders of an insurance holding company shall, by ordinary resolution at the first meeting of shareholders and at each succeeding annual meeting, appoint a firm of accountants to be the auditor of the insurance holding company until the close of the next annual meeting.
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(2) The remuneration of the auditor may be fixed by ordinary resolution of the shareholders but, if not so fixed, shall be fixed by the directors. Qualifications
Qualification of auditor
894. (1) A firm of accountants is qualified to be an auditor of an insurance holding company if (a) two or more members of the firm are accountants who (i) are members in good standing of an institute or association of accountants incorporated by or under an Act of the legislature of a province, (ii) have at least five years experience at a senior level in performing audits of a financial institution, (iii) are ordinarily resident in Canada, and (iv) are independent of the insurance holding company; and (b) the member of the firm who is jointly designated by the firm and the insurance holding company to conduct the audit of the insurance holding company on behalf of the firm is qualified in accordance with paragraph (a).
Independence
(2) For the purposes of subsection (1), (a) independence is a question of fact; and (b) a member of a firm of accountants is deemed not to be independent of an insurance holding company if that member or any other member of the firm of accountants, or the firm of accountants, (i) is a director or an officer or employee of the insurance holding company or of any affiliate of the insurance holding company or is a business partner of any director, officer or employee of the insurance holding company or of any affiliate of the insurance holding company, (ii) beneficially owns or controls, directly or indirectly, a material interest in the shares of the insurance holding company
Institutions f or of any affiliate of the insurance holding company, or (iii) has been a liquidator, trustee in bankruptcy, receiver or receiver and manager of any affiliate of the insurance holding company within the two years immediately preceding the person’s proposed appointment as auditor of the insurance holding company, other than an affiliate that is a subsidiary of the insurance holding company acquired pursuant to section 975 or through a realization of a security pursuant to section 976.
Notice of designation
(3) Within fifteen days after the appointment of a firm of accountants as auditor of an insurance holding company, the insurance holding company and the firm of accountants shall jointly designate a member of the firm who meets the qualifications described in subsection (1) to conduct the audit of the insurance holding company on behalf of the firm and the insurance holding company shall forthwith notify the Superintendent in writing of the designation.
New designation
(4) Where for any reason a member of a firm of accountants designated pursuant to subsection (3) ceases to conduct the audit of the insurance holding company, the insurance holding company and the firm of accountants may jointly designate another member of the same firm of accountants who meets the qualifications described in subsection (1) to conduct the audit of the insurance holding company and the insurance holding company shall forthwith notify the Superintendent in writing of the designation.
Deemed vacancy
(5) In any case where subsection (4) applies and a designation is not made pursuant to that subsection within thirty days after the designated member ceases to conduct the audit of the insurance holding company, there shall be deemed to be a vacancy in the office of auditor of the insurance holding company.
Duty to resign
895. (1) An auditor that ceases to be qualified under section 894 shall resign without delay after any member of the firm of accountants becomes aware that the firm has ceased to be so qualified.
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(2) Any interested person may apply to a court for an order declaring that an auditor of an insurance holding company has ceased to be qualified under section 894 and declaring the office of auditor to be vacant. Vacancies
Revocation of appointment
896. (1) The shareholders of an insurance holding company may, by ordinary resolution at a special meeting, revoke the appointment of an auditor.
Revocation of appointment
(2) The Superintendent may at any time revoke the appointment of an auditor made under subsection (3) or 893(1) or section 898 by notice in writing signed by the Superintendent and sent by registered mail to the auditor and to the insurance holding company addressed to the usual place of business of the auditor and the insurance holding company.
Filling vacancy
(3) A vacancy created by the revocation of the appointment of an auditor under subsection (1) may be filled at the meeting at which the appointment was revoked and, if not so filled, shall be filled by the directors under section 898.
Ceasing to hold office
897. (1) An auditor of an insurance holding company ceases to hold office when (a) the auditor resigns; or (b) the appointment of the auditor is revoked by the shareholders or the Superintendent.
Effective date of resignation
(2) The resignation of an auditor becomes effective at the time a written resignation is sent to the insurance holding company or at the time specified in the resignation, whichever is later.
Filling vacancy
898. (1) Subject to subsection 896(3), where a vacancy occurs in the office of auditor of an insurance holding company, the directors shall forthwith fill the vacancy, and the auditor so appointed holds office for the unexpired term of office of the predecessor of that auditor.
Where Superintendent may fill vacancy
(2) Where the directors fail to fill a vacancy in accordance with subsection (1), the Superintendent may fill the vacancy and the auditor so appointed holds office for the unexpired term of office of the predecessor of that auditor.
Institutions f
Designation of member of firm
(3) Where the Superintendent has, pursuant to subsection (2), appointed a firm of accountants to fill a vacancy, the Superintendent shall designate the member of the firm who is to conduct the audit of the insurance holding company on behalf of the firm.
Right to attend meetings
899. (1) The auditor of an insurance holding company is entitled to receive notice of every meeting of shareholders and, at the expense of the insurance holding company, to attend and be heard at those meetings on matters relating to the duties of the auditor.
Duty to attend meeting
(2) If a director or a shareholder of an insurance holding company, whether or not the shareholder is entitled to vote at the meeting, gives written notice, not less than ten days before a meeting of shareholders, to an auditor or former auditor of the insurance holding company that the director or shareholder wishes the auditor’s attendance at the meeting, the auditor or former auditor shall attend the meeting at the expense of the insurance holding company and answer questions relating to the auditor’s or former auditor’s duties as auditor.
Notice to insurance holding company
(3) A director or shareholder who gives notice under subsection (2) shall send concurrently a copy of the notice to the insurance holding company and the insurance holding company shall forthwith send a copy thereof to the Superintendent.
Superintendent may attend
(4) The Superintendent may attend and be heard at any meeting referred to in subsection (2).
Statement of auditor
900. (1) An auditor of an insurance holding company who (a) resigns, (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of revoking the appointment of the auditor, or (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed in the auditor’s stead, whether because of the auditor’s resignation or revocation of appointment or because the auditor’s term of office has expired or is about to expire,
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shall submit to the insurance holding company and the Superintendent a written statement giving the reasons for the resignation or the reasons why the auditor opposes any proposed action. Statement to be sent to shareholders
(2) Where an insurance holding company receives a written statement referred to in subsection (1) that relates to a resignation as a result of a disagreement with the directors or officers of the insurance holding company or that relates to a matter referred to in paragraph (1)(b) or (c), the insurance holding company shall forthwith send a copy of the statement to each shareholder who is entitled to vote at the annual meeting of shareholders.
Duty of replacement auditor
901. (1) If an auditor of an insurance holding company has resigned or the appointment of an auditor has been revoked, no firm shall accept an appointment or consent to be appointed as auditor of the insurance holding company until the firm has requested and received from the other auditor a written statement of the circumstances and reasons why the other auditor resigned or why, in the other auditor’s opinion, the other auditor’s appointment was revoked.
Exception
(2) Despite subsection (1), a firm may accept an appointment or consent to be appointed as auditor of an insurance holding company if, within fifteen days after a request under that subsection is made, no reply from the other auditor is received.
Effect of non-compliance
(3) Unless subsection (2) applies, an appointment as auditor of an insurance holding company is void if subsection (1) has not been complied with.
Examinations and Reports Auditor’s examination
902. (1) The auditor of an insurance holding company shall make such examination as the auditor considers necessary to enable the auditor to report on the annual statement and on other financial statements required by this Part to be placed before the shareholders, except such annual statements or parts thereof as relate to the period referred to in subparagraph 887(1)(a)(ii).
Institutions f
Auditing standards
(2) The auditor’s examination referred to in subsection (1) shall, except as otherwise specified by the Superintendent, be conducted in accordance with generally accepted auditing standards, the primary source of which is the Handbook of the Canadian Institute of Chartered Accountants.
Right to information
903. (1) On the request of the auditor of an insurance holding company, the present or former directors, officers, employees or representatives of the insurance holding company shall, to the extent that they are reasonably able to do so, (a) permit access to such records, assets and security held by the insurance holding company or any entity in which the insurance holding company has a substantial investment, and (b) provide such information and explanations as are, in the opinion of the auditor, necessary to enable the auditor to perform the duties of auditor of the insurance holding company.
Directors to provide information
(2) On the request of the auditor of an insurance holding company, the directors of the insurance holding company shall, to the extent that they are reasonably able to do so, (a) obtain from the present or former directors, officers, employees and representatives of any entity in which the insurance holding company has a substantial investment the information and explanations that such persons are reasonably able to provide and that are, in the opinion of the auditor, necessary to enable the auditor to perform the duties of auditor of the insurance holding company; and (b) provide the auditor with the information and explanations so obtained.
No civil liability
(3) A person who in good faith makes an oral or written communication under subsection (1) or (2) shall not be liable in any civil action arising from having made the communication.
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Auditor’s report and extended examination
904. (1) The Superintendent may, in writing, require that the auditor of an insurance holding company report to the Superintendent on the extent of the auditor’s procedures in the examination of the annual statement and may, in writing, require that the auditor enlarge or extend the scope of that examination or direct that any other particular procedure be performed in any particular case, and the auditor shall comply with any such requirement of the Superintendent and report to the Superintendent thereon.
Special examination
(2) The Superintendent may, in writing, require that the auditor of an insurance holding company make a particular examination to determine whether any procedures adopted by the insurance holding company may be prejudicial to the interests of depositors, policyholders or creditors of any federal financial institution that is affiliated with the insurance holding company, or any other examination as, in the Superintendent’s opinion, the public interest may require, and report to the Superintendent thereon.
Special examination
(3) The Superintendent may direct that a special audit of an insurance holding company be made if, in the opinion of the Superintendent, it is so required and may appoint for that purpose a firm of accountants qualified under subsection 894(1) to be an auditor of the insurance holding company.
Expenses payable by insurance holding company
(4) The expenses entailed by any examination or audit referred to in any of subsections (1) to (3) are payable by the insurance holding company on being approved in writing by the Superintendent.
Auditor’s report
905. (1) The auditor shall, not less than twenty-one days before the date of the annual meeting of the shareholders of the insurance holding company, make a report in writing to them on the annual statement.
Audit for shareholders
(2) In each report required under subsection (1), the auditor shall state whether, in the auditor’s opinion, the annual statement presents fairly, in accordance with the accounting principles referred to in subsection 887(4), the financial position of the insurance holding company as at the end of the financial year to which it relates and the results of the opera2001
Institutions f tions and changes in the financial position of the insurance holding company for that financial year.
Auditor’s remarks
(3) In each report referred to in subsection (2), the auditor shall include such remarks as the auditor considers necessary when (a) the examination has not been made in accordance with the auditing standards referred to in subsection 902(2); (b) the annual statement has not been prepared on a basis consistent with that of the preceding financial year; or (c) the annual statement does not present fairly, in accordance with the accounting principles referred to in subsection 887(4), the financial position of the insurance holding company as at the end of the financial year to which it relates or the results of the operations or changes in the financial position of the insurance holding company for that financial year.
Report on directors’ statement
906. (1) The auditor of an insurance holding company shall, if required by the shareholders, audit and report to them on any financial statement submitted to them by the directors, and the report shall state whether, in the auditor’s opinion, the financial statement presents fairly the information required by the shareholders.
Sending report
(2) A report of the auditor made under subsection (1) shall be attached to the financial statement to which it relates and a copy of the statement and report shall be sent by the directors to every shareholder and to the Superintendent.
Auditor of subsidiaries
907. (1) An insurance holding company shall take all necessary steps to ensure that its auditor is duly appointed as the auditor of each of its subsidiaries.
Subsidiary outside Canada
(2) Subsection (1) applies in the case of a subsidiary that carries on its operations in a country other than Canada unless the laws of that country do not permit the appointment of the auditor of the insurance holding company as the auditor of that subsidiary.
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Exception
(3) Subsection (1) does not apply in respect of any particular subsidiary where the insurance holding company, after having consulted its auditor, is of the opinion that the total assets of the subsidiary are not a material part of the total assets of the insurance holding company.
Auditor’s attendance
908. (1) The auditor of an insurance holding company is entitled to receive notice of every meeting of the audit committee of the insurance holding company and, at the expense of the insurance holding company, to attend and be heard at that meeting.
Attendance
(2) If so requested by a member of the audit committee, the auditor shall attend every meeting of the audit committee held during the member’s term of office.
Calling meeting
909. (1) The auditor of an insurance holding company or a member of the audit committee may call a meeting of the audit committee.
Right to interview
(2) The chief internal auditor of an insurance holding company or any officer or employee of the insurance holding company acting in a similar capacity shall, at the request of the auditor of the insurance holding company and on receipt of reasonable notice, meet with the auditor.
Notice of errors
910. (1) A director or an officer of an insurance holding company shall forthwith notify the audit committee and the auditor of the insurance holding company of any error or misstatement of which the director or officer becomes aware in an annual statement or other financial statement on which the auditor or any former auditor has reported.
Error noted by auditor
(2) If the auditor or a former auditor of an insurance holding company is notified or becomes aware of an error or misstatement in an annual statement or other financial statement on which the auditor reported and in the auditor’s opinion the error or misstatement is material, the auditor or former auditor shall inform each director of the insurance holding company accordingly.
Duty of directors
(3) Where under subsection (2) the auditor or a former auditor of an insurance holding company informs the directors of an error or misstatement in an annual statement or other financial statement, the directors shall
Institutions f (a) prepare and issue a revised annual statement or financial statement; or (b) otherwise inform the shareholders and the Superintendent of the error or misstatement. Qualified Privilege
Qualified privilege for statements
911. Any oral or written statement or report made under this Part by the auditor or a former auditor of an insurance holding company has qualified privilege.
Subdivision 14 Remedial Actions Derivative action
912. (1) Subject to subsection (2), a complainant or the Superintendent may apply to a court for leave to bring an action under this Part in the name and on behalf of an insurance holding company or any of its subsidiaries, or to intervene in an action under this Part to which the insurance holding company or a subsidiary of the insurance holding company is a party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the insurance holding company or the subsidiary.
Conditions precedent
(2) No action may be brought and no intervention in an action may be made under subsection (1) by a complainant unless the court is satisfied that (a) the complainant has given reasonable notice to the directors of the insurance holding company or the subsidiary of the complainant’s intention to apply to the court under that section if the directors of the insurance holding company or its subsidiary do not bring, diligently prosecute or defend or discontinue the action; (b) the complainant is acting in good faith; and (c) it appears to be in the interests of the insurance holding company or the subsidiary that the action be brought, prosecuted, defended or discontinued.
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Notice to Superintendent
(3) A complainant under subsection (1) shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.
Powers of court
913. (1) In connection with an action brought or intervened in under subsection 912(1), the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order authorizing the Superintendent, the complainant or any other person to control the conduct of the action; (b) an order giving directions for the conduct of the action; (c) an order directing that any amount adjudged payable by a defendant in the action be paid, in whole or in part, directly to former and present security holders of the insurance holding company who are entitled to participate in its profits or of the subsidiary instead of to the insurance holding company or to the subsidiary; and (d) an order requiring the insurance holding company or the subsidiary to pay reasonable legal fees incurred by the Superintendent or the complainant in connection with the action.
Jurisdiction
(2) Despite subsection (1), the court may not make any order in relation to any matter that would, under this Part, require the approval of the Minister or the Superintendent.
Status of shareholder approval
914. (1) An application made or an action brought or intervened in under this Subdivision need not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the insurance holding company or its subsidiary has been or might be approved by the shareholders of the insurance holding company or subsidiary or both, but evidence of approval by the shareholders may be taken into account by the court in making an order under section 913.
Court approval to discontinue
(2) An application made or an action brought or intervened in under this Subdivision shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the court given on such terms
Institutions f as the court thinks fit and, if the court determines that the interests of any complainant might be substantially affected by any stay, discontinuance, settlement or dismissal, the court may order any party to the application or action to give notice to the complainant.
No security for costs
915. (1) A complainant is not required to give security for costs in any application made or any action brought or intervened in under subsection 912(1) or section 916.
Interim costs
(2) In an application made or an action brought or intervened in under this Subdivision, the court may at any time order the insurance holding company or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable by the court for those interim costs on final disposition of the application or action.
Application to rectify records
916. (1) If the name of a person is alleged to be or to have been wrongly entered or retained in, or wrongly deleted or omitted from, the securities register or any other record of an insurance holding company, the insurance holding company, a security holder of the insurance holding company or any aggrieved person may apply to a court for an order that the securities register or record be rectified.
Notice to Superintendent
(2) An applicant under this section shall give the Superintendent notice of the application and the Superintendent may appear and be heard in person or by counsel at the hearing of the application.
Powers of court
(3) In connection with an application under this section, the court may make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order requiring the securities register or other record of the insurance holding company to be rectified; (b) an order restraining an insurance holding company from calling or holding a meeting of shareholders or paying a dividend to shareholders before the rectification; (c) an order determining the right of a party to the proceedings to have the party’s name entered or retained in, or deleted or omitted
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from, the securities register or records of the insurance holding company, whether the issue arises between two or more security holders or alleged security holders, or between the insurance holding company and any security holder or alleged security holder; and (d) an order compensating a party who has incurred a loss. Subdivision 15 Liquidation and Dissolution Interpretation Definition of ‘‘court’’
917. In this Subdivision, ‘‘court’’ means a court having jurisdiction in the place where the insurance holding company has its head office. Application
Application of Subdivision
918. (1) This Subdivision does not apply to an insurance holding company that is an insolvent person or a bankrupt as those terms are defined in subsection 2(1) of the Bankruptcy and Insolvency Act.
Staying proceedings on insolvency
(2) Any proceedings taken under this Subdivision to dissolve or to liquidate and dissolve an insurance holding company shall be stayed if the insurance holding company is at any time found in a proceeding under the Bankruptcy and Insolvency Act to be an insolvent person as defined in subsection 2(1) of that Act.
Winding-up and Restructuring Act does not apply
(3) The Winding-up and Restructuring Act does not apply to an insurance holding company.
Returns to Superintendent
919. A liquidator appointed under this Subdivision to wind up the business of an insurance holding company shall provide the Superintendent with such information relating to the business and affairs of the insurance holding company in such form as the Superintendent requires.
Institutions f Simple Liquidation
No property and no liabilities
920. (1) An insurance holding company that has no property and no liabilities may, if authorized by a special resolution of the shareholders or, if there are no shareholders, by a resolution of all the directors, apply to the Minister for letters patent dissolving the insurance holding company.
Dissolution by letters patent
(2) Where the Minister has received an application under subsection (1) and is satisfied that all the circumstances so warrant, the Minister may issue letters patent dissolving the insurance holding company.
Effect of letters patent
(3) An insurance holding company in respect of which letters patent are issued under subsection (2) ceases to exist on the day stated in the letters patent.
Proposing liquidation
921. (1) The voluntary liquidation and dissolution of an insurance holding company, other than an insurance holding company referred to in subsection 920(1), (a) may be proposed by its directors; or (b) may be initiated by way of a proposal made by a shareholder who is entitled to vote at an annual meeting of shareholders in accordance with sections 770 and 771.
Terms must be set out
(2) A notice of any meeting of shareholders at which the voluntary liquidation and dissolution of an insurance holding company is to be proposed shall set out the terms of the proposal.
Shareholders’ resolution
922. Where the voluntary liquidation and dissolution of an insurance holding company is proposed, the insurance holding company may apply to the Minister for letters patent dissolving the insurance holding company if authorized by a special resolution of the shareholders or, where the insurance holding company has issued more than one class of shares, by special resolution of each class of shareholders whether or not those shareholders are otherwise entitled to vote.
Approval of Minister required
923. (1) No action directed toward the voluntary liquidation and dissolution of an insurance holding company shall be taken by an insurance holding company, other than as provided in sections 921 and 922, until an
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application made by the insurance holding company pursuant to section 922 has been approved by the Minister. Conditional approval
(2) Where the Minister is satisfied on the basis of an application made under section 922 that the circumstances warrant the voluntary liquidation and dissolution of an insurance holding company, the Minister may approve the application.
Effect of approval
(3) Where the Minister has approved an application made pursuant to section 922 with respect to an insurance holding company, the insurance holding company shall not carry on business except to the extent necessary to complete its voluntary liquidation.
Liquidation process
(4) Where the Minister has approved an application made pursuant to section 922 with respect to an insurance holding company, the insurance holding company shall (a) cause notice of the approval to be sent to each known claimant against and creditor of the insurance holding company; (b) publish notice of the approval once a week for four consecutive weeks in the Canada Gazette and once a week for two consecutive weeks in one or more newspapers in general circulation in each province in which the insurance holding company transacted any business within the preceding twelve months; (c) proceed to collect its property, dispose of property that is not to be distributed in kind to its shareholders, discharge or provide for all its obligations and do all other acts required to liquidate its business; and (d) after giving the notice required under paragraphs (a) and (b) and adequately providing for the payment or discharge of all its obligations, distribute its remaining property, either in money or in kind, among its shareholders according to their respective rights.
Dissolution instrument
924. (1) Unless a court has made an order in accordance with subsection 385(1), the Minister may, if satisfied that the insurance holding company has complied with subsection 923(4) and that all the circumstances so warrant, issue letters patent dissolving the insurance holding company.
2001 Insurance holding company dissolved
Institutions f (2) An insurance holding company in respect of which letters patent are issued under subsection (1) is dissolved and ceases to exist on the day stated in the letters patent. Court-supervised Liquidation
Sections 385 to 406 apply
925. Sections 385 to 406 apply in respect of insurance holding companies, subject to the following: (a) references to ‘‘company’’ in those sections are to be read as references to ‘‘insurance holding company’’; (b) references to ‘‘this Part’’ in those sections are to be read as references to ‘‘this Division’’; (c) references to ‘‘this Division’’ in those sections are to be read as references to ‘‘this Subdivision’’; (d) those sections are to be read without reference to ‘‘policyholder’’; (e) the reference to ‘‘subsection 331(1)’’ in paragraph 391(1)(i) is to be read as a reference to ‘‘subsection 887(1)’’; and (f) the reference to ‘‘section 668’’ in subsection 400(2) is to be read as a reference to ‘‘section 994’’. DIVISION 7 OWNERSHIP
Section 406.1 applies
926. Section 406.1 applies in respect of insurance holding companies.
Constraining acquisition
927. (1) No person, or entity controlled by a person, shall, without the approval of the Minister, purchase or otherwise acquire any share of an insurance holding company or purchase or otherwise acquire control of any entity that holds any share of an insurance holding company if (a) the acquisition would cause the person to have a significant interest in any class of shares of the insurance holding company; or (b) where the person has a significant interest in a class of shares of the insurance holding company, the acquisition would increase the significant interest of the person in that class of shares.
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Amalgamation, etc., constitutes acquisition
(2) Where, as a result of an amalgamation, merger or reorganization, the entity that results therefrom would have a significant interest in a class of shares of an insurance holding company, that entity shall be deemed to be acquiring a significant interest in that class of shares of the insurance holding company through an acquisition for which the approval of the Minister is required pursuant to subsection (1).
Exemption
(3) On application by an insurance holding company, other than an insurance holding company in respect of which subsection (4) or (6) applies, the Superintendent may exempt from the application of subsection (1) and section 934 any class of non-voting shares of the insurance holding company if the aggregate book value of the shares of the class is not more than 30 per cent of the aggregate book value of all the outstanding shares of the insurance holding company.
Limitations on share holdings
(4) Despite subsection (1), no person may be a major shareholder of an insurance holding company to which subsection 407(6) applies.
Exception
(5) Subsection (4) no longer applies in respect of any particular insurance holding company if the Minister makes an order under subsection 407(8) determining that subsection 407(4) no longer applies in respect of a converted company controlled by the insurance holding company.
Limitations on share holdings
(6) Despite subsection (1), until a day that is two years after December 31, 1999, no person may have a significant interest in any class of shares of an insurance holding company to which subsection 407(13) applies.
Major shareholder
928. (1) If an insurance holding company in respect of which subsection 927(4) applies controls a life company and a person becomes a major shareholder of the life company or of any entity that also controls the life company, the insurance holding company must to do all things necessary to ensure that, on the day that is one year after the person became a major shareholder of the life company or entity that controls the life company,
Institutions f (a) the insurance holding company no longer controls the life company; or (b) the life company or the entity that controls the life company does not have any major shareholder other than the insurance holding company or any entity that the insurance holding company controls.
Exemption
(2) Subsection (1) does not apply in respect of a life company with equity of less than two hundred and fifty million dollars, or any other amount that may be prescribed.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the insurance holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Major shareholder
928.1 (1) Despite subsection 928(1), if an insurance holding company in respect of which subsection 927(4) applies controls a life company in respect of which subsection 928(1) does not apply by reason of subsection 928(2) and the equity of the life company reaches two hundred and fifty million dollars or more or any other amount that is prescribed and on the day the equity of the life company reaches two hundred and fifty million dollars or more, or the prescribed amount, as the case may be, a person is a major shareholder of the life company or of any entity that also controls the life company, the insurance holding company must do all things necessary to ensure that, on the day that is three years after that day, (a) the insurance holding company no longer controls the life company; or (b) the life company or the entity that controls the life company does not have any major shareholder other than the insurance holding company or any entity that the insurance holding company controls.
Extension
(2) If general market conditions so warrant and the Minister is satisfied that the insurance holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later
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day as the day from and after which it must comply with that subsection. Significant interest
929. (1) If an insurance holding company in respect of which subsection 927(6) applies controls a life company and a person acquires a significant interest in any class of shares of the life company or of any entity that also controls the life company, the insurance holding company must to do all things necessary to ensure that, on the day that is one year after the person acquired the significant interest in the class of shares of the life company or entity that controls the life company, (a) the insurance holding company no longer controls the life company; or (b) no person has a significant interest in any class of shares of the life company or the entity that controls the life company, other than the insurance holding company or any entity that the insurance holding company controls.
Exemption
(2) Subsection (1) does not apply in respect of a life company with equity of less than two hundred and fifty million dollars, or any other amount that may be prescribed.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that the insurance holding company has used its best efforts to be in compliance with subsection (1) on the required day, the Minister may specify a later day as the day from and after which it must comply with that subsection.
Prohibition against significant interest
930. No person who has a significant interest in any class of shares of a widely held insurance holding company in respect of which subsection 927(4) applies may have a significant interest in any class of shares of a subsidiary of the insurance holding company that is a life company or an insurance holding company.
Prohibition against significant interest
931. No person who has a significant interest in any class of shares of an insurance holding company may have a significant interest in any class of shares of
Institutions f (a) a widely held converted company in respect of which subsection 407(4) applies that controls the insurance holding company; (b) a widely held company to which subsection 407(5) applies that controls the insurance holding company; or (c) a widely held insurance holding company in respect of which subsection 407(6) applies that controls the insurance holding company.
No acquisition of control without approval
932. No person shall acquire control, within the meaning of paragraph 3(1)(d), of an insurance holding company without the prior approval of the Minister.
Prohibition against control
933. Despite section 932, no person shall control, within the meaning of paragraph 3(1)(d), an insurance holding company in respect of which subsection 927(4) or (6) applies.
Constraining registration
934. No insurance holding company shall, unless the acquisition of the share has been approved by the Minister, record in its securities register a transfer or issue of any share of the insurance holding company to any person or to any entity controlled by a person if (a) the transfer or issue of the share would cause the person to have a significant interest in any class of shares of the insurance holding company; or (b) where the person has a significant interest in a class of shares of the insurance holding company, the transfer or issue of the share would increase the significant interest of the person in that class of shares of the insurance holding company.
Exception for small holdings
935. Despite section 934, if, as a result of a transfer or issue of shares of a class of shares of an insurance holding company to a person, the total number of shares of that class registered in the securities register of the insurance holding company in the name of that person
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(a) would not exceed five thousand, and (b) would not exceed 0.1 per cent of the outstanding shares of that class, the insurance holding company is entitled to assume that no person is acquiring or increasing a significant interest in that class of shares of the insurance holding company as a result of that issue or transfer of shares. Where approval not required
936. (1) Despite subsections 927(1) and (2) and section 934, the approval of the Minister is not required in respect of an insurance holding company, other than an insurance holding company in respect of which subsection 927(4) applies, if a person with a significant interest in a class of shares of the insurance holding company or an entity controlled by a person with a significant interest in a class of shares of the insurance holding company purchases or otherwise acquires shares of that class, or acquires control of any entity that holds any share of that class, and the number of shares of that class purchased or otherwise acquired, or the acquisition of control of the entity, as the case may be, would not increase the significant interest of the person in that class of shares of the insurance holding company to a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever is applicable.
Percentage
(2) Subject to subsection (3), for the purposes of subsection (1), the percentage is 5 percentage points in excess of the significant interest of the person in that class of shares of the insurance holding company on the day of the most recent purchase or acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the insurance holding company, or of control of an entity that held shares of that class of shares of the insurance holding company, for which approval was given by the Minister.
When approval not required
(3) If a person has a significant interest in a class of shares of an insurance holding company and the person’s percentage of that class has decreased after the date of the most recent purchase or other acquisition by the person or
Institutions f any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the insurance holding company, or of control of an entity that held shares of that class of shares of the insurance holding company, for which approval was given by the Minister, the percentage for the purposes of subsection (1) is the percentage that is the lesser of (a) 5 percentage points in excess of the significant interest of the person in that class of shares of the insurance holding company on the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the insurance holding company, or of control of an entity that held shares of that class of shares of the insurance holding company, for which approval was given by the Minister, and (b) 10 percentage points in excess of the lowest significant interest of the person in that class of shares of the insurance holding company at any time after the day of the most recent purchase or other acquisition by the person or any entity controlled by the person, other than the entity referred to in subsection (1), of shares of that class of shares of the insurance holding company, or of control of an entity that held shares of that class of shares of the insurance holding company, for which approval was given by the Minister.
Exception
(4) Subsection (1) does not apply if the purchase or other acquisition of shares or the acquisition of control referred to in that subsection would (a) result in the acquisition of control of the insurance holding company by the person referred to in that subsection; (b) where the person controls the insurance holding company but the voting rights attached to the aggregate of any voting shares of the insurance holding company beneficially owned by the person and by entities controlled by the person do not
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exceed 50 per cent of the voting rights attached to all of the outstanding voting shares of the insurance holding company, cause the voting rights attached to that aggregate to exceed 50 per cent of the voting rights attached to all of the outstanding voting shares of the insurance holding company; (c) result in the acquisition of a significant interest in a class of shares of the insurance holding company by an entity controlled by the person and the acquisition of that investment is not exempted by the regulations; or (d) result in an increase in a significant interest in a class of shares of the insurance holding company by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever is applicable, and the increase is not exempted by the regulations.
Regulations
(5) The Governor in Council may make regulations (a) exempting from the application of paragraph (4)(c) the acquisition of a significant interest in a class of shares of the insurance holding company by an entity controlled by the person; and (b) exempting from the application of paragraph (4)(d) an increase in a significant interest in a class of shares of the insurance holding company by an entity controlled by the person by a percentage that is greater than the percentage referred to in subsection (2) or (3), whichever applies.
When approval not required
937. (1) Despite subsections 927(1) and (2) and section 934, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the insurance holding company to increase its capital and shares of the insurance holding company are issued and acquired in accordance with the terms and conditions, if any, that may be specified in the order; or
Institutions f (b) a person who controls, within the meaning of paragraph 3(1)(a), the insurance holding company acquires additional shares of the insurance holding company.
Exception
(2) Paragraph (1)(a) does not apply in respect of an insurance holding company in respect of which subsection 927(4) or (6) applies.
Pre-approval
(3) For the purposes of subsections 927(1) and (2) and section 934, the Minister may approve (a) the purchase or other acquisition of such number or percentage of shares of an insurance holding company as may be required in a particular transaction or series of transactions; or (b) the purchase or other acquisition of up to a specified number or percentage of shares of an insurance holding company within a specified period.
Public holding requirement
938. (1) Every insurance holding company shall, from and after the day determined under this section in respect of that insurance holding company, have, and continue to have, voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the insurance holding company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the insurance holding company in respect of the voting shares of the insurance holding company or by any entity that is controlled by a person who is a major shareholder of the insurance holding company in respect of such shares.
Determination of day
(2) If the insurance holding company has equity of one billion dollars or more on the day it comes into existence, the day referred to in subsection (1) is the day that is three years after that day and, in the case of any other insurance holding company, the day referred to in subsection (1) is the day that is three years after the day of the first annual meeting of the shareholders of the insurance holding compa���
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ny held after the equity of the insurance holding company first reaches one billion dollars. Extension
(3) If general market conditions so warrant and the Minister is satisfied that an insurance holding company has used its best efforts to be in compliance with this section on the day determined under subsection (2), the Minister may specify a later day as the day from and after which the insurance holding company must comply with subsection (1).
Limit on assets
939. (1) Unless an exemption order with respect to the insurance holding company is granted under section 941, if an insurance holding company fails to comply with section 938 in any month, the Minister may, by order, require the insurance holding company not to have, until it complies with that section, average total assets in any three month period ending on the last day of a subsequent month exceeding the insurance holding company’s average total assets in the three month period ending on the last day of the month immediately preceding the month specified in the order.
Average total assets
(2) For the purposes of subsection (1), the average total assets of an insurance holding company in a three month period shall be computed by adding the total assets of the insurance holding company as calculated for the month end of each of the three months in the period and by dividing the sum by three.
Increase of capital
940. Where the Superintendent has, by order, directed an insurance holding company to increase its capital and shares of the insurance holding company are issued and acquired in accordance with such terms and conditions as may be specified in the order, section 938 shall not apply in respect of the insurance holding company until such time as the Superintendent may, by order, specify.
Exemption by order of Minister
941. (1) An entity that controls an insurance holding company and that is (a) an insurance holding company that is in compliance with section 938, (b) a widely held bank,
Institutions f (c) a bank that would be in compliance with section 938 if it were an insurance holding company, (d) a widely held bank holding company, (e) a bank holding company that would be in compliance with section 938 if it were an insurance holding company, (f) a body corporate to which the Trust and Loan Companies Act applies that would be in compliance with section 938 if it were an insurance holding company, (g) a company that would be in compliance with section 938 if it were an insurance holding company, (h) a mutual company, (i) an association to which the Cooperative Credit Associations Act applies, (j) a body corporate that is incorporated and regulated by or under an Act of the legislature of a province and that is a mutual insurance corporation, (k) a cooperative credit society regulated by or under an Act of the legislature of a province, (l) a foreign institution, or (m) a body corporate incorporated or formed by or under an Act of Parliament or of the legislature of a province whose activities, and those of any entities that it controls, are, in the opinion of the Minister, when viewed as a whole, primarily financial, may apply to the Minister to exempt the insurance holding company from the requirements of section 938.
Terms and conditions
(2) In the case of an entity referred to in any of paragraphs (1)(a) to (l), the Minister may grant the exemption referred to in subsection (1) subject to such terms and conditions as the Minister considers appropriate.
Terms and conditions
(3) In the case of a holding body corporate referred to in paragraph (1)(m), the Minister may grant the exemption referred to in subsection (1) only if the Minister is satisfied that the holding body corporate will, if the
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exemption is granted, submit to and comply with sections 803 and 938 as though the holding body corporate were an insurance holding company and the Minister may grant the exemption subject to such terms and conditions as the Minister considers appropriate. Effect of order
(4) Subject to subsection (5) and to such terms and conditions as are set out in an exemption order granted under this section, an insurance holding company in respect of which an exemption order is granted need not comply with section 938.
Expiration of exemption order
(5) The Minister may, by order, direct that an exemption order granted under this section in respect of an insurance holding company shall expire if (a) the entity that applied for the exemption order ceases to control the insurance holding company; (b) in the opinion of the Minister, the activities of the holding body corporate referred to in paragraph (1)(m) that applied for the exemption order, whether carried on directly or through entities that it controls, are no longer primarily financial; (c) the holding body corporate referred to in paragraph (1)(m) that applied for the exemption order ceases to comply with section 803 or 938; or (d) there is a breach of any term or condition set out in the exemption order.
Compliance with section 938
(6) Where an exemption order granted under this section expires, the insurance holding company in respect of which the exemption order was granted shall comply with section 938 as of the day the exemption order expires.
Limit on assets
(7) Where an insurance holding company fails to comply with section 938 on the day referred to in subsection (6), the insurance holding company shall not, until it complies with section 938, have average total assets in any three month period ending on the last day of a subsequent month exceeding the insurance holding company’s average total assets in the three month period ending on the last day of the month immediately preceding the
Institutions f day referred to in subsection (6) or such later day as the Minister may, by order, specify.
Application of subsection 939(2)
(8) Subsection 939(2) applies for the purposes of subsection (7).
Exception
942. (1) If an insurance holding company fails to comply with section 938 as the result of any of the following, section 939 does not apply in respect of that insurance holding company until the expiration of six months after the day the insurance holding company failed to comply with section 938: (a) a distribution to the public of voting shares of the insurance holding company; (b) a redemption or purchase of voting shares of the insurance holding company; (c) the exercise of any option to acquire voting shares of the insurance holding company; or (d) the conversion of any convertible securities into voting shares of the insurance holding company.
Shares acquiring voting rights
(2) If as the result of an event that has occurred and is continuing, shares of an insurance holding company acquire voting rights in such number as to cause the insurance holding company to no longer be in compliance with section 938, section 939 does not apply in respect of that insurance holding company until the expiration of six months after the day the insurance holding company ceased to be in compliance with section 938 or such later day as the Minister may, by order, specify.
Exemption
(3) If a holding body corporate referred to in subsection 941(3) fails to comply with section 938 as the result of any of the following, paragraph 941(5)(c) does not apply in respect of that holding body corporate until the expiration of six months after the day the holding body corporate failed to comply with section 938: (a) a distribution to the public of voting shares of the holding body corporate; (b) a redemption or purchase of voting shares of the holding body corporate;
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(c) the exercise of any option to acquire voting shares of the holding body corporate; or (d) the conversion of any convertible securities into voting shares of the holding body corporate. Shares acquiring voting rights
(4) If, as the result of an event that has occurred and is continuing, shares of a holding body corporate referred to in subsection 941(3) acquire voting rights in such number as to cause the holding body corporate to no longer be in compliance with section 938, paragraph 941(5)(c) does not apply in respect of that holding body corporate until the expiration of six months after the day the holding body corporate ceased to be in compliance with section 938 or such later day as the Minister may, by order, specify.
Acquisition of control permitted
943. (1) Subject to subsection (2) and sections 934 and 944, section 938 does not apply in respect of an insurance holding company if a person acquires control of an insurance holding company with equity of one billion dollars or more through the purchase or other acquisition of all or any number of the shares of the insurance holding company by the person or by any entity controlled by the person.
Undertaking required
(2) Subsection (1) applies only if the person provides the Minister with an undertaking satisfactory to the Minister to do all things necessary so that, within three years after the acquisition, or any other period that the Minister may specify, the insurance holding company has voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the insurance holding company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the insurance holding company in respect of the voting shares of the insurance holding company or by any entity that is controlled by a person who is a major shareholder of the insurance holding company in respect of such shares.
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Application of section 938
944. At the expiration of the period for compliance with an undertaking referred to in subsection 943(2), section 938 applies in respect of the insurance holding company.
Restriction on voting rights
945. (1) If, with respect to any insurance holding company, a particular person contravenes subsection 927(1), (4) or (6) or section 930, 931, 932 or 933 or fails to comply with an undertaking referred to in subsection 943(2) or with any term or condition imposed under section 948, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights (a) that are attached to shares of the insurance holding company beneficially owned by the particular person or any entity controlled by the particular person; or (b) that are subject to an agreement entered into by the particular person, or any entity controlled by the particular person, pertaining to the exercise of the voting rights.
Subsection (1) ceases to apply
(2) Subsection (1) ceases to apply in respect of a person when, as the case may be, (a) the shares to which the contravention relates have been disposed of; (b) the person ceases to control the insurance holding company within the meaning of paragraph 3(1)(d); (c) if the person failed to comply with an undertaking referred to in subsection 943(2), the insurance holding company complies with section 938; or (d) if the person failed to comply with a term or condition imposed under section 948, the person complies with the term or condition.
Saving
(3) Despite subsection (1), if a person contravenes subsection 927(4) by reason only that, as a result of an event that has occurred and is continuing and is not within the control of the person, shares of the insurance holding company beneficially owned by the person or by any entity controlled by the person acquire voting rights in such number so as to cause the
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person to be a major shareholder of the insurance holding company, the Minister may, after a consideration of the circumstances, permit the person and any entity controlled by the person to exercise voting rights, in person or by proxy, in respect of any class of voting shares of the insurance holding company beneficially owned by them that do not in aggregate exceed 20 per cent of the voting rights attached to that class of voting shares. Application for approval
946. (1) An application for an approval of the Minister required under this Division must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
Applicant
(2) If, with respect to any particular transaction, this Division applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons.
Matters for consideration
947. (1) Subject to subsection (2), if an application for an approval under section 927 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for any company that is a subsidiary of the insurance holding company; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of any company that is a subsidiary of the insurance holding company; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the insurance holding company will be operated responsibly by persons
Institutions f with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the insurance holding company and its affiliates on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada.
Exception
(2) Subject to section 933, the Minister shall take into account only paragraph (1)(d) if the application is in respect of a transaction that would result in the applicant or applicants holding (a) more than 10 per cent but no more than 20 per cent of any class of the outstanding voting shares of an insurance holding company in respect of which subsection 927(4) applies; or (b) more than 10 per cent but no more than 30 per cent of any class of the outstanding non-voting shares of such an insurance holding company.
National treatment
(3) Where a transaction in respect of which subsection 927(1) or (2) applies would cause an insurance holding company to become a subsidiary of a foreign institution that is engaged in the insurance business, that does not have any other insurance holding company as its subsidiary and that is a non-WTO Member foreign institution, the Minister shall not approve the transaction unless the Minister is satisfied that treatment as favourable for insurance holding companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign institution principally carries on business, either directly or through a subsidiary.
Part XII of the Bank Act
(4) Nothing in subsection (1) or (3) affects the operation of Part XII of the Bank Act.
Terms and conditions
948. The Minister may impose any terms and conditions in respect of an approval given under this Division that the Minister considers necessary to ensure compliance with any provision of this Act.
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Certifying receipt of application
949. (1) If, in the opinion of the Superintendent, an application filed under this Division contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent.
Incomplete application
(2) If, in the opinion of the Superintendent, an application filed under this Division is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application.
Notice of decision to applicant
950. (1) Subject to subsections (2) and (3) and 951(1), the Minister shall, within a period of thirty days after the certified date referred to in subsection 949(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) where the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Notice
(2) Subject to subsections (4) and 951(2), if an application involves the acquisition of control of an insurance holding company, the Minister shall, within a period of forty-five days after the certified date referred to in subsection 949(1), send to the applicant (a) a notice approving the transaction to which the application relates; or (b) where the Minister is not satisfied that the transaction to which the application relates should be approved, a notice to that effect, advising the applicant of the right to make representations to the Minister in respect of the matter.
Extension of period for notice
(3) Where the Minister is unable to complete the consideration of an application within the period referred to in subsection (1), the Minister shall, (a) within that period, send a notice to that effect to the applicant; and
Institutions f (b) within a further period of thirty days after the date of the sending of the notice referred to in paragraph (a) or within such other further period as may be agreed on by the applicant and the Minister, send a notice referred to in paragraph (1)(a) or (b) to the applicant.
Extension of period for notice
(4) Where the Minister considers it appropriate to do so, the Minister may extend the period referred to in subsection (2) for one or more periods of forty-five days.
Reasonable opportunity to make representations
951. (1) Where, after receipt of the notice referred to in paragraph 950(1)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of thirty days after the date of the notice, or within such further period as may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
Reasonable opportunity to make representations
(2) Where, after receipt of the notice referred to in paragraph 950(2)(b), the applicant advises the Minister that the applicant wishes to make representations, the Minister shall provide the applicant with a reasonable opportunity within a period of forty-five days after the date of the notice, or within such further period as may be agreed on by the applicant and the Minister, to make representations in respect of the matter.
Notice of decision
952. (1) Within a period of thirty days after the expiration of the period for making representations referred to in subsection 951(1), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
Notice of decision
(2) Within a period of forty-five days after the expiration of the period for making representations referred to in subsection 951(2), the Minister shall, in the light of any such representations and having regard to the matters to be taken into account, send a notice to the applicant indicating whether or not the Minister approves the transaction to which the application relates.
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Deemed approval
953. Where the Minister does not send a notice under subsection 950(1) or (3) or 952(1) within the period provided for in those subsections, the Minister is deemed to have approved the transaction to which the application relates.
Constraining registration — Crown and foreign governments
954. (1) No insurance holding company shall record in its securities register a transfer or issue of any share of the insurance holding company to (a) Her Majesty in right of Canada or of a province or any agent or agency of Her Majesty in either of those rights; or (b) the government of a foreign country or any political subdivision thereof, or any agent or agency thereof.
Exception
(2) Notwithstanding subsection (1), an insurance holding company that is a subsidiary of a foreign institution that is controlled by the government of a foreign country or any political subdivision thereof, or any agency thereof, may register a transfer or issue of a share or shares of the insurance holding company to the foreign institution or to any subsidiary of the foreign institution.
Suspension of voting rights held by governments
955. Notwithstanding section 775, where any voting shares of an insurance holding company are beneficially owned by (a) Her Majesty in right of Canada or of a province or any agency of Her Majesty in either of those rights, or (b) the government of a foreign country or any political subdivision thereof, or any agency thereof, no person shall, in person or by proxy, exercise the voting rights attached to those shares.
Disposition of shareholdings
956. (1) If, with respect to any insurance holding company, a person contravenes subsection 927(1), (4) or (6) or section 930, 931, 932 or 933 or fails to comply with an undertaking referred to in subsection 943(2) or with any term or condition imposed under section 948, the Minister may, if the Minister considers it in the public interest to do so, by order, direct that person and any person
Institutions f controlled by that person to dispose of such number of shares of the insurance holding company beneficially owned by any of those persons as the Minister specifies in the order, within such time as the Minister specifies therein and in such proportion, if any, as between the person and the persons controlled by that person as is specified in the order.
Representations
(2) No direction shall be made under subsection (1) unless the Minister has provided each person to whom the direction relates and the insurance holding company concerned with a reasonable opportunity to make representations in respect of the subjectmatter of the direction.
Appeal
(3) Any person with respect to whom a direction has been made under subsection (1) may, within thirty days after the date of the direction, appeal the matter in accordance with section 1020.
Application to court
957. (1) Where a person fails to comply with a direction made under subsection 956(1), an application on behalf of the Minister may be made to a court for an order to enforce the direction.
Court order
(2) A court may, on an application under subsection (1), make such order as the circumstances require to give effect to the terms of the direction and may, without limiting the generality of the foregoing, require the insurance holding company concerned to sell the shares that are the subject-matter of the direction.
Appeal
(3) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court.
Interest of securities underwriter
958. This Division does not apply to a securities underwriter in respect of shares of a body corporate or ownership interests in an unincorporated entity that are acquired by the underwriter in the course of a distribution to the public of those shares or ownership interests and that are held by the underwriter for a period of not more than six months.
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959. (1) The directors of an insurance holding company may make such arrangements as they deem necessary to carry out the intent of this Division and, in particular, but without limiting the generality of the foregoing, may (a) require any person in whose name a share of the insurance holding company is held to submit a declaration setting out (i) the beneficial ownership of the share, and (ii) such other information as the directors deem relevant for the purposes of this Division; (b) require any person who wishes to have a transfer of a share registered in the name of, or to have a share issued to, that person to submit a declaration referred to in paragraph (a) as though the person were the holder of that share; and (c) determine the circumstances in which a declaration referred to in paragraph (a) is to be required, the form of the declaration and the times at which it is to be submitted.
Order of Superintendent
(2) The Superintendent may, by order, direct an insurance holding company to obtain from any person in whose name a share of the insurance holding company is held a declaration setting out the name of every entity controlled by that person and containing information concerning (a) the ownership or beneficial ownership of the share; and (b) such other related matters as are specified by the Superintendent.
Compliance required
(3) As soon as possible after receipt by an insurance holding company of a direction under subsection (2), (a) the insurance holding company shall comply with the direction; and (b) every person who is requested by the insurance holding company to provide a declaration containing information referred to in subsection (1) or (2) shall comply with the request.
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Outstanding declaration: effect
(4) Where, pursuant to this section, a declaration is required to be submitted by a shareholder or other person in respect of the issue or transfer of any share, an insurance holding company may refuse to issue the share or register the transfer unless the required declaration is submitted.
Reliance on information
960. An insurance holding company and any person who is a director or an officer, employee or agent of the insurance holding company may rely on any information contained in a declaration required by the directors pursuant to section 959 or on any information otherwise acquired in respect of any matter that might be the subject of such a declaration, and no action lies against the insurance holding company or any such person for anything done or omitted to be done in good faith in reliance on any such information.
Exemption regulations
961. The Governor in Council may, by regulation, exempt from any of the provisions of this Division any transaction or any class of transactions involving the transfer of shares on the death of the beneficial owner thereof, or any arrangement made in contemplation of the death of the beneficial owner, to one or more members of the beneficial owner’s family, or to one or more trustees on their behalf.
Competition Act
962. Nothing in, or done under the authority of, this Act affects the operation of the Competition Act. DIVISION 8 BUSINESS AND POWERS
Main business
963. (1) Subject to this Part, an insurance holding company shall not engage in or carry on any business other than (a) acquiring, holding and administering investments that are permitted by this Part; (b) providing management, advisory, financing, accounting, information processing or other prescribed services to entities in which it has a substantial investment; and (c) any other prescribed business.
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Regulations
(2) The Governor in Council may make regulations prescribing businesses or services for the purposes of subsection (1).
Restriction on partnerships
964. (1) Except with the approval of the Superintendent, an insurance holding company shall not be a general partner in a limited partnership or a partner in a general partnership.
Meaning of ‘‘general partnership’’
(2) For the purposes of subsection (1), ‘‘general partnership’’ means any partnership other than a limited partnership.
Restriction on guarantees
965. (1) An insurance holding company shall not guarantee on behalf of any person the payment or repayment of any sum of money.
Exception
(2) Subsection (1) does not apply if (a) the person on whose behalf the insurance holding company has undertaken to guarantee the payment or repayment is a subsidiary of the insurance holding company; and (b) the subsidiary has an unqualified obligation to reimburse the insurance holding company for the full amount of the payment or repayment to be guaranteed.
Regulations
(3) The Governor in Council may make regulations imposing terms and conditions in respect of guarantees permitted by this section. DIVISION 9 INVESTMENTS Interpretation
Definitions
966. (1) The definitions in subsection 490(1) apply in respect of insurance holding companies, subject to the following: (a) the reference to ‘‘section 495’’ in the definition ‘‘permitted entity’’ is to be read as a reference to ‘‘section 971’’; and (b) the reference to ‘‘company’’ in the definition ‘‘permitted entity’’ is to be read
Institutions f as a reference to ‘‘insurance holding company’’.
Members of an insurance holding company’s group
(2) For the purpose of this Division, a member of an insurance holding company’s group is any of the following: (a) an entity referred to in any of paragraphs 971(1)(a) to (f) that controls the insurance holding company; (b) a subsidiary of the insurance holding company or of an entity referred to in any of paragraphs 971(1)(a) to (f) that controls the insurance holding company; (c) an entity in which the insurance holding company, or an entity referred to in any of paragraphs 971(1)(a) to (f) that controls the insurance holding company, has a substantial investment; or (d) a prescribed entity in relation to the insurance holding company.
Non-application of Division
(3) This Division does not apply in respect of (a) the holding of a security interest in real property, unless the security interest is prescribed under paragraph 984(a) to be an interest in real property; or (b) the holding of a security interest in securities of an entity. Investments
Investments
967. Subject to this Division, an insurance holding company may invest its funds in the shares of or ownership interests in any entity or make any other investment that its directors consider necessary or advisable to manage the insurance holding company’s liquidity.
General Constraints on Investments Investment standards
968. The directors of an insurance holding company shall establish and the insurance holding company shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply to avoid undue risk of loss and obtain a reasonable return.
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Restriction on control and substantial investments
969. (1) Subject to subsections (2) and (3), no insurance holding company shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) An insurance holding company may acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 971(1)(a) to (j), a specialized financing entity or a prescribed entity that controls or has a substantial investment in the entity; or (b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 971(1)(a) to (j), a specialized financing entity or a prescribed entity that is controlled by the insurance holding company, or (ii) an entity controlled by an entity referred to in any of paragraphs 971(1)(a) to (j), a specialized financing entity or a prescribed entity that is controlled by the insurance holding company.
Exception: temporary investments, realizations and loan workouts
(3) An insurance holding company may acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 974; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 975; or (c) a realization of security permitted by section 976.
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Exception: uncontrolled event
(4) An insurance holding company is deemed not to contravene subsection (1) if the insurance holding company acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the insurance holding company.
Regulations re limits
970. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Division; (b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by an insurance holding company and its prescribed subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) prescribing terms and conditions under which an insurance holding company may acquire control of, or acquire or increase a substantial investment in, a specialized financing entity.
Subsidiaries and Equity Investments Permitted investments
971. (1) Subject to subsections (4) to (6), an insurance holding company may acquire control of, or acquire or increase a substantial investment in, (a) a company or a society; (b) an insurance holding company; (c) a bank; (d) a bank holding company; (e) a body corporate to which the Trust and Loan Companies Act applies; (f) an association to which the Cooperative Credit Associations Act applies; (g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province;
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(h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities.
Permitted investments
(2) Subject to subsections (3) to (6), an insurance holding company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a life company is permitted to engage in under subsection 440(2) or section 441 or 442, other than paragraph 441(1)(h); (b) acquiring or holding shares of, or ownership interests in, entities in which an insurance holding company is permitted under this Division to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the insurance holding company or any member of the insurance holding company’s group: (i) the insurance holding company, (ii) any member of the insurance holding company’s group,
Institutions f (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a life company is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any member of the insurance holding company’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a financial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services; (e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ as defined in subsection 490(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) An insurance holding company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a company is not permitted to engage in under any of sections 466, 469 and 475;
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(b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 440(2)(b); (c) activities that a company is not permitted to engage in under any regulation made under section 489 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (d) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the insurance holding company, a company would be permitted under Part IX to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the insurance holding company, a company would be permitted to acquire a substantial investment in the other entity under subsection 493(2), paragraph 493(3)(b) or (c) or subsection 493(4) or 495(1) or (2); or (e) any prescribed activity.
Control
(4) Subject to subsection (8) and the regulations, an insurance holding company may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in any of paragraphs (1)(a) to (j), unless (i) the insurance holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the insurance holding company is permitted by regulations made under paragraph 977(a) to acquire or increase the substantial investment; (b) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its
Institutions f business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the insurance holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the insurance holding company is permitted by regulations made under paragraph 977(a) to acquire or increase the substantial investment; or (c) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless (i) the insurance holding company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, (ii) the insurance holding company is permitted by regulations made under paragraph 977(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or (b) or an entity that is not a permitted entity.
Minister’s approval
(5) Subject to the regulations, an insurance holding company may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in paragraphs (1)(g) to (i) from a person who is not a member of the insurance holding company’s group; (b) acquire control of an entity referred to in paragraph (1)(j) or (4)(b), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an
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entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the insurance holding company’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 441(1)(d) or (d.1); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f). Superintendent’s approval
(6) Subject to subsection (7) and the regulations, an insurance holding company may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (4)(b) and (c) unless the insurance holding company obtains the approval of the Superintendent.
Exception
(7) Subsection (6) does not apply in respect of a particular transaction if (a) the insurance holding company is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b), other than a specialized financing entity; (b) the insurance holding company is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 972(1).
Control not required
(8) An insurance holding company need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of
Institutions f the country under the laws of which the entity was incorporated or formed do not permit the insurance holding company to control the entity.
Prohibition on giving up control in fact
(9) An insurance holding company that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Giving up control
(10) An insurance holding company that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if (a) the insurance holding company is permitted to do so by regulations made under paragraph 977(c); or (b) the entity meets the conditions referred to in subparagraph (4)(c)(iii).
Subsections do not apply
(11) If an insurance holding company controls, within the meaning of paragraph 3(1)(a), (b) or (c) an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the insurance holding company of its substantial investment in the entity so long as the insurance holding company continues to control the entity.
Approval for indirect investments
972. (1) If an insurance holding company obtains the approval of the Minister under subsection 971(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the insurance holding company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 971(5) or the Superintendent under subsection 971(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the insurance holding company is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
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Approval for indirect investments
(2) If an insurance holding company obtains the approval of the Superintendent under subsection 971(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the insurance holding company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the insurance holding company is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
973. (1) If an insurance holding company controls a permitted entity, other than an entity referred to in any of paragraphs 971(1)(a) to (f), the insurance holding company shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If an insurance holding company acquires control of an entity referred to in any of paragraphs 971(1)(g) to (j), the insurance holding company shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of any entity referred to in any of paragraphs 971(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Division, an insurance holding company shall not control a permitted entity, other than an entity referred to in any of paragraphs 971(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the insurance holding company obtains from the
Institutions f permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity.
Exceptions and Exclusions Temporary investments in entity
974. (1) Subject to subsection (3), an insurance holding company may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Extension
(2) The Superintendent may, in the case of any particular insurance holding company that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(3) If an insurance holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 971(5) is required, the insurance holding company must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
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Indeterminate extension
(4) If an insurance holding company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 971(6) is required, the Superintendent may, in the case of any particular insurance holding company that makes an application under this subsection, permit the insurance holding company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
975. (1) Despite anything in this Division, if any subsidiary of an insurance holding company has made a loan to an entity and, under the terms of the agreement between the subsidiary and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the insurance holding company may acquire, through the subsidiary, (a) a substantial investment in the entity to which the loan was made; (b) a substantial investment in any entity that is an affiliate of the entity; or (c) a substantial investment in an entity that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity to which the loan was made or any of the affiliates of that entity.
Obligation of insurance holding company
(2) If an insurance holding company acquires a substantial investment in an entity under subsection (1), the insurance holding company shall, within five years after acquiring the substantial investment, cause the subsidiary that made the loan to do all things necessary to ensure that the insurance holding company does not control the entity or have a substantial investment in the entity.
Extension
(3) The Superintendent may, in the case of any particular insurance holding company that makes an application under this subsection, extend the period of five years referred to
Institutions f in subsection (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(4) Despite anything in this Division, if a subsidiary of an insurance holding company has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the subsidiary and that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the insurance holding company may acquire, through the subsidiary, a substantial investment in that entity or in any other entity designated by that government if the acquisition is part of a debt restructuring program of that government.
Time for holding substantial investment
(5) If an insurance holding company acquires a substantial investment in any entity under subsection (4), the insurance holding company may, on any terms and conditions that the Superintendent considers appropriate, continue to hold the substantial investment for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(6) If, under subsection (1), an insurance holding company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 971, the insurance holding company may retain control of the entity or continue to hold the substantial investment for an indeterminate period, if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2), including any extension of it granted under subsection (3).
Realizations
976. (1) Despite anything in this Part, an insurance holding company may acquire control of, or a substantial investment in, an entity if the control or the substantial investment is acquired through the realization of a security interest held by a subsidiary of the insurance holding company.
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Disposition
(2) Subject to subsection 756(2), if an insurance holding company acquires control of, or a substantial investment in, an entity by way of the realization of a security interest held by any of its subsidiaries, the insurance holding company shall, within five years after the day on which control or the substantial investment is acquired, cause the subsidiary to do all things necessary to ensure that the insurance holding company no longer controls the entity or has a substantial investment in the entity.
Extension
(3) The Superintendent may, in the case of any particular insurance holding company that makes an application under this subsection, extend the period of five years referred to in subsection (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(4) If, under subsection (1), an insurance holding company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 971, the insurance holding company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2), including any extension of it granted under subsection (3).
Regulations restricting ownership
977. The Governor in Council may make regulations (a) for the purposes of subsection 971(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the insurance holding companies or other entities in respect of which that subsection does not apply, including prescribing insurance holding companies or other entities on the basis of the activities they engage in; (b) for the purposes of subsection 971(5) or (6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circum2001
Institutions f stances under which either of those subsections does not apply or the insurance holding companies or other entities in respect of which either of those subsections does not apply, including prescribing insurance holding companies or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 971(10), permitting an insurance holding company to give up control of an entity; and (d) restricting the ownership by an insurance holding company of shares of a body corporate or of ownership interests in an unincorporated entity under sections 971 to 976 and imposing terms and conditions applicable to insurance holding companies that own such shares or interests.
Portfolio Limits Exclusion from portfolio limits
978. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by an insurance holding company and any of its prescribed subsidiaries under section 975 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the insurance holding company and its prescribed subsidiaries under sections 979 to 981 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
Extension
(2) The Superintendent may, in the case of any particular insurance holding company, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
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(3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 984 to be an interest in real property and (a) the insurance holding company or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 984 to be an interest in real property; or (b) the insurance holding company or the subsidiary acquired the investment or interest under section 975 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 984 to be an interest in real property.
Commercial Lending Insurance holding companies with regulatory capital of $25 million or less
979. Subject to section 980, an insurance holding company that has twenty-five million dollars or less of regulatory capital shall not acquire control of a permitted entity that holds commercial loans and shall not permit its prescribed subsidiaries to make or acquire a commercial loan or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the prescribed subsidiaries of the insurance holding company exceeds, or the making or acquisition of the commercial loan or acquisition of control of the entity would cause the aggregate value of all commercial loans held by the prescribed subsidiaries of the insurance holding company to exceed, 5 per cent of the total assets of the insurance holding company.
Insurance holding companies with regulatory capital over $25 million
980. An insurance holding company that has twenty-five million dollars or less of regulatory capital that is controlled by a financial institution that has the equivalent of more than twenty-five million dollars of regulatory capital or an insurance holding company that has more than twenty-five million dollars of regulatory capital may acquire control of a permitted entity that holds commercial loans or permit its prescribed subsidiaries to make or acquire commercial loans or acquire control of a permitted entity
Institutions f that holds commercial loans if the aggregate value of all commercial loans held by the prescribed subsidiaries of the insurance holding company would thereby exceed the limit set out in section 979 only with the prior approval in writing of the Superintendent and in accordance with any terms and conditions that the Superintendent may specify. Real Property
Limit on total property interest
981. An insurance holding company shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the insurance holding company or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the insurance holding company in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Equities
Limits on equity acquisitions
982. An insurance holding company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the insurance holding company has, or by virtue of the acquisition would have, a substantial investment, or (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the insurance holding company has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the insurance holding company has a substantial investment,
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beneficially owned by the insurance holding company and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, an amount determined in accordance with the regulations. Aggregate Limit Aggregate limit
983. An insurance holding company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the insurance holding company has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the insurance holding company has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the insurance holding company or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the insurance holding company and its prescribed subsidiaries, and (d) all interests of the insurance holding company in real property referred to in subparagraph (a)(iii) exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, an amount determined in accordance with the regulations.
Institutions f Miscellaneous
Regulations
984. For the purposes of this Division, the Governor in Council may make regulations (a) defining the interests of an insurance holding company in real property; (b) determining the method of valuing those interests; (c) exempting classes of insurance holding companies from the application of sections 978 to 983; or (d) respecting the determination of an amount for the purpose of each of sections 981, 982 and 983.
Divestment order
985. (1) The Superintendent may, by order, direct an insurance holding company to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Division.
Divestment order
(2) If, in the opinion of the Superintendent, (a) an investment by an insurance holding company or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the insurance holding company to control the body corporate or the unincorporated entity, or (b) the insurance holding company or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the insurance holding company, the entity it controls or the nominee, the Superintendent may, by order, require the insurance holding company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the insurance holding company no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b).
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(3) If (a) an insurance holding company (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 973(1), (2) or (4), or (ii) is in default of an undertaking referred to in subsection 973(1) or (2) and the default is not remedied within ninety days after the day of receipt by the insurance holding company of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 973(4) is in default of an undertaking referred to in subsection 973(4) and the default is not remedied within ninety days after the day of receipt by the insurance holding company of a notice from the Superintendent of the default, the Superintendent may, by order, require the insurance holding company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the insurance holding company no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which an insurance holding company has a substantial investment permitted by this Division.
Deemed temporary investment
986. If an insurance holding company controls or has a substantial investment in an entity as permitted by this Division and the insurance holding company becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 971(5) or (6), the insurance holding company is deemed to have acquired, on the day the insurance holding company becomes aware of the change, a temporary investment in respect of which section 974 applies.
2001 Asset transactions
Institutions f 987. (1) An insurance holding company shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B>C where A is the value of the assets; B is the total value of all assets that the insurance holding company and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the insurance holding company, as shown in the last annual statement of the insurance holding company prepared before the acquisition or transfer.
Exception
(2) The prohibition referred to in subsection (1) does not apply to (a) an asset that is a debt obligation referred to in subparagraphs (b)(i) to (v) of the definition ‘‘commercial loan’’ in subsection 490(1); or (b) a transaction or series of transactions by a subsidiary of the insurance holding company with a financial institution as a result of the subsidiary’s participation in one or more syndicated loans with that financial institution.
Exception
(3) The approval of the Superintendent is not required if (a) the insurance holding company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Division 7 or subsection 971(5) is required or the approval of the Superintendent under subsection 971(6) is required; or (b) the transaction has been approved by the Minister under subsection 715(1) of this Act or subsection 678(1) of the Bank Act.
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(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the insurance holding company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the insurance holding company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the insurance holding company before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the insurance holding company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the insurance holding company, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the insurance holding company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the insurance holding company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the insurance holding company before the transfer, the value of the assets of the entity as stated in the annual statement.
2001 Transitional
Institutions f 988. Nothing in this Division requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date; (c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date. But if the loan or investment would be precluded or limited by this Division, the amount of the loan or investment may not be increased after that date.
Saving
989. A loan or investment referred to in section 988 is deemed not to be prohibited by the provisions of this Division.
Meaning of ‘‘non-insurance entity’’
990. (1) Subject to subsection (2), for the purpose of section 991, ‘‘non-insurance entity’’ means a Canadian entity, other than a company, that is controlled by an insurance holding company or in which an insurance holding company has a substantial investment.
Exception
(2) A Canadian entity is not a non-insurance entity by reason only that a subsidiary of an insurance holding company that is a company that controls, or has a substantial investment, in the Canadian entity.
Disclosure of status
991. (1) A non-insurance entity that carries on as part of its business the provision of financial services shall not borrow money in Canada from the public without disclosing that the non-insurance entity is not regulated as a financial institution in Canada.
Manner of disclosure
(2) The disclosure shall be (a) in a prospectus, information circular or other offering document related to the borrowing or in a similar document related to the borrowing or, if there is no such document, in a statement delivered to the lender; or
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(b) in any other manner that may be prescribed. Exception for certain borrowings
(3) Subsection (1) does not apply (a) to a borrowing of a prescribed class or type or to a borrowing in prescribed circumstances or in a prescribed manner; or (b) except as may be provided in any regulations, to a borrowing (i) from a person in an amount of $150,000 or more, or (ii) through the issue of instruments in denominations of $150,000 or more.
Exception
(4) Subsection (1) does not apply if the non-insurance entity is (a) an insurance holding company or a bank holding company; (b) a bank; (c) an entity that is controlled by a bank holding company or in which a bank holding company has a substantial investment; (d) a trust, loan or insurance corporation incorporated under an Act of Parliament or of the legislature of a province; (e) a financial institution that is described in paragraph (g) of the definition ‘‘financial institution’’ in section 2; (f) an entity referred to in paragraph 971(1)(f) or (h); or (g) a prescribed entity.
DIVISION 10
ADEQUACY OF CAPITAL AND LIQUIDITY Adequacy of capital and liquidity
992. (1) An insurance holding company shall, in relation to its business, maintain (a) adequate capital, and (b) adequate and appropriate forms of liquidity, and comply with any regulations in relation to capital and liquidity.
Institutions f
Regulations and guidelines
(2) The Governor in Council may make regulations and the Superintendent may make guidelines respecting the maintenance by an insurance holding company of adequate capital and adequate and appropriate forms of liquidity.
Directives
(3) Even if an insurance holding company is complying with regulations or guidelines made under subsection (2), the Superintendent may, by order, direct the insurance holding company (a) to increase its capital; or (b) to provide additional liquidity in such forms and amounts as the Superintendent may require.
Compliance
(4) An insurance holding company shall comply with an order made under subsection (3) within the time specified by the Superintendent in the order. DIVISION 11 REGULATION OF INSURANCE HOLDING COMPANIES Supervision Returns
Required information
993. An insurance holding company shall provide the Superintendent with such information, at such times and in such form as the Superintendent may require.
Names of directors and auditors
994. (1) An insurance holding company shall, within thirty days after each annual meeting of the insurance holding company, provide the Superintendent with a return showing (a) the name, residence and citizenship of each director holding office immediately following the meeting; (b) the mailing address of each director holding office immediately following the meeting; (c) the bodies corporate of which each director referred to in paragraph (a) is an officer or director and the firms of which each director is a member; (d) the names of the directors referred to in paragraph (a) who are officers or em���
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ployees of the insurance holding company or any affiliate of the insurance holding company, and the positions they occupy; (e) the name of each committee of the insurance holding company on which each director referred to in paragraph (a) serves; (f) the date of expiration of the term of each director referred to in paragraph (a); and (g) the name, address and date of appointment of the auditor of the insurance holding company. Changes
(2) Where (a) any information relating to a director or auditor of an insurance holding company shown in the latest return made to the Superintendent under subsection (1), other than information referred to in paragraph (1)(c), becomes inaccurate or incomplete, (b) a vacancy in the position of auditor of the insurance holding company occurs or is filled by another person, or (c) a vacancy on the board of directors of the insurance holding company occurs or is filled, the insurance holding company shall forthwith provide the Superintendent with such information as is required to maintain the return in a complete and accurate form.
Copy of by-laws
995. An insurance holding company shall send to the Superintendent within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Register for insurance holding company
996. (1) The Superintendent shall, in respect of each insurance holding company, cause a register to be maintained containing a copy of (a) the incorporating instrument of the insurance holding company; and (b) the information referred to in paragraphs 994(1)(a) and (c) to (g) contained in the latest return provided to the Superintendent under section 994.
2001 Form
Institutions f (2) The register may be maintained in (a) a bound or loose-leaf form or in a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.
Production of information and documents
997. (1) The Superintendent may, by order, direct a person who controls an insurance holding company or any entity that is affiliated with an insurance holding company to provide the Superintendent with such information or documents that are specified in the order if the Superintendent believes that the production of the information or documents is necessary in order to (a) determine whether the insurance holding company is complying with the provisions of this Act; or (b) ascertain the financial condition of the insurance holding company.
Time
(2) Any person to whom a direction has been issued under subsection (1) shall provide the information or documents specified in the order within the time specified in the order and, where the order does not specify a time, the person shall provide the information or documents within a reasonable time.
Exemption
(3) Subsection (1) does not apply in respect of an entity that controls an insurance holding company or is affiliated with an insurance holding company where that entity is a financial institution regulated (a) by or under an Act of Parliament; or
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(b) by or under an Act of the legislature of a province where the Superintendent has entered into an agreement with the appropriate official or public body responsible for the supervision of financial institutions in that province concerning the sharing of information on such financial institutions. Confidential information
998. (1) All information regarding the business or affairs of an insurance holding company, or regarding a person dealing with an insurance holding company, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) Nothing in subsection (1) prevents the Superintendent from disclosing any information (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision, (c) to the Canada Deposit Insurance Corporation or any compensation association designated by order of the Minister pursuant to subsection 449(1), for purposes related to its operation, and (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions, if the Superintendent is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed.
2001 Regulations
Institutions f 999. The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by insurance holding companies of prescribed supervisory information.
Examination of Insurance Holding Companies
Examination of insurance holding companies
1000. (1) The Superintendent, from time to time, shall make or cause to be made any examination and inquiry into the business and affairs of each insurance holding company that the Superintendent considers to be necessary or expedient to determine whether the insurance holding company is complying with the provisions of this Act and to ascertain the financial condition of the insurance holding company.
Access to records of insurance holding company
(2) The Superintendent or a person acting under the Superintendent’s direction (a) has a right of access to any records, cash, assets and security held by or on behalf of an insurance holding company; and (b) may require the directors, officers or auditor of an insurance holding company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of the condition and affairs of the insurance holding company or any entity in which it has a substantial investment.
Power of Superintendent on inquiry
1001. The Superintendent has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Superintendent’s direction.
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Prudential Agreements Prudential agreement
1002. The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with an insurance holding company for the purposes of implementing any measure designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it. Directions of Compliance
Superintendent’s directions to insurance holding companies, etc.
1003. (1) If, in the opinion of the Superintendent, an insurance holding company, one of its affiliates or any person with respect to an insurance holding company is committing, or is about to commit, an act or is pursuing, or is about to pursue, a course of conduct that may directly or indirectly be prejudicial to the interests of depositors, policyholders or creditors of a federal financial institution that is affiliated with the insurance holding company, the Superintendent may direct the insurance holding company to (a) cease or refrain from committing the act or pursuing the course of conduct; (b) cause the affiliate or person to cease or refrain from committing the act or pursuing the course of conduct, to the extent it is able to do so; (c) perform any act that in the opinion of the Superintendent is necessary to remedy the situation or minimize the prejudice; or (d) cause the affiliate or person to perform any act that in the opinion of the Superintendent is necessary to remedy the situation or minimize the prejudice, to the extent that the insurance holding company is able to do so.
Opportunity for representations
(2) Subject to subsection (3), no direction shall be issued unless the insurance holding company is provided with a reasonable opportunity to make representations in respect of the matter.
Temporary direction
(3) If, in the opinion of the Superintendent, the length of time required for representations to be made might be prejudicial to the public interest, the Superintendent may make a temporary direction with respect to the matters referred to in paragraphs (1)(a) to (d) having effect for a period of not more than fifteen days.
Institutions f
Duration of temporary direction
(4) A temporary direction continues to have effect after the expiration of the fifteen day period if no representations are made to the Superintendent within that period or, if representations have been made, the Superintendent notifies the insurance holding company that the Superintendent is not satisfied that there are sufficient grounds for revoking the direction.
Court enforcement
1004. (1) If an insurance holding company is contravening or has failed to comply with a prudential agreement entered into under section 1002 or a direction of the Superintendent issued under subsection 1003(1) or (3), or is contravening this Act, or has omitted to do any thing under this Act that it is required to do, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the insurance holding company to comply with the direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from a decision of a court under subsection (1) lies in the same manner, and to the same court, as an appeal from any other order of the court. Disqualification and Removal of Directors or Senior Officers
Meaning of ‘‘senior officer’’
1005. In sections 1006 and 1007, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer or controller of an insurance holding company or any other officer reporting directly to the insurance holding company’s board of directors or chief executive officer.
Application
1006. (1) This section applies only in respect of an insurance holding company (a) that has been notified by the Superintendent that this section applies to it where the insurance holding company is subject to measures designed to protect the interests of depositors, policyholders and creditors of any federal financial institution affiliated with it, which measures are contained in a prudential agreement entered into under section 1002 or an undertaking given by the
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insurance holding company to the Superintendent; or (b) that is the subject of a direction made under section 1003, or an order made under subsection 992(3). Information to be provided
(2) An insurance holding company shall provide the Superintendent with the name of (a) each person who has been nominated for election or appointment as a member of its board of directors, (b) each person who has been selected by the insurance holding company for appointment as a senior officer, and (c) each person who is newly elected as a director of the insurance holding company at a meeting of shareholders and who was not proposed for election by anyone involved in the management of the insurance holding company, together with such other information about the background, business record and experience of the person as the Superintendent may require.
When information to be provided
(3) The information required by subsection (2) shall be provided to the Superintendent (a) at least 30 days prior to the date or proposed date of the election or appointment or within such shorter period as the Superintendent may allow; or (b) in the case of a person referred to in paragraph (2)(c), within 15 days after the date of the election of the person.
Disqualification or removal
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order, (a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of an insurance holding company or from being appointed as a senior officer; or
Institutions f (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the insurance holding company.
Risk of prejudice
(5) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors, policyholders and creditors of any federal financial institution affiliated with the insurance holding company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(6) The Superintendent must in writing notify the person concerned and the insurance holding company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Prohibition
(7) Where an order has been made under subsection (4) (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the insurance holding company shall not permit the person to be, elected or appointed to the position; or (b) removing a director from office, the person shall not continue to hold, and the insurance holding company shall not permit the person to continue to hold, office as a director.
Removal of directors or senior officers
1007. (1) The Superintendent may, by order, remove a person from office as a director or senior officer of an insurance holding company if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or (b) because the person has contravened or, by action or negligence, has contributed to the contravention of
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Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors, policyholders and creditors of any federal financial institution affiliated with the insurance holding company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the insurance holding company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the insurance holding company of a removal order or suspension order.
Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
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Appeal
(7) The director or senior officer, as the case may be, or the insurance holding company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal. PART XVIII ADMINISTRATION Notices and Other Documents
Notice to directors, etc.
1008. (1) A notice or document required by this Act or the regulations, or by the incorporating instrument or by-laws of a company or society, to be sent to a shareholder, policyholder or director of a company, foreign company or provincial company or to a member or director of a society may be sent by prepaid mail addressed to, or may be delivered personally to, (a) the shareholder at the shareholder’s latest address as shown in the records of the company, foreign company or provincial company or its transfer agent; (b) the director at the director’s latest address as shown in the records of the company, society, foreign company or provincial company, or in the latest return made under section 549, 661 or 668; and (c) the policyholder or the member at the policyholder’s or member’s latest address as shown in the records of the company, society, foreign company or provincial company.
Notice to directors, etc.
(2) A notice or document required by this Act or the regulations, or by the incorporating instrument or by-laws of an insurance holding company to be sent to a shareholder or director of the insurance holding company may be sent by prepaid mail addressed to, or may be delivered personally to,
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(a) the shareholder at the shareholder’s latest address as shown in the records of the insurance holding company or its transfer agent; and (b) the director at the director’s latest address as shown in the records of the insurance holding company, or in the latest return made under section 994. Presumption from return
1009. A director named in the latest return sent by a company, a society, a provincial society or an insurance holding company to the Superintendent under section 549, 661, 668 or 994 is presumed for the purposes of this Act to be a director of the company, society, provincial company or insurance holding company referred to in the return.
Presumption of receipt
1010. (1) A notice or document sent by mail in accordance with section 1008 to a shareholder, member, policyholder or director is deemed to be received by that person at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that person did not receive the notice or document at that time or at all.
Undelivered notices
(2) If a company, a society, a foreign company, a provincial company or an insurance holding company sends a notice or document to a shareholder, member or policyholder in accordance with section 1008 and the notice or document is returned on three consecutive occasions because the shareholder, member or policyholder cannot be found, the company, society, foreign company, provincial company or insurance holding company is not required to send any further notices or documents to the shareholder, member or policyholder until informed in writing of that person’s new address.
Service on companies, etc.
1011. A notice or document required by this Act to be sent to or served on a company, a society, a foreign company, a provincial company or an insurance holding company may be sent by registered mail to the head office or chief agency, as the case may be, of the company, society, foreign company, provincial company or insurance holding company and, if so sent, is deemed to be received or served at the time it would be delivered in the
Institutions f ordinary course of mail unless there are reasonable grounds for believing that the company, society, foreign company, provincial company or insurance holding company did not receive the notice or document at that time or at all.
Certificate of companies, etc.
1012. (1) A certificate issued on behalf of a company, a society or an insurance holding company stating any fact that is set out in the incorporating instrument, the by-laws, the minutes of the meetings of the directors, a committee of directors or the shareholders, policyholders or members, or in a contract to which the company, society or insurance holding company is a party, may be signed by a director or an officer of the company, society or insurance holding company.
Proof of certain cases
(2) When introduced as evidence in any civil, criminal or administrative action or proceeding, the following are, in the absence of evidence to the contrary, proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate: (a) a fact stated in a certificate referred to in subsection (1); (b) a certified extract from a securities register of a company or of an insurance holding company; or (c) a certified copy of, or an extract from, minutes of a meeting of shareholders, policyholders, members, directors or a committee of directors of a company, society or insurance holding company.
Entry in securities register
1013. An entry in the securities register of, or on a security certificate issued by, a company or an insurance holding company is evidence that the person in whose name the security is registered is the owner of the securities described in the register or in the certificate.
Verification of documents or fact
1014. (1) The Superintendent may require that a document or a fact stated in a document that is required by or under this Act to be sent to the Superintendent or to the Minister be verified in accordance with subsection (2).
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Form of proof
(2) A document or fact required by this Act or by the Superintendent to be verified may be verified by affidavit made under oath or by statutory declaration under the Canada Evidence Act before any commissioner for oaths or for taking affidavits.
Alternative means of publication
1015. (1) Anything that is required by a provision of this Act to be published in the Canada Gazette or to be published in any other way may, instead of being published in that way, be published in any manner that may be prescribed for the purpose of that provision.
Alternative means of publishing summaries
(2) Anything that is required by a provision of this Act to be summarized in a publication may instead be summarized and published in any manner that may be prescribed for the purpose of that provision.
Publication conditions
(3) Any condition under a provision of this Act that something be published in the Canada Gazette or in any other way is satisfied if that thing is published instead in any manner that may be prescribed for the purpose of that provision.
Other consequences
(4) If a provision of this Act provides for consequences to follow the publication of something in the Canada Gazette or in any other manner, the same consequences follow the publication of that thing in any other manner that may be prescribed for the purpose of that provision. Approvals: Terms, Conditions and Undertakings
Definition of ‘‘approval’’
1016. (1) In this section, ‘‘approval’’ includes any consent, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent.
Minister — terms, conditions and undertakings
(2) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose such terms and conditions or require such undertaking as the Minister considers necessary, including any
Institutions f terms, conditions or undertaking specified by the Superintendent to maintain or improve the safety and soundness of any financial institution regulated under an Act of Parliament and to which the approval relates or that may be affected by it.
Superintendent — terms, conditions and undertakings
(3) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose such terms and conditions or require such undertaking as the Superintendent considers necessary.
Effect of non-compliance on approval
(4) Unless otherwise expressly provided in this Act, a failure to comply with a term or condition or an undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates.
Non-compliance
(5) In addition to any other action that may be taken under this Act, in case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or Superintendent, as the case may be, may (a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or (b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such application the court may so order and make any other order it thinks fit.
Representations
(6) Before taking any action under subsection (5), the Minister or the Superintendent, as the case may be, shall afford the person concerned a reasonable opportunity to make representations.
Revocation, suspension or amendment
(7) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her or may revoke or suspend an undertaking given to him or her or approve its amendment.
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Not statutory instruments
1017. An instrument issued or made under this Act and directed to a single company, society, foreign company, provincial company, insurance holding company or person, other than an order referred to in section 532, is not a statutory instrument for the purposes of the Statutory Instruments Act.
Form
1018. The Superintendent may, by order, establish the form of any application to be made to the Minister or the Superintendent under this Act. Applications to Superintendent
Content of applications
1019. (1) The following applications to the Superintendent must contain the information, material and evidence that the Superintendent may require: (a) applications for approval under subsection 69(1), 76(2), 79(4), 83(5), 84(1), 178(1) or 238(3), section 453, subsection 472(1), 495(8) or (12), 498(1) or (2) or 512(1), subparagraph 519(2)(b)(vi), section 522, subsection 523(2), 527(3) or (4), 528.3(1) or 542.03(4), section 542.09 or subsection 544.1(2), 557(1) or (2), 569(1), 597(1), 748(1), 755(2), 757(4), 762(1), 805(1), 851(3), 964(1), 971(6) or (10), 974(1) or 987(1); (b) applications for consent under subsection 75(1) or 754(1); (c) applications for exemptions under subsection 164.04(3), 268(1), 789(3) or 876(1); and (d) applications for extensions of time under subsection 498(3) or (5), 499(4), 500(4), 557(3) or (5), 558(4), 559(4), 974(2) or (4), 975(3) or 976(3).
Receipt
(2) Without delay after receiving the application, the Superintendent shall send a receipt to the applicant certifying the date on which it was received.
2001 Notice of decision to applicant
Institutions f (3) Subject to subsection (4), the Superintendent shall, within a period of thirty days after the receipt of the application, send to the applicant (a) a notice approving the application, subject to any terms and conditions that the Superintendent considers appropriate; or (b) if the Superintendent is not satisfied that the application should be approved, a notice to that effect.
Extension of period
(4) If the Superintendent is unable to complete the consideration of the application within the period referred to in subsection (3), the Superintendent shall, within that period, send a notice to the applicant informing the applicant that the Superintendent has extended the period for a further period set out in the notice.
Deemed approval
(5) If the applicant does not receive the notice required by subsection (3) or, where applicable, subsection (4), within the required period, the Superintendent is deemed to have approved the application and granted the approval, consent, exemption or extension to which the application relates, regardless of whether the approval, consent, extension or exemption is to be in writing or not. Appeals
Appeal to Federal Court
1020. (1) An appeal lies to the Federal Court from any direction of the Minister made under subsection 432(1) or 956(1).
Powers
(2) The Federal Court may, in an appeal under subsection (1), (a) dismiss the appeal; (b) set aside the direction or decision; or (c) set aside the direction or decision and refer the matter back for redetermination.
Certificate
(3) For the purposes of an appeal under subsection (1), the Minister shall, at the request of the company, society, foreign company, provincial company, insurance holding company or person making the appeal, provide the company, society, foreign company, provincial company, insurance holding company or person with a certificate
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in writing setting out the direction or decision appealed from and the reasons why the direction or decision was made. Regulations Power to make regulations
1021. The Governor in Council may make regulations (a) prescribing anything that is required or authorized by this Act to be prescribed; (b) prescribing the way in which anything that is required or authorized by this Act to be prescribed is to be determined; (c) respecting, for any purpose of any provision of the Act, the determination of the equity of a company or an insurance holding company; (d) defining words and expressions to be defined for the purposes of this Act; (e) requiring the payment of a fee in respect of the filing, examining or issuing of any document or in respect of any action that the Superintendent is required or authorized to take under this Act, and fixing the amount of the fee or the manner of determining its amount; (f) respecting the regulatory capital and total assets of a company, a society, a provincial company or an insurance holding company; (g) respecting the standards of sound business and financial practices for companies, societies, provincial companies and foreign companies; (h) respecting the retention, in Canada, of assets of a company, a society or an insurance holding company; (i) respecting the value of assets of a company, a society or an insurance holding company to be held in Canada and the manner in which those assets are to be held; (j) respecting the protection and maintenance of assets of a company, a society or an insurance holding company, including regulations respecting the bonding of directors, officers and employees of a company, a society or an insurance holding company;
Institutions f (k) respecting the holding of shares and ownership interests for the purposes of section 74, 78 or 753; (l) respecting information, in addition to the information required by section 670 or 996, to be maintained in the register referred to in that section; and (m) generally for carrying out the purposes and provisions of this Act. Delegation
Delegation
1022. The Minister may delegate any of the Minister’s powers, duties and functions under this Act to any Minister of State appointed under the Ministries and Ministers of State Act to assist the Minister. PART XIX SANCTIONS
Offence
1023. Every person who, without reasonable cause, contravenes any provision of this Act or the regulations is guilty of an offence.
Undue preference to creditor
1024. Every director, officer or employee of a company or a society who wilfully gives or concurs in giving to any creditor of the company or society any fraudulent, undue or unfair preference over other creditors, by giving security to the creditor, by changing the nature of the creditor’s claim or otherwise, is guilty of an offence.
Failure to provide information
1025. Every person who, without reasonable cause, refuses or fails to comply with a requirement made under paragraph 674(3)(b) or 1000(3)(b) is guilty of an offence.
Use of name
1026. Except to the extent permitted by the regulations, every person who uses the name of a company or of an insurance holding company in a prospectus, offering memorandum, takeover bid circular, advertisement for a transaction related to securities or in any other document in connection with a transaction related to securities is guilty of an offence.
Punishment
1027. (1) Every person who is guilty of an offence under any of sections 1023 to 1026 is (a) in the case of a natural person, liable
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(b) in the case of an entity, liable (i) on summary conviction, to a fine of not more than $500,000, or (ii) on conviction on indictment, to a fine of not more than $5,000,000.
Order to comply
(2) If a person has been convicted of an offence under this Act, the court may, in addition to any punishment it may otherwise impose, order the person to comply with the provisions of this Act or the regulations in respect of which the person was convicted.
Additional fine
(3) If a person has been convicted of an offence under this Act, the court may, if it is satisfied that as a result of the commission of the offence the convicted person acquired any monetary benefits or that monetary benefits accrued to the convicted person or to the spouse, common-law partner or other dependant of the convicted person, order the convicted person to pay, notwithstanding the maximum amount of any fine that may otherwise be imposed under this Act, an additional fine in an amount equal to the court’s estimation of the amount of those monetary benefits.
Liability of officers, directors, etc.
1028. If an entity commits an offence under this Act, any officer, director or agent of the entity who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on summary conviction or on conviction on indictment to the punishment provided under paragraph 1027(1)(a) for the offence, whether or not the entity has been prosecuted or convicted.
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Limitation period
1029. (1) Proceedings by way of summary conviction in respect of an offence under a provision of this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known, in the case of an offence under a consumer provision, to the Commissioner and, in any other case, to the Superintendent.
Certificate of Superintendent or Commissioner
(2) A document appearing to have been issued by the Superintendent or Commissioner, as the case may be, certifying the day on which the subject-matter of any proceedings became known to the Superintendent or Commissioner is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Effect of offence on contracts
1030. Unless otherwise expressly provided in this Act, a contravention of any provision of this Act or the regulations does not invalidate any contract entered into in contravention of the provision.
Compliance or restraining order
1031. (1) If a company, a society, a foreign company, a provincial company or an insurance holding company or any director, officer, employee or agent of one does not comply with any provision of this Act or the regulations other than a consumer provision, or, in the case of a company, a society or an insurance holding company, of the incorporating instrument or any by-law of the company, society or insurance holding company, the Superintendent, any complainant or any creditor of the company, society or insurance holding company may, in addition to any other right that person has, apply to a court for an order directing the company, society, foreign company, provincial company, insurance holding company, director, officer, employee or agent to comply with — or restraining the company, society, foreign company, provincial company, insurance holding company, director, officer, employee or agent from acting in breach of — the provision and, on the application, the court may so order and make any further order it thinks fit.
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Compliance or restraining order — consumer provisions
(2) If a company or a foreign company or any director, officer, employee or agent of one does not comply with any applicable consumer provision, the Commissioner or any complainant may, in addition to any other right that person has, apply to a court for an order directing the company, foreign company, director, officer, employee or agent to comply with — or restraining the company, foreign company, director, officer, employee or agent from acting in breach of — the consumer provision and, on the application, the court may so order and make any further order it thinks fit.
Appeals
1032. Any decision or order of a court under this Act may be appealed to the court of appeal.
Recovery and application of fines
1033. All fines payable under this Act are recoverable and enforceable, with costs, at the suit of Her Majesty in right of Canada, instituted by the Attorney General of Canada, and, when recovered, belong to Her Majesty in right of Canada.
R.S., c. 18 (3rd Supp.), Part I
Office of the Superintendent of Financial Institutions Act
1991, c. 45, s. 557
466. (1) Paragraph (c) of the definition ‘‘financial institution’’ in section 3 of the Office of the Superintendent of Financial Institutions Act is replaced by the following: (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, (2) Section 3 of the Act is amended by adding the following in alphabetical order:
‘‘bank holding company’’ « société de portefeuille bancaire »
‘‘bank holding company’’ means a bank holding company as defined in section 2 of the Bank Act;
‘‘insurance holding company’’ « société de portefeuille d’assurances »
‘‘insurance holding company’’ means an insurance holding company as defined in subsection 2(1) of the Insurance Companies Act;
1997, c. 15, s. 334
467. Subsection 6(1) of the Act is replaced by the following:
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Duties, powers and functions of the Superintendent
6. (1) The Superintendent has the powers, duties and functions assigned to the Superintendent by the Acts referred to in the schedule to this Part and shall examine into and report to the Minister from time to time on all matters connected with the administration of the provisions of those Acts except those that are consumer provisions as defined in section 2 of the Financial Consumer Agency of Canada Act.
1997, c. 15, s. 336
468. Section 10 of the Act and the heading before it are replaced by the following:
Exercise of Powers, Duties and Functions Exercise by personnel
10. Except as otherwise provided by the Superintendent and subject to any terms and conditions that may be specified by the Superintendent, a person who is an officer or employee of the Office may exercise any of the powers and perform any of the duties and functions of the Superintendent under this Act if the person is appointed to serve in the Office in a capacity appropriate to the exercise of the power or performance of the duty or function. 469. (1) Subsection 18(1) of the Act is amended by adding the following after paragraph (a): (a.1) the Commissioner of the Financial Consumer Agency of Canada; (2) Subsection 18(3) of the Act is replaced by the following:
Purpose of committee
(3) The purpose of the committee is to facilitate consultations and the exchange of information among its members on all matters relating directly to the supervision of financial institutions, bank holding companies or insurance holding companies. (3) Subsection 18(4) of the English version of the Act is replaced by the following:
Access to information
(4) Every member of the committee is entitled to any information on matters relating directly to the supervision of financial institutions, bank holding companies or insurance holding companies that is in the possession or
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under the control of any other member and any member requested by another member to provide any such information shall forthwith provide it. 470. Section 19 of the Act is replaced by the following: Ownership
19. No member of the committee referred to in section 18, person appointed under subsection 5(5) or Deputy Superintendent shall beneficially own, directly or indirectly, any shares of any financial institution, bank holding company, insurance holding company or of any other body corporate, however created, carrying on any business in Canada that is substantially similar to any business carried on by any financial institution. 471. (1) Subsection 21(1) of the Act is replaced by the following:
No grant or gratuity to be made
21. (1) The Superintendent, a person appointed under subsection 5(5), a Deputy Superintendent or a person appointed under section 11 shall not accept or receive, directly or indirectly, any grant or gratuity from a financial institution, bank holding company or insurance holding company, or from a director, officer or employee of any of them, and no such financial institution, bank holding company, insurance holding company, director, officer or employee shall make or give any such grant or gratuity. (2) The portion of subsection 21(2) of the Act before paragraph (b) is replaced by the following:
Offence and punishment
(2) Every person, financial institution, bank holding company or insurance holding company that contravenes subsection (1) is guilty of an offence and liable (a) on summary conviction, to a fine not exceeding two thousand dollars or to imprisonment for a term not exceeding six months or to both; or
1991, c. 46, s. 601; 1996, c. 6, s. 109(1)
472. (1) Subsection 22(1) of the Act is replaced by the following:
2001 Information is confidential
Institutions f 22. (1) Subject to subsection (3), the following information, and any information prepared from it, is confidential and shall be treated accordingly: (a) information regarding the business or affairs of a financial institution, foreign bank, bank holding company or insurance holding company or regarding persons dealing with any of them that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament; (b) information received by any member of the committee established by subsection 18(1), or by any person referred to in subsection 18(5) designated by any member of that committee, in the course of an exchange of information permitted by subsection 18(3); and (c) information furnished to the Superintendent pursuant to section 522.27 of the Bank Act.
1999, c. 28, s. 129
(2) Subsection 22(2.1) of the Act is replaced by the following:
Regulations
(2.1) The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by financial institutions, bank holding companies or insurance holding companies of prescribed supervisory information.
1996, c. 6, s. 109(3)
(3) Subsection 22(6) of the Act is replaced by the following:
Report respecting disclosure
(6) The Superintendent shall prepare a report, to be included in the report referred to in section 40, respecting the disclosure of information by financial institutions, and describing the state of progress made in enhancing the disclosure of information in the financial services industry. 473. (1) If this section comes into force before section 23 of the Act, as enacted by section 339 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force,
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(a) subsection 23(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d) and by adding the following after paragraph (f): (g) the average total assets during the immediately preceding calendar year of each bank holding company; and (h) the average total assets during the immediately preceding calendar year of each insurance holding company. (b) subsection 23(2) of the English version of the Act is replaced by the following: Amounts conclusive
(2) Any amounts ascertained by the Superintendent under subsection (1) are final and conclusive for the purposes of this section. (c) subsections 23(3) to (5) of the Act are replaced by the following:
Assessment
(3) As soon as possible after ascertaining the amounts referred to in subsection (1), the Superintendent shall, subject to this section, assess the amount ascertained under paragraph (1)(a) against each financial institution, bank holding company and insurance holding company referred to in subsection (1) to any extent and in any manner that the Governor in Council may, by regulation, prescribe.
Interim assessment
(4) The Superintendent may, during each fiscal year, make an interim assessment against any financial institution, bank holding company or insurance holding company referred to in subsection (1).
Assessment is binding
(5) Every assessment and interim assessment made under this section is final and conclusive and binding on the financial institution, bank holding company or insurance holding company against which it was made. (2) If section 23 of the Act, as enacted by section 339 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force before this section comes into force, subsections 23(3) and (4) of the Act are replaced by the following:
Institutions f
Assessment
(3) As soon as possible after ascertaining the amount referred to in subsection (1), the Superintendent shall assess the amount against each financial institution, bank holding company and insurance holding company to any extent and in any manner that the Governor in Council may, by regulation, prescribe.
Interim assessment
(4) The Superintendent may, during each fiscal year, prepare an interim assessment against any financial institution, bank holding company or insurance holding company.
1999, c. 28, s. 131
474. Subsections 23.1(4) and (5) of the Act are repealed.
1997, c. 15, s. 339
475. Subsection 23.2(1) of the French version of the Act is replaced by the following:
Caractère obligatoire
23.2 (1) Toute cotisation établie en vertu des articles 23 ou 23.1 est irrévocable et lie la personne à qui elle est imposée. 476. The Act is amended by adding the following after section 23.2: Administrative Monetary Penalties Interpretation
Definitions
24. (1) The following definitions apply in this section and in sections 25 to 37.
‘‘entity’’ « entité »
‘‘entity’’ means an entity as defined in section 2 of the Bank Act.
‘‘financial institutions Act’’ « loi sur les institutions financières »
‘‘financial institutions Act’’ means the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act, the Pension Benefits Standards Act, 1985 and the Trust and Loan Companies Act.
‘‘penalty’’ « pénalité »
‘‘penalty’’ means an administrative monetary penalty.
‘‘person’’ Version anglaise seulement
‘‘person’’ means a natural person or an entity.
Non-application
(2) This section and sections 25 to 37 do not apply in respect of consumer provisions as defined in section 2 of the Financial Consumer Agency of Canada Act.
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Regulations
25. (1) The Governor in Council may make regulations (a) designating, as a violation that may be proceeded with under sections 26 to 37, the contravention of a specified provision of a financial institutions Act or of a specified provision of a regulation made under one or the non-compliance with (i) an order made by the Superintendent under a financial institutions Act, (ii) a direction made under a financial institutions Act to cease or refrain from committing an act or pursuing a course of conduct that is an unsafe or unsound practice, or to perform a remedial act, (iii) terms and conditions imposed by the Superintendent or an undertaking given to the Superintendent under a financial institutions Act, or (iv) a prudential agreement entered into with the Superintendent under a financial institutions Act; (b) classifying each violation as a minor violation, a serious violation or a very serious violation; (c) fixing, in accordance with subsection (2), a penalty, or a range of penalties, in respect of any violation; (d) respecting the service of documents required or authorized to be served under sections 26 to 37, including the manner and proof of service and the circumstances under which documents are deemed to be served; and (e) generally for carrying out the purposes and provisions of section 24, this section and sections 26 to 37.
Maximum penalties
(2) The maximum penalty for a violation is (a) in the case of a violation that is committed by a natural person, $10,000 for a minor violation, $50,000 for a serious violation and $100,000 for a very serious violation; and
Institutions f (b) in the case of a violation that is committed by an entity, $25,000 for a minor violation, $100,000 for a serious violation and $500,000 for a very serious violation.
Criteria for penalty
26. Except if a penalty is fixed under paragraph 25(1)(c), the amount of a penalty shall, in each case, be determined taking into account (a) the degree of intention or negligence on the part of the person who committed the violation; (b) the harm done by the violation; (c) the history of the person who committed the violation with respect to any prior violation or conviction under a financial institutions Act within the five-year period immediately before the violation; and (d) any other criteria that may be prescribed by regulation.
How act or omission may be proceeded with
27. If a contravention or non-compliance that is designated under paragraph 25(1)(a) can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other. Proceedings
Commission of violation
28. (1) Every contravention or non-compliance that is designated under paragraph 25(1)(a) constitutes a violation and the person who commits the violation is liable to a penalty determined in accordance with sections 25 and 26.
Notice of violation
(2) If the Superintendent believes on reasonable grounds that a person has committed a violation, he or she may issue, and shall cause to be served on the person, a notice of violation.
Contents of notice
(3) A notice of violation shall name the person believed to have committed a violation, identify the violation and set out (a) the penalty that the Superintendent proposes to impose; (b) the right of the person, within 30 days after the notice is served or within any longer period that the Superintendent specifies, to pay the penalty or to make representations to the Superintendent with respect to
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the violation and the proposed penalty, and the manner for doing so; and (c) the fact that, if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the Superintendent may impose a penalty in respect of it.
Determination of Responsibility and Penalty Payment of penalty
29. (1) If the person pays the penalty proposed in the notice of violation, the person is deemed to have committed the violation and proceedings in respect of it are ended.
Representations to Superintendent
(2) If the person makes representations in accordance with the notice, the Superintendent shall decide, on a balance of probabilities, whether the person committed the violation and, if so, may, subject to any regulations made under paragraph 25(1)(c), impose the penalty proposed, a lesser penalty or no penalty.
Failure to pay or make representations
(3) A person who neither pays the penalty nor makes representations in accordance with the notice is deemed to have committed the violation and the Superintendent may, subject to any regulations made under paragraph 25(1)(c), impose the penalty proposed, a lesser penalty or no penalty.
Notice of decision and right of appeal
(4) The Superintendent shall cause notice of any decision made under subsection (2) or (3) to be issued and served on the person together with, in the case of a serious violation or very serious violation, notice of the right of appeal under section 30.
Appeal to Federal Court Right of appeal
30. (1) A person on whom a notice under subsection 29(4) in respect of a serious violation or very serious violation is served may, within 30 days after the notice is served, or within any longer period that the Court allows, appeal the decision to the Federal Court.
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Court to take precautions against disclosing
(2) In an appeal, the Court shall take every reasonable precaution, including, when appropriate, conducting hearings in private, to avoid the disclosure by the Court or any person of confidential information referred to in subsection 22(1).
Powers of Court
(3) On an appeal, the Court may confirm, set aside or, subject to any regulations made under paragraph 25(1)(c), vary the decision of the Superintendent. Enforcement
Debts to Her Majesty
31. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court.
Time limit
(2) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.
Proceeds payable to Receiver General
(3) A penalty paid or recovered under sections 25 to 30, this section and sections 32 to 37 is payable to and shall be remitted to the Receiver General.
Certificate
32. (1) The unpaid amount of any debt referred to in subsection 31(1) may be certified by the Superintendent.
Registration in Federal Court
(2) Registration in the Federal Court of a certificate made under subsection (1) has the same effect as a judgment of that Court for a debt of the amount specified in the certificate and all related registration costs. Rules about Violations
Violations not offences
33. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of one.
Due diligence available
34. (1) Due diligence is a defence in a proceeding in relation to a violation.
Common law principles
(2) Every rule and principle of the common law that renders a circumstance a justification or an excuse in relation to a charge for an offence under a financial institutions Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
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35. A minor violation that is continued on more than one day constitutes a separate violation for each day during which it is continued. General Provisions
Evidence
36. In a proceeding in respect of a violation or a prosecution for an offence, a notice purporting to be issued under subsection 28(2) or 29(4) or a certificate purporting to be made under subsection 32(1) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Time limit
37. (1) No proceedings in respect of a violation may be commenced later than six months after the subject-matter of the proceedings became known to the Superintendent, in the case of a minor violation, or two years after the subject-matter of the proceedings became known to the Superintendent, in the case of a serious violation or a very serious violation.
Certificate of Superintendent
(2) A document appearing to have been issued by the Superintendent, certifying the day on which the subject-matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it. 477. Sections 23.3, 24 and 25 of the Act are renumbered as sections 38, 39 and 40, respectively.
1991, c. 45
Trust and Loan Companies Act 478. (1) The definition ‘‘subsidiary’’ in section 2 of the Trust and Loan Companies Act is replaced by the following:
‘‘subsidiary’’ « filiale »
‘‘subsidiary’’ means an entity that is a subsidiary of another entity within the meaning of section 5;
2001 1991, c. 47, par. 753(a), c. 48, par. 493(a)
Institutions f (2) Paragraphs (c) and (d) of the definition ‘‘financial institution’’ in section 2 of the Act are replaced by the following: (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act, (3) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘Agency’’ « Agence »
‘‘Agency’’ means the Financial Consumer Agency of Canada established under section 3 of the Financial Consumer Agency of Canada Act;
‘‘bank holding company’’ « société de portefeuille bancaire »
‘‘bank holding company’’ means a body corporate that is incorporated or formed under Part XV of the Bank Act;
‘‘Commissioner’’ « commissaire »
‘‘Commissioner’’ means the Commissioner of the Financial Consumer Agency of Canada appointed under section 4 of the Financial Consumer Agency of Canada Act;
‘‘consumer provision’’ « disposition visant les consommateurs »
‘‘consumer provision’’ means a provision referred to in paragraph (d) of the definition ‘‘consumer provision’’ in section 2 of the Financial Consumer Agency of Canada Act;
‘‘equity’’ « capitaux propres »
‘‘equity’’, in respect of a company, means its equity as determined in accordance with the regulations;
‘‘federal financial institution’’ « institution financière fédérale »
‘‘federal financial institution’’ means (a) a company, (b) a bank, (c) an association to which the Cooperative Credit Associations Act applies or a central cooperative credit society for which an order has been made under subsection 473(1) of that Act, or
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Financial In (d) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act;
‘‘insurance holding company’’ « société de portefeuille d’assurances »
‘‘insurance holding company’’ means a body corporate that is incorporated or formed under Part XVII of the Insurance Companies Act;
479. The Act is amended by adding the following before section 3: Major shareholder
2.1 For the purposes of this Act, a person is a major shareholder of a body corporate if (a) the aggregate of the shares of any class of voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 20 per cent of the outstanding shares of that class of voting shares of the body corporate; or (b) the aggregate of the shares of any class of non-voting shares of the body corporate that are beneficially owned by the person and that are beneficially owned by any entities controlled by the person is more than 30 per cent of the outstanding shares of that class of non-voting shares of the body corporate.
Widely held
2.2 For the purposes of this Act, a body corporate is widely held if it has no major shareholder. 480. (1) Paragraph 3(1)(d) of the French version of the Act is replaced by the following: d) dans tous les cas, la personne dont l’influence directe ou indirecte auprès de l’entité est telle que son exercice aurait pour résultat le contrôle de fait de celle-ci. (2) The portion of subsection 3(3) of the Act before paragraph (a) is replaced by the following:
2001 Deemed control
Institutions f (3) A person is deemed to control, within the meaning of paragraph (1)(a) or (b), an entity if the aggregate of
(3) Section 3 of the Act is amended by adding the following after subsection (3): Guidelines
(4) The Minister may, for any purpose of any provision of this Act that refers to control within the meaning of paragraph (1)(d), make guidelines respecting what constitutes such control, including guidelines describing the policy objectives that the guidelines and the relevant provisions of the Act are intended to achieve and, if any such guidelines are made, the reference to paragraph (1)(d) in that provision shall be interpreted in accordance with the guidelines. 481. Sections 4 and 5 of the Act are replaced by the following:
Holding body corporate
4. A body corporate is the holding body corporate of any entity that is its subsidiary.
Subsidiary
5. An entity is a subsidiary of another entity if it is controlled by the other entity. 482. Subsection 6(2) of the Act is replaced by the following:
Affiliated entities
(2) Despite subsection (1), for the purposes of subsections 270(1) and 288(1), one entity is affiliated with another entity if one of them is controlled, determined without regard to paragraph 3(1)(d), by the other or both are controlled, determined without regard to paragraph 3(1)(d), by the same person. 483. The portion of subsection 9(1) of the Act before paragraph (a) is replaced by the following:
Acting in concert
9. (1) For the purposes of Part VII, if two or more persons have agreed, under any agreement, commitment or understanding, whether formal or informal, verbal or written, to act jointly or in concert in respect of
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1997, c. 15, s. 341
484. Section 20 of the Act is replaced by the following:
Sunset provision
20. (1) Subject to subsection (2), companies shall not carry on business after the day that is five years after this section comes into force, except that if Parliament dissolves on that day or at any time within the three-month period before that day, companies may continue to carry on business, until the day that is one hundred and eighty days after the first day of the first session of the next Parliament.
Extension
(2) The Governor in Council may, by order, extend by up to six months the time during which companies may continue to carry on business. No more than one order may be made under this subsection. 485. Section 23 of the Act is replaced by the following:
Subsidiary of foreign institution
23. If a proposed company would be a subsidiary of a foreign institution that is engaged in trust or loan business and the application for letters patent to incorporate the company is made by a non-WTO Member foreign institution, letters patent to incorporate the company may not be issued unless the Minister is satisfied that treatment as favourable for companies to which this Act applies exists or will be provided in the jurisdiction in which the foreign institution principally carries on business, either directly or through a subsidiary. 486. Section 26 of the Act is replaced by the following:
Matters for consideration
26. Before issuing letters patent to incorporate a company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company; (b) the soundness and feasibility of the plans of the applicant or applicants for the
Institutions f future conduct and development of the business of the company; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the company on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada.
1991, c. 45, par. 559(a); 1994, c. 24, par. 34(1)(g)(F); 1997, c. 15, s. 343 Transferring to other federal Acts
487. Section 38 of the Act is replaced by the following:
38. (1) A company may (a) apply, with the approval in writing of the Minister, for a certificate of continuance under section 187 of the Canada Business Corporations Act; (b) apply for letters patent continuing the company as a bank under subsection 35(1) of the Bank Act or amalgamating and continuing the company as a bank under subsections 223(1) and 229(1) of that Act; or (c) apply for letters patent continuing the company as an association under subsection 31.1(1) of the Cooperative Credit Associations Act if (i) the company’s shareholders are limited to entities incorporated or formed by or under an Act of Parliament or of the
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Financial In legislature of a province that are, in the opinion of the Minister, operating as credit unions or cooperative associations, and (ii) the application for letters patent complies with prescribed terms and conditions, if any are prescribed.
Conditions for approval
(2) No approval referred to in paragraph (1)(a) may be given to a company unless the Minister is satisfied that (a) the application has been authorized by a special resolution; (b) the company (i) holds no deposits that are insured under the Canada Deposit Insurance Corporation Act, and (ii) is not carrying on any of the fiduciary activities referred to in section 412; and (c) unless authorized pursuant to section 48, the company will not use the word ‘‘fiduciaire’’, ‘‘fiduciary’’, ‘‘fiducie’’, ‘‘loan’’, ‘‘loanco’’, ‘‘prêt’’, ‘‘trust’’ or ‘‘trustco’’ in its name after a certificate of continuance in respect of the company is issued under the Canada Business Corporations Act.
1996, c. 6, s. 113
488. Section 43 of the Act is replaced by the following:
Affiliated company
43. Despite section 41, a company that is affiliated with another entity may, with the consent of that entity and the approval of the Superintendent, be incorporated with, or change its name to, substantially the same name as that of the affiliated entity.
1996, c. 6, s. 115
489. Subsection 46(2) of the Act is replaced by the following:
Revoking name
(2) If a company has been directed under subsection (1) to change its name and has not, within sixty days after the service of the direction, changed its name to a name that is not prohibited by this Act, the Superintendent may revoke the name of the company and assign to it a name and, until changed in
Institutions f accordance with section 220 or 222, the name of the company is thereafter the name so assigned.
1996, c. 6, s. 115
490. Section 48 of the Act is replaced by the following:
Subsidiaries
48. Despite subsections 47(1) and (2), a subsidiary of a company may use the company’s name in its name. 491. Subsection 50(1) of the Act is replaced by the following:
Calling shareholders’ meeting
50. (1) If at least five million dollars, or any greater amount that the Minister may specify, has been received by a company in respect of which letters patent were issued under section 21 from the issue of its shares, the directors of the company shall without delay call a meeting of the shareholders of the company. 492. Paragraph 56(1)(b) of the Act is replaced by the following: (b) the company has paid-in capital of at least five million dollars or any greater amount that is specified by the Minister under subsection 50(1); 493. Subsection 64(3) of the Act is replaced by the following:
Effective date
(3) A by-law referred to in subsection (1) is not effective until it is confirmed or confirmed with amendments by special resolution of the shareholders at the meeting referred to in subsection (2). 494. (1) Subsection 82(1) of the Act is replaced by the following:
Declaration of dividend
82. (1) The directors of a company may declare and a company may pay a dividend by issuing fully paid shares of the company or options or rights to acquire fully paid shares of the company and, subject to subsections (4) and (5), the directors of a company may declare and a company may pay a dividend in money or property, and where a dividend is to be paid in money, the dividend may be paid in a currency other than the currency of Canada.
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(2) Section 82 of the Act is amended by adding the following after subsection (4): When dividend not to be declared
(5) The directors of a company shall not declare and a company shall not pay a dividend in any financial year without the approval of the Superintendent if, on the day the dividend is declared, the total of all dividends declared by the company in that year would exceed the aggregate of the company’s net income up to that day in that year and of its retained net income for the preceding two financial years. 495. Subsection 145(2) of the French version of the Act is replaced by the following:
Renonciation à l’avis
(2) La présence à l’assemblée équivaut à une renonciation de l’avis de convocation, sauf lorsque la personne y assiste spécialement pour s’opposer aux délibérations au motif que l’assemblée n’est pas régulièrement convoquée. 496. The portion of subsection 148(1) of the Act before paragraph (a) is replaced by the following:
Shareholder list
148. (1) A company shall prepare a list, which may be in electronic form, of its shareholders entitled to receive notice of a meeting under paragraph 141(1)(a), arranged in alphabetical order and showing the number of shares held by each shareholder, which list must be prepared
497. Paragraph 161(2)(f) of the French version of the Act is replaced by the following: f) désigner l’un des comités du conseil d’administration pour surveiller l’application des mécanismes et procédures visés à l’alinéa e) et s’assurer que ces mécanismes et procédures soient respectés par la société; 498. Subsection 163(2) of the Act is replaced by the following.
2001 Residency requirement
Institutions f (2) At least one half of the directors of a company that is a subsidiary of a foreign institution or of a prescribed holding body corporate of a foreign institution and at least two thirds of the directors of any other company must be, at the time of each director’s election or appointment, resident Canadians. 499. Subsection 167(2) of the Act, as amended by section 351 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is repealed. 500. Subsection 176(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) when the director is removed from office under section 509.1 or 509.2. 501. The Act is amended by adding the following after section 187:
Presence of unaffiliated director
187.1 (1) The directors of a company shall not transact business at a meeting of directors unless at least one of the directors who is not affiliated with the company is present.
Exception
(2) Despite subsection (1), the directors of a company may transact business at a meeting of directors if a director who is not affiliated with the company and who is not able to be present approves, in writing or by telephonic, electronic or other communications facilities, the business transacted at the meeting.
Exception
(3) Subsection (1) does not apply if all the voting shares of the company, other than directors’ qualifying shares, if any, are beneficially owned by a Canadian financial institution incorporated by or under an Act of Parliament.
1997, c. 15, s. 361(1)
502. Paragraph 199(3)(b) of the Act is replaced by the following: (b) review those procedures and their effectiveness in ensuring that the company is complying with Part XI;
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(b.1) if a widely held bank holding company or a widely held insurance holding company has a significant interest in any class of shares of the company, (i) establish policies for entering into transactions referred to in subsection 483.1(1), and (ii) review transactions referred to in subsection 483.3(1); and 503. The portion of section 216 of the Act before paragraph (a) is replaced by the following: Reliance on statement
216. A director, an officer or an employee of a company is not liable under subsection 162(1) or (2) or section 212 or 215 or subsection 494(1) if the director, officer or employee relies in good faith on 504. The portion of subsection 217(1) of the French version of the Act before paragraph (a) is replaced by the following:
Indemnisation
217. (1) La société peut indemniser ses administrateurs ou ses dirigeants — ou leurs prédécesseurs —, ainsi que les personnes qui, à sa demande, agissent ou ont agi en cette qualité pour une entité dont elle est ou a été actionnaire ou créancière, de tous leurs frais, y compris les montants versés en règlement d’une action ou pour satisfaire à un jugement, entraînés par des procédures civiles, pénales ou administratives auxquelles ils étaient parties en cette qualité, sauf à l’occasion d’actions intentées par la société ou pour son compte en vue d’obtenir un jugement favorable, si : 505. Section 220 of the Act is replaced by the following:
Incorporating instrument
220. On the application of a company duly authorized by special resolution, the Minister may approve a proposal to add, change or remove any provision that is permitted by this Act to be set out in the incorporating instrument of the company. 506. Subsection 221(1) of the Act is replaced by the following:
2001 Letters patent to amend
Institutions f 221. (1) On receipt of an application referred to in section 220, the Minister may issue letters patent to effect the proposal. 507. (1) Subsection 222(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (i) and by adding the following after paragraph (i): (i.1) change the name of the company; or (2) Subsection 222(3) of the Act is replaced by the following:
Effective date of by-law
(3) A by-law, or an amendment to or a repeal of a by-law, made under subsection (1) is not effective until it is confirmed or confirmed as amended by the shareholders under subsection (2) and, in the case of by-laws referred to in paragraph (1)(i.1), approved by the Superintendent. 508. Subsection 226(1) of the Act is replaced by the following:
Proposal to amend
226. (1) Subject to subsection (2), a director or a shareholder who is entitled to vote at an annual meeting of shareholders of a company may, in accordance with sections 146 and 147, make a proposal to make an application referred to in section 220 or to make, amend or repeal the by-laws referred to in subsection 222(1) of the company. 509. Subsection 233(3) of the Act is replaced by the following:
Application of sections 22 to 25
(3) If two or more bodies corporate, none of which is a company, apply for letters patent under subsection (1), sections 22 to 25 apply in respect of the application with any modifications that the circumstances require.
Matters for consideration
(4) Before issuing letters patent of amalgamation continuing the applicants as one company, the Minister shall take into account all matters that the Minister considers relevant to the application, including (a) the sources of continuing financial support for the amalgamated company; (b) the soundness and feasibility of the plans of the applicants for the future conduct and development of the business of the amalgamated company;
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(c) the business record and experience of the applicants; (d) the reputation of the applicants for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the amalgamated company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the operations and businesses of the applicants on the conduct of those operations and businesses; and (g) the best interests of the financial system in Canada. 510. The Act is amended by adding the following after section 234: Court enforcement
234.1 (1) If a company or any director, officer, employee or agent of a company is contravening or has failed to comply with any term or condition made in respect of the issuance of letters patent of amalgamation, the Minister may, in addition to any other action that may be taken under this Act, apply to a court for an order directing the company or the director, officer, employee or agent to comply with the term or condition, cease the contravention or do any thing that is required to be done, and on the application the court may so order and make any other order it thinks fit.
Appeal
(2) An appeal from an order of a court under this section lies in the same manner as, and to the same court to which, an appeal may be taken from any other order of the court. 511. (1) Section 244 of the Act is amended by adding the following after subsection (5):
Electronic access
(5.1) A company may make the information contained in records referred to in subsection 243(1) available to persons by any system of mechanical or electronic data processing or any other information storage device that is capable of reproducing the records in intelligible written form within a reasonable time.
Institutions f (2) Subsection 244(6) of the French version of the Act is replaced by the following:
Exemplaires
(6) Les actionnaires peuvent sur demande et sans frais, une fois par année civile, obtenir un exemplaire des règlements administratifs de la société. 512. Subsection 250(1) of the Act is replaced by the following:
Location and processing of information
250. (1) Subject to subsection (3), a company shall maintain and process in Canada any information or data relating to the preparation and maintenance of the records referred to in section 243 unless the Superintendent has, subject to any terms and conditions that the Superintendent considers appropriate, exempted the company from the application of this section. 513. Subsection 253(3) of the Act is replaced by the following:
Application of certain provisions
(3) Subsections 244(5) and (5.1) and sections 245 and 247 to 250 apply, with any modifications that the circumstances require, in respect of a central securities register. 514. (1) The portion of paragraph 313(3)(a) of the Act before subparagraph (i) is replaced by the following: (a) a list of the subsidiaries of the company, other than subsidiaries that are not required to be listed by the regulations and subsidiaries acquired pursuant to section 457 or pursuant to a realization of security in accordance with section 458 and which the company would not otherwise be permitted to hold, showing, with respect to each subsidiary, (2) Section 313 of the Act is amended by adding the following after subsection (4):
Regulations
(5) The Governor in Council may make regulations respecting subsidiaries that are not required to be listed for the purposes of paragraph (3)(a).
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1997, c. 15, s. 371
515. Section 317 of the Act is replaced by the following:
Copy to Superintendent
317. (1) Subject to subsection (2), a company shall send to the Superintendent a copy of the documents referred to in subsections 313(1) and (3) not later than twenty-one days before the date of each annual meeting of shareholders of the company.
Later filing
(2) If a company’s shareholders sign a resolution under paragraph 155(1)(b) in lieu of an annual meeting, the company shall send a copy of the documents referred to in subsections 313(1) and (3) to the Superintendent not later than thirty days after the signing of the resolution. 516. (1) Subsection 320(3) of the Act is replaced by the following:
Notice of designation
(3) Within fifteen days after the appointment of a firm of accountants as auditor of a company, the company and the firm of accountants shall jointly designate a member of the firm who meets the qualifications described in subsection (1) to conduct the audit of the company on behalf of the firm and the company shall forthwith notify the Superintendent in writing of the designation. (2) Subsection 320(4) of the French version of the Act is replaced by the following:
Remplacement d’un membre désigné
(4) Si, pour une raison quelconque, le membre désigné cesse de remplir ses fonctions, la société et le cabinet de comptables peuvent désigner conjointement un autre membre qui remplit les conditions du paragraphe (1); la société en avise sans délai par écrit le surintendant. 517. Subsection 374(2) of the Act is replaced by the following:
Priority not affected
(2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of a company. 518. Subsections 375(3) to (5) of the Act are replaced by the following:
Institutions f
Exemption
(3) On application by a company, the Superintendent may exempt from the application of this section and section 376 any class of non-voting shares of the company if the aggregate book value of the shares of the class is not more than 30 per cent of the aggregate book value of all the outstanding shares of the company.
1997, c. 15, s. 372
519. Section 375.1 of the Act is replaced by the following:
No acquisition of control without approval
375.1 No person shall acquire control, within the meaning of paragraph 3(1)(d), of a company, without the prior approval of the Minister. 520. Subsection 378(1) of the Act is replaced by the following:
Where approval not required
378. (1) Despite sections 375 and 376, the approval of the Minister is not required if (a) the Superintendent has, by order, directed the company to increase its capital and shares of the company are issued and acquired in accordance with such terms and conditions as may be specified in the order; or (b) a person who controls, within the meaning of paragraph 3(1)(a), the company acquires additional shares of the company. 521. Section 379 of the Act is replaced by the following:
Public holding requirement
379. (1) Every company shall, from and after the day determined under this section in respect of that company, have, and continue to have, voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the company in respect of the voting shares of the company or by any entity that is controlled by a person who is a major shareholder of the company in respect of such shares.
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Determination of day
(2) If the company has equity of one billion dollars or more on the day it comes into existence, the day referred to in subsection (1) is the day that is three years after that day and, in the case of any other company, the day referred to in subsection (1) is the day that is three years after the day of the first annual meeting of the shareholders of the company held after the equity of the company first reaches one billion dollars.
Extension
(3) If general market conditions so warrant and the Minister is satisfied that a company has used its best efforts to be in compliance with this section on the day determined under subsection (2), the Minister may specify a later day as the day from and after which the company must comply with subsection (1). 522. Subsection 380(1) of the Act is replaced by the following:
Limit on assets
380. (1) Unless an exemption order with respect to the company is granted under section 382, if a company fails to comply with section 379 in any month, the Minister may, by order, require the company not to have, until it complies with that section, average total assets in any three month period ending on the last day of a subsequent month exceeding the company’s average total assets in the three month period ending on the last day of the month immediately before the month specified in the order.
1991, c. 47, par. 753(b)
523. (1) The portion of subsection 382(1) of the Act before paragraph (f) is replaced by the following:
Exemption by order of Minister
382. (1) An entity that controls a company and that is (a) a widely held bank, (b) a bank that would be in compliance with section 379 if it were a company, (b.1) a widely held bank holding company, (b.2) a bank holding company that would be in compliance with section 379 if it were a company, (c) a company that is in compliance with section 379, (d) an insurance company, other than a mutual company, to which the Insurance
Institutions f Companies Act applies that would be in compliance with section 379 if it were a company, (d.1) a mutual company or a fraternal benefit society to which the Insurance Companies Act applies, (d.2) an insurance holding company that would be in compliance with section 379 if it were a company, (e) an association to which the Cooperative Credit Associations Act applies, (2) Paragraph 382(5)(a) of the Act is replaced by the following: (a) the entity that applied for the exemption order ceases to control the company;
1997, c. 15, s. 374
524. Sections 384 to 386 of the Act are replaced by the following:
Acquisition of control permitted
384. (1) Subject to subsection (2) and sections 376 and 385, section 379 does not apply in respect of a company if a person acquires control of a company with equity of one billion dollars or more through the purchase or other acquisition of all or any number of the shares of the company by the person or by any entity controlled by the person.
Undertaking required
(2) Subsection (1) applies only if the person provides the Minister with an undertaking satisfactory to the Minister to do all things necessary so that, within three years after the acquisition, or any other period that the Minister may specify, the company has voting shares that carry at least 35 per cent of the voting rights attached to all of the outstanding voting shares of the company and that are (a) shares of one or more classes of shares that are listed and posted for trading on a recognized stock exchange in Canada; and (b) shares none of which is beneficially owned by a person who is a major shareholder of the company in respect of the voting shares of the company or by any entity that is controlled by a person who is a major shareholder of the company in respect of such shares.
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Application of section 379
385. At the expiration of the period for compliance with an undertaking referred to in subsection 384(2), section 379 shall apply in respect of the company to which the undertaking relates.
Restriction on voting rights
386. (1) If, with respect to any company, a particular person contravenes section 375 or 375.1 or fails to comply with an undertaking referred to in subsection 384(2) or with any term or condition imposed under section 389, no person, and no entity controlled by the particular person, shall, in person or by proxy, exercise any voting rights (a) that are attached to shares of the company beneficially owned by the particular person or any entity controlled by the particular person; or (b) that are subject to an agreement entered into by the particular person, or any entity controlled by the particular person, pertaining to the exercise of the voting rights.
Subsection (1) ceases to apply
(2) Subsection (1) ceases to apply in respect of a person when, as the case may be, (a) the shares to which the contravention relates have been disposed of; (b) the person ceases to control the company within the meaning of paragraph 3(1)(d); (c) if the person failed to comply with an undertaking referred to in subsection 384(2), the company complies with section 379; or (d) if the person failed to comply with a term or condition imposed under section 389, the person complies with the term or condition. 525. Section 387 of the Act is replaced by the following:
Application for approval
387. (1) An application for an approval of the Minister required under this Part must be filed with the Superintendent and contain the information, material and evidence that the Superintendent may require.
2001 Applicant
Institutions f (2) If, with respect to any particular transaction, this Part applies to more than one person, any one of those persons may make the application to the Minister for approval on behalf of all of those persons. 526. Subsection 388(1) of the Act is replaced by the following:
Matters for consideration
388. (1) Subject to subsection (2), if an application for an approval under section 375 is made, the Minister, in determining whether or not to approve the transaction, shall take into account all matters that the Minister considers relevant to the application, including (a) the nature and sufficiency of the financial resources of the applicant or applicants as a source of continuing financial support for the company; (b) the soundness and feasibility of the plans of the applicant or applicants for the future conduct and development of the business of the company; (c) the business record and experience of the applicant or applicants; (d) the character and integrity of the applicant or applicants or, if the applicant or any of the applicants is a body corporate, its reputation for being operated in a manner that is consistent with the standards of good character and integrity; (e) whether the company will be operated responsibly by persons with the competence and experience suitable for involvement in the operation of a financial institution; (f) the impact of any integration of the businesses and operations of the applicant or applicants with those of the company on the conduct of those businesses and operations; and (g) the best interests of the financial system in Canada. 527. Section 389 of the Act is replaced by the following:
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389. The Minister may impose any terms and conditions in respect of an approval given under this Part that the Minister considers necessary to ensure compliance with any provision of this Act. 528. (1) Subsection 390(1) of the Act is replaced by the following:
Certifying receipt of application
390. (1) If, in the opinion of the Superintendent, an application filed under this Part contains all the required information, the Superintendent shall without delay refer the application to the Minister and send a receipt to the applicant certifying the date on which the completed application was received by the Superintendent. (2) Subsection 390(2) of the English version of the Act is replaced by the following:
Incomplete application
(2) If, in the opinion of the Superintendent, an application filed under this Part is incomplete, the Superintendent shall send a notice to the applicant specifying the information required by the Superintendent to complete the application.
1996, c. 6, s. 119
529. (1) Subsection 401(1) of the Act is replaced by the following:
Disposition of shareholdings
401. (1) If, with respect to any company, a person contravenes section 375 or 375.1 or fails to comply with an undertaking referred to in subsection 384(2) or with any terms and conditions imposed under section 389, the Minister may, if the Minister deems it in the public interest to do so, by order, direct that person and any person controlled by that person to dispose of any number of shares of the company beneficially owned by any of those persons that the Minister specifies in the order, within the time specified in the order and in the proportion, if any, as between the person and the persons controlled by that person that is specified in the order. (2) Subsection 401(4) of the Act is repealed.
1997, c. 15, ss. 375(1) to (3)
530. (1) The portion of subsection 410(1) of the Act before paragraph (e) is replaced by the following:
2001 Additional activities
Institutions f 410. (1) In addition, a company may (a) act as an agent for vendors, purchasers, mortgagors, mortgagees, lessors or lessees of real property and provide consulting or appraisal services in respect of real property; (b) hold, manage and otherwise deal with real property; (c) outside Canada, or with the prior written approval of the Minister, in Canada, engage in any of the following activities, namely, (i) collecting, manipulating and transmitting (A) information that is primarily financial or economic in nature, (B) information that relates to the business of a permitted entity, as defined in subsection 449(1), or (C) any other information that the Minister may, by order, specify, (ii) providing advisory or other services in the design, development or implementation of information management systems, (iii) designing, developing or marketing computer software, and (iv) designing, developing, manufacturing or selling, as an ancillary activity to any activity referred to in any of subparagraphs (i) to (iii) that the company is engaging in, computer equipment integral to the provision of information services related to the business of financial institutions or to the provision of financial services; (c.1) with the prior written approval of the Minister, develop, design, hold, manage, manufacture, sell or otherwise deal with data transmission systems, information sites, communication devices or information platforms or portals that are used (i) to provide information that is primarily financial or economic in nature,
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(d) in Canada, engage in such activities referred to in paragraph (c) that the company was engaged in prior to June 1, 1992; (d.1) engage, under prescribed terms and conditions, if any are prescribed, in specialized business management or advisory services;
(2) Subsection 410(3) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) respecting the circumstances in which companies may be exempted from the requirement to obtain the approval of the Minister before carrying on a particular activity referred to in paragraph (1)(c) or (c.1).
531. Paragraphs 411(a) and (b) of the Act are replaced by the following: (a) act as agent for any person in respect of the provision of any service that is provided by a financial institution, a permitted entity as defined in subsection 449(1) or a prescribed entity and may enter into an arrangement with any person in respect of the provision of that service; or
Institutions f (b) refer any person to any such financial institution or entity. 532. (1) The portion of subsection 414(1) of the Act before paragraph (a) is replaced by the following:
Restriction on guarantees
414. (1) A company shall not guarantee on behalf of any person the payment or repayment of any sum of money unless
1997, c. 15, s. 376
(2) Subsection 414(2) of the French version of the Act is replaced by the following:
Exception
(2) Dans les cas où la personne visée au paragraphe (1) est une filiale de la société garante, celle-ci peut garantir une somme qui n’est pas fixe. 533. Section 417 of the Act is replaced by the following:
Restriction on leasing
417. A company shall not engage in Canada in any personal property leasing activity in which a financial leasing entity, within the meaning of subsection 449(1), is not permitted to engage.
1999, c. 31, s. 219(E)
534. Section 419 of the Act is replaced by the following:
Policies re security interests
419. (1) The directors of a company shall establish and the company shall adhere to policies regarding the creation of security interests in property of the company to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests.
Order to amend policies
(2) The Superintendent may, by order, direct a company to amend its policies as specified in the order.
Compliance
(3) A company shall comply with an order made under subsection (2) within the time specified in the order.
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Regulations and guidelines
419.1 The Governor in Council may make regulations and the Superintendent may make guidelines respecting the creation by a company of security interests in its property to secure obligations of the company and the acquisition by the company of beneficial interests in property that is subject to security interests.
Exception
419.2 Sections 419 and 419.1 do not apply in respect of a security interest created by a company to secure an obligation of the company to the Bank of Canada or the Canada Deposit Insurance Corporation. 535. Subsection 421(1) of the Act is replaced by the following:
Restriction on partnerships
421. (1) Except with the approval of the Superintendent, a company may not be a general partner in a limited partnership or a partner in a general partnership. 536. Subsection 423(6) of the Act is replaced by the following:
Execution of trust
(6) A company is not bound to see to the execution of any trust to which any deposit made under the authority of this Act is subject, other than a trust of which the company is a trustee.
Payment when company has notice of trust
(7) Subsection (6) applies regardless of whether the trust is express or arises by the operation of law, and it applies even when the company has notice of the trust if it acts on the order of or under the authority of the holder or holders of the account into which the deposit is made. 537. The heading ‘‘Interest and Charges’’ before section 426 of the Act is repealed. 538. The Act is amended by adding the following before section 426:
Definitions
425.1 The following definitions apply in this section and in sections 431 to 434, 444.1 and 444.3.
‘‘member company’’ « société membre »
‘‘member company’’ means a company that is a member institution as defined in section 2 of the Canada Deposit Insurance Corporation Act.
‘‘personal deposit account’’ « compte de dépôt personnel »
‘‘personal deposit account’’ means a deposit account in the name of one or more natural
Institutions f persons that is kept by that person or those persons for a purpose other than that of carrying on business.
‘‘retail deposit account’’ « compte de dépôt de détail »
‘‘retail deposit account’’ means a personal deposit account that is opened with a deposit of less than $150,000 or any greater amount that may be prescribed. 539. Subsection 427(2) of the Act is replaced by the following:
Exception
(2) Subsection (1) does not apply in respect of an interest-bearing deposit account that is opened with a deposit in excess of $150,000 or any greater amount that may be prescribed. 540. Section 430 of the Act is repealed.
1997, c. 15, s. 378
541. (1) The portion of subsection 431(1) of the Act before paragraph (a) is replaced by the following:
Disclosure required on opening a deposit account
431. (1) Subject to subsections (2) to (4), a company shall not open a deposit account in the name of a customer unless, at or before the time the account is opened, the company provides in writing to the individual who requests the opening of the account
1997, c. 15, s. 378
(2) Subsections 431(2) to (5) of the Act are replaced by the following:
Exception
(2) If a deposit account is not a personal deposit account and the amount of a charge applicable to the account cannot be established at or before the time the account is opened, the company shall, as soon as is practicable after the amount is established, provide the customer in whose name the account is kept with a notice in writing of the amount of the charge.
Exception
(3) If a company has a deposit account in the name of a customer and the customer by telephone requests the opening of another deposit account in the name of the customer and the company has not complied with subsection (1) in respect of the opening of that other account, the company shall not open the account unless it provides the customer orally with any information prescribed at or before the time the account is opened.
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Disclosure in writing
(4) If a company opens an account under subsection (3), it shall, not later than seven business days after the account is opened, provide to the customer in writing the agreement and information referred to in subsection (1).
Right to close account
(5) A customer may, within 14 business days after a deposit account is opened under subsection (3), close the account without charge and in such case is entitled to a refund of any charges related to the operation of the account, other than interest charges, incurred while the account was open.
Regulations
(6) For the purposes of subsection (4), the Governor in Council may make regulations prescribing circumstances in which, and the time when, the agreement and information will be deemed to have been provided to the customer. 542. Section 434 of the Act is replaced by the following:
Application
434. Sections 431 to 433 apply only in respect of charges applicable to deposit accounts with the company in Canada and services provided by the company in Canada. 543. Section 435 of the Act, as enacted by section 379 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, is replaced by the following:
Definition of ‘‘cost of borrowing’’
435. For the purposes of this section and sections 435.1 to 442, ‘‘cost of borrowing’’ means, in respect of a loan made by a company, (a) the interest or discount applicable to the loan; (b) any amount charged in connection with the loan that is payable by the borrower to the company; and (c) any charge prescribed to be included in the cost of borrowing. For those purposes, however, ‘‘cost of borrowing’’ does not include any charge prescribed to be excluded from the cost of borrowing. 544. The Act is amended by adding the following before section 441:
Institutions f Complaints 545. (1) Paragraph 441(1)(a) of the Act is replaced by the following: (a) establish procedures for dealing with complaints made by persons having requested or received products or services in Canada from the company; (2) If this section comes into force before paragraph 441(1)(a) of the Act, as enacted by section 382 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force, section 382 of that Act is repealed. (3) Subsection 441(2) of the Act is replaced by the following:
Procedures to be filed with Commissioner
(2) A company shall file with the Commissioner a copy of its procedures established under paragraph (1)(a). 546. The Act is amended by adding the following after section 441:
Obligation to be member of complaints body
441.1 In any province, if there is no law of the province that makes a company subject to the jurisdiction of an organization that deals with complaints made by persons having requested or received products or services in the province from a company, the company shall be a member of an organization that is not controlled by it and that deals with those complaints that have not been resolved to the satisfaction of the persons under procedures established by companies under paragraph 441(1)(a). 547. (1) Section 442 of the Act is replaced by the following:
Information on contacting Agency
442. (1) A company shall, in the prescribed manner, provide a person requesting or receiving a product or service from it with prescribed information on how to contact the Agency if the person has a complaint about a deposit account, an arrangement referred to in subsection 438(3), a payment, credit or charge card, the disclosure of or manner of calculating the cost of borrowing in respect of a loan or about any other obligation of the company under a consumer provision.
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(2) The Commissioner shall prepare a report, to be included in the report referred to in section 34 of the Financial Consumer Agency of Canada Act, respecting (a) procedures for dealing with complaints established by companies pursuant to paragraph 441(1)(a); and (b) the number and nature of complaints that have been brought to the attention of the Agency by persons who have requested or received a product or service from a company. (2) If this section comes into force before subsection 442(1) of the Act, as enacted by section 383 of An Act to amend certain laws relating to financial institutions, being chapter 15 of the Statutes of Canada, 1997, comes into force, section 383 of that Act is repealed. 548. The Act is amended by adding the following after section 444:
Notice of branch closure
444.1 (1) Subject to regulations made under subsection (5), a member company with a branch in Canada at which it, through a natural person, opens retail deposit accounts and disburses cash to customers, shall give notice in accordance with those regulations before closing that branch or having it cease to carry on either of those activities.
Pre-closure meeting
(2) After notice is given but before the branch is closed or ceases to carry on the activities, the Commissioner may, in prescribed situations, require the company to convene and hold a meeting between representatives of the company, representatives of the Agency and interested parties in the vicinity of the branch in order to exchange views about the closing or cessation of activities.
Meeting details
(3) The Commissioner may establish rules for convening a meeting referred to in subsection (2) and for its conduct.
Institutions f
Not statutory instruments
(4) The Statutory Instruments Act does not apply in respect of rules established under subsection (3).
Regulations
(5) The Governor in Council may make regulations prescribing (a) the manner and time, which may vary according to circumstances specified in the regulation, in which notice shall be given under subsection (1), to whom it shall be given and the information to be included; (b) circumstances in which a member company is not required to give notice under subsection (1), circumstances in which the Commissioner may exempt a member company from the requirement to give notice under that subsection, and circumstances in which the Commissioner may vary the manner and time in which notice is required to be given under any regulation made under paragraph (a); and (c) circumstances in which a meeting may be convened under subsection (2).
Public accountability statements
444.2 (1) A company with equity of $1 billion or more shall, in accordance with regulations made under subsection (4), annually publish a statement describing the contribution of the company and its prescribed affiliates to the Canadian economy and society.
Filing
(2) A company shall, in the manner and at the time prescribed, file a copy of the statement with the Commissioner.
Provision of statement to public
(3) A company shall, in the manner and at the time prescribed, disclose the statement to its customers and to the public.
Regulations
(4) The Governor in Council may make regulations prescribing (a) the name, contents and form of a statement referred to in subsection (1) and the time in which it must be prepared; (b) affiliates of a company referred to in subsection (1); (c) the manner and time in which a statement must be filed under subsection (2); and
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(d) the manner and time in which a statement mentioned in subsection (3) is to be disclosed, respectively, to a company’s customers and to the public.
Regulations re disclosure
444.3 The Governor in Council may, subject to any other provisions of this Act relating to the disclosure of information, make regulations respecting the disclosure of information by companies or any prescribed class of companies, including regulations respecting (a) the information that must be disclosed, including information relating to (i) any product or service or prescribed class of products or services offered by them, (ii) any of their policies, procedures or practices relating to the offer by them of any product or service or prescribed class of products or services, (iii) anything they are required to do or to refrain from doing under a consumer provision, and (iv) any other matter that may affect their dealings with customers or the public; (b) the manner, place and time in which, and the persons to whom information is to be disclosed; and (c) the content and form of any advertisement by companies or any prescribed class of companies relating to any matter referred to in paragraph (a). 549. Section 448 of the Act is replaced by the following:
Effect of writ, etc.
448. (1) Subject to subsections (3) and (4), the following documents are binding on property belonging to a person and in the possession of a company, or on money owing to a person by reason of a deposit account in a company, only if the document or a notice of it is served at the branch of the company that has possession of the property or that is the branch of account in respect of the deposit account, as the case may be:
Institutions f (a) a writ or process originating a legal proceeding or issued in or pursuant to a legal proceeding; (b) an order or injunction made by a court; (c) an instrument purporting to assign, perfect or otherwise dispose of an interest in the property or the deposit account; or (d) an enforcement notice in respect of a support order or support provision.
Notices
(2) Any notification sent to a company with respect to a customer of the company, other than a document referred to in subsection (1) or (3), constitutes notice to the company and fixes the company with knowledge of its contents only if sent to and received at the branch of the company that is the branch of account of an account held in the name of that customer.
Exception
(3) Subsections (1) and (2) do not apply in respect of an enforcement notice in respect of a support order or support provision if (a) the enforcement notice, accompanied by a written statement containing the information required by the regulations, is served at an office of a company designated in accordance with the regulations in respect of a province; and (b) the order or provision can be enforced under the laws of that province.
Time of application
(4) Subsection (3) does not apply in respect of an enforcement notice in respect of a support order or support provision until the second business day following the day of service referred to in that subsection.
Regulations
(5) The Governor in Council may make regulations (a) respecting the designation by a company of a place, for the purpose of subsection (3), in any province for the service of enforcement notices in respect of support orders and support provisions; (b) prescribing the manner in which a company shall publicize the locations of designated offices of the company; and
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(c) respecting the information that must accompany enforcement notices in respect of support orders and support provisions. Definitions
(6) The following definitions apply in this section.
‘‘designated office’’ « bureau désigné »
‘‘designated office’’ means a place designated in accordance with regulations made for the purpose of subsection (3).
‘‘enforcement notice’’ « avis d’exécution »
‘‘enforcement notice’’, in respect of a support order or support provision, means a garnishee summons or other instrument issued under the laws of a province for the enforcement of the support order or support provision.
‘‘support order’’ « ordonnance alimentaire »
‘‘support order’’ means an order or judgment or interim order or judgment for family financial support.
‘‘support provision’’ « disposition alimentaire »
‘‘support provision’’ means a provision of an agreement relating to the payment of maintenance or family financial support.
1991, c. 45, s. 560; 1993, c. 34, s. 128(F); 1997, c. 15, ss. 386 to 396; 1999, c. 28, ss. 141 to 143
550. Sections 449 to 471 of the Act are replaced by the following:
Definitions
449. (1) The following definitions apply in this Part.
‘‘commercial loan’’ « prêt commercial »
‘‘commercial loan’’ means (a) any loan made or acquired by a company, other than (i) a loan to a natural person in an amount of two hundred and fifty thousand dollars or less, (ii) a loan to the Government of Canada, the government of a province, a municipality, or to any agency thereof, or to the government of a foreign country or any political subdivision thereof, or any agency thereof, or to a prescribed international agency,
Institutions f (iii) a loan that is guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 75 % of the value of the property at the time the loan is made or acquired, or (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, does not exceed 75 % of the value of the property at the time the loan is made or acquired, and (II) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, (v) a loan that is secured by a mortgage on real property, where (A) the mortgage is on residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, and (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaran���
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Financial In teed or insured by a government agency or private insurer approved by the Superintendent, (B) the mortgage is on real property other than residential property and (I) the amount of the loan, together with the amount then outstanding of any mortgage having an equal or prior claim against the property, exceeds 75 % of the value of the property at the time the loan is made or acquired, (II) repayment of the amount of the loan that exceeds 75 % of the value of the property is guaranteed or insured by a government agency or private insurer approved by the Superintendent, and (III) at the time the loan is made or acquired, the property provides an annual income sufficient to pay all annual expenses related to the property, including the payments owing under the mortgage and the mortgages having an equal or prior claim against the property, or (C) the loan is one referred to in paragraph 418(2)(d), (vi) a loan that (A) consists of a deposit made by the company with another financial institution, (B) is fully secured by a deposit with any financial institution, including the company, (C) is fully secured by debt obligations guaranteed by any financial institution other than the company, or (D) is fully secured by a guarantee of a financial institution other than the company, or (vii) a loan to an entity controlled by the company;
Institutions f (b) an investment in debt obligations, other than (i) debt obligations that are (A) guaranteed by any financial institution other than the company, (B) fully secured by deposits with any financial institution, including the company, or (C) fully secured by debt obligations that are guaranteed by any financial institution other than the company, (ii) debt obligations issued by the Government of Canada, the government of a province, a municipality, or by any agency thereof, or by the government of a foreign country or any political subdivision thereof, or by any agency thereof, or by a prescribed international agency, (iii) debt obligations that are guaranteed by, or fully secured by securities issued by, a government, a municipality or an agency referred to in subparagraph (ii), (iv) debt obligations that are widely distributed, as that expression is defined by the regulations, or (v) debt obligations of an entity controlled by the company; and (c) an investment in shares of a body corporate or ownership interests in an unincorporated entity, other than (i) shares or ownership interests that are widely distributed, as that expression is defined by the regulations, (ii) shares or ownership interests of an entity controlled by the company, or (iii) participating shares.
‘‘factoring entity’’ « entité s’occupant d’affacturage »
‘‘factoring entity’’ means a factoring entity as defined in the regulations.
‘‘finance entity’’ « entité s’occupant de financement »
‘‘finance entity’’ means a finance entity as defined in the regulations.
��� ‘‘financial leasing entity’’ « entité s’occupant de crédit-bail »
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‘‘financial leasing entity’’ means an entity (a) the activities of which are limited to the financial leasing of personal property and such related activities as are prescribed and whose activities conform to such restrictions and limitations thereon as are prescribed; and (b) that, in conducting the activities referred to in paragraph (a) in Canada, does not (i) direct its customers or potential customers to particular dealers in the leased property or the property to be leased, (ii) enter into lease agreements with persons in respect of any motor vehicle having a gross vehicle weight, as that expression is defined by the regulations, of less than twenty-one tonnes, or (iii) enter into lease agreements with natural persons in respect of personal household property, as that expression is defined by the regulations.
‘‘loan’’ « prêt » ou « emprunt »
‘‘loan’’ includes an acceptance, endorsement or other guarantee, a deposit, a financial lease, a conditional sales contract, a repurchase agreement and any other similar arrangement for obtaining funds or credit but does not include investments in securities.
‘‘motor vehicle’’ « véhicule à moteur »
‘‘motor vehicle’’ means a motorized vehicle designed to be used primarily on a public highway for the transportation of persons or things, but does not include (a) a fire-engine, bus, ambulance or utility truck; or (b) any other special purpose motorized vehicle that contains significant special features that make it suitable for a specific purpose.
‘‘mutual fund distribution entity’’ « courtier de fonds mutuels »
‘‘mutual fund distribution entity’’ means an entity whose principal activity is acting as a selling agent of units, shares or other interests in a mutual fund and acting as a collect2001
Institutions f ing agent in the collection of payments for any such interests if (a) the proceeds of the sales of any such interests, less any sales commissions and service fees, are paid to the mutual fund; and (b) the existence of a sales commission and service fee in respect of the sale of any such interest is disclosed to the purchaser of the interest before the purchase of the interest.
‘‘mutual fund entity’’ « entité s’occupant de fonds mutuels »
‘‘mutual fund entity’’ means an entity (a) whose activities are limited to the investing of the funds of the entity so as to provide investment diversification and professional investment management to the holders of its securities; and (b) whose securities entitle their holders to receive, on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in a part of its net assets, including a separate fund or trust account of the entity.
‘‘participating share’’ « action participante »
‘‘participating share’’ means a share of a body corporate that carries the right to participate in the earnings of the body corporate to an unlimited degree and to participate in a distribution of the remaining property of the body corporate on dissolution.
‘‘permitted entity’’ « entité admissible »
‘‘permitted entity’’ means an entity in which a company is permitted to acquire a substantial investment under section 453.
‘‘prescribed subsidiary’’ « filiale réglementaire »
‘‘prescribed subsidiary’’ means a subsidiary that is one of a prescribed class of subsidiaries.
‘‘specialized financing entity’’ « entité s’occupant de financement spécial »
‘‘specialized financing entity’’ means a specialized financing entity as defined in the regulations.
Members of a company’s group
(2) For the purpose of this Part, a member of a company’s group is any of the following:
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(a) an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company; (b) a subsidiary of the company or of an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company; (c) an entity in which the company, or an entity referred to in any of paragraphs 453(1)(a) to (f) that controls the company, has a substantial investment; or (d) a prescribed entity in relation to the company. Non-application of Part
(3) This Part does not apply in respect of (a) money or other assets held in trust by a company, other than guaranteed trust money and assets held in respect thereof; (b) the holding of a security interest in real property, unless the security interest is prescribed pursuant to paragraph 467(a) to be an interest in real property; or (c) the holding of a security interest in securities of an entity. General Constraints on Investments
Investment standards
450. The directors of a company shall establish and the company shall adhere to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments and loans to avoid undue risk of loss and obtain a reasonable return.
Restriction on control and substantial investments
451. (1) Subject to subsections (2) to (4), no company shall acquire control of, or hold, acquire or increase a substantial investment in, any entity other than a permitted entity.
Exception: indirect investments
(2) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity other than a permitted entity by way of (a) an acquisition of control of an entity referred to in any of paragraphs 453(1)(a) to (j), or of a prescribed entity, that controls or has a substantial investment in the entity; or
Institutions f (b) an acquisition of shares or ownership interests in the entity by (i) an entity referred to in any of paragraphs 453(1)(a) to (j), or a prescribed entity, that is controlled by the company, or (ii) an entity controlled by an entity referred to in any of paragraphs 453(1)(a) to (j), or a prescribed entity, that is controlled by the company.
Exception: temporary investments, realizations and loan workouts
(3) A company may, subject to Part XI, acquire control of, or acquire or increase a substantial investment in, an entity by way of (a) a temporary investment permitted by section 456; (b) an acquisition of shares of a body corporate or of ownership interests in an unincorporated entity permitted by section 457; or (c) a realization of security permitted by section 458.
Exception: specialized financing regulations
(4) A company may, subject to Part XI, acquire control of, or hold, acquire or increase a substantial investment in, an entity other than a permitted entity if it does so in accordance with regulations made under paragraph 452(d) concerning specialized financing.
Exception: uncontrolled event
(5) A company is deemed not to contravene subsection (1) if the company acquires control of, or acquires or increases a substantial investment in, an entity solely as the result of an event not within the control of the company.
Regulations
452. The Governor in Council may make regulations (a) respecting the determination of the amount or value of loans, investments and interests for the purposes of this Part;
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(b) respecting the loans and investments, and the maximum aggregate amount of all loans and investments, that may be made or acquired by a company and its prescribed subsidiaries to or in a person and any persons connected with that person; (c) specifying the classes of persons who are connected with any person for the purposes of paragraph (b); and (d) concerning specialized financing for the purposes of subsection 451(4).
Subsidiaries and Equity Investments Permitted investments
453. (1) Subject to subsections (6) to (8) and Part XI, a company may acquire control of, or acquire or increase a substantial investment in (a) a company; (b) a bank; (c) a bank holding company; (d) an association to which the Cooperative Credit Associations Act applies; (e) an insurance company or a fraternal benefit society incorporated or formed under the Insurance Companies Act; (f) an insurance holding company; (g) a trust, loan or insurance corporation incorporated or formed by or under an Act of the legislature of a province; (h) a cooperative credit society incorporated or formed, and regulated, by or under an Act of the legislature of a province; (i) an entity that is incorporated or formed by or under an Act of Parliament or of the legislature of a province and that is primarily engaged in dealing in securities; or (j) an entity that is incorporated or formed, and regulated, otherwise than by or under an Act of Parliament or of the legislature of a province and that is primarily engaged outside Canada in a business that, if carried on in Canada, would be the business of banking, the business of a cooperative credit society, the business of insurance, the business of providing fiduciary services or the business of dealing in securities.
Permitted investments
Institutions f
(2) Subject to subsections (3) to (6) and Part XI, a company may acquire control of, or acquire or increase a substantial investment in, an entity, other than an entity referred to in any of paragraphs (1)(a) to (j), whose business is limited to one or more of the following: (a) engaging in any financial service activity or in any other activity that a company is permitted to engage in under any of paragraphs 409(2)(b) to (d) or section 410 or 411; (b) acquiring or holding shares of, or ownership interests in, entities in which a company is permitted under this Part to hold or acquire; (c) engaging in the provision of any services exclusively to any or all of the following, so long as the entity is providing those services to the company or any member of the company’s group: (i) the company, (ii) any member of the company’s group, (iii) any entity that is primarily engaged in the business of providing financial services, (iv) any permitted entity in which an entity referred to in subparagraph (iii) has a substantial investment, or (v) any prescribed person, if it is doing so under prescribed terms and conditions, if any are prescribed; (d) engaging in any activity that a company is permitted to engage in, other than an activity referred to in paragraph (a) or (e), that relates to (i) the promotion, sale, delivery or distribution of a financial product or financial service that is provided by the company or any member of the company’s group, or (ii) if a significant portion of the business of the entity involves an activity referred to in subparagraph (i), the promotion, sale, delivery or distribution of a finan���
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Financial In cial product or financial service that is provided by any other entity that is primarily engaged in the business of providing financial services;
(e) engaging in the activities referred to in the definition ‘‘mutual fund entity’’ or ‘‘mutual fund distribution entity’’ in subsection 449(1); and (f) engaging in prescribed activities, under prescribed terms and conditions, if any are prescribed.
Restriction
(3) A company may not acquire control of, or acquire or increase a substantial investment in, an entity whose business includes any activity referred to in any of paragraphs (2)(a) to (e) if the entity engages in the business of accepting deposit liabilities or if the activities of the entity include (a) activities that a company is not permitted to engage in under any of sections 417 and 418; (b) dealing in securities, except as may be permitted under paragraph (2)(e) or as may be permitted to a company under paragraph 409(2)(c); (c) acting as an executor, administrator or official guardian or as a guardian, tutor, curator, judicial adviser or committee of a mentally incompetent person; (d) being a trustee for a trust; (e) activities that a company is not permitted to engage in under any regulation made under section 416 if the entity engages in the activities of a finance entity or of any other entity as may be prescribed; (f) acquiring control of or acquiring or holding a substantial investment in another entity unless (i) in the case of an entity that is controlled by the company, the company itself would be permitted under this Part to acquire a substantial investment in the other entity, or (ii) in the case of an entity that is not controlled by the company, the company itself would be permitted to acquire a
Institutions f substantial investment in the other entity under subsection (1) or (2) or 451(2), paragraph 451(3)(b) or (c) or subsection 451(4); or (g) any prescribed activity.
Control
(4) Subject to subsection (8) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, (a) an entity referred to in any of paragraphs (1)(a) to (j), unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment; (b) an entity whose business includes one or more of the activities referred to in paragraph (2)(a) and that engages, as part of its business, in any financial intermediary activity that exposes the entity to material market or credit risk, including a finance entity, a factoring entity and a financial leasing entity, unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity, or (ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment; or (c) an entity whose business includes an activity referred to in paragraph (2)(b), including a specialized financing entity, unless (i) the company controls, within the meaning of paragraph 3(1)(d), the entity, or would thereby acquire control, within the meaning of that paragraph, of the entity,
���
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Financial In (ii) the company is permitted by regulations made under paragraph 459(a) to acquire or increase the substantial investment, or (iii) subject to prescribed terms and conditions, if any are prescribed, the activities of the entity do not include the acquisition or holding of control of, or the acquisition or holding of shares or other ownership interests in, an entity referred to in paragraph (a) or (b) or an entity that is not a permitted entity.
Minister’s approval
(5) Subject to the regulations, a company may not, without the prior written approval of the Minister, (a) acquire control of an entity referred to in paragraphs (1)(g) to (i) from a person who is not a member of the company’s group; (b) acquire control of an entity referred to in paragraph (1)(j) or (4)(b), other than an entity whose activities are limited to the activities of one or more of the following entities, if the control is acquired from an entity referred to in any of paragraphs (1)(a) to (f) that is not a member of the company’s group: (i) a factoring entity, or (ii) a financial leasing entity; (c) acquire control of, or acquire or increase a substantial investment in, an entity whose business includes one or more of the activities referred to in paragraph (2)(d); (d) acquire control of, or acquire or increase a substantial investment in, an entity that engages in an activity described in paragraph 410(1)(c) or (c.1); or (e) acquire control of, or acquire or increase a substantial investment in, an entity engaging in an activity prescribed for the purposes of paragraph (2)(f).
Superintendent’s approval
(6) Subject to subsection (7) and the regulations, a company may not acquire control of, or acquire or increase a substantial investment in, an entity referred to in any of paragraphs (1)(g) to (j) and (4)(b) and (c)
Institutions f unless the company obtains the approval of the Superintendent.
Exception
(7) Subsection (6) does not apply in respect of a particular transaction if (a) the company is acquiring control of an entity whose business includes an activity referred to in paragraph (2)(b), other than a specialized financing entity; (b) the company is acquiring control of an entity whose activities are limited to the activities of a factoring entity or a financial leasing entity; or (c) the Minister has approved the transaction under subsection (5) or is deemed to have approved it under subsection 454(1).
Control not required
(8) A company need not control an entity referred to in paragraph (1)(j), or an entity that is incorporated or formed otherwise than by or under an Act of Parliament or of the legislature of a province, if the laws or customary business practices of the country under the laws of which the entity was incorporated or formed do not permit the company to control the entity.
Prohibition on giving up control in fact
(9) A company that, under subsection (4), controls an entity may not, without the prior written approval of the Minister, give up control, within the meaning of paragraph 3(1)(d), of the entity while it continues to control the entity.
Giving up control
(10) A company that, under subsection (4), controls an entity may, with the prior written approval of the Superintendent, give up control of the entity while keeping a substantial investment in the entity if (a) the company is permitted to do so by regulations made under paragraph 459(c); or (b) the entity meets the conditions referred to in subparagraph (4)(c)(iii).
Subsections do not apply
(11) If a company controls, within the meaning of paragraph 3(1)(a), (b) or (c), an entity, subsections (5) and (6) do not apply in respect of any subsequent increases by the company of its substantial investment in the
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entity so long as the company continues to control the entity. Approval for indirect investments
454. (1) If a company obtains the approval of the Minister under subsection 453(5) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase, the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Minister under subsection 453(5) or the Superintendent under subsection 453(6) and that indirect acquisition or increase is disclosed to the Minister in writing before the approval is obtained, the company is deemed to have obtained the approval of the Minister or the Superintendent for that indirect acquisition or increase.
Approval for indirect investments
(2) If a company obtains the approval of the Superintendent under subsection 453(6) to acquire control of, or to acquire or increase a substantial investment in, an entity and, through that acquisition or increase the company indirectly acquires control of, or acquires or increases a substantial investment in, another entity that would require the approval of the Superintendent under that subsection and that indirect acquisition or increase is disclosed to the Superintendent in writing before the approval is obtained, the company is deemed to have obtained the approval of the Superintendent for that indirect acquisition or increase.
Undertakings
455. (1) If a company controls a permitted entity, other than an entity referred to in any of paragraphs 453(1)(a) to (f), the company shall provide the Superintendent with any undertakings that the Superintendent may require regarding (a) the activities of the entity; and (b) access to information about the entity.
Undertakings
(2) If a company acquires control of an entity referred to in any of paragraphs 453(1)(g) to (j), the company shall provide the Superintendent with any undertakings concerning the entity that the Superintendent may require.
Institutions f
Agreements with other jurisdictions
(3) The Superintendent may enter into an agreement with the appropriate official or public body responsible for the supervision of an entity referred to in any of paragraphs 453(1)(g) to (j) in each province or in any other jurisdiction concerning any matters referred to in paragraphs (1)(a) and (b) or any other matter the Superintendent considers appropriate.
Access to records
(4) Despite any other provision of this Part, a company shall not control a permitted entity, other than an entity referred to in any of paragraphs 453(1)(a) to (f), unless, in the course of the acquisition of control or within a reasonable time after the control is acquired, the company obtains from the permitted entity an undertaking to provide the Superintendent with reasonable access to the records of the permitted entity. Exceptions and Exclusions
Temporary investments in entity
456. (1) Subject to subsection (4), a company may, by way of a temporary investment, acquire control of, or acquire or increase a substantial investment in, an entity but, within two years, or any other period that may be specified or approved by the Superintendent, after acquiring control or after acquiring or increasing the substantial investment, as the case may be, it shall do all things necessary to ensure that it no longer controls the entity or has a substantial investment in the entity.
Transitional
(2) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company subsequently increases that substantial investment by way of a temporary investment, the company shall, within two years, or any other period that is specified or approved by the Superintendent, after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
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Extension
(3) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of two years, or the other period specified or approved by the Superintendent, that is referred to in subsection (1) or (2) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Temporary investment
(4) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Minister under subsection 453(5) is required, the company must, within 90 days after acquiring control or after acquiring or increasing the substantial investment, (a) apply to the Minister for approval to retain control of the entity or to continue to hold the substantial investment in the entity for a period specified by the Minister or for an indeterminate period on any terms and conditions that the Minister considers appropriate; or (b) do all things necessary to ensure that, on the expiry of the 90 days, it no longer controls the entity or does not have a substantial investment in the entity.
Indeterminate extension
(5) If a company, by way of temporary investment, acquires control of, or acquires or increases a substantial investment in, an entity for which the approval of the Superintendent under subsection 453(6) is required, the Superintendent may, in the case of any particular company that makes an application under this subsection, permit the company to retain control of the entity or to continue to hold the substantial investment in the entity for an indeterminate period, on any terms and conditions that the Superintendent considers necessary.
Loan workouts
457. (1) Despite anything in this Part, if a company or any of its subsidiaries has made a loan to an entity and, under the terms of the agreement between the company, or any of its subsidiaries, and the entity with respect to the loan and any other documents governing the terms of the loan, a default has occurred, the company may acquire
Institutions f (a) if the entity is a body corporate, all or any of the shares of the body corporate; (b) if the entity is an unincorporated entity, all or any of the ownership interests in the entity; (c) all or any of the shares or all or any of the ownership interests in any entity that is an affiliate of the entity; or (d) all or any of the shares of a body corporate that is primarily engaged in holding shares of, ownership interests in or assets acquired from the entity or any of its affiliates.
Obligation of company
(2) If a company acquires shares or ownership interests in an entity under subsection (1), the company shall, within five years after acquiring them do all things necessary to ensure that the company does not control the entity or have a substantial investment in the entity.
Transitional
(3) Despite subsection (1), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of an investment made under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception — entities controlled by foreign governments
(5) Despite anything in this Part, if a company has made a loan to, or holds a debt obligation of, the government of a foreign country or an entity controlled by the government of a foreign country and, under the terms of the agreement between the company and
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that government or the entity, as the case may be, and any other documents governing the terms of the loan or debt obligation, a default has occurred, the company may acquire all or any of the shares of, or ownership interests in, that entity or in any other entity designated by that government, if the acquisition is part of a debt restructuring program of that government. Time for holding shares
(6) If a company acquires any shares or ownership interests under subsection (5), the company may, on any terms and conditions that the Superintendent considers appropriate, hold those shares or ownership interests for an indeterminate period or for any other period that the Superintendent may specify.
Exception
(7) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 453, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Realizations
458. (1) Despite anything in this Act, a company may acquire (a) an investment in a body corporate, (b) an interest in an unincorporated entity, or (c) an interest in real property, if the investment or interest is acquired through the realization of a security interest held by the company or any of its subsidiaries.
Disposition
(2) Subject to subsection 76(2), if a company acquires control of, or acquires a substantial investment in, an entity by way of the realization of a security interest held by the company or any of its subsidiaries, the company shall, within five years after the day on which control or the substantial investment is acquired, do all things necessary, or cause its subsidiary to do all things necessary, as the case may be, to ensure that the company no
Institutions f longer controls the entity or has a substantial investment in the entity.
Transitional
(3) Despite subsection (2), if a company that was in existence immediately before June 1, 1992 had an investment in an entity on September 27, 1990 that is a substantial investment within the meaning of section 10 and the company later increases that substantial investment by way of a realization of a security interest under subsection (1), the company shall, within five years after increasing the substantial investment, do all things necessary to ensure that its substantial investment in the entity is no greater than it was on September 27, 1990.
Extension
(4) The Superintendent may, in the case of any particular company that makes an application under this subsection, extend the period of five years referred to in subsection (2) or (3) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
Exception
(5) If, under subsection (1), a company acquires control of, or acquires or increases a substantial investment in, an entity that it would otherwise be permitted to acquire or increase under section 453, the company may retain control of the entity or continue to hold the substantial investment for an indeterminate period if the approval in writing of the Minister is obtained before the end of the period referred to in subsection (2) or (3), including any extension of it granted under subsection (4).
Regulations restricting ownership
459. The Governor in Council may make regulations (a) for the purposes of subsection 453(4), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which that subsection does not apply or the companies or other entities in respect of which that subsection does not apply, including prescribing companies or other entities on the basis of the activities they engage in;
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(b) for the purposes of subsection 453(5) or (6), permitting the acquisition of control or the acquisition or increase of substantial investments, or prescribing the circumstances under which either of those subsections does not apply or the companies or other entities in respect of which either of those subsections does not apply, including prescribing companies or other entities on the basis of the activities they engage in; (c) for the purposes of subsection 453(10), permitting a company to give up control of an entity; and (d) restricting the ownership by a company of shares of a body corporate or of ownership interests in an unincorporated entity under sections 453 to 458 and imposing terms and conditions applicable to companies that own such shares or interests.
Portfolio Limits Exclusion from portfolio limits
460. (1) Subject to subsection (3), the value of all loans, investments and interests acquired by a company and any of its prescribed subsidiaries under section 457 or as a result of a realization of a security interest is not to be included in calculating the value of loans, investments and interests of the company and its prescribed subsidiaries under sections 461 to 466 (a) for a period of twelve years following the day on which the interest was acquired, in the case of an interest in real property; and (b) for a period of five years after the day on which the loan, investment or interest was acquired, in the case of a loan, investment or interest, other than an interest in real property.
Extension
(2) The Superintendent may, in the case of any particular company, extend any period referred to in subsection (1) for any further period or periods, and on any terms and conditions, that the Superintendent considers necessary.
2001 Exception
Institutions f (3) Subsection (1) does not apply to an investment or interest described in that subsection if the investment or interest is defined by a regulation made under section 467 to be an interest in real property and (a) the company or the subsidiary acquired the investment or interest as a result of the realization of a security interest securing a loan that was defined by a regulation made under section 467 to be an interest in real property; or (b) the company or the subsidiary acquired the investment or interest under section 457 as a result of a default referred to in that section in respect of a loan that was defined by a regulation made under section 467 to be an interest in real property.
Commercial Loans Lending limit: companies with regulatory capital of $25 million or less
461. Subject to section 462, a company that has twenty-five million dollars or less of regulatory capital shall not, and shall not permit its prescribed subsidiaries to, make or acquire a commercial loan or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries exceeds, or the making or acquisition of the commercial loan or acquisition of control of the entity would cause the aggregate value of all commercial loans held by the company and its prescribed subsidiaries to exceed, 5 per cent of the total assets of the company.
Lending limit: regulatory capital over $25 million
462. A company that has twenty-five million dollars or less of regulatory capital that is controlled by a financial institution that has the equivalent of more than twenty-five million dollars of regulatory capital or a company that has more than twenty-five million dollars of regulatory capital may make or acquire commercial loans or acquire control of a permitted entity that holds commercial loans if the aggregate value of all commercial loans held by the company and its prescribed subsidiaries would thereby exceed the limit set out in section 461 only with the prior approval in writing of the Superintendent and in accordance with any terms and
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conditions that the Superintendent may specify. Meaning of ‘‘total assets’’
463. For the purposes of sections 461 and 462, ‘‘total assets’’, in respect of a company, has the meaning given to that expression by the regulations. Real Property
Limit on total property interest
464. A company shall not, and shall not permit its prescribed subsidiaries to, purchase or otherwise acquire an interest in real property or make an improvement to any real property in which the company or any of its prescribed subsidiaries has an interest if the aggregate value of all interests of the company in real property exceeds, or the acquisition of the interest or the making of the improvement would cause that aggregate value to exceed the prescribed percentage of the regulatory capital of the company. Equities
Limits on equity acquisitions
465. A company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire any participating shares of any body corporate or any ownership interests in any unincorporated entity, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or (b) acquire control of an entity that holds shares or ownership interests referred to in paragraph (a), if the aggregate value of (c) all participating shares, excluding participating shares of permitted entities in which the company has a substantial investment, and (d) all ownership interests in unincorporated entities, other than ownership interests in permitted entities in which the company has a substantial investment, beneficially owned by the company and its prescribed subsidiaries exceeds, or the purchase or acquisition would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the company.
Institutions f Aggregate Limit
Aggregate limit
466. A company shall not, and shall not permit its prescribed subsidiaries to, (a) purchase or otherwise acquire (i) participating shares of a body corporate, other than those of a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, (ii) ownership interests in an unincorporated entity, other than ownership interests in a permitted entity in which the company has, or by virtue of the acquisition would have, a substantial investment, or (iii) interests in real property, or (b) make an improvement to real property in which the company or any of its prescribed subsidiaries has an interest if the aggregate value of (c) all participating shares and ownership interests referred to in subparagraphs (a)(i) and (ii) that are beneficially owned by the company and its prescribed subsidiaries, and (d) all interests of the company in real property referred to in subparagraph (a)(iii) exceeds, or the acquisition or the making of the improvement would cause that aggregate value to exceed, the prescribed percentage of the regulatory capital of the company.
Miscellaneous Regulations
467. For the purposes of this Part, the Governor in Council may make regulations (a) defining the interests of a company in real property; (b) determining the method of valuing those interests; or (c) exempting classes of companies from the application of sections 464, 465 and 466.
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Divestment order
468. (1) The Superintendent may, by order, direct a company to dispose of, within any period that the Superintendent considers reasonable, any loan, investment or interest made or acquired in contravention of this Part.
Divestment order
(2) If, in the opinion of the Superintendent, (a) an investment by a company or any entity it controls in shares of a body corporate or in ownership interests in an unincorporated entity enables the company to control the body corporate or the unincorporated entity, or (b) the company or any entity it controls has entered into an arrangement whereby it or its nominee may veto any proposal put before (i) the board of directors of a body corporate, or (ii) a similar group or committee of an unincorporated entity, or whereby no proposal may be approved except with the consent of the company, the entity it controls or the nominee, the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer controls the body corporate or unincorporated entity or has the ability to veto or otherwise defeat any proposal referred to in paragraph (b).
Divestment order
(3) If (a) a company (i) fails to provide or obtain within a reasonable time the undertakings referred to in subsection 455(1), (2) or (4), or (ii) is in default of an undertaking referred to in subsection 455(1) or (2) and the default is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default, or (b) a permitted entity referred to in subsection 455(4) is in default of an undertaking referred to in that subsection and the default
Institutions f is not remedied within ninety days after the day of receipt by the company of a notice from the Superintendent of the default, the Superintendent may, by order, require the company, within any period that the Superintendent considers reasonable, to do all things necessary to ensure that the company no longer has a substantial investment in the entity to which the undertaking relates.
Exception
(4) Subsection (2) does not apply in respect of an entity in which a company has a substantial investment permitted by this Part.
Deemed temporary investment
469. If a company controls or has a substantial investment in an entity as permitted by this Part and the company becomes aware of a change in the business or affairs of the entity that, if the change had taken place before the acquisition of control or of the substantial investment, would have caused the entity not to be a permitted entity or would have been such that approval for the acquisition would have been required under subsection 453(5) or (6), the company is deemed to have acquired, on the day the company becomes aware of the change, a temporary investment in respect of which section 456 applies.
Asset transactions
470. (1) A company shall not, and shall not permit its subsidiaries to, without the approval of the Superintendent, acquire assets from a person or transfer assets to a person if A+B> C where A is the value of the assets; B is the total value of all assets that the company and its subsidiaries acquired from or transferred to that person in the twelve months ending immediately before the acquisition or transfer; and C is ten per cent of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer.
Exception
(2) The prohibition in subsection (1) does not apply in respect of
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(a) an asset that is a debt obligation referred to in subparagraphs (b)(i) to (v) of the definition ‘‘commercial loan’’ in subsection 449(1); or (b) a transaction or series of transactions by a company with another financial institution as a result of the company’s participation in one or more syndicated loans with that financial institution. Exception
(3) The approval of the Superintendent is not required if (a) the company sells assets under a sale agreement that is approved by the Minister under section 241; (b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 453(5) is required or the approval of the Superintendent under subsection 453(6) is required; or (c) the transaction has been approved by the Minister under subsection 678(1) of the Bank Act or subsection 715(1) of the Insurance Companies Act.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement.
Institutions f
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer, or if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement.
Transitional
471. Nothing in this Part requires (a) the termination of a loan made before February 7, 2001; (b) the termination of a loan made after that date as a result of a commitment made before that date; (c) the disposal of an investment made before that date; or (d) the disposal of an investment made after that date as a result of a commitment made before that date. But if the loan or investment would be precluded or limited by this Part, the amount of the loan or investment may not, except as provided in subsections 456(2), 457(3) and 458(3), be increased after that date. 551. (1) Subsection 475(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c) and by adding the following after paragraph (d): (e) transactions approved by the Minister under subsection 678(1) of the Bank Act or subsection 715(1) of the Insurance Companies Act; or
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(f) if a company is controlled by a widely held bank holding company or a widely held insurance holding company, transactions approved by the Superintendent that are entered as part of, or in the course of, a restructuring of the holding company or of any entity controlled by it. (2) Subsection 475(4) of the Act is replaced by the following: Exception for holding body corporate
(4) A holding body corporate of a company is not a related party of a company if the holding body corporate is a Canadian financial institution that is referred to in any of paragraphs (a) to (d) of the definition ‘‘financial institution’’ in section 2. 552. The Act is amended by adding the following after section 483:
Transactions with holding companies
483.1 (1) Subject to subsection (2) and sections 483.2 and 483.3, if a widely held insurance holding company or a widely held bank holding company has a significant interest in any class of shares of a company, the company may enter into any transaction with the holding company or with any other related party of the company that is an entity in which the holding company has a substantial investment.
Policies and procedures
(2) The company shall adhere to policies and procedures established under subsection 199(3) when entering into the transaction.
Restriction
483.2 (1) If a company enters into a transaction with a related party of the company with whom the company may enter into transactions under subsection 483.1(1) and that is not a federal financial institution, the company shall not directly or indirectly make, take an assignment of or otherwise acquire a loan to the related party, make an acceptance, endorsement or other guarantee on behalf of the related party or make an investment in the securities of the related party if, immediately following the transaction, the aggregate financial exposure, as that expression is defined by the regulations, of the company would exceed (a) in respect of all transactions of the company with the related party, the prescribed percentage of the company’s regu2001
Institutions f latory capital or, if no percentage is prescribed, five per cent of the company’s regulatory capital; or (b) in respect of all transactions of company with such related parties of company, the prescribed percentage of company’s regulatory capital or, if percentage is prescribed, ten per cent of company’s regulatory capital.
Order
the the the no the
(2) If the Superintendent is of the opinion that it is necessary for the protection of the interests of the depositors and creditors of a company, the Superintendent may, by order, (a) reduce the limit in paragraph (1)(a) or (b) that would otherwise apply to the company; and (b) impose limits on transactions by the company with related parties with whom the company may enter into transactions under subsection 483.1(1) that are federal financial institutions.
Order
(3) The Superintendent may, by order, increase the limit in paragraph (1)(a) or (b) that would otherwise apply to a company on transactions by the company with related parties that are financial institutions that are regulated in a manner acceptable to the Superintendent.
Assets transactions
483.3 (1) Despite subsection 482(3), a company shall not, without the approval of the Superintendent and its conduct review committee, directly or indirectly acquire assets from a related party of the company with whom the company may enter into transactions under subsection 483.1(1) that is not a federal financial institution, or directly or indirectly transfer assets to such a related party if A+B> C where A is the value of the assets; B is the total value of all assets that the company directly or indirectly acquired from, or directly or indirectly transferred to, that related party in the twelve months ending immediately before the acquisition or transfer; and
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C is five per cent, or the percentage that may be prescribed, of the total value of the assets of the company, as shown in the last annual statement of the company prepared before the acquisition or transfer. Exception
(2) The prohibition in subsection (1) does not apply in respect of assets purchased or otherwise acquired under subsection 482(1), assets sold under subsection 482(2) or any other assets as may be prescribed.
Exception
(3) The approval of the Superintendent is not required if (a) the company sells assets under a sale agreement that is approved by the Minister under section 241; or (b) the company or its subsidiary acquires shares of, or ownership interests in, an entity for which the approval of the Minister under Part VII or subsection 453(5) is required or the approval of the Superintendent under subsection 453(6) is required.
Value of assets
(4) For the purposes of ‘‘A’’ in subsection (1), the value of the assets is (a) in the case of assets that are acquired, the purchase price of the assets or, if the assets are shares of, or ownership interests in, an entity the assets of which will be included in the annual statement of the company after the acquisition, the fair market value of the assets; and (b) in the case of assets that are transferred, the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets as stated in the annual statement.
Total value of all assets
(5) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has acquired during the period of twelve months referred to in subsection (1) is the purchase price of the assets or,
Institutions f if the assets are shares of, or ownership interests in, an entity the assets of which immediately after the acquisition were included in the annual statement of the company, the fair market value of the assets of the entity at the date of the acquisition.
Total value of all assets
(6) For the purposes of subsection (1), the total value of all assets that the company or any of its subsidiaries has transferred during the period of twelve months referred to in subsection (1) is the book value of the assets as stated in the last annual statement of the company prepared before the transfer or, if the assets are shares of, or ownership interests in, an entity the assets of which were included in the last annual statement of the company before the transfer, the value of the assets of the entity as stated in the annual statement. 553. Paragraph 489(2)(b) of the Act is replaced by the following: (b) in respect of any other transaction, (i) terms and conditions, including those relating to price, rent or interest rate, that might reasonably be expected to apply in a similar transaction in an open market under conditions requisite to a fair transaction between parties who are at arm’s length and who are acting prudently, knowledgeably and willingly, or (ii) if the transaction is one that would not reasonably be expected to occur in an open market between parties who are at arm’s length, terms and conditions, including those relating to price, rent or interest rate, that would reasonably be expected to provide the company with fair value, having regard to all the circumstances of the transaction, and that would be consistent with the parties to the transaction acting prudently, knowledgeably and willingly. 554. Section 494 of the Act is replaced by the following:
Order to void contract or to grant other remedy
494. (1) If a company enters into a transaction that it is prohibited from entering into by this Part, the company or the Superintendent may apply to a court for an order setting aside the transaction or for any other appropriate
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remedy, including an order directing that the related party of the company involved in the transaction account to the company for any profit or gain realized or that any director or senior officer of the company who authorized the transaction compensate the company for any loss or damage incurred by the company. Time limit
(2) An application under subsection (1) in respect of a particular transaction may only be made within the period of three months following the day the notice referred to in section 493 in respect of the transaction is given to the Superintendent or, if no such notice is given, the day the Superintendent becomes aware of the transaction.
Certificate
(3) For the purposes of subsection (2), a document purporting to have been issued by the Superintendent, certifying the day on which the Superintendent became aware of the transaction, shall, in the absence of evidence to the contrary, be received in evidence as conclusive proof of that fact without proof of the signature or of the official character of the person appearing to have signed the document and without further proof. 555. The title of Part XII of the Act is replaced by the following: REGULATION OF COMPANIES — SUPERINTENDENT 556. Sections 500 and 501 of the Act are replaced by the following:
Copy of by-laws
500. A company shall send to the Superintendent, within thirty days after the coming into effect of a by-law or an amendment to a by-law, a copy of the by-law or amendment.
Register of companies
501. (1) The Superintendent shall, in respect of each company for which an order approving the commencement and carrying on of business has been made, cause a register to be maintained containing a copy of (a) the incorporating instrument of the company; and (b) the information referred to in paragraphs 499(1)(a), (c) and (e) to (h) contained in the latest return sent to the Superintendent under section 499.
2001 Form
Institutions f (2) The register may be maintained in (a) a bound or loose-leaf form or in a photographic film form; or (b) a system of mechanical or electronic data processing or any other information storage device that is capable of reproducing any required information in intelligible written form within a reasonable time.
Access
(3) Persons are entitled to reasonable access to the register and may make copies of or take extracts from the information in it.
Evidence
(4) A statement containing information in the register and purporting to be certified by the Superintendent is admissible in evidence in all courts as proof, in the absence of evidence to the contrary, of the facts stated in the statement without proof of the appointment or signature of the Superintendent.
1996, c. 6, s. 122(1)
557. Subsection 503(1) of the Act is replaced by the following:
Confidential information
503. (1) Subject to sections 504 and 504.1, all information regarding the business or affairs of a company, or regarding a person dealing with a company, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly.
1996, c. 6, s. 124
558. Section 504.4 of the Act is replaced by the following:
Report respecting disclosure
504.4 The Superintendent shall prepare a report, to be included in the report referred to in section 40 of the Office of the Superintendent of Financial Institutions Act, respecting the disclosure of information by companies and describing the state of progress made in enhancing the disclosure of information in the financial services industry. 559. Subsection 505(1) of the Act is replaced by the following:
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505. (1) The Superintendent, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry into the business and affairs of each company that the Superintendent considers to be necessary or expedient to determine whether the company is complying with the provisions of this Act and whether the company is in a sound financial condition and, after the conclusion of each examination and inquiry, shall report on it to the Minister. 560. The Act is amended by adding the following after the heading ‘‘Remedial Powers’’ after section 506:
Prudential Agreements Prudential agreement
506.1 The Superintendent may enter into an agreement, called a ‘‘prudential agreement’’, with a company for the purposes of implementing any measure designed to maintain or improve its safety and soundness. 561. Subsection 509(1) of the Act is replaced by the following:
Court enforcement
509. (1) Where a company or person (a) is contravening or has failed to comply with a prudential agreement entered into under section 506.1 or a direction of the Superintendent issued to the company or person pursuant to subsection 507(1) or (3), (b) is contravening this Act, or (c) has omitted to do any thing under this Act that is required to be done by or on the part of the company or person, the Superintendent may, in addition to any other action that may be taken under this Act, apply to a court for an order requiring the company or person to comply with the prudential agreement or direction, cease the contravention or do any thing that is required to be done, and on such application the court may so order and make any other order it thinks fit.
1996, c. 6, s. 126
562. The heading before section 509.1 of the Act is replaced by the following:
Institutions f Disqualification and Removal of Directors or Senior Officers
Meaning of ‘‘senior officer’’
509.01 In sections 509.1 and 509.2, ‘‘senior officer’’ means the chief executive officer, secretary, treasurer or controller of a company or any other officer reporting directly to the company’s board of directors or chief executive officer.
1996, c. 6, s. 126
563. (1) Paragraphs 509.1(1)(a) and (b) of the Act are replaced by the following: (a) that has been notified by the Superintendent that this section applies to it where the company is subject to measures designed to maintain or improve its safety and soundness, which measures (i) have been specified by the Superintendent by way of conditions or limitations in respect of the order approving the commencement and carrying on of the company’s business, or (ii) are contained in a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent; or (b) that is the subject of a direction made under section 507 or an order made under subsection 473(3).
1996, c. 6, s. 126
(2) Paragraph 509.1(2)(b) of the Act is replaced by the following: (b) each person who has been selected by the company for appointment as a senior officer, and
1996, c. 6, s. 126
(3) The portion of subsection 509.1(2) of the French version of the Act after paragraph (c) is replaced by the following: Elle lui communique également les renseignements personnels qui les concernent et les renseignements sur leur expérience et leur dossier professionnel qu’il peut exiger.
1996, c. 6, s. 126
(4) Subsections 509.1(4) and (5) of the Act are replaced by the following:
Disqualification or removal
(4) If the Superintendent is of the opinion that, on the basis of the competence, business record, experience, conduct or character of a person, he or she is not suitable to hold that position, the Superintendent may, by order
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(a) in the case of a person referred to in paragraph (2)(a) or (b), disqualify the person from being elected or appointed as a director of a company or from being appointed as a senior officer; or (b) in the case of a person referred to in paragraph (2)(c), remove the person from office as a director of the company. Risk of prejudice
(4.1) In forming an opinion under subsection (4), the Superintendent must consider whether the interests of the depositors and creditors of the company would likely be prejudiced if the person were to take office or continue to hold office, as the case may be.
Representations may be made
(5) The Superintendent must in writing notify the person concerned and the company of any action that the Superintendent proposes to take under subsection (4) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
1996, c. 6, s. 126
(5) Subsection 509.1(6) of the English version of the Act is replaced by the following:
Prohibition
(6) Where an order has been made under subsection (4) (a) disqualifying a person from being elected or appointed to a position, the person shall not be, and the company shall not permit the person to be, elected or appointed to the position; or (b) removing a director from office, the person shall not continue to hold, and the company shall not permit the person to continue to hold, office as a director. 564. The Act is amended by adding the following after section 509.1:
Removal of directors or senior officers
509.2 (1) The Superintendent may, by order, remove a person from office as a director or senior officer of a company if the Superintendent is of the opinion that the person is not suitable to hold that office (a) on the basis of the competence, business record, experience, conduct or character of the person; or
Institutions f (b) because the person has contravened or, by action or negligence, has contributed to the contravention of (i) this Act or the regulations made under it, (ii) a direction made under section 507, (iii) an order made under subsection 473(3), (iv) a condition or limitation in respect of the order approving the commencement and carrying on the company’s business, or (v) a prudential agreement entered into under section 506.1 or an undertaking given by the company to the Superintendent.
Risk of prejudice
(2) In forming an opinion under subsection (1), the Superintendent must consider whether the interests of the depositors and creditors of the company have been or are likely to be prejudiced by the person’s holding office as a director or senior officer.
Representations may be made
(3) The Superintendent must in writing notify the person concerned and the company of any removal order that the Superintendent proposes to make under subsection (1) and must afford them an opportunity within 15 days after the date of the notice, or within any longer period that the Superintendent allows, to make representations to the Superintendent in relation to the matter.
Suspension
(4) If the Superintendent is of the opinion that the public interest may be prejudiced by the director or senior officer continuing to exercise the powers or carry out the duties and functions of that office during the period for making representations, the Superintendent may make an order suspending the director or senior officer. The suspension may not extend beyond 10 days after the expiration of that period.
Notice of order
(5) The Superintendent shall, without delay, notify the director or senior officer, as the case may be, and the company of a removal order or suspension order.
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Consequences of removal order
(6) The director or senior officer, as the case may be, ceases to hold that office as of the date the removal order is made or any later date specified in the order.
Appeal
(7) The director or senior officer, as the case may be, or the company may, within 30 days after the date of receipt of notice of the removal order under subsection (5), or within any longer period that the Court allows, appeal the matter to the Federal Court.
Powers of Federal Court
(8) The Federal Court, in the case of an appeal, may dismiss the appeal or set aside the removal order.
Order not stayed by appeal
(9) A removal order is not stayed by an appeal.
1996, c. 6, s. 127
565. (1) Paragraph 510(1.1)(b) of the Act is repealed. (2) Subsection 510(1.1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (f), by adding the word ‘‘or’’ at the end of paragraph (g) and by adding the following after paragraph (g): (h) in the opinion of the Superintendent, any other state of affairs exists in respect of the company that may be materially prejudicial to the interests of the company’s depositors or creditors or the beneficiaries of any trust under the company’s administration, including where proceedings under a law relating to bankruptcy or insolvency have been commenced in Canada or elsewhere in respect of the holding body corporate of the company. 566. The Act is amended by adding the following after section 520: PART XII.1 REGULATION OF COMPANIES — COMMISSIONER
Required information
520.1 A company shall provide the Commissioner with the information at the times and in the form that the Commissioner may require for the purposes of the administration of the Financial Consumer Agency of Canada Act and the consumer provisions.
Institutions f
Confidential information
520.2 (1) Subject to subsection (2), information regarding the business or affairs of a company or regarding persons dealing with one that is obtained by the Commissioner or by any person acting under the direction of the Commissioner, in the course of the exercise or performance of powers, duties and functions referred to in subsection 5(1) of the Financial Consumer Agency of Canada Act, and any information prepared from that information, is confidential and shall be treated accordingly.
Disclosure permitted
(2) If the Commissioner is satisfied that the information will be treated as confidential by the agency, body or person to whom it is disclosed, subsection (1) does not prevent the Commissioner from disclosing it (a) to any government agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (b) to any other agency or body that regulates or supervises financial institutions, for purposes related to that regulation or supervision; (c) to the Canada Deposit Insurance Corporation for purposes related to its operation; and (d) to the Deputy Minister of Finance or any officer of the Department of Finance authorized in writing by the Deputy Minister of Finance or to the Governor of the Bank of Canada or any officer of the Bank of Canada authorized in writing by the Governor of the Bank of Canada, for the purposes of policy analysis related to the regulation of financial institutions.
Examination
520.3 (1) The Commissioner, from time to time, but at least once in each calendar year, shall make or cause to be made any examination and inquiry that the Commissioner considers necessary for the purposes of satisfying the Commissioner that the applicable consumer provisions are being complied with and, after the conclusion of each examination and inquiry, shall report on it to the Minister.
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(2) The Commissioner or a person acting under the Commissioner’s direction in carrying out his or her duties under subsection (1) (a) has a right of access to any records, including electronic records, of a company; and (b) may require the directors or officers of a company to provide information and explanations, to the extent that they are reasonably able to do so, in respect of any matter subject to examination or inquiry under subsection (1).
Power of Commissioner on inquiry
520.4 The Commissioner, in carrying out his or her duties in relation to consumer provisions, has all the powers of a person appointed as a commissioner under Part II of the Inquiries Act for the purpose of obtaining evidence under oath, and may delegate those powers to any person acting under the Commissioner’s direction.
Compliance agreement
520.5 The Commissioner may enter into an agreement, called a ‘‘compliance agreement’’, with a company for the purposes of implementing any measure designed to further compliance by it with the consumer provisions. 567. The Act is amended by adding the following after section 527.1: Approvals: Terms, Conditions and Undertakings
Definition of ‘‘approval’’
527.2 (1) In this section, ‘‘approval’’ includes any consent, order, exemption, extension or other permission granted by the Minister or the Superintendent under this Act, and includes the issuance of letters patent.
Minister — terms, conditions and undertakings
(2) In addition to any other action that may be taken under this Act, the Minister may, in granting an approval, impose such terms and conditions or require such undertaking as the Minister considers necessary, including any terms, conditions or undertaking specified by the Superintendent to maintain or improve the safety and soundness of any financial institution regulated under an Act of Parliament and to which the approval relates or that may be affected by it.
Institutions f
Superintendent — terms, conditions and undertakings
(3) In addition to any other action that may be taken under this Act, the Superintendent may, in granting an approval, impose such terms and conditions or require such undertaking as the Superintendent considers necessary.
Effect of non-compliance on approval
(4) Unless otherwise expressly provided in this Act, a failure to comply with a term or condition or an undertaking imposed or required under any provision of this Act does not invalidate the approval to which the term, condition or undertaking relates.
Non-compliance
(5) In addition to any other action that may be taken under this Act, in case of non-compliance by a person with a term, condition or undertaking imposed or required under any provision of this Act, the Minister or Superintendent, as the case may be, may (a) revoke, suspend or amend the approval to which the term, condition or undertaking relates; or (b) apply to a court for an order directing the person to comply with the term, condition or undertaking, and on such application the court may so order and make any other order it thinks fit.
Representations
(6) Before taking any action under subsection (5), the Minister or the Superintendent, as the case may be, shall afford the person concerned a reasonable opportunity to make representations.
Revocation, suspension or amendment
(7) At the request of the person concerned, the Minister or the Superintendent, as the case may be, may revoke, suspend or amend any terms or conditions imposed by him or her or may revoke or suspend an undertaking given to him or her or approve its amendment. 568. The Act is amended by adding the following after section 529: Applications to Superintendent
Content of applications
529.1 (1) The following applications to the Superintendent must contain the information, material and evidence that the Superintendent may require: (a) applications for approval under subsection 68(1), 75(2), 78(4), 82(5), 83(1), 174(1), 222(3), 421(1), 453(6) or (10),
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456(1) or (2) or 470(1), subparagraph 475(2)(b)(vi), section 478 or subsection 482(3) or (4) or 483.3(1); (b) applications for consent under subsection 74(1); (c) applications for exemptions under subsection 160.05(3) or 250(1); and (d) applications for extensions of time under subsection 456(3) or (5), 457(4) or 458(4).
Receipt
(2) Without delay after receiving the application, the Superintendent shall send a receipt to the applicant certifying the date on which it was received.
Notice of decision to applicant
(3) Subject to subsection (4), the Superintendent shall, within a period of thirty days after the receipt of the application, send to the applicant (a) a notice approving the application, subject to any terms and conditions that the Superintendent considers appropriate; or (b) if the Superintendent is not satisfied that it should be approved, a notice to that effect.
Extension of period
(4) If the Superintendent is unable to complete the consideration of the application within the period referred to in subsection (3), the Superintendent shall, within that period, send a notice to the applicant informing the applicant that the Superintendent has extended the period for a further period set out in the notice.
Deemed approval
(5) If the applicant does not receive the notice required by subsection (3) and, where applicable, subsection (4), within the required period, the Superintendent is deemed to have approved the application and granted the approval, consent, extension or exemption to which the application relates, regardless of whether the approval, consent, extension or exemption is to be in writing or not. 569. Section 531 of the Act is amended by adding the following after paragraph (f): (f.1) respecting, for any purpose of any provision of the Act, the determination of the equity of a company;
Institutions f 570. The Act is amended by adding the following after section 535:
Limitation period
535.1 (1) Proceedings by way of summary conviction in respect of an offence under a provision of this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known, in the case of an offence under a consumer provision, to the Commissioner and, in any other case, to the Superintendent.
Certificate of Superintendent or Commissioner
(2) A document appearing to have been issued by the Superintendent or Commissioner, as the case may be, certifying the day on which the subject-matter of any proceedings became known to the Superintendent or Commissioner is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it. 571. Section 537 of the Act is replaced by the following:
Restraining or compliance order
537. (1) If a company or any director, officer, employee or agent of a company does not comply with any provision of this Act or the regulations other than a consumer provision, or of the incorporating instrument or any by-law of the company, the Superintendent, any complainant or any creditor of the company may, in addition to any other right that person has, apply to a court for an order directing the company, director, officer, employee or agent to comply with — or restraining the company, director, officer, employee or agent from acting in breach of — the provision and, on the application, the court may so order and make any further order it thinks fit.
Compliance or restraining order — consumer provisions
(2) If a company or any director, officer, employee or agent of a company does not comply with any applicable consumer provision, the Commissioner or any complainant may, in addition to any other right that person has, apply to a court for an order directing the company, director, officer, employee or agent to comply with — or restraining the company, director, officer, employee or agent from acting in breach of — the consumer provision
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and, on the application, the court may so order and make any further order it thinks fit. AMENDMENTS TO OTHER ACTS R.S., c. B-3
Bankruptcy and Insolvency Act
1992, c. 27, s. 3(2)
572. (1) Paragraph (b) of the definition ‘‘bank’’ in subsection 2(1) of the Bankruptcy and Insolvency Act is replaced by the following: (b) every other member of the Canadian Payments Association established by the Canadian Payments Act, and (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘Superintendent of Financial Institutions’’ « surintendant des institutions financières »
‘‘Superintendent of Financial Institutions’’ means the Superintendent of Financial Institutions appointed under subsection 5(1) of the Office of the Superintendent of Financial Institutions Act;
1992, c. 27, s. 30
573. Paragraph 65.1(7)(b) of that Act is replaced by the following: (b) to prevent a member of the Canadian Payments Association established by the Canadian Payments Act from ceasing to act as a clearing agent or group clearer for an insolvent person in accordance with that Act and the by-laws and rules of that Association.
574. The Act is amended by adding the following after section 69.41: No stay, etc., in certain cases
69.42 Despite anything in this Act, no provision of this Act shall have the effect of staying or restraining, and no order may be made under this Act staying or restraining, (a) the exercise by the Minister of Finance or the Superintendent of Financial Institutions of any power, duty or function assigned to them by the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act; (b) the exercise by the Governor in Council, the Minister of Finance or the Canada
Institutions f Deposit Insurance Corporation of any power, duty or function assigned to them by the Canada Deposit Insurance Corporation Act; or (c) the exercise by the Attorney General of Canada of any power, assigned to him or her by the Winding-up and Restructuring Act.
R.S., c. C-36
Companies’ Creditors Arrangement Act 575. Section 2 of the Companies’ Creditors Arrangement Act is amended by adding the following in alphabetical order:
‘‘Superintendent of Financial Institutions’’ « surintendant des institutions financières »
‘‘Superintendent of Financial Institutions’’ means the Superintendent of Financial Institutions appointed under subsection 5(1) of the Office of the Superintendent of Financial Institutions Act;
1997, c. 12, s. 124
576. Subsection 11.1(2) of the Act is replaced by the following:
No stay, etc., in certain cases
(2) No order may be made under this Act staying or restraining the exercise of any right to terminate, amend or claim any accelerated payment under an eligible financial contract or preventing a member of the Canadian Payments Association established by the Canadian Payments Act from ceasing to act as a clearing agent or group clearer for a company in accordance with that Act and the by-laws and rules of that Association.
577. The Act is amended by adding the following after section 11.1: No stay, etc., in certain cases
11.11 No order may be made under this Act staying or restraining (a) the exercise by the Minister of Finance or the Superintendent of Financial Institutions of any power, duty or function assigned to them by the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act;
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(b) the exercise by the Governor in Council, the Minister of Finance or the Canada Deposit Insurance Corporation of any power, duty or function assigned to them by the Canada Deposit Insurance Corporation Act; or (c) the exercise by the Attorney General of Canada of any power, assigned to him or her by the Winding-up and Restructuring Act. R.S., c. C-34; R.S., c. 19 (2nd Supp.), s. 19
Competition Act
578. The Competition Act is amended by adding the following after section 29.1: Communication to Minister of Finance
29.2 (1) Notwithstanding subsection 29(1), the Commissioner may, if requested to do so by the Minister of Finance in accordance with subsection (3), communicate or allow to be communicated to the Minister of Finance any information referred to in subsection (2) that is specifically requested by the Minister of Finance.
Information
(2) The information that may be communicated under this section is (a) the identity of any person from whom information was obtained under this Act; (b) any information obtained in the course of an inquiry under section 10; (c) any information obtained under section 11, 15, 16 or 114; (d) any information obtained from a person requesting a certificate under section 102; (e) whether notice has been given or information supplied in respect of a particular proposed transaction under section 114; and (f) any information collected, received or generated by or on behalf of the Commissioner, including compilations and analyses.
Contents of request
(3) Requests under this section must be in writing and must
Institutions f (a) specify the information referred to in any of paragraphs (2)(a) to (f) that is required; (b) state that the Minister of Finance requires the information (i) to consider a merger or proposed merger under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act, or (ii) to permit the Minister of Finance to determine whether he or she should provide the Commissioner with a certificate described in paragraph 94(b) in respect of such a merger or proposed merger; and (c) identify the merger or proposed merger.
Restriction
(4) The information communicated under subsection (1) may be used only for the purpose of making a decision in respect of the merger or proposed merger.
Confidentiality
(5) No person who performs or has performed duties or functions, in the administration or enforcement of the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act shall communicate or allow to be communicated to any other person any information communicated under subsection (1), except to other persons who perform those duties or functions.
1991, c. 47, s. 716(2); 1999, c. 2, par. 37(z.8)
579. Paragraph 94(b) of the Act is replaced by the following: (b) a merger or proposed merger under the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act in respect of which the Minister of Finance has certified to the Commissioner the names of the parties and that the merger is in the public interest —or that it would be in the public interest, taking into account any terms and conditions that may be imposed under those Acts.
��� 1991, c. 47, s. 717; 1999, c. 2, par. 37(z.14)
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580. Paragraph 113(a.1) of the Act is replaced by the following: (a.1) a transaction in respect of which the Minister of Finance has certified to the Commissioner under paragraph 94(b) that it is, or would be, in the public interest;
1998, c. 13
Depository Bills and Notes Act 581. The Depository Bills and Notes Act is amended by adding the following after section 5:
Payment from assets of partnership, etc.
5.1 For the purposes of sections 4 and 5, an order or a promise to pay is not conditional by reason only that it is limited to payment from the assets of a partnership, unincorporated association, trust or estate.
582. The Act is amended by adding the following after section 15: Payment from assets of partnership, etc.
R.S., c. 32 (2nd Supp.)
15.1 For the purposes of sections 13, 14 and 15, a depository bill or a depository note whose order or promise to pay is limited to payment from the assets of a partnership, unincorporated association, trust or estate is not dishonoured by its acceptor, drawer or maker if that person provides funds to the clearing house to which it is payable in accordance with the order or promise to pay and section 17.
Pension Benefits Standards Act, 1985 583. Subsection 38(4) of the Pension Benefits Standards Act, 1985 is replaced by the following:
Limitation period
(4) Proceedings in respect of an offence under this Act may be commenced at any time within, but not later than, two years after the day on which the subject-matter of the proceedings became known to the Superintendent.
2001 Certificate of Superintendent
Institutions f (4.1) A document appearing to have been issued by the Superintendent, certifying the day on which the subject-matter of any proceedings became known to the Superintendent, is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and is, in the absence of evidence to the contrary, proof of the matter asserted in it. CONSEQUENTIAL AMENDMENTS
R.S., c. A-1
Access to Information Act 584. Schedule I to the Access to Information Act is amended by adding the following in alphabetical order under the heading ‘‘Other Government Institutions’’: Financial Consumer Agency of Canada Agence de la consommation en matière financière du Canada 585. Schedule II to the Act is amended by replacing the reference to ‘‘subsections 29(1) and 29.1(5)’’ opposite the reference to the Competition Act with a reference to ‘‘subsections 29(1), 29.1(5) and 29.2(5)’’.
R.S., c. B-4
Bills of Exchange Act 586. Section 164 of the Bills of Exchange Act is replaced by the following:
Definition of ‘‘bank’’
1998, c. 36
164. In this Part, ‘‘bank’’ includes every member of the Canadian Payments Association established under the Canadian Payments Act and every local cooperative credit society, as defined in that Act, that is a member of a central, as defined in that Act, that is a member of the Canadian Payments Association.
Canada Small Business Financing Act 587. Paragraphs (a) and (b) of the definition ‘‘lender’’ in section 2 of the Canada Small Business Financing Act are replaced by the following: (a) a member of the Canadian Payments Association, established by subsection 3(1) of the Canadian Payments Act,
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Financial In (i) referred to in paragraph 4(1)(b) or (c) or any of paragraphs 4(2)(a) to (c) of that Act, or (ii) referred to in any of paragraphs 4(2)(d) to (h) of that Act if the member meets the prescribed conditions; (b) a local cooperative credit society, within the meaning of subsection 2(1) of the Canadian Payments Act, that is a member of a central cooperative credit society, within the meaning of that subsection, if that central cooperative credit society is a member of the Canadian Payments Association; or
R.S., c. F-11
Financial Administration Act 588. Schedule I.1 to the Financial Administration Act is amended by adding the following in alphabetical order in column I: Financial Consumer Agency of Canada Agence de la consommation en matière financière du Canada and a corresponding reference in column II to the ‘‘Minister of Finance’’.
R.S., c. 28 (1st Supp.) 1991, c. 46, s. 600
Investment Canada Act 589. Paragraph 10(1)(h) of the Investment Canada Act is replaced by the following: (h) any transaction to which section 522.28 of the Bank Act applies;
R.S., c. P-21
Privacy Act 590. The schedule to the Privacy Act is amended by adding the following in alphabetical order under the heading ‘‘Other Government Institutions’’: Financial Consumer Agency of Canada Agence de la consommation en matière financière du Canada
2001 R.S., c. P-35
Institutions f Public Service Staff Relations Act 591. Part II of Schedule I to the Public Service Staff Relations Act is amended by adding the following in alphabetical order: Financial Consumer Agency of Canada Agence de la consommation en matière financière du Canada
R.S., c. P-36
Public Service Superannuation Act 592. Part I of Schedule I to the Public Service Superannuation Act is amended by adding the following in alphabetical order: Financial Consumer Agency of Canada Agence de la consommation en matière financière du Canada COMING INTO FORCE
Coming into force
593. The provisions of this Act, other than subsections 120(2), 122(2), 155(2), 157(2), 424(2) and 444(2), section 473 and subsections 545(2) and 547(2), or the provisions of any Act enacted or amended by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Authority to substitute actual date
594. The Governor in Council may, by regulation, amend any provision of the Bank Act, the Cooperative Credit Associations Act, the Insurance Companies Act or the Trust and Loan Companies Act that contains a reference to the coming into force of any provision of any of those Acts, or a reference to the coming into force of any provision of this Act, by replacing that reference with a reference to the actual date of the coming into force of the provision.
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SCHEDULE 1 (Subsections 5(1) and 19(1) and section 20) Bank Act Loi sur les banques Cooperative Credit Associations Act Loi sur les associations coopératives de crédit Green Shield Canada Act Loi sur l’association personnalisée le Bouclier vert du Canada Insurance Companies Act Loi sur les sociétés d’assurances Trust and Loan Companies Act Loi sur les sociétés de fiducie et de prêt
Institutions financi
ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ SCHEDULE 2 (Section 184) SCHEDULE I (Section 14)
Name of Bank
Head Office
Amicus Bank Bank of Montreal The Bank of Nova Scotia Canadian Imperial Bank of Commerce Canadian Western Bank Citizens Bank of Canada CS Alterna Bank First Nations Bank of Canada Laurentian Bank of Canada Manulife Bank of Canada National Bank of Canada President’s Choice Bank Royal Bank of Canada The Toronto–Dominion Bank
Toronto Montreal Halifax Toronto Edmonton Vancouver Ottawa Saskatoon Montreal Orillia Montreal Toronto Montreal Toronto
SCHEDULE II (Section 14)
Name of Bank
Head Office
ABN AMRO Bank Canada Amex Bank of Canada Banca Commerciale Italiana of Canada Bank of America Canada Bank of China (Canada) Bank of East Asia (Canada) Bank of Tokyo–Mitsubishi (Canada) Bank One Canada BNP Paribas (Canada) CCF Canada The Chase Manhattan Bank of Canada Citibank Canada Comerica Bank – Canada Crédit Lyonnais Canada Credit Suisse First Boston Canada CTC Bank of Canada
Toronto Markham Toronto Toronto Toronto Richmond Hill Toronto Toronto Montreal Montreal Toronto Toronto Toronto Montreal Toronto Vancouver
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ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁ ÁÁÁ ÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁÁ
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Name of Bank
Head Office
Deutsche Bank Canada Dresdner Bank Canada Habib Canadian Bank Hanvit Bank Canada HSBC Bank Canada ING Bank of Canada International Commercial Bank of Cathay (Canada) J.P. Morgan Canada Korea Exchange Bank of Canada MBNA Canada Bank Mizuho Bank (Canada) National Bank of Greece (Canada) Rabobank Canada Sakura Bank (Canada) Sanwa Bank Canada Société Générale (Canada) Sottomayor Bank Canada State Bank of India (Canada) The Sumitomo Bank of Canada Tokai Bank Canada UBS Bank (Canada) United Overseas Bank (Canada)
Toronto Toronto Toronto Toronto Vancouver Toronto Toronto Toronto Toronto Gloucester Toronto Montreal Toronto Toronto Toronto Montreal Toronto Toronto Toronto Toronto Toronto Vancouver
Institutions financi SCHEDULE 3 (Section 202) SCHEDULE (Section 16) OATH OR SOLEMN AFFIRMATION OF OFFICE
I, ..............., do solemnly swear (or affirm) that I will faithfully and to the best of my judgment and ability perform the duties that relate to any office or position in the Bank held by me. I also solemnly swear (or affirm) that I will not communicate or allow to be communicated, to any person not entitled to it, any confidential information that relates to the business or affairs of the Bank that I may learn in the course of performing those duties; use any such information for any purpose other than to perform those duties; or allow any person to inspect or have access to any books and records that belong to or that are in the possession of the Bank and that relate to the business or affairs of the Bank, unless the person is legally entitled to inspect them or to have access to them.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 3
An Act to amend the Blue Water Bridge Authority Act
BILL S-5 ASSENTED TO 10th MAY, 2001
SUMMARY This enactment simplifies the provisions of the Blue Water Bridge Authority Act respecting the borrowing powers of the Blue Water Bridge Authority and places a monetary limit on them. Borrowing transactions will require the approval of the Ministers of Transport and Finance.
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49-50 ELIZABETH II
CHAPTER 3 An Act to amend the Blue Water Bridge Authority Act [Assented to 10th May, 2001]
1964-65, c. 6
Section 21 of Interpretation Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. Subsection 7(3) of the Blue Water Bridge Authority Act is replaced by the following: (3) For greater certainty, it is hereby declared that section 21 of the Interpretation Act applies to the Bridge Authority. 2. Section 13 of the Act and the heading before it are replaced by the following:
Borrowing authorized
Approval by Ministers
Her Majesty not liable
Borrowing Powers 13. (1) The Bridge Authority may borrow money, including by means of the issuance, sale and pledge of bonds, debentures, notes or other evidence of indebtedness, so long as the total principal amount of borrowings outstanding at any time does not exceed $125,000,000. (2) Any borrowing transaction entered into by the Bridge Authority is subject to the approval of the Minister of Finance and the Minister of Transport. (3) Her Majesty is not liable for the payment of any amount owing under an obligation incurred or an instrument issued by the Bridge Authority.
C. 3
� Definition of ‘‘borrowing’’
Blue Water Bri
(4) In this section, ‘‘borrowing’’ includes any transaction that is deemed to be a transaction to borrow money by regulations made under section 127 of the Financial Administration Act. 3. Sections 14 to 16 of the Act are repealed.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 4
A First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law
BILL S-4 ASSENTED TO 10th MAY, 2001
SUMMARY This enactment repeals the pre-Confederation provisions of the 1866 Civil Code of Lower Canada that fall within federal jurisdiction and replaces certain provisions with appropriate provisions on marriage applicable only in the Province of Quebec. This enactment also amends the Interpretation Act to recognize Canadian bijuralism and to provide that provincial law relating to property and civil rights applies to federal legislation on a suppletive basis. It also amends that Act to include interpretation rules relating to bijural provisions in federal enactments. It harmonizes provisions of the Federal Real Property Act, the Bankruptcy and Insolvency Act and the Crown Liability and Proceedings Act with the civil law of the Province of Quebec. It also harmonizes certain provisions of other Acts of Parliament with the civil law of the Province of Quebec insofar as those provisions relate to the property law, civil liability law or security law of that Province. Generally, in provisions that describe a legal concept by using a common law term and a civil law term, the common law term appears first in the English version and the civil law term appears first in the French version. Examples of this are ‘‘real property and immovables’’ in the English version and ‘‘immeuble et bien réels’’ in the French version.
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TABLE OF PROVISIONS
A FIRST ACT TO HARMONIZE FEDERAL LAW WITH THE CIVIL LAW OF THE PROVINCE OF QUEBEC AND TO AMEND CERTAIN ACTS IN ORDER TO ENSURE THAT EACH LANGUAGE VERSION TAKES INTO ACCOUNT THE COMMON LAW AND THE CIVIL LAW SHORT TITLE
1. Federal Law–Civil Law Harmonization Act, No. 1
PART 1 FEDERAL LAW AND CIVIL LAW OF THE PROVINCE OF QUEBEC Title 2.
Federal Law and Civil Law of the Province of Quebec Act Civil Code of Lower Canada
3. Provisions repealed Marriage
4. Substitution
5. Consent required
6. Minimum age
7. Monogamy
8. Interpretation Act
9-24.
PART 3 Federal Real Property Act
25-33.
PART 4 Bankruptcy and Insolvency Act
34-52.
PART 5 Crown Liability and Proceedings Act
PART 2
�� PART 6 MISCELLANEOUS AMENDMENTS TO OTHER ACTS 53-54. Aeronautics Act 55.
Airport Transfer (Miscellaneous Matters) Act
56-57.
Animal Pedigree Act
58-60.
Bank of Canada Act
61-62.
Bell Canada Act
63-64.
Canada Agricultural Products Act
65-66.
Canada Council Act
67. Canada Pension Plan
68-69.
Canadian Centre for Management Development Act
70-71.
Canadian Space Agency Act
72. Defence Production Act
73. Department of Industry Act
74-78.
Employment Insurance Act
79. Energy Supplies Emergency Act
80. Explosives Act
81. 82-83.
Family Orders and Agreements Enforcement Assistance Act Farm Products Agencies Act
84. Feeds Act
85. Firearms Act
86-87.
Foreign Extraterritorial Measures Act
88-89.
Canada Grain Act
90. Integrated Circuit Topography Act
91-95.
Interest Act
96. 97.
An Act to incorporate the Jules and Paul-Émile Léger Foundation Labour Adjustment Benefits Act
98. Law Commission of Canada Act
99. Meat Inspection Act
100. Motor Vehicle Transport Act, 1987
101. National Arts Centre Act
102-106. National Energy Board Act 107.
National Film Act
108-109. National Research Council Act 110.
Natural Sciences and Engineering Research Council Act
111. Old Age Security Act
112. Pension Fund Societies Act
113-116. Pesticide Residue Compensation Act 117.
Seeds Act
�� 118-119. Social Sciences and Humanities Research Council Act 120.
Special Economic Measures Act
121. State Immunity Act
122-123. Telecommunications Act 124-125. Trade Unions Act 126.
Department of Veterans Affairs Act
127. Visiting Forces Act
128. Canada Wildlife Act PART 7
CONSEQUENTIAL AMENDMENTS 129-132. Canada Customs and Revenue Agency Act 133-150. Canada Marine Act 151-152. Canada-Newfoundland Atlantic Accord Implementation Act 153-154. Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act 155.
Department of Canadian Heritage Act
156-159. Department of Public Works and Government Services Act 160-161. Financial Administration Act 162.
International Boundary Commission Act
163-164. Canada Oil and Gas Operations Act 165.
Manitoba Claim Settlements Implementation Act
166-167. Parks Canada Agency Act 168-169. Revolving Funds Act 170.
Surplus Crown Assets Act
171. Department of Transport Act
172. Visiting Forces Act
173. References PART 8
174. COORDINATING AMENDMENTS Canada Grain Act
175-176. Interest Act PART 9 TRANSITIONAL PROVISION AND COMING INTO FORCE Transitional Provision 177.
Bankruptcy and Insolvency Act — ‘‘secured creditor’’ Coming into Force
178. Coming into force
49-50 ELIZABETH II CHAPTER 4 A First Act to harmonize federal law with the civil law of the Province of Quebec and to amend certain Acts in order to ensure that each language version takes into account the common law and the civil law [Assented to 10th May, 2001] Preamble
WHEREAS all Canadians are entitled to access to federal legislation in keeping with the common law and civil law traditions; WHEREAS the civil law tradition of the Province of Quebec, which finds its principal expression in the Civil Code of Québec, reflects the unique character of Quebec society; WHEREAS the harmonious interaction of federal legislation and provincial legislation is essential and lies in an interpretation of federal legislation that is compatible with the common law or civil law traditions, as the case may be; WHEREAS the full development of our two major legal traditions gives Canadians enhanced opportunities worldwide and facilitates exchanges with the vast majority of other countries; WHEREAS the provincial law, in relation to property and civil rights, is the law that completes federal legislation when applied in a province, unless otherwise provided by law; WHEREAS the objective of the Government of Canada is to facilitate access to federal legislation that takes into account the common law and civil law traditions, in its English and French versions; AND WHEREAS the Government of Canada has established a harmonization program of federal legislation with the civil law of the Province of Quebec to ensure that each language version takes into account the common law and civil law traditions;
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NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE Short title
1. This Act may be cited as the Federal Law–Civil Law Harmonization Act, No. 1. PART 1 FEDERAL LAW AND CIVIL LAW OF THE PROVINCE OF QUEBEC Title
Title
2. This Part may be cited as the Federal Law and Civil Law of the Province of Quebec Act.
Civil Code of Lower Canada Provisions repealed
3. (1) The provisions of the Civil Code of Lower Canada, adopted by chapter 41 of the Acts of 1865 of the legislature of the Province of Canada, entitled An Act respecting the Civil Code of Lower Canada, are repealed in so far as they relate to subjects that fall within the legislative competence of Parliament and have not been expressly repealed.
Interpretation Act
(2) The Interpretation Act applies to the repeal referred to in subsection (1). Marriage
Substitution
4. Sections 5 to 7, which apply solely in the Province of Quebec, are to be interpreted as though they formed part of the Civil Code of Québec.
Consent required
5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.
Minimum age
6. No person who is under the age of sixteen years may contract marriage.
Monogamy
7. No person may contract a new marriage until every previous marriage has been dissolved by death or by divorce or declared null.
Harmonisation du droit fédér PART 2
R.S., c. I-21
AMENDMENTS TO THE INTERPRETATION ACT 8. The Interpretation Act is amended by adding the following after the heading ‘‘RULES OF CONSTRUCTION’’ before section 9:
Property and Civil Rights Duality of legal traditions and application of provincial law
8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
Terminology
8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces. PART 3
1991, c. 50
AMENDMENTS TO THE FEDERAL REAL PROPERTY ACT 9. The long title of the Federal Real Property Act is replaced by the following: An Act respecting the acquisition, administration and disposition of real property and immovables by the Government of Canada 10. Section 1 of the Act is replaced by the following:
Short title
1. This Act may be cited as the Federal Real Property and Federal Immovables Act.
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11. (1) The definitions ‘‘droits réels’’ and ‘‘immeubles’’ in section 2 of the French version of the Act are repealed. 1995, c. 5, par. 26(1)(c)
(2) The definitions ‘‘Crown grant’’, ‘‘head of mission’’ and ‘‘licence’’ in section 2 of the Act are replaced by the following:
‘‘Crown grant’’ « concession de l’État »
‘‘Crown grant’’ means any of the instruments or acts referred to in section 5, a plan referred to in section 7, a notification within the meaning of the Territorial Lands Act or any other instrument or act by which federal real property may be granted or federal immovables may be conceded;
‘‘head of mission’’ « chef de mission »
‘‘head of mission’’, in relation to real property or an immovable in a country outside Canada, means a person described in subsection 13(1) of the Department of Foreign Affairs and International Trade Act who represents Canada in that country;
‘‘licence’’ « permis »
‘‘licence’’ means any right to use or occupy real property or an immovable, other than (a) a real right within the meaning of the civil law of the Province of Quebec and the rights of a lessee under a lease of an immovable, and (b) an interest in land; (3) The definitions ‘‘federal real property’’, ‘‘interest’’ and ‘‘real property’’ in section 2 of the English version of the Act are replaced by the following:
‘‘federal real property’’ « bien réel fédéral »
‘‘federal real property’’ means any real property belonging to Her Majesty, and includes any real property of which Her Majesty has the power to dispose;
‘‘interest’’ « intérêt »
‘‘interest’’ means (a) in relation to land in any province other than Quebec, any estate, right, title or interest in or to the land, and includes an easement, a servitude and a lease, and (b) in relation to land outside Canada, any estate, right, title or interest that is similar to that referred to in paragraph (a);
‘‘real property’’ « biens réels »
‘‘real property’’ means land in any province other than Quebec, and land outside Cana2001
Harmonisation du droit fédér da, including mines and minerals, and buildings, structures, improvements and other fixtures on, above or below the surface of the land, and includes an interest therein.
(4) The definition ‘‘immeuble fédéral’’ in section 2 of the French version of the Act is replaced by the following: « immeuble fédéral » ‘‘federal immovable’’
« immeuble fédéral » Immeuble appartenant à Sa Majesté ou dont elle a le pouvoir de disposer. (5) Section 2 of the English version of the Act is amended by adding the following in alphabetical order:
‘‘federal immovable’’ « immeuble fédéral »
‘‘federal immovable’’ means an immovable belonging to Her Majesty, and includes an immovable of which Her Majesty has the power to dispose;
‘‘immovable’’ « immeuble »
‘‘immovable’’ means (a) in the Province of Quebec, an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of such an immovable, and (b) in jurisdictions outside Canada, any property that is an immovable within the meaning of the civil law of the Province of Quebec, and includes the rights of a lessee in respect of any such property; (6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« bien réel fédéral » ‘‘federal real property’’
« bien réel fédéral » Bien réel appartenant à Sa Majesté ou dont elle a le pouvoir de disposer.
« biens réels » ‘‘real property’’
« biens réels » Dans une province autre que le Québec et à l’étranger, les biens-fonds et les intérêts afférents, y compris les mines et minéraux, bâtiments et autres ouvrages, accessoires fixes ou améliorations de surface, de sous-sol ou en surplomb.
« immeuble » ‘‘immovable’’
« immeuble » a) Dans la province de Québec, immeuble au sens du droit civil de la
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« intérêt » ‘‘interest’’
« intérêt » À l’égard d’un bien-fonds : a) dans une province autre que le Québec, tout domaine, droit, titre de propriété ou intérêt portant sur ce bien-fonds, y compris un service foncier, une servitude et un bail; b) à l’étranger, tout domaine, droit, titre de propriété ou intérêt semblable à celui qui est mentionné à l’alinéa a).
12. Section 3 of the English version of the Act is replaced by the following: Authorization of officials
3. Any Minister may authorize in writing an officer of the Minister’s department or of any other department, or any head of mission, to exercise on behalf of that Minister any power given by or under this Act to that Minister, including the power to sign an instrument or act. 13. Section 4 of the Act and the heading before it are replaced by the following:
DISPOSITIONS, LEASES AND LICENCES Prohibition
4. Subject to any other Act, no disposition or lease of federal real property or federal immovables shall be made and no licence shall be given in respect of any such property except in accordance with this Act. 14. The heading before section 5 of the English version of the Act is replaced by the following:
Harmonisation du droit fédér GRANTS AND CONCESSIONS
15. (1) The portion of subsection 5(1) of the Act before paragraph (a) is replaced by the following: Letters patent, etc.
5. (1) Federal real property may be granted and federal immovables may be conceded (2) Paragraph 5(1)(b) of the English version of the Act is replaced by the following: (b) by an instrument of grant or an act of concession, in a form satisfactory to the Minister of Justice, stating that it has the same force and effect as if it were letters patent. (3) Subsections 5(2) to (5) of the Act are replaced by the following:
If property within Canada
(2) Federal real property and federal immovables within Canada may, at the discretion of the Minister of Justice, be granted or conceded, as the case may be, by any instrument or act by which, under the laws in force in the province in which the property is situated, real property and immovables may be transferred by a natural person.
If property outside Canada
(3) In a jurisdiction outside Canada, federal real property may be granted, and federal immovables may be conceded, by any instrument or act by which, under the laws in force in that jurisdiction, real property and immovables may be transferred.
Leases
(4) A lease of federal real property or of a federal immovable within Canada may also be granted by an instrument or conceded by an act that is not referred to in subsection (1), whether or not it is an instrument or act by which real property or immovables in a province may be transferred by a natural person.
Signing instruments and acts
(5) An instrument or act referred to in this section granting federal real property or conceding federal immovables, other than letters patent, shall be signed by the Minister having the administration of the property.
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(4) Subsections 5(6) and (7) of the English version of the Act are replaced by the following: Countersignature
(6) An instrument or act referred to in paragraph (1)(b), or an instrument or act referred to in subsection (2) other than a lease, shall be countersigned by the Minister of Justice.
Effect of instrument or act
(7) An instrument or act referred to in paragraph (1)(b) has the same force and effect as if the instrument or act were letters patent under the Great Seal. 16. Sections 6 to 15 of the Act are replaced by the following:
Execution of licences
6. A licence in respect of federal real property or a federal immovable shall be signed by the Minister having the administration of the property.
Plans
7. (1) Where under the laws of Canada or a province a plan may operate as an instrument or act granting, conceding, dedicating, transferring or conveying real property or immovables for a road, utility, park or other public purpose, the use of such a plan in relation to any federal real property or federal immovable may be authorized by the same authority that may authorize the grant, concession, dedication, transfer or conveyance of that property.
Execution
(2) A plan referred to in subsection (1) relating to any federal real property or federal immovable shall be signed by the Minister having the administration of the property and countersigned by the Minister of Justice.
Delivery required
8. (1) Subject to a contrary intention expressed in any instrument or act, the rule of law that a grant of federal real property or a concession of federal immovables by letters patent requires no delivery to take effect is hereby abrogated.
Time of taking effect
(2) A grant of federal real property and a concession of federal immovables by letters patent or by an instrument or act referred to in paragraph 5(1)(b) shall take effect in accordance with the provisions of the letters patent, instrument or act or, if there is no provision for its taking effect, shall take effect,
Harmonisation du droit fédér (a) where the letters patent are or the instrument or act is delivered on terms or subject to conditions, on their satisfaction or removal; and (b) in any other case, on delivery of the letters patent, instrument or act.
Words of limitation
9. Where under the laws of a province other than Quebec an instrument transferring real property without words of limitation operates as an absolute transfer of all the transferor’s interest in the real property, a grant of federal real property in that province by letters patent or by an instrument referred to in paragraph 5(1)(b) operates as a conveyance of a fee simple or equivalent estate in the property although no words of limitation are used in the instrument, if Her Majesty has power to grant the fee simple or an equivalent estate in the property and no contrary intention is expressed in the instrument.
Grants or concessions to Her Majesty
10. Her Majesty may grant federal real property and concede federal immovables to Herself.
Transfers of administration and control
11. (1) An instrument transferring administration and control of federal real property or an act transferring administration and control of federal immovables to Her Majesty in any right other than Canada pursuant to regulations made under paragraph 16(2)(e) shall be signed by the Minister having the administration of the property and countersigned by the Minister of Justice.
Effect of grant, etc.
(2) A grant, concession, vesting order or other conveyancing instrument or transfer act in favour of Her Majesty in respect of any real property or immovable belonging to Her Majesty in any right other than Canada results, on its acceptance, in Her Majesty having administration and control of the property.
Restrictions
12. A lessee of any real property or immovable from Her Majesty, the successor, sublessee or assignee of such a lessee, a person who holds an interest derived from such a lease or a person who holds a licence in respect of federal real property or federal immovables may not, without the consent of the Governor in Council, grant or agree to any covenant or condition restricting or controlling the use of the property except in favour of
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(a) Her Majesty; (b) any person through whom that interest or right was derived; or (c) in the case of such a lessee, successor or assignee or person holding such an interest, any sublessee or licensee of that person.
APPLICATION OF OTHER LAWS Acquisition under provincial Act
13. Except as expressly authorized by or under an Act of Parliament, no person acquires any federal real property or federal immovable by or under a provincial Act.
No title by prescription
14. No person acquires any federal real property or federal immovable by prescription. MINISTER OF JUSTICE
Powers of Minister of Justice
15. (1) The Minister of Justice may, for purposes of the acquisition or disposition of, or any dealing with, any real property or immovable, on behalf of Her Majesty, (a) determine the type of instrument or act to be used for those purposes and settle and approve the form and legal content of any Crown grant or other instrument or act; (b) effect the delivery of any instrument or act, including its delivery on terms or subject to conditions satisfactory to the Minister of Justice, whether or not the satisfaction or removal of the terms or conditions will result in the delivery becoming absolute; and (c) give and accept any undertakings from an advocate or a notary of the Province of Quebec or a barrister or solicitor of any other province that are in the opinion of the Minister of Justice necessary for or incidental to the completion of a transaction concerning real property or immovables, including undertakings respecting the delivery of any instrument or act and the payment of any purchase price or other moneys.
2001 Regulations
Harmonisation du droit fédér (2) The Governor in Council may, on the recommendation of the Minister of Justice and the Treasury Board, make regulations respecting (a) the referral of specified classes of transactions concerning real property or immovables within or outside Canada to the Minister of Justice for settlement and approval of the form and legal content of instruments or acts or for other purposes; and (b) the establishment and operation of a depository for the deposit of copies of instruments and acts relating to federal real property and federal immovables other than instruments and acts issued under the Great Seal. 17. The heading before section 16 of the French version of the Act is replaced by the following: DISPOSITIONS, ACQUISITIONS ET TRANSFERTS D’ATTRIBUTIONS ADMINISTRATIVES
1999, c. 31, ss. 96(1) and (2)
18. (1) Subsections 16(1) and (2) of the Act are replaced by the following:
Powers of Governor in Council
16. (1) Despite any regulations made under subsection (2), the Governor in Council may, on the recommendation of the Treasury Board, in accordance with any terms and subject to any conditions and restrictions that the Governor in Council considers advisable, (a) authorize the disposition or lease of federal real property or federal immovables for which disposition or lease there is no provision in or under any other Act; (b) authorize the acquisition or lease of real property or immovables on behalf of Her Majesty; (c) authorize the giving or acquisition on behalf of Her Majesty of any licence or the transfer between Ministers of administrative responsibility in relation to any licence acquired by Her Majesty; (d) authorize, on behalf of Her Majesty, a surrender or resiliation of any lease of which Her Majesty is the lessee or the relinquishment of any licence of which Her Majesty is the licensee, or the acceptance of
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the surrender or resiliation of any lease of which Her Majesty is the lessor or the acceptance of the relinquishment of any licence of which Her Majesty is the licensor; (e) transfer to Her Majesty in any right other than Canada administration and control of the entire or any lesser interest, or any right, of Her Majesty in any federal real property or federal immovable, either in perpetuity or for any lesser term; (f) accept, on behalf of Her Majesty, the transfer of administration and control of real property or immovables from Her Majesty in any right other than Canada, including any such transfer made by grant, concession, vesting order, other conveyancing instrument or other transfer act; (g) despite any other Act, transfer the administration of federal real property or federal immovables from one Minister to another, from a Minister to an agent corporation or from an agent corporation to a Minister; (h) authorize a grant of any federal real property or concession of any federal immovable to a corporation that has the administration of the property or to any person designated by that corporation; (i) authorize the grant of any federal real property or the concession of federal immovables by Her Majesty to Herself; (j) dedicate or authorize the dedication of any federal real property or federal immovable for a road, utility, park or other public purpose, either in perpetuity or for any lesser term; or (k) authorize the acceptance or the release or discharge, in whole or in part, on behalf of Her Majesty, of any security, by way of mortgage, hypothec or otherwise, in connection with any transaction authorized under this Act. Regulations
(2) The Governor in Council may, on the recommendation of the Treasury Board, make regulations (a) respecting the disposition or lease of federal real property or federal immovables
Harmonisation du droit fédér for which disposition or lease there is no provision in or under any other Act; (b) respecting the acquisition or lease of real property or immovables on behalf of Her Majesty; (c) respecting the giving and acquisition of licences on behalf of Her Majesty and the transfer between Ministers of administrative responsibility in relation to licences acquired by Her Majesty; (d) respecting the surrender and resiliation of leases of which Her Majesty is the lessee and the relinquishment of licences of which Her Majesty is the licensee, and the acceptance of surrenders and resiliations of leases of which Her Majesty is the lessor and the acceptance of relinquishments of licences of which Her Majesty is the licensor; (e) respecting the transfer to Her Majesty in any right other than Canada, by instrument or act satisfactory to the Minister of Justice, of administration and control of the entire or any lesser interest, or any right, of Her Majesty in federal real property or federal immovables, either in perpetuity or for any lesser term; (f) respecting the acceptance, on behalf of Her Majesty, of transfers of administration and control satisfactory to the Minister of Justice of real property or immovables from Her Majesty in any right other than Canada, including any such transfer made by grant, concession, vesting order, other conveyancing instrument or other transfer act; (g) respecting the transfer of the administration of federal real property or federal immovables by one Minister to another, by a Minister to an agent corporation or by an agent corporation to a Minister; (h) respecting the acceptance or the release or discharge, in whole or in part, on behalf of Her Majesty, of any security, by way of mortgage, hypothec or otherwise, in connection with transactions authorized under regulations made under this subsection; (i) authorizing the provision of utilities and other services on or from federal real
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property or federal immovables and the imposition of fees, charges and rates for those services; (j) imposing fees for the provision of copies of maps, plans, field notes, documents, papers and other records pertaining to federal real property or federal immovables, for the preparation of documents evidencing a disposition or lease of federal real property or federal immovables and for the deposit in a department of documents relating to federal real property or federal immovables; (k) establishing a formula for determining the rate of interest to be paid with respect to the purchase money, rent or other consideration for federal real property or federal immovables disposed of, leased, licensed or otherwise dealt with under this Act; and (l) respecting the dedication, in perpetuity or for a lesser term, of any federal real property or federal immovable for a road or utility purpose.
1994, c. 26, s. 31
(2) Subsections 16(6) and (7) of the Act are replaced by the following:
Rent
(6) Despite the Financial Administration Act, if a lease of federal real property or federal immovables or a licence in respect of any such property is authorized under this Act, the amount of the rent or other consideration charged for the lease or licence may, subject to the order or regulations by which it is authorized, be less than, equal to or more than the costs borne by Her Majesty in relation to the property.
Acquisition of shares
(7) Where an acquisition or a lease is authorized under this Act in relation to (a) real property in a condominium project or an immovable under divided co-ownership, (b) real property or an immovable in a co-operative project, or
Harmonisation du droit fédér (c) real property or an immovable in any similar project, that authorization also constitutes the authority for the acquisition of a share, membership interest or ownership interest in the relevant condominium corporation, syndicate of coowners, co-operative corporation or similar corporation, to the extent that the acquisition of the share, membership interest or ownership interest is required by, or effected by, the law of the jurisdiction in which the project is situated.
1993, c. 28, s. 78 (Sch. III, item 58)
19. Section 17 of the French version of the Act is replaced by the following:
Terres territoriales
17. (1) Malgré l’article 3 de la Loi sur les terres territoriales, les articles 13 à 16 et 19 de cette loi s’appliquent aux biens réels fédéraux situés au Yukon, dans les Territoires du Nord-Ouest ou au Nunavut.
Réserves
(2) Dans le cas des biens réels fédéraux situés au Yukon, dans les Territoires du Nord-Ouest ou au Nunavut et concédés en fief simple sous le régime de la présente loi, le ministre des Affaires indiennes et du Nord canadien est chargé de la gestion des biens réels et des droits sur ceux-ci qui, par application du paragraphe (1), font l’objet de réserves.
Réserves
(3) Lorsque tout intérêt autre que le droit de propriété en fief simple des biens réels fédéraux situés au Yukon, dans les Territoires du Nord-Ouest ou au Nunavut fait l’objet d’une concession sous le régime de la présente loi, le ministre chargé de leur gestion conserve la gestion de ces biens réels et des droits sur ceux-ci qui, par l’application du paragraphe (1), font l’objet de réserves.
1999, c. 31, s. 97
20. Section 18 of the Act is replaced by the following:
Administration by Minister
18. (1) Any federal real property or federal immovable acquired or leased for the purposes of a Minister’s department, including any such property acquired by way of a transfer of administration and control from Her Majesty in any right other than Canada, is under the administration of that Minister for the purposes of that department.
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Administration by Minister
(2) Where a Minister has, in relation to a department, by or under any Act or any order of the Governor in Council, the ‘‘administration’’, ‘‘management’’, ‘‘administration and control’’, ‘‘control, management and administration’’, ‘‘management, charge and direction’’ or another similarly expressed power in relation to any federal real property or federal immovable, that property is under the administration of that Minister for the purposes of that department.
Continuity of administration
(3) Any federal real property or federal immovable that is under the administration of a Minister for the purposes of a department remains under the administration of that Minister for the purposes of that department until a change of administration is effected under section 16 or on the authority or direction of the Governor in Council.
Consequences of administration
(4) Where any federal real property or federal immovable is under the administration of a Minister for the purposes of a department, that Minister has the right to the use of that property for the purposes of that department, subject to any conditions or restrictions imposed by or under this or any other Act or any order of the Governor in Council, but is not entitled by reason only of the administration of the property to dispose of it or to retain the proceeds of its use or disposition or the fruits and revenues of its use.
For greater certainty
(5) For greater certainty, a Minister may have the administration of federal real property or federal immovables for the purposes of any department of which that Minister is the Minister.
Signature is evidence
(5.1) Despite subsections (1) to (3), if a Minister is satisfied that the federal real property or federal immovable described in an instrument or act referred to in section 5 or 11, a licence referred to in section 6 or a plan referred to in section 7 is under the Minister’s administration, that property is deemed to be under the administration of the Minister and the signature of the Minister on the instrument, act, licence or plan is conclusive evidence that the Minister is so satisfied.
2001 Administration by corporation
Harmonisation du droit fédér (6) If, by or under any Act or any order of the Governor in Council, a corporation has, by the use of any expression mentioned in subsection (2) or any similar expression, the right to the use of any federal real property or federal immovable, and no Minister has the administration of the property, the corporation has, for the purposes of paragraphs 16(1)(g) and (h) and (2)(g), the administration of that property. 21. Subsections 19(1) and (2) of the Act are replaced by the following:
Defence property vested in Her Majesty
19. (1) Such of the real property and immovables mentioned in the schedule to the Ordnance and Admiralty Lands Act, chapter 115 of the Revised Statutes of Canada, 1927, as was on June 1, 1950 vested in Her Majesty, by whatever mode of conveyance it was acquired or taken and whether in fee, for life, for years or otherwise, and all the appurtenances of the real property and the accessories and dependencies of the immovables, unless disposed of since that date, continue absolutely vested in Her Majesty for the purposes of Canada in the same manner and to the same extent as on June 1, 1950.
Disposition of defence property
(2) Until the Governor in Council provides otherwise, federal real property and federal immovables that are declared by the Governor in Council to be necessary for the defence of Canada shall not be disposed of, but the Governor in Council may authorize the lease or other use of any such property as the Governor in Council thinks best for the advantage of Canada. 22. Section 20 of the Act is replaced by the following:
Grants or concessions to deceased persons not null or void
20. A Crown grant that is issued to or in the name of a person who is deceased is not for that reason null or void, but the title to the real property or immovable intended to be granted or conceded vests in the heirs, assigns or successors, legatees or legatees by particular title, or other legal representatives of the deceased person according to the laws in force in the province in which the property is situated as if the Crown grant had issued to or in the name of the deceased person during the person’s lifetime.
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23. Section 21 of the French version of the Act is replaced by the following: Correction
21. Si la concession de l’État comporte une erreur d’écriture, une fausse appellation, une description incorrecte ou défectueuse de l’immeuble ou du bien réel, une omission dans les conditions ou tout autre vice, le ministre de la Justice peut, en l’absence de revendication contraire, ordonner que la concession défectueuse soit annulée et remplacée par une concession correcte; cette dernière a dès lors la même valeur que si elle avait été octroyée à la date de la concession annulée. 24. Subsection 22(1) of the Act is replaced by the following:
Relief from inconsistent transactions
22. (1) Where, through error, inconsistent transactions relating to the same federal real property or federal immovable have been entered into, the Governor in Council may (a) order a new grant of federal real property, or a new concession of a federal immovable, of such value as the Governor in Council considers just and equitable, to be made to any person deprived as a result of the error; (b) make a new transfer of administration and control of federal real property, or of federal immovables, of such value as the Governor in Council considers just and equitable, to Her Majesty in any right other than Canada to provide relief from the error; (c) in the case of a sale, lease or licence, order a refund to be made of any money paid on account of the sale, lease or licence, with interest at a rate established in the manner prescribed by the Governor in Council; or (d) where the property was transferred by or from the original holder or has been improved before the discovery of the error, or where an original Crown grant was a free grant, order a new grant of any federal real property, or a new concession of any federal immovable, that the Governor in Council considers just and equitable to be made to the original holder.
Harmonisation du droit fédér PART 4
R.S., c. B-3
AMENDMENTS TO THE BANKRUPTCY AND INSOLVENCY ACT
1997, c. 12, s. 1(1)
25. The definition ‘‘secured creditor’’ in subsection 2(1) of the Bankruptcy and Insolvency Act is replaced by the following:
‘‘secured creditor’’ « créancier garanti »
‘‘secured creditor’’ means a person holding a mortgage, hypothec, pledge, charge or lien on or against the property of the debtor or any part of that property as security for a debt due or accruing due to the person from the debtor, or a person whose claim is based on, or secured by, a negotiable instrument held as collateral security and on which the debtor is only indirectly or secondarily liable, and includes (a) a person who has a right of retention or a prior claim constituting a real right, within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec, on or against the property of the debtor or any part of that property, or (b) any of (i) the vendor of any property sold to the debtor under a conditional or instalment sale, (ii) the purchaser of any property from the debtor subject to a right of redemption, or (iii) the trustee of a trust constituted by the debtor to secure the performance of an obligation, if the exercise of the person’s rights is subject to the provisions of Book Six of the Civil Code of Québec entitled Prior Claims and Hypothecs that deal with the exercise of hypothecary rights; 26. Paragraph 5(3)(c) of the English version of the Act is replaced by the following: (c) where not otherwise provided for, require the deposit of one or more continuing guaranty bonds or continuing suretyships as security for the due accounting of all property received by trustees and for the
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due and faithful performance by them of their duties in the administration of estates to which they are appointed, in any amount that the Superintendent may determine, which amount may be increased or decreased as the Superintendent may deem expedient, and the security shall be in a form satisfactory to the Superintendent and may be enforced by the Superintendent for the benefit of the creditors; 27. Subsection 50(4) of the English version of the Act is replaced by the following: Proposal, etc., not to be withdrawn
(4) No proposal or any security, guarantee or suretyship tendered with the proposal may be withdrawn pending the decision of the creditors and the court. 28. Section 75 of the French version of the Act is replaced by the following:
La loi provinciale s’applique en faveur de l’acheteur moyennant valeur
75. Nonobstant les autres dispositions de la présente loi, un acte, transport, transfert, contrat de vente, charge ou hypothèque, consenti à un acheteur ou à un créancier hypothécaire de bonne foi, ou consenti en sa faveur, pour contrepartie valable et suffisante, et couvrant des biens immeubles visés par une ordonnance de séquestre ou une cession en vertu de la présente loi, est valable et efficace selon sa teneur et selon les lois de la province dans laquelle ces biens sont situés, aussi pleinement et efficacement, et pour toutes fins et intentions, que si aucune ordonnance de séquestre n’avait été rendue ou cession faite en vertu de la présente loi, à moins que l’ordonnance de séquestre, la cession, ou un avis de cette ordonnance ou de cette cession, ou un avis, n’ait été enregistré contre les biens au bureau approprié, antérieurement à l’enregistrement de l’acte, du transport, du transfert, du contrat de vente, de la charge ou de l’hypothèque, conformément aux lois de la province où sont situés les biens. 29. Subsection 94(4) of the Act is replaced by the following:
Definition of ‘‘assignment’’
(4) For the purposes of this section, ‘‘assignment’’ includes assignment by way of security, hypothec and other charges on book debts.
Harmonisation du droit fédér 30. Subsection 120(6) of the Act is replaced by the following:
Special services
(6) An inspector duly authorized by the creditors or by the other inspectors to perform special services for the estate may be allowed a special fee for those services, subject to approval of the court, which may vary that fee as it deems proper having regard to the nature of the services rendered in relation to the obligations of the inspector to the estate to act in good faith for the general interests of the administration of the estate.
31. Paragraph 136(1)(e) of the Act is replaced by the following: (e) municipal taxes assessed or levied against the bankrupt, within the two years immediately preceding the bankruptcy, that do not constitute a secured claim against the real property or immovables of the bankrupt, but not exceeding the value of the interest of the bankrupt in the property in respect of which the taxes were imposed as declared by the trustee; 32. Paragraph 178(1)(d) of the Act is replaced by the following: (d) any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others;
33. (1) The portion of subsection 183(1) of the French version of the Act before paragraph (a) is replaced by the following: Tribunaux compétents
183. (1) Les tribunaux suivants possèdent la compétence en droit et en equity qui doit leur permettre d’exercer la juridiction de première instance, auxiliaire et subordonnée en matière de faillite et en d’autres procédures autorisées par la présente loi durant leurs termes respectifs, tels que ces termes sont maintenant ou peuvent par la suite être tenus, pendant une vacance judiciaire et en chambre :
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(2) Paragraph 183(1)(b) of the Act is repealed. (3) Subsection 183(2) of the Act is replaced by the following: Superior Court jurisdiction in the Province of Quebec
(1.1) In the Province of Quebec, the Superior Court is invested with the jurisdiction that will enable it to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act during its term, as it is now, or may be hereafter, held, and in vacation and in chambers.
Courts of appeal — common law provinces
(2) Subject to subsection (2.1), the courts of appeal throughout Canada, within their respective jurisdictions, are invested with power and jurisdiction at law and in equity, according to their ordinary procedures, except as varied by this Act or the General Rules, to hear and determine appeals from the courts vested with original jurisdiction under this Act.
Court of Appeal of the Province of Quebec
(2.1) In the Province of Quebec, the Court of Appeal, within its jurisdiction, is invested with power and jurisdiction, according to its ordinary procedures, except as varied by this Act or the General Rules, to hear and determine appeals from the Superior Court.
PART 5 R.S., c. C-50; 1990, c. 8, s. 21
AMENDMENTS TO THE CROWN LIABILITY AND PROCEEDINGS ACT 34. (1) The definition ‘‘tort’’ in section 2 of the Crown Liability and Proceedings Act is repealed. (2) Section 2 of the Act is amended by adding the following in alphabetical order:
‘‘liability’’ « responsabilité »
‘‘liability’’, for the purposes of Part 1, means (a) in the Province of Quebec, extracontractual civil liability, and (b) in any other province, liability in tort;
Harmonisation du droit fédér 35. The Act is amended by adding the following after section 2:
Definition of ‘‘person’’
2.1 For the purposes of sections 3 to 5, ‘‘person’’ means a natural person of full age and capacity other than Her Majesty in right of Canada or a province. 36. Section 3 of the Act and the heading before it are replaced by the following:
Liability and Civil Salvage Liability
3. The Crown is liable for the damages for which, if it were a person, it would be liable (a) in the Province of Quebec, in respect of (i) the damage caused by the fault of a servant of the Crown, or (ii) the damage resulting from the act of a thing in the custody of or owned by the Crown or by the fault of the Crown as custodian or owner; and (b) in any other province, in respect of (i) a tort committed by a servant of the Crown, or (ii) a breach of duty attaching to the ownership, occupation, possession or control of property. 37. Section 4 of the Act is replaced by the following:
Motor vehicles
4. The Crown is liable for the damage sustained by anyone by reason of a motor vehicle, owned by the Crown, on a highway, for which the Crown would be liable if it were a person. 38. Subsection 5(1) of the Act is replaced by the following:
Civil salvage
5. (1) Subject to subsection (2), the law relating to civil salvage, whether of life or property (except sections 453 to 456, 459 to 463 and 465 of the Canada Shipping Act), applies in relation to salvage services rendered in assisting any Crown ship or aircraft, or in saving life from the ship or aircraft, or in saving any cargo or apparel belonging to the Crown, in the same manner as if the ship, aircraft, cargo or apparel belonged to a person.
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39. Section 9 of the French version of the Act is replaced by the following: Incompatibilité entre recours et droit à une pension ou indemnité
9. Ni l’État ni ses préposés ne sont susceptibles de poursuites pour toute perte — notamment décès, blessure ou dommage — ouvrant droit au paiement d’une pension ou indemnité sur le Trésor ou sur des fonds gérés par un organisme mandataire de l’État. 40. Sections 10 and 11 of the Act are replaced by the following:
Liability for acts of servants
10. No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of a servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action for liability against that servant or the servant’s personal representative or succession.
Motor vehicles
11. No proceedings lie against the Crown by virtue of section 4 in respect of damage sustained by any person by reason of a motor vehicle on a highway unless the driver of the motor vehicle or the driver’s personal representative or succession is liable for the damage so sustained. 41. Section 13 of the Act is replaced by the following:
Application of subparagraphs 3(a)(ii) and (b)(ii)
13. (1) Subparagraphs 3(a)(ii) and (b)(ii) are not applicable in respect of any property owned by the Crown unless the Crown or a person acting for the Crown has, in fact, (a) in the case of personal property and movables, taken physical control of it; and (b) in the case of real property or immovables, entered into occupation of it.
Effect of orders
(2) Where the Governor in Council has, by order published in the Canada Gazette, declared that the Crown has, before, on or after November 15, 1954, ceased to be in control or in occupation of any property specified in paragraphs (1)(a) and (b), subparagraphs 3(a)(ii) and (b)(ii) are not applicable in respect of the specified property from the day of publication of the order until the day the order is revoked.
Harmonisation du droit fédér 42. Section 14 of the Act is replaced by the following:
Proceedings in rem
14. Nothing in this Act (a) authorizes proceedings in rem in respect of any claim against the Crown; (b) authorizes the arrest, detention or sale of any Crown ship or aircraft, or of any cargo or other property belonging to the Crown; or (c) gives to any person any lien on, or cause of preference on or in respect of, any ship, aircraft, cargo or other property belonging to the Crown. 43. Subsection 17(1) of the French version of the Act is replaced by the following:
Responsabilité de l’État
17. (1) Sous réserve du paragraphe (2), l’État est d’une part responsable de tout dommage ou de toute perte occasionnés à autrui, directement ou indirectement, du fait de l’interception intentionnelle d’une communication privée effectuée — au moyen d’un dispositif d’interception — par l’un de ses préposés dans l’exercice de ses fonctions, et d’autre part astreint à des dommages-intérêts punitifs n’excédant pas cinq mille dollars pour chacune des victimes.
1993, c. 40, s. 21(1)
44. The portion of subsection 18(1) of the French version of the Act before paragraph (a) is replaced by the following:
Responsabilité en cas de révélation
18. (1) Sous réserve du paragraphe (2), l’État est responsable, en sus de dommagesintérêts punitifs d’un montant maximal de cinq mille dollars, de tout dommage ou de toute perte causés à autrui du fait de l’obtention de renseignements relatifs à une communication privée ou une communication radiotéléphonique interceptée, au moyen d’un dispositif d’interception, par l’un de ses préposés dans l’exercice de ses fonctions mais sans le consentement exprès ou tacite de l’auteur ou du destinataire, lorsque le préposé délibérément :
1990, c. 8, s. 28
45. Subsection 21(1) of the Act is replaced by the following:
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Concurrent jurisdiction of provincial court
21. (1) In all cases where a claim is made against the Crown, except where the Federal Court has exclusive jurisdiction with respect to it, the superior court of the province in which the claim arises has concurrent jurisdiction with respect to the subject-matter of the claim.
1990, c. 8, s. 28
46. Subsection 22(1) of the French version of the Act is replaced by the following:
Déclaration de droits
22. (1) Le tribunal ne peut, lorsqu’il connaît d’une demande visant l’État, assujettir celuici à une injonction ou à une ordonnance d’exécution en nature mais, dans les cas où ces recours pourraient être exercés entre personnes, il peut, pour en tenir lieu, déclarer les droits des parties.
1990, c. 8, s. 29
47. Subsection 23(2) of the French version of the Act is replaced by the following:
Signification de l’acte introductif d’instance
(2) Dans les cas visés au paragraphe (1), la signification à l’État de l’acte introductif d’instance est faite au sous-procureur général du Canada ou au premier dirigeant de l’organisme concerné, selon le cas. 48. Paragraph 24(a) of the Act is replaced by the following: (a) any defence that would be available if the proceedings were a suit or an action between persons in a competent court; and
1990, c. 8, s. 31
49. Section 29 of the French version of the Act is replaced by the following:
Absence d’exécution forcée contre l’État
29. Les jugements rendus contre l’État ne sont pas susceptibles d’exécution forcée.
1990, c. 8, s. 31
50. Subsection 30(1) of the French version of the Act is replaced by the following:
Paiement en exécution d’un jugement
30. (1) Sur réception d’un certificat réglementaire, le ministre des Finances autorise le paiement, sur le Trésor, de toute somme d’argent accordée à une personne, par jugement contre l’État.
2001 1990, c. 8, s. 31
Harmonisation du droit fédér 51. (1) Paragraphs 31(2)(a) and (b) of the French version of the Act are replaced by the following: a) s’il s’agit d’une créance liquide, depuis la ou les dates du ou des faits générateurs jusqu’à la date de l’ordonnance de paiement; b) si la créance n’est pas liquide, depuis la date à laquelle le créancier a avisé par écrit l’État de sa demande jusqu’à la date de l’ordonnance de paiement.
1990, c. 8, s. 31
(2) Subsection 31(3) of the Act is replaced by the following:
Special damages and pre-trial pecuniary losses
(3) When an order referred to in subsection (2) includes an amount for, in the Province of Quebec, pre-trial pecuniary loss or, in any other province, special damages, the interest shall be calculated under that subsection on the balance of the amount as totalled at the end of each six month period following the notice in writing referred to in paragraph (2)(b) and at the date of the order.
1990, c. 8, s. 31
52. Subsection 31.1(1) of the English version of the Act is replaced by the following:
Judgment interest, causes of action within province
31.1 (1) Except as otherwise provided in any other Act of Parliament and subject to subsection (2), the laws relating to interest on judgments in causes of action between subject and subject that are in force in a province apply to judgments against the Crown in respect of any cause of action arising in that province. PART 6 MISCELLANEOUS AMENDMENTS TO OTHER ACTS
R.S., c. A-2
Aeronautics Act
R.S., c. 33 (1st Supp), s. 1
53. Subsection 4.4(5) of the English version of the Aeronautics Act is replaced by the following:
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Joint and several or solidary liability
(5) If a charge is imposed in respect of an aircraft under this section, both the registered owner and the operator of the aircraft are jointly and severally, or solidarily, liable for payment of the charge.
R.S., c. 33 (1st Supp), s. 1
54. Subsection 5.7(1) of the French version of the Act is replaced by the following:
Avis d’entrée
5.7 (1) Dans le cas d’un bien-fonds ou d’éléments s’y trouvant qui sont utilisés ou détenus en violation d’un règlement de zonage, le ministre peut, par avis écrit, informer leur propriétaire ou locataire que si, avant la date fixée — celle-ci ne pouvant être antérieure au trentième jour suivant la date où l’avis est signifié ou publié pour la dernière fois dans les conditions prévues au paragraphe (2) —, il n’y a pas cessation définitive de la contravention, ou enlèvement ou modification des éléments en cause conformément à l’avis, il a l’intention d’entrer sur le bienfonds et de prendre les mesures justifiables en la circonstance pour faire cesser cette contravention ou procéder à l’enlèvement ou à la modification.
1992, c. 5
Airport Transfer (Miscellaneous Matters) Act
1992, c. 42, s. 3
55. Subsection 9(4) of the English version of the Airport Transfer (Miscellaneous Matters) Act is replaced by the following:
Release on security
(4) A designated airport authority shall release from detention an aircraft seized under subsection (1) or (2) if a bond, suretyship or other security in a form satisfactory to the authority for the amount in respect of which the aircraft was seized is deposited with the authority.
R.S., c. 8 (4th Supp.)
Animal Pedigree Act 56. (1) Paragraph 12(a) of the Animal Pedigree Act is replaced by the following: (a) acquire, hold and dispose of real, personal, movable and immovable property necessary for the carrying out of its business and affairs; (2) Paragraph 12(c) of the Act is replaced by the following:
Harmonisation du droit fédér (c) mortgage or hypothecate, or create any security interest in, all or any property of the association to secure any obligation of the association. 57. (1) Paragraph 38(a) of the Act is replaced by the following: (a) acquire, hold and dispose of real, personal, movable and immovable property necessary for the carrying out of its business and affairs; (2) Paragraph 38(c) of the Act is replaced by the following: (c) mortgage or hypothecate, or create any security interest in, all or any property of the Corporation to secure any obligation of the Corporation.
R.S., c. B-2
Bank of Canada Act
1999, c. 28, s. 95(2)
58. (1) Paragraphs 18(h) and (i) of the Bank of Canada Act are replaced by the following: (h) make loans or advances for periods not exceeding six months to banks or authorized foreign banks that are not subject to the restrictions and requirements referred to in subsection 524(2) of the Bank Act or to other members of the Canadian Payments Association that maintain deposits with the Bank on the pledge, hypothecation or movable hypothec without delivery of the classes of securities mentioned in paragraphs (a) to (g), bills of exchange or promissory notes or any other property that the institution to which the loan or advance is made is authorized to hold; (i) make loans or advances for periods not exceeding six months to the Government of Canada or the government of any province on the pledge, hypothecation or movable hypothec without delivery of readily marketable securities issued or guaranteed by Canada or any province;
1997, c. 15, s. 98(3)
(2) Paragraph 18(n) of the Act is replaced by the following: (n) acquire, hold, lease or dispose of real property or immovables;
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59. (1) Paragraph 23(c) of the Act is replaced by the following: (c) lend or make advances on the security of any real property or immovable, except that, in the event of any claims of the Bank being in the opinion of the Board endangered, the Bank may secure itself on any real property, or obtain security on any immovable, of the debtor or any other person liable and may acquire that property, which shall be resold as practicable after the acquisition; (2) Paragraph 23(f) of the French version of the Act is replaced by the following: f) de permettre le renouvellement d’effets arrivant à échéance, notamment lettres de change et billets à ordre, qu’elle a achetés ou escomptés ou qui lui ont été remis en gage, le conseil pouvant toutefois autoriser, par règlement, le renouvellement pour une seule fois d’effets dans des circonstances spéciales. 60. Paragraph 35(1)(e) of the French version of the Act is replaced by the following: e) de façon générale, la gestion et la disposition du capital-actions, des biens et des affaires de la Banque. 1987, c. 19
Bell Canada Act 61. Subsection 11(2) of the Bell Canada Act is replaced by the following:
Approval of disposal of facilities required
(2) Except in the ordinary course of the business of the Company, no facilities of the Company that are integral and necessary for the carrying on of telecommunications activities shall be sold or otherwise disposed of, or leased or loaned, without the prior approval of the Commission. 62. Section 14 of the Act is replaced by the following:
Deposit in office of the Registrar General
14. (1) A deed of trust creating mortgages, charges or encumbrances — or, in the Province of Quebec, an act constituting hypothecs — on the whole or any part of the property of the Company, present or future, as may be described in the deed or act and an
Harmonisation du droit fédér assignment or other instrument or act in any way affecting the mortgage, hypothec or security shall be deposited in the office of the Registrar General of Canada and notice of the deposit shall immediately be given in the Canada Gazette.
Effect of compliance
(2) If subsection (1) has been complied with, it shall not be necessary for any purpose that the mortgage, hypothec, charge, encumbrance or assignment or any other instrument or act in any way affecting it be otherwise deposited, registered or filed under the provisions of any law respecting the deposit, registration or filing of instruments or acts affecting property.
R.S., c. 20 (4th Supp.)
Canada Agricultural Products Act 63. Section 31 of the Canada Agricultural Products Act is replaced by the following:
Evidence of financial responsibility
31. The Minister may require any person or class of persons marketing agricultural products in import, export or interprovincial trade to provide evidence of financial responsibility in any form, including an insurance or indemnity bond, or a suretyship, that is satisfactory to the Minister. 64. Subparagraph 32(b)(v) of the English version of the Act is replaced by the following: (v) requiring dealers or operators of establishments to post bonds or to provide suretyships, or to provide other security satisfactory to the Minister, as a guarantee that they will comply with the terms and conditions of any licence or registration issued to them and providing for the forfeiture of the bonds, suretyships or other security if they fail to comply with those terms and conditions;
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65. Subsection 17(1) of the Canada Council Act is replaced by the following: Property and investments
17. (1) The Council may, for the purposes of this Act, acquire, hold, manage and dispose of real, personal, movable and immovable property and, subject to this Act and on the advice of the Investment Committee, may invest in any manner it sees fit any money standing to the credit of the Endowment Fund or the University Capital Grants Fund or received by the Council by gift, bequest or otherwise, and may hold, manage and dispose of the investment.
66. Section 18 of the French version of the Act is replaced by the following: Libéralités
18. Le Conseil peut, par don, legs ou autre mode de libéralités, acquérir des biens, notamment sous forme d’argent ou de valeurs mobilières, et, malgré toute disposition contraire de la présente loi, employer ou gérer la partie de ces biens non affectée à la Caisse de dotation ou au Fonds d’assistance financière aux universités, ou en disposer, pourvu qu’il respecte les conditions dont sont assorties ces libéralités.
R.S., c. C-8
Canada Pension Plan
1997, c. 40, s. 80
67. Subsection 66(2.6) of the Canada Pension Plan is replaced by the following:
Charge on land
(2.6) A document issued by the Federal Court or by a superior court of a province evidencing a certificate in respect of a debtor registered under subsection (2.3) or (2.4) may be recorded for the purpose of creating security, or a charge, lien or legal hypothec, on land in a province, or on an interest in land in a province, held or owned by the debtor, in the same manner as a document evidencing a judgment of the superior court of the province against a person for a debt owing by the person may be recorded in accordance with the law of the province to create security, or a charge, lien or legal hypothec, on land, or an interest in land, held or owned by the person.
2001 1991, c. 16
Harmonisation du droit fédér Canadian Centre for Management Development Act 68. (1) Paragraph 5(a) of the Canadian Centre for Management Development Act is replaced by the following: (a) acquire, manage, maintain, design and operate programs for management development and acquire personal and movable property; (2) Paragraph 5(f) of the French version of the Act is replaced by the following: f) rendre disponibles, notamment par vente ou octroi de licence, les droits d’auteurs, marques de commerce ou droits de propriété analogues détenus par lui ou placés sous son administration ou son contrôle; (3) Paragraph 5(h) of the Act is replaced by the following: (h) acquire any money, securities or other personal or movable property by gift or bequest and expend, administer or dispose of the property subject to the terms, if any, on which the gift or bequest was made; and 69. Paragraph 18(1)(b) of the French version of the Act is replaced by the following: b) pour rendre disponibles, notamment par vente ou octroi de licence, les droits d’auteurs, marques de commerce ou droits de propriété analogues détenus par le Centre ou placés sous son administration ou son contrôle.
1990, c. 13
Canadian Space Agency Act 70. (1) Paragraph 5(3)(a) of the English version of the Canadian Space Agency Act is replaced by the following: (a) construct, acquire, manage, maintain and operate space research and development vehicles, facilities and systems; (2) Paragraph 5(3)(f) of the French version of the Act is replaced by the following: f) rendre disponibles, notamment par vente ou octroi de licence, les brevets, droits d’auteur, dessins industriels, marques de commerce, secrets industriels ou droits de
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propriété analogues placés sous l’administration et le contrôle du ministre; (3) Paragraph 5(3)(h) of the Act is replaced by the following: (h) acquire any money, securities or other personal or movable property by gift or bequest and expend, administer or dispose of any such money, securities or property subject to the terms, if any, on which the gift or bequest was made; 71. (1) Paragraph 10(1)(b) of the French version of the Act is replaced by the following: b) à la disposition desquelles elle met des brevets, droits d’auteur, dessins industriels, marques de commerce, secrets industriels ou droits de propriété analogues, ou à qui elle octroie une licence relative à ceux-ci. (2) Subsection 10(5) of the French version of the Act is replaced by the following: Utilisation
(5) Avec l’agrément du Conseil du Trésor, l’Agence peut utiliser les redevances ou droits pour compenser les coûts découlant, au cours du même exercice, des services, installations ou droits de propriété pour lesquels ils sont perçus.
R.S., c. D-1
Defence Production Act 72. The portion of section 20 of the Defence Production Act before paragraph (b) is replaced by the following:
Title to government issue or building
20. If, by the terms of a defence contract, it is provided that title to any government issue or building furnished or made available to a person or obtained or constructed by the person with money provided by Her Majesty or an agent of Her Majesty or an associated government remains vested or vests in Her Majesty or in an associated government free and clear of all claims, liens, prior claims or rights of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec, charges or encumbrances, then, despite any law in force in any province, (a) the title to the government issue or building remains vested or vests in accor2001
Harmonisation du droit fédér dance with the terms of the contract free and clear of all claims, liens, prior claims or rights of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec, charges or encumbrances; and
1995, c. 1
Department of Industry Act 73. Section 12 of the Department of Industry Act is replaced by the following:
Special statutory references
12. Where in any special Act of Parliament enacted before December 21, 1967, any person is required to file or register any instrument of trust, mortgage, hypothec, bond, suretyship, charge, lease, sale, bailment, pledge, assignment, surrender or other instrument, document or record or copy thereof, or any notice, in the office or department of the Secretary of State, the filing or registration required shall be made with the Registrar General unless the Governor in Council by order designates another office or department for such filing or registration.
1996, c. 23
Employment Insurance Act 74. Subsection 42(1) of the French version of the Employment Insurance Act is replaced by the following:
Incessibilité des prestations
42. (1) Sous réserve des paragraphes (2) et (3), les prestations ne peuvent être cédées, grevées, saisies ni données en garantie et toute opération en ce sens est nulle. 75. Paragraph 61(1)(b) of the English version of the Act is replaced by the following: (b) loans, loan guarantees or suretyships; 76. Paragraph 65(b) of the English version of the Act is replaced by the following: (b) an amount paid on a guarantee or suretyship of a loan made to the person; and 77. Subsection 86(5) of the French version of the Act is replaced by the following:
Garantie
(5) Le ministre peut, s’il le juge opportun dans un cas particulier, accepter en garantie du paiement de cotisations une hypothèque ou une charge sur les biens de l’employeur ou d’une autre personne ou une autre garantie fournie par d’autres personnes.
��
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Federal Law–Civil Law
1999, c. 17, s. 133
78. Subsection 102(13) of the English version of the Act is replaced by the following:
Proof of documents
(13) Every document appearing to be an order, direction, demand, notice, certificate, requirement, decision, assessment, discharge of mortgage, release of hypothec or other document executed under, or in the course of the administration or enforcement of, this Part over the name in writing of the Minister, the Deputy Minister of National Revenue, the Commissioner of Customs and Revenue or an officer authorized to exercise the powers or perform the duties of the Minister under this Part, is deemed to be a document signed, made and issued by the Minister, the Deputy Minister, the Commissioner or the officer unless it has been called into question by the Minister or by a person acting for the Minister or for Her Majesty.
R.S., c. E-9
Energy Supplies Emergency Act 79. Paragraph 25(1)(d) of the French version of the Energy Supplies Emergency Act is replaced by the following: d) concernant l’accumulation de réserves et de stock d’un produit contrôlé, leur entreposage et leur mode de disposition;
R.S., c. E-17
Explosives Act
1993, c. 32, s. 5
80. Subsection 9(2.1) of the English version of the Explosives Act is replaced by the following:
Evidence of financial responsibility
(2.1) The Minister may require any person who engages or proposes to engage in the importation of explosives and who does not reside in Canada or have a chief place of business or head office in Canada to provide evidence of financial responsibility in the form of insurance, or in the form of an indemnity bond or a suretyship, satisfactory to the Minister, or in any other form satisfactory to the Minister.
2001 R.S., c. 4 (2nd Supp.)
Harmonisation du droit fédér Family Orders and Agreements Enforcement Assistance Act 81. Section 52 of the Family Orders and Agreements Enforcement Assistance Act is replaced by the following:
Ranking of Her Majesty
52. When a judgment debtor is indebted to (a) Her Majesty, or (b) Her Majesty in right of a province on account of taxes payable to any province, and an agreement exists between Canada and the province under which Canada is authorized to collect the tax on behalf of the province, Her Majesty ranks in priority over the party that instituted the garnishment proceedings permitted under this Part with respect to any garnishable moneys that are payable to the judgment debtor notwithstanding that a garnishee summons in respect of those moneys has been served on the Minister, and the amount of the indebtedness may be recovered or retained in any manner authorized by law.
R.S., c. F-4; 1993, c. 3, s. 2
Farm Products Agencies Act 82. Paragraph 22(1)(h) of the Farm Products Agencies Act is replaced by the following: (h) purchase, lease or otherwise acquire and hold, mortgage, hypothecate, sell or otherwise deal with any real property or immovable;
1993, c. 3, s. 12
83. Paragraph 42(1)(h) of the Act is replaced by the following: (h) purchase, lease or otherwise acquire and hold, mortgage, hypothecate, sell or otherwise deal with any real property or immovable;
R.S., c. F-9
Feeds Act 84. Paragraph 5(k) of the French version of the Feeds Act is replaced by the following: k) prévoir le mode de disposition des biens confisqués en application de l’article 9;
�� 1995, c. 39
C. 4
Federal Law–Civil Law Firearms Act
85. Paragraph (a) of the definition ‘‘business’’ in subsection 2(1) of the Firearms Act is replaced by the following: (a) the manufacture, assembly, possession, purchase, sale, importation, exportation, display, repair, restoration, maintenance, storage, alteration, pawnbroking, transportation, shipping, distribution or delivery of firearms, prohibited weapons, restricted weapons, prohibited devices or prohibited ammunition,
R.S., c. F-29
Foreign Extraterritorial Measures Act
1996, c. 28, s. 7
86. Section 8.1 of the French version of the Foreign Extraterritorial Measures Act is replaced by the following:
Jugements exécutés à l’extérieur du Canada
8.1 Sur demande présentée par une partie ayant la qualité de citoyen canadien ou de personne résidant au Canada, de personne morale constituée sous le régime d’une loi fédérale ou provinciale ou de personne exerçant une activité au Canada contre laquelle a été rendu un jugement qui — n’était sa complète exécution à l’extérieur du Canada — pourrait faire l’objet d’un arrêté en vertu de l’article 8 ou un jugement fondé sur la loi des États-Unis intitulée Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, le procureur général du Canada peut déclarer, par arrêté, que cette partie est autorisée à recouvrer, en vertu de celles des dispositions de l’article 9 qu’il précise, la totalité ou une partie des sommes qu’elle a versées, des frais qu’elle a engagés ainsi que de toute perte ou de tout dommage qu’elle a subis.
1996, c. 28, s. 7
87. (1) Subparagraph 9(1)(a)(iii) of the Act is replaced by the following: (iii) any loss or damage suffered by that party by reason of the enforcement of the judgment; and
1996, c. 28, s. 7
(2) Subparagraph 9(1)(b)(iv) of the Act is replaced by the following:
Harmonisation du droit fédér (iv) such proportion of any loss or damage suffered by that party by reason of the enforcement of the judgment as the Attorney General may specify.
R.S., c. G-10
Canada Grain Act
1994, c. 45, s. 10
88. (1) Paragraph 45(1)(b) of the English version of the Canada Grain Act is replaced by the following: (b) subject to the regulations, fix the security to be given by the applicant, by way of bond, suretyship, insurance or otherwise, having regard to the applicant’s potential obligations for the payment of money or the delivery of grain to producers of grain who are holders of cash purchase tickets, elevator receipts or grain receipts issued pursuant to this Act in relation to grain produced by the holders.
1994, c. 45, s. 10
(2) Paragraph 45(2)(b) of the English version of the Act is replaced by the following: (b) subject to the regulations, fix the security to be given by the applicant, by way of bond, suretyship, insurance or otherwise, having regard to the applicant’s obligations for the payment of money or the delivery of grain to holders of elevator receipts issued pursuant to this Act. 89. Paragraph 116(1)(k) of the English version of the Act is replaced by the following: (k) respecting the security to be given, by way of bond, suretyship, insurance or otherwise, by applicants for licences and by licensees;
1990, c. 37
Integrated Circuit Topography Act 90. Paragraph 14(4)(a) of the Integrated Circuit Topography Act is replaced by the following: (a) any lien for charges against the integrated circuit product or article, or any hypothecs, prior claims or rights of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec with respect to the integrated circuit product or article, that existed prior to the date of an order made under subsec��
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Federal Law–Civil Law
tion (1) has effect only so far as may be consistent with the due execution of the judgment; R.S., c. I-15
Interest Act 91. Section 4 of the Interest Act is replaced by the following:
When per annum rate not stipulated
4. Except as to mortgages on real property or hypothecs on immovables, whenever any interest is, by the terms of any written or printed contract, whether under seal or not, made payable at a rate or percentage per day, week, month, or at any rate or percentage for any period less than a year, no interest exceeding the rate or percentage of five per cent per annum shall be chargeable, payable or recoverable on any part of the principal money unless the contract contains an express statement of the yearly rate or percentage of interest to which the other rate or percentage is equivalent. 92. Section 6 of the Act and the heading before it are replaced by the following:
INTEREST ON MONEYS SECURED BY MORTGAGE ON REAL PROPERTY OR HYPOTHEC ON IMMOVABLES No interest recoverable in certain cases
6. Whenever any principal money or interest secured by mortgage on real property or hypothec on immovables is, by the mortgage or hypothec, made payable on a sinking fund plan, on any plan under which the payments of principal money and interest are blended or on any plan that involves an allowance of interest on stipulated repayments, no interest whatever shall be chargeable, payable or recoverable on any part of the principal money advanced, unless the mortgage or hypothec contains a statement showing the amount of the principal money and the rate of interest chargeable on that money, calculated yearly or half-yearly, not in advance. 93. Section 7 of the English version of the Act is replaced by the following:
No rate recoverable beyond that so stated
7. Whenever the rate of interest shown in the statement mentioned in section 6 is less than the rate of interest that would be chargeable by virtue of any other provision, calcula2001
Harmonisation du droit fédér tion or stipulation in the mortgage or hypothec, no greater rate of interest shall be chargeable, payable or recoverable, on the principal money advanced, than the rate shown in the statement. 94. Subsection 8(1) of the Act is replaced by the following:
No fine, etc., allowed on payments in arrears
8. (1) No fine, penalty or rate of interest shall be stipulated for, taken, reserved or exacted on any arrears of principal or interest secured by mortgage on real property or hypothec on immovables that has the effect of increasing the charge on the arrears beyond the rate of interest payable on principal money not in arrears. 95. Section 10 of the Act is replaced by the following:
When no further interest payable
10. (1) Whenever any principal money or interest secured by mortgage on real property or hypothec on immovables is not, under the terms of the mortgage or hypothec, payable until a time more than five years after the date of the mortgage or hypothec, then, if at any time after the expiration of the five years, any person liable to pay, or entitled to pay in order to redeem the mortgage, or to extinguish the hypothec, tenders or pays, to the person entitled to receive the money, the amount due for principal money and interest to the time of payment, as calculated under sections 6 to 9, together with three months further interest in lieu of notice, no further interest shall be chargeable, payable or recoverable at any time after the payment on the principal money or interest due under the mortgage or hypothec.
When section not to apply
(2) Nothing in this section applies to any mortgage on real property or hypothec on immovables given by a joint stock company or other corporation, nor to any debenture issued by any such company or corporation, for the payment of which security has been given by way of mortgage on real property or hypothec on immovables.
�� 1980-81-82-83, c. 85
C. 4
Federal Law–Civil Law An Act to incorporate the Jules and Paul-Émile Léger Foundation
96. Paragraph 4(c) of An Act to incorporate the Jules and Paul-Émile Léger Foundation is replaced by the following: (c) subject to the terms, if any, under which the property was acquired, create any security interest in, or hypothecate, all or any property of the Foundation, owned or subsequently acquired, to secure any obligation of the Foundation. R.S., c. L-1
Labour Adjustment Benefits Act 97. Section 23 of the French version of the Labour Adjustment Benefits Act is replaced by the following:
Incessibilité des prestations
1996, c. 9
23. Les prestations d’adaptation ne peuvent être cédées, grevées, saisies ou données en garantie et, sous réserve des paragraphes 22(1) et 26(1), toute opération en ce sens est nulle. Law Commission of Canada Act 98. Paragraph 4(e) of the French version of the Law Commission of Canada Act is replaced by the following: e) acquérir, par don, legs ou autre mode de libéralités, des biens, notamment sous forme d’argent ou de valeurs mobilières, et les détenir, employer, investir ou gérer, ou en disposer, pourvu qu’elle respecte les conditions dont sont éventuellement assorties ces libéralités;
R.S., c. 25 (1st Supp.)
Meat Inspection Act 99. Section 19 of the Meat Inspection Act is replaced by the following:
Evidence of financial responsibility
19. The Minister may require any person or class of persons importing meat products into Canada to provide evidence of financial responsibility in any form, including an insurance or indemnity bond, or a suretyship, that is satisfactory to the Minister.
2001 R.S., c. 29 (3rd Supp.)
Harmonisation du droit fédér Motor Vehicle Transport Act, 1987 100. (1) Paragraph 9(1)(g) of the English version of the Motor Vehicle Transport Act, 1987 is replaced by the following: (g) prescribing the type, amount and conditions of insurance coverage and of bonding or suretyship coverage required to be held by an extra-provincial truck undertaking; (2) Subsection 9(2) of the English version of the Act is replaced by the following:
Fitness criteria
R.S., c. N-3
(2) The criteria relating to the fitness of an applicant referred to in paragraph (1)(e) shall include requirements related to safety and insurance and may include requirements relating to bonding or suretyship coverage and to any other requirement relating to the fitness of an applicant to hold a licence. National Arts Centre Act 101. Paragraphs 10(a) and (b) of the National Arts Centre Act are replaced by the following: (a) acquire real, personal, movable and immovable property, including securities, and hold, manage or dispose of them as the Corporation may determine; (a.1) lease as lessee real, personal, movable and immovable property; (b) acquire by gift, bequest or devise real, personal, movable and immovable property and, despite anything in this Act, expend, administer or dispose of any such property, subject to the terms, if any, on which it was given, bequeathed or devised to the Corporation;
R.S., c. N-7
National Energy Board Act 102. (1) Paragraph 29(3)(b) of the National Energy Board Act is replaced by the following: (b) a trustee — or the holder of a power of attorney within the meaning of the Civil Code of Québec — for the holders of bonds, debentures, debenture stock or other evidence of indebtedness of the company, secured under a trust deed, an act constitut��
C. 4
Federal Law–Civil Law
ing a hypothec or other instrument or act, on or against the property of the company, if the trustee or holder is authorized by the instrument or act to carry on the business of the company, and (2) Section 29 of the Act is amended by adding the following after subsection (3): Administrator in Province of Quebec
(3.1) In the Province of Quebec the administrator of the property of the company appointed by a court of competent jurisdiction to carry on the business of the company is also deemed to be the company. 103. Paragraph 84(b) of the English version of the Act is replaced by the following: (b) claims against a company for loss of life or injury to the person; or 104. Paragraph 86(2)(d) of the Act is replaced by the following: (d) indemnification from all liabilities, damages, claims, suits and actions arising out of the operations of the company other than liabilities, damages, claims, suits and actions resulting from (i) in the Province of Quebec, the gross or intentional fault of the owner of the lands, and (ii) in any other province, the gross negligence or wilful misconduct of the owner of the lands; 105. Paragraph 111(b) of the Act is replaced by the following: (b) subject to the provisions of this Act, the company may create a lien, mortgage, charge or other security, or the company may constitute a hypothec, on the pipeline or on that part of it. 106. Paragraph 114(1)(b) of the Act is replaced by the following: (b) the creation of any lien, mortgage, hypothec, charge or other security on the property of the company, or of any prior claim or right of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec with respect to property of the company;
Harmonisation du droit fédér (c) the sale, elsewhere than in the Province of Quebec, under an order of a court of any property of the company to enforce or realize on any lien, mortgage, charge or other security on the property of the company; (d) the sale, in the Province of Quebec, under an order of a court or by judicial authority, of any property of the company to enforce or realize on any hypothec, charge or other security on the property of the company; and (e) the exercise of remedies for the enforcement and realization of any prior claim referred to in paragraph (b) or the exercise of any right of retention referred to in that paragraph.
R.S., c. N-8
National Film Act 107. (1) Paragraph 10(1)(c) of the National Film Act is replaced by the following: (c) acquire personal property and movable property in the name of the Board; (2) Paragraph 10(1)(e) of the Act is replaced by the following: (e) dispose of personal property and movable property held in the name of the Board or administered by the Board on behalf of Her Majesty, in processed form or otherwise, at the price and on the terms that the Board considers advisable;
R.S., c. N-15
National Research Council Act 108. Subsection 3(2) of the National Research Council Act is replaced by the following:
Council incorporated
(2) The Council is a body corporate that has power to acquire and hold real, personal, movable and immovable property for the purposes of and subject to this Act. 109. Paragraph 5(1)(f) of the French version of the Act is replaced by the following: f) acquérir, par don, legs ou autre mode de libéralités, des biens, notamment sous forme d’argent ou de valeurs mobilières, et les employer, les gérer ou en disposer, pourvu
��
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Federal Law–Civil Law
qu’il respecte les conditions dont sont assorties ces libéralités; R.S., c. N-21
Natural Sciences and Engineering Research Council Act 110. Section 16 of the French version of the Natural Sciences and Engineering Research Council Act is replaced by the following:
Libéralités
16. Le Conseil peut, par don, legs ou autre mode de libéralités, acquérir des biens, notamment sous forme d’argent ou de valeurs mobilières et, malgré toute disposition contraire de la présente loi, les employer, les gérer ou en disposer, pourvu qu’il respecte les conditions dont sont assorties ces libéralités.
R.S., c. O-9
Old Age Security Act
1997, c. 40, s. 105
111. Subsection 37(2.6) of the Old Age Security Act is replaced by the following:
Charge on land
(2.6) A document issued by the Federal Court or by a superior court of a province evidencing a certificate in respect of a debtor registered under subsection (2.3) or (2.4) may be recorded for the purpose of creating security, or a charge, lien or legal hypothec, on land in a province, or on an interest in land in a province, held or owned by the debtor, in the same manner as a document evidencing a judgment of the superior court of the province against a person for a debt owing by the person may be recorded in accordance with the law of the province to create security, or a charge, lien or legal hypothec, on land, or an interest in land, held or owned by the person.
R.S., c. P-8
Pension Fund Societies Act 112. Section 15 of the Pension Fund Societies Act is replaced by the following:
No assignment of interest of members
15. The interest of any member of a pension fund society in the funds of the society is not transferable, and may not be charged by way of pledge, hypothecation or movable hypothec without delivery, or be sold or assigned in any manner.
2001 R.S., c. P-10
Harmonisation du droit fédér Pesticide Residue Compensation Act 113. Section 1 of the French version of the Pesticide Residue Compensation Act is replaced by the following:
Titre abrégé
1. Loi sur l’indemnisation du dommage causé par des pesticides. 114. The heading ‘‘INDEMNISATION DES DOMMAGES CAUSÉS PAR DES PESTICIDES’’ before section 3 of the French version of the Act is replaced by the following: INDEMNISATION DU DOMMAGE CAUSÉ PAR DES PESTICIDES 115. Paragraph 3(1)(d) of the Act is replaced by the following: (d) the Minister is satisfied that the presence of the pesticide residue in or on the product is not due to any fault of the farmer, the farmer’s employee, agent or mandatary or of a previous owner of the land on which the product was grown, or that previous owner’s employee, agent or mandatary. 116. Subsection 5(1) of the English version of the Act is replaced by the following:
Action by farmer
5. (1) No payment of compensation shall be made to a farmer under this Act in respect of a loss suffered by the farmer by reason of pesticide residue in or on an agricultural product until the farmer has taken any steps that the Minister considers necessary (a) to reduce the loss suffered by the farmer by reason of that pesticide residue; and (b) to pursue any legal action that the farmer may have against (i) the manufacturer of the pesticide causing the residue in or on the product, or (ii) every person responsible for the presence of the pesticide residue in or on the product.
��
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Federal Law–Civil Law
R.S., c. S-8
Seeds Act
R.S., c. 49 (1st Supp.), s. 4(2)
117. Paragraph 4(1)(h.5) of the Seeds Act is replaced by the following: (h.5) determining the cases in which and the conditions, including provision of a bond or suretyship, under which seeds shall, for the purposes of this Act, be transported and stored on importation;
R.S., c. S-12
Social Sciences and Humanities Research Council Act 118. Section 17 of the French version of the Social Sciences and Humanities Research Council Act is replaced by the following:
Libéralités
17. Le Conseil peut, par don, legs ou autre mode de libéralités, acquérir des biens, notamment sous forme d’argent ou de valeurs mobilières et, malgré toute disposition contraire de la présente loi, les employer, les gérer ou en disposer, pourvu qu’il respecte les conditions dont sont assorties ces libéralités. 119. Section 18 of the Act is replaced by the following:
Property
1992, c. 17
18. The Council may, for the purposes of this Act, acquire, hold, manage and dispose of real, personal, movable and immovable property and, subject to this Act, and on the advice of the Investment Committee, may invest in any manner it sees fit any money received by the Council by gift, bequest or otherwise and may hold, manage and dispose of the investment.
Special Economic Measures Act 120. Subsection 5(3) of the Special Economic Measures Act is replaced by the following:
Existing equities maintained
(3) All secured and unsecured rights and interests held by persons, other than (a) a foreign state to which the order referred to in subsection (1) applies, (b) persons in that foreign state, and (c) nationals of that foreign state who do not ordinarily reside in Canada,
Harmonisation du droit fédér are entitled to the same ranking with respect to the rights and interests of Her Majesty and the owner in the proceeds of the sale referred to in subsection (2) as they would have been entitled to had this section not been enacted.
R.S., c. S-18
State Immunity Act 121. (1) Paragraph 6(a) of the English version of the State Immunity Act is replaced by the following: (a) any death or personal or bodily injury, or (2) Paragraph 6(b) of the French version of the Act is replaced by the following: b) des dommages aux biens ou perte de ceux-ci survenus au Canada.
1993, c. 38
Telecommunications Act 122. Subsection 72(1) of the French version of the Telecommunications Act is replaced by the following:
Recouvrement de dommagesintérêts
72. (1) Sous réserve des limites de responsabilité fixées sous le régime de la présente loi ou de toute autre loi, quiconque a subi une perte ou un dommage par suite d’un manquement soit aux dispositions de la présente loi ou d’une loi spéciale, soit à une décision ou un règlement pris au titre de celles-ci, peut en poursuivre, devant le tribunal compétent, le recouvrement contre le contrevenant ou celui qui a ordonné ou autorisé le manquement, ou qui y a consenti ou participé.
1998, c. 8, s. 10
123. Subsection 74.1(7) of the Act is replaced by the following:
Liability for costs
(7) Any persons convicted in respect of the forfeited apparatus are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, forfeiture or disposition incurred by Her Majesty that exceed any proceeds of the disposition of the apparatus that have been forfeited to Her Majesty under this section.
�� R.S., c. T-14
C. 4
Federal Law–Civil Law Trade Unions Act
124. Paragraph 4(1)(e) of the English version of the Trade Unions Act is replaced by the following: (e) to secure by bond or suretyship the performance of any of the agreements mentioned in paragraphs (a) to (d). 125. Subsections 15(1) and (2) of the English version of the Act are replaced by the following: Powers relating to land
15. (1) Any trade union registered under this Act may purchase, or take on lease, in the names of the trustees of the trade union, any land not exceeding one acre, and may sell, exchange, mortgage, hypothecate or lease the land.
Authority of trustees
(2) No purchaser, assignee, mortgagee, hypothecary creditor or tenant is bound to inquire whether the trustees of a trade union registered under this Act have authority for any sale, exchange, mortgage, hypothec or lease, and the receipt of the trustees is a discharge for the money arising from the sale, exchange, mortgage, hypothec or lease.
R.S., c. V-1
Department of Veterans Affairs Act 126. (1) Paragraph 5(1)(a) of the French version of the Department of Veterans Affairs Act is replaced by the following: a) en ce qui concerne la gestion et le contrôle de tout hôpital, atelier, foyer, école ou autre établissement appartenant à Sa Majesté ou utilisé par elle, en vue de soigner, de traiter ou de former des personnes ayant servi dans les Forces canadiennes ou dans la marine, l’armée de terre ou l’aviation de Sa Majesté ou de l’un de ses alliés ainsi que les personnes habilitées à y recevoir de tels services ou bénéficiant de prestations du ministère; (2) Paragraph 5(1)(c) of the Act is replaced by the following: (c) for the marking or stamping of artificial limbs or appliances issued from the Department, and to prevent the removal or defacement of the stamps or marks or the use of any counterfeit of the stamps or marks, and
Harmonisation du droit fédér to prevent the purchase, sale or other disposal or possession of the artificial limbs or appliances without the authority of the Minister; to forbid any false statement, suggestion or representation with respect to any artificial limbs, appliances or other goods manufactured in or for or issued from the Department;
R.S., c. V-2
Visiting Forces Act 127. Subsection 22(2) of the Visiting Forces Act is replaced by the following:
Salaries
(2) A member of a visiting force is exempt from taxation in Canada on the salary and emoluments paid to the member as a member by a designated state and in respect of any tangible personal or corporeal movable property that is in Canada temporarily by reason of the member’s presence in Canada as a member.
R.S., c. W-9; 1994, c. 23, s. 2(F)
Canada Wildlife Act
1994, c. 23, s. 13
128. Section 11.5 of the English version of the Canada Wildlife Act is replaced by the following:
Liability for costs
11.5 The lawful owner and any person who is lawfully entitled to the possession of anything seized, abandoned or forfeited under this Act are jointly and severally, or solidarily, liable for all the costs of inspection, seizure, abandonment, forfeiture or disposition incurred by Her Majesty in excess of any proceeds of its disposition that have been forfeited to Her Majesty under this Act. PART 7 CONSEQUENTIAL AMENDMENTS
1999, c. 17
Canada Customs and Revenue Agency Act 129. Paragraph 30(1)(c) of the Canada Customs and Revenue Agency Act is replaced by the following:
��
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Federal Law–Civil Law
(c) Agency real property and Agency immovables as defined in section 73; and 130. (1) Paragraph 60(2)(a) of the French version of the Act is replaced by the following: a) pour la vente, l’échange, la location, le prêt, le transfert ou toute autre disposition de biens, y compris les biens réels de l’Agence, au sens de l’article 73; (2) Subsection 60(2) of the Act is amended by adding the following after paragraph (a): (a.1) payments for the sale, exchange, loan, transfer or other disposition of property, and the leasing of property, including Agency immovables as defined in section 73;
131. The heading before section 73 and sections 73 to 84 of the Act are replaced by the following:
REAL PROPERTY AND IMMOVABLES Definitions
73. The definitions in this section apply in this section and in sections 74 to 84.
‘‘administration’’ « gestion »
‘‘administration’’ means the right to use, manage, construct, maintain or repair real property and immovables.
‘‘Agency immovable’’ « immeubles de l’Agence »
‘‘Agency immovable’’ means an immovable under the administration of the Agency.
‘‘Agency real property’’ « biens réels de l’Agence »
‘‘Agency real property’’ means real property under the administration of the Agency.
‘‘immovable’’ « immeuble »
‘‘immovable’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act.
‘‘licence’’ « permis »
‘‘licence’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act.
‘‘real property’’ « biens réels »
‘‘real property’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act.
2001 Administration of real property and immovables
Harmonisation du droit fédér 74. (1) The Agency has the administration of (a) real property acquired by the Agency by purchase, lease, transfer, gift, devise or otherwise; and (b) immovables acquired by the Agency by purchase, transfer, gift, legacy or otherwise and immovables of which it is the lessee.
Title
(2) Agency real property and Agency immovables are the property of the Crown and title may be held in the name of Her Majesty in right of Canada or in the name of the Agency.
Transfer of administration of real property and immovables
(3) For greater certainty, where the administration of any real property or immovable is transferred to the Agency, that real property or immovable is Agency real property or an Agency immovable.
Acquisition and leasing of real property and immovables
75. (1) The Agency may, in its own name or in the name of Her Majesty in right of Canada, (a) acquire real property by purchase, lease, gift, devise or otherwise; and (b) acquire immovables by purchase, gift, legacy or otherwise and lease immovables as lessee.
Disposition and leasing of real property and immovables
(2) The Agency may (a) dispose of Agency real property by sale, lease, gift or otherwise; and (b) dispose of Agency immovables by sale, gift or otherwise and lease Agency immovables as lessor.
Transactions with Her Majesty
(3) The Agency may, as if it were not an agent of Her Majesty, (a) acquire real property from, or dispose of Agency real property to, Her Majesty by deed, lease or otherwise; and (b) acquire immovables from, and dispose of Agency immovables to, Her Majesty, by act or otherwise, and lease immovables from, or lease Agency immovables to, Her Majesty.
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Licences
76. The Agency may give, acquire, relinquish or accept the relinquishment of a licence.
Transfers to provinces
77. (1) The Agency may transfer to Her Majesty in right of a province the administration and control of any Agency real property and Agency immovables.
Transfers from provinces
(2) The Agency may accept a transfer of the administration and control of any real property or immovables held by Her Majesty in right of a province.
Grants and concessions
78. (1) Agency real property may be granted and Agency immovables may be conceded (a) by letters patent under the Great Seal; (b) by an instrument of grant or an act of concession stating that it has the same force and effect as if it were letters patent; (c) by a plan if, under the laws of Canada or a province, a plan may operate as an instrument or act granting, conceding, dedicating, transferring or conveying real property or immovables; (d) by any instrument or act by which, under the laws in force in the province in which they are situated, real property or immovables may be transferred by a natural person; or (e) by any instrument or act by which, under the laws in force in a jurisdiction outside Canada in which they are situated, real property or immovables may be transferred.
Leases
(2) A leasehold estate in Agency real property within Canada may also be granted and a lease of Agency immovables within Canada may also be conceded by a lease that is not an instrument or act referred to in paragraph (1)(a) or (b), whether or not it is an instrument or act by which real property or immovables in a province may be transferred by a natural person.
Harmonisation du droit fédér
Effect of instrument or act
(3) An instrument or act referred to in paragraph (1)(b) has the same force and effect as if the instrument or act were letters patent under the Great Seal.
Signing instruments and acts
79. A licence, an instrument or an act granting, conceding or transferring Agency real property or Agency immovables, other than letters patent, must be signed by persons authorized to do so by the Agency.
Grants and concessions to Agency
80. The Agency may grant Agency real property, and may concede Agency immovables, to itself.
Utilities
81. (1) The Agency may provide utilities and other services on or from Agency real property and Agency immovables.
Services
(2) In carrying out its mandate, the Agency may incur expenditures or perform, or have performed, services or work in relation to any real property, immovable, work or other property not belonging to the Agency, with the consent of the owner.
Grants to municipalities
82. The Agency may make grants to a local municipality in an amount not greater than the taxes that might be levied by the municipality in respect of any Agency real property or Agency immovables if the Agency were not an agent of Her Majesty.
Consideration
83. Despite the Financial Administration Act, the amount of the rent or other consideration charged for the lease or easement of Agency real property, or the lease of or servitude over Agency immovables or a licence in respect of Agency real property or Agency immovables may be less than, equal to or more than the costs borne by Her Majesty in right of Canada in relation to the property.
Federal Real Property and Federal Immovables Act not applicable
84. (1) Subject to subsections (2) and (3), the Federal Real Property and Federal Immovables Act does not apply to the Agency.
Sections that apply to Agency
(2) Sections 8 and 9, subsection 11(2) and sections 12, 13 and 14 of the Federal Real Property and Federal Immovables Act apply to the Agency and any reference in those provisions to
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(a) federal real property is to be read as a reference to Agency real property; (b) federal immovables is to be read as a reference to Agency immovables; and (c) an instrument or act referred to in paragraph 5(1)(b) of that Act is to be read as a reference to an instrument or act referred to in paragraph 78(1)(b) of this Act. Par. 16(2)(g) of the Federal Real Property and Federal Immovables Act applies
(3) Paragraph 16(2)(g) of the Federal Real Property and Federal Immovables Act applies to the Agency as if it were an agent corporation within the meaning of that Act.
132. Subsection 103(2) of the Act is replaced by the following: Real property and immovables
1998, c. 10
(2) The administration of any real property or immovable and the administrative responsibility for any licence in respect of real property and immovables, as those terms are defined in section 73, that were, immediately before the coming into force of this section, under the administration or administrative responsibility of the Minister of National Revenue for the purposes of the Department of National Revenue are transferred to the Agency. Canada Marine Act 133. (1) The definition ‘‘immeubles fédéraux’’ in subsection 2(1) of the French version of the Canada Marine Act is repealed. (2) The definition ‘‘federal real property’’ in subsection 2(1) of the English version of the Act is replaced by the following:
‘‘federal real property’’ « bien réel fédéral »
‘‘federal real property’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act; (3) Subsection 2(1) of the English version of the Act is amended by adding the following in alphabetical order:
‘‘federal immovable’’ « immeuble fédéral »
‘‘federal immovable’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act;
Harmonisation du droit fédér (4) Subsection 2(1) of the French version of the Act is amended by adding the following in alphabetical order:
« bien réel fédéral » ‘‘federal real property’’
« bien réel fédéral » S’entend au sens de l’article 2 de la Loi sur les immeubles fédéraux et les biens réels fédéraux.
« immeuble fédéral » ‘‘federal immovable’’
« immeuble fédéral » S’entend au sens de l’article 2 de la Loi sur les immeubles fédéraux et les biens réels fédéraux. 134. The definition ‘‘port’’ in section 5 of the Act is replaced by the following:
‘‘port’’ « port »
‘‘port’’ means the navigable waters under the jurisdiction of a port authority and the real property and immovables that the port authority manages, holds or occupies as set out in the letters patent.
135. (1) Paragraphs 8(2)(d) and (e) of the Act are replaced by the following: (d) the federal real property and federal immovables under the management of the port authority; (e) the real property and immovables, other than the federal real property and federal immovables, held or occupied by the port authority; (2) Paragraph 8(2)(j) of the Act is replaced by the following: (j) the maximum term of a lease or licence of federal real property or federal immovables under the management of the port authority; 136. Paragraphs 10(3)(b) and (c) of the Act are replaced by the following: (b) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority; (c) the real property and immovables, other than federal real property and federal immovables, that the harbour commission occupied or the title to which it held, whether or not in its own name, and that are set out in the letters patent, and any rights
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related to them, become the interest, property and rights of the port authority, as the case may be; 137. (1) Paragraphs 12(3)(b) and (c) of the Act are replaced by the following: (b) the real property and immovables, and any rights related to them, that the local port corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, remain the property and rights of Her Majesty; (c) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority;
(2) Paragraphs 12(4)(b) and (c) of the Act are replaced by the following: (b) the real property and immovables, and any rights related to them, that form part of the port and that the Canada Ports Corporation administers, or the title to which it holds, on behalf of Her Majesty in right of Canada, whether or not in its own name, remain the property and rights of Her Majesty; (c) the management of the federal real property and federal immovables set out in the letters patent, and any rights related to them, is conferred on the port authority;
138. Subsection 28(10) of the Act is replaced by the following: Existing uses
(10) Except for a use authorized under this Act, a port authority may continue to use any real property or immovable that it manages, holds or occupies for any purpose for which the real property or immovable was used on June 1, 1996 in the case of a port authority referred to in section 12, or the date of issuance of its letters patent in any other case, but, if the port authority ceases to use it for that purpose at any time, the port authority may not reinstitute the use.
Harmonisation du droit fédér 139. (1) Subsections 31(3) and (4) of the Act are replaced by the following:
No pledge of property
(3) Subject to subsection (4), a port authority may not mortgage, hypothecate, pledge or otherwise create a security interest in any federal real property or federal immovable that it manages in any way other than to pledge the revenues of that property.
Pledge of fixtures
(4) A port authority may, if authorized in the letters patent, create a security interest in fixtures on federal real property and federal immovables to the same extent as Her Majesty could create such an interest and may, instead of Her Majesty, execute and deliver the documents required for that purpose. (2) Subsection 31(6) of the Act is replaced by the following:
Application of provincial law
(6) A grant under subsection (4) may be effected by any instrument by which an interest in real property or a right in an immovable may be granted by a private person under the laws in force in the province in which the federal real property, federal immovable or fixtures are situated. 140. (1) Subsections 44(1) to (3) of the Act are replaced by the following:
Federal Real Property and Federal Immovables Act
44. (1) For the purposes of the Federal Real Property and Federal Immovables Act, the Minister has the administration of the federal real property and federal immovables of a port in respect of which letters patent have been issued to the port authority, other than property the administration of which is under any other member of the Queen’s Privy Council for Canada.
Management
(2) The Minister may, in the letters patent, give to a port authority the management of any federal real property or federal immovable that is administered by (a) the Minister under subsection (1); or (b) any other member of the Queen’s Privy Council for Canada, if the Minister has the consent of that other member.
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(3) If the Minister gives the management of any federal real property or federal immovable to a port authority, the Federal Real Property and Federal Immovables Act, other than sections 12 to 14 and paragraphs 16(1)(a), (g) and (i) and (2)(g), does not apply to that property. (2) Subsections 44(5) and (6) of the Act are replaced by the following:
Notice to Minister
(5) If a port authority is of the opinion that any real property or immovable is no longer required for port purposes, it shall so inform the Minister.
Holding of real property and immovables
(6) A port authority may manage, occupy or hold only the real property and immovables set out in its letters patent. 141. Sections 45 and 46 of the Act are replaced by the following:
Powers and obligations when management given
45. (1) When the Minister has given the management of any federal real property or federal immovable to a port authority, the port authority (a) need not pay compensation for the use of that property; (b) may retain and use the revenue received in respect of that property for the purpose of operating the port; (c) shall undertake and defend any legal proceedings with respect to that property; and (d) shall discharge all obligations and liabilities with respect to that property.
Legal proceedings
(2) A civil, criminal or administrative action or proceeding with respect to any federal real property or federal immovable that a port authority manages, or any property that it holds, or with respect to any act or omission occurring on the property, shall be taken by or against the port authority and not by or against the Crown.
Leases and licences
(3) A port authority may, for the purpose of operating the port, lease or license any federal real property or federal immovable that it manages, subject to the limits in the port authority’s letters patent on its authority to contract as agent for Her Majesty in right of
Harmonisation du droit fédér Canada. The term of the lease or licence may not be more than the maximum term that the letters patent set out for such a lease or licence.
Powers
(3.1) The port authority may exercise the powers under subsection (3) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose.
Application of provincial law
(4) A lease or licence of any federal real property or federal immovable may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be leased or a licence may be granted by a private person.
Disposition of federal real property and federal immovables
46. (1) Subject to subsection 45(3), a port authority may not dispose of any federal real property or federal immovable that it manages but it may (a) without the issuance of supplementary letters patent, grant road allowances or easements, rights of way or licences for utilities, services or access; and (b) to the extent authorized in the letters patent, (i) exchange that property for other real property or immovables of comparable market value subject to the issuance of supplementary letters patent that describe the other property as federal real property or federal immovables, and (ii) dispose of fixtures on federal real property and federal immovables.
Powers
(1.1) The port authority may exercise the powers under paragraph (1)(a) or (b) to the same extent as Her Majesty could exercise those powers and may, instead of Her Majesty, execute and deliver the documents required for that purpose.
Other real property and immovables
(2) A port authority may dispose of any real property or immovable that it occupies or holds, other than federal real property or federal immovables, subject to the issuance of
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supplementary letters patent, and, without the issuance of supplementary letters patent, it may grant road allowances or easements, rights of way or licences for utilities, services or access.
Application of provincial law
(3) A grant may be effected by any instrument by which an interest in real property or a right in an immovable may be granted by a private person under the laws in force in the province in which the federal real property or federal immovable is situated. 142. Subsections 48(1) to (3) of the Act are replaced by the following:
Land-use plan
Contents of plan
48. (1) A port authority shall, within twelve months after the issuance of its letters patent, develop a detailed land-use plan that contains objectives and policies for the physical development of the real property and immovables that it manages, holds or occupies and that takes into account relevant social, economic and environmental matters and zoning bylaws that apply to neighbouring lands.
(2) The land-use plan may (a) prohibit the use of some or all of the real property and immovables for, or except for, certain purposes; (b) prohibit the erecting of structures or works or certain types of structures or works; and (c) subject to any regulations made under section 62, regulate the type of structures or works that may be erected.
Existing structures
(3) A land-use plan shall not have the effect of preventing (a) the use of any real property or immovable existing on the day on which the land-use plan comes into force for the purpose for which it was used on that day, so long as it continues to be used for that purpose; or
Harmonisation du droit fédér (b) the erecting or alteration of a structure or work that was authorized before the day on which the land-use plan comes into force if the erecting or alteration is carried out in accordance with the authorization. 143. Paragraph 62(1)(h) of the Act is replaced by the following: (h) the stewardship obligation of a port authority in respect of federal real property and federal immovables under the management of the port authority. 144. Section 66 of the Act is replaced by the following:
Federal Real Property and Federal Immovables Act
66. (1) For the purposes of the Federal Real Property and Federal Immovables Act, the Minister has the administration of the federal real property and federal immovables that form part of a public port or public port facility.
Other ports and facilities
(2) The Minister does not have the administration of the federal real property and federal immovables that are under the administration of any other member of the Queen’s Privy Council for Canada.
Power of Minister
(3) For greater certainty, the repeal of the designation of a public port or public port facility does not terminate the application of the Federal Real Property and Federal Immovables Act to the federal real property and federal immovables that formed part of the port or facility and that are owned by Her Majesty in right of Canada. 145. Section 71 of the Act and the heading before it are replaced by the following: Federal Real Property and Federal Immovables
Leases and licences
71. (1) Despite the Federal Real Property and Federal Immovables Act, the Minister may lease any federal real property or federal immovable that forms, or formed, part of a public port or public port facility or grant a licence in respect of the property, for twenty years or for a longer period with the approval of the Governor in Council.
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(2) A lease or licence of any federal real property or federal immovable may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be leased or a licence may be granted by a private person. 146. (1) Paragraphs 72(1)(a) and (b) of the Act are replaced by the following: (a) the disposal of all or part of the federal real property and federal immovables that formed part of a public port or public port facility by sale or any other means; and (b) the transfer of the administration and control of all or part of the federal real property and federal immovables that formed part of a public port or public port facility to Her Majesty in right of a province.
(2) Subsections 72(5) and (6) of the Act are replaced by the following: Disposal and transfer
(5) The disposal or transfer of federal real property and federal immovables may be effected under the authority of this section or the Federal Real Property and Federal Immovables Act.
Application of provincial law
(6) The disposal or transfer of federal real property and federal immovables under this section may be effected by any instrument by which, under the laws in force in the province in which that property is situated, real property or immovables may be transferred by a private person. 147. (1) Subsection 80(1) of the French version of the Act is replaced by the following:
Transfert
80. (1) Le ministre peut ordonner à l’Administration de lui transférer ou de transférer — selon les modalités qu’il précise — à un membre du Conseil privé de la Reine pour le Canada, à toute autre personne ou à une entité constituée au titre d’une entente internationale la totalité ou une partie de ses biens ou entreprises; l’Administration est tenue de se conformer immédiatement à cet ordre; la Loi
Harmonisation du droit fédér sur les immeubles fédéraux et les biens réels fédéraux et la Loi sur les biens de surplus de la Couronne ne s’appliquent pas au transfert.
(2) Subsection 80(3) of the Act is replaced by the following: Federal Real Property and Federal Immovables Act
(3) The Federal Real Property and Federal Immovables Act does not apply to a transfer under subsection (1) or (2) unless it is a sale of land to a person or body other than the Minister or any other member of the Queen’s Privy Council for Canada.
148. Section 90 of the Act is replaced by the following: Federal Real Property and Federal Immovables Act
90. For the purposes of the Federal Real Property and Federal Immovables Act, the Minister or other member of the Queen’s Privy Council for Canada to whom any federal real property or federal immovable is transferred under subsection 80(1) or (2) has the administration of that property. 149. Subsections 91(2) to (4) of the Act are replaced by the following:
Legal proceedings
(2) A civil, criminal or administrative action or proceeding with respect to any federal real property or federal immovable that a person who has entered into an agreement under subsection 80(5) manages, or any property that the person holds, or with respect to any act or omission occurring on the property, shall be taken by or against the person and not the Crown.
Federal Real Property and Federal Immovables Act does not apply
(3) The Federal Real Property and Federal Immovables Act, other than section 12, does not apply to a lease or licence referred to in paragraph (1)(c).
Application of provincial law
(4) A lease or licence may be effected by any instrument by which real property or immovables may be leased or a licence may be granted by a private person under the laws in force in the province in which the property is situated.
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150. The portion of subsection 98(1) of the French version of the Act before paragraph (a) is replaced by the following: Pouvoir réglementaire
1987, c. 3
98. (1) Le gouverneur en conseil peut prendre des règlements en vue de la gestion, du contrôle, de l’aménagement et de l’utilisation de la voie maritime, des immeubles et des biens réels ou entreprises connexes, notamment en ce qui touche : Canada-Newfoundland Atlantic Accord Implementation Act
1991, c. 50, s. 23
151. Subsection 167(2) of the CanadaNewfoundland Atlantic Accord Implementation Act is replaced by the following:
Pooling agreement by Her Majesty
(2) The Board may, on behalf of Her Majesty, enter into a pooling agreement on any terms and conditions that it deems advisable and, despite anything in Part II or this Part, the Federal Real Property and Federal Immovables Act or any regulations made under those Parts or that Act, the pooling agreement is binding on Her Majesty.
1991, c. 50, s. 24
152. Subsection 172(2) of the Act is replaced by the following:
Board may enter into unit agreement
(2) The Board may enter into a unit agreement binding on Her Majesty, on any terms and conditions that it may deem advisable, and any of the regulations under Part II or this Part or the Federal Real Property and Federal Immovables Act that may be in conflict with the terms and conditions of the unit agreement stand varied or suspended to the extent necessary to give full effect to the terms and conditions of the unit agreement.
1988, c. 28
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
1991, c. 50, s. 25
153. Subsection 172(2) of the CanadaNova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Pooling agreement by Her Majesty
(2) The Board may, on behalf of Her Majesty, enter into a pooling agreement on any terms and conditions that it deems advisable and, despite anything in Part II or this Part, the Federal Real Property and Federal
Harmonisation du droit fédér Immovables Act or any regulations made under those Parts or that Act, the pooling agreement is binding on Her Majesty.
1991, c. 50, s. 26
154. Subsection 177(2) of the Act is replaced by the following:
Board may enter into unit agreement
(2) The Board may enter into a unit agreement binding on Her Majesty, on any terms and conditions that it may deem advisable, and any of the regulations under Part II or this Part or the Federal Real Property and Federal Immovables Act that may be in conflict with the terms and conditions of the unit agreement stand varied or suspended to the extent necessary to give full effect to the terms and conditions of the unit agreement.
1995, c. 11
Department of Canadian Heritage Act 155. The portion of paragraph 7(b) of the Department of Canadian Heritage Act before subparagraph (i) is replaced by the following: (b) subject to the Federal Real Property and Federal Immovables Act and any direction made by the Treasury Board,
1996, c. 16
Department of Public Works and Government Services Act 156. (1) The definition ‘‘federal real property’’ in section 2 of the English version of the Department of Public Works and Government Services Act is replaced by the following:
‘‘federal real property’’ « bien réel fédéral »
‘‘federal real property’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act; (2) The definition ‘‘immeuble fédéral’’ in section 2 of the French version of the Act is replaced by the following:
« immeuble fédéral » ‘‘federal immovable’’
« immeuble fédéral » S’entend au sens de l’article 2 de la Loi sur les immeubles fédéraux et les biens réels fédéraux. (3) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:
« bien réel fédéral » ‘‘federal real property’’
« bien réel fédéral » S’entend au sens de l’article 2 de la Loi sur les immeubles fédéraux et les biens réels fédéraux.
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(4) Section 2 of the English version of the Act is amended by adding the following in alphabetical order: ‘‘federal immovable’’ « immeuble fédéral »
‘‘federal immovable’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act; 157. (1) Paragraph 6(e) of the Act is replaced by the following: (e) the construction, maintenance and repair of public works, federal real property and federal immovables; (2) Paragraph 6(h) of the Act is replaced by the following: (h) the provision to departments of advice on or services related to architectural or engineering matters affecting any public work, federal real property or federal immovable; and
1999, c. 31, s. 73(F)
158. (1) Subsection 10(1) of the Act is replaced by the following:
Federal real property and federal immovables
10. (1) The Minister has the administration of all federal real property and federal immovables except those under the administration of any other minister, board or agency of the Government of Canada or any corporation. (2) Paragraph 10(2)(a) of the Act is replaced by the following: (a) any federal real property or federal immovable; 159. (1) Subsection 23(1) of the Act is replaced by the following:
Regulations
23. (1) The Governor in Council may make any regulations that the Governor in Council deems necessary for the management, maintenance, proper use and protection of federal real property and federal immovables under the administration of the Minister and of public works and for the ascertaining and collection of tolls, dues and revenues with respect to them. (2) Subparagraph 23(2)(b)(ii) of the Act is replaced by the following: (ii) in respect of which a regulation has otherwise been contravened or any damage done to a public work or to any federal real property or federal immovable and not paid for, or
Harmonisation du droit fédér
R.S., c. F-11
Financial Administration Act
1991, c. 50, s. 27
160. Section 61 of the Financial Administration Act is replaced by the following:
Transfers, etc., of public property
61. (1) Subject to any other Act of Parliament, no transfer, lease or loan of public property shall be made except under the Federal Real Property and Federal Immovables Act in the case of federal real property or a federal immovable as defined in that Act, or under subsection (2) in the case of other public property.
Regulations
(2) The Governor in Council, on the recommendation of the Treasury Board, may authorize or make regulations authorizing the transfer, lease or loan of public property other than federal real property and federal immovables as defined in the Federal Real Property and Federal Immovables Act.
1991, c. 50, s. 28
161. Subsection 99(6) of the Act is replaced by the following:
Provision and Acts not applicable
(6) Section 61 of this Act, the Surplus Crown Assets Act, and the Federal Real Property and Federal Immovables Act, except paragraphs 16(1)(g) and (h) and (2)(g) and subsection 18(6), do not apply to an agent corporation.
R.S., c. I-16
International Boundary Commission Act
1993, c. 34, s. 86
162. Section 9 of the International Boundary Commission Act is replaced by the following:
Claims in liability against Canadian Commissioner
9. For the purposes of section 3 of the Crown Liability and Proceedings Act, the person appointed by the Governor in Council to be the Canadian member of the Commission while acting within the scope of the member’s duties or employment shall be deemed to be a servant of the Crown.
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R.S., c. O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
1991, c. 50, s. 35
163. Subsection 30(2) of the Canada Oil and Gas Operations Act is replaced by the following:
Pooling agreement by Her Majesty
(2) The Minister may, on behalf of Her Majesty, enter into a pooling agreement on any terms and conditions that the Minister deems advisable and, despite anything in this Act, the Territorial Lands Act, the Federal Real Property and Federal Immovables Act, the Canada Petroleum Resources Act or any regulations made under those Acts, the pooling agreement is binding on Her Majesty.
1991, c. 50, s. 36
164. Subsection 37(2) of the Act is replaced by the following:
Minister may enter into unit agreement
(2) The Minister may enter into a unit agreement binding on Her Majesty, on any terms and conditions that the Minister may deem advisable, and any of the regulations under this Act, the Territorial Lands Act, the Federal Real Property and Federal Immovables Act or the Canada Petroleum Resources Act that may be in conflict with the terms and conditions of the unit agreement stand varied or suspended to the extent necessary to give full effect to the terms and conditions of the unit agreement.
2000, c. 33
Manitoba Claim Settlements Implementation Act 165. Paragraph 11(2)(b) of the Manitoba Claim Settlements Implementation Act is replaced by the following: (b) the right or interest has been granted to the third party under the Federal Real Property and Federal Immovables Act; or
1998, c. 31
Parks Canada Agency Act 166. (1) Subsection 20(1) of the Parks Canada Agency Act is replaced by the following:
Interpretation
20. (1) For the purposes of paragraphs (2)(b) and 21(2)(a), terms and expressions used in those paragraphs have the same meaning as in the Federal Real Property and Federal Immovables Act.
Harmonisation du droit fédér (2) Paragraph 20(2)(b) of the Act is replaced by the following: (b) proceeds from any of the following transactions in respect of federal real property and federal immovables under the administration of the Minister for the purposes of the Agency: (i) the lease or giving of a licence, (ii) the transfer to Her Majesty in any right other than Canada of administration and control, otherwise than in perpetuity, and (iii) a disposition of any right or interest, other than a disposition referred to in paragraph 21(2)(a); 167. Paragraph 21(2)(a) of the Act is replaced by the following: (a) any of the following transactions in respect of federal real property and federal immovables under the administration of the Minister for the purposes of the Agency: (i) the sale or any other disposition in perpetuity of any right or interest, (ii) the transfer of administration to another minister or to an agent corporation, and (iii) the transfer of administration and control in perpetuity to Her Majesty other than in right of Canada; and
R.S., c. R-8
Revolving Funds Act
1996, c. 16, s. 55
168. Subsection 5(4) of the Revolving Funds Act is replaced by the following:
Limit on expenditures
(4) There may be charged to the fund referred to in section 5.1 and credited to the fund established by this section (a) any fees payable to the Minister of Public Works and Government Services for the sale or transfer of federal real property or federal immovables; and (b) any expenditures made under subsection (1) in respect of the sale or transfer of that property, including expenditures made to prepare the property for sale or transfer.
1996, c. 16, s. 55
169. (1) Subsections 5.1(1) to (3) of the Act are replaced by the following:
�� Definitions
‘‘administration’’ « gestion »
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Federal Law–Civil Law
5.1 (1) The definitions in this subsection apply in this section. ‘‘administration’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act.
‘‘federal immovable’’ « immeuble fédéral »
‘‘federal immovable’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act, except that it does not include a lease of an immovable.
‘‘federal real property’’ « bien réel fédéral »
‘‘federal real property’’ has the same meaning as in section 2 of the Federal Real Property and Federal Immovables Act, except that it does not include a lease of real property.
Expenditures out of C.R.F.
(2) The Minister of Public Works and Government Services may make expenditures out of the Consolidated Revenue Fund for the purpose of (a) the sale, or the preparation for sale, of federal real property and federal immovables; (b) the transfer, or the preparation for transfer, of the administration of federal real property or a federal immovable from one minister to another; or (c) the transfer, or the preparation for transfer, of the administration and control of federal real property and federal immovables to Her Majesty in any right other than of Canada.
Limit on expenditures
(3) The Minister may spend, for the purposes mentioned in subsection (2), any revenues received in respect of those purposes and, subject to any terms and conditions that the Treasury Board may approve with the concurrence of the Minister of Finance, any proceeds from the sale or transfer of federal real property and federal immovables.
1996, c. 16, s. 55
(2) Subsection 5.1(4) of the English version of the Act is replaced by the following:
Limit on expenditures
(4) The aggregate of expenditures made under subsection (2) shall not at any time exceed by more than five million dollars the revenues received and the proceeds of sale or transfer of federal real property and federal immovables received in respect of the purposes mentioned in that subsection.
Harmonisation du droit fédér
R.S., c. S-27
Surplus Crown Assets Act
1991, c. 50, s. 42
170. Section 2.1 of the Surplus Crown Assets Act is replaced by the following:
Application
2.1 This Act does not apply in respect of real property or immovables as defined in the Federal Real Property and Federal Immovables Act or licences in respect thereof.
R.S., c. T-18
Department of Transport Act
1991, c. 50, s. 46
171. Subsection 12(3) of the Department of Transport Act is replaced by the following:
Real property and immovables excluded
(3) This section does not apply in respect of any instrument or act the execution of which is provided for by or under the Federal Real Property and Federal Immovables Act.
R.S., c. V-2
Visiting Forces Act
1993, c. 34, s. 135
172. Section 15 of the Visiting Forces Act is replaced by the following:
Claims against designated states
15. For the purposes of the Crown Liability and Proceedings Act, (a) in the Province of Quebec (i) a fault committed by a member of a visiting force while acting within the scope of their duties or employment shall be deemed to have been committed by a servant of the Crown while acting within the scope of their duties or employment, (ii) property owned by or in the custody of a visiting force shall be deemed to be owned by or in the custody of the Crown, and (iii) a service motor vehicle of a visiting force shall be deemed to be owned by the Crown; and (b) in any other province, (i) a tort committed by a member of a visiting force while acting within the scope of their duties or employment shall be deemed to have been committed by a servant of the Crown while acting within the scope of their duties or employment,
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Federal Law–Civil Law (ii) property owned, occupied, possessed or controlled by a visiting force shall be deemed to be owned, occupied, possessed or controlled by the Crown, and (iii) a service motor vehicle of a visiting force shall be deemed to be owned by the Crown.
Terminology Changes References
173. In the following provisions of the French version of the following Acts, ‘‘Loi sur l’indemnisation des dommages causés par des pesticides’’ is replaced by ‘‘Loi sur l’indemnisation du dommage causé par des pesticides’’: (a) in the Health of Animals Act, (i) the definition ‘‘évaluateur’’ in subsection 2(1), and (ii) subsections 59(2) and (3); and (b) in the Plant Protection Act, (i) the definition ‘‘évaluateur’’ in section 3, and (ii) subsections 43(2) and (3).
PART 8 COORDINATING AMENDMENTS R.S., c. G-10
174. (1) Paragraph 45(1)(b) of the English version of the Canada Grain Act is replaced by the following: (b) if the application is for a primary elevator, process elevator or grain dealer’s licence, subject to the regulations, fix the security to be given by the applicant, by way of bond, suretyship, insurance or otherwise, having regard to the applicant’s potential obligations for the payment of money or the delivery of grain to producers of grain who are holders of cash purchase tickets, elevator receipts or grain receipts issued pursuant to this Act in relation to grain other than special crops produced by the holders.
Harmonisation du droit fédér
Coming into force
(2) Subsection (1) comes into force on the later of the coming into force of subsection 88(1) of this Act and section 4 of An Act to amend the Canada Grain Act and the Agriculture and Agri-Food Administrative Monetary Penalties Act and to repeal the Grain Futures Act, chapter 22 of the Statutes of Canada, 1998.
R.S., c. I-15
175. (1) Subsection 4(1) of the Interest Act is replaced by the following:
When annual rate not stipulated
4. (1) Except as to mortgages on real property or hypothecs on immovables, whenever any interest is, by the terms of any written or printed contract, whether under seal or not, made payable at a rate or percentage per day, week, month, or any rate or percentage for any period less than a year, no interest exceeding the rate or percentage prescribed by regulation shall be chargeable, payable or recoverable on any part of the principal money unless the contract contains an express statement of the yearly rate or percentage of interest to which the other rate or percentage is equivalent, calculated in accordance with the regulations.
Coming into force
(2) Subsection (1) comes into force on the later of the coming into force of section 91 of this Act and section 17 of the Agreement on Internal Trade Implementation Act, chapter 17 of the Statutes of Canada, 1996.
R.S., c. I-15
176. (1) Subsection 6(1) of the Interest Act and the heading before it are replaced by the following: INTEREST ON MONEYS SECURED BY MORTGAGE ON REAL PROPERTY OR HYPOTHEC ON IMMOVABLES
Interest recoverable in certain cases
6. (1) Whenever any principal money or interest secured by mortgage on real property or hypothec on immovables is, by the mortgage or hypothec, made payable on a sinking fund plan, on any plan under which the payments of principal money and interest are blended, on any plan that involves an allowance of interest on stipulated payments or on any fund or plan described in the regulations, no interest whatever shall be chargeable,
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Federal Law–Civil Law
payable or recoverable on any part of the principal money advanced unless the mortgage or hypothec contains an express statement showing the amount of the principal money and the rate of interest chargeable on that money, calculated in accordance with the regulations. Coming into force
(2) Subsection (1) comes into force on the later of the coming into force of section 92 of this Act and section 18 of the Agreement on Internal Trade Implementation Act, chapter 17 of the Statutes of Canada, 1996.
PART 9 TRANSITIONAL PROVISION AND COMING INTO FORCE Transitional Provision Bankruptcy and Insolvency Act — ‘‘secured creditor’’
177. (1) The definition ‘‘secured creditor’’ in subsection 2(1) of the Bankruptcy and Insolvency Act, as enacted by section 25 of this Act, applies only to bankruptcies or proposals in respect of which proceedings are commenced after the coming into force of that section, but nothing in this subsection shall be construed as changing the status of any person who was a secured creditor in respect of a bankruptcy or a proposal in respect of which proceedings were commenced before the coming into force of that section.
Bankruptcy and Insolvency Act — par. 136(1)(e)
(2) Paragraph 136(1)(e) of the Bankruptcy and Insolvency Act, as enacted by section 31 of this Act, applies only to bankruptcies or proposals in respect of which proceedings are commenced after the coming into force of that section, but nothing in this subsection shall be construed as changing the status of any person who was a secured creditor in respect of a bankruptcy or a proposal in respect of which proceedings were commenced before the coming into force of that section.
Bankruptcy and Insolvency Act — par. 178(1)(d)
(3) Paragraph 178(1)(d) of the Bankruptcy and Insolvency Act, as enacted by section 32 of this Act, applies only to bankruptcies in respect of which proceedings are commenced after the coming into force of that section.
Coming into force
Harmonisation du droit fédér Coming into Force 178. The provisions of this Act, other than Part 8, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 5
An Act to amend the Employment Insurance Act and the Employment Insurance (Fishing) Regulations
BILL C-2 ASSENTED TO 10th MAY, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Employment Insurance Act and the Employment Insurance (Fishing) Regulations’’.
SUMMARY This enactment extends the period for the application of a provision of the Employment Insurance Act, changes the method of calculating the maximum yearly insurable earnings, exempts persons who receive certain special benefits from being considered as new entrants or re-entrants to the labour force, removes the reduction of the rate of weekly benefits, gives the Governor in Council the power to set, for the years 2002 and 2003, the premium rate applicable to insurable earnings, reduces the number of cases in which benefits have to be repaid and amends the Employment Insurance (Fishing) Regulations.
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49-50 ELIZABETH II
CHAPTER 5 An Act to amend the Employment Insurance Act and the Employment Insurance (Fishing) Regulations [Assented to 10th May, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1996, c. 23
EMPLOYMENT INSURANCE ACT
1. (1) Subsection 2(5) of the Employment Insurance Act is replaced by the following: Weeks of benefits paid
(5) For the purposes of subsection 7(4.1) and section 145, the Commission may, with the approval of the Governor in Council, make regulations for establishing how many weeks of benefits a claimant was paid, in order to take into account benefit reductions or deductions in the calculation or payment of those benefits. (2) Regulations made under subsection 2(5) of the Act, as enacted by subsection (1), may, if they so provide, have effect with respect to any period before the commencement of this subsection. 2. Subsection 3(2) of the Act is replaced by the following:
Report
(2) The Commission shall report to the Minister on its assessment annually from 2001 to 2006, no later than March 31 following the end of each of those years. The Commission shall make any additional reports at any other times, as the Minister may request.
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Maximum yearly insurable earnings
Calculation of amount
C. 5
Employment
3. (1) Section 4 of the Act is replaced by the following: 4. (1) For the purposes of subsection 14(1.1), section 17, subsection 82(2) and sections 95 and 145, the maximum yearly insurable earnings is $39,000 until the amount calculated in accordance with subsection (2) for a year, before rounding down under subsection (4), exceeds $39,000, in which case the maximum yearly insurable earnings for that year is that amount, rounded down under subsection (4). (2) The amount referred to in subsection (1) is the amount equal to 52 times the product obtained by multiplying (a) the average for the twelve month period ending on June 30 in the preceding year of the Average Weekly Earnings for each month in that period by (b) the ratio that the average for the twelve month period ending on June 30 in that preceding year of the Average Weekly Earnings for each month in that twelve month period bears to the average for the twelve month period ending twelve months prior to June 30 of that preceding year of the Average Weekly Earnings for each month in that twelve month period ending twelve months prior to June 30 of that preceding year.
Subsequent years
(3) For years subsequent to the year in which the maximum yearly insurable earnings exceeds $39,000, before rounding down under subsection (4), the maximum yearly insurable earnings is the maximum yearly insurable earnings for the preceding year, before rounding down under subsection (4), multiplied by the ratio that the average for the twelve month period ending on June 30 in that preceding year of the Average Weekly Earnings for each month in that twelve month period bears to the average for the twelve month period ending twelve months prior to June 30 of that preceding year of the Average Weekly Earnings for each month in that twelve month period ending twelve months prior to June 30 of that preceding year.
Assurance
Rounding down
(4) If the amount calculated in accordance with subsection (2) or (3) is not a multiple of one hundred dollars, the amount of the maximum yearly insurable earnings is rounded down to the nearest multiple of one hundred dollars.
Average Weekly Earnings
(5) The Average Weekly Earnings for a month is the average weekly earnings of the Industrial Aggregate in Canada for the month as published by Statistics Canada under the authority of the Statistics Act. (2) Section 4 of the Act, as enacted by subsection (1), applies in respect of the year 2002 and subsequent years. 4. (1) Section 7 of the Act is amended by adding the following after subsection (4):
Exception
(4.1) An insured person is not a new entrant or a re-entrant if the person has been paid one or more weeks of special benefits referred to in paragraph 12(3)(a) or (b) in the period of 208 weeks preceding the period of 52 weeks before their qualifying period or in other circumstances, as prescribed by regulation, arising in that period of 208 weeks.
(2) Subsection 7(4.1) of the Act, as enacted by subsection (1), applies to a claimant in respect of a benefit period beginning on or after October 1, 2000. 5. Section 15 of the Act is repealed. 6. Section 17 of the Act is replaced by the following: Maximum rate of weekly benefits
17. The maximum rate of weekly benefits is 55 % of the maximum yearly insurable earnings divided by 52.
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Employment
7. Subsection 28(6) of the Act is replaced by the following: Presumption
(6) For the purposes of this Part, benefits are deemed to be paid for the weeks of disqualification. 8. Subsection 38(3) of the Act is replaced by the following:
Determination under subsection 145(2)
(3) For greater certainty, weeks of regular benefits that are repaid as a result of an act or omission mentioned in subsection (1) are deemed to be weeks of regular benefits paid for the purposes of the application of subsection 145(2). 9. The Act is amended by adding the following after section 66:
Premium rate for 2002 and 2003
66.1 Notwithstanding section 66, the premium rate for each of the years 2002 and 2003 is the rate set for the year by the Governor in Council on the recommendation of the Minister and the Minister of Finance. 10. Section 67 of the Act is replaced by the following:
Employee’s premium
67. Subject to section 70, a person employed in insurable employment shall pay, by deduction as provided in subsection 82(1), a premium equal to their insurable earnings multiplied by the premium rate set under section 66 or 66.1, as the case may be. 11. (1) Paragraph 145(1)(a) of the Act is replaced by the following: (a) the total benefits, other than special benefits, paid to the claimant in the taxation year, and
1998, c. 19, s. 272(1)
(2) Subsections 145(2) to (8) of the Act are replaced by the following:
Exception
(2) Subsection (1) does not apply in respect of a claimant who was paid regular benefits for less than one week in the ten years before the taxation year referred to in that subsection.
2001 Excluded benefits
Time for repayment
Assurance (3) Regular benefits paid for weeks beginning before June 30, 1996 shall not be taken into account when applying subsection (2). (4) A repayment must be made (a) in the case of a claimant who dies after October in the year and before May in the next year, within six months after the day of death; and (b) in any other case, on or before April 30 in the next year.
Limitation
(5) For greater certainty, repayments under this section do not affect the determination under subsection (2) of regular benefits paid to a claimant. (3) Paragraph 145(1)(a) and subsections 145(2) to (5) of the Act, as enacted by subsections (1) and (2), respectively, apply in respect of the taxation year 2000 and subsequent taxation years. TRANSITIONAL PROVISION
12. (1) The repeal of section 15 of the Employment Insurance Act, as enacted by section 5 of this Act, applies in respect of a claimant for any benefit period beginning on or after October 1, 2000 and, in respect of a claimant for whom a benefit period has not ended on September 30, 2000, the weekly rate of benefits established under section 14 of the Employment Insurance Act applies to weeks of benefits paid or payable on or after October 1, 2000.
(2) If a claim by a claimant referred to in subsection (1) for any week of benefits is reconsidered under section 52 of the Employment Insurance Act and the Commission decides that the claimant has received money by way of benefits for which the claimant was not qualified, or to which the claimant was not entitled, as a result of the repeal of section 15 of the Employment Insurance Act, as enacted by section 5 of this Act, the Commission shall not calculate the amount of that money and the claimant is not liable to repay that amount under section 43 of the Employment Insurance Act.
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Employment
(3) Subsection (2) does not apply if, in respect of any week of benefits referred to in that subsection, (a) one or more penalties are imposed on the claimant under section 38, 41.1 or 65.1 of the Employment Insurance Act, as a result of acts or omissions mentioned in section 38 or 65.1 of that Act; (b) the claimant is found guilty of one or more offences under section 135 or 136 of that Act as a result of acts or omissions mentioned in those sections; or (c) the claimant is found guilty of one or more offences under the Criminal Code as a result of acts or omissions relating to the application of the Employment Insurance Act. (4) A claimant referred to in subsection (2) shall not make any other claim for benefits, and is not entitled to receive any other payment of benefits, in respect of any week referred to in that subsection. EMPLOYMENT INSURANCE (FISHING) REGULATIONS SOR/96-445
13. (1) Section 8 of the Employment Insurance (Fishing) Regulations is amended by adding the following after subsection (3): (3.1) A fisher is not a new entrant or a re-entrant if the fisher has been paid one or more weeks of special benefits referred to in paragraph 12(3)(a) or (b) of the Act in the period of 208 weeks preceding the period of 52 weeks before their qualifying period or in other circumstances, as prescribed by regulation, arising in that period of 208 weeks.
(2) Section 8 of the Regulations is amended by adding the following after subsection (8):
Assurance (8.1) A fisher is not a new entrant or a re-entrant if the fisher has been paid one or more weeks of special benefits referred to in paragraph 12(3)(a) or (b) of the Act in the period of 208 weeks preceding the period of 52 weeks before their qualifying period or in other circumstances, as prescribed by regulation, arising in that period of 208 weeks.
(3) Subsections 8(3.1) and (8.1) of the Regulations, as enacted by subsections (1) and (2), respectively, apply to a fisher in respect of a benefit period beginning on or after October 1, 2000. SOR/2001-74
14. Despite subsections 153(3) to (9) of the Employment Insurance Act, the Regulations Amending the Employment Insurance (Fishing) Regulations, made by the Canada Employment Insurance Commission on January 23, 2001, approved by Order in Council P.C. 2001-166 of January 30, 2001 and registered as SOR/2001-74, are deemed to have come into force on December 31, 2000. COMING INTO FORCE
Coming into force
15. The provisions of this Act, and the provisions of the Employment Insurance Act as enacted by this Act, come into force, or are deemed to have come into force, on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 7
An Act to amend the Judges Act and to amend another Act in consequence
BILL C-12 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Judges Act and to amend another Act in consequence’’.
SUMMARY This enactment implements the federal government’s reponse to the report of the 1999 Judicial Compensation and Benefits Commission regarding compensation and benefits for judges. It amends the Judges Act to increase judicial salaries and allowances, improve the current judicial annuities scheme and put into place a separate life insurance plan for federally appointed judges. It also makes other consequential amendments to the Judges Act and the Supplementary Retirement Benefits Act.
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49-50 ELIZABETH II
CHAPTER 7 An Act to amend the Judges Act and to amend another Act in consequence [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. J-1
JUDGES ACT
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(i)
1. Paragraphs 9(a) and (b) of the Judges Act are replaced by the following: (a) The Chief Justice of Canada (i) for the period beginning April 1, 2000 and ending March 31, 2001, $254,500, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $254,500 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $254,500 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $254,500 and $198,000; and (b) Eight puisne judges, each
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Judg (i) for the period beginning April 1, 2000 and ending March 31, 2001, $235,700, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the judge and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $235,700 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the judge and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $235,700 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the judge and the salary for that period of a judge referred to in paragraph 10(b) remains the same as the ratio between $235,700 and $198,000.
R.S., c. 41 (1st Supp.), s. 1, c. 39 (3rd Supp.), subpar. 1(1)(c)(ii)
2. Paragraphs 10(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of the Federal Court (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and
Jug (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) The other judges of the Federal Court of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Associate Chief Justice of the Federal Court (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and
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Judg (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and
(d) The other judges of the Trial Division, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1). R.S., c. 51 (4th Supp.), s. 13
3. Paragraphs 11(a) to (c) of the Act are replaced by the following: (a) The Chief Judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000, and
Jug (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000; (b) The Associate Chief Judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Associate Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Associate Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Associate Chief Judge and the salary for that period of a judge referred to in paragraph (c) remains the same as the ratio between $217,100 and $198,000; and (c) The other judges, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and
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Judg (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1990, c. 17, s. 29(2); 1998, c. 30, s. 2
4. Paragraphs 12(a) to (d) of the Act are replaced by the following: (a) The Chief Justice and the Associate Chief Justice of Ontario, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Fourteen Justices of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the
Jug amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice and the Associate Chief Justice of the Superior Court of Justice, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) One hundred and ninety-two other judges of the Superior Court of Justice, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1),
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Judg (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1989, c. 8, s. 1
5. Paragraphs 13(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Quebec (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a puisne judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a puisne judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a puisne judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Eighteen puisne judges of the Court of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000,
Jug (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Superior Court, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) One hundred and forty puisne judges of the Superior Court, each
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Judg (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1992, c. 51, s. 5(2)
6. Paragraphs 14(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Nova Scotia (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000;
Jug (b) Seven other judges of the Court of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice and the Associate Chief Justice of the Supreme Court (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and
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Judg
(d) Twenty-three other judges of the Supreme Court, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment referred to in subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment referred to in subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment referred to in subsection 25(1). R.S., c. 41 (1st Supp.), s. 4, c. 39 (3rd Supp.), subpar. 1(1)(c)(iii)
7. Paragraphs 15(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of New Brunswick (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge
Jug referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Five other judges of the Court of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice of the Court of Queen’s Bench (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge
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Judg referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and
(d) Twenty-one other judges of the Court of Queen’s Bench, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1). R.S., c. 41 (1st Supp.), s. 5, c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1989, c. 8, s. 3
8. Paragraphs 16(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Manitoba (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and
Jug (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Six Judges of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice, the Senior Associate Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and
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Judg (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a puisne judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and
(d) Thirty puisne judges of the Court of Queen’s Bench, (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1). R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1989, c. 8, s. 4(1); 1990, c. 16, s. 15
9. Paragraphs 17(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of British Columbia (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and
Jug the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Twelve Justices of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice of the Supreme Court (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the
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Judg same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000;
(c.1) The Associate Chief Justice of the Supreme Court (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Associate Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) Eighty-one other judges of the Supreme Court, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1),
Jug (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 27 (2nd Supp.), s. 1, c. 39 (3rd Supp.), subpar. 1(1)(c)(iii)
10. Paragraphs 18(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Prince Edward Island (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Two other judges of the Appeal Division, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000,
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Judg (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1);
(c) The Chief Justice of the Trial Division (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) Three other judges of the Trial Division, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000,
Jug (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iii)
11. Paragraphs 19(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Saskatchewan (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000; (b) Six Judges of Appeal, each
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Judg (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1);
(c) The Chief Justice of the Court of Queen’s Bench (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) Twenty-nine other judges of the Court of Queen’s Bench, each
Jug (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 41 (1st Supp.), s. 7(1), c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1989, c. 8, s. 5
12. Paragraphs 20(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Alberta (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a justice referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a justice referred to in paragraph (b) remains the
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(b) Ten Justices of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice and the Associate Chief Justice of the Court of Queen’s Bench, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount that ensures that the ratio between their respective salaries and the salary for that period of a justice referred to in paragraph (d) remains the same as
Jug the ratio between $198,000; and
$217,100
and
(d) Fifty-five other Justices of the Court of Queen’s Bench, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, and the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1). R.S., c. 27 (2nd Supp.), s. 2, c. 39 (3rd Supp.), subpar. 1(1)(c)(iii); 1989, c. 8, s. 6
13. Paragraphs 21(a) to (d) of the Act are replaced by the following: (a) The Chief Justice of Newfoundland (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (b) remains the same as the ratio between $217,100 and $198,000, and
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(b) Five Judges of Appeal, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); (c) The Chief Justice of the Trial Division (i) for the period beginning April 1, 2000 and ending March 31, 2001, $217,100, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000, and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the
Jug amount that ensures that the ratio between the salary of the Chief Justice and the salary for that period of a judge referred to in paragraph (d) remains the same as the ratio between $217,100 and $198,000; and (d) Eighteen other judges of the Trial Division, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iv)
14. (1) Paragraphs 22(1)(a) and (b) of the Act are replaced by the following: (a) The senior judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and
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(b) The other judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1). R.S., c. 39 (3rd Supp.), subpar. 1(1)(c)(iv); 1989, c. 8, s. 7
(2) Paragraphs 22(2)(a) and (b) of the Act are replaced by the following: (a) The senior judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); and (b) The two other judges, each
Jug (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
1999, c. 3, s. 72
(3) Paragraphs 22(2.1)(a) and (b) of the Act are replaced by the following: (a) The senior judge (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1), (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1); and (b) The two other judges, each (i) for the period beginning April 1, 2000 and ending March 31, 2001, $198,000, (ii) for the period beginning April 1, 2001 and ending March 31, 2002, $200,000, plus the annual adjustment calculated under subsection 25(1),
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Judg (iii) for the period beginning April 1, 2002 and ending March 31, 2003, the amount received for the period referred to in subparagraph (ii), plus $2,000 and the annual adjustment calculated under subsection 25(1), and (iv) for the period beginning April 1, 2003 and ending March 31, 2004, the amount received for the period referred to in subparagraph (iii), plus $2,000 and the annual adjustment calculated under subsection 25(1).
15. The Act is amended by adding the following after section 22: Rounding of amounts
23. A salary referred to in any of sections 9 to 22 that is not a multiple of one hundred dollars shall be rounded down to the next lowest multiple of one hundred dollars.
R.S., c. 16 (3rd Supp.), s. 2; 1994, c. 18, s. 9; 1998, c. 30, s. 4
16. Section 25 of the Act is replaced by the following:
Annual adjustment of salary
25. (1) For the twelve month periods commencing April 1, 2001, April 1, 2002 and April 1, 2003, the annual adjustment referred to in sections 9 to 22 shall be the amount obtained by multiplying (a) the salary annexed to that office for the twelve month period immediately preceding the twelve month period in respect of which the salary is to be determined plus $2,000 by (b) the percentage that the Industrial Aggregate for the first adjustment year is of the Industrial Aggregate for the second adjustment year less one hundred per cent, or seven per cent, whichever is less.
Annual adjustment of salary
(2) The salary annexed to an office of judge in sections 9 to 22 for the twelve month period commencing April 1, 2004, and for each subsequent twelve month period, shall be the amount obtained by multiplying (a) the salary annexed to that office for the twelve month period immediately preceding the twelve month period in respect of which the salary is to be determined by
Jug (b) the percentage that the Industrial Aggregate for the first adjustment year is of the Industrial Aggregate for the second adjustment year, or one hundred and seven per cent, whichever is less.
Meaning of certain expressions
(3) For the purposes of this section, (a) in relation to any twelve month period in respect of which the annual adjustment or the salary is to be determined, the ‘‘first adjustment year’’ is the most recent twelve month period for which the Industrial Aggregate is available on the first day of the period in respect of which the annual adjustment or the salary is to be determined, and the ‘‘second adjustment year’’ is the twelve month period immediately preceding the first adjustment year; and (b) the ‘‘Industrial Aggregate’’ for an adjustment year is the average weekly wages and salaries of the Industrial Aggregate in Canada for that year as published by Statistics Canada under the authority of the Statistics Act.
1998, c. 30, s. 5
17. Subsection 26(6.2) of the French version of the Act is replaced by the following:
Étude en comité et rapport
(6.2) Le comité mentionné au paragraphe (6.1) peut effectuer une enquête ou tenir des audiences publiques au sujet du rapport qui lui a été déféré en vertu de ce paragraphe; s’il le fait, le comité fait rapport, au plus tard quatre-vingt-dix jours de séance après le renvoi, de ses conclusions à la chambre qui l’a établi ou désigné. 18. The Act is amended by adding the following after section 26.2:
Costs payable
26.3 (1) The Commission may identify those representatives of the judiciary participating in an inquiry of the Commission to whom costs shall be paid in accordance with this section.
Entitlement to payment of costs
(2) A representative of the judiciary identified under subsection (1) who participates in an inquiry of the Commission is entitled to be paid, out of the Consolidated Revenue Fund,
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one-half of the costs determined under subsection (3) in respect of his or her participation. Determination of costs
(3) A prothonotary of the Federal Court of Canada shall determine the amount of costs, on a solicitor-and-client basis, as if the assessment of costs were an assessment of costs under subsection 413(1) of the Federal Court Rules, 1998, with any modifications that the circumstances require.
Application
(4) This section applies to costs incurred in relation to participation in any inquiry of the Commission conducted after September 1, 1999.
1989, c. 8, s. 10; 1999, c. 3, s. 73(1)
19. (1) Subsections 27(1) and (2) of the Act are replaced by the following:
Allowance for incidental expenditures actually incurred
27. (1) On and after April 1, 2000, every judge in receipt of a salary under this Act is entitled to be paid, up to a maximum of $5,000 for each year, for reasonable incidental expenditures that the fit and proper execution of the office of judge may require, to the extent that the judge has actually incurred the expenditures and is not entitled to be reimbursed for them under any other provision of this Act.
Additional allowance for northern judges
(2) On and after April 1, 2000, there shall be paid to each judge of the Supreme Court of the Yukon Territory, the Supreme Court of the Northwest Territories and the Nunavut Court of Justice who is in receipt of a salary under this Act, in addition to the allowance provided by subsection (1), a non-accountable yearly allowance of $12,000 as compensation for the higher cost of living in the territories.
R.S., c. 50 (1st Supp.), s. 5(2), c. 27 (2nd Supp.), s. 4; 1993, c. 28, s. 78 (Sch. III, s. 84); 1996, c. 30, s. 2(3); 1998, c. 15, s. 29
(2) Subsection 27(7) of the Act is replaced by the following:
Limitation
(7) On and after April 1, 2000, the maximum yearly amounts of the representational allowance referred to in subsection (6) are as follows:
Jug (a) The Chief Justice of Canada . . . $18,750 (b) Each puisne judge of the Supreme Court of Canada . . . . . . . . . . . . . . . . . . . . $10,000 (c) The Chief Justice of the Federal Court and each chief justice described in sections 12 to 21 as the chief justice of a province . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $12,500 (d) Each other chief justice referred to in sections 10 and 12 to 21 . . . . . . . . . $10,000 (e) The senior judge of the Supreme Court of the Yukon Territory, the senior judge of the Supreme Court of the Northwest Territories and the senior judge of the Nunavut Court of Justice, each . . . . . . . . . . . $10,000 (f) The Chief Judge of the Tax Court of Canada . . . . . . . . . . . . . . . . . . . . . . $10,000 (g) The Chief Justice of the Court of Appeal of the Yukon Territory, the Chief Justice of the Court of Appeal of the Northwest Territories and the Chief Justice of the Court of Appeal of Nunavut, each . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $10,000 (h) The Chief Justice of the Court Martial Appeal Court of Canada . . . . . . . . . $10,000 20. The Act is amended by adding the following after section 41:
Special Retirement Provision — Supreme Court of Canada Judges Retired judge may continue to hold office
41.1 (1) A judge of the Supreme Court of Canada who has retired may, with the approval of the Chief Justice of Canada, continue to participate in judgments in which he or she participated before retiring, for a period not greater than six months after the date of the retirement.
Salary, etc.
(2) A retired judge participating in judgments shall receive (a) the salary annexed to the office during that period less any amount otherwise payable to him or her under this Act in respect of the period, other than those amounts described in paragraphs (b) and (c);
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(b) an amount that bears the same ratio to the allowance for incidental expenditures actually incurred referred to in subsection 27(1) that the number of months in the period bears to twelve; and (c) the representational allowance referred to in subsection 27(6) for the period, as though the appropriate maximum referred to in subsection 27(7) were an amount that bears the same ratio to that allowance that the number of months in the period bears to twelve. No extra remuneration
(3) Section 57 applies with respect to a judge to whom this section applies.
Benefits Life insurance
41.2 (1) The Treasury Board shall establish, or enter into a contract to acquire, an insurance program for judges covering the following, on terms and conditions similar to those contained in the Public Service Management Insurance Plan and the public service management insurance directives that apply to executives: (a) basic life insurance; (b) supplementary life insurance; (c) post-retirement life insurance; (d) dependants’ insurance; and (e) accidental death and dismemberment insurance.
Administration
(2) The Treasury Board may (a) set terms and conditions in respect of the program, including those respecting premiums or contributions payable, benefits, and management and control of the program; (b) make contributions and pay premiums or benefits, as required, out of the Consolidated Revenue Fund; and (c) undertake and do all things it considers appropriate for the purpose of administering or supervising the program.
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Non-application of certain regulations
(3) A contract entered into under this section is not subject to any regulation with respect to contracts made by the Treasury Board under the Financial Administration Act.
Compulsory participation
(4) Participation in basic life insurance under paragraph (1)(a) is compulsory for all judges.
Transitional
(5) A judge who holds office on the day on which this section comes into force may, despite subsection (4), elect, at any time within ninety days after that day, (a) to participate in basic life insurance under paragraph (1)(a) but have his or her coverage under it limited to 100 per cent of salary at the time of his or her death; or (b) not to participate in basic life insurance.
Transitional
(6) Subject to subsection (7), on the coming into force of this section, judges shall no longer be eligible for coverage under any other life insurance program established by the Treasury Board.
Supplementary life insurance
(7) Those judges covered by supplementary life insurance on the coming into force of this section may have their coverage continued under the insurance program for judges, unless they have made an election under paragraph (5)(b).
Health and dental care benefits
41.3 (1) Judges shall be eligible to participate in the Public Service Health Care Plan and the Public Service Dental Care Plan established by the Treasury Board, on the same terms and conditions as apply to employees in the executive group.
Health and dental care benefits for retired judges
(2) Judges who are in receipt of an annuity under this Act shall be eligible to participate in the Public Service Health Care Plan and the Pensioners’ Dental Services Plan established by the Treasury Board, on the same terms and conditions as apply to pensioners.
Administration
(3) Subject to subsections (1) and (2), the Treasury Board may
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(a) set any terms and conditions in respect of those plans, including those respecting premiums or contributions payable, benefits, and management and control of the plans; (b) make contributions and pay premiums or benefits, as required, out of the Consolidated Revenue Fund; and (c) undertake and do all things it considers appropriate for the purpose of administering or supervising the plans. Accidental death in the exercise of duties
41.4 (1) Compensation, within the meaning of the Government Employees Compensation Act, shall be paid to the dependants of a judge whose death results from an accident arising out of or in the performance of judicial duties, on the same basis as that paid to dependants eligible for compensation under that Act.
Flying accidents causing death
(2) Regulations made under section 9 of the Aeronautics Act apply with respect to a judge whose death results from an accident arising out of or in the performance of judicial duties.
Death resulting from act of violence
(3) Compensation shall be paid to the survivors of a judge whose death results from an act of violence unlawfully committed by another person or persons that occurs while the judge is performing judicial duties, on the same basis as that paid to the survivors of employees slain on duty within the meaning of the Public Service Income Benefit Plan for Survivors of Employees Slain on Duty, with any modifications that the circumstances require.
Application
(4) Subsections (1) to (3) apply to deaths that occur on or after April 1, 2000.
Delegation
41.5 (1) The Treasury Board may authorize the President or Secretary of the Treasury Board to exercise and perform, in such manner and subject to such terms and conditions as the Treasury Board directs, any of the powers and functions of the Treasury Board under sections 41.2 and 41.3 and may, from time to time as it sees fit, revise or rescind and reinstate the authority so granted.
2001 Subdelegation
Jug (2) The President or Secretary of the Treasury Board may, subject to and in accordance with the authorization, authorize one or more persons under his or her jurisdiction or any other person to exercise or perform any of those powers or functions. 21. The Act is amended by adding the following after section 43: Prorated Annuities — Early Retirement
Fifty-five years of age and ten years in office
43.1 (1) The Governor in Council shall grant to a judge who has attained the age of fifty-five years, who has continued in judicial office for at least ten years and who elects early retirement, at the option of the judge, an immediate annuity or a deferred annuity, calculated in accordance with this section.
Calculation of amount of deferred annuity
(2) The amount of the deferred annuity shall be two-thirds of the amount of the salary annexed to the judge’s office at the time of the election multiplied by a fraction, the numerator of which is the number of years, to the nearest one-tenth of a year, during which the judge has continued in judicial office and the denominator of which is the number of years, to the nearest one-tenth of a year, during which the judge would have been required to serve in judicial office in order to be eligible to be granted an annuity under paragraph 42(1)(a).
Immediate annuity
(3) If a judge exercises the option to receive an immediate annuity, the amount of that annuity is equal to the amount of the deferred annuity, reduced by the product obtained by multiplying (a) five per cent of the amount of the deferred annuity by (b) the difference between sixty and his or her age in years, to the nearest one-tenth of a year, at the time he or she exercises the option.
Second exercise of option
(4) A judge whose option was to receive a deferred annuity may, between the date of that option and the date on which the deferred annuity would be payable, opt for an immediate annuity. The Governor in Council shall, in that case, grant an immediate annuity to the judge from the date of the second option.
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Survivor’s annuity
(5) On the death of a judge who has been granted an immediate annuity or a deferred annuity under subsection (1) or (4), the annuity granted to a survivor under subsection 44(2) shall be determined as if the judge were in receipt of a deferred annuity.
Definitions
(6) The definitions in this subsection apply in this section.
‘‘deferred annuity’’ « pension différée »
‘‘deferred annuity’’ means an annuity that becomes payable to a judge at the time that he or she reaches sixty years of age and that continues to be paid during the life of the judge.
‘‘immediate annuity’’ « pension immédiate »
‘‘immediate annuity’’ means an annuity that becomes payable to a judge at the time that he or she exercises an option to receive the annuity and that continues to be paid during the life of the judge.
1996, c. 30, s. 3; 2000, c. 12, par. 169(a)
22. Subsection 44(3) of the Act is repealed. 23. The Act is amended by adding the following after section 44:
Election for enhanced annuity to survivor
44.01 (1) Subject to the regulations, a judge may elect to have the annuity to be granted to his or her survivor increased so that it is calculated as if the reference to ‘‘one-half’’ in subsection 44(2) were read as a reference to ‘‘sixty per cent’’ or ‘‘seventy-five per cent’’.
Reduction of annuity
(2) If a judge makes the election, the amount of the annuity granted to the judge shall be reduced in accordance with the regulations as of the date the election takes effect, but the combined actuarial present value of the reduced annuity and the annuity that would be granted to the survivor may not be less than the combined actuarial present value of the annuity granted to the judge and the annuity that would be granted to the survivor, immediately before the reduction is made.
Election to take effect at time of retirement
(3) Subject to subsection (6), an election under this section takes effect on the date that the judge ceases to hold office.
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Death within one year after election
(4) Despite anything in this section, when a judge dies within one year after the election takes effect, the annuity payable to the survivor remains that payable under subsection 44(2) and the amount representing the reduction that was made in the amount of the judge’s annuity under subsection (2) shall be repaid to the judge’s estate or succession, together with interest at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.
Regulations
(5) The Governor in Council may make regulations respecting (a) the time, manner and circumstances in which an election is made, is deemed to have been made or is deemed not to have been made, is revoked or is deemed to have been revoked, or ceases to have effect, and the retroactive application of that making, revocation or cessation; (b) the reduction to be made in the amount of a judge’s annuity when the election is made; (c) the calculation of the amount of the annuity to be paid to the judge and the survivor under subsection (2); (d) the time, manner and circumstances in which a reduction of a judge’s annuity may be returned and interest may be paid; and (e) any other matter that the Governor in Council considers necessary for carrying out the purposes and provisions of this section.
Transitional
(6) A judge who is in receipt of an annuity on the day on which this section comes into force may make his or her election in accordance with the regulations, and the election takes effect on the day this section comes into force.
Limitation on annuity to survivor
(7) Despite anything in this section, no election may be made under this section for the benefit of a spouse or common-law partner of a judge unless that person was the spouse or common-law partner at the date the judge ceased to hold office.
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24. Section 44.2 of the Act, as enacted by section 163 of the Modernization of Benefits and Obligations Act, chapter 12 of the Statutes of Canada, 2000, is replaced by the following: Election for former judges
44.2 (1) Subject to the regulations, a judge to whom an annuity has been granted may elect to reduce his or her annuity so that an annuity may be paid to a person who, at the time of the election, is the spouse or commonlaw partner of the judge but to whom an annuity under section 44 may not be granted.
Reduction of annuity
(2) If a judge makes the election, the amount of the annuity granted to the judge shall be reduced in accordance with the regulations, but the combined actuarial present value of the reduced annuity and the annuity that would be granted to the spouse or common-law partner under subsection (3) may not be less than the actuarial present value of the annuity granted to the judge immediately before the reduction is made.
Payment to person in respect of whom election is made
(3) When the judge dies, the Governor in Council shall grant to a spouse or commonlaw partner in respect of whom an election was made an annuity in an amount determined in accordance with the election, subsection (2) and the regulations.
Death within one year after election
(3.1) Despite anything in this section, when a judge dies within one year after making the election, the election is deemed not to have been made and the amount representing the reduction that was made in the amount of the judge’s annuity under subsection (2) shall be repaid to the judge’s estate or succession, together with interest at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.
Regulations
(4) The Governor in Council may make regulations respecting (a) the time, manner and circumstances in which an election is made, is deemed to have been made or is deemed not to have been made, is revoked or is deemed to have been revoked, or ceases to have effect, and the retroactive application of that making, revocation or cessation;
Jug (b) the reduction to be made in the amount of a judge’s annuity when an election is made; (c) the amount of the annuity to be paid under subsection (3); (d) the time, manner and circumstances in which a reduction of a judge’s annuity may be returned and interest may be paid; and (e) any other matter that the Governor in Council considers necessary for carrying out the purposes and provisions of this section.
1999, c. 31, s. 240
25. Subsection 50(3) of the Act is replaced by the following:
Reduction of contributions
(2.1) A supernumerary judge, a judge who continues in judicial office after having been in judicial office for at least fifteen years and whose combined age and number of years in judicial office is not less than eighty, or a judge referred to in section 41.1 is not required, on or after April 1, 2000, to contribute under subsections (1) and (2) but is required to contribute, by reservation from salary, to the Supplementary Retirement Benefits Account, in respect of the period beginning on that day, at a rate of one per cent of his or her salary.
Interest
(2.2) Interest is payable on all contributions refunded as a result of the application of subsection (2.1) at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.
Income Tax Act
(3) For the purposes of the Income Tax Act, the amounts contributed by a judge pursuant to subsection (1), (2) or (2.1) are deemed to be contributed to or under a registered pension plan. CONSEQUENTIAL AMENDMENT
R.S., c. S-24
Supplementary Retirement Benefits Act 26. Clause (b)(ii)(B) of the definition ‘‘recipient’’ in subsection 2(1) of the Supplementary Retirement Benefits Act is replaced by the following:
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Judg (B) paragraph 42(1)(c) or section 43.1 of the Judges Act, COMING INTO FORCE
Coming into force
27. (1) Section 41.2 of the Judges Act, as enacted by section 20 of this Act, comes into force on a day to be fixed by order of the Governor in Council.
Coming into force
(2) Sections 23 and 24 come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 6
An Act respecting marine liability, and to validate certain by-laws and regulations
BILL S-2 ASSENTED TO 10th MAY, 2001
SUMMARY This enactment consolidates certain rules of Canadian maritime law governing the civil liability of shipowners for loss of life, personal injuries and damage to property. Part 1 modernizes and extends the scope of the fatal accidents regime formerly in the Canada Shipping Act. Part 2 settles the rules for the apportionment of liability among parties at fault. Part 3 continues in force in Canada an international convention governing the limitation of liablity for maritime claims together with certain statutory provisions. Part 4 implements the regime of shipowners’ liability to passengers set out in another international convention.
Part 5 re-enacts and revises the provisions of the Carriage of Goods by Water Act respecting the application of the Hague-Visby Rules in Canada and the eventual implementation of the Hamburg Rules. Part 6 continues the existing regime governing liability and compensation for maritime oil pollution. Part 7 validates certain by-laws relating to harbour dues tariffs and certain regulations relating to pilotage tariffs.
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TABLE OF PROVISIONS
AN ACT RESPECTING MARINE LIABILITY, AND TO VALIDATE CERTAIN BY-LAWS AND REGULATIONS SHORT TITLE
1. Short title
2. Definitions
INTERPRETATION
HER MAJESTY
3. Binding on Her Majesty PART 1 PERSONAL INJURIES AND FATALITIES Interpretation and Application
4. Definition of ‘‘dependant’’
5. Application of this Part Liability to Dependants
6. Damages for personal injury
7. Multiple dependants
8. Payment into court
9. Postponement of distribution
10. Beneficiaries of action
11. Parties to action
12. One action for same cause
13. Actions by different claimants
14. Limitation period PART 2 APPORTIONMENT OF LIABILITY Interpretation and Application
15. Definition of ‘‘earnings’’
16. Application of this Part General
17. Apportionment based on degree of fault
18. Claim for contribution or indemnity
�� 19.
Adjustment of settlement
20. Limitation period
21. Last clear chance
22. Contractual rights Limitation of Time
23. Limitation period for claim or lien PART 3 LIMITATION OF LIABILITY FOR MARITIME CLAIMS Interpretation
24. Definitions
25. Extended meaning of expressions Application
26. Force of law
27. State Party to the Convention
28. Liability for ships under 300 tons
29. Passenger claims, no certificate Liability of Owners of Docks, Canals and Ports
30. Limitation of liability
31. Amendment of limits
Amendment of Maximum Liability
Procedure 32.
Jurisdiction of Admiralty Court
33. Powers of Admiralty Court
34. Release of ships, etc. PART 4
LIABILITY FOR CARRIAGE OF PASSENGERS BY WATER Interpretation 35.
Definitions
36. Extended meaning of expressions Application
37. Force of law
38. State Party to the Convention Regulations and Orders
39. Regulations
40. Amendment of limits
�� PART 5 LIABILITY FOR CARRIAGE OF GOODS BY WATER Interpretation 41.
Definitions
42. Other statutory limitations of liability Hague-Visby Rules
43. Effect Hamburg Rules
44. Report to Parliament
45. Effect Institution of Proceedings in Canada
46. Claims not subject to Hamburg Rules PART 6 LIABILITY AND COMPENSATION FOR POLLUTION Interpretation
47. Definitions
48. Geographical application — general
Application 49.
Exception — drilling activities
50. Priority over Arctic Waters Pollution Prevention Act DIVISION 1 CIVIL LIABILITY FOR POLLUTION
51. Owners of Ships Liability for pollution and related costs
52. Admiralty Court has jurisdiction
53. Action by Administrator
54. Limitation of liability — Convention ships
55. Limitation of liability — other ships Special Rules — Convention Ships
56. No damage in Canadian territory or Canadian waters
57. Remedies exclusive
58. Shipowner’s fund
�� 59.
Duplication of actions barred
60. Certificate attesting to financial responsibility
61. By whom certificate to be issued
62. Claimant may sue owner’s guarantor
63. Registration of Foreign Judgments Definitions
64. Registration of foreign judgments
65. Pre-registration interest
66. Costs
67. Conversion to Canadian currency
68. Effect of registration
69. Service of notice of registration
70. Application to set aside registration
71. Application for stay of execution DIVISION 2 COMPENSATION FOR POLLUTION International Oil Pollution Compensation Fund
72. Legal capacity of International Fund
73. International Fund to be party to legal proceedings
74. Method of service on International Fund
75. Circumstances in which International Fund is liable
76. Contributions by Canada to International Fund Ship-source Oil Pollution Fund
77. Ship-source Oil Pollution Fund
78. Interest to be credited to Fund
79. Administrator and Deputy Administrator Appointment of Administrator
80. Administrator to be independent of Crown
81. Professional and technical aid
82. Costs, expenses and fees
83. Deputy Administrator
84. Liability of Ship-source Oil Pollution Fund Liability of Ship-source Oil Pollution Fund
85. Claims Arising under Section 51 Claims filed with Administrator
86. Duties of Administrator
87. Offer of compensation
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88. Claims for Loss of Income Meaning of terms
89. Responsibility of Administrator
90. Proceedings against Shipowner Proceedings under section 51
91. Limit of Liability of Ship-source Oil Pollution Fund Limit of liability of Ship-source Oil Pollution Fund in first year
92. Application to Court for Directions Administrator may apply to Court for directions
93. Payments into the Ship-source Oil Pollution Fund Definition of ‘‘oil’’
94. Amount of levy in first year
95. Discontinuation or re-imposition of levy
96. Regulations
97. Records and books
98. Inspection
99. Interest on unpaid amounts
100. Annual Report Annual report of Administrator
101. Interest on Claims Claimants entitled to interest
102. Regulations
Regulations
Offences and Punishment 103.
Evidence of financial responsibility
104. Evading payment of levy
105. Jurisdiction in relation to offences PART 7
VALIDATION OF CERTAIN BY-LAWS AND REGULATIONS By-laws under the Canada Ports Corporation Act 106.
By-laws deemed to be valid Regulations under the Pilotage Act
107. Laurentian Pilotage Tariff Regulations, 1992
� PART 8 TRANSITIONAL, CONSEQUENTIAL AMENDMENTS, CONDITIONAL AMENDMENT, REPEAL AND COMING INTO FORCE Transitional 108.
Part 4 Consequential Amendments
109. Arctic Waters Pollution Prevention Act
110. Canada-Newfoundland Atlantic Accord Implementation Act Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
111. 112.
Canadian Environmental Protection Act, 1999
113-114. Crown Liability and Proceedings Act 115.
Federal Court Act
116. Merchant Seamen Compensation Act
117. Canada Oil and Gas Operations Act
118-128. Canada Shipping Act Conditional Amendment 129.
1991, c. 24 Repeal
130. Carriage of Goods by Water Act
131. Coming into force
Coming into Force
SCHEDULES 1 TO 4
49-50 ELIZABETH II
CHAPTER 6 An Act respecting marine liability, and to validate certain by-laws and regulations
[Assented to 10th May, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Marine Liability Act.
Definitions
2. The definitions in this section apply in this Act.
‘‘Admiralty Court’’ « Cour d’amirauté »
‘‘Admiralty Court’’ means the Federal Court.
‘‘Minister’’ « ministre »
‘‘Minister’’ means the Minister of Transport.
Binding on Her Majesty
3. This Act is binding on Her Majesty in right of Canada or a province.
INTERPRETATION
HER MAJESTY
PART 1 PERSONAL INJURIES AND FATALITIES
Definition of ‘‘dependant’’
Interpretation and Application 4. In this Part, ‘‘dependant’’, in relation to an injured or deceased person, means an individual who was one of the following in relation to the injured or deceased person at the time the cause of action arose, in the case of an injured person, or at the time of death, in the case of a deceased person: (a) a son, daughter, stepson, stepdaughter, grandson, granddaughter, adopted son or daughter, or an individual for whom the injured or deceased person stood in the place of a parent;
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(b) a spouse, or an individual who was cohabiting with the injured or deceased person in a conjugal relationship having so cohabited for a period of at least one year; or (c) a brother, sister, father, mother, grandfather, grandmother, stepfather, stepmother, adoptive father or mother, or an individual who stood in the place of a parent. Application of this Part
5. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping.
Liability to Dependants Damages for personal injury
6. (1) If a person is injured by the fault or neglect of another under circumstances that entitle the person to recover damages, the dependants of the injured person may maintain an action in a court of competent jurisdiction for their loss resulting from the injury against the person from whom the injured person is entitled to recover.
Damages for death
(2) If a person dies by the fault or neglect of another under circumstances that would have entitled the person, if not deceased, to recover damages, the dependants of the deceased person may maintain an action in a court of competent jurisdiction for their loss resulting from the death against the person from whom the deceased person would have been entitled to recover.
Inclusion in damages
(3) The damages recoverable by a dependant of an injured or deceased person may include (a) an amount to compensate for the loss of guidance, care and companionship that the dependant could reasonably have expected to receive from the injured or deceased person if the injury or death had not occurred; and (b) any amount to which a public authority may be subrogated in respect of payments consequent on the injury or death that are
Responsabilité en m made to or for the benefit of the injured or deceased person or the dependant.
Excluded factors
(4) In the assessment of damages, any amount paid or payable on the death of the deceased person or any future premiums payable under a contract of insurance shall not be taken into account.
Apportionment
(5) The damages recoverable by a dependant are subject to any apportionment made under Part 2.
Multiple dependants
7. Damages may be awarded to dependants in proportion to their loss resulting from the injury or death, and the amount so awarded shall be divided among the dependants in the shares determined by the court.
Payment into court
8. A person against whom an action is commenced under this Part may pay into court an amount of money as compensation for the fault or neglect to all persons entitled to damages without specifying the shares into which it is to be divided.
Postponement of distribution
9. The court may in its discretion postpone the distribution of any amount to which a person under the age of eighteen or under a legal disability is entitled, may order its payment from the amount paid into court under section 8 and may make any other order that is in the interest of that person.
Beneficiaries of action
10. (1) An action under this Part shall be for the benefit of the dependants of the injured or deceased person.
By whom action is brought
(2) An action under subsection 6(2) shall be brought by the executor or administrator of the deceased person, but if no action is brought within six months after that person’s death or if there is no executor or administrator, the action (a) may be brought by any or all of the dependants of the deceased person; and (b) shall be subject to the same procedure, with any adaptations that may be required, as if it were brought by an executor or administrator.
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11. A person who commences an action under this Part shall (a) take reasonable steps to identify and join as parties to the action all persons who are entitled or who claim to be entitled to damages as dependants of the injured or deceased person; and (b) state in the statement of claim the grounds for the claim of each person on whose behalf the action is commenced.
One action for same cause
12. Claims for the benefit of the dependants of an injured or deceased person may be made in more than one action but, on the application of any party, actions for the benefit of the dependants of the same injured or deceased person may be consolidated in one action or tried together in the same court of competent jurisdiction.
Actions by different claimants
13. If actions are commenced for the benefit of two or more persons claiming to be entitled to damages under this Part as dependants of an injured or deceased person, the court may make any order or determination that it considers just.
Limitation period
14. (1) No action may be commenced under subsection 6(1) later than two years after the cause of action arose.
Limitation period
(2) No action may be commenced under subsection 6(2) later than two years after the death of the deceased person. PART 2 APPORTIONMENT OF LIABILITY Interpretation and Application
Definition of ‘‘earnings’’
15. (1) In this Part, ‘‘earnings’’ includes freight, passage money and hire.
Meaning of loss caused by ship
(2) For the purposes of this Part, a reference to loss caused by the fault or neglect of a ship shall be construed as including (a) any salvage expenses consequent on that fault or neglect; and
Responsabilité en m (b) any other expenses consequent on that fault or neglect and recoverable at law by way of damages, other than a loss described in subsection 17(3).
Application of this Part
16. This Part applies in respect of a claim that is made or a remedy that is sought under or by virtue of Canadian maritime law, as defined in the Federal Court Act, or any other law of Canada in relation to any matter coming within the class of navigation and shipping. General
Apportionment based on degree of fault
17. (1) Where loss is caused by the fault or neglect of two or more persons or ships, their liability is proportionate to the degree to which they are respectively at fault or negligent and, if it is not possible to determine different degrees of fault or neglect, their liability is equal.
Joint and several liability
(2) Subject to subsection (3), the persons or ships that are at fault or negligent are jointly and severally liable to the persons or ships suffering the loss but, as between themselves, they are liable to make contribution to each other or to indemnify each other in the degree to which they are respectively at fault or negligent.
Exception — loss of ships and property
(3) Where, by the fault or neglect of two or more ships, loss is caused to one or more of those ships, their cargo or other property on board, or loss of earnings results to one or more of those ships, their liability to make good such loss is not joint and several.
Persons responsible
(4) In this section, a reference to liability of a ship that is at fault or negligent includes liability of any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship.
Claim for contribution or indemnity
18. A person who is entitled to claim contribution or indemnity under this Part from another person or ship that is or may be liable in respect of a loss may do so (a) by adding the other person or ship as a party to a proceeding pending before a court
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or an administrative or arbitral tribunal of competent jurisdiction, in accordance with the applicable rules of procedure or arbitration agreement; (b) by commencing a proceeding in a court or an administrative or arbitral tribunal of competent jurisdiction; or (c) if the other person or ship has settled with the person suffering the loss, by commencing or continuing a proceeding before a court or an administrative or arbitral tribunal of competent jurisdiction. Adjustment of settlement
19. The court or administrative or arbitral tribunal in which a proceeding is continued or commenced under paragraph 18(c) may deny the award of damages or adjust the amount awarded if it is not satisfied that the settlement was reasonable.
Limitation period
20. (1) No claim may be made under section 18 later than one year after the date of judgment in the proceeding or the date of the settlement agreement.
Claims not defeated
(2) A claim under section 18 is not defeated by any period of limitation or prescription, or by any requirement for notice, that is applicable to the original claim in respect of which contribution or indemnity is sought.
Last clear chance
21. This Part applies notwithstanding that a person who suffered a loss had the opportunity to avoid the loss and failed to do so.
Contractual rights
22. The rights conferred by this Part on a person or ship that is found liable or that settles a claim are subject to any existing contract between that person or ship and a person from whom contribution or indemnity is claimed.
Limitation of Time Limitation period for claim or lien
23. (1) No action may be commenced later than two years after the loss or injury arose to enforce a claim or lien against a ship in collision or its owners in respect of any loss to another ship, its cargo or other property on board, or any loss of earnings of that other ship, or for damages for loss of life or personal injury suffered by any person on board that
Responsabilité en m other ship, caused by the fault or neglect of the former ship, whether that ship is wholly or partly at fault or negligent.
Extension of time by court
(2) A court having jurisdiction to deal with an action referred to in subsection (1) (a) may, in accordance with the rules of court, extend the period referred to in that subsection to the extent and on the conditions that it thinks fit; and (b) shall, if satisfied that there has not during that period been a reasonable opportunity of arresting the ship within the jurisdiction of the court, or within the territorial waters of the country to which the claimant’s ship belongs or in which the claimant resides or has their principal place of business, extend that period to an extent sufficient to provide that reasonable opportunity.
Definition of ‘‘owner’’
(3) In this section, ‘‘owner’’, in relation to a ship, includes any person responsible for the navigation and management of the ship or any other person responsible for the fault or neglect of the ship. PART 3 LIMITATION OF LIABILITY FOR MARITIME CLAIMS Interpretation
Definitions
24. The definitions in this section apply in this Part.
‘‘Convention’’ « Convention »
‘‘Convention’’ means the Convention on Limitation of Liability for Maritime Claims, 1976, concluded at London on November 19, 1976, as amended by the Protocol, Articles 1 to 15 of which Convention are set out in Part 1 of Schedule 1 and Article 18 of which is set out in Part 2 of that Schedule.
‘‘maritime claim’’ « créance maritime »
‘‘maritime claim’’ means a claim described in Article 2 of the Convention for which a person referred to in Article 1 of the Convention is entitled to limitation of liability.
‘‘Protocol’’ « Protocole »
‘‘Protocol’’ means the Protocol of 1996 to amend the Convention on Limitation of Li�
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ability for Maritime Claims, 1976, concluded at London on May 2, 1996, Articles 8 and 9 of which are set out in Part 2 of Schedule 1.
Extended meaning of expressions
25. (1) For the purposes of this Part and Articles 1 to 15 of the Convention, (a) ‘‘ship’’ means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes (i) a ship in the process of construction from the time that it is capable of floating, and (ii) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up, but does not include an air cushion vehicle or a floating platform constructed for the purpose of exploring or exploiting the natural resources or the subsoil of the sea-bed; (b) the definition ‘‘shipowner’’ in paragraph 2 of Article 1 of the Convention shall be read without reference to the word ‘‘seagoing’’ and as including any person who has an interest in or possession of a ship from and including its launching; and (c) the expression ‘‘carriage by sea’’ in paragraph 1(b) of Article 2 of the Convention shall be read as ‘‘carriage by water’’.
Inconsistency
(2) In the event of any inconsistency between sections 28 to 34 of this Act and Articles 1 to 15 of the Convention, those sections prevail to the extent of the inconsistency. Application
Force of law
26. Subject to the other provisions of this Part, Articles 1 to 15 of the Convention have the force of law in Canada.
State Party to the Convention
27. For purposes of the application of the Convention, Canada is a State Party to the Convention.
2001 Liability for ships under 300 tons
Responsabilité en m 28. (1) The maximum liability for maritime claims that arise on any distinct occasion involving a ship with a gross tonnage of less than 300 tons, other than claims mentioned in section 29, is (a) $1,000,000 in respect of claims for loss of life or personal injury; and (b) $500,000 in respect of any other claims.
Calculation of tonnage
(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever made, to the Annexes or Appendix to that Convention.
Passenger claims, no certificate
29. (1) The maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to passengers of a ship for which no certificate is required under Part V of the Canada Shipping Act is the greater of (a) 2,000,000 units of account; and (b) the number of units of account calculated by multiplying 175,000 units of account by the number of passengers on board the ship.
Passenger claims, no contract of carriage
(2) Notwithstanding Article 6 of the Convention, the maximum liability for maritime claims that arise on any distinct occasion for loss of life or personal injury to persons carried on a ship otherwise than under a contract of passenger carriage is the greater of (a) 2,000,000 units of account, and (b) 175,000 units of account multiplied by (i) the number of passengers that the ship is authorized to carry according to its certificate under Part V of the Canada Shipping Act, or (ii) if no certificate is required under that Part, the number of persons on board the ship.
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(3) Subsection (2) does not apply in respect of (a) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of a ship; or (b) a person carried on board a ship other than a ship operated for a commercial or public purpose.
Definition of ‘‘passenger’’
(4) In subsection (1), ‘‘passenger’’ means a person carried on a ship in circumstances described in paragraph 2(a) or (b) of Article 7 of the Convention.
Definition of ‘‘unit of account’’
(5) In subsections (1) and (2), ‘‘unit of account’’ means a special drawing right issued by the International Monetary Fund.
Liability of Owners of Docks, Canals and Ports Limitation of liability
30. (1) The maximum liability of an owner of a dock, canal or port, for a claim that arises on any distinct occasion for loss caused to a ship, or to any cargo or other property on board a ship, is the greater of (a) $2,000,000, and (b) the amount calculated by multiplying $1,000 by the number of tons of the gross tonnage of the largest ship that is at the time of the loss, or had been within a period of five years before that time, within the area of the dock, canal or port over which the owner had control or management.
Calculation of tonnage
(2) For the purposes of subsection (1), a ship’s gross tonnage shall be calculated in the manner described in subsection 28(2).
Application
(3) The maximum liability specified in subsection (1) also applies to any person for whose act or omission the owner is responsible.
Conduct barring limitation
(4) This section does not apply to an owner, or a person for whose act or omission the owner is responsible, if it is proved that the loss resulted from the personal act or omission
Responsabilité en m of that owner or that person, as the case may be, committed with intent to cause the loss or recklessly and with knowledge that the loss would probably result.
Meaning of terms
(5) For the purposes of this section, (a) ‘‘dock’’ includes wet docks and basins, tidal-docks and basins, locks, cuts, entrances, dry docks, graving docks, gridirons, slips, quays, wharfs, piers, stages, landing places, jetties and synchrolifts; and (b) ‘‘owner of a dock, canal or port’’ includes any person or authority having the control or management of the dock, canal or port and any ship repairer using the dock, canal or port.
Amendment of Maximum Liability Amendment of limits
31. (1) The Governor in Council may, by order, declare that an amendment made in accordance with Article 8 of the Protocol to any of the limits of liability specified in paragraph 1 of Article 6 or paragraph 1 of Article 7 of the Convention has the force of law in Canada.
Amendment of sections 28, 29 and 30
(2) The Governor in Council may, by order, amend the limits of liability set out in sections 28, 29 and 30. Procedure
Jurisdiction of Admiralty Court
32. (1) The Admiralty Court has exclusive jurisdiction with respect to any matter relating to the constitution and distribution of a limitation fund under Articles 11 to 13 of the Convention.
Right to assert limitation defence
(2) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28, 29 or 30 of this Act or paragraph 1 of Article 6 or 7 of the Convention, that person may assert the right to limitation of liability in a defence filed, or by way of action or counterclaim for declaratory relief, in any court of competent jurisdiction in Canada.
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33. (1) Where a claim is made or apprehended against a person in respect of liability that is limited by section 28 or 29 of this Act or paragraph 1 of Article 6 or 7 of the Convention, the Admiralty Court, on application by that person or any other interested person, including a person who is a party to proceedings in relation to the same subjectmatter before another court, tribunal or authority, may take any steps it considers appropriate, including (a) determining the amount of the liability and providing for the constitution and distribution of a fund under Articles 11 and 12 of the Convention; (b) joining interested persons as parties to the proceedings, excluding any claimants who do not make a claim within a certain time, requiring security from the person claiming limitation of liability or from any other interested person and requiring the payment of any costs; and (c) enjoining any person from commencing or continuing proceedings in any court, tribunal or authority other than the Admiralty Court in relation to the same subjectmatter.
Court may postpone distribution
(2) In providing for the distribution of a fund under paragraph (1)(a) in relation to any liability, the Admiralty Court may, having regard to any claim that may subsequently be established before a court, tribunal or other authority outside Canada in respect of that liability, postpone the distribution of any part of the fund that it considers appropriate.
Lien and other rights
(3) No lien or other right in respect of a ship or other property affects the proportions in which a fund is distributed by the Admiralty Court.
Procedural matters
(4) The Admiralty Court may (a) make any rule of procedure it considers appropriate with respect to proceedings before it under this section; and (b) determine what form of guarantee it considers to be adequate for the purposes of paragraph 2 of Article 11 of the Convention.
Responsabilité en m
Interest
(5) For the purposes of Article 11 of the Convention, interest is payable at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act.
Release of ships, etc.
34. (1) Where a ship or other property is released under paragraph 2 of Article 13 of the Convention, in any case other than one in which a fund has been constituted in a place described in paragraphs (a) to (d) of that Article, the person who applied for the release is deemed to have submitted to the jurisdiction of the court that ordered the release for the purpose of determining the claim.
Limitation fund in state other than Canada
(2) In considering whether to release a ship or other property referred to in subsection (1), the court shall not have regard to a limitation fund constituted in a country other than Canada unless the court is satisfied that the country is a State Party to the Convention. PART 4 LIABILITY FOR CARRIAGE OF PASSENGERS BY WATER Interpretation
Definitions
35. The definitions in this section apply in this Part.
‘‘Convention’’ « Convention »
‘‘Convention’’ means the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at Athens on December 13, 1974, as amended by the Protocol, Articles 1 to 22 of which Convention are set out in Part 1 of Schedule 2.
‘‘Protocol’’ « Protocole »
‘‘Protocol’’ means the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded at London on March 29, 1990, Articles III and VIII of which are set out in Part 2 of Schedule 2.
Extended meaning of expressions
36. (1) For the purposes of this Part and Articles 1 to 22 of the Convention, (a) the definition ‘‘ship’’ in Article 1 of the Convention shall be read as including any vessel or craft designed, used or capable of being used solely or partly for navigation,
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without regard to method or lack of propulsion and whether seagoing or not, but not including an air cushion vehicle; and (b) in the definition ‘‘contract of carriage’’ in Article 1 of the Convention, the expression ‘‘carriage by sea’’ shall be read as ‘‘carriage by water’’. Owners of ships
(2) For greater certainty, in the application of the Convention under this Part, Article 19 of the Convention applies to owners of all ships, whether seagoing or not. Application
Force of law
37. (1) Articles 1 to 22 of the Convention have the force of law in Canada.
Extended application
(2) Articles 1 to 22 of the Convention also apply in respect of (a) the carriage by water, under a contract of carriage, of passengers or of passengers and their luggage from one place in Canada to the same or another place in Canada, either directly or by way of a place outside Canada; and (b) the carriage by water, otherwise than under a contract of carriage, of persons or of persons and their luggage, excluding (i) the master of a ship, a member of a ship’s crew or any other person employed or engaged in any capacity on board a ship on the business of the ship, and (ii) a person carried on board a ship other than a ship operated for a commercial or public purpose.
State Party to the Convention
38. For purposes of the application of the Convention, Canada is a State Party to the Convention. Regulations and Orders
Regulations
39. The Governor in Council may make regulations requiring insurance or other financial security to be maintained to cover liability to passengers under this Part.
2001 Amendment of limits
Responsabilité en m 40. The Governor in Council may, by order, declare that an amendment made in accordance with Article VIII of the Protocol to any of the limits of liability specified in paragraph 1 of Article 7 or in Article 8 of the Convention, including the deductibles referred to in Article 8, has the force of law in Canada. PART 5 LIABILITY FOR CARRIAGE OF GOODS BY WATER Interpretation
Definitions
41. The definitions in this section apply in this Part.
‘‘Hague-Visby Rules’’ « règles de La Haye-Visby »
‘‘Hague-Visby Rules’’ means the rules set out in Schedule 3 and embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924, in the Protocol concluded at Brussels on February 23, 1968, and in the additional Protocol concluded at Brussels on December 21, 1979.
‘‘Hamburg Rules’’ « règles de Hambourg »
‘‘Hamburg Rules’’ means the rules set out in Schedule 4 and embodied in the United Nations Convention on the Carriage of Goods by Sea, 1978, concluded at Hamburg on March 31, 1978.
Other statutory limitations of liability
42. Nothing in this Part affects the operation of any other Part of this Act, or sections 389, 390, 585 and 586 of the Canada Shipping Act, or a provision of any other Act or regulation that limits the liability of owners of ships.
Effect
43. (1) The Hague-Visby Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article X of those Rules.
Extended application
(2) The Hague-Visby Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of
Hague-Visby Rules
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a place outside Canada, unless there is no bill of lading and the contract stipulates that those Rules do not apply. Meaning of ‘‘Contracting State’’
(3) For the purposes of this section, the expression ‘‘Contracting State’’ in Article X of the Hague-Visby Rules includes Canada and any state that, without being a Contracting State, gives the force of law to the rules embodied in the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading, concluded at Brussels on August 25, 1924 and in the Protocol concluded at Brussels on February 23, 1968, regardless of whether that state gives the force of law to the additional Protocol concluded at Brussels on December 21, 1979.
Replacement by Hamburg Rules
(4) The Hague-Visby Rules do not apply in respect of contracts entered into after the coming into force of section 45. Hamburg Rules
Report to Parliament
44. The Minister shall, before January 1, 2005 and every five years afterwards, consider whether the Hague-Visby Rules should be replaced by the Hamburg Rules and cause a report setting out the results of that consideration to be laid before each House of Parliament.
Effect
45. (1) The Hamburg Rules have the force of law in Canada in respect of contracts for the carriage of goods by water between different states as described in Article 2 of those Rules.
Extended application
(2) The Hamburg Rules also apply in respect of contracts for the carriage of goods by water from one place in Canada to another place in Canada, either directly or by way of a place outside Canada, unless the contract stipulates that those Rules do not apply.
Meaning of ‘‘Contracting State’’
(3) For the purposes of this section, the expression ‘‘Contracting State’’ in Article 2 of the Hamburg Rules includes Canada and any state that gives the force of law to those Rules without being a Contracting State to the United Nations Convention on the Carriage of Goods by Sea, 1978.
2001 References to ‘‘sea’’
Signatures
Claims not subject to Hamburg Rules
Responsabilité en m (4) For the purposes of this section, the word ‘‘sea’’ in the Hamburg Rules shall be read as ‘‘water’’. (5) For the purposes of this section, paragraph 3 of article 14 of the Hamburg Rules applies in respect of the documents referred to in article 18 of those Rules. Institution of Proceedings in Canada 46. (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for the adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where (a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada; (b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or (c) the contract was made in Canada.
Agreement to designate
(2) Notwithstanding subsection (1), the parties to a contract referred to in that subsection may, after a claim arises under the contract, designate by agreement the place where the claimant may institute judicial or arbitral proceedings. PART 6 LIABILITY AND COMPENSATION FOR POLLUTION
Definitions
Interpretation 47. The definitions in this section apply in this Part.
‘‘Administrator’’ « administrateur »
‘‘Administrator’’ means the Administrator of the Ship-source Oil Pollution Fund appointed under section 79.
‘‘Civil Liability Convention’’ « Convention sur la responsabilité civile »
‘‘Civil Liability Convention’’ means the International Convention on Civil Liability
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for Oil Pollution Damage, concluded at Brussels on November 29, 1969, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992. ‘‘Convention ship’’ « navire assujetti à la Convention »
‘‘Convention ship’’ means a seagoing ship, wherever registered, (a) carrying, in bulk as cargo, crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil; or (b) on a voyage following any such carriage of such oil, unless it is proved that there is no residue of the oil on board.
‘‘discharge’’ « rejet »
‘‘discharge’’, in relation to a pollutant, means any discharge of the pollutant that directly or indirectly results in the pollutant entering the water, and includes spilling, leaking, pumping, pouring, emitting, emptying, throwing and dumping.
‘‘Fund Convention’’ « Convention sur le Fonds international »
‘‘Fund Convention’’ means the International Convention on the Establishment of the International Fund for Compensation for Oil Pollution Damage, concluded at Brussels on December 18, 1971, as amended by the Protocol concluded at London on November 19, 1976 and the Protocol concluded at London on November 27, 1992. ‘‘guarantor’’ means a guarantor under a contract of liability insurance or other similar security relating to a shipowner’s liability under section 51.
‘‘guarantor’’ « garant »
‘‘in bulk’’ « en vrac »
‘‘in bulk’’ means in a hold or tank that is part of the structure of a ship, without any intermediate form of containment.
‘‘International Fund’’ « Fonds international »
‘‘International Fund’’ means the International Oil Pollution Compensation Fund established by the Fund Convention.
‘‘Limitation of Liability Convention’’ « Convention sur la limitation de responsabilité »
‘‘Limitation of Liability Convention’’ has the meaning ascribed to the word ‘‘Convention’’ in section 24.
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‘‘oil’’ « hydrocarbures »
‘‘oil’’, except in sections 93 to 99, means oil of any kind or in any form and includes petroleum, fuel oil, sludge, oil refuse and oil mixed with wastes but does not include dredged spoil.
‘‘oil pollution damage’’ « dommages dus à la pollution par les hydrocarbures »
‘‘oil pollution damage’’, in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of oil from the ship.
‘‘owner’’ « propriétaire »
‘‘owner’’ means (a) in relation to a Convention ship, the person who is registered as the owner of the ship or, if no person is so registered, (i) the person who owns the ship, or (ii) if the ship is owned by a state and operated by a company that is registered as the ship’s operator in that state, that company; or (b) in relation to any other ship, the person who has for the time being, either by law or by contract, the rights of the owner of the ship with respect to its possession and use.
‘‘pollutant’’ « polluant »
‘‘pollutant’’ means (a) a substance that, if added to any waters, would degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or plant that is useful to humans; and (b) any water that contains a substance in such a quantity or concentration, or that has been so treated, processed or changed, by heat or other means, from a natural state that it would, if added to any waters, degrade or alter or form part of a process of degradation or alteration of the quality of the waters to an extent that is detrimental to their use by humans or by an animal or plant that is useful to humans, and includes oil and any substance or class of substances identified by the regulations as a pollutant for the purposes of this Part.
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‘‘pollution damage’’ « dommages dus à la pollution »
‘‘pollution damage’’, in relation to any ship, means loss or damage outside the ship caused by contamination resulting from the discharge of a pollutant from the ship.
‘‘ship’’ « navire »
‘‘ship’’ means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes (a) a ship in the process of construction from the time that it is capable of floating; and (b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up.
‘‘Ship-source Oil Pollution Fund’’ « Caisse d’indemnisation »
‘‘Ship-source Oil Pollution Fund’’ means the Ship-source Oil Pollution Fund established by section 77.
Application Geographical application — general
48. (1) For ships other than Convention ships, this Part applies in respect of actual or anticipated pollution damage, irrespective of the location of the actual or anticipated discharge of the pollutant and irrespective of the location where any preventive measures are taken, (a) on the territory of Canada or in Canadian waters; or (b) in the exclusive economic zone of Canada.
Geographical application — Convention ships
(2) For Convention ships, this Part applies, subject to subsection (3), in respect of actual or anticipated oil pollution damage, irrespective of the location of the actual or anticipated discharge of the oil and irrespective of the location where any preventive measures are taken,
Responsabilité en m (a) on the territory of Canada or in Canadian waters; (b) in the exclusive economic zone of Canada; (c) on the territory or in the territorial sea or internal waters of a state other than Canada that is a party to the Civil Liability Convention; or (d) in the exclusive economic zone of a state referred to in paragraph (c) or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of that state and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured.
Exception
(3) Sections 84 and 85 do not apply in respect of actual or anticipated oil pollution damage in an area described in paragraph (2)(c) or (d).
Exception — drilling activities
49. (1) This Part does not apply to a drilling ship that is on location and engaged in the exploration or exploitation of the sea-bed or its subsoil in so far as a discharge of a pollutant emanates from those activities.
Exception — floating storage units
(2) This Part does not apply to a floating storage unit or floating production, storage and offloading unit unless it is carrying oil as a cargo on a voyage to or from a port or terminal outside an offshore oil field.
Priority over Arctic Waters Pollution Prevention Act
50. In the event of an inconsistency between the provisions of this Part and the provisions of the Arctic Waters Pollution Prevention Act or any regulations made under that Act, the provisions of this Part prevail to the extent of the inconsistency.
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Liability for pollution and related costs
51. (1) Subject to the other provisions of this Part, the owner of a ship is liable (a) for oil pollution damage from the ship; (b) for costs and expenses incurred by (i) the Minister of Fisheries and Oceans, (ii) a response organization within the meaning of section 654 of the Canada Shipping Act, (iii) any other person in Canada, or (iv) any person in a state, other than Canada, that is a party to the Civil Liability Convention, in respect of measures taken to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from the ship, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures; and (c) for costs and expenses incurred (i) by the Minister of Fisheries and Oceans in respect of measures taken under paragraph 678(1)(a) of the Canada Shipping Act, in respect of any monitoring under paragraph 678(1)(b) of that Act or in relation to any direction given under paragraph 678(1)(c) of that Act, or (ii) by any other person in respect of measures the person was directed to take or prohibited from taking under paragraph 678(1)(c) of the Canada Shipping Act, to the extent that the measures taken and the costs and expenses are reasonable, and for any loss or damage caused by those measures.
Liability for environmental damage
(2) If oil pollution damage from a ship results in impairment to the environment, the owner of the ship is liable for the costs of reasonable measures of reinstatement actually undertaken or to be undertaken.
Strict liability subject to certain defences
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(3) The owner’s liability under subsection (1) does not depend on proof of fault or negligence, but the owner is not liable under that subsection if the owner establishes that the occurrence (a) resulted from an act of war, hostilities, civil war or insurrection or from a natural phenomenon of an exceptional, inevitable and irresistible character; (b) was wholly caused by an act or omission of a third party with intent to cause damage; or (c) was wholly caused by the negligence or other wrongful act of any government or other authority responsible for the maintenance of lights or other navigational aids, in the exercise of that function.
Owner’s rights against third parties
(4) Nothing in this Part shall be construed as limiting or restricting any right of recourse that the owner of a ship who is liable under subsection (1) may have against another person.
Owner’s own claim for costs and expenses
(5) Costs and expenses incurred by the owner of a ship in respect of measures voluntarily taken by the owner to prevent, repair, remedy or minimize oil pollution damage from the ship, including measures taken in anticipation of a discharge of oil from the ship, to the extent that the measures taken and the costs and expenses are reasonable, rank equally with other claims against any security given by that owner in respect of the owner’s liability under this section.
Limitation period
(6) No action lies in respect of a matter referred to in subsection (1) unless it is commenced (a) if pollution damage occurred, before the earlier of (i) three years after the day on which the pollution damage occurred, and (ii) six years after the occurrence that caused the pollution damage or, if the pollution damage was caused by more
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(b) if no pollution damage occurred, within six years after the occurrence. Admiralty Court has jurisdiction
52. (1) Subject to section 59, all claims under this Part may be sued for and recovered in the Admiralty Court.
Jurisdiction may be exercised in rem
(2) Subject to subsection (3), the jurisdiction conferred on the Admiralty Court by subsection (1) may be exercised in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court.
Exempt ships and cargoes
(3) No action in rem may be commenced in Canada against (a) a warship, coast guard ship or police vessel; (b) a ship owned or operated by Canada or a province, or any cargo carried on such a ship, if the ship is engaged on government service; or (c) a ship owned or operated by a state other than Canada, or any cargo carried on such a ship, with respect to a claim if, at the time the claim arose or the action is commenced, the ship was being used exclusively for non-commercial governmental purposes.
Action by Administrator
53. (1) If there is an occurrence that gives rise to liability of an owner of a ship under subsection 51(1), (a) the Administrator may, either before or after receiving a claim under section 85, commence an action in rem against the ship that is the subject of the claim, or against any proceeds of sale of the ship that have been paid into court; and (b) subject to subsection (3), the Administrator is entitled in any such action to claim security in an amount not less than the owner’s maximum aggregate liability under section 54 or 55.
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Subrogation
(2) The Administrator may continue an action referred to in subsection (1) only if the Administrator has become subrogated to the rights of the claimant under subsection 87(3).
Entitlement to claim security
(3) The Administrator is not entitled to claim security under subsection (1) if (a) in the case of a Convention ship, a fund has been constituted under section 58; and (b) in the case of any other ship, a fund has been constituted under Article 11 of the Limitation of Liability Convention.
Limitation of liability — Convention ships
54. (1) The maximum liability under section 51 of an owner of a Convention ship in respect of an occurrence is (a) if the ship has a tonnage of not more than 5,000 tons, 3,000,000 units of account; and (b) if the ship has a tonnage of more than 5,000 tons, 3,000,000 units of account for the first 5,000 tons and 420 units of account for each additional ton, not exceeding 59,700,000 units of account in the aggregate.
Conduct barring limitation
(2) An owner is not entitled to limitation of liability under subsection (1) if it is proved that the actual or anticipated oil pollution damage resulted from the personal act or omission of the owner, committed with the intent to cause the oil pollution damage or recklessly and with knowledge that the oil pollution damage would probably result.
Calculation of tonnage
(3) For the purpose of subsection (1), a ship’s tonnage is the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969, concluded at London on June 23, 1969, including any amendments, whenever made, to the Annexes or Appendix to that Convention.
Definition of ‘‘unit of account’’
(4) In paragraphs (1)(a) and (b), ‘‘unit of account’’ means a special drawing right issued by the International Monetary Fund.
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Amendment of limits
(5) If amendments to the limits of liability specified in paragraph 1 of Article V of the Civil Liability Convention are made in accordance with Article 15 of the Protocol of 1992 concluded at London on November 27, 1992, the Governor in Council may, by order, on the recommendation of the Minister, amend the limits of liability set out in subsection (1) by the same amounts.
Limitation of liability — other ships
55. The maximum liability under section 51 of an owner of a ship other than a Convention ship in respect of an occurrence shall be as determined in accordance with Part 3.
Special Rules — Convention Ships No damage in Canadian territory or Canadian waters
56. No action may be commenced in a court in Canada in relation to an occurrence that gives rise to liability of an owner of a Convention ship in respect of matters referred to in subsection 51(1) if (a) the occurrence does not result in oil pollution damage on the territory of Canada, in Canadian waters or in the exclusive economic zone of Canada; and (b) no costs, expenses, loss or damage described in paragraph 51(1)(b) or (c) are incurred in respect of actual or anticipated oil pollution damage in any of the areas described in paragraph (a).
Remedies exclusive
57. (1) The owner of a Convention ship is not liable for the matters referred to in subsection 51(1) otherwise than as provided by this Part.
Servants, etc., not liable
(2) Subject to subsection 51(4), none of the following persons is liable for the matters referred to in subsection 51(1) unless the actual or anticipated oil pollution damage resulted from a personal act or omission of theirs that was committed with intent to cause the damage or was committed recklessly and with knowledge that the damage would probably result: (a) a servant or an agent of the owner of a Convention ship or one of its crew members;
Responsabilité en m (b) the pilot of a Convention ship or any other person who, without being a member of the crew, performs services for the Convention ship; (c) a charterer, a manager or an operator of a Convention ship; (d) any person using a Convention ship to perform salvage operations with the consent of the owner or on the instructions of a competent public authority; (e) a person taking measures to prevent oil pollution damage from a Convention ship; or (f) a servant or an agent of a person referred to in any of paragraphs (c) to (e).
Owners jointly and severally liable
(3) If two or more owners of Convention ships are liable for costs, expenses, loss or damage referred to in subsection 51(1), the owners of all those ships are jointly and severally liable, to the extent that the costs, expenses, loss or damage are not reasonably separable.
Shipowner’s fund
58. (1) The owner of a Convention ship is not entitled to limitation of liability under subsection 54(1) unless the owner constitutes a fund, in this section referred to as the ‘‘shipowner’s fund’’, in an amount equal to the limit of the owner’s liability under that subsection.
Manner in which fund to be constituted
(2) A shipowner’s fund may be constituted by the owner of a ship (a) making a payment into court of the amount described in subsection (1); or (b) filing with the court a guarantee or other security satisfactory to the court.
Distribution of fund
(3) A shipowner’s fund shall be distributed among claimants in proportion to the amount of their established claims as determined by the court.
Subrogation
(4) If, before the distribution of a shipowner’s fund, the owner of the Convention ship, or anyone on behalf of the owner, pays compensation in respect of any matters referred to in subsection 51(1) as a result of the occurrence in question, the person who pays the
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compensation is subrogated to the rights that the person compensated would have had under this Part. Postponing distribution
(5) If the owner of a Convention ship, or a person who pays compensation on behalf of the owner, satisfies the court that, because of a claim that might later be established before a court of a state other than Canada that is not a party to the Civil Liability Convention, (a) they may be compelled to pay compensation mentioned in subsection (4) after the distribution of the shipowner’s fund, and (b) they would enjoy a right of subrogation under subsection (4) if the compensation were paid before the distribution of the shipowner’s fund, the court may postpone the distribution of the portion of the shipowner’s fund that it considers appropriate, having regard to the possibility that such a claim might be established.
Duplication of actions barred
59. If the owner of a Convention ship has constituted a shipowner’s fund under section 58 with a court of a state other than Canada that is a party to the Civil Liability Convention, no action may be commenced or continued in any court in Canada in relation to the same occurrence in respect of matters referred to in subsection 51(1).
Certificate attesting to financial responsibility
60. (1) A Convention ship carrying, in bulk as cargo, more than 2,000 metric tons of crude oil, fuel oil, heavy diesel oil, lubricating oil or any other persistent hydrocarbon mineral oil shall not (a) enter or leave a port in Canadian waters or in the exclusive economic zone of Canada or arrive at or leave an offshore terminal in Canadian waters or in the exclusive economic zone of Canada, or (b) if the ship is registered in Canada, enter or leave a port in any other state, whether or not the state is a party to the Civil Liability Convention, or arrive at or leave an offshore terminal (i) in the territorial sea or internal waters of any such state, or
Responsabilité en m (ii) in the exclusive economic zone of any such state or, if the state has not established an exclusive economic zone, in an area beyond and adjacent to the territorial sea of the state, and extending not more than 200 nautical miles from the baselines from which the breadth of its territorial sea is measured unless a certificate described in Article VII of the Civil Liability Convention and subsection 61(1) has been issued in respect of the ship, showing that a contract of insurance or other security satisfying the requirements of that Article is in force in respect of the ship.
Governmentowned ship
(2) In relation to a Convention ship owned by a state that is a party to the Civil Liability Convention and being used for commercial purposes, it is a sufficient compliance with subsection (1) if there is in force a certificate issued by the government of the state showing that the ship is owned by that state and that any liability for pollution damage as defined in Article I of that Convention will be met up to the limit stipulated in Article V of that Convention.
Certificate to be carried on board
(3) A certificate referred to in subsection (1) or (2) must be carried on board the Convention ship to which it relates.
Certificate to be produced on demand
(4) The master of a Convention ship or any other person on board shall produce the certificate or give details of it at the request of any authorized officer of the Government of Canada.
By whom certificate to be issued
61. (1) The certificate referred to in subsection 60(1) (a) must be a certificate issued by the Minister, if the Convention ship is registered in Canada; (b) must be a certificate issued by or under the authority of the government of the state of registration, if the Convention ship is registered in a state other than Canada that is a party to the Civil Liability Convention; or
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(c) must be a certificate issued or recognized by the Minister, if the Convention ship is registered in a state other than Canada that is not a party to the Civil Liability Convention. Issuance of certificate by Minister
(2) On an application to the Minister for a certificate referred to in subsection 60(1) in respect of a Convention ship registered in Canada or registered in a state other than Canada that is not a party to the Civil Liability Convention, the Minister shall, subject to subsection (3), issue such a certificate to the owner of the ship if the Minister is satisfied that a contract of insurance or other security satisfying the requirements of Article VII of the Civil Liability Convention will be in force in respect of the ship throughout the period for which the certificate is issued.
When Minister may refuse certificate
(3) If the Minister believes that the guarantor will be unable to meet the guarantor’s obligations under the contract of insurance or other security referred to in subsection 60(1), or that the insurance or other security will not cover the owner’s liability under section 51, the Minister may refuse to issue the certificate referred to in subsection 60(1).
Claimant may sue owner’s guarantor
62. A claimant may commence an action against a guarantor of the owner of a Convention ship in respect of a matter referred to in subsection 51(1) and, in that event, (a) the guarantor is entitled to establish the defences affecting the owner’s liability set out in subsection 51(3) and, in addition, may establish as a defence that the occurrence resulted from the wilful misconduct of the owner; (b) the guarantor may not plead as a defence the bankruptcy or winding-up of the owner; (c) irrespective of whether the owner is entitled to limitation of liability, the guarantor is entitled to limitation of liability in respect of claims made by virtue of this section to the same amount and in like manner as an owner is entitled to limitation of liability under this Part; and (d) if the owner of a Convention ship and the guarantor each applies to the Admiralty Court in accordance with subsection 58(2)
Responsabilité en m in order to limit their liability, any amount paid into court or filed as a guarantee pursuant to either application shall be treated as paid or filed also pursuant to the other application. Registration of Foreign Judgments
Definitions
63. The definitions in this section apply in this section and in sections 64 to 71.
‘‘foreign judgment’’ « jugement étranger »
‘‘foreign judgment’’ means a judgment of a court of a state other than Canada that is a party to the Civil Liability Convention in respect of a liability described in Article III of that Convention, resulting from an occurrence after the entry into force of that Convention for Canada.
‘‘judgment creditor’’ « bénéficiaire du jugement »
‘‘judgment creditor’’ means a person in whose favour a foreign judgment was rendered, and includes the person’s assigns, heirs, executors, liquidators of the succession, administrators and other legal representatives.
‘‘judgment debtor’’ « débiteur »
‘‘judgment debtor’’ means a person against whom a foreign judgment was rendered, and includes a person against whom the foreign judgment is enforceable under the law of the state in which it was rendered.
Registration of foreign judgments
64. (1) If a foreign judgment has been rendered, the judgment creditor may, at any time during which the foreign judgment is enforceable in the state in which it was rendered, apply to the Admiralty Court in accordance with its rules to have the foreign judgment registered in that Court.
Court may register foreign judgment
(2) On an application made under subsection (1), the Admiralty Court may, subject to subsections (3) and (4) and section 67, order the registration of the foreign judgment if it is satisfied (a) that a case for registration has been made; and (b) that the foreign judgment is not under appeal and is no longer subject to appeal in the state in which it was rendered.
If judgment debtor appears
(3) If, under the rules of the Admiralty Court, the judgment debtor appears at the hearing of an application made under subsection (1), that Court may not order the registration of the foreign judgment if it is satisfied that
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(a) the foreign judgment has been fully satisfied; (b) the foreign court acted without jurisdiction; (c) the foreign judgment was obtained by fraud; or (d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case.
When judgment partly satisfied
(4) On any application made under subsection (1), if the Court is satisfied that the foreign judgment has been partly satisfied, the foreign judgment shall be ordered to be registered only in respect of the balance remaining payable.
Pre-registration interest
65. For the purpose of section 64, a foreign judgment includes any interest, up to the day of registration, that has accrued on it under the law of the state in which it was rendered.
Costs
66. Reasonable costs incurred by the judgment creditor related to the registration of the foreign judgment, including the cost of obtaining an exemplification or certified copy of it from the foreign court, are recoverable in the same manner as if they were amounts payable under the foreign judgment, and the costs shall be taxed by an assessment officer of the Admiralty Court and the assessment endorsed on the order for registration.
Conversion to Canadian currency
67. (1) A foreign judgment expressed in a currency other than Canadian currency cannot be registered under section 64 until the Admiralty Court has determined the equivalent amount in Canadian currency on the basis of the rate of exchange prevailing on the day on which the foreign judgment was rendered, as ascertained from any bank in Canada, and, for the purpose of making that determination, that Court may require the judgment creditor to provide any evidence of the applicable rate of exchange that that Court considers necessary.
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Registered judgment to be in Canadian currency
(2) When the equivalent amount in Canadian currency has been determined in accordance with subsection (1), the Admiralty Court shall certify on the order for registration the amount so determined, and the foreign judgment, when registered, is deemed to be a judgment for payment of the amount so certified.
Effect of registration
68. Subject to section 69, a foreign judgment registered under section 64 has, as of the date of registration, the same force and effect as a judgment of the Admiralty Court rendered on that date.
Service of notice of registration
69. If a foreign judgment is registered under section 64 after an ex parte hearing, execution of the registered judgment may not issue until the expiry of 30 days after the judgment debtor has been served with a notice of registration of the foreign judgment in the manner set out in the rules of the Admiralty Court for the service of originating documents.
Application to set aside registration
70. (1) At any time after a foreign judgment has been registered under section 64, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the registration of the judgment set aside on any of the grounds set out in subsection (2).
Grounds for setting aside registration
(2) On an application by a judgment debtor under subsection (1), the Admiralty Court shall set aside the registration of the foreign judgment if it is satisfied that (a) the foreign judgment had been fully or partly satisfied; (b) the foreign court acted without jurisdiction; (c) the foreign judgment was obtained by fraud; (d) the defendant in the foreign action was not given reasonable notice and a fair opportunity to present their case; (e) the registration of the foreign judgment was obtained by fraud; (f) an error was made in the conversion of the foreign judgment to Canadian currency under section 67;
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(g) the registered judgment included interest on the foreign judgment to which the judgment creditor was not entitled; or (h) for any other reason that Court erred in registering the foreign judgment.
Reduction of registered amount
(3) If the Admiralty Court sets aside the registration of a foreign judgment on the ground that it had been partly satisfied, or on a ground referred to in paragraph (2)(f) or (g), it shall order the foreign judgment to be registered in the reduced amount.
Application for stay of execution
71. (1) At any time after a foreign judgment has been registered under section 64, the judgment debtor may apply to the Admiralty Court, in accordance with its rules, to have the execution of the registered judgment stayed on the grounds that an application to set aside the registration has been made under subsection 70(1), and, if that Court is satisfied that the application has been made, it may stay the execution of the judgment either absolutely or for the period and on the terms and conditions that it considers appropriate, and may, on further evidence, vary or terminate a stay of execution.
Grounds exclusive
(2) Execution of a registered judgment may not be stayed except on the grounds that an application to set aside the registration has been made under subsection 70(1). DIVISION 2 COMPENSATION FOR POLLUTION International Oil Pollution Compensation Fund
Legal capacity of International Fund
72. For the purposes of the rights and obligations described in this Part, the International Fund has the capacity, rights and obligations of a natural person, and the Director of the International Fund is its legal representative.
2001 International Fund to be party to legal proceedings
Responsabilité en m 73. If a claimant commences an action against the owner of a Convention ship or the owner’s guarantor in respect of a matter referred to in subsection 51(1), (a) the document commencing the proceedings shall be served on the International Fund and the International Fund is then a party to the proceedings; and (b) the International Fund may appear and take any action that its Director considers appropriate for the proper administration of the International Fund.
Method of service on International Fund
74. In addition to any method of service permitted by the rules of the court in which a proceeding referred to in section 73 is commenced, service of documents on the International Fund under paragraph 73(a) may be effected by registered mail.
Circumstances in which International Fund is liable
75. If there is an occurrence involving a Convention ship, to the extent that a claimant has been unable to obtain full compensation under this Part from the ship’s owner or the owner’s guarantor, the International Fund is, subject to the provisions of the Fund Convention, liable in accordance with Article 4 of that Convention.
Contributions by Canada to International Fund
76. (1) The Administrator shall direct payments to be made out of the Ship-source Oil Pollution Fund to the International Fund in accordance with Articles 10 and 12 of the Fund Convention.
Communication of information
(2) The Administrator shall communicate to the Director of the International Fund the information referred to in Article 15 of the Fund Convention in accordance with that Article and is liable for any financial loss to the International Fund as a result of the failure to so communicate.
Powers of Administrator
(3) The Administrator may, for the purpose of subsection (2), (a) at any reasonable time, enter any premises where the Administrator believes on reasonable grounds that there are any records, books, accounts, vouchers or other documents relating to information referred to in Article 15 of the Fund Convention;
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(b) examine anything on the premises and copy or take away for further examination or copying any record, book, account, voucher or other document that the Administrator believes, on reasonable grounds, contains any such information; and (c) require the owner, occupier or person in charge of the premises to give all reasonable assistance in connection with the examination and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge to attend at the premises with the Administrator. No obstruction or false statements
(4) No person shall obstruct or hinder the Administrator in the exercise of any powers under subsection (3) or knowingly make a false or misleading statement, either orally or in writing, to the Administrator while the Administrator is exercising those powers.
Warrant required to enter living quarters
(5) Living quarters may not be entered under subsection (3) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (6).
Authority to issue warrant
(6) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing the Administrator to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters (a) is necessary for the purposes of subsection (2); and (b) has been refused or there are reasonable grounds to believe that it will be refused.
Meaning of ‘‘associated persons’’
(7) If two bodies are affiliated with each other within the meaning of section 2 of the Canada Business Corporations Act, they are deemed to be ‘‘associated persons’’ for the purpose of the definition ‘‘Associated person’’ in subparagraph 2(b) of Article 10 of the Fund Convention.
Responsabilité en m Ship-source Oil Pollution Fund
Ship-source Oil Pollution Fund
77. (1) There is hereby established in the accounts of Canada an account known as the Ship-source Oil Pollution Fund.
Credits
(2) The following shall be credited to the Ship-source Oil Pollution Fund: (a) all payments received under sections 93 and 99; (b) interest computed in accordance with section 78; and (c) any amounts recovered by the Administrator under paragraph 87(3)(c).
Charges
(3) The following shall be charged to the Ship-source Oil Pollution Fund: (a) all amounts that are directed by the Administrator to be paid under section 76, paragraph 87(3)(a), paragraph 89(1)(a), subsection 89(6) or under a settlement; (b) all amounts for which the Administrator is liable under subsection 76(2); (c) all interest paid under section 101; (d) all costs and expenses that are directed to be paid under section 82; (e) the remuneration and expenses of assessors that are directed to be paid under subsection 89(2); and (f) the amount of any judgment and any costs awarded against that Fund in litigation.
Interest to be credited to Fund
78. The Minister of Finance shall, at the times that the Governor in Council directs, credit to the Ship-source Oil Pollution Fund interest at a rate fixed by the Governor in Council on the balance from time to time to the credit of that Fund.
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Administrator and Deputy Administrator Appointment of Administrator
79. (1) The Governor in Council shall appoint an Administrator of the Ship-source Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.
Administrator eligible for reappointment
(2) The Administrator is eligible for reappointment on the expiry of the Administrator’s term of office.
Administrator to be independent of Crown
80. (1) The Administrator shall not, while holding office, accept or hold any office or employment inconsistent with the Administrator’s duties under this Part.
Effect of contravention of subsection (1)
(2) If the Administrator contravenes subsection (1), the Administrator’s appointment as Administrator is terminated on a date fixed by the Governor in Council that is not later than 30 days after notice of the contravention is received by the Minister, but the contravention does not affect the validity of any act performed by the Administrator on behalf of the Ship-source Oil Pollution Fund between the date of the contravention and the date that the appointment is terminated under this subsection.
Professional and technical aid
81. The Administrator may, for the purpose of performing duties under this Part, obtain the professional, technical and other advice and assistance that the Administrator considers necessary.
Costs, expenses and fees
82. (1) On the direction of the Minister of Finance, all costs and expenses incurred by the Administrator in performing duties and functions under this Part, and fees for services rendered by the Administrator calculated in accordance with a tariff prescribed by the regulations, shall be paid out of the Consolidated Revenue Fund and charged to the Ship-source Oil Pollution Fund.
Taxation
(2) Assessment officers of the Admiralty Court may, at the request of the Minister of Justice, tax any account for costs, expenses or fees submitted by the Administrator to the Minister of Finance as if the Administrator were acting for the Crown in proceedings in
Responsabilité en m that Court, but, on any such taxation, no fee may be allowed in excess of that set out in the tariff referred to in subsection (1).
Deputy Administrator
83. (1) The Governor in Council may appoint a Deputy Administrator of the Shipsource Oil Pollution Fund to hold office during good behaviour for a term, not exceeding five years, that is fixed by the Governor in Council, subject to removal by the Governor in Council for cause.
Eligibility for re-appointment
(2) The Deputy Administrator is eligible for reappointment on the expiry of the Deputy Administrator’s term of office.
Absence, etc., of Administrator
(3) If the Administrator is absent or incapacitated or the office of Administrator is vacant, the Deputy Administrator has all the powers and duties of the Administrator.
Application of sections 80 and 82
(4) Sections 80 and 82 apply to the Deputy Administrator, with any modifications that the circumstances require. Liability of Ship-source Oil Pollution Fund
Liability of Ship-source Oil Pollution Fund
84. Subject to the other provisions of this Part, the Ship-source Oil Pollution Fund is liable for the matters referred to in subsection 51(1) in relation to oil, if (a) all reasonable steps have been taken to recover payment of compensation from the owner of the ship and, in the case of a Convention ship, from the International Fund and have been unsuccessful; (b) the owner is not liable by reason of any of the defences described in subsection 51(3) and the International Fund is not liable either; (c) the claim exceeds (i) in the case of a Convention ship, the owner’s maximum liability under this Part to the extent that the excess is not recoverable from the International Fund, and (ii) in the case of a ship other than a Convention ship, the owner’s maximum liability under Part 3;
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(d) the owner is financially incapable of meeting the owner’s legal obligations under subsection 51(1), to the extent that the obligation is not recoverable from the International Fund; (e) the cause of the oil pollution damage is unknown and the Administrator has been unable to establish that the occurrence that gave rise to the damage was not caused by a ship; or (f) the Administrator is a party to a settlement under section 90.
Claims Arising under Section 51 Claims filed with Administrator
85. (1) In addition to any right against the Ship-source Oil Pollution Fund under section 84, a person who has suffered loss or damage or incurred costs or expenses referred to in subsection 51(1) in respect of actual or anticipated oil pollution damage may file a claim with the Administrator for the loss, damage, costs or expenses.
Time limits
(2) Unless the Admiralty Court fixes a shorter period under paragraph 92(a), a claim under subsection (1) must be made (a) within two years after the day on which oil pollution damage occurred and five years after the occurrence that caused that damage, or (b) if no oil pollution damage occurred, within five years after the occurrence in respect of which oil pollution damage was anticipated.
Exception
(3) Subsection (1) does not apply to a response organization referred to in subsection 51(1)(b) or a person in a state other than Canada.
2001 Duties of Administrator
Responsabilité en m 86. (1) On receipt of a claim under section 85, the Administrator shall (a) investigate and assess the claim; and (b) make an offer of compensation to the claimant for whatever portion of the claim the Administrator finds to be established.
Powers of Administrator
(2) For the purpose of investigating and assessing a claim, the Administrator has the powers of a commissioner under Part I of the Inquiries Act.
Factors to be considered
(3) In investigating and assessing a claim, the Administrator may consider only (a) whether the claim is for loss, damage, costs or expenses referred to in subsection 85(1); and (b) whether the claim resulted wholly or partially from (i) an act done or omitted to be done by the claimant with intent to cause damage, or (ii) the negligence of the claimant.
Cause of occurrence
(4) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if satisfied on the evidence that the occurrence was not caused by a ship.
When claimant at fault
(5) The Administrator shall reduce or nullify any amount that the Administrator would have otherwise assessed in proportion to the degree to which the Administrator is satisfied that the claim resulted from (a) an act done or omitted to be done by the claimant with intent to cause damage; or (b) the negligence of the claimant.
Offer of compensation
87. (1) If the Administrator makes an offer of compensation to a claimant under section 86, the claimant shall, within 60 days after receiving the offer, notify the Administrator whether the claimant accepts or refuses it and, if no notification has been received by the Administrator at the end of that period, the claimant is deemed to have refused the offer.
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Appeal to Admiralty Court
(2) A claimant may, within 60 days after receiving an offer of compensation from the Administrator or a notification that the Administrator has disallowed the claim, appeal the adequacy of the offer or the disallowance of the claim to the Admiralty Court, but in an appeal from the disallowance of a claim that Court may consider only the matters described in paragraphs 86(3)(a) and (b).
Acceptance of offer by claimant
(3) If a claimant accepts an offer of compensation from the Administrator under section 86, (a) the Administrator shall without delay direct payment to the claimant of the amount of the offer out of the Ship-source Oil Pollution Fund; (b) the claimant is then precluded from pursuing any rights that the claimant may have had against any person in respect of matters referred to in subsection 51(1) in relation to the occurrence to which the offer of compensation relates; (c) the Administrator is, to the extent of the payment to the claimant, subrogated to any rights of the claimant mentioned in paragraph (b); and (d) the Administrator shall take all reasonable measures to recover the amount of the payment from the owner of the ship, the International Fund or any other person liable and, for that purpose, the Administrator may commence an action in the name of the Administrator or the claimant and may enforce any security provided to or enforceable by the claimant, including any claim against a shipowner’s fund established under subsection 58(1). Claims for Loss of Income
Meaning of terms
Definition of ‘‘claimant’’
88. (1) In this section, ‘‘fish’’, ‘‘fishing’’ and ‘‘fishing vessel’’ have the same meaning as in section 2 of the Fisheries Act. (2) In this section, ‘‘claimant’’ means (a) an individual who derives income from fishing, from the production, breeding, holding or rearing of fish, or from the culture or harvesting of marine plants;
Responsabilité en m (b) the owner of a fishing vessel who derives income from the rental of fishing vessels to holders of commercial fishing licences issued in Canada; (c) an individual who derives income from the handling of fish on shore in Canada directly after they are landed from fishing vessels; (d) an individual who fishes or hunts for food or animal skins for their own consumption or use; (e) a person who rents or charters boats in Canada for sport fishing; or (f) a worker in a fish plant in Canada, excluding, except in the case of a familytype co-operative operation that has a total annual throughput of less than 1,400 metric tons or an annual average number of employees of fewer than 50, a person engaged exclusively in supervisory or managerial functions.
Filing of claim with Administrator
(3) Subject to this section, a claimant who has suffered or will suffer a loss of income, or loss of a source of food or animal skins in the case of a person described in paragraph (2)(d), resulting from a discharge of oil from a ship and not recoverable otherwise under this Part may file a claim with the Administrator for that loss or future loss (a) within three years after the day on which the discharge of the oil occurred or first occurred, as the case may be, or could reasonably be expected to have become known to the claimant; and (b) within six years after the occurrence that caused the discharge.
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(4) The right to file a claim under this section is limited to claimants who (a) were lawfully carrying on an activity described in subsection (2); and (b) except in the case of individuals described in paragraph (2)(d), (i) are Canadian citizens or permanent residents of Canada within the meaning of subsection 2(1) of the Immigration Act, in the case of an individual, or (ii) are incorporated by or under the laws of Canada or a province, in the case of a corporation.
Cause of occurrence
(5) A claimant is not required to satisfy the Administrator that the occurrence was caused by a ship, but the Administrator shall dismiss a claim if satisfied on the evidence that the occurrence was not caused by a ship.
Time for filing claim may be shortened
(6) The period mentioned in subsection (3) for filing a claim under that subsection may be shortened by order of the Admiralty Court under paragraph 92(a).
Responsibility of Administrator
89. (1) On receipt of a claim filed under subsection 88(3), the Administrator shall (a) if the Administrator considers the action appropriate for the proper administration of the Ship-source Oil Pollution Fund, direct payment of the amount of the loss alleged in the claim or otherwise agreed on between the Administrator and the claimant; or (b) in any other case, transmit the claim to the Minister.
Appointment of assessors
(2) On receipt of a claim from the Administrator under paragraph (1)(b), the Minister shall, (a) after consulting with the Minister of Fisheries and Oceans, the Minister of the Environment and the Administrator, appoint as assessors one or more persons not employed in the Public Service, as defined in subsection 3(1) of the Public Service Superannuation Act; and (b) fix the remuneration and expenses to be paid to the person or persons while they are acting as assessors and authorize the Ad2001
Responsabilité en m ministrator to direct payment of the remuneration and expenses to them.
Assessment of loss
(3) For the purpose of assessing a loss alleged by a claimant under section 88, an assessor or assessors, in this section referred to as the ‘‘assessor’’, (a) after giving reasonable notice to the Administrator and the claimant, shall meet with the Administrator and the claimant or their representatives; (b) may receive and consider any written or oral evidence submitted to the assessor by or on behalf of the Administrator or the claimant, whether or not the evidence would be admissible before a court; and (c) in so doing, has all the powers of a commissioner under Part I of the Inquiries Act.
Report to Minister
(4) The assessor shall, within 60 days after the assessor’s appointment or within any longer period that is agreed to by the Minister, report to the Minister whether, in his or her opinion, the following requirements have been met: (a) the loss alleged by the claimant has been established; (b) the loss resulted from the discharge of oil from a ship; and (c) the loss is not recoverable otherwise under this Part.
Amount of loss
(5) If the assessor reports that the requirements of paragraphs (4)(a) to (c) have been met, the report must set out the amount of the loss as assessed by the assessor.
Payment of assessed loss out of Fund
(6) On receipt of the report, the Minister shall without delay forward a copy of it to the claimant and to the Administrator, who shall direct payment to the claimant out of the Ship-source Oil Pollution Fund of an amount equal to the amount, if any, of the assessed loss set out in the report.
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Proceedings under section 51
90. (1) If a claimant commences proceedings against the owner of a ship or the owner’s guarantor in respect of a matter referred to in subsection 51(1), except in the case of proceedings commenced by the Minister of Fisheries and Oceans under paragraph 51(1)(c) in respect of a pollutant other than oil, (a) the document commencing the proceedings shall be served on the Administrator by delivering a copy of it personally to the Administrator, or by leaving the copy at the Administrator’s latest known address, and the Administrator is then a party to the proceedings; and (b) the Administrator shall appear and take any action, including being a party to a settlement either before or after judgment, that the Administrator considers appropriate for the proper administration of the Ship-source Oil Pollution Fund.
When Administrator is a party to a settlement
(2) If the Administrator is a party to a settlement under paragraph (1)(b), the Administrator shall direct payment to the claimant of the amount that the Administrator has agreed to pay under the settlement. Limit of Liability of Ship-source Oil Pollution Fund
Limit of liability of Ship-source Oil Pollution Fund in first year
91. (1) The maximum aggregate liability of the Ship-source Oil Pollution Fund under sections 84, 86 and 88 and under any settlement, in respect of any particular occurrence, is (a) $100,000,000 if the occurrence took place in the year ending March 31, 1990; or (b) if the occurrence takes place in any following year, an amount calculated in accordance with subsection (2).
Annual adjustment of limit of liability
(2) The $100,000,000 limit of liability referred to in paragraph (1)(a) shall be adjusted annually so that the limit of liability arising out of any given occurrence that takes
Responsabilité en m place in any following year is an amount equal to the product obtained by multiplying (a) the limit of liability that would have been applicable for that following year if no adjustment had been made under this section with respect to that following year by (b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period.
Consumer Price Index
(3) For the purpose of this section, (a) a reference to the ‘‘Consumer Price Index, excluding the food and energy components,’’ for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period; (b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number; (c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the limit of liability of the Ship-source Oil Pollution Fund under this section; and (d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics
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Act, is modified to reflect a new content basis, that modification does not affect the operation of this section.
Adjusted limit to be published annually
(4) The Minister shall cause the limit of liability referred to in subsection (1), adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the limit of liability so published is admissible in any proceeding under this Part as conclusive proof of that limit of liability for the year in question. Application to Court for Directions
Administrator may apply to Court for directions
92. If the Admiralty Court, on the application of the Administrator and on notice to other interested parties as that Court considers just in the circumstances, is satisfied that, in respect of a particular occurrence, the aggregate liability of the Ship-source Oil Pollution Fund under sections 84, 86 and 88 and subsection 90(2) may exceed its limit of liability under section 91, that Court may (a) order the exclusion of any claimants who do not file their claims with the Administrator within the time that that Court directs; and (b) order that payment out of the Shipsource Oil Pollution Fund of established claims be prorated or postponed, or any combination of prorating and postponement. Payments into the Ship-source Oil Pollution Fund
Definition of ‘‘oil’’
93. (1) In this section and sections 94 to 99, ‘‘oil’’ means ‘‘Contributing Oil’’ as defined in paragraph 3 of Article 1 of the Fund Convention.
Levy on shipments of oil in bulk
(2) If imposed or re-imposed by the Minister under subsection 95(1), there shall be paid to the Receiver General a levy determined in accordance with section 94 (a) in respect of each metric ton of oil in excess of 300 metric tons imported by ship into Canada in bulk as cargo; and
Responsabilité en m (b) in respect of each metric ton of oil in excess of 300 metric tons shipped by ship from any place in Canada in bulk as cargo.
When payable
(3) Amounts payable under subsection (2) shall be paid, or security for payment of those amounts in an amount and form satisfactory to the Minister shall be given, (a) in the case of oil imported by ship into Canada in bulk as cargo, before the oil is unloaded from the ship; and (b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, before the ship leaves the facility where the oil is loaded on board the ship.
Debts due to Her Majesty
(4) All amounts payable under subsection (2) and any interest payable on those amounts are debts due to Her Majesty in right of Canada and recoverable in any court of competent jurisdiction from (a) in the case of oil imported by ship into Canada in bulk as cargo, the owner, consignee or shipper of the oil; and (b) in the case of oil shipped from a place in Canada in bulk as cargo of a ship, the owner, consignor or shipper of the oil.
Amount of levy in first year
94. (1) The levy referred to in subsection 93(2) is 30 cents in the year ending on March 31, 1990.
Annual adjustment of levy
(2) The levy of 30 cents referred to subsection (1) shall be adjusted annually that the levy in any following year is amount equal to the product obtained multiplying
in so an by
(a) the levy that would have been payable in that following year if no adjustment had been made under this section with respect to that following year
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by (b) the ratio that the Consumer Price Index, excluding the food and energy components, for the 12-month period ending on December 31 next before that following year bears to the Consumer Price Index, excluding the food and energy components, for the 12-month period next before that 12-month period. Consumer Price Index
(3) For the purpose of this section, (a) a reference to the ‘‘Consumer Price Index, excluding the food and energy components,’’ for any 12-month period means the average of the Consumer Price Index for Canada, excluding the food and energy components, as published by Statistics Canada under the authority of the Statistics Act, for each month in that 12-month period; (b) the Governor in Council may, on the recommendation of the Minister, make regulations prescribing the manner in which the average of the Consumer Price Index, excluding the food and energy components, for any 12-month period is to be determined and the manner of expressing any such average that is determined to be a fraction of a whole number; (c) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is adjusted to reflect a new time basis, a corresponding adjustment shall be made in the Consumer Price Index, excluding the food and energy components, for any 12-month period that is used for the purpose of calculating the levy under this section; and (d) if at any time the Consumer Price Index for Canada, as published by Statistics Canada under the authority of the Statistics Act, is modified to reflect a new content basis, that modification does not affect the operation of this section.
Responsabilité en m
Adjusted levy to be published annually
(4) The Minister shall cause the levy referred to in section 93, adjusted in accordance with this section, to be published in the Canada Gazette each year as soon as it is available, and the levy so published is admissible in any proceeding under this Part as conclusive proof of the levy for the year in question.
Discontinuation or re-imposition of levy
95. (1) The Minister, after consultation with the Minister of Fisheries and Oceans and the Minister of the Environment, may from time to time, by order, impose, discontinue or re-impose the levy referred to in section 93.
Annual adjustment of levy unaffected
(2) The non-imposition, discontinuation or re-imposition of the levy under subsection (1) does not affect the operation of section 94.
Regulations
96. The Governor in Council may, on the recommendation of the Minister, make regulations (a) prescribing the manner in which the levy payable under section 93 is to be paid; (b) providing for the filing with the Minister of information returns by the persons referred to in subsection 93(4) from whom the levy may be recovered; and (c) providing for the filing with the Minister of information returns necessary to enable the Administrator to discharge the Administrator’s obligations under section 76.
Records and books
97. (1) Every person referred to in subsection 93(4) from whom the levy payable under section 93 may be recovered shall keep records and books of account at their place of business in Canada, or at any other place in Canada that may be designated by the Minister, that set out (a) the amounts that are payable by that person under that section; (b) the type and quantity of the oil in respect of which the amounts referred to in paragraph (a) are payable; (c) the time when and place where the amounts referred to in paragraph (a) were paid or security for their payment was given in accordance with subsection 93(3); and
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(d) any other information that the Minister may require to determine the amounts referred to in paragraph (a) and the time when they become payable. Disposal of records
(2) Every person who is required by this section to keep records and books of account shall, unless otherwise authorized by the Minister, retain every such record and book of account and every account or voucher necessary to verify the information contained in the record or book of account until the expiry of six years from the end of the year to which the record or book of account relates.
Examination of records
(3) Every person who is required by this section to keep records and books of account shall, at all reasonable times, make the records and books of account, and every account or voucher necessary to verify the information contained in them, available to any person designated in writing by the Minister and give that person every facility necessary to examine the records, books of account, accounts and vouchers.
Inspection of premises
98. (1) Any person designated in writing by the Minister for the purpose may, at any reasonable time, enter any premises where the person believes on reasonable grounds that there are any records, books of account, accounts, vouchers or other documents relating to amounts payable under section 93 and (a) examine anything on the premises and copy or take away for further examination or copying any record, book of account, account, voucher or other document that they believe, on reasonable grounds, contains any information relevant to the enforcement of this Part; and (b) require the owner, occupier or person in charge of the premises to give the person all reasonable assistance in connection with the examination under paragraph (a) and to answer all proper questions relating to the examination and, for that purpose, require the owner, occupier or person in charge of the premises to attend at those premises with the person.
Responsabilité en m
Warrant to enter living quarters
(2) Living quarters may not be entered under subsection (1) unless they are entered with the consent of the occupant or under the authority of a warrant issued under subsection (3).
Authority to issue warrant
(3) On ex parte application, a justice, within the meaning of section 2 of the Criminal Code, may issue a warrant authorizing a person designated under subsection (1) to enter living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that entry to the living quarters (a) is necessary for the purpose of subsection (1); and (b) has been refused or there are reasonable grounds to believe that it will be refused.
Certificate of designation
(4) Persons designated by the Minister under subsection (1) shall be furnished with a certificate of their designation and, on entering any premises referred to in that subsection, shall produce the certificate on request to the owner, occupier or person in charge of the premises.
Report to Minister
(5) On the conclusion of an examination under this section, the person conducting the examination shall transmit a full report of their findings to the Minister.
Return of original or copy of documents
(6) The original or a copy of any record, book of account, account, voucher or other document taken away under paragraph (1)(a) shall be returned to the person from whose custody it was taken within 21 days after it was taken or within any longer period that is directed by a judge of a superior court for cause or agreed to by a person who is entitled to its return.
Notice of application for extension of time
(7) An application to a judge mentioned in subsection (6) for a direction under that subsection may only be made on notice to the person from whose custody the record, book of account, account, voucher or other document was taken.
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Obstruction, false statements
Interest on unpaid amounts
Annual report of Administrator
Tabling
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(8) A document purporting to be certified by the Minister to be a copy of a record, book of account, account, voucher or other document made under paragraph (1)(a) is admissible in evidence in any prosecution for an offence under this Part and is, in the absence of evidence to the contrary, proof of its contents. (9) No person shall obstruct or hinder anyone engaged in carrying out their duties and functions under this section, or knowingly make a false or misleading statement, either orally or in writing, to any person so engaged. 99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, at a rate fixed by the Governor in Council on the recommendation of the Minister of Finance, calculated from the time when the oil is unloaded from the ship or when the ship on which the oil was loaded leaves the facility at which it was loaded, as the case may be. Annual Report 100. (1) The Administrator shall, as soon as feasible after the end of each fiscal year, submit a report to the Minister, in any form that the Minister may direct, of the Administrator’s operations under this Part for that fiscal year. (2) The Minister shall have the report laid before each House of Parliament on any of the first ten days on which that House is sitting after the day on which the Minister receives it. Interest on Claims
Claimants entitled to interest
101. (1) Interest accrues on a claim under this Part against an owner of a ship, the owner’s guarantor, the Ship-source Oil Pollution Fund or the International Fund at the rate prescribed under the Income Tax Act for amounts payable by the Minister of National Revenue as refunds of overpayments of tax under that Act in effect from time to time.
2001 Time from which interest accrues
Responsabilité en m (2) Interest referred to in subsection (1) accrues (a) if the claim is based on paragraph 51(1)(a), from the day on which the oil pollution damage occurred; (b) if the claim is based on paragraph 51(1)(b) or (c), (i) in the case of costs and expenses, from the day on which they were incurred, or (ii) in the case of loss or damage referred to in that paragraph, from the day on which the loss or damage occurred; or (c) if the claim is for loss of income under section 88, from the time when the loss of income occurred. Regulations
Regulations
102. The Governor in Council may, on the recommendation of the Minister, make regulations (a) prescribing anything that by this Part is to be prescribed by the regulations; and (b) generally for carrying out the purposes and provisions of this Part. Offences and Punishment
Evidence of financial responsibility
103. (1) Any person who fails to produce a certificate or give details of it as and when required under subsection 60(4) is guilty of an offence and liable on summary conviction to a fine not exceeding $100,000.
Detention of ship
(2) A pollution prevention officer, designated pursuant to section 661 of the Canada Shipping Act, who has reasonable grounds for believing that an offence under subsection (1) has been committed in respect of a ship may make a detention order in respect of that ship, and section 672 of that Act applies to such a detention order with any modifications that the circumstances require.
Evading payment of levy
104. (1) Any person who wilfully evades or attempts to evade payment of an amount payable under section 93 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
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Failure to file information return
(2) Any person who fails to file an information return as and when required by regulations made under paragraph 96(b) or (c), containing substantially the information required to be included in the return, is guilty of an offence and liable on summary conviction to a fine not exceeding $100 for each day of default.
Failure to keep books and accounts
(3) Any person who contravenes section 97 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
Falsifying or destroying books
(4) Any person who knowingly destroys, mutilates or falsifies, or who knowingly makes any false entry or statement in, any record, book of account or other document required to be kept under section 97 is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
Obstruction or false statements
(5) Any person who contravenes subsection 76(4) or 98(9) is guilty of an offence and liable on summary conviction to a fine not exceeding $5,000.
Jurisdiction in relation to offences
105. When a person is charged with having committed an offence under this Part, any court in Canada that would have had cognizance of the offence if it had been committed by a person within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there. PART 7 VALIDATION OF CERTAIN BY-LAWS AND REGULATIONS By-laws under the Canada Ports Corporation Act
By-laws deemed to be valid
106. Each of the following by-laws is deemed for all purposes to have been validly made and to have had the same force and effect as if it had been made in accordance with the Canada Ports Corporation Act, and any harbour dues collected before the coming into force of this section under the authority purported to be granted by the by-law are deemed to have been validly collected:
Responsabilité en m (a) by-law amending the Harbour Dues Tariff By-law, made by Order in Council P.C. 1983-3905 of December 8, 1983, and registered as SOR/83-934; (b) by-law amending the Pacific Harbour Dues Tariff By-law, made by Order in Council P.C. 1983-3906 of December 8, 1983, and registered as SOR/83-935; and (c) by-law amending the Pacific Harbour Dues Tariff By-law, made by Order in Council P.C. 1985-541 of February 14, 1985, and registered as SOR/85-190.
Regulations under the Pilotage Act Laurentian Pilotage Tariff Regulations, 1992
107. The Laurentian Pilotage Tariff Regulations, 1992, made by Order in Council P.C. 1994-1508 of September 7, 1994, and registered as SOR/94-588, are deemed for all purposes to have been made on July 4, 1994 by the Laurentian Pilotage Authority with the approval of the Governor in Council under section 33 of the Pilotage Act, and any pilotage charges collected before the coming into force of this section under the authority purported to be granted by those Regulations are deemed to have been validly collected. PART 8 TRANSITIONAL, CONSEQUENTIAL AMENDMENTS, CONDITIONAL AMENDMENT, REPEAL AND COMING INTO FORCE Transitional
Part 4
108. Part 4 applies in respect of (a) carriage by water under contracts of carriage entered into after that Part comes into force; and (b) carriage by water, otherwise than under contracts of carriage, commencing after that Part comes into force.
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R.S., c. A-12
Arctic Waters Pollution Prevention Act
1993, c. 36, s. 22
109. Section 2.1 of the Arctic Waters Pollution Prevention Act is replaced by the following:
Inconsistency with Part 6 of Marine Liability Act
2.1 In the event of an inconsistency between the provisions of this Act, or any regulation made under this Act, and the provisions of Part 6 of the Marine Liability Act, the provisions of that Part prevail to the extent of the inconsistency.
1987, c. 3
Canada-Newfoundland Atlantic Accord Implementation Act
1992, c. 35, s. 73(1)
110. Subsection 160(1) of the CanadaNewfoundland Atlantic Accord Implementation Act is replaced by the following:
Definition of ‘‘spill’’
160. (1) In sections 161 to 165, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.
1988, c. 28
Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
1992, c. 35, s. 110(1)
111. Subsection 165(1) of the CanadaNova Scotia Offshore Petroleum Resources Accord Implementation Act is replaced by the following:
Definition of ‘‘spill’’
165. (1) In sections 166 to 170, ‘‘spill’’ means a discharge, emission or escape of petroleum, other than one that is authorized under the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.
2001 1999, c. 33
Responsabilité en m Canadian Environmental Protection Act, 1999 112. Subsection 42(3) of the Canadian Environmental Protection Act, 1999 is replaced by the following:
Damages caused by a ship
R.S., c. C-50; 1990, c. 8, s. 21 1998, c. 16, s. 32
(3) No claim for damage caused by a ship may be made under this Act to the extent that a claim for that damage may be made under the Marine Liability Act or the Arctic Waters Pollution Prevention Act.
Crown Liability and Proceedings Act 113. Section 6 of the Crown Liability and Proceedings Act is repealed. 114. Subsection 7(2) of the Act is repealed.
R.S., c. F-7
Federal Court Act
1990, c. 8, s. 1(3)
115. The definition ‘‘ship’’ in subsection 2(1) of the Federal Court Act is replaced by the following:
‘‘ship’’ « navire »
‘‘ship’’ means any vessel or craft designed, used or capable of being used solely or partly for navigation, without regard to method or lack of propulsion, and includes (a) a ship in the process of construction from the time that it is capable of floating, and (b) a ship that has been stranded, wrecked or sunk and any part of a ship that has broken up;
R.S., c. M-6
Merchant Seamen Compensation Act 116. Subsection 42(3) of the Merchant Seamen Compensation Act is replaced by the following:
Compensation paid in full
(3) Any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in Part 3 of the Marine Liability Act.
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R.S., O-7; 1992, c. 35, s. 2
Canada Oil and Gas Operations Act
1992, c. 35, s. 22(1)
117. Subsection 24(1) of the Canada Oil and Gas Operations Act is replaced by the following:
Definition of ‘‘spill’’
24. (1) In sections 25 to 28, ‘‘spill’’ means a discharge, emission or escape of oil or gas, other than one that is authorized pursuant to the regulations or any other federal law or that constitutes a discharge from a ship to which Part XV of the Canada Shipping Act or Part 6 of the Marine Liability Act applies.
R.S., c. S-9 1998, c. 6, s. 1
Canada Shipping Act 118. Sections 565 to 567 of the Canada Shipping Act are repealed. 119. Sections 571 and 572 of the Act are repealed. 120. Section 573 of the Act is replaced by the following:
Construction of terms
573. Sections 568 to 570 apply in respect of a vessel to any persons other than the owners responsible for the fault of the vessel as though the expression ‘‘owners’’ included those persons, and in any case where, by virtue of any charter or demise, or for any other reason, the owners are not responsible for the navigation and management of the vessel, those sections shall be read as though for references to the owners there were substituted references to the charterers or other persons for the time being so responsible.
1998, c. 6, s. 2
121. The heading before section 574 and sections 574 to 577 of the Act are repealed. 122. Section 578 of the Act, as enacted by section 2 of An Act to amend the Canada Shipping Act (maritime liability), chapter 6 of the Statutes of Canada, 1998, is deemed to have been repealed on March 17, 1999.
1998, c. 6, s. 2
123. Sections 579 to 583 of the Act are repealed.
Responsabilité en m 124. Section 586 of the Act is replaced by the following:
Responsibility for goods
1998, c. 16, s. 17
586. Subject to Part 5 of the Marine Liability Act, carriers by water are responsible not only for goods received on board their vessels but also for goods delivered to them for conveyance by their vessels, and are bound to use due care and diligence in the safe-keeping and punctual conveyance of those goods.
125. Part XIV of the Act is repealed.
R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, s. 15; 1996, c. 31, s. 104(1); 1998, c. 6, ss. 7, 8
126. The heading before section 677 and sections 677 and 677.1 of the Act are repealed.
R.S., c. 6 (3rd Supp.), s. 84; 1993, c. 36, ss. 18, 19; 1994, c. 24, par. 34(1)(e)(F); 1996, c. 21, s. 75(1), c. 31, s. 106; 1998, c. 6, ss. 10 to 22, 23(F)
127. Sections 679 to 723 of the Act are repealed.
R.S., c. 6 (3rd Supp.), s. 84; 1998, c. 6, s. 25
128. Sections 724 to 727 of the Act are repealed.
Conditional Amendment 1991, c. 24
129. (1) If section 14 of Schedule III to An Act to amend the Financial Administration Act and other Acts in consequence thereof (in this section referred to as the ‘‘other Act’’), chapter 24 of the Statutes of Canada, 1991, does not come into force before the day on which section 99 of this Act comes into force, then, on that day, that section 14 and the heading before it are replaced by the following:
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Marine Liability Act 14. Section 99 is replaced by the following: 99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, in accordance with any regulations made pursuant to subsection 155.1(6) of the Financial Administration Act.
1991, c. 24
(2) If section 14 of Schedule III to the other Act comes into force before the day on which section 99 of this Act comes into force, then, on that day, that section 99 is replaced by the following:
Interest on unpaid amounts
99. If any portion of a levy is not paid as provided in subsection 93(3), interest may be charged on the amount from time to time outstanding, in accordance with any regulations made pursuant to subsection 155.1(6) of the Financial Administration Act.
Repeal
Coming into force
Section 45
Repeal 130. The Carriage of Goods by Water Act, chapter 21 of the Statutes of Canada, 1993, is repealed. Coming into Force 131. (1) The provisions of this Act, other than sections 45 and 129, come into force 90 days after the day on which this Act receives royal assent or on any later day or days previously fixed by order of the Governor in Council. (2) The subsections of section 45 come into force on a day or days to be fixed by order of the Governor in Council.
Responsabilité en matière SCHEDULE 1 (Section 24) PART 1
Text of Articles 1 to 15 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976 CHAPTER I. THE RIGHT OF LIMITATION ARTICLE 1 Persons entitled to limit liability 1. Shipowners and salvors, as hereinafter defined, may limit their liability in accordance with the rules of this Convention for claims set out in Article 2. 2. The term ‘‘shipowner’’ shall mean the owner, charterer, manager and operator of a seagoing ship. 3. Salvor shall mean any person rendering services in direct connexion with salvage operations. Salvage operations shall also include operations referred to in Article 2, paragraph 1(d), (e) and (f). 4. If any claims set out in Article 2 are made against any person for whose act, neglect or default the shipowner or salvor is responsible, such person shall be entitled to avail himself of the limitation of liability provided for in this Convention. 5. In this Convention the liability of a shipowner shall include liability in an action brought against the vessel herself. 6. An insurer of liability for claims subject to limitation in accordance with the rules of this Convention shall be entitled to the benefits of this Convention to the same extent as the assured himself. 7. The act of invoking limitation of liability shall not constitute an admission of liability.
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Marine Liability ARTICLE 2 Claims subject to limitation
1. Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability: (a) claims in respect of loss of life or personal injury or loss of or damage to property (including damage to harbour works, basins and waterways and aids to navigation), occurring on board or in direct connexion with the operation of the ship or with salvage operations, and consequential loss resulting therefrom; (b) claims in respect of loss resulting from delay in the carriage by sea of cargo, passengers or their luggage; (c) claims in respect of other loss resulting from infringement of rights other than contractual rights, occurring in direct connexion with the operation of the ship or salvage operations; (d) claims in respect of the raising, removal, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship; (e) claims in respect of the removal, destruction or the rendering harmless of the cargo of the ship; (f) claims of a person other than the person liable in respect of measures taken in order to avert or minimize loss for which the person liable may limit his liability in accordance with this Convention, and further loss caused by such measures.
2. Claims set out in paragraph 1 shall be subject to limitation of liability even if brought by way of recourse or for indemnity under a contract or otherwise. However, claims set out under paragraph 1(d), (e) and (f) shall not be subject to limitation of liability to the extent that they relate to remuneration under a contract with the person liable. ARTICLE 3 Claims excepted from limitation The rules of this Convention shall not apply to: (a) claims for salvage, including, if applicable, any claim for special compensation under article 14 of the International Convention on Salvage 1989, as amended, or contribution in general average; (b) claims for oil pollution damage within the meaning of the International Convention on Civil Liability for Oil Pollution Damage, dated 29 November 1969 or of any amendment or Protocol thereto which is in force;
Responsabilité en matière
(c) claims subject to any international convention or national legislation governing or prohibiting limitation of liability for nuclear damage; (d) claims against the shipowner of a nuclear ship for nuclear damage; (e) claims by servants of the shipowner or salvor whose duties are connected with the ship or the salvage operations, including claims of their heirs, dependants or other persons entitled to make such claims, if under the law governing the contract of service between the shipowner or salvor and such servants the shipowner or salvor is not entitled to limit his liability in respect of such claims, or if he is by such law only permitted to limit his liability to an amount greater than that provided for in Article 6.
ARTICLE 4 Conduct barring limitation A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result. ARTICLE 5 Counterclaims Where a person entitled to limitation of liability under the rules of this Convention has a claim against the claimant arising out of the same occurrence, their respective claims shall be set off against each other and the provisions of this Convention shall only apply to the balance, if any. CHAPTER II. LIMITS OF LIABILITY ARTICLE 6 The general limits 1. The limits of liability for claims other than those mentioned in article 7, arising on any distinct occasion, shall be calculated as follows: (a) in respect of claims for loss of life or personal injury, (i) 2 million Units of Account for a ship with a tonnage not exceeding 2,000 tons,
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(ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 2,001 to 30,000 tons, 800 Units of Account; for each ton from 30,001 to 70,000 tons, 600 Units of Account; and for each ton in excess of 70,000 tons, 400 Units of Account, (b) in respect of any other claims, (i) 1 million Units of Account for a ship with a tonnage not exceeding 2,000 tons, (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 2,001 to 30,000 tons, 400 Units of Account; for each ton from 30,001 to 70,000 tons, 300 Units of Account; and for each ton in excess of 70,000 tons, 200 Units of Account.
2. Where the amount calculated in accordance with paragraph 1(a) is insufficient to pay the claims mentioned therein in full, the amount calculated in accordance with paragraph 1(b) shall be available for payment of the unpaid balance of claims under paragraph 1(a) and such unpaid balance shall rank rateably with claims mentioned under paragraph 1(b). 3. However, without prejudice to the right of claims for loss of life or personal injury according to paragraph 2, a State Party may provide in its national law that claims in respect of damage to harbour works, basins and waterways and aids to navigation shall have such priority over other claims under paragraph 1(b) as is provided by that law. 4. The limits of liability for any salvor not operating from any ship or for any salvor operating solely on the ship to or in respect of which he is rendering salvage services, shall be calculated according to a tonnage of 1,500 tons. 5. For the purpose of this Convention the ship’s tonnage shall be the gross tonnage calculated in accordance with the tonnage measurement rules contained in Annex I of the International Convention on Tonnage Measurement of Ships, 1969.
Responsabilité en matière ARTICLE 7 The limit for passenger claims
1. In respect of claims arising on any distinct occasion for loss of life or personal injury to passengers of a ship, the limit of liability of the shipowner thereof shall be an amount of 175,000 Units of Account multiplied by the number of passengers which the ship is authorized to carry according to the ship’s certificate. 2. For the purpose of this Article ‘‘claims for loss of life or personal injury to passengers of a ship’’ shall mean any such claims brought by or on behalf of any person carried in that ship: (a) under a contract of passenger carriage, or (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods. ARTICLE 8 Unit of Account 1. The Unit of Account referred to in Articles 6 and 7 is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in Articles 6 and 7 shall be converted into the national currency of the State in which limitation is sought, according to the value of that currency at the date the limitation fund shall have been constituted, payment is made, or security is given which under the law of that State is equivalent to such payment. The value of a national currency in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party. 2. Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 may, at the time of signature without reservation as to ratification, acceptance or approval or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as follows: (a) in respect of article 6, paragraph 1(a) at an amount of: (i) 30 million monetary units for a ship with a tonnage not exceeding 2,000 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 2,001 to 30,000 tons, 12,000 monetary units;
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for each ton from 30,001 to 70,000 tons, 9,000 monetary units; and for each ton in excess of 70,000 tons, 6,000 monetary units; and (b) in respect of article 6, paragraph 1(b), at an amount of: (i) 15 million monetary units for a ship with a tonnage not exceeding 2,000 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that mentioned in (i): for each ton from 2,001 to 30,000 tons, 6,000 monetary units; for each ton from 30,001 to 70,000 tons, 4,500 monetary units; and for each ton in excess of 70,000 tons, 3,000 monetary units; and (c) in respect of article 7, paragraph 1, at an amount of 2,625,000 monetary units multiplied by the number of passengers which the ship is authorized to carry according to its certificate. Paragraphs 2 and 3 of Article 6 apply correspondingly to subparagraphs (a) and (b) of this paragraph.
3. The monetary unit referred to in paragraph 2 corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency shall be made according to the law of the State concerned. 4. The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 shall be made in such a manner as to express in the national currency of the State Party as far as possible the same real value for the amounts in Articles 6 and 7 as is expressed there in units of account. States Parties shall communicate to the depositary the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 3, as the case may be, at the time of the signature without reservation as to ratification, acceptance or approval, or when depositing an instrument referred to in Article 16 and whenever there is a change in either.
Responsabilité en matière ARTICLE 9 Aggregation of claims
1. The limits of liability determined in accordance with Article 6 shall apply to the aggregate of all claims which arise on any distinct occasion: (a) against the person or persons mentioned in paragraph 2 of Article 1 and any person for whose act, neglect or default he or they are responsible; or (b) against the shipowner of a ship rendering salvage services from that ship and the salvor or salvors operating from such ship and any person for whose act, neglect or default he or they are responsible; or (c) against the salvor or salvors who are not operating from a ship or who are operating solely on the ship to or in respect of which the salvage services are rendered and any person for whose act, neglect or default he or they are responsible.
2. The limits of liability determined in accordance with Article 7 shall apply to the aggregate of all claims subject thereto which may arise on any distinct occasion against the person or persons mentioned in paragraph 2 of Article 1 in respect of the ship referred to in Article 7 and any person for whose act, neglect or default he or they are responsible. ARTICLE 10 Limitation of liability without constitution of a limitation fund 1. Limitation of liability may be invoked notwithstanding that a limitation fund as mentioned in Article 11 has not been constituted. However, a State Party may provide in its national law that, where an action is brought in its Courts to enforce a claim subject to limitation, a person liable may only invoke the right to limit liability if a limitation fund has been constituted in accordance with the provisions of this Convention or is constituted when the right to limit liability is invoked. 2. If limitation of liability is invoked without the constitution of a limitation fund, the provisions of Article 12 shall apply correspondingly. 3. Questions of procedure arising under the rules of this Article shall be decided in accordance with the national law of the State Party in which action is brought.
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CHAPTER III. THE LIMITATION FUND ARTICLE 11 Constitution of the fund 1. Any person alleged to be liable may constitute a fund with the Court or other competent authority in any State Party in which legal proceedings are instituted in respect of claims subject to limitation. The fund shall be constituted in the sum of such of the amounts set out in Articles 6 and 7 as are applicable to claims for which that person may be liable, together with interest thereon from the date of the occurrence giving rise to the liability until the date of the constitution of the fund. Any fund thus constituted shall be available only for the payment of claims in respect of which limitation of liability can be invoked.
2. A fund may be constituted, either by depositing the sum, or by producing a guarantee acceptable under the legislation of the State Party where the fund is constituted and considered to be adequate by the Court or other competent authority. 3. A fund constituted by one of the persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2 of Article 9 or his insurer shall be deemed constituted by all persons mentioned in paragraph 1(a), (b) or (c) or paragraph 2, respectively. ARTICLE 12 Distribution of the fund 1. Subject to the provisions of paragraphs 1, 2 and 3 of Article 6 and of Article 7, the fund shall be distributed among the claimants in proportion to their established claims against the fund. 2. If, before the fund is distributed, the person liable, or his insurer, has settled a claim against the fund such person shall, up to the amount he has paid, acquire by subrogation the rights which the person so compensated would have enjoyed under this Convention. 3. The right of subrogation provided for in paragraph 2 may also be exercised by persons other than those therein mentioned in respect of any amount of compensation which they may have paid, but only to the extent that such subrogation is permitted under the applicable national law. 4. Where the person liable or any other person establishes that he may be compelled to pay, at a later date, in whole or in part any such amount of compensation with regard to which such person would have enjoyed a right of subrogation pursuant to paragraphs 2 and 3 had the compensation been paid before the fund was distributed, the Court or other competent authority of the State where the fund has been constituted may order that a sufficient sum shall be provisionally set aside to enable such person at such later date to enforce his claim against the fund.
Responsabilité en matière ARTICLE 13 Bar to other actions
1. Where a limitation fund has been constituted in accordance with Article 11, any person having made a claim against the fund shall be barred from exercising any right in respect of such claim against any other assets of a person by or on behalf of whom the fund has been constituted. 2. After a limitation fund has been constituted in accordance with Article 11, any ship or other property, belonging to a person on behalf of whom the fund has been constituted, which has been arrested or attached within the jurisdiction of a State Party for a claim which may be raised against the fund, or any security given, may be released by order of the Court or other competent authority of such State. However, such release shall always be ordered if the limitation fund has been constituted: (a) at the port where the occurrence took place, or, if it took place out of port, at the first port of call thereafter; or (b) at the port of disembarkation in respect of claims for loss of life or personal injury; or (c) at the port of discharge in respect of damage to cargo; or (d) in the State where the arrest is made. 3. The rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim against the limitation fund before the Court administering that fund and the fund is actually available and freely transferable in respect of that claim. ARTICLE 14 Governing law Subject to the provisions of this Chapter the rules relating to the constitution and distribution of a limitation fund, and all rules of procedure in connexion therewith, shall be governed by the law of the State Party in which the fund is constituted. CHAPTER IV. SCOPE OF APPLICATION ARTICLE 15 1. This Convention shall apply whenever any person referred to in Article 1 seeks to limit his liability before the Court of a State Party or seeks to procure the release of a ship or other property or the discharge of any security given within the jurisdiction of any such State. Nevertheless, each State Party may exclude wholly or partially from the application of this Convention any person referred to in Article 1 who at the time when the rules of this Convention are invoked before the Courts of that State does not have his habitual residence in a State Party or does not have his principal place of business in a State Party or any ship in relation to which the right of limitation is invoked or whose release is sought and which does not at the time specified above fly the flag of a State Party.
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2. A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to vessels which are: (a) according to the law of that State, ships intended for navigation on inland waterways; (b) ships of less than 300 tons. A State Party which makes use of the option provided for in this paragraph shall inform the depositary of the limits of liability adopted in its national legislation or of the fact that there are none. 3. A State Party may regulate by specific provisions of national law the system of limitation of liability to be applied to claims arising in cases in which interests of persons who are nationals of other States Parties are in no way involved. 3bis. Notwithstanding the limit of liability prescribed in paragraph 1 of Article 7, a State Party may regulate by specific provisions of national law the system of liability to be applied to claims for loss of life or personal injury to passengers of a ship, provided that the limit of liability is not lower than that prescribed in paragraph 1 of Article 7. A State Party which makes use of the option provided for in this paragraph shall inform the SecretaryGeneral of the limits of liability adopted or of the fact that there are none. 4. The Courts of a State Party shall not apply this Convention to ships constructed for, or adapted to, and engaged in, drilling: (a) when that State has established under its national legislation a higher limit of liability than that otherwise provided for in Article 6; or (b) when that State has become party to an international convention regulating the system of liability in respect of such ships. In a case to which sub-paragraph (a) applies that State Party shall inform the depositary accordingly. 5. This Convention shall not apply to: (a) air-cushion vehicles; (b) floating platforms constructed for the purpose of exploring or exploiting the natural resources of the sea-bed or the subsoil thereof. PART 2 Text of Article 18 of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended by the Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976, and of Articles 8 and 9 of that Protocol
Responsabilité en matière ARTICLE 18 Reservations
1. Any State may, at the time of signature, ratification, acceptance, approval or accession, or at any time thereafter, reserve the right: (a) to exclude the application of article 2, paragraphs 1(d) and (e); (b) to exclude claims for damage within the meaning of the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 or of any amendment or Protocol thereto. No other reservations shall be admissible to the substantive provisions of this Convention. 2. Reservations made at the time of signature are subject to confirmation upon ratification, acceptance or approval. 3. Any State which has made a reservation to this Convention may withdraw it at any time by means of a notification addressed to the Secretary-General. Such withdrawal shall take effect on the date the notification is received. If the notification states that the withdrawal of a reservation is to take effect on a date specified therein, and such date is later than the date the notification is received by the Secretary-General, the withdrawal shall take effect on such later date. ARTICLE 8 Amendment of limits 1. Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits specified in article 6, paragraph 1, article 7, paragraph 1 and article 8, paragraph 2 of the Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States. 2. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (the Legal Committee) for consideration at a date at least six months after the date of its circulation. 3. All Contracting States to the Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments. 4. Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting.
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5. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance. 6. (a) No amendment of the limits under this article may be considered less than five years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article. (b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature. (c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol multiplied by three. 7. Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one-fourth of the States that were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect. 8. An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance. 9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article 12 at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force. 10. When an amendment has been adopted but the eighteenmonth period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later. ARTICLE 9 1. The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument.
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2. A State which is Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention. 3. The Convention as amended by this Protocol shall apply only to claims arising out of occurrences which take place after the entry into force for each State of this Protocol. 4. Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol.
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Marine Liability SCHEDULE 2 (Section 35) PART 1
Text of Articles 1 to 22 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, as amended by the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 ARTICLE 1 Definitions In this Convention the following expressions have the meaning hereby assigned to them: 1. (a) ‘‘carrier’’ means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by him or by a performing carrier; (b) ‘‘performing carrier’’ means a person other than the carrier, being the owner, charterer or operator of a ship, who actually performs the whole or a part of the carriage;
2. ‘‘contract of carriage’’ means a contract made by or on behalf of a carrier for the carriage by sea of a passenger or of a passenger and his luggage, as the case may be; 3. ‘‘ship’’ means only a seagoing vessel, excluding an air-cushion vehicle; 4. ‘‘passenger’’ means any person carried in a ship, (a) under a contract of carriage, or (b) who, with the consent of the carrier, is accompanying a vehicle or live animals which are covered by a contract for the carriage of goods not governed by this Convention;
5. ‘‘luggage’’ means any article or vehicle carried by the carrier under a contract of carriage, excluding: (a) articles and vehicles carried under a charter party, bill of lading or other contract primarily concerned with the carriage of goods, and (b) live animals; 6. ‘‘cabin luggage’’ means luggage which the passenger has in his cabin or is otherwise in his possession, custody or control. Except for the application of paragraph 8 of this Article and Article 8, cabin luggage includes luggage which the passenger has in or on his vehicle;
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7. ‘‘loss of or damage to luggage’’ includes pecuniary loss resulting from the luggage not having been re-delivered to the passenger within a reasonable time after the arrival of the ship on which the luggage has been or should have been carried, but does not include delays resulting from labour disputes; 8. ‘‘carriage’’ covers the following periods: (a) with regard to the passenger and his cabin luggage, the period during which the passenger and/or his cabin luggage are on board the ship or in the course of embarkation or disembarkation, and the period during which the passenger and his cabin luggage are transported by water from land to the ship or vice-versa, if the cost of such transport is included in the fare or if the vessel used for this purpose of auxiliary transport has been put at the disposal of the passenger by the carrier. However, with regard to the passenger, carriage does not include the period during which he is in a marine terminal or station or on a quay or in or on any other port installation;
(b) with regard to cabin luggage, also the period during which the passenger is in a marine terminal or station or on a quay or in or on any other port installation if that luggage has been taken over by the carrier or his servant or agent and has not been re-delivered to the passenger; (c) with regard to other luggage which is not cabin luggage, the period from the time of its taking over by the carrier or his servant or agent on shore or on board until the time of its re-delivery by the carrier or his servant or agent;
9. ‘‘international carriage’’ means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State; 10. ‘‘Organization’’ means the International Maritime Organization. ARTICLE 2 Application 1. This Convention shall apply to any international carriage if: (a) the ship is flying the flag of or is registered in a State Party to this Convention, or (b) the contract of carriage has been made in a State Party to this Convention, or (c) the place of departure or destination, according to the contract of carriage, is in a State Party to this Convention.
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2. Notwithstanding paragraph 1 of this Article, this Convention shall not apply when the carriage is subject, under any other international convention concerning the carriage of passengers or luggage by another mode of transport, to a civil liability regime under the provisions of such convention, in so far as those provisions have mandatory application to carriage by sea. ARTICLE 3 Liability of the carrier 1. The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. 2. The burden of proving that the incident which caused the loss or damage occurred in the course of the carriage, and the extent of the loss or damage, shall lie with the claimant. 3. Fault or neglect of the carrier or of his servants or agents acting within the scope of their employment shall be presumed, unless the contrary is proved, if the death of or personal injury to the passenger or the loss of or damage to cabin luggage arose from or in connexion with the shipwreck, collision, stranding, explosion or fire, or defect in the ship. In respect of loss of or damage to other luggage, such fault or neglect shall be presumed, unless the contrary is proved, irrespective of the nature of the incident which caused the loss or damage. In all other cases the burden of proving fault or neglect shall lie with the claimant.
ARTICLE 4 Performing carrier 1. If the performance of the carriage or part thereof has been entrusted to a performing carrier, the carrier shall nevertheless remain liable for the entire carriage according to the provisions of this Convention. In addition, the performing carrier shall be subject and entitled to the provisions of this Convention for the part of the carriage performed by him. 2. The carrier shall, in relation to the carriage performed by the performing carrier, be liable for the acts and omissions of the performing carrier and of his servants or agents acting within the scope of their employment. 3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or any waiver of rights conferred by this Convention shall affect the performing carrier only if agreed by him expressly and in writing.
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4. Where and to the extent that both the carrier and the performing carrier are liable, their liability shall be joint and several. 5. Nothing in this Article shall prejudice any right of recourse as between the carrier and the performing carrier. ARTICLE 5 Valuables The carrier shall not be liable for the loss of or damage to monies, negotiable securities, gold, silverware, jewellery, ornaments, works of art, or other valuables, except where such valuables have been deposited with the carrier for the agreed purpose of safe-keeping in which case the carrier shall be liable up to the limit provided for in paragraph 3 of Article 8 unless a higher limit is agreed upon in accordance with paragraph 1 of Article 10. ARTICLE 6 Contributory fault If the carrier proves that the death of or personal injury to a passenger or the loss of or damage to his luggage was caused or contributed to by the fault or neglect of the passenger, the court seized of the case may exonerate the carrier wholly or partly from his liability in accordance with the provisions of the law of that court. ARTICLE 7 Limit of liability for personal injury 1. The liability of the carrier for the death of or personal injury to a passenger shall in no case exceed 175,000 units of account per carriage. Where, in accordance with the law of the court seized of the case, damages are awarded in the form of periodical income payments, the equivalent capital value of those payments shall not exceed the said limit. 2. Notwithstanding paragraph 1 of this Article, the national law of any State Party to this Convention may fix, as far as carriers who are nationals of such State are concerned, a higher per capita limit of liability. ARTICLE 8 Limit of liability for loss of or damage to luggage 1. The liability of the carrier for the loss of or damage to cabin luggage shall in no case exceed 1,800 units of account per passenger, per carriage. 2. The liability of the carrier for the loss of or damage to vehicles including all luggage carried in or on the vehicle shall in no case exceed 10,000 units of account per vehicle, per carriage.
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3. The liability of the carrier for the loss of or damage to luggage other than that mentioned in paragraphs 1 and 2 of this article shall in no case exceed 2,700 units of account per passenger, per carriage. 4. The carrier and the passenger may agree that the liability of the carrier shall be subject to a deductible not exceeding 300 units of account in the case of damage to a vehicle and not exceeding 135 units of account per passenger in the case of loss of or damage to other luggage, such sum to be deducted from the loss or damage. ARTICLE 9 Unit of account and conversion 1. The unit of account mentioned in this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 7, paragraph 1, and article 8 shall be converted into the national currency of the State of the court seized of the case on the basis of the value of that currency by reference to the Special Drawing Right on the date of the judgment or the date agreed upon by the parties. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect on the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State Party which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State Party. 2. Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article may, at the time of ratification, acceptance, approval of or accession to this Convention or at any time thereafter, declare that the unit of account referred to in paragraph 1 shall be equal to 15 gold francs. The gold franc referred to in this paragraph corresponds to sixty-five-and-a-half milligrammes of gold of millesimal fineness nine hundred. The conversion of the gold franc into the national currency shall be made according to the law of the State concerned. 3. The calculation mentioned in the last sentence of paragraph 1, and the conversion mentioned in paragraph 2 shall be made in such a manner as to express in the national currency of the States Parties, as far as possible, the same real value for the amounts in article 7, paragraph 1, and article 8 as would result from the application of the first three sentences of paragraph 1. States shall communicate to the Secretary-General the manner of calculation pursuant to paragraph 1, or the result of the conversion in paragraph 2, as the case may be, when depositing an instrument of ratification, acceptance, approval of or accession to this Convention and whenever there is a change in either.
Responsabilité en matière ARTICLE 10 Supplementary provisions on limits of liability
1. The carrier and the passenger may agree, expressly and in writing, to higher limits of liability than those prescribed in Articles 7 and 8. 2. Interest on damages and legal costs shall not be included in the limits of liability prescribed in Articles 7 and 8. ARTICLE 11 Defences and limits for carriers’ servants If an action is brought against a servant or agent of the carrier or of the performing carrier arising out of a damage covered by this Convention, such servant or agent, if he proves that he acted within the scope of his employment, shall be entitled to avail himself of the defences and limits of liability which the carrier or the performing carrier is entitled to invoke under this Convention. ARTICLE 12 Aggregation of claims 1. Where the limits of liability prescribed in Articles 7 and 8 take effect, they shall apply to the aggregate of the amounts recoverable in all claims arising out of the death of or personal injury to any one passenger or the loss of or damage to his luggage. 2. In relation to the carriage performed by a performing carrier, the aggregate of the amounts recoverable from the carrier and the performing carrier and from their servants and agents acting within the scope of their employment shall not exceed the highest amount which could be awarded against either the carrier or the performing carrier under this Convention, but none of the persons mentioned shall be liable for a sum in excess of the limit applicable to him. 3. In any case where a servant or agent of the carrier or of the performing carrier is entitled under Article 11 of this Convention to avail himself of the limits of liability prescribed in Articles 7 and 8, the aggregate of the amounts recoverable from the carrier, or the performing carrier as the case may be, and from that servant or agent, shall not exceed those limits.
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Marine Liability ARTICLE 13
Loss of right to limit liability 1. The carrier shall not be entitled to the benefit of the limits of liability prescribed in Articles 7 and 8 and paragraph 1 of Article 10, if it is proved that the damage resulted from an act or omission of the carrier done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. 2. The servant or agent of the carrier or of the performing carrier shall not be entitled to the benefit of those limits if it is proved that the damage resulted from an act or omission of that servant or agent done with the intent to cause such damage, or recklessly and with knowledge that such damage would probably result. ARTICLE 14 Basis for claims No action for damages for the death of or personal injury to a passenger, or for the loss of or damage to luggage, shall be brought against a carrier or performing carrier otherwise than in accordance with this Convention. ARTICLE 15 Notice of loss or damage to luggage 1. The passenger shall give written notice to the carrier or his agent: (a) in the case of apparent damage to luggage: (i) for cabin luggage, before or at the time of disembarkation of the passenger; (ii) for all other luggage, before or at the time of its re-delivery; (b) in the case of damage to luggage which is not apparent, or loss of luggage, within fifteen days from the date of disembarkation or re-delivery or from the time when such re-delivery should have taken place. 2. If the passenger fails to comply with this Article, he shall be presumed, unless the contrary is proved, to have received the luggage undamaged. 3. The notice in writing need not be given if the condition of the luggage has at the time of its receipt been the subject of joint survey or inspection.
Responsabilité en matière ARTICLE 16 Time-bar for actions
1. Any action for damages arising out of the death of or personal injury to a passenger or of the loss of or damage to luggage shall be time-barred after a period of two years. 2. The limitation period shall be calculated as follows: (a) in the case of personal injury, from the date of disembarkation of the passenger; (b) in the case of death occurring during carriage, from the date when the passenger should have disembarked, and in the case of personal injury occurring during carriage and resulting in the death of the passenger after disembarkation, from the date of death, provided that this period shall not exceed three years from the date of disembarkation; (c) in the case of loss of or damage to luggage, from the date of disembarkation or from the date when disembarkation should have taken place, whichever is later.
3. The law of the court seized of the case shall govern the grounds of suspension and interruption of limitation periods, but in no case shall an action under this Convention be brought after the expiration of a period of three years from the date of disembarkation of the passenger or from the date when disembarkation should have taken place, whichever is later. 4. Notwithstanding paragraphs 1, 2 and 3 of this Article, the period of limitation may be extended by a declaration of the carrier or by agreement of the parties after the cause of action has arisen. The declaration or agreement shall be in writing. ARTICLE 17 Competent jurisdiction 1. An action arising under this Convention shall, at the option of the claimant, be brought before one of the courts listed below, provided that the court is located in a State Party to this Convention: (a) the court of the place of permanent residence or principal place of business of the defendant, or (b) the court of the place of departure or that of the destination according to the contract of carriage, or (c) a court of the State of the domicile or permanent residence of the claimant, if the defendant has a place of business and is subject to jurisdiction in that State, or (d) a court of the State where the contract of carriage was made, if the defendant has a place of business and is subject to jurisdiction in that State.
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2. After the occurrence of the incident which has caused the damage, the parties may agree that the claim for damages shall be submitted to any jurisdiction or to arbitration. ARTICLE 18 Invalidity of contractual provisions Any contractual provision concluded before the occurrence of the incident which has caused the death of or personal injury to a passenger or the loss of or damage to his luggage, purporting to relieve the carrier of his liability towards the passenger or to prescribe a lower limit of liability than that fixed in this Convention except as provided in paragraph 4 of Article 8, and any such provision purporting to shift the burden of proof which rests on the carrier, or having the effect of restricting the option specified in paragraph 1 of Article 17, shall be null and void, but the nullity of that provision shall not render void the contract of carriage which shall remain subject to the provisions of this Convention. ARTICLE 19 Other conventions on limitation of liability This Convention shall not modify the rights or duties of the carrier, the performing carrier, and their servants or agents provided for in international conventions relating to the limitation of liability of owners of seagoing ships. ARTICLE 20 Nuclear damage No liability shall arise under this Convention for damage caused by a nuclear incident: (a) if the operator of a nuclear installation is liable for such damage under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by its additional Protocol of 28 January 1964, or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or (b) if the operator of a nuclear installation is liable for such damage by virtue of a national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or the Vienna Conventions.
ARTICLE 21 Commercial carriage by public authorities This Convention shall apply to commercial carriage undertaken by States or Public Authorities under contracts of carriage within the meaning of Article 1.
Responsabilité en matière ARTICLE 22 Declaration of non-application
1. Any Party may at the time of signing, ratifying, accepting, approving or acceding to this Convention, declare in writing that it will not give effect to this Convention when the passenger and the carrier are subjects or nationals of that Party. 2. Any declaration made under paragraph 1 of this Article may be withdrawn at any time by a notification in writing to the Secretary-General of the Organization. PART 2 Text of Articles III and VIII of the Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 ARTICLE III 1. The Convention and this Protocol shall, as between the Parties to this Protocol, be read and interpreted together as one single instrument. 2. A State which is a Party to this Protocol but not a Party to the Convention shall be bound by the provisions of the Convention as amended by this Protocol in relation to other States Parties hereto, but shall not be bound by the provisions of the Convention in relation to States Parties only to the Convention. 3. Nothing in this Protocol shall affect the obligations of a State which is a Party both to the Convention and to this Protocol with respect to a State which is a Party to the Convention but not a Party to this Protocol. ARTICLE VIII Amendment of limits 1. Upon the request of at least one half, but in no case less than six, of the States Parties to this Protocol, any proposal to amend the limits, including the deductibles, specified in article 7, paragraph 1, and article 8 of the Convention as amended by this Protocol shall be circulated by the Secretary-General to all Members of the Organization and to all Contracting States. 2. Any amendment proposed and circulated as above shall be submitted to the Legal Committee of the Organization (hereinafter referred to as ‘‘the Legal Committee’’) for consideration at a date at least six months after the date of its circulation. 3. All Contracting States to the Convention as amended by this Protocol, whether or not Members of the Organization, shall be entitled to participate in the proceedings of the Legal Committee for the consideration and adoption of amendments.
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4. Amendments shall be adopted by a two-thirds majority of the Contracting States to the Convention as amended by this Protocol present and voting in the Legal Committee expanded as provided for in paragraph 3, on condition that at least one half of the Contracting States to the Convention as amended by this Protocol shall be present at the time of voting. 5. When acting on a proposal to amend the limits, the Legal Committee shall take into account the experience of incidents and, in particular, the amount of damage resulting therefrom, changes in the monetary values and the effect of the proposed amendment on the cost of insurance. 6. (a) No amendment of the limits under this article may be considered less than five years from the date on which this Protocol was opened for signature nor less than five years from the date of entry into force of a previous amendment under this article. (b) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol increased by six per cent per year calculated on a compound basis from the date on which this Protocol was opened for signature. (c) No limit may be increased so as to exceed an amount which corresponds to the limit laid down in the Convention as amended by this Protocol multiplied by three. 7. Any amendment adopted in accordance with paragraph 4 shall be notified by the Organization to all Contracting States. The amendment shall be deemed to have been accepted at the end of a period of eighteen months after the date of notification, unless within that period not less than one fourth of the States that were Contracting States at the time of the adoption of the amendment have communicated to the Secretary-General that they do not accept the amendment, in which case the amendment is rejected and shall have no effect. 8. An amendment deemed to have been accepted in accordance with paragraph 7 shall enter into force eighteen months after its acceptance. 9. All Contracting States shall be bound by the amendment, unless they denounce this Protocol in accordance with paragraphs 1 and 2 of article VI at least six months before the amendment enters into force. Such denunciation shall take effect when the amendment enters into force. 10. When an amendment has been adopted but the eighteenmonth period for its acceptance has not yet expired, a State which becomes a Contracting State during that period shall be bound by the amendment if it enters into force. A State which becomes a Contracting State after that period shall be bound by an amendment which has been accepted in accordance with paragraph 7. In the cases referred to in this paragraph, a State becomes bound by an amendment when that amendment enters into force, or when this Protocol enters into force for that State, if later.
Responsabilité en matière SCHEDULE 3 (Section 41) HAGUE-VISBY RULES ARTICLE I Definitions
In these Rules the following expressions have the meanings hereby assigned to them respectively, that is to say, (a) ‘‘carrier’’ includes the owner or the charterer who enters into a contract of carriage with a shipper; (b) ‘‘contract of carriage’’ applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far as such document relates to the carriage of goods by water, including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter-party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same; (c) ‘‘goods’’ includes goods, wares, merchandise and articles of every kind whatsoever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried; (d) ‘‘ship’’ means any vessel used for the carriage of goods by water; (e) ‘‘carriage of goods’’ covers the period from the time when the goods are loaded on to the time they are discharged from the ship. ARTICLE II Risks Subject to the provisions of Article VI, under every contract of carriage of goods by water the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods, shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereinafter set forth. ARTICLE III Responsibilities and Liabilities 1. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to (a) make the ship seaworthy; (b) properly man, equip and supply the ship; (c) make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation.
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2. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for and discharge the goods carried. 3. After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things (a) the leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage; (b) either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper; (c) the apparent order and condition of the goods: Provided that no carrier, master or agent of the carrier shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.
4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein described in accordance with paragraphs 3(a), (b) and (c). However, proof to the contrary shall not be admissible when the bill of lading has been transferred to a third party acting in good faith. 5. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity and weight, as furnished by him, and the shipper shall indemnify the carrier against all loss, damages and expenses arising or resulting from inaccuracies in such particulars. The right of the carrier to such indemnity shall in no way limit his responsibility and liability under the contract of carriage to any person other than the shipper. 6. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.
Responsabilité en matière
Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period may, however, be extended if the parties so agree after the cause of action has arisen. In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.
6.bis An action for indemnity against a third person may be brought even after the expiration of the year provided for in the preceding paragraph if brought within the time allowed by the law of the Court seized of the case. However, the time allowed shall be not less than three months, commencing from the day when the person bringing such action for indemnity has settled the claim or has been served with process in the action against himself. 7. After the goods are loaded the bill of lading to be issued by the carrier, master or agent of the carrier, to the shipper shall, if the shipper so demands, be a ‘‘shipped’’ bill of lading, provided that if the shipper shall have previously taken up any document of title to such goods, he shall surrender the same as against the issue of the ‘‘shipped’’ bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this Article be deemed to constitute a ‘‘shipped’’ bill of lading.
8. Any clause, covenant or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with goods arising from negligence, fault or failure in the duties and obligations provided in this Article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. A benefit of insurance or similar clause shall be deemed to be a clause relieving the carrier from liability.
ARTICLE IV Rights and Immunities 1. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned,
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equipped and supplied, and to make the holds, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage and preservation in accordance with the provisions of paragraph 1 of Article III. Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other person claiming exemption under this article.
2. Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from (a) act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship; (b) fire, unless caused by the actual fault or privity of the carrier; (c) perils, dangers and accidents of the sea or other navigable waters; (d) act of God; (e) act of war; (f) act of public enemies; (g) arrest or restraint of princes, rulers or people, or seizure under legal process; (h) quarantine restrictions; (i) act or omission of the shipper or owner of the goods, his agent or representative; (j) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; (k) riots and civil commotions; (l) saving or attempting to save life or property at sea; (m) wastage in bulk or weight or any other loss or damage arising from inherent defect, quality or vice of the goods; (n) insufficiency of packing; (o) insufficiency or inadequacy of marks; (p) latent defects not discoverable by due diligence; (q) any other cause arising without the actual fault and privity of the carrier, or without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.
Responsabilité en matière
3. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship arising or resulting from any cause without the act, fault or neglect of the shipper, his agents or his servants. 4. Any deviation in saving or attempting to save life or property at sea or any reasonable deviation shall not be deemed to be an infringement or breach of these Rules or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom. 5. (a) Unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading, neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the goods in an amount exceeding 666.67 units of account per package or unit or 2 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher. (b) The total amount recoverable shall be calculated by reference to the value of such goods at the place and time at which the goods are discharged from the ship in accordance with the contract or should have been so discharged. The value of the goods shall be fixed according to the commodity exchange price, or, if there be no such price, according to the current market price, or, if there be no commodity exchange price or current market price, by reference to the normal value of goods of the same kind and quality. (c) Where a container, pallet or similar article of transport is used to consolidate goods, the number of packages or units enumerated in the bill of lading as packed in such article of transport shall be deemed the number of packages or units for the purpose of this paragraph as far as these packages or units are concerned. Except as aforesaid such article of transport shall be considered the package or unit. (d) The unit of account mentioned in this Article is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in sub-paragraph (a) of this paragraph shall be converted into national currency on the basis of the value of that currency on the date to be determined by the law of the Court seized of the case. The value of the national currency, in terms of the Special Drawing Right, of a State which is a member of the International Monetary Fund, shall be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of the national currency, in terms of the Special Drawing Right, of a State which is not a member of the International Monetary Fund, shall be calculated in a manner determined by that State. Nevertheless, a State which is not a member of the International Monetary Fund and whose law does not permit the application of the provisions of the preceding sentences may, at the time of ratification of the Protocol of 1979 or accession thereto or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in its territory shall be fixed as follows:
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(i) in respect of the amount of 666.67 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 10,000 monetary units; (ii) in respect of the amount of 2 units of account mentioned in sub-paragraph (a) of paragraph 5 of this Article, 30 monetary units. The monetary unit referred to in the preceding sentence corresponds to 65.5 milligrammes of gold of millesimal fineness 900. The conversion of the amounts specified in that sentence into the national currency shall be made according to the law of the State concerned. The calculation and the conversion mentioned in the preceding sentences shall be made in such a manner as to express in the national currency of that State as far as possible the same real value for the amounts in sub-paragraph (a) of paragraph 5 of this Article as is expressed there in units of account. States shall communicate to the depositary the manner of calculation or the result of the conversion as the case may be, when depositing an instrument of ratification of the Protocol of 1979 or of accession thereto and whenever there is a change in either. (e) Neither the carrier nor the ship shall be entitled to the benefit of the limitation of liability provided for in this paragraph if it is proved that the damage resulted from an act or omission of the carrier done with intent to cause damage, or recklessly and with knowledge that damage would probably result. (f) The declaration mentioned in sub-paragraph (a) of this paragraph, if embodied in the bill of lading, shall be prima facie evidence, but shall not be binding or conclusive on the carrier. (g) By agreement between the carrier, master or agent of the carrier and the shipper other maximum amounts than those mentioned in sub-paragraph (a) of this paragraph may be fixed, provided that no maximum amount so fixed shall be less than the appropriate maximum mentioned in that subparagraph. (h) Neither the carrier nor the ship shall be responsible in any event for loss or damage to, or in connection with, goods if the nature or value thereof has been knowingly mis-stated by the shipper in the bill of lading.
6. Goods of an inflammable, explosive or dangerous nature to the shipment whereof the carrier, master or agent of the carrier has not consented, with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment.
Responsabilité en matière
If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place or destroyed or rendered innocuous by the carrier without liability on the part of the carrier except to general average, if any.
ARTICLE IV BIS Application of Defences and Limits of Liability 1. The defences and limits of liability provided for in these Rules shall apply in any action against the carrier in respect of loss or damage to goods covered by a contract of carriage whether the action be founded in contract or in tort.
2. If such an action is brought against a servant or agent of the carrier (such servant or agent not being an independent contractor), such servant or agent shall be entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under these Rules. 3. The aggregate of the amounts recoverable from the carrier, and such servants and agents, shall in no case exceed the limit provided for in these Rules. 4. Nevertheless, a servant or agent of the carrier shall not be entitled to avail himself of the provisions of this Article, if it is proved that the damage resulted from an act or omission of the servant or agent done with intent to cause damage or recklessly and with knowledge that damage would probably result. ARTICLE V Surrender of Rights and Immunities, and Increase of Responsibilities and Liabilities A carrier shall be at liberty to surrender in whole or in part all or any of his rights and immunities or to increase any of his responsibilities and liabilities under the Rules contained in any of these Articles, provided such surrender or increase shall be embodied in the bill of lading issued to the shipper. The provisions of these Rules shall not be applicable to charterparties, but if bills of lading are issued in the case of a ship under a charter-party they shall comply with the terms of these Rules. Nothing in these Rules shall be held to prevent the insertion in a bill of lading of any lawful provision regarding general average.
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Notwithstanding the provisions of the preceding Articles, a carrier, master or agent of the carrier and a shipper shall in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness, so far as this stipulation is not contrary to public policy, or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care and discharge of the goods carried by water, provided that in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non-negotiable document and shall be marked as such. Any agreement so entered into shall have full legal effect. Provided that this Article shall not apply to ordinary commercial shipments made in the ordinary course of trade, but only to other shipments where the character or condition of the property to be carried or the circumstances, terms and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.
ARTICLE VII Limitations on the Application of the Rules Nothing herein contained shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to, or in connection with the custody and care and handling of goods prior to the loading on and subsequent to the discharge from the ship on which the goods are carried by water. ARTICLE VIII Limitation of Liability The provisions of these Rules shall not affect the rights and obligations of the carrier under any statute for the time being in force relating to the limitation of the liability of owners of vessels. ARTICLE IX Liability for Nuclear Damage These Rules shall not affect the provisions of any international Convention or national law governing liability for nuclear damage.
Responsabilité en matière ARTICLE X Application
The provisions of these Rules shall apply to every bill of lading relating to the carriage of goods between ports in two different States if: (a) the bill of lading is issued in a Contracting State, or (b) the carriage is from a port in a Contracting State, or (c) the contract contained in or evidenced by the bill of lading provides that these Rules or legislation of any State giving effect to them are to govern the contract, whatever may be the nationality of the ship, the carrier, the shipper, the consignee, or any other interested person.
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UNITED NATIONS CONVENTION ON THE CARRIAGE OF GOODS BY SEA, 1978 Preamble THE STATES PARTIES TO THIS CONVENTION, HAVING RECOGNIZED the desirability of determining by agreement certain rules relating to the carriage of goods by sea, HAVE DECIDED to conclude a Convention for this purpose and have thereto agreed as follows: PART I GENERAL PROVISIONS ARTICLE 1 Definitions In this Convention: 1. ‘‘Carrier’’ means any person by whom or in whose name a contract of carriage of goods by sea has been concluded with a shipper. 2. ‘‘Actual carrier’’ means any person to whom the performance of the carriage of the goods, or of part of the carriage, has been entrusted by the carrier, and includes any other person to whom such performance has been entrusted. 3. ‘‘Shipper’’ means any person by whom or in whose name or on whose behalf a contract of carriage of goods by sea has been concluded with a carrier, or any person by whom or in whose name or on whose behalf the goods are actually delivered to the carrier in relation to the contract of carriage by sea.
4. ‘‘Consignee’’ means the person entitled to take delivery of the goods. 5. ‘‘Goods’’ includes live animals; where the goods are consolidated in a container, pallet or similar article of transport or where they are packed, ‘‘goods’’ includes such article of transport or packaging if supplied by the shipper.
Responsabilité en matière
6. ‘‘Contract of carriage by sea’’ means any contract whereby the carrier undertakes against payment of freight to carry goods by sea from one port to another; however, a contract which involves carriage by sea and also carriage by some other means is deemed to be a contract of carriage by sea for the purposes of this Convention only in so far as it relates to the carriage by sea. 7. ‘‘Bill of lading’’ means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document. A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking. 8. ‘‘Writing’’ includes, inter alia, telegram and telex. ARTICLE 2 Scope of application 1. The provisions of this Convention are applicable to all contracts of carriage by sea between two different States, if: (a) the port of loading as provided for in the contract of carriage by sea is located in a Contracting State, or (b) the port of discharge as provided for in the contract of carriage by sea is located in a Contracting State, or (c) one of the optional ports of discharge provided for in the contract of carriage by sea is the actual port of discharge and such port is located in a Contracting State, or (d) the bill of lading or other document evidencing the contract of carriage by sea is issued in a Contracting State, or (e) the bill of lading or other document evidencing the contract of carriage by sea provides that the provisions of this Convention or the legislation of any State giving effect to them are to govern the contract.
2. The provisions of this Convention are applicable without regard to the nationality of the ship, the carrier, the actual carrier, the shipper, the consignee or any other interested person. 3. The provisions of this Convention are not applicable to charter-parties. However, where a bill of lading is issued pursuant to a charter-party, the provisions of the Convention apply to such a bill of lading if it governs the relation between the carrier and the holder of the bill of lading, not being the charterer.
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4. If a contract provides for future carriage of goods in a series of shipments during an agreed period, the provisions of this Convention apply to each shipment. However, where a shipment is made under a charter-party, the provisions of paragraph 3 of this article apply. ARTICLE 3 Interpretation of the Convention In the interpretation and application of the provisions of this Convention regard shall be had to its international character and to the need to promote uniformity. PART II LIABILITY OF THE CARRIER ARTICLE 4 Period of responsibility 1. The responsibility of the carrier for the goods under this Convention covers the period during which the carrier is in charge of the goods at the port of loading, during the carriage and at the port of discharge. 2. For the purpose of paragraph 1 of this article, the carrier is deemed to be in charge of the goods (a) from the time he has taken over the goods from: (i) the shipper, or a person acting on his behalf; or (ii) an authority or other third party to whom, pursuant to law or regulations applicable at the port of loading, the goods must be handed over for shipment; (b) until the time he has delivered the goods: (i) by handing over the goods to the consignee; or (ii) in cases where the consignee does not receive the goods from the carrier, by placing them at the disposal of the consignee in accordance with the contract or with the law or with the usage of the particular trade, applicable at the port of discharge; or (iii) by handing over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed over.
3. In paragraphs 1 and 2 of this article, reference to the carrier or to the consignee means, in addition to the carrier or the consignee, the servants or agents, respectively of the carrier or the consignee.
Responsabilité en matière ARTICLE 5 Basis of liability
1. The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in article 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences. 2. Delay in delivery occurs when the goods have not been delivered at the port of discharge provided for in the contract of carriage by sea within the time expressly agreed upon or, in the absence of such agreement, within the time which it would be reasonable to require of a diligent carrier, having regard to the circumstances of the case. 3. The person entitled to make a claim for the loss of goods may treat the goods as lost if they have not been delivered as required by article 4 within 60 consecutive days following the expiry of the time for delivery according to paragraph 2 of this article. 4. (a) The carrier is liable (i) for loss of or damage to the goods or delay in delivery caused by fire, if the claimant proves that the fire arose from fault or neglect on the part of the carrier, his servants or agents; (ii) for such loss, damage or delay in delivery which is proved by the claimant to have resulted from the fault or neglect of the carrier, his servants or agents, in taking all measures that could reasonably be required to put out the fire and avoid or mitigate its consequences. (b) In case of fire on board the ship affecting the goods, if the claimant or the carrier so desires, a survey in accordance with shipping practices must be held into the cause and circumstances of the fire, and a copy of the surveyor’s report shall be made available on demand to the carrier and the claimant.
5. With respect to live animals, the carrier is not liable for loss, damage or delay in delivery resulting from any special risks inherent in that kind of carriage. If the carrier proves that he has complied with any special instructions given to him by the shipper respecting the animals and that, in the circumstances of the case, the loss, damage or delay in delivery could be attributed to such risks, it is presumed that the loss, damage or delay in delivery was so caused, unless there is proof that all or a part of the loss, damage or delay in delivery resulted from fault or neglect on the part of the carrier, his servants or agents.
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6. The carrier is not liable, except in general average, where loss, damage or delay in delivery resulted from measures to save life or from reasonable measures to save property at sea. 7. Where fault or neglect on the part of the carrier, his servants or agents combines with another cause to produce loss, damage or delay in delivery the carrier is liable only to the extent that the loss, damage or delay in delivery is attributable to such fault or neglect, provided that the carrier proves the amount of the loss, damage or delay in delivery not attributable thereto.
ARTICLE 6 Limits of liability 1. (a) The liability of the carrier for loss resulting from loss of or damage to goods according to the provisions of article 5 is limited to an amount equivalent to 835 units of account per package or other shipping unit or 2.5 units of account per kilogramme of gross weight of the goods lost or damaged, whichever is the higher. (b) The liability of the carrier for delay in delivery according to the provisions of article 5 is limited to an amount equivalent to two and a half times the freight payable for the goods delayed, but not exceeding the total freight payable under the contract of carriage of goods by sea. (c) In no case shall the aggregate liability of the carrier, under both subparagraphs (a) and (b) of this paragraph, exceed the limitation which would be established under subparagraph (a) of this paragraph for total loss of the goods with respect to which such liability was incurred.
2. For the purpose of calculating which amount is the higher in accordance with paragraph 1(a) of this article, the following rules apply: (a) Where a container, pallet or similar article of transport is used to consolidate goods, the package or other shipping units enumerated in the bill of lading, if issued, or otherwise in any other document evidencing the contract of carriage by sea, as packed in such article of transport are deemed packages or shipping units. Except as aforesaid the goods in such article of transport are deemed one shipping unit. (b) In cases where the article of transport itself has been lost or damaged, that article of transport, if not owned or otherwise supplied by the carrier, is considered one separate shipping unit. 3. Unit of account means the unit of account mentioned in article 26.
Responsabilité en matière
4. By agreement between the carrier and the shipper, limits of liability exceeding those provided for in paragraph 1 may be fixed. ARTICLE 7 Application to non-contractual claims 1. The defences and limits of liability provided for in this Convention apply in any action against the carrier in respect of loss or damage to the goods covered by the contract of carriage by sea, as well as of delay in delivery whether the action is founded in contract, in tort or otherwise. 2. If such an action is brought against a servant or agent of the carrier, such servant or agent, if he proves that he acted within the scope of his employment, is entitled to avail himself of the defences and limits of liability which the carrier is entitled to invoke under this Convention. 3. Except as provided in article 8, the aggregate of the amounts recoverable from the carrier and from any persons referred to in paragraph 2 of this article shall not exceed the limits of liability provided for in this Convention. ARTICLE 8 Loss of right to limit responsibility 1. The carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of the carrier done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result. 2. Notwithstanding the provisions of paragraph 2 of article 7, a servant or agent of the carrier is not entitled to the benefit of the limitation of liability provided for in article 6 if it is proved that the loss, damage or delay in delivery resulted from an act or omission of such servant or agent, done with the intent to cause such loss, damage or delay, or recklessly and with knowledge that such loss, damage or delay would probably result.
ARTICLE 9 Deck cargo 1. The carrier is entitled to carry the goods on deck only if such carriage is in accordance with an agreement with the shipper or with the usage of the particular trade or is required by statutory rules or regulations.
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2. If the carrier and the shipper have agreed that the goods shall or may be carried on deck, the carrier must insert in the bill of lading or other document evidencing the contract of carriage by sea a statement to that effect. In the absence of such a statement the carrier has the burden of proving that an agreement for carriage on deck has been entered into; however, the carrier is not entitled to invoke such an agreement against a third party, including a consignee, who has acquired the bill of lading in good faith. 3. Where the goods have been carried on deck contrary to the provisions of paragraph 1 of this article or where the carrier may not under paragraph 2 of this article invoke an agreement for carriage on deck, the carrier, notwithstanding the provisions of paragraph 1 of article 5, is liable for loss of or damage to the goods, as well as for delay in delivery, resulting solely from the carriage on deck, and the extent of his liability is to be determined in accordance with the provisions of article 6 or article 8 of this Convention, as the case may be. 4. Carriage of goods on deck contrary to express agreement for carriage under deck is deemed to be an act or omission of the carrier within the meaning of article 8. ARTICLE 10 Liability of the carrier and actual carrier 1. Where the performance of the carriage or part thereof has been entrusted to an actual carrier, whether or not in pursuance of a liberty under the contract of carriage by sea to do so, the carrier nevertheless remains responsible for the entire carriage according to the provisions of this Convention. The carrier is responsible, in relation to the carriage performed by the actual carrier, for the acts and omissions of the actual carrier and of his servants and agents acting within the scope of their employment.
2. All the provisions of this Convention governing the responsibility of the carrier also apply to the responsibility of the actual carrier for the carriage performed by him. The provisions of paragraphs 2 and 3 of article 7 and of paragraph 2 of article 8 apply if an action is brought against a servant or agent of the actual carrier. 3. Any special agreement under which the carrier assumes obligations not imposed by this Convention or waives rights conferred by this Convention affects the actual carrier only if agreed to by him expressly and in writing. Whether or not the actual carrier has so agreed, the carrier nevertheless remains bound by the obligations or waivers resulting from such special agreement. 4. Where and to the extent that both the carrier and the actual carrier are liable, their liability is joint and several.
Responsabilité en matière
5. The aggregate of the amounts recoverable from the carrier, the actual carrier and their servants and agents shall not exceed the limits of liability provided for in this Convention. 6. Nothing in this article shall prejudice any right of recourse as between the carrier and the actual carrier. ARTICLE 11 Through carriage 1. Notwithstanding the provisions of paragraph 1 of article 10, where a contract of carriage by sea provides explicitly that a specified part of the carriage covered by the said contract is to be performed by a named person other than the carrier, the contract may also provide that the carrier is not liable for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in the charge of the actual carrier during such part of the carriage. Nevertheless, any stipulation limiting or excluding such liability is without effect if no judicial proceedings can be instituted against the actual carrier in a court competent under paragraph 1 or 2 of article 21. The burden of proving that any loss, damage or delay in delivery has been caused by such an occurrence rests upon the carrier.
2. The actual carrier is responsible in accordance with the provisions of paragraph 2 of article 10 for loss, damage or delay in delivery caused by an occurrence which takes place while the goods are in his charge. PART III LIABILITY OF THE SHIPPER ARTICLE 12 General rule The shipper is not liable for loss sustained by the carrier or the actual carrier, or for damage sustained by the ship, unless such loss or damage was caused by the fault or neglect of the shipper, his servants or agents. Nor is any servant or agent of the shipper liable for such loss or damage unless the loss or damage was caused by fault or neglect on his part.
ARTICLE 13 Special rules on dangerous goods 1. The shipper must mark or label in a suitable manner dangerous goods as dangerous.
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2. Where the shipper hands over dangerous goods to the carrier or an actual carrier, as the case may be, the shipper must inform him of the dangerous character of the goods and, if necessary, of the precautions to be taken. If the shipper fails to do so and such carrier or actual carrier does not otherwise have knowledge of their dangerous character: (a) the shipper is liable to the carrier and any actual carrier for the loss resulting from the shipment of such goods, and (b) the goods may at any time be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation.
3. The provisions of paragraph 2 of this article may not be invoked by any person if during the carriage he has taken the goods in his charge with knowledge of their dangerous character. 4. If, in cases where the provisions of paragraph 2, subparagraph (b), of this article do not apply or may not be invoked, dangerous goods become an actual danger to life or property, they may be unloaded, destroyed or rendered innocuous, as the circumstances may require, without payment of compensation except where there is an obligation to contribute in general average or where the carrier is liable in accordance with the provisions of article 5. PART IV TRANSPORT DOCUMENTS ARTICLE 14 Issue of bill of lading 1. When the carrier or the actual carrier takes the goods in his charge, the carrier must, on demand of the shipper, issue to the shipper a bill of lading. 2. The bill of lading may be signed by a person having authority from the carrier. A bill of lading signed by the master of the ship carrying the goods is deemed to have been signed on behalf of the carrier. 3. The signature on the bill of lading may be in handwriting, printed in facsimile, perforated, stamped, in symbols, or made by an other mechanical or electronic means, if not inconsistent with the law of the country where the bill of lading is issued.
Responsabilité en matière ARTICLE 15 Contents of bill of lading
1. The bill of lading must include, inter alia, the following particulars: (a) the general nature of the goods, the leading marks necessary for identification of the goods, an express statement, if applicable, as to the dangerous character of the goods, the number of packages or pieces, and the weight of the goods or their quantity otherwise expressed, all such particulars as furnished by the shipper; (b) the apparent condition of the goods; (c) the name and principal place of business of the carrier; (d) the name of the shipper; (e) the consignee if named by the shipper; (f) the port of loading under the contract of carriage by sea and the date on which the goods were taken over by the carrier at the port of loading; (g) the port of discharge under the contract of carriage by sea; (h) the number of originals of the bill of lading, if more than one; (i) the place of issuance of the bill of lading; (j) the signature of the carrier or a person acting on his behalf; (k) the freight to the extent payable by the consignee or other indication that freight is payable by him; (l) the statement referred to in paragraph 3 of article 23; (m) the statement, if applicable, that the goods shall or may be carried on deck; (n) the date or the period of delivery of the goods at the port of discharge if expressly agreed upon between the parties; and (o) any increased limit or limits of liability where agreed in accordance with paragraph 4 of article 6.
2. After the goods have been loaded on board, if the shipper so demands, the carrier must issue to the shipper a ‘‘shipped’’ bill of lading which, in addition to the particulars required under paragraph 1 of this article, must state that the goods are on board a named ship or ships, and the date or dates of loading. If the carrier has previously issued to the shipper a bill of lading or other document of title with respect to any of such goods, on request of the carrier, the shipper must surrender such document in exchange for a ‘‘shipped’’ bill of lading. The carrier may amend any previously issued document in order to meet the shipper’s demand for a ‘‘shipped’’ bill of lading if, as amended, such document includes all the information required to be contained in a ‘‘shipped’’ bill of lading.
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Marine Liability
3. The absence in the bill of lading of one or more particulars referred to in this article does not affect the legal character of the document as a bill of lading provided that it nevertheless meets the requirements set out in paragraph 7 of article 1. ARTICLE 16 Bills of lading: reservations and evidentiary effect 1. If the bill of lading contains particulars concerning the general nature, leading marks, number of packages or pieces, weight or quantity of the goods which the carrier or other person issuing the bill of lading on his behalf knows or has reasonable grounds to suspect do not accurately represent the goods actually taken over or, where a ‘‘shipped’’ bill of lading is issued, loaded, or if he had no reasonable means of checking such particulars, the carrier or such other person must insert in the bill of lading a reservation specifying these inaccuracies, grounds of suspicion or the absence of reasonable means of checking.
2. If the carrier or other person issuing the bill of lading on his behalf fails to note on the bill of lading the apparent condition of the goods, he is deemed to have noted on the bill of lading that the goods were in apparent good condition. 3. Except for particulars in respect of which and to the extent to which a reservation permitted under paragraph 1 of this article has been entered: (a) the bill of lading is prima facie evidence of the taking over or, where a ‘‘shipped’’ bill of lading is issued, loading, by the carrier of the goods as described in the bill of lading; and (b) proof to the contrary by the carrier is not admissible if the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the description of the goods therein. 4. A bill of lading which does not, as provided in paragraph 1, subparagraph (k) of article 15, set forth the freight or otherwise indicate that freight is payable by the consignee or does not set forth demurrage incurred at the port of loading payable by the consignee, is prima facie evidence that no freight or such demurrage is payable by him. However, proof to the contrary by the carrier is not admissible when the bill of lading has been transferred to a third party, including a consignee, who in good faith has acted in reliance on the absence in the bill of lading of any such indication.
Responsabilité en matière ARTICLE 17 Guarantees by the shipper
1. The shipper is deemed to have guaranteed to the carrier the accuracy of particulars relating to the general nature of the goods, their marks, number, weight and quantity as furnished by him for insertion in the bill of lading. The shipper must indemnify the carrier against the loss resulting from inaccuracies in such particulars. The shipper remains liable even if the bill of lading has been transferred by him. The right of the carrier to such indemnity in no way limits his liability under the contract of carriage by sea to any person other than the shipper. 2. Any letter of guarantee or agreement by which the shipper undertakes to indemnify the carrier against loss resulting from the issuance of the bill of lading by the carrier, or by a person acting on his behalf, without entering a reservation relating to particulars furnished by the shipper for insertion in the bill of lading, or to the apparent condition of the goods, is void and of no effect as against any third party, including a consignee, to whom the bill of lading has been transferred. 3. Such letter of guarantee or agreement is valid as against the shipper unless the carrier or the person acting on his behalf, by omitting the reservation referred to in paragraph 2 of this article, intends to defraud a third party, including a consignee, who acts in reliance on the description of the goods in the bill of lading. In the latter case, if the reservation omitted relates to particulars furnished by the shipper for insertion in the bill of lading, the carrier has no right of indemnity from the shipper pursuant to paragraph 1 of this article. 4. In the case of intended fraud referred to in paragraph 3 of this article the carrier is liable, without the benefit of the limitation of liability provided for in this Convention, for the loss incurred by a third party, including a consignee, because he has acted in reliance on the description of the goods in the bill of lading. ARTICLE 18 Documents other than bills of lading Where a carrier issues a document other than a bill of lading to evidence the receipt of the goods to be carried, such a document is prima facie evidence of the conclusion of the contract of carriage by sea and the taking over by the carrier of the goods as therein described.
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Marine Liability PART V CLAIMS AND ACTIONS ARTICLE 19
Notice of loss, damage or delay 1. Unless notice of loss or damage, specifying the general nature of such loss or damage, is given in writing by the consignee to the carrier not later than the working day after the day when the goods were handed over to the consignee, such handing over is prima facie evidence of the delivery by the carrier of the goods as described in the document of transport or, if no such document has been issued, in good condition.
2. Where the loss or damage is not apparent, the provisions of paragraph 1 of this article apply correspondingly if notice in writing is not given within 15 consecutive days after the day when the goods were handed over to the consignee. 3. If the state of the goods at the time they were handed over to the consignee has been the subject of a joint survey or inspection by the parties, notice in writing need not be given of loss or damage ascertained during such survey or inspection. 4. In the case of any actual or apprehended loss or damage the carrier and the consignee must give all reasonable facilities to each other for inspecting and tallying the goods. 5. No compensation shall be payable for loss resulting from delay in delivery unless a notice has been given in writing to the carrier within 60 consecutive days after the day when the goods were handed over to the consignee. 6. If the goods have been delivered by an actual carrier, any notice given under this article to him shall have the same effect as if it had been given to the carrier, and any notice given to the carrier shall have effect as if given to such actual carrier. 7. Unless notice of loss or damage, specifying the general nature of the loss or damage, is given in writing by the carrier or actual carrier to the shipper not later than 90 consecutive days after the occurrence of such loss or damage or after the delivery of the goods in accordance with paragraph 2 of article 4, whichever is later, the failure to give such notice is prima facie evidence that the carrier or the actual carrier has sustained no loss or damage due to the fault or neglect of the shipper, his servants or agents.
Responsabilité en matière
8. For the purpose of this article, notice given to a person acting on the carrier’s or the actual carrier’s behalf, including the master or the officer in charge of the ship, or to a person acting on the shipper’s behalf is deemed to have been given to the carrier, to the actual carrier or to the shipper, respectively. ARTICLE 20 Limitation of actions 1. Any action relating to carriage of goods under this Convention is time-barred if judicial or arbitral proceedings have not been instituted within a period of two years. 2. The limitation period commences on the day on which the carrier has delivered the goods or part thereof or, in cases where no goods have been delivered, on the last day on which the goods should have been delivered. 3. The day on which the limitation period commences is not included in the period. 4. The person against whom a claim is made may at any time during the running of the limitation period extend that period by a declaration in writing to the claimant. This period may be further extended by another declaration or declarations. 5. An action for indemnity by a person held liable may be instituted even after the expiration of the limitation period provided for in the preceding paragraphs if instituted within the time allowed by the law of the State where proceedings are instituted. However, the time allowed shall not be less than 90 days commencing from the day when the person instituting such action for indemnity has settled the claim or has been served with process in the action against himself. ARTICLE 21 Jurisdiction 1. In judicial proceedings relating to carriage of goods under this Convention the plaintiff, at his option, may institute an action in a court which, according to the law of the State where the court is situated, is competent and within the jurisdiction of which is situated one of the following places: (a) the principal place of business or, in the absence thereof, the habitual residence of the defendant; or (b) the place where the contract was made provided that the defendant has there a place of business, branch or agency through which the contract was made; or (c) the port of loading or the port of discharge; or (d) any additional place designated for that purpose in the contract of carriage by sea.
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Marine Liability
2. (a) Notwithstanding the preceding provisions of this article, an action may be instituted in the courts of any port or place in a Contracting State at which the carrying vessel or any other vessel of the same ownership may have been arrested in accordance with applicable rules of the law of that State and of international law. However, in such a case, at the petition of the defendant, the claimant must remove the action, at his choice, to one of the jurisdictions referred to in paragraph 1 of this article for the determination of the claim, but before such removal the defendant must furnish security sufficient to ensure payment of any judgement that may subsequently be awarded to the claimant in the action. (b) All questions relating to the sufficiency or otherwise of the security shall be determined by the court of the port or place of the arrest. 3. No judicial proceedings relating to carriage of goods under this Convention may be instituted in a place not specified in paragraph 1 or 2 of this article. The provisions of this paragraph do not constitute an obstacle to the jurisdiction of the Contracting States for provisional or protective measures. 4. (a) Where an action has been instituted in a court competent under paragraph 1 or 2 of this article or where judgement has been delivered by such a court, no new action may be started between the same parties on the same grounds unless the judgement of the court before which the first action was instituted is not enforceable in the country in which the new proceedings are instituted; (b) for the purpose of this article the institution of measures with a view to obtaining enforcement of a judgement is not to be considered as the starting of a new action; (c) for the purpose of this article, the removal of an action to a different court within the same country, or to a court in another country, in accordance with paragraph 2(a) of this article, is not to be considered as the starting of a new action. 5. Notwithstanding the provisions of the preceding paragraphs, an agreement made by the parties, after a claim under the contract of carriage by sea has arisen, which designates the place where the claimant may institute an action, is effective. ARTICLE 22 Arbitration 1. Subject to the provisions of this article, parties may provide by agreement evidenced in writing that any dispute that may arise relating to carriage of goods under this Convention shall be referred to arbitration.
Responsabilité en matière
2. Where a charter-party contains a provision that disputes arising thereunder shall be referred to arbitration and a bill of lading issued pursuant to the charter-party does not contain a special annotation providing that such provision shall be binding upon the holder of the bill of lading, the carrier may not invoke such provision as against a holder having acquired the bill of lading in good faith. 3. The arbitration proceedings shall, at the option of the claimant, be instituted at one of the following places: (a) a place in a State within whose territory is situated: (i) the principal place of business of the defendant or, in the absence thereof, the habitual residence of the defendant; or (ii) the place where the contract was made, provided that the defendant has there a place of business, branch or agency through which the contract was made; or (iii) the port of loading or the port of discharge; or (b) any place designated for that purpose in the arbitration clause or agreement. 4. The arbitrator or arbitration tribunal shall apply the rules of this Convention. 5. The provisions of paragraphs 3 and 4 of this article are deemed to be part of every arbitration clause or agreement, and any term of such clause or agreement which is inconsistent therewith is null and void. 6. Nothing in this article affects the validity of an agreement relating to arbitration made by the parties after the claim under the contract of carriage by sea has arisen. PART VI SUPPLEMENTARY PROVISIONS ARTICLE 23 Contractual stipulations 1. Any stipulation in a contract of carriage by sea, in a bill of lading, or in any other document evidencing the contract of carriage by sea is null and void to the extent that it derogates, directly or indirectly, from the provisions of this Convention. The nullity of such a stipulation does not affect the validity of the other provisions of the contract or document of which it forms a part. A clause assigning benefit of insurance of the goods in favour of the carrier, or any similar clause, is null and void. 2. Notwithstanding the provisions of paragraph 1 of this article, a carrier may increase his responsibilities and obligations under this Convention.
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Marine Liability
3. Where a bill of lading or any other document evidencing the contract of carriage by sea is issued, it must contain a statement that the carriage is subject to the provisions of this Convention which nullify any stipulation derogating therefrom to the detriment of the shipper or the consignee. 4. Where the claimant in respect of the goods has incurred loss as a result of a stipulation which is null and void by virtue of the present article, or as a result of the omission of the statement referred to in paragraph 3 of this article, the carrier must pay compensation to the extent required in order to give the claimant compensation in accordance with the provisions of this Convention for any loss of or damage to the goods as well as for delay in delivery. The carrier must, in addition, pay compensation for costs incurred by the claimant for the purpose of exercising his right, provided that costs incurred in the action where the foregoing provision is invoked are to be determined in accordance with the law of the State where proceedings are instituted. ARTICLE 24 General average 1. Nothing in this Convention shall prevent the application of provisions in the contract of carriage by sea or national law regarding the adjustment of general average. 2. With the exception of article 20, the provisions of this Convention relating to the liability of the carrier for loss of or damage to the goods also determine whether the consignee may refuse contribution in general average and the liability of the carrier to indemnify the consignee in respect of any such contribution made or any salvage paid. ARTICLE 25 Other conventions 1. This Convention does not modify the rights or duties of the carrier, the actual carrier and their servants and agents, provided for in international conventions or national law relating to the limitation of liability of owners of seagoing ships. 2. The provisions of articles 21 and 22 of this Convention do not prevent the application of the mandatory provisions of any other multilateral convention already in force at the date of this Convention [March 31, 1978] relating to matters dealt with in the said articles, provided that the dispute arises exclusively between parties having their principal place of business in States members of such other convention. However, this paragraph does not affect the application of paragraph 4 of article 22 of this Convention.
Responsabilité en matière
3. No liability shall arise under the provisions of this Convention for damage caused by a nuclear incident if the operator of a nuclear installation is liable for such damage: (a) under either the Paris Convention of 29 July 1960 on Third Party Liability in the Field of Nuclear Energy as amended by the Additional Protocol of 28 January 1964 or the Vienna Convention of 21 May 1963 on Civil Liability for Nuclear Damage, or (b) by virtue of national law governing the liability for such damage, provided that such law is in all respects as favourable to persons who may suffer damage as either the Paris or Vienna Conventions.
4. No liability shall arise under the provisions of this Convention for any loss of or damage to or delay in delivery of luggage for which the carrier is responsible under any international convention or national law relating to the carriage of passengers and their luggage by sea. 5. Nothing contained in this Convention prevents a Contracting State from applying any other international convention which is already in force at the date of this Convention and which applies mandatorily to contracts of carriage of goods primarily by a mode of transport other than transport by sea. This provision also applies to any subsequent revision or amendment of such international convention. ARTICLE 26 Unit of account 1. The unit of account referred to in article 6 of this Convention is the Special Drawing Right as defined by the International Monetary Fund. The amounts mentioned in article 6 are to be converted into the national currency of a State according to the value of such currency at the date of judgement or the date agreed upon by the parties. The value of a national currency, in terms of the Special Drawing Right, of a Contracting State which is a member of the International Monetary Fund is to be calculated in accordance with the method of valuation applied by the International Monetary Fund in effect at the date in question for its operations and transactions. The value of a national currency in terms of the Special Drawing Right of a Contracting State which is not a member of the International Monetary Fund is to be calculated in a manner determined by that State.
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Marine Liability
2. Nevertheless, those States which are not members of the International Monetary Fund and whose law does not permit the application of the provisions of paragraph 1 of this article may, at the time of signature, or at the time of ratification, acceptance, approval or accession or at any time thereafter, declare that the limits of liability provided for in this Convention to be applied in their territories shall be fixed as: 12,500 monetary units per package or other shipping unit or 37.5 monetary units per kilogramme of gross weight of the goods. 3. The monetary unit referred to in paragraph 2 of this article corresponds to sixty-five and a half milligrammes of gold of millesimal fineness nine hundred. The conversion of the amounts referred to in paragraph 2 into the national currency is to be made according to the law of the State concerned. 4. The calculation mentioned in the last sentence of paragraph 1 and the conversion mentioned in paragraph 3 of this article is to be made in such a manner as to express in the national currency of the Contracting State as far as possible the same real value for the amounts in article 6 as is expressed there in units of account. Contracting States must communicate to the depositary the manner of calculation pursuant to paragraph 1 of this article, or the result of the conversion mentioned in paragraph 3 of this article, as the case may be, at the time of signature or when depositing their instruments of ratification, acceptance, approval or accession, or when availing themselves of the option provided for in paragraph 2 of this article and whenever there is a change in the manner of such calculation or in the result of such conversion. PART VII FINAL CLAUSES ARTICLE 27 Depositary The Secretary General of the United Nations is hereby designated as the depositary of this Convention. ARTICLE 28 Signature, ratification, acceptance, approval, accession 1. This Convention is open for signature by all States until 30 April 1979 at the Headquarters of the United Nations, New York. 2. This Convention is subject to ratification, acceptance or approval by the signatory States. 3. After 30 April 1979, this Convention will be open for accession by all States which are not signatory States.
Responsabilité en matière
4. Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations. ARTICLE 29 Reservations No reservations may be made to this Convention. ARTICLE 30 Entry into force 1. This Convention enters into force on the first day of the month following the expiration of one year from the date of deposit of the 20th instrument of ratification, acceptance, approval or accession. 2. For each State which becomes a Contracting State to this Convention after the date of deposit of the 20th instrument of ratification, acceptance, approval or accession, this Convention enters into force on the first day of the month following the expiration of one year after the deposit of the appropriate instrument on behalf of that State. 3. Each Contracting State shall apply the provisions of this Convention to contracts of carriage by sea concluded on or after the date of the entry into force of this Convention in respect of that State. ARTICLE 31 Denunciation of other conventions 1. Upon becoming a Contracting State to this Convention, any State party to the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924 (1924 Convention) must notify the Government of Belgium as the depositary of the 1924 Convention of its denunciation of the said Convention with a declaration that the denunciation is to take effect as from the date when this Convention enters into force in respect of that State. 2. Upon the entry into force of this Convention under paragraph 1 of article 30, the depositary of this Convention must notify the Government of Belgium as the depositary of the 1924 Convention of the date of such entry into force, and of the names of the Contracting States in respect of which the Convention has entered into force. 3. The provisions of paragraphs 1 and 2 of this article apply correspondingly in respect of States parties to the Protocol signed on 23 February 1968 to amend the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924.
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Marine Liability
4. Notwithstanding article 2 of this Convention, for the purposes of paragraph 1 of this article, a Contracting State may, if it deems it desirable, defer the denunciation of the 1924 Convention and of the 1924 Convention as modified by the 1968 Protocol for a maximum period of five years from the entry into force of this Convention. It will then notify the Government of Belgium of its intention. During this transitory period, it must apply to the Contracting States this Convention to the exclusion of any other one. ARTICLE 32 Revision and amendment 1. At the request of not less than one-third of the Contracting States to this Convention, the depositary shall convene a conference of the Contracting States for revising or amending it. 2. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended. ARTICLE 33 Revision of the limitation amounts and unit of account or monetary unit 1. Notwithstanding the provisions of article 32, a conference only for the purpose of altering the amount specified in article 6 and paragraph 2 of article 26, or of substituting either or both of the units defined in paragraphs 1 and 3 of article 26 by other units is to be convened by the depositary in accordance with paragraph 2 of this article. An alteration of the amounts shall be made only because of a significant change in their real value. 2. A revision conference is to be convened by the depositary when not less than one-fourth of the Contracting States so request. 3. Any decision by the conference must be taken by a two-thirds majority of the participating States. The amendment is communicated by the depositary to all the Contracting States for acceptance and to all the States signatories of the Convention for information. 4. Any amendment adopted enters into force on the first day of the month following one year after its acceptance by two-thirds of the Contracting States. Acceptance is to be effected by the deposit of a formal instrument to that effect, with the depositary. 5. After entry into force of an amendment a Contracting State which has accepted the amendment is entitled to apply the Convention as amended in its relations with Contracting States which have not within six months after the adoption of the amendment notified the depositary that they are not bound by the amendment.
Responsabilité en matière
6. Any instrument of ratification, acceptance, approval or accession deposited after the entry into force of an amendment to this Convention, is deemed to apply to the Convention as amended. ARTICLE 34 Denunciation 1. A Contracting State may denounce this Convention at any time by means of a notification in writing addressed to the depositary. 2. The denunciation takes effect on the first day of the month following the expiration of one year after the notification is received by the depositary. Where a longer period is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary. DONE at Hamburg, this thirty-first day of March one thousand nine hundred and seventy-eight, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic. IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed the present Convention. COMMON UNDERSTANDING ADOPTED BY THE UNITED NATIONS CONFERENCE ON THE CARRIAGE OF GOODS BY SEA It is the common understanding that the liability of the carrier under this Convention is based on the principle of presumed fault or neglect. This means that, as a rule, the burden of proof rests on the carrier but, with respect to certain cases, the provisions of the Convention modify this rule.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 14
An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence
BILL S-11 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment amends the Canada Business Corporations Act. It is the first major revision of the Act since it came into force in 1975. Among other things, the enactment amends the provisions concerning liability of directors. It allows for a defence based on due diligence and amends the indemnification provisions allowing for the advancement of defence costs, and allowing indemnification in relation to investigations. It also implements a new regime regarding the apportionment of damage awards applicable to persons involved in the preparation of financial information required under the Act or the regulations, including directors and officers. The residency requirements for directors and the requirements specifying the location of corporate records have been relaxed. Residency requirements for committees of directors have been eliminated. The enactment also includes measures to facilitate communications among shareholders and between corporations and their shareholders. To this end, it permits a greater utilization of electronic communications, including holding meetings and voting by electronic means. The enactment also relaxes the rules for proxy solicitation and for certain aspects of the requirements for the submission of proposals and sets conditions for the latter. The enactment also amends the provisions relating to the civil remedies available in situations of insider trading and eliminates insider reporting. A series of amendments are included that remove the requirements relating to financial assistance and take-over bids. The enactment expressly authorizes, under certain conditions, going-private and squeeze-out transactions. It also addresses the rights, powers, duties and liabilities of directors and shareholders under a unanimous shareholder agreement and defences available to them.
The enactment provides a number of limited exceptions to the general rule prohibiting subsidiaries from acquiring shares of the parent corporation. The enactment also includes technical amendments to the Act to clarify certain provisions, to correct errors, to modernize it and to render the language in the English version gender neutral. It also amends the Canada Cooperatives Act in order to generally harmonize its provisions with the amendments mentioned above, repeals the definition of “associate” in certain Acts and makes consequential amendments to other Acts. ��� ������������� ������������ ��� ��������� �� ��� ������������� �������� ������������� �� ��� ��������� �������� ���������������������
49-50 ELIZABETH II
CHAPTER 14 An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-44; 1994, c. 24, s. 1(F)
CANADA BUSINESS CORPORATIONS ACT
1. (1) The definitions ‘‘auditor’’, ‘‘person’’ and ‘‘unanimous shareholder agreement’’ in subsection 2(1) of the Canada Business Corporations Act are replaced by the following: ‘‘auditor’’ « vérificateur »
‘‘auditor’’ includes a partnership of auditors or an auditor that is incorporated;
‘‘person’’ « personne »
‘‘person’’ means an individual, partnership, association, body corporate, or personal representative;
‘‘unanimous shareholder agreement’’ « convention unanime des actionnaires »
‘‘unanimous shareholder agreement’’ means an agreement described in subsection 146(1) or a declaration of a shareholder described in subsection 146(2).
(2) The definition ‘‘mandataire’’ in subsection 2(1) of the French version of the Act is replaced by the following: « mandataire » French version only
« mandataire » S’entend notamment de l’ayant cause. (3) Paragraph (c) of the definition ‘‘associate’’ in subsection 2(1) of the Act is replaced by the following: (c) a trust or estate in which that person has a substantial beneficial interest or in
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Canada Business Corporation respect of which that person serves as a trustee or liquidator of the succession or in a similar capacity,
(4) The portion of the definition ‘‘associate’’ in subsection 2(1) of the English version of the Act before paragraph (a) is replaced by the following: ‘‘associate’’ « liens »
‘‘associate’’, in respect of a relationship with a person, means (5) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘distributing corporation’’ « société ayant fait appel au public »
‘‘distributing corporation’’ means, subject to subsections (6) and (7), a distributing corporation as defined in the regulations;
‘‘entity’’ « entité »
‘‘entity’’ means a body corporate, a partnership, a trust, a joint venture or an unincorporated association or organization;
‘‘going-private transaction’’ « opération de fermeture »
‘‘going-private transaction’’ means a goingprivate transaction as defined in the regulations;
‘‘officer’’ « dirigeant »
‘‘officer’’ means an individual appointed as an officer under section 121, the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of a corporation, or any other individual who performs functions for a corporation similar to those normally performed by an individual occupying any of those offices;
‘‘personal representative’’ « représentant personnel »
‘‘personal representative’’ means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a receiver, an agent, a liquidator of a succession, a guardian, a tutor, a curator, a mandatary or an attorney;
‘‘squeeze-out transaction’’ « opération d’éviction »
‘‘squeeze-out transaction’’ means a transaction by a corporation that is not a distributing corporation that would require an amendment to its articles and would, directly or indirectly, result in the interest of a holder of shares of a class of the corporation
Sociétés par actions being terminated without the consent of the holder, and without substituting an interest of equivalent value in shares issued by the corporation, which shares have equal or greater rights and privileges than the shares of the affected class;
(6) Subsection 2(4) of the French version of the Act is replaced by the following: Personne morale mère
(4) Est la personne morale mère d’une personne morale celle qui la contrôle. (7) Subsections 2(6) to (8) of the Act are replaced by the following:
Exemptions — on application by corporation
(6) On the application of a corporation, the Director may determine that the corporation is not or was not a distributing corporation if the Director is satisfied that the determination would not be prejudicial to the public interest.
Exemptions — classes of corporations
(7) The Director may determine that a class of corporations are not or were not distributing corporations if the Director is satisfied that the determination would not be prejudicial to the public interest.
Infants
(8) For the purposes of this Act, the word ‘‘infant’’ has the same meaning as in the applicable provincial law and, in the absence of any such law, has the same meaning as the word ‘‘child’’ in the United Nations Convention on the Rights of the Child, adopted in the United Nations General Assembly on November 20, 1989.
1996, c. 10, s. 212; 1999, c. 31, s. 63
2. Subsection 3(3) of the French version of the Act is replaced by the following:
Non-application de certaines lois
(3) Les lois suivantes ne s’appliquent pas à une société : a) la Loi sur les corporations canadiennes, chapitre C-32 des Statuts revisés du Canada de 1970; b) la Loi sur les liquidations et les restructurations; c) les dispositions de toute loi spéciale au sens de l’article 87 de la Loi sur les
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Canada Business Corporation
transports au Canada qui sont incompatibles avec la présente loi. 3. (1) The portion of subsection 6(1) of the Act before paragraph (a) is replaced by the following: Articles of incorporation
6. (1) Articles of incorporation shall follow the form that the Director fixes and shall set out, in respect of the proposed corporation, (2) Paragraph 6(1)(b) of the Act is replaced by the following: (b) the province in Canada where the registered office is to be situated; 4. Section 8 of the Act is replaced by the following:
Certificate of incorporation
8. (1) Subject to subsection (2), on receipt of articles of incorporation, the Director shall issue a certificate of incorporation in accordance with section 262.
Exception — failure to comply with Act
(2) The Director may refuse to issue the certificate if a notice that is required to be sent under subsection 19(2) or 106(1) indicates that the corporation, if it came into existence, would not be in compliance with this Act. 5. Subsection 10(3) of the Act is replaced by the following:
Alternate name
(3) Subject to subsection 12(1), the name of a corporation may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The corporation may use and may be legally designated by any such form.
6. Subsection 13(1) of the Act is replaced by the following: Certificate of amendment
13. (1) When a corporation has had its name revoked and a name assigned to it under subsection 12(5), the Director shall issue a certificate of amendment showing the new name of the corporation and shall give notice of the change of name as soon as practicable in a publication generally available to the public.
Sociétés par actions 7. (1) Subsection 14(1) of the Act is replaced by the following:
Personal liability
14. (1) Subject to this section, a person who enters into, or purports to enter into, a written contract in the name of or on behalf of a corporation before it comes into existence is personally bound by the contract and is entitled to its benefits. (2) Subsection 14(3) of the Act is replaced by the following:
Application to court
(3) Subject to subsection (4), whether or not a written contract made before the coming into existence of a corporation is adopted by the corporation, a party to the contract may apply to a court for an order respecting the nature and extent of the obligations and liability under the contract of the corporation and the person who entered into, or purported to enter into, the contract in the name of or on behalf of the corporation. On the application, the court may make any order it thinks fit. 8. Section 18 of the Act is replaced by the following:
Authority of directors, officers and agents
18. (1) No corporation and no guarantor of an obligation of a corporation may assert against a person dealing with the corporation or against a person who acquired rights from the corporation that (a) the articles, by-laws and any unanimous shareholder agreement have not been complied with; (b) the persons named in the most recent notice sent to the Director under section 106 or 113 are not the directors of the corporation; (c) the place named in the most recent notice sent to the Director under section 19 is not the registered office of the corporation; (d) a person held out by a corporation as a director, an officer or an agent of the corporation has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the corporation or usual for a director, officer or agent;
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(e) a document issued by any director, officer or agent of a corporation with actual or usual authority to issue the document is not valid or not genuine; or (f) a sale, lease or exchange of property referred to in subsection 189(3) was not authorized. Exception
(2) Subsection (1) does not apply in respect of a person who has, or ought to have, knowledge of a situation described in that subsection by virtue of their relationship to the corporation. 9. Section 19 of the Act is replaced by the following:
Registered office
19. (1) A corporation shall at all times have a registered office in the province in Canada specified in its articles.
Notice of registered office
(2) A notice of registered office in the form that the Director fixes shall be sent to the Director together with any articles that designate or change the province where the registered office of the corporation is located.
Change of address
(3) The directors of a corporation may change the place and address of the registered office within the province specified in the articles.
Notice of change of address
(4) A corporation shall send to the Director, within fifteen days of any change of address of its registered office, a notice in the form that the Director fixes and the Director shall file it. 10. Subsection 20(5) of the Act is replaced by the following:
Records in Canada
(5) If accounting records of a corporation are kept outside Canada, accounting records adequate to enable the directors to ascertain the financial position of the corporation with reasonable accuracy on a quarterly basis shall be kept at the registered office or any other place in Canada designated by the directors.
When records or registers kept outside Canada
(5.1) Despite subsections (1) and (5), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a corporation may keep all or any of its corporate records and accounting records referred to in subsection (1) or (2) at a place outside Canada, if
Sociétés par actions (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or any other place in Canada designated by the directors; and (b) the corporation provides the technical assistance to facilitate an inspection referred to in paragraph (a). 11. (1) Subsection 21(1) of the Act is replaced by the following:
Access to corporate records
21. (1) Subject to subsection (1.1), shareholders and creditors of a corporation, their personal representatives and the Director may examine the records described in subsection 20(1) during the usual business hours of the corporation, and may take extracts from the records, free of charge, and, if the corporation is a distributing corporation, any other person may do so on payment of a reasonable fee.
Requirement for affidavit — securities register
(1.1) Any person described in subsection (1) who wishes to examine the securities register of a distributing corporation must first make a request to the corporation or its agent, accompanied by an affidavit referred to in subsection (7). On receipt of the affidavit, the corporation or its agent shall allow the applicant access to the securities register during the corporation’s usual business hours, and, on payment of a reasonable fee, provide the applicant with an extract from the securities register. (2) Subsection 21(3) of the Act is replaced by the following:
Shareholder lists
(3) Shareholders and creditors of a corporation, their personal representatives, the Director and, if the corporation is a distributing corporation, any other person, on payment of a reasonable fee and on sending to a corporation or its agent the affidavit referred to in subsection (7), may on application require the corporation or its agent to furnish within ten days after the receipt of the affidavit a list (in this section referred to as the ‘‘basic list’’) made up to a date not more than ten days before the date of receipt of the affidavit setting out the names of the shareholders of the corporation, the number of shares owned by each shareholder and the address of each
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shareholder as shown on the records of the corporation. (3) Subsection 21(7) of the Act is replaced by the following: Contents of affidavit
(7) The affidavit required under subsection (1.1) or (3) shall state (a) the name and address of the applicant; (b) the name and address for service of the body corporate, if the applicant is a body corporate; and (c) that the basic list and any supplemental lists obtained pursuant to subsection (4) or the information contained in the securities register obtained pursuant to subsection (1.1), as the case may be, will not be used except as permitted under subsection (9).
(4) Subsection 21(8) of the French version of the Act is replaced by the following: Cas où le requérant est une personne morale
(8) La personne morale requérante fait établir l’affidavit par un de ses administrateurs ou dirigeants. (5) Subsection 21(9) of the Act is replaced by the following:
Use of information or shareholder list
(9) A list of shareholders or information from a securities register obtained under this section shall not be used by any person except in connection with (a) an effort to influence the voting of shareholders of the corporation; (b) an offer to acquire securities of the corporation; or (c) any other matter relating to the affairs of the corporation. 12. Section 23 of the Act is replaced by the following:
Corporate seal
23. (1) A corporation may, but need not, adopt a corporate seal, and may change a corporate seal that is adopted.
Validity of unsealed documents
(2) A document executed on behalf of a corporation is not invalid merely because a corporate seal is not affixed to it.
Sociétés par actions 13. Subsection 25(5) of the Act is replaced by the following:
Definition of ‘‘property’’
(5) For the purposes of this section, ‘‘property’’ does not include a promissory note, or a promise to pay, that is made by a person to whom a share is issued, or a person who does not deal at arm’s length, within the meaning of that expression in the Income Tax Act, with a person to whom a share is issued. 14. (1) Subsection 26(3) of the Act is replaced by the following:
Exception for non-arm’s length transactions
(3) Despite subsection (2), a corporation may, subject to subsection (4), add to the stated capital accounts maintained for the shares of classes or series the whole or any part of the amount of the consideration that it receives in an exchange if the corporation issues shares (a) in exchange for (i) property of a person who immediately before the exchange did not deal with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, (ii) shares of, or another interest in, a body corporate that immediately before the exchange, or that because of the exchange, did not deal with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, or (iii) property of a person who, immediately before the exchange, dealt with the corporation at arm’s length within the meaning of that expression in the Income Tax Act, if the person, the corporation and all the holders of shares in the class or series of shares so issued consent to the exchange; or (b) pursuant to an agreement referred to in subsection 182(1) or an arrangement referred to in paragraph 192(1)(b) or (c) or to shareholders of an amalgamating body corporate who receive the shares in addition to or instead of securities of the amalgamated body corporate. (2) Subsection 26(9) of the Act is replaced by the following:
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(9) For the purposes of subsection 34(2), sections 38 and 42, and paragraph 185(2)(a), when a body corporate is continued under this Act its stated capital is deemed to include the amount that would have been included in stated capital if the body corporate had been incorporated under this Act. (3) Subsection 26(12) of the Act is replaced by the following:
Definition of ‘‘open-end mutual fund’’
(12) For the purposes of this section, ‘‘open-end mutual fund’’ means a distributing corporation that carries on only the business of investing the consideration it receives for the shares it issues, and all or substantially all of those shares are redeemable on the demand of a shareholder.
15. (1) Subsection 27(1) of the Act is replaced by the following: Shares in series
27. (1) The articles may authorize, subject to any limitations set out in them, the issue of any class of shares in one or more series and may do either or both of the following: (a) fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of, each series; or (b) authorize the directors to fix the number of shares in, and determine the designation, rights, privileges, restrictions and conditions attaching to the shares of, each series. (2) Subsection 27(4) of the Act is replaced by the following:
Amendment of articles
(4) If the directors exercise their authority under paragraph (1)(b), they shall, before the issue of shares of the series, send, in the form that the Director fixes, articles of amendment to the Director to designate a series of shares. 16. The portion of subsection 29(1) of the French version of the Act before paragraph (a) is replaced by the following:
Options et droits
29. (1) La société peut émettre des titres, notamment des certificats, constatant des privilèges de conversion, ainsi que des options ou des droits d’acquérir des valeurs mobilières de celle-ci, aux conditions qu’elle énonce :
Sociétés par actions 17. (1) Paragraph 30(1)(a) of the French version of the Act is replaced by the following: a) ni détenir ses propres actions ni celles de sa personne morale mère; (2) The portion of subsection 30(2) of the Act before paragraph (a) is replaced by the following:
Subsidiary holding shares of its parent
(2) Subject to section 31, a corporation shall cause a subsidiary body corporate of the corporation that holds shares of the corporation to sell or otherwise dispose of those shares within five years from the date 18. (1) Section 31 of the French version of the Act is replaced by the following:
Exception
31. (1) La société peut, en qualité de mandataire, détenir ses propres actions ou des actions de sa personne morale mère, à l’exception de celles dont l’une ou l’autre d’entre elles ou leurs filiales ont la propriété effective.
Exception
(2) La société peut détenir ses propres actions, ou des actions de sa personne morale mère, à titre de garantie dans le cadre d’opérations conclues dans le cours ordinaire d’une activité commerciale comprenant le prêt d’argent. (2) Section 31 of the Act is amended by adding the following after subsection (2):
Exception — subsidiary acquiring shares
(3) A corporation may permit any of its subsidiary bodies corporate to acquire shares of the corporation (a) in the subsidiary’s capacity as a legal representative, unless the subsidiary would have a beneficial interest in the shares; or (b) by way of security for the purposes of a transaction entered into by the subsidiary in the ordinary course of a business that includes the lending of money.
Exception — conditions precedent
(4) A corporation may permit any of its subsidiary bodies corporate to acquire shares of the corporation through the issuance of those shares by the corporation to the subsidiary body corporate if, before the acquisition takes place, the conditions prescribed for the purposes of this subsection are met.
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(5) After an acquisition has taken place under the purported authority of subsection (4), the conditions prescribed for the purposes of this subsection must be met. (6) If (a) a corporation permits a subsidiary body corporate to acquire shares of the corporation under the purported authority of subsection (4), and (b) either (i) one or more of the conditions prescribed for the purposes of subsection (4) were not met, or (ii) one or more of the conditions prescribed for the purposes of subsection (5) are not met or cease to be met, then, notwithstanding subsections 16(3) and 26(2), the prescribed consequences apply in respect of the acquisition of the shares and their issuance. 19. Section 33 of the Act is replaced by the following:
Voting shares
33. (1) A corporation holding shares in itself or in its holding body corporate shall not vote or permit those shares to be voted unless the corporation (a) holds the shares in the capacity of a legal representative; and (b) has complied with section 153.
Subsidiary body corporate
(2) A corporation shall not permit any of its subsidiary bodies corporate holding shares in the corporation to vote, or permit those shares to be voted, unless the subsidiary body corporate satisfies the requirements of subsection (1). 20. The portion of subsection 34(2) of the French version of the Act before paragraph (a) is replaced by the following:
Exception
(2) La société ne peut faire aucun paiement en vue d’acheter ou d’acquérir autrement des actions qu’elle a émises s’il existe des motifs raisonnables de croire que :
Sociétés par actions 21. (1) The portion of subsection 35(3) of the French version of the Act before paragraph (a) is replaced by the following:
Exception
(3) La société ne peut faire aucun paiement en vue d’acheter ou d’acquérir autrement, conformément au paragraphe (1), des actions qu’elle a émises s’il existe des motifs raisonnables de croire que : (2) Subparagraph 35(3)(b)(ii) of the Act is replaced by the following: (ii) the amount required for payment on a redemption or in a liquidation of all shares the holders of which have the right to be paid before the holders of the shares to be purchased or acquired, to the extent that the amount has not been included in its liabilities. 22. (1) Subsection 36(1) of the French version of the Act is replaced by the following:
Rachat des actions
36. (1) Malgré les paragraphes 34(2) ou 35(3), mais sous réserve du paragraphe (2) et de ses statuts, la société peut acheter ou racheter des actions rachetables qu’elle a émises à un prix ne dépassant pas le prix de rachat fixé par les statuts ou calculé en conformité avec ces derniers. (2) The portion of subsection 36(2) of the French version of the Act before paragraph (a) is replaced by the following:
Exception
(2) La société ne peut faire aucun paiement en vue d’acheter ou de racheter des actions rachetables qu’elle a émises s’il existe des motifs raisonnables de croire que : (3) Subparagraph 36(2)(b)(ii) of the Act is replaced by the following: (ii) the amount that would be required to pay the holders of shares that have a right to be paid, on a redemption or in a liquidation, rateably with or before the holders of the shares to be purchased or redeemed, to the extent that the amount has not been included in its liabilities.
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23. Subsection 38(6) of the Act is repealed. 24. Subsection 39(12) of the French version of the Act is replaced by the following: Acquisition et réémission de titres de créance
(12) La société qui acquiert ses titres de créance peut soit les annuler, soit, sous réserve de tout acte de fiducie ou convention applicable, les réémettre ou les donner en garantie de l’exécution de ses obligations existantes ou futures; l’acquisition, la réémission ou le fait de donner en garantie ne constitue pas l’annulation de ces titres. 25. Section 40 of the Act is replaced by the following:
Enforcement of contract to buy shares
40. (1) A corporation shall fulfil its obligations under a contract to buy shares of the corporation, except if the corporation can prove that enforcement of the contract would put it in breach of any of sections 34 to 36.
Status of contracting party
(2) Until the corporation has fulfilled all its obligations under a contract referred to in subsection (1), the other party retains the status of claimant entitled to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors and to the rights of holders of any class of shares whose rights were in priority to the rights given to the holders of the class of shares being purchased, but in priority to the rights of other shareholders.
1994, c. 24, s. 10
26. Section 44 of the Act is repealed. 27. Subsections 45(1) and (2) of the Act are replaced by the following:
Shareholder immunity
45. (1) The shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation except under subsection 38(4), 118(4) or (5), 146(5) or 226(4) or (5).
Lien on shares
(2) Subject to subsection 49(8), the articles may provide that the corporation has a lien on a share registered in the name of a shareholder or the shareholder’s personal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act.
Sociétés par actions
1991, c. 47, s. 720
28. (1) Subsection 46(1) of the Act is replaced by the following:
Sale of constrained shares by corporation
46. (1) A corporation that has constraints on the issue, transfer or ownership of its shares of any class or series may, for any of the purposes referred to in paragraphs (a) to (c), sell, under the conditions and after giving the notice that may be prescribed, as if it were the owner of the shares, any of those constrained shares that are owned, or that the directors determine in the manner that may be prescribed may be owned, contrary to the constraints in order to (a) assist the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control; (b) assist the corporation to comply with any prescribed law; or (c) attain or maintain a level of Canadian ownership specified in its articles. (2) Subsection 46(2) of the French version of the Act is replaced by the following:
Devoir des administrateurs
(2) Les administrateurs doivent choisir les actions à vendre en vertu du paragraphe (1) de bonne foi et de manière à ne pas se montrer injuste à l’égard des autres détenteurs d’actions de la catégorie ou de la série soit en leur portant préjudice soit en ne tenant pas compte de leurs intérêts. 29. The definition ‘‘fiduciary’’ in subsection 48(2) of the Act is replaced by the following:
‘‘fiduciary’’ « représentant »
‘‘fiduciary’’ means any person acting in a fiduciary capacity and includes a personal representative of a deceased person; 30. (1) Subsection 49(2) of the Act is replaced by the following:
Maximum fee for certificate by regulation
(2) A corporation may charge a fee, not exceeding the prescribed amount, for a security certificate issued in respect of a transfer.
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(2) Subsections 49(4) and (5) of the Act are replaced by the following: Signatures
(4) A security certificate shall be signed by at least one of the following persons, or the signature shall be printed or otherwise mechanically reproduced on the certificate: (a) a director or officer of the corporation; (b) a registrar, transfer agent or branch transfer agent of the corporation, or an individual on their behalf; and (c) a trustee who certifies it in accordance with a trust indenture.
1994, c. 24, par. 34(1)(c)(F)
(3) Paragraph 49(7)(b) of the Act is replaced by the following: (b) the words ‘‘Incorporated under the Canada Business Corporations Act’’ or ‘‘subject to the Canada Business Corporations Act’’;
1991, c. 47, s. 721
(4) Subsections 49(8) to (10) of the Act are replaced by the following:
Restrictions
(8) No restriction, charge, agreement or endorsement described in the following paragraphs is effective against a transferee of a security, issued by a corporation or by a body corporate before the body corporate was continued under this Act, who has no actual knowledge of the restriction, charge, agreement or endorsement unless it or a reference to it is noted conspicuously on the security certificate: (a) a restriction on transfer other than a constraint under section 174; (b) a charge in favour of the corporation; (c) a unanimous shareholder agreement; or (d) an endorsement 190(10).
Limit on restriction
under
subsection
(9) A distributing corporation, any of the issued shares of which remain outstanding and are held by more than one person, shall not have a restriction on the transfer or ownership of its shares of any class or series except by way of a constraint permitted under section 174.
2001 Notation of constraint
Sociétés par actions (10) Where the articles of a corporation constrain the issue, transfer or ownership of shares of any class or series in order to assist (a) the corporation or any of its affiliates or associates to qualify under any prescribed law of Canada or a province to receive licences, permits, grants, payments or other benefits by reason of attaining or maintaining a specified level of Canadian ownership or control, or (b) the corporation to comply with any prescribed law, the constraint, or a reference to it, shall be conspicuously noted on every security certificate of the corporation evidencing a share that is subject to the constraint where the security certificate is issued after the day on which the share becomes subject to the constraint under this Act. 31. (1) Paragraphs 51(2)(a) and (b) of the Act are replaced by the following: (a) the heir of a deceased security holder, or the personal representative of the heirs, or the personal representative of the estate of a deceased security holder; (b) a personal representative of a registered security holder who is an infant, an incompetent person or a missing person; or (2) Subsection 51(5) of the Act is replaced by the following:
Persons less than eighteen years of age
(5) If a person who is less than eighteen years of age exercises any rights of ownership in the securities of a corporation, no subsequent repudiation or avoidance is effective against the corporation. (3) Subsection 51(8) of the Act is replaced by the following:
Excepted transmissions
(8) Despite subsection (7), if the laws of the jurisdiction governing the transmission of a security of a deceased holder do not require a grant of probate or of letters of administration in respect of the transmission, a personal representative of the deceased holder is entitled, subject to any applicable law relating to the collection of taxes, to become a registered holder or to designate a registered holder, if the personal representative deposits with the corporation or its transfer agent
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(a) the security certificate that was owned by the deceased holder; and (b) reasonable proof of the governing laws, of the deceased holder’s interest in the security and of the right of the personal representative or the person designated by the personal representative to become the registered holder. 32. Paragraph 65(1)(d) of the English version of the Act is replaced by the following: (d) if a person described in paragraph (a) is an individual and is without capacity to act by reason of death, incompetence, minority, or other incapacity, the person’s fiduciary; 33. Section 75 of the French version of the Act is replaced by the following: Cas de nonresponsabilité du mandataire ou dépositaire
75. Le mandataire ou le dépositaire de bonne foi — ayant respecté les normes commerciales raisonnables si, de par sa profession, il négocie les valeurs mobilières d’une société — qui a reçu, vendu, donné en gage ou livré ces valeurs mobilières conformément aux instructions de son mandant ne peut être tenu responsable de détournement ni de violation d’une obligation de représentant, même si le mandant n’avait pas le droit d’aliéner ces valeurs mobilières. 34. Subsection 82(2) of the French version of the Act is replaced by the following:
Champ d’application
(2) La présente partie s’applique aux actes de fiducie prévoyant une émission de titres de créances par voie d’un appel public à l’épargne. 35. Section 102 of the Act is replaced by the following:
Duty to manage or supervise management
102. (1) Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation.
Number of directors
(2) A corporation shall have one or more directors but a distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall have not fewer than three
Sociétés par actions directors, at least two of whom are not officers or employees of the corporation or its affiliates. 36. Subsection 103(1) of the French version of the Act is replaced by the following:
Règlements administratifs
103. (1) Sauf disposition contraire des statuts, des règlements administratifs ou de conventions unanimes des actionnaires, les administrateurs peuvent, par résolution, prendre, modifier ou révoquer tout règlement administratif portant sur les activités commerciales ou les affaires internes de la société. 37. (1) Subsection 105(3) of the Act is replaced by the following:
Residency
(3) Subject to subsection (3.1), at least twenty-five per cent of the directors of a corporation must be resident Canadians. However, if a corporation has less than four directors, at least one director must be a resident Canadian.
Exception — Canadian ownership or control
(3.1) If a corporation engages in an activity in Canada in a prescribed business sector or if a corporation, by an Act of Parliament or by a regulation made under an Act of Parliament, is required, either individually or in order to engage in an activity in Canada in a particular business sector, to attain or maintain a specified level of Canadian ownership or control, or to restrict, or to comply with a restriction in relation to, the number of voting shares that any one shareholder may hold, own or control, then a majority of the directors of the corporation must be resident Canadians.
Clarification
(3.2) Nothing in subsection (3.1) shall be construed as reducing any requirement for a specified number or percentage of resident Canadian directors that otherwise applies to a corporation referred to in that subsection.
If only one or two directors
(3.3) If a corporation referred to in subsection (3.1) has only one or two directors, that director or one of the two directors, as the case may be, must be a resident Canadian.
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(2) The portion of subsection 105(4) of the Act before paragraph (a) is replaced by the following: Exception for holding corporation
(4) Despite subsection (3.1), not more than one third of the directors of a holding corporation referred to in that subsection need be resident Canadians if the holding corporation earns in Canada directly or through its subsidiaries less than five per cent of the gross revenues of the holding corporation and all of its subsidiary bodies corporate together as shown in 38. (1) Subsection 106(1) of the Act is replaced by the following:
Notice of directors
106. (1) At the time of sending articles of incorporation, the incorporators shall send to the Director a notice of directors in the form that the Director fixes, and the Director shall file the notice.
1994, c. 24, s. 11
(2) Subsections 106(7) and (8) of the Act are replaced by the following:
Vacancy among candidates
(7) If a meeting of shareholders fails to elect the number or the minimum number of directors required by the articles by reason of the lack of consent, disqualification, incapacity or death of any candidates, the directors elected at that meeting may exercise all the powers of the directors if the number of directors so elected constitutes a quorum.
Appointment of directors
(8) The directors may, if the articles of the corporation so provide, appoint one or more additional directors, who shall hold office for a term expiring not later than the close of the next annual meeting of shareholders, but the total number of directors so appointed may not exceed one third of the number of directors elected at the previous annual meeting of shareholders.
Election or appointment as director
(9) An individual who is elected or appointed to hold office as a director is not a director and is deemed not to have been elected or appointed to hold office as a director unless (a) he or she was present at the meeting when the election or appointment took place and he or she did not refuse to hold office as a director; or
Sociétés par actions (b) he or she was not present at the meeting when the election or appointment took place and (i) he or she consented to hold office as a director in writing before the election or appointment or within ten days after it, or (ii) he or she has acted as a director pursuant to the election or appointment. 39. Paragraphs 107(g) and (h) of the English version of the Act are replaced by the following: (g) a director may be removed from office only if the number of votes cast in favour of the director’s removal is greater than the product of the number of directors required by the articles and the number of votes cast against the motion; and (h) the number of directors required by the articles may be decreased only if the votes cast in favour of the motion to decrease the number of directors is greater than the product of the number of directors required by the articles and the number of votes cast against the motion. 40. Section 109 of the Act is amended by adding the following after subsection (3):
Resignation (or removal)
Exception
(4) If all of the directors have resigned or have been removed without replacement, a person who manages or supervises the management of the business and affairs of the corporation is deemed to be a director for the purposes of this Act. (5) Subsection (4) does not apply to (a) an officer who manages the business or affairs of the corporation under the direction or control of a shareholder or other person; (b) a lawyer, notary, accountant or other professional who participates in the management of the corporation solely for the purpose of providing professional services; or (c) a trustee in bankruptcy, receiver, receiver-manager or secured creditor who participates in the management of the corporation or exercises control over its property solely
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for the purpose of the realization of security or the administration of a bankrupt’s estate, in the case of a trustee in bankruptcy. 41. Subsections 111(1) to (3) of the Act are replaced by the following: Filling vacancy
111. (1) Despite subsection 114(3), but subject to subsections (3) and (4), a quorum of directors may fill a vacancy among the directors, except a vacancy resulting from an increase in the number or the minimum or maximum number of directors or a failure to elect the number or minimum number of directors provided for in the articles.
Calling meeting
(2) If there is not a quorum of directors or if there has been a failure to elect the number or minimum number of directors provided for in the articles, the directors then in office shall without delay call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any shareholder.
Class director
(3) If the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors and a vacancy occurs among those directors, (a) subject to subsection (4), the remaining directors elected by the holders of that class or series of shares may fill the vacancy except a vacancy resulting from an increase in the number or the minimum or maximum number of directors for that class or series or from a failure to elect the number or minimum number of directors provided for in the articles for that class or series; or (b) if there are no remaining directors any holder of shares of that class or series may call a meeting of the holders of shares of that class or series for the purpose of filling the vacancy. 42. Subsection 113(1) of the Act is replaced by the following:
2001 Notice of change of director or director’s address
Sociétés par actions 113. (1) A corporation shall, within fifteen days after (a) a change is made among its directors, or (b) it receives a notice of change of address of a director referred to in subsection (1.1), send to the Director a notice, in the form that the Director fixes, setting out the change, and the Director shall file the notice.
Director’s change of address
(1.1) A director shall, within fifteen days after changing his or her address, send the corporation a notice of that change. 43. (1) Subsections 114(3) and (4) of the Act are replaced by the following:
Canadian directors present at meetings
(3) Directors, other than directors of a corporation referred to in subsection 105(4), shall not transact business at a meeting of directors unless, (a) if the corporation is subject to subsection 105(3), at least twenty-five per cent of the directors present are resident Canadians or, if the corporation has less than four directors, at least one of the directors present is a resident Canadian; or (b) if the corporation is subject to subsection 105(3.1), a majority of directors present are resident Canadians or if the corporation has only two directors, at least one of the directors present is a resident Canadian.
Exception
(4) Despite subsection (3), directors may transact business at a meeting of directors where the number of resident Canadian directors, required under that subsection, is not present if (a) a resident Canadian director who is unable to be present approves in writing, or by telephonic, electronic or other communication facility, the business transacted at the meeting; and (b) the required number of resident Canadian directors would have been present had that director been present at the meeting. (2) Subsection 114(9) of the Act is replaced by the following:
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(9) Subject to the by-laws, a director may, in accordance with the regulations, if any, and if all the directors of the corporation consent, participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. A director participating in such a meeting by such means is deemed for the purposes of this Act to be present at that meeting. 44. (1) Subsection 115(2) of the Act is repealed. (2) Paragraphs 115(3)(b) and (c) of the Act are replaced by the following: (b) fill a vacancy among the directors or in the office of auditor, or appoint additional directors; (c) issue securities except as authorized by the directors; (c.1) issue shares of a series under section 27 except as authorized by the directors;
(3) Paragraph 115(3)(f) of the Act is replaced by the following: (f) pay a commission referred to in section 41 except as authorized by the directors; 45. Section 117 of the Act is amended by adding the following after subsection (2): Evidence
(3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
46. (1) Subsection 118(1) of the English version of the Act is replaced by the following: 4
2001 Directors’ liability
Sociétés par actions 118. (1) Directors of a corporation who vote for or consent to a resolution authorizing the issue of a share under section 25 for a consideration other than money are jointly and severally, or solidarily, liable to the corporation to make good any amount by which the consideration received is less than the fair equivalent of the money that the corporation would have received if the share had been issued for money on the date of the resolution. (2) Subsection 118(2) of the Act is replaced by the following:
Further directors’ liabilities
(2) Directors of a corporation who vote for or consent to a resolution authorizing any of the following are jointly and severally, or solidarily, liable to restore to the corporation any amounts so distributed or paid and not otherwise recovered by the corporation: (a) a purchase, redemption or other acquisition of shares contrary to section 34, 35 or 36; (b) a commission contrary to section 41; (c) a payment of a dividend contrary to section 42; (d) a payment of an indemnity contrary to section 124; or (e) a payment to a shareholder contrary to section 190 or 241. (3) Subsection 118(4) of the Act is replaced by the following:
Recovery
(4) A director liable under subsection (2) is entitled to apply to a court for an order compelling a shareholder or other recipient to pay or deliver to the director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 34, 35, 36, 41, 42, 124, 190 or 241. (4) Paragraph 118(5)(a) of the Act is replaced by the following: (a) order a shareholder or other recipient to pay or deliver to a director any money or property that was paid or distributed to the shareholder or other recipient contrary to section 34, 35, 36, 41, 42, 124, 190 or 241;
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47. (1) Subsection 119(1) of the English version of the Act is replaced by the following: Liability of directors for wages
119. (1) Directors of a corporation are jointly and severally, or solidarily, liable to employees of the corporation for all debts not exceeding six months wages payable to each such employee for services performed for the corporation while they are such directors respectively. (2) Subsection 119(5) of the French version of the Act is replaced by the following:
Subrogation de l’administrateur
(5) L’administrateur qui acquitte les dettes visées au paragraphe (1), dont l’existence est établie au cours d’une procédure soit de liquidation et de dissolution, soit de faillite, a droit à toute priorité qu’aurait pu faire valoir l’employé et, le cas échéant, est subrogé aux droits constatés dans le jugement. 48. Section 120 of the Act is replaced by the following:
Disclosure of interest
120. (1) A director or an officer of a corporation shall disclose to the corporation, in writing or by requesting to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of any interest that he or she has in a material contract or material transaction, whether made or proposed, with the corporation, if the director or officer (a) is a party to the contract or transaction; (b) is a director or an officer, or an individual acting in a similar capacity, of a party to the contract or transaction; or (c) has a material interest in a party to the contract or transaction.
Time of disclosure for director
(2) The disclosure required by subsection (1) shall be made, in the case of a director, (a) at the meeting at which a proposed contract or transaction is first considered; (b) if the director was not, at the time of the meeting referred to in paragraph (a), interested in a proposed contract or transaction, at the first meeting after he or she becomes so interested;
Sociétés par actions (c) if the director becomes interested after a contract or transaction is made, at the first meeting after he or she becomes so interested; or (d) if an individual who is interested in a contract or transaction later becomes a director, at the first meeting after he or she becomes a director.
Time of disclosure for officer
(3) The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director, (a) immediately after he or she becomes aware that the contract, transaction, proposed contract or proposed transaction is to be considered or has been considered at a meeting; (b) if the officer becomes interested after a contract or transaction is made, immediately after he or she becomes so interested; or (c) if an individual who is interested in a contract later becomes an officer, immediately after he or she becomes an officer.
Time of disclosure for director or officer
(4) If a material contract or material transaction, whether entered into or proposed, is one that, in the ordinary course of the corporation’s business, would not require approval by the directors or shareholders, a director or officer shall disclose, in writing to the corporation or request to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of his or her interest immediately after he or she becomes aware of the contract or transaction.
Voting
(5) A director required to make a disclosure under subsection (1) shall not vote on any resolution to approve the contract or transaction unless the contract or transaction unless the contract or transaction (a) relates primarily to his or her remuneration as a director, officer, employee or agent of the corporation or an affiliate; (b) is for indemnity or insurance under section 124; or (c) is with an affiliate.
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Continuing disclosure
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(6) For the purposes of this section, a general notice to the directors declaring that a director or an officer is to be regarded as interested, for any of the following reasons, in a contract or transaction made with a party, is a sufficient declaration of interest in relation to the contract or transaction: (a) the director or officer is a director or officer, or acting in a similar capacity, of a party referred to in paragraph (1)(b) or (c); (b) the director or officer has a material interest in the party; or (c) there has been a material change in the nature of the director’s or the officer’s interest in the party.
Access to disclosures
(6.1) The shareholders of the corporation may examine the portions of any minutes of meetings of directors or of committees of directors that contain disclosures under this section, and any other documents that contain those disclosures, during the usual business hours of the corporation.
Avoidance standards
(7) A contract or transaction for which disclosure is required under subsection (1) is not invalid, and the director or officer is not accountable to the corporation or its shareholders for any profit realized from the contract or transaction, because of the director’s or officer’s interest in the contract or transaction or because the director was present or was counted to determine whether a quorum existed at the meeting of directors or committee of directors that considered the contract or transaction, if (a) disclosure of the interest was made in accordance with subsections (1) to (6); (b) the directors approved the contract or transaction; and (c) the contract or transaction was reasonable and fair to the corporation when it was approved.
2001 Confirmation by shareholders
Sociétés par actions (7.1) Even if the conditions of subsection (7) are not met, a director or officer, acting honestly and in good faith, is not accountable to the corporation or to its shareholders for any profit realized from a contract or transaction for which disclosure is required under subsection (1), and the contract or transaction is not invalid by reason only of the interest of the director or officer in the contract or transaction, if (a) the contract or transaction is approved or confirmed by special resolution at a meeting of the shareholders; (b) disclosure of the interest was made to the shareholders in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and (c) the contract or transaction was reasonable and fair to the corporation when it was approved or confirmed.
Application to court
(8) If a director or an officer of a corporation fails to comply with this section, a court may, on application of the corporation or any of its shareholders, set aside the contract or transaction on any terms that it thinks fit, or require the director or officer to account to the corporation for any profit or gain realized on it, or do both those things. 49. Paragraph 121(a) of the French version of the Act is replaced by the following: a) pour les administrateurs, de créer des postes de dirigeants, d’y nommer des personnes pleinement capables, de préciser leurs fonctions et de leur déléguer le pouvoir de gérer les activités commerciales et les affaires internes de la société, sauf les exceptions prévues au paragraphe 115(3); 50. Subsection 123(4) of the Act is replaced by the following:
Defence — reasonable diligence
(4) A director is not liable under section 118 or 119, and has complied with his or her duties under subsection 122(2), if the director exercised the care, diligence and skill that a reasonably prudent person would have exer��
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cised in comparable circumstances, including reliance in good faith on (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. Defence — good faith
(5) A director has complied with his or her duties under subsection 122(1) if the director relied in good faith on (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. 51. Section 124 of the Act is replaced by the following:
Indemnification
124. (1) A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity.
Advance of costs
(2) A corporation may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1). The individual shall repay the moneys if the individual does not fulfil the conditions of subsection (3).
2001 Limitation
Sociétés par actions (3) A corporation may not indemnify an individual under subsection (1) unless the individual (a) acted honestly and in good faith with a view to the best interests of the corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful.
Indemnification in derivative actions
(4) A corporation may with the approval of a court, indemnify an individual referred to in subsection (1), or advance moneys under subsection (2), in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individual’s association with the corporation or other entity as described in subsection (1) against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfils the conditions set out in subsection (3).
Right to indemnity
(5) Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described in subsection (1), if the individual seeking indemnity (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and (b) fulfils the conditions set out in subsection (3).
Insurance
(6) A corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection (1) against any liability incurred by the individual
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(a) in the individual’s capacity as a director or officer of the corporation; or (b) in the individual’s capacity as a director or officer, or similar capacity, of another entity, if the individual acts or acted in that capacity at the corporation’s request. Application to court
(7) A corporation, an individual or an entity referred to in subsection (1) may apply to a court for an order approving an indemnity under this section and the court may so order and make any further order that it sees fit.
Notice to Director
(8) An applicant under subsection (7) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel.
Other notice
(9) On an application under subsection (7) the court may order notice to be given to any interested person and the person is entitled to appear and be heard in person or by counsel.
1994, c. 24, s. 14(F)
52. (1) The definition ‘‘distributing corporation’’ in subsection 126(1) of the Act is repealed. (2) The definitions ‘‘insider’’ and ‘‘officer’’ in subsection 126(1) of the Act are replaced by the following:
‘‘insider’’ « initié »
‘‘insider’’ means, except in section 131, (a) a director or officer of a distributing corporation; (b) a director or officer of a subsidiary of a distributing corporation; (c) a director or officer of a body corporate that enters into a business combination with a distributing corporation; and (d) a person employed or retained by a distributing corporation;
‘‘officer’’ « dirigeant »
‘‘officer’’ means the chairperson of the board of directors, the president, a vice-president, the secretary, the treasurer, the comptroller, the general counsel, the general manager, a managing director, of an entity, or any other individual who performs functions for an entity similar to those normally performed by an individual occupying any of those offices;
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(3) Subsection 126(1) of the Act is amended by adding the following in alphabetical order: ‘‘business combination’’ « regroupement d’entreprises »
‘‘business combination’’ means an acquisition of all or substantially all the property of one body corporate by another, or an amalgamation of two or more bodies corporate, or any similar reorganization between or among two or more bodies corporate; (4) Paragraph 126(2)(a) of the Act is replaced by the following: (a) a director or an officer of a body corporate that beneficially owns, directly or indirectly, shares of a distributing corporation, or that exercises control or direction over shares of the distributing corporation, or that has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the distributing corporation not including shares held by the body corporate as underwriter while those shares are in the course of a distribution to the public is deemed to be an insider of the distributing corporation; (5) Subsections 126(3) and (4) of the Act are repealed. 53. Sections 127 to 129 of the Act are repealed. 54. Sections 130 and 131 of the Act are replaced by the following:
Prohibition of short sale
130. (1) An insider shall not knowingly sell, directly or indirectly, a security of a distributing corporation or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold.
Calls and puts
(2) An insider shall not knowingly, directly or indirectly, sell a call or buy a put in respect of a security of the corporation or any of its affiliates.
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(3) Despite subsection (1), an insider may sell a security they do not own if they own another security convertible into the security sold or an option or right to acquire the security sold and, within ten days after the sale, they (a) exercise the conversion privilege, option or right and deliver the security so acquired to the purchaser; or (b) transfer the convertible security, option or right to the purchaser.
Offence
(4) An insider who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding the greater of one million dollars and three times the profit made, or to imprisonment for a term not exceeding six months or to both.
Definitions
131. (1) In this section, ‘‘insider’’ means, with respect to a corporation, (a) the corporation; (b) an affiliate of the corporation; (c) a director or an officer of the corporation or of any person described in paragraph (b), (d) or (f); (d) a person who beneficially owns, directly or indirectly, shares of the corporation or who exercises control or direction over shares of the corporation, or who has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the corporation not including shares held by the person as underwriter while those shares are in the course of a distribution to the public; (e) a person, other than a person described in paragraph (f), employed or retained by the corporation or by a person described in paragraph (f); (f) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the corporation;
Sociétés par actions (g) a person who received, while they were a person described in any of paragraphs (a) to (f), material confidential information concerning the corporation; (h) a person who receives material confidential information from a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph; and (i) a prescribed person.
Expanded definition of ‘‘security’’
(2) For the purposes of this section, the following are deemed to be a security of the corporation: (a) a put, call, option or other right or obligation to purchase or sell a security of the corporation; and (b) a security of another entity, the market price of which varies materially with the market price of the securities of the corporation.
Deemed insiders
(3) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a corporation, or to enter into a business combination with a corporation, is an insider of the corporation with respect to material confidential information obtained from the corporation and is an insider of the corporation for the purposes of subsection (6).
Deemed insiders
(3.1) An insider of a person referred to in subsection (3), and an affiliate or associate of such a person, is an insider of the corporation referred to in that subsection. Paragraphs (1)(b) to (i) apply in determining whether a person is such an insider except that references to ‘‘corporation’’ in those paragraphs are to be read as references to ‘‘person described in subsection (3)’’.
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(4) An insider who purchases or sells a security of the corporation with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that (a) the insider reasonably believed that the information had been generally disclosed; (b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or (c) the purchase or sale of the security took place in the prescribed circumstances.
Insider trading — compensation to corporation
(5) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances described in paragraph (4)(a).
Tipping — compensation to persons
(6) An insider of the corporation who discloses to another person confidential information with respect to the corporation that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate for damages any person who subsequently sells securities of the corporation to, or purchases securities of the corporation from, any person that received the information, unless the insider establishes (a) that the insider reasonably believed that the information had been generally disclosed; (b) that the information was known, or ought reasonably to have been known, by the person who alleges to have suffered the damages;
Sociétés par actions (c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (3) or (3.1); or (d) if the insider is a person described in subsection (3) or (3.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be.
Tipping — compensation to corporation
(7) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances described in paragraph (6)(a), (c) or (d).
Measure of damages
(8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing corporation, the court must consider the following: (a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and (b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security.
Liability
(9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary.
Limitation
(10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action. 55. Subsection 132(2) of the Act is replaced by the following:
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Meeting outside Canada
(2) Despite subsection (1), a meeting of shareholders of a corporation may be held at a place outside Canada if the place is specified in the articles or all the shareholders entitled to vote at the meeting agree that the meeting is to be held at that place.
Exception
(3) A shareholder who attends a meeting of shareholders held outside Canada is deemed to have agreed to it being held outside Canada except when the shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held.
Participation in meeting by electronic means
(4) Unless the by-laws otherwise provide, any person entitled to attend a meeting of shareholders may participate in the meeting, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the corporation makes available such a communication facility. A person participating in a meeting by such means is deemed for the purposes of this Act to be present at the meeting.
Meeting held by electronic means
(5) If the directors or the shareholders of a corporation call a meeting of shareholders pursuant to this Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide. 56. Section 133 of the Act is replaced by the following:
Calling annual meetings
133. (1) The directors of a corporation shall call an annual meeting of shareholders (a) not later than eighteen months after the corporation comes into existence; and (b) subsequently, not later than fifteen months after holding the last preceding annual meeting but no later than six months after the end of the corporation’s preceding financial year.
Sociétés par actions
Calling special meetings
(2) The directors of a corporation may at any time call a special meeting of shareholders.
Order to delay calling of annual meeting
(3) Despite subsection (1), the corporation may apply to the court for an order extending the time for calling an annual meeting. 57. (1) Subsections 134(1) and (2) of the Act are replaced by the following:
Fixing record date
134. (1) The directors may, within the prescribed period, fix in advance a date as the record date for the purpose of determining shareholders (a) entitled to receive payment of a dividend; (b) entitled to participate in a liquidation distribution; (c) entitled to receive notice of a meeting of shareholders; (d) entitled to vote at a meeting of shareholders; or (e) for any other purpose. (2) The portion of subsection 134(3) of the Act before paragraph (a) is replaced by the following:
No record date fixed
(2) If no record date is fixed,
(3) The portion of subsection 134(4) of the Act before paragraph (a) is replaced by the following: When record date fixed
(3) If a record date is fixed, unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice of the record date must be given within the prescribed period 58. Subsections 135(1) and (2) of the Act are replaced by the following:
�� Notice of meeting
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135. (1) Notice of the time and place of a meeting of shareholders shall be sent within the prescribed period to (a) each shareholder entitled to vote at the meeting; (b) each director; and (c) the auditor of the corporation.
Exception — not a distributing corporation
(1.1) In the case of a corporation that is not a distributing corporation, the notice may be sent within a shorter period if so specified in the articles or by-laws.
Exception — shareholders not registered
(2) A notice of a meeting is not required to be sent to shareholders who were not registered on the records of the corporation or its transfer agent on the record date determined under paragraph 134(1)(c) or subsection 134(2), but failure to receive a notice does not deprive a shareholder of the right to vote at the meeting. 59. (1) Subsection 137(1) of the Act is replaced by the following:
Proposals
137. (1) Subject to subsections (1.1) and (1.2), a registered holder or beneficial owner of shares that are entitled to be voted at an annual meeting of shareholders may (a) submit to the corporation notice of any matter that the person proposes to raise at the meeting (a ‘‘proposal’’); and (b) discuss at the meeting any matter in respect of which the person would have been entitled to submit a proposal.
Persons eligible to make proposals
(1.1) To be eligible to submit a proposal, a person (a) must be, for at least the prescribed period, the registered holder or the beneficial owner of at least the prescribed number of outstanding shares of the corporation; or (b) must have the support of persons who, in the aggregate, and including or not including the person that submits the proposal, have been, for at least the prescribed period, the registered holders, or the beneficial owners of, at least the prescribed number of outstanding shares of the corporation.
2001 Information to be provided
Sociétés par actions (1.2) A proposal submitted under paragraph (1)(a) must be accompanied by the following information: (a) the name and address of the person and of the person’s supporters, if applicable; and (b) the number of shares held or owned by the person and the person’s supporters, if applicable, and the date the shares were acquired.
Information not part of proposal
(1.3) The information provided under subsection (1.2) does not form part of the proposal or of the supporting statement referred to in subsection (3) and is not included for the purposes of the prescribed maximum word limit set out in subsection (3).
Proof may be required
(1.4) If requested by the corporation within the prescribed period, a person who submits a proposal must provide proof, within the prescribed period, that the person meets the requirements of subsection (1.1). (2) Subsection 137(3) of the Act is replaced by the following:
Supporting statement
(3) If so requested by the person who submits a proposal, the corporation shall include in the management proxy circular or attach to it a statement in support of the proposal by the person and the name and address of the person. The statement and the proposal must together not exceed the prescribed maximum number of words. (3) Subsection 137(5) of the Act is replaced by the following:
Exemptions
(5) A corporation is not required to comply with subsections (2) and (3) if (a) the proposal is not submitted to the corporation at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in connection with the previous annual meeting of shareholders; (b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers or security holders;
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(b.1) it clearly appears that the proposal does not relate in a significant way to the business or affairs of the corporation; (c) not more than the prescribed period before the receipt of a proposal, a person failed to present, in person or by proxy, at a meeting of shareholders, a proposal that at the person’s request, had been included in a management proxy circular relating to the meeting; (d) substantially the same proposal was submitted to shareholders in a management proxy circular or a dissident’s proxy circular relating to a meeting of shareholders held not more than the prescribed period before the receipt of the proposal and did not receive the prescribed minimum amount of support at the meeting; or (e) the rights conferred by this section are being abused to secure publicity.
Corporation may refuse to include proposal
(5.1) If a person who submits a proposal fails to continue to hold or own the number of shares referred to in subsection (1.1) up to and including the day of the meeting, the corporation is not required to set out in the management proxy circular, or attach to it, any proposal submitted by that person for any meeting held within the prescribed period following the date of the meeting. (4) Subsections 137(7) and (8) of the Act are replaced by the following:
Notice of refusal
(7) If a corporation refuses to include a proposal in a management proxy circular, the corporation shall, within the prescribed period after the day on which it receives the proposal or the day on which it receives the proof of ownership under subsection (1.4), as the case may be, notify in writing the person submitting the proposal of its intention to omit the proposal from the management proxy circular and of the reasons for the refusal.
2001 Person may apply to court
Sociétés par actions (8) On the application of a person submitting a proposal who claims to be aggrieved by a corporation’s refusal under subsection (7), a court may restrain the holding of the meeting to which the proposal is sought to be presented and make any further order it thinks fit.
60. Subsections 138(1) to (3) of the Act are replaced by the following: List of shareholders entitled to receive notice
138. (1) A corporation shall prepare an alphabetical list of its shareholders entitled to receive notice of a meeting, showing the number of shares held by each shareholder, (a) if a record date is fixed under paragraph 134(1)(c), not later than ten days after that date; or (b) if no record date is fixed, on the record date established under paragraph 134(2)(a).
Voting list — if record date fixed
(2) If a record date for voting is fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after the record date, an alphabetical list of shareholders entitled to vote as of the record date at a meeting of shareholders that shows the number of shares held by each shareholder.
Voting list — if no record date fixed
(3) If a record date for voting is not fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after a record date is fixed under paragraph 134(1)(c) or no later than the record date established under paragraph 134(2)(a), as the case may be, an alphabetical list of shareholders who are entitled to vote as of the record date that shows the number of shares held by each shareholder.
Entitlement to vote
(3.1) A shareholder whose name appears on a list prepared under subsection (2) or (3) is entitled to vote the shares shown opposite their name at the meeting to which the list relates. 61. Section 141 of the Act is amended by adding the following after subsection (2):
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Electronic voting
(3) Despite subsection (1), unless the bylaws otherwise provide, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the corporation makes available such a communication facility.
Voting while participating electronically
(4) Unless the by-laws otherwise provide, any person participating in a meeting of shareholders under subsection 132(4) or (5) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the corporation has made available for that purpose.
62. Section 142 of the Act is amended by adding the following after subsection (2): Evidence
(3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. 63. Paragraph 143(3)(a) of the Act is replaced by the following: (a) a record date has been fixed under paragraph 134(1)(c) and notice of it has been given under subsection 134(3); 64. Subsection 144(1) of the Act is replaced by the following:
Meeting called by court
144. (1) A court, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders or the Director, may order a meeting of a corporation to be called, held and conducted in the manner that the court directs, if (a) it is impracticable to call the meeting within the time or in the manner in which those meetings are to be called; (b) it is impracticable to conduct the meeting in the manner required by this Act or the by-laws; or
Sociétés par actions (c) the court thinks that the meeting should be called, held and conducted within the time or in the manner it directs for any other reason. 65. Paragraph 145(2)(c) of the French version of the Act is replaced by the following: c) ordonner une nouvelle élection ou une nouvelle nomination en donnant des directives pour la conduite, dans l’intervalle, des activités commerciales et des affaires internes de la société;
1994, c. 24, s. 15(F)
66. Section 146 of the Act is replaced by the following:
Pooling agreement
145.1 A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as provided in the agreement.
Unanimous shareholder agreement
146. (1) An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation is valid.
Declaration by single shareholder
(2) If a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, the declaration is deemed to be a unanimous shareholder agreement.
Constructive party
(3) A purchaser or transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement.
When no notice given
(4) If notice is not given to a purchaser or transferee of the existence of a unanimous shareholder agreement, in the manner referred to in subsection 49(8) or otherwise, the purchaser or transferee may, no later than 30 days after they become aware of the existence of the unanimous shareholder agreement, rescind the transaction by which they acquired the shares.
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Rights of shareholder
(5) To the extent that a unanimous shareholder agreement restricts the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, parties to the unanimous shareholder agreement who are given that power to manage or supervise the management of the business and affairs of the corporation have all the rights, powers, duties and liabilities of a director of the corporation, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 119, to the same extent.
Discretion of shareholders
(6) Nothing in this section prevents shareholders from fettering their discretion when exercising the powers of directors under a unanimous shareholder agreement.
67. (1) The definition ‘‘registrant’’ in section 147 of the Act is repealed. (2) The definition ‘‘ ‘‘solicit’’ or ‘‘solicitation’’ ’’ in section 147 of the Act is replaced by the following: ‘‘solicit’’ or ‘‘solicitation’’ « sollicitation »
‘‘solicit’’ or ‘‘solicitation’’ (a) includes (i) a request for a proxy whether or not accompanied by or included in a form of proxy, (ii) a request to execute or not to execute a form of proxy or to revoke a proxy, (iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and (iv) the sending of a form of proxy to a shareholder under section 149; but (b) does not include (i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
Sociétés par actions (ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, (iii) the sending by an intermediary of the documents referred to in section 153, (iv) a solicitation by a person in respect of shares of which the person is the beneficial owner, (v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision, (vi) a communication for the purposes of obtaining the number of shares required for a shareholder proposal under subsection 137(1.1), or (vii) a communication, other than a solicitation by or on behalf of the management of the corporation, that is made to shareholders, in any circumstances that may be prescribed;
(3) Section 147 of the Act is amended by adding the following in alphabetical order: ‘‘intermediary’’ « intermédiaire »
‘‘intermediary’’ means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes (a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction; (b) a securities depositary; (c) a financial institution; (d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer; (e) a trustee or administrator of a self-administered retirement savings plan, re��
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Canada Business Corporation tirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act; (f) a nominee of a person referred to in any of paragraphs (a) to (e); and (g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security.
68. Subsection 149(2) of the Act is replaced by the following: Exception
(2) The management of the corporation is not required to send a form of proxy under subsection (1) if it (a) is not a distributing corporation; and (b) has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder. 69. Section 150 of the Act is amended by adding the following after subsection (1):
Exception — solicitation to fifteen or fewer shareholders
(1.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder.
Exception — solicitation by public broadcast
(1.2) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication.
Sociétés par actions 70. Subsections 151(1) and (2) of the Act are replaced by the following:
Exemption
151. (1) On the application of an interested person, the Director may exempt the person, on any terms that the Director thinks fit, from any of the requirements of section 149 or subsection 150(1), which exemption may have retrospective effect.
Publication
(2) The Director shall set out in a publication generally available to the public the particulars of exemptions granted under this section together with the reasons for the exemptions. 71. The portion of subsection 152(3) of the Act before paragraph (a) is replaced by the following:
Show of hands
(3) Despite subsections (1) and (2), if the chairperson of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to the knowledge of the chairperson will be the decision of the meeting in relation to any matter or group of matters is less than five per cent of all the votes that might be cast by shareholders personally or through proxy at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot, 72. Section 153 of the Act is replaced by the following:
Duty of intermediary
153. (1) Shares of a corporation that are registered in the name of an intermediary or their nominee and not beneficially owned by the intermediary must not be voted unless the intermediary, without delay after receipt of the notice of the meeting, financial statements, management proxy circular, dissident’s proxy circular and any other documents other than the form of proxy sent to shareholders by or on behalf of any person for use in connection with the meeting, sends a copy of the document to the beneficial owner and, except when the intermediary has received written voting instructions from the beneficial owner, a written request for such instructions.
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Restriction on voting
(2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner.
Copies
(3) A person by or on behalf of whom a 1 solicitation is made shall provide, at the request of an intermediary, without delay, to the intermediary at the person’s expense the necessary number of copies of the documents referred to in subsection (1), other than copies of the document requesting voting instructions.
Instructions to intermediary
(4) An intermediary shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.
Beneficial owner as proxyholder
(5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.
Validity
(6) The failure of an intermediary to comply with this section does not render void any meeting of shareholders or any action taken at the meeting.
Limitation
(7) Nothing in this section gives an intermediary the right to vote shares that the intermediary is otherwise prohibited from voting.
Offence
(8) An intermediary who knowingly fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.
Officers, etc., of bodies corporate
(9) If an intermediary that is a body corporate commits an offence under subsection (8), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine
Sociétés par actions not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted.
73. The heading before section 155 of the French version of the Act is replaced by the following: PRÉSENTATION DE RENSEIGNEMENTS D’ORDRE FINANCIER 74. Section 156 of the Act is replaced by the following: Exemption
156. The Director may, on application of a corporation, authorize the corporation to omit from its financial statements any item prescribed, or to dispense with the publication of any particular financial statement prescribed, and the Director may, if the Director reasonably believes that disclosure of the information contained in the statements would be detrimental to the corporation, permit the omission on any reasonable conditions that the Director thinks fit. 75. Subsection 157(2) of the Act is replaced by the following:
Examination
(2) Shareholders of a corporation and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the corporation and may make extracts free of charge. 76. Subsection 158(1) of the Act is replaced by the following:
Approval of financial statements
158. (1) The directors of a corporation shall approve the financial statements referred to in section 155 and the approval shall be evidenced by the manual signature of one or more directors or a facsimile of the signatures reproduced in the statements.
1994, c. 24, s. 17
77. Section 160 of the Act is replaced by the following:
Copies to Director
160. (1) A distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall send a copy of the documents referred to in section 155 to the Director
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(a) not less than twenty-one days before each annual meeting of shareholders, or without delay after a resolution referred to in paragraph 142(1)(b) is signed; and (b) in any event within fifteen months after the last preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, but no later than six months after the end of the corporation’s preceding financial year. Subsidiary corporation exemption
(2) A subsidiary corporation is not required to comply with this section if (a) the financial statements of its holding corporation are in consolidated or combined form and include the accounts of the subsidiary; and (b) the consolidated or combined financial statements of the holding corporation are included in the documents sent to the Director by the holding corporation in compliance with this section.
Offence
(3) A corporation that fails to comply with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars. 78. (1) Section 161 of the Act is amended by adding the following after subsection (2):
Business partners
(2.1) For the purposes of subsection (2), a person’s business partner includes a shareholder of that person. (2) Subsection 161(5) of the French version of the Act is replaced by the following:
Dispense
(5) Le tribunal, s’il est convaincu de ne pas causer un préjudice injustifié aux actionnaires, peut, à la demande de tout intéressé, dispenser, même rétroactivement, le vérificateur de l’application du présent article, aux conditions qu’il estime indiquées. 79. Subsection 163(1) of the Act is replaced by the following:
Dispensing with auditor
163. (1) The shareholders of a corporation that is not a distributing corporation may resolve not to appoint an auditor.
Sociétés par actions 80. Subsection 168(6) of the Act is replaced by the following:
Other statements
(5.1) In the case of a proposed replacement of an auditor, whether through removal or at the end of the auditor’s term, the following rules apply with respect to other statements: (a) the corporation shall make a statement on the reasons for the proposed replacement; and (b) the proposed replacement auditor may make a statement in which he or she comments on the reasons referred to in paragraph (a).
Circulating statement
(6) The corporation shall send a copy of the statements referred to in subsections (5) and (5.1) without delay to every shareholder entitled to receive notice of a meeting referred to in subsection (1) and to the Director, unless the statement is included in or attached to a management proxy circular required by section 150. 81. Section 170 of the Act is amended by adding the following after subsection (2):
No civil liability
(3) A person who in good faith makes an oral or written communication under subsection (1) or (2) is not liable in any civil proceeding arising from having made the communication. 82. Subsection 171(2) of the Act is replaced by the following:
Exemption
(2) The Director may, on the application of a corporation, authorize the corporation to dispense with an audit committee, and the Director may, if satisfied that the shareholders will not be prejudiced, permit the corporation to dispense with an audit committee on any reasonable conditions that the Director thinks fit. 83. (1) Paragraph 173(1)(b) of the Act is replaced by the following: (b) change the province in which its registered office is situated; (2) Paragraph 173(1)(c) of the French version of the Act is replaced by the following:
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c) d’ajouter, de modifier ou de supprimer toute restriction quant à ses activités commerciales; 84. (1) The portion of subsection 174(1) of the Act before paragraph (a) is replaced by the following: Constraints on shares
174. (1) Subject to sections 176 and 177, a distributing corporation, any of the issued shares of which remain outstanding and are held by more than one person, may by special resolution amend its articles in accordance with the regulations to constrain
1991, c. 47, s. 722(2)
(2) Paragraph 174(1)(d) of the Act is replaced by the following: (d) the issue, transfer or ownership of shares of any class or series in order to assist the corporation to comply with any prescribed law. 85. Subsection 177(1) of the Act is replaced by the following:
Delivery of articles
177. (1) Subject to any revocation under subsection 173(2) or 174(5), after an amendment has been adopted under section 173, 174 or 176 articles of amendment in the form that the Director fixes shall be sent to the Director. 86. (1) Subsection 180(1) of the English version of the Act is replaced by the following:
Restated articles
180. (1) The directors may at any time, and shall when reasonably so directed by the Director, restate the articles of incorporation. (2) Subsection 180(2) of the Act is replaced by the following:
Delivery of articles
(2) Restated articles of incorporation in the form that the Director fixes shall be sent to the Director. 87. Subsections 183(3) and (4) of the Act are replaced by the following:
Right to vote
(3) Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation agreement whether or not it otherwise carries the right to vote.
Sociétés par actions
Class vote
(4) The holders of shares of a class or series of shares of each amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation agreement if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the articles, would entitle such holders to vote as a class or series under section 176.
1994, c. 24, s. 20
88. (1) Subparagraph 184(1)(b)(ii) of the Act is replaced by the following: (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating holding corporation, and (2) Subparagraph 184(2)(b)(ii) of the Act is replaced by the following: (ii) except as may be prescribed, the articles of amalgamation shall be the same as the articles of the amalgamating subsidiary corporation whose shares are not cancelled, and 89. Subsection 185(1) of the Act is replaced by the following:
Sending of articles
185. (1) Subject to subsection 183(6), after an amalgamation has been adopted under section 183 or approved under section 184, articles of amalgamation in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106.
1994, c. 24, s. 21
90. Subsection 186.1(4) of the Act is replaced by the following:
Notice deemed to be articles
(4) For the purposes of section 262, a notice referred to in subsection (3) is deemed to be articles that are in the form that the Director fixes. 91. (1) Subsection 187(3) of the Act is replaced by the following:
Articles of continuance
(3) Articles of continuance in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106.
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(2) Subsection 187(11) of the French version of the Act is replaced by the following: Autorisation des mentions relatives à la valeur nominale ou au pair
(11) Au cas où le directeur, saisi par une personne morale, décide qu’il est pratiquement impossible de supprimer la référence aux actions à valeur nominale ou au pair d’une catégorie ou d’une série que celle-ci était autorisée à émettre avant sa prorogation en vertu de la présente loi, il peut, par dérogation au paragraphe 24(1), l’autoriser à maintenir, dans ses statuts, la désignation de ces actions, même non encore émises, comme actions à valeur nominale ou au pair.
1994, c. 24, s. 22; 1998, c. 1, s. 381
92. (1) Subsections 188(1) to (2.1) of the Act are replaced by the following:
Continuance — other jurisdictions
188. (1) Subject to subsection (10), a corporation may apply to the appropriate official or public body of another jurisdiction requesting that the corporation be continued as if it had been incorporated under the laws of that other jurisdiction if the corporation (a) is authorized by the shareholders in accordance with this section to make the application; and (b) establishes to the satisfaction of the Director that its proposed continuance in the other jurisdiction will not adversely affect creditors or shareholders of the corporation.
Continuance — other federal Acts
(2) A corporation that is authorized by the shareholders in accordance with this section may apply to the appropriate Minister for its continuance under the Bank Act, the Canada Cooperatives Act, the Insurance Companies Act or the Trust and Loan Companies Act.
(2) Subsection 188(8) of the Act is replaced by the following: Notice deemed to be articles
(8) For the purposes of section 262, a notice referred to in subsection (7) is deemed to be articles that are in the form that the Director fixes.
Sociétés par actions 93. (1) The portion of subsection 189(1) of the Act before paragraph (a) is replaced by the following:
Borrowing powers
189. (1) Unless the articles or by-laws of or a unanimous shareholder agreement relating to a corporation otherwise provide, the directors of a corporation may, without authorization of the shareholders, (2) Paragraphs 189(1)(b) and (c) of the Act are replaced by the following: (b) issue, reissue, sell, pledge or hypothecate debt obligations of the corporation; (c) give a guarantee on behalf of the corporation to secure performance of an obligation of any person; and 94. (1) Paragraph 190(1)(b) of the French version of the Act is replaced by the following: b) de modifier ses statuts, conformément à l’article 173, afin d’ajouter, de modifier ou de supprimer toute restriction à ses activités commerciales; (2) Subsection 190(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (d), by adding the word ‘‘or’’ at the end of paragraph (e) and by adding the following after paragraph (e): (f) carry out a going-private transaction or a squeeze-out transaction. (3) Section 190 of the Act is amended by adding the following after subsection (2):
If one class of shares
(2.1) The right to dissent described in subsection (2) applies even if there is only one class of shares. 95. Subsection 191(4) of the Act is replaced by the following:
Articles of reorganization
(4) After an order referred to in subsection (1) has been made, articles of reorganization in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable.
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96. (1) Paragraph 192(1)(f) of the Act is replaced by the following: (f) an exchange of securities of a corporation for property, money or other securities of the corporation or property, money or securities of another body corporate; (f.1) a going-private transaction or a squeeze-out transaction in relation to a corporation; (2) Subsection 192(3) of the French version of the Act is replaced by the following: Demande d’approbation au tribunal
(3) Lorsqu’il est pratiquement impossible pour la société qui n’est pas insolvable d’opérer, en vertu d’une autre disposition de la présente loi, une modification de structure équivalente à un arrangement, elle peut demander au tribunal d’approuver, par ordonnance, l’arrangement qu’elle propose. (3) Subsection 192(6) of the Act is replaced by the following:
Articles of arrangement
(6) After an order referred to in paragraph (4)(e) has been made, articles of arrangement in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable. 97. The heading before section 193 and sections 193 to 205 of the Act are replaced by the following: GOING-PRIVATE TRANSACTIONS AND SQUEEZE-OUT TRANSACTIONS
Going-private transactions
193. A corporation may carry out a goingprivate transaction. However, if there are any applicable provincial securities laws, a corporation may not carry out a going-private transaction unless the corporation complies with those laws.
Squeeze-out transactions
194. A corporation may not carry out a squeeze-out transaction unless, in addition to any approval by holders of shares required by or under this Act or the articles of the corporation, the transaction is approved by ordinary resolution of the holders of each class of shares that are affected by the transaction, voting separately, whether or not the shares otherwise carry the right to vote. However, the
Sociétés par actions following do not have the right to vote on the resolution: (a) affiliates of the corporation; and (b) holders of shares that would, following the squeeze-out transaction, be entitled to consideration of greater value or to superior rights or privileges than those available to other holders of shares of the same class. 98. The Act is amended by adding the following before section 206: PART XVII COMPULSORY AND COMPELLED ACQUISITIONS 99. (1) The portion of subsection 206(1) of the Act before the definition ‘‘dissenting offeree’’ is replaced by the following:
Definitions
206. (1) The definitions in this subsection apply in this Part. (2) The definition ‘‘take-over bid’’ in subsection 206(1) of the Act is replaced by the following:
‘‘take-over bid’’ « offre d’achat visant à la mainmise »
‘‘take-over bid’’ means an offer made by an offeror to shareholders of a distributing corporation at approximately the same time to acquire all of the shares of a class of issued shares, and includes an offer made by a distributing corporation to repurchase all of the shares of a class of its shares. (3) Subsection 206(1) of the Act is amended by adding the following in alphabetical order:
‘‘offer’’ « pollicitation »
‘‘offer’’ includes an invitation to make an offer.
‘‘offeree’’ « pollicité »
‘‘offeree’’ means a person to whom a takeover bid is made.
‘‘offeree corporation’’ « société pollicitée »
‘‘offeree corporation’’ means a distributing corporation whose shares are the object of a take-over bid.
‘‘offeror’’ « pollicitant »
‘‘offeror’’ means a person, other than an agent, who makes a take-over bid, and includes two or more persons who, directly or indirectly, (a) make take-over bids jointly or in concert; or
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Canada Business Corporation (b) intend to exercise jointly or in concert voting rights attached to shares for which a take-over bid is made.
‘‘share’’ « action »
‘‘share’’ means a share, with or without voting rights, and includes (a) a security currently convertible into such a share; and (b) currently exercisable options and rights to acquire such a share or such a convertible security. (4) Paragraph 206(3)(a) of the Act is replaced by the following: (a) the offerees holding not less than ninety per cent of the shares to which the bid relates accepted the take-over bid; (5) Paragraph 206(3)(d) of the Act is replaced by the following: (d) a dissenting offeree who does not notify the offeror in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the offeror on the same terms that the offeror acquired the shares from the offerees who accepted the takeover bid; and (6) Subsections 206(5) and (6) of the Act are replaced by the following:
Share certificate
(5) A dissenting offeree to whom an offeror’s notice is sent under subsection (3) shall, within twenty days after receiving the notice, (a) send the share certificates of the class of shares to which the take-over bid relates to the offeree corporation; and (b) elect (i) to transfer the shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or (ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within those twenty days.
Deemed election
(5.1) A dissenting offeree who does not notify the offeror in accordance with subparagraph (5)(b)(ii) is deemed to have elected to transfer the shares to the offeror on the same terms on which the offeror acquired the shares
Sociétés par actions from the offerees who accepted the take-over bid.
Payment
(6) Within twenty days after the offeror sends an offeror’s notice under subsection (3), the offeror shall pay or transfer to the offeree corporation the amount of money or other consideration that the offeror would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (5)(b)(i). (7) Section 206 of the Act is amended by adding the following after subsection (7):
When corporation is offeror
(7.1) A corporation that is an offeror making a take-over bid to repurchase all of the shares of a class of its shares is deemed to hold in trust for the dissenting shareholders the money and other consideration that it would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (5)(b)(i), and the corporation shall, within twenty days after a notice is sent under subsection (3), deposit the money in a separate account in a bank or other body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board, and shall place the other consideration in the custody of a bank or such other body corporate. (8) Subsections 206(8) and (9) of the Act are replaced by the following:
Duty of offeree corporation
(8) Within thirty days after the offeror sends a notice under subsection (3), the offeree corporation shall (a) if the payment or transfer required by subsection (6) is made, issue to the offeror a share certificate in respect of the shares that were held by dissenting offerees; (b) give to each dissenting offeree who elects to accept the take-over bid terms under subparagraph (5)(b)(i) and who sends share certificates as required by paragraph (5)(a) the money or other consideration to which the offeree is entitled, disregarding fractional shares, which may be paid for in money; and
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(c) if the payment or transfer required by subsection (6) is made and the money or other consideration is deposited as required by subsection (7) or (7.1), send to each dissenting shareholder who has not sent share certificates as required by paragraph (5)(a) a notice stating that (i) the dissenting shareholder’s shares have been cancelled, (ii) the offeree corporation or some designated person holds in trust for the dissenting shareholder the money or other consideration to which that shareholder is entitled as payment for or in exchange for the shares, and (iii) the offeree corporation will, subject to subsections (9) to (18), send that money or other consideration to that shareholder without delay after receiving the shares. Application to court
(9) If a dissenting offeree has elected to demand payment of the fair value of the shares under subparagraph (5)(b)(ii), the offeror may, within twenty days after it has paid the money or transferred the other consideration under subsection (6), apply to a court to fix the fair value of the shares of that dissenting offeree. (9) Subsection 206(13) of the French version of the Act is replaced by the following:
Absence de cautionnement pour frais
(13) Dans le cadre d’une demande visée aux paragraphes (9) ou (10), les pollicités dissidents ne sont pas tenus de fournir de cautionnement pour les frais. (10) Paragraph 206(14)(a) of the Act is replaced by the following: (a) all dissenting offerees referred to in subparagraph (5)(b)(ii) whose shares have not been acquired by the offeror shall be joined as parties and are bound by the decision of the court; and (11) Paragraph 206(18)(a) of the Act is replaced by the following: (a) fix the amount of money or other consideration that is required to be held in trust under subsection (7) or (7.1);
Sociétés par actions 100. The Act is amended by adding the following after section 206:
Obligation to acquire shares
206.1 (1) If a shareholder holding shares of a distributing corporation does not receive an offeror’s notice under subsection 206(3), the shareholder may (a) within ninety days after the date of termination of the take-over bid, or (b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of (i) the date of termination of the takeover bid, and (ii) the date on which the shareholder learned of the take-over bid, require the offeror to acquire those shares.
Conditions
(2) If a shareholder requires the offeror to acquire shares under subsection (1), the offeror shall acquire the shares on the same terms under which the offeror acquired or will acquire the shares of the offerees who accepted the take-over bid.
1992, c. 27, par. 90(1)(h)
101. (1) Subsection 208(1) of the Act is replaced by the following:
Application of Part
208. (1) This Part, other than sections 209 and 212, does not apply to a corporation that is an insolvent person or a bankrupt as those terms are defined in subsection 2(1) of the Bankruptcy and Insolvency Act.
1992, c. 27, par. 90(1)(h)
(2) Subsection 208(2) of the English version of the Act is replaced by the following:
Staying proceedings
(2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve a corporation shall be stayed if the corporation is at any time found, in a proceeding under the Bankruptcy and Insolvency Act, to be an insolvent person as defined in subsection 2(1) of thatAct.
102. Subsections 209(2) to (4) of the Act 4 are replaced by the following: Articles of revival
(2) Articles of revival in the form that the Director fixes shall be sent to the Director.
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(3) On receipt of articles of revival, the Director shall issue a certificate of revival in accordance with section 262, if (a) the body corporate has fulfilled all conditions precedent that the Director considers reasonable; and (b) there is no valid reason for refusing to issue the certificate.
Date of revival
(3.1) A body corporate is revived as a corporation under this Act on the date shown on the certificate of revival.
Rights preserved
(4) Subject to any reasonable terms that may be imposed by the Director, to the rights acquired by any person after its dissolution and to any changes to the internal affairs of the corporation after its dissolution, the revived corporation is, in the same manner and to the same extent as if it had not been dissolved, (a) restored to its previous position in law, including the restoration of any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and (b) liable for the obligations that it would have had if it had not been dissolved whether they arise before its dissolution or after its dissolution and before its revival.
Legal actions
(5) Any legal action respecting the affairs of a revived corporation taken between the time of its dissolution and its revival is valid and effective.
Definition of ‘‘interested person’’
(6) In this section, ‘‘interested person’’ includes (a) a shareholder, a director, an officer, an employee and a creditor of the dissolved corporation; (b) a person who has a contractual relationship with the dissolved corporation; (c) a person who, although at the time of dissolution of the corporation was not a person described in paragraph (a), would be such a person if a certificate of revival is issued under this section; and (d) a trustee in bankruptcy for the dissolved corporation.
Sociétés par actions 103. (1) Paragraph 210(3)(b) of the French version of the Act is replaced by the following: b) d’autre part, la société ait effectué une répartition de biens et un règlement de dettes avant d’envoyer les clauses de dissolution au directeur conformément au paragraphe (4). (2) Subsection 210(4) of the Act is replaced by the following:
Articles of dissolution
(4) Articles of dissolution in the form that the Director fixes shall be sent to the Director. 104. (1) Subsection 211(4) of the Act is replaced by the following:
Statement of intent to dissolve
(4) A statement of intent to dissolve in the form that the Director fixes shall be sent to the Director. (2) Paragraph 211(7)(b) of the Act is replaced by the following: (b) without delay take reasonable steps to give notice of it in each province in Canada where the corporation was carrying on business at the time it sent the statement of intent to dissolve to the Director; (3) Subsection 211(10) of the Act is replaced by the following:
Revocation
(10) At any time after issue of a certificate of intent to dissolve and before issue of a certificate of dissolution, a certificate of intent to dissolve may be revoked by sending to the Director a statement of revocation of intent to dissolve in the form that the Director fixes, if such revocation is approved in the same manner as the resolution under subsection (3). (4) Subsection 211(14) of the Act is replaced by the following:
Articles of dissolution
(14) Articles of dissolution in the form that the Director fixes shall be sent to the Director.
1994, c. 24, s. 25
105. (1) Subsection 212(1) of the Act is replaced by the following:
Dissolution by Director
212. (1) Subject to subsections (2) and (3), the Director may (a) dissolve a corporation by issuing a certificate of dissolution under this section if the corporation
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Canada Business Corporation (i) has not commenced business within three years after the date shown in its certificate of incorporation, (ii) has not carried on its business for three consecutive years, (iii) is in default for a period of one year in sending to the Director any fee, notice or document required by this Act, or (iv) does not have any directors or is in the situation described in subsection 109(4); or
(b) apply to a court for an order dissolving the corporation, in which case section 217 applies. 1994, c. 24, s. 25
(2) Paragraph 212(2)(b) of the Act is replaced by the following: (b) published notice of that decision in a publication generally available to the public. (3) Subsection 212(3) of the Act is replaced by the following:
Certificate of dissolution
(3) Unless cause to the contrary has been shown or an order has been made by a court under section 246, the Director may, after the expiration of the period referred to in subsection (2), issue a certificate of dissolution in the form that the Director fixes.
Exception — non-payment of incorporation fee
(3.1) Despite anything in this section, the Director may dissolve a corporation by issuing a certificate of dissolution if the required fee for the issuance of a certificate of incorporation has not been paid. 106. Subsection 213(4) of the Act is replaced by the following:
Certificate
(4) On receipt of an order under this section, section 212 or 214, the Director shall (a) if the order is to dissolve the corporation, issue a certificate of dissolution in the form that the Director fixes; or (b) if the order is to liquidate and dissolve the corporation under the supervision of the court, issue a certificate of intent to dissolve in the form that the Director fixes and publish notice of the order in a publication generally available to the public.
Sociétés par actions 107. (1) The portion of paragraph 214(1)(a) of the French version of the Act before subparagraph (i) is replaced by the following: a) il constate qu’elle abuse des droits de tout détenteur de valeurs mobilières, créancier, administrateur ou dirigeant, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts : (2) Subparagraph 214(1)(a)(ii) of the French version of the Act is replaced by the following: (ii) soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes, 108. Paragraph 217(b) of the Act is replaced by the following: (b) an order appointing a liquidator, with or without security, fixing the liquidator’s remuneration and replacing a liquidator; 109. The portion of paragraph 221(b) of the Act before subparagraph (i) is replaced by the following: (b) without delay publish notice by insertion once a week for two consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and take reasonable steps to give notice of the appointment in each province where the corporation carries on business, requiring any person 110. Subsection 222(2) of the Act is replaced by the following:
Due diligence
(2) A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on (a) financial statements of the corporation represented to the liquidator by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or (b) a report of a person whose profession lends credibility to a statement made by the professional person.
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111. Subsection 223(4) of the English version of the Act is replaced by the following: Publication
(4) A liquidator shall give notice of their intention to make an application under subsection (2) to the Director, to each inspector appointed under section 217, to each shareholder and to any person who provided a security or fidelity bond for the liquidation, and shall publish the notice in a newspaper published or distributed in the place where the corporation has its registered office, or as otherwise directed by the court. 112. Subsection 226(1) of the Act is replaced by the following:
Definition of ‘‘shareholder’’
226. (1) In this section, ‘‘shareholder’’ includes the heirs and personal representatives of a shareholder. 113. (1) Subsections 229(1) and (2) of the French version of the Act are replaced by the following:
Enquête
229. (1) Tout détenteur de valeurs mobilières ou le directeur peut demander au tribunal du ressort du siège social de la société, ex parte ou après avoir donné l’avis que celui-ci peut exiger, d’ordonner la tenue d’une enquête sur la société et sur toute société du même groupe.
Motifs
(2) Le tribunal peut ordonner la tenue de l’enquête demandée conformément au paragraphe (1), s’il lui paraît établi, selon le cas : a) que la société ou des sociétés de son groupe exercent ou ont exercé leurs activités commerciales avec une intention de fraude; b) que la société ou toute autre société de son groupe, soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes, soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs, abuse des droits des détenteurs de valeurs mobilières ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts; c) que la constitution ou la dissolution soit de la société soit des sociétés de son groupe répond à un but frauduleux ou illégal;
Sociétés par actions d) que des personnes ont commis des actes frauduleux ou malhonnêtes en participant à la constitution soit de la société soit de sociétés du même groupe, ou dans la conduite de leurs activités commerciales ou de leurs affaires internes. (2) Subsection 229(4) of the French version of the Act is replaced by the following:
Pas de cautionnement pour frais
(4) La personne qui intente une action en vertu du présent article n’est pas tenue de fournir de cautionnement pour les frais. 114. (1) The portion of subsection 235(1) of the French version of the Act before paragraph (a) is replaced by the following:
Renseignements concernant la propriété et le contrôle des valeurs mobilières
235. (1) S’il est convaincu, pour l’application des parties XI, XIII ou XVII ou de tout règlement d’application de l’article 174, de la nécessité d’enquêter sur la propriété ou le contrôle de valeurs mobilières d’une société ou de sociétés de son groupe, le directeur peut demander à toute personne dont il a de bonnes raisons de croire qu’elle détient ou a détenu un droit sur ces valeurs, ou agit ou a agi pour le compte de telle personne de lui fournir, ou à la personne qu’il désigne : (2) The portion of subsection 235(3) of the Act before paragraph (a) is replaced by the following:
Publication
(3) The Director shall publish in a publication generally available to the public the particulars of information obtained by the Director under this section, if the particulars 115. The Act is amended by adding the following after section 237: PART XIX.1 APPORTIONING AWARD OF DAMAGES Interpretation and Application
Definitions
237.1 The definitions in this section apply in this Part.
‘‘financial interest’’ « intérêt financier »
‘‘financial interest’’, with respect to a corporation, includes (a) a security;
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‘‘financial loss’’ « perte financière »
‘‘financial loss’’ means a financial loss arising out of an error, omission or misstatement in financial information concerning a corporation that is required under this Act or the regulations.
‘‘third party’’ Version anglaise seulement
‘‘third party’’ includes any subsequent party that is joined in proceedings before a court.
Application of Part
237.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss.
Non-application of Part
(2) This Part does not apply to an award of damages to any of the following plaintiffs: (a) Her Majesty in right of Canada or of a province;
Sociétés par actions (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments; (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or (d) an unsecured creditor in respect of goods or services that the creditor provided to a corporation.
Apportionment of Damages Degree of responsibility
237.3 (1) Subject to this section and sections 237.4 to 237.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss.
Uncollectable amounts
(2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable.
Reallocation
(3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss.
Maximum amount
(4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.
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Exception — fraud
237.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly.
Contribution
(2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss. Joint and Several, or Solidary, Liability
Individual or personal body corporate
237.5 (1) Defendants and third parties referred to in subsection 237.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who (a) had a financial interest in a corporation on the day that an error, omission or misstatement in financial information concerning the corporation occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and (b) has established that the value of the plaintiff’s total financial interest in the corporation was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph (a).
Definition of ‘‘personal body corporate’’
(2) In subsection (1), ‘‘personal body corporate’’ means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.
Sociétés par actions
Exception
(3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.
Equitable grounds
237.6 (1) If the value of the plaintiff’s total financial interest referred to in subsection 237.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so.
Factors
(2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable.
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
Value of security
237.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 237.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3), (a) the closing price of that class of security; (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or (c) if the security was not traded, the average of the bid and ask prices of that class of security.
Court may adjust value
(2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so.
Valuation day
(3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired.
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Definition of ‘‘organized market’’
(4) In this section, ‘‘organized market’’ means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.
Court determines value
237.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market.
Factors
(2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1).
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
Application to determine value
237.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff’s financial interest for the purpose of subsection 237.5(1). 116. Paragraph 239(2)(a) of the Act is replaced by the following: (a) the complainant has given notice to the directors of the corporation or its subsidiary of the complainant’s intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court, if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action; 117. (1) The portion of subsection 241(2) of the French version of the Act before paragraph (a) is replaced by the following:
Motifs
(2) Le tribunal saisi d’une demande visée au paragraphe (1) peut, par ordonnance, redresser la situation provoquée par la société ou l’une des personnes morales de son groupe qui, à son avis, abuse des droits des détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants, ou, se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :
Sociétés par actions (2) Paragraph 241(2)(b) of the French version of the Act is replaced by the following: b) soit par la façon dont elle conduit ses activités commerciales ou ses affaires internes; 118. Subsection 242(3) of the French version of the Act is replaced by the following:
Absence de cautionnement
(3) Les plaignants ne sont pas tenus de fournir de cautionnement pour les frais des demandes, actions ou interventions visées à la présente partie.
1999, c. 31, s. 65
119. Section 246 of the Act is replaced by the following:
Appeal from Director’s decision
246. A person who feels aggrieved by a decision of the Director referred to in any of paragraphs (a) to (g) may apply to a court for an order, including an order requiring the Director to change the decision (a) to refuse to file in the form submitted any articles or other document required by this Act to be filed; (b) to give a name, to change or revoke a name, or to refuse to reserve, accept, change or revoke a name under section 12; (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations; (d) to refuse under subsection 187(11) to permit a continued reference to shares having a nominal or par value; (e) to refuse to issue a certificate of discontinuance under section 188 or a certificate attesting that as of a certain date the corporation exists under subsection 263.1(2); (f) to issue, or to refuse to issue, a certificate of revival under section 209, or the decision with respect to the terms for revival imposed by the Director; (f.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 265; (f.2) to cancel, or to refuse to cancel, the articles and related certificate under section 265.1; or
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(g) to dissolve a corporation under section 212. The Court may make any order it thinks fit.
120. Section 249 of the Act is replaced by the following: Appeal of final order
249. (1) An appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act.
Appeal with leave
(2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court. 121. The Act is amended by adding the following after section 252: PART XX.1 DOCUMENTS IN ELECTRONIC OR OTHER FORM
Definitions
252.1 The definitions in this section apply in this Part.
‘‘electronic document’’ « document électronique »
‘‘electronic document’’ means, except in section 252.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means.
‘‘information system’’ « système d’information »
‘‘information system’’ means a system used to generate, send, receive, store, or otherwise process an electronic document.
Application
252.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.
Sociétés par actions
Use not mandatory
252.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document.
Consent and other requirements
(2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and (b) the electronic document is provided to the designated information system, unless otherwise prescribed.
Revocation of consent
(3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.
Creation and provision of information
252.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided, is satisfied by the creation or provision of an electronic document if (a) the by-laws or the articles of the corporation do not provide otherwise; and (b) the regulations, if any, have been complied with.
Creation of information in writing
252.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 252.4, (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with.
Provision of information in writing
(2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if,
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in addition to the conditions set out in section 252.4, (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with. Copies
(3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document.
Registered mail
(4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.
Statutory declarations and affidavits
252.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature; (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and (c) the requirements of sections 252.3 to 252.5 are complied with.
Definitions
(2) For the purposes of this section, ‘‘electronic document’’ and ‘‘secure electronic signature’’ have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
Clarification
(3) For the purpose of complying with paragraph (1)(c), the references to an ‘‘electronic document’’ in sections 252.3 to 252.5 are to be read as references to an ‘‘electronic document’’ as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
2001 Signatures
Sociétés par actions 252.7 A requirement under this Act or the regulations for a signature or for a document to be executed, except with respect to a statutory declaration or an affidavit, is satisfied if, in relation to an electronic document, the prescribed requirements pertaining to this section, if any, are met and if the signature results from the application by a person of a technology or a process that permits the following to be proven: (a) the signature resulting from the use by a person of the technology or process is unique to the person; (b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and (c) the technology or process can be used to identify the person using the technology or process. 122. Subsection 253(4) of the Act is replaced by the following:
Undelivered notices
(4) If a corporation sends a notice or document to a shareholder in accordance with subsection (1) and the notice or document is returned on two consecutive occasions because the shareholder cannot be found, the corporation is not required to send any further notices or documents to the shareholder until the shareholder informs the corporation in writing of the shareholder’s new address. 123. Subsection 257(3) of the French version of the Act is replaced by the following:
Certificat de valeurs mobilières
(3) Les mentions du registre des valeurs mobilières et les certificats de valeurs mobilières émis par la société établissent, à défaut de preuve contraire, que les personnes au nom desquelles les valeurs mobilières sont inscrites sont propriétaires des valeurs mentionnées dans le registre ou sur les certificats.
1994, c. 24, s. 26
124. Sections 258.1 and 258.2 of the Act are replaced by the following:
Content and form of notices and documents
258.1 The Director may establish the requirements for the content and fix the form, including electronic or other forms, of notices and documents sent to or issued by the Director pursuant to this Act, including
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(a) the notices and documents that may be transmitted in electronic or other form; (b) the persons or classes of persons who may transmit the notices and documents; (c) their signature in electronic or other form, or their execution, adoption or authorization in a manner that is to have the same effect for the purposes of this Act as their signature; (d) the time and circumstances when electronic notices and documents are to be considered to be sent or received, and the place where they are considered to have been sent or received; and (e) any matter necessary for the purposes of the application of this section. Exemption
258.2 In the prescribed circumstances, the Director may, on any conditions that the Director considers appropriate, exempt from the application of any provision of this Act requiring notices or documents to be sent to the Director any notices or documents or classes of notices or documents containing information similar to that contained in notices or documents required to be made public pursuant to any other Act of Parliament or to any Act of the legislature of a province as the Director specifies.
1994, c. 24, s. 27
125. Section 261 of the Act is replaced by the following:
Regulations
261. (1) The Governor in Council may make regulations (a) prescribing any matter required or authorized by this Act to be prescribed; (a.1) defining anything that, by this Act, is to be defined by regulation; (b) requiring the payment of a fee in respect of the filing, examination or copying of any document, or in respect of any action that the Director is required or authorized to take under this Act, and prescribing the amount of the fee or the manner of determining the fee; (c) respecting the payment of fees, including the time when and the manner in which the fees are to be paid, the additional fees that may be charged for the late payment of
Sociétés par actions fees and the circumstances in which any fees previously paid may be refunded in whole or in part; (c.1) prescribing, for the purposes of subsection 137(1.1), a manner of determining the number of shares required for a person to be eligible to submit a proposal, including the time and manner of determining a value or percentage of the outstanding shares of the corporation; (d) prescribing, for the purposes of paragraph 137(5)(d), the minimum amount of support required in relation to the number of times the shareholder has submitted substantially the same proposal within the prescribed period; (e) prescribing rules with respect to exemptions permitted by this Act; (f) prescribing that, for the purpose of paragraph 155(1)(a), the standards as they exist from time to time, of an accounting body named in the regulations shall be followed; (g) prescribing any matter necessary for the purposes of the application of Part XX.1, including the time and circumstances when an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received; (h) prescribing the manner of, and conditions for, participating in a meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting; and (i) prescribing, for the purposes of subsection 141(3), the manner of, and conditions for, voting at a meeting of shareholders by means of a telephonic, electronic or other communication facility.
Incorporation by reference
(2) The regulations may incorporate any material by reference regardless of its source and either as it exists on a particular date or as amended from time to time.
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(3) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference. 126. The Act is amended by adding the following after section 261:
Fee to be paid before service performed
261.1 The fee in respect of the filing, examination, or copying of any document, or in respect of any action that the Director is required or authorized to take, shall be paid to the Director on the filing, examination, or copying or before the Director takes the action in respect of which the fee is payable.
1994, c. 24, s. 28(1)
127. (1) The portion of paragraph 262(2)(b) of the Act before subparagraph (i) is replaced by the following: (b) on receiving the articles or statement in the form that the Director fixes, any other required documents and the required fees, the Director shall
1994, c. 24, s. 28(1)
(2) Subparagraphs 262(2)(b)(iv) and (v) of the Act are replaced by the following: (iv) send the certificate, or a copy, image or photographic, electronic or other reproduction of the certificate, to the corporation or its agent, and (v) publish a notice of the issuance of the certificate in a publication generally available to the public.
1994, c. 24, s. 29
128. Section 262.1 of the Act is renumbered as subsection 262.1(1) and is amended by adding the following:
Authority to sign notices
(2) The notices referred to in subsections 19(2) and (4) and subsections 106(1) and 113(1), and the annual return referred to in section 263, may be signed by any individual who has the relevant knowledge of the corporation and who is authorized to do so by the directors, or, in the case of the notice referred to in subsection 106(1), the incorporators.
Execution of documents
(3) Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed
Sociétés par actions or signed by one or more of the individuals. The documents, when duly executed or signed by all individuals required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of this Act. 129. Section 263 of the Act is replaced by the following:
Annual return
263. Every corporation shall, on the prescribed date, send to the Director an annual return in the form that the Director fixes and the Director shall file it.
Certificate
263.1 (1) The Director may provide any person with a certificate stating that a corporation (a) has sent to the Director a document required to be sent under this Act; (b) has paid all required fees; or (c) exists as of a certain date.
Director may refuse to issue certificate of existence
(2) For greater certainty, the Director may refuse to issue a certificate described in paragraph (1)(c) if the Director has knowledge that the corporation is in default of sending a document required to be sent under this Act or is in default of paying a required fee. 130. Sections 265 and 266 of the Act are replaced by the following:
Corrections at request of Director
265. (1) If there is an error in articles, a notice, a certificate or other document, the directors or shareholders of the corporation shall, on the request of the Director, pass the resolutions and send to the Director the documents required to comply with this Act, and take such other steps as the Director may reasonably require so that the Director may correct the document.
No prejudice
(2) Before proceeding under subsection (1), the Director must be satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation.
Corrections at the request of the corporation
(3) The Director may, at the request of the corporation or of any other interested person, accept a correction to any of the documents referred to in subsection (1) if (a) the correction is approved by the directors of the corporation, unless the error is obvious or was made by the Director; and
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(b) the Director is satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation and that the correction reflects the original intention of the corporation or the incorporators, as the case may be.
Application to court
(4) If, in the view of the Director, of the corporation or of any interested person who wishes a correction, a correction to any of the documents referred to in subsection (1) would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the document be corrected and for an order determining the rights of the shareholders or creditors.
Notice to Director
(5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.
Director may require surrender of document
(6) The Director may demand the surrender of the original document, and may issue a corrected certificate or file the corrected articles, notice or other document.
Date of corrected document
(7) A corrected document shall bear the date of the document it replaces unless (a) the correction is made with respect to the date of the document, in which case the document shall bear the corrected date; or (b) the court decides otherwise.
Notice
(8) If a corrected certificate materially amends the terms of the original certificate, the Director shall without delay give notice of the correction in a publication generally available to the public.
Cancellation of articles by Director
265.1 (1) In the prescribed circumstances, the Director may cancel the articles and related certificate of a corporation.
No prejudice
(2) Before proceeding under subsection (1), the Director must be satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation.
2001 Request to Director to cancel articles
Sociétés par actions (3) In the prescribed circumstances, the Director may, at the request of a corporation or of any other interested person, cancel the articles and related certificate of the corporation if (a) the cancellation is approved by the directors of the corporation; and (b) the Director is satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation and that the cancellation reflects the original intention of the corporation or the incorporators, as the case may be.
Application to court
(4) If, in the view of the Director, of the corporation or of any interested person who wishes a cancellation, a cancellation of articles and a related certificate would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the articles and certificate be cancelled and for an order determining the rights of the shareholders or creditors.
Notice to Director
(5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.
Return of certificate
(6) The Director may demand the surrender of a cancelled certificate.
Inspection
266. (1) A person who has paid the required fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent to the Director under subsection 230(2), and to make copies of or extracts from it.
Copies
(2) The Director shall furnish any person with a copy, extract, certified copy or certified extract of a document required by this Act or the regulations to be sent to the Director, except a report sent under subsection 230(2).
131. Subsection 267(3) of the Act is replaced by the following:
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Retention of records
(3) The Director is not required to produce any document, other than a certificate and attached articles or statement filed under section 262, after the expiration of the prescribed period.
1994, c. 24, s. 31
132. Subsection 267.1 of the Act is replaced by the following:
Form of publication
267.1 Information or notices required by this Act to be summarized in a publication generally available to the public or published by the Director may be made available to the public or published by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information or notice in intelligible form within a reasonable time.
1991, c. 45, s. 556, c. 46, s. 597, c. 47, s. 724(2); 1992, c. 1, s. 160(F)
133. (1) Subsection 268(6) of the Act is replaced by the following:
Discretionary continuance
(6) The Governor in Council may, by order, require that a body corporate incorporated by or under an Act of Parliament to which Part I or II of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, does not apply, apply for a certificate of continuance under section 187 within such period as may be prescribed except for the following: (a) a bank; (b) a company or society to which the Insurance Companies Act applies; and (c) a company to which the Trust and Loan Companies Act applies.
1994, c. 24, s. 32
(2) Subsection 268(7) of the English version of the Act is replaced by the following:
Discretionary continuance — Canada Corporations Act
(7) A body corporate to which Part IV of the Canada Corporations Act, chapter C-32 of the Revised Statutes of Canada, 1970, applies, other than a body corporate that carries on a business referred to in paragraph (6)(b) or (c), may apply for a certificate of continuance under section 187.
Sociétés par actions
1996, c. 10, s. 213
(3) Subsection 268(11) of the English version of the Act is replaced by the following:
Exception for railway companies
(11) A body corporate that is incorporated by or under a Special Act, as defined in section 87 of the Canada Transportation Act, may apply for a certificate of continuance under section 187.
Replacement of « appartenance » with « droit de propriété »
134. The French version of the Act is amended by replacing the word « appartenance » with the words « droit de propriété », with the modifications that the circumstances require, in the following provisions: (a) paragraph 6(1)(d); (b) paragraph 173(1)(n); (c) paragraph 174(1)(c); (d) subsections 174(2), (3) and (4); (e) subsection 174(6); (f) paragraph 176(1)(h); (g) subsection 176(3); and (h) paragraph 190(1)(a).
Technical amendments
135. The English version of the Act is amended as set out in the schedule.
Review of Canada Business Corporations Act
136. A committee of the Senate, of the House of Commons or of both Houses of Parliament that is designated or established for the purpose shall, within five years after the coming into force of this section, and within every ten years thereafter, undertake a review of the provisions and operations of the Canada Business Corporations Act, and shall, within a reasonable period thereafter, cause to be laid before each House of Parliament a report thereon.
1998, c. 1
CANADA COOPERATIVES ACT
137. (1) The definitions ‘‘distributing cooperative’’, ‘‘member loan’’, ‘‘person’’ and ‘‘security’’ in subsection 2(1) of the Canada Cooperatives Act are replaced by the following: ‘‘distributing cooperative’’ « coopérative ayant fait appel au public »
‘‘distributing cooperative’’ means, subject to subsections 4(4) and (5), a distributing cooperative as defined in the regulations.
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‘‘member loan’’ « prêt de membre »
‘‘member loan’’ means a loan required by the cooperative from its members as a condition of membership or to continue membership in the cooperative, and, for the purpose of Parts 8, 16, 17, 18.1 and 19 and subsection 163(2), a member loan is deemed to be a membership share issued at par value.
‘‘person’’ « personne »
‘‘person’’ means an individual or an entity, and includes a personal representative.
‘‘security’’ « valeur mobilière »
‘‘security’’ includes an investment share, a debt obligation of a cooperative and a certificate evidencing such a share or debt obligation and, for the purposes of section 173 and Parts 18.1 and 19, includes a membership share. (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘personal representative’’ « représentant personnel »
‘‘personal representative’’ means a person who stands in place of and represents another person including, but not limited to, a trustee, an executor, an administrator, a receiver, an agent, a liquidator of a succession, a guardian, a tutor, a curator, a mandatary or an attorney. (3) Subsection 2(3) of the Act is replaced by the following:
Minors
(3) For the purposes of this Act, the word ‘‘minor’’ has the same meaning as in the applicable provincial law and, in the absence of any such law, has the same meaning as the word ‘‘child’’ in the United Nations Convention on the Rights of the Child, adopted in the United Nations General Assembly on November 20, 1989. 138. Subsections 4(4) to (6) of the Act are replaced by the following:
Exemptions — on application by cooperative
(4) On the application of a cooperative, the Director may determine that the cooperative is not or was not a distributing cooperative if the Director is satisfied that the determination would not be prejudicial to the public interest.
Exemptions — classes of cooperatives
(5) The Director may determine that a class of cooperatives are not or were not distributing cooperatives if the Director is satisfied that the determination would not be prejudicial to the public interest.
Sociétés par actions 139. Subsection 8(1) of the Act is replaced by the following:
Incorporators
8. (1) An application for incorporation of a cooperative may be made by a minimum of three persons, or by one or more cooperative entities, who intend to be members of the cooperative. 140. Subsection 12(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (b), by adding the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) a notice that is required to be given under subsection 30(2) or 81(1) indicates that the cooperative, if it came into existence, would be in compliance with the Act. 141. (1) Subparagraphs 15(2)(a)(i) and (ii) of the Act are replaced by the following: (i) the designation of the classes or regional groups of members, if any, who may be represented by delegates, (ii) the procedure for altering classes or regional groups of members, if applicable, and (2) Paragraph 15(2)(b) of the Act is replaced by the following: (b) the division of members into classes or regional groups and, if so, (i) the qualifications for membership in each class or regional group, (ii) the conditions precedent to membership in each class or regional group, (iii) the method, time and manner of withdrawing from a class or regional group or transferring membership from one class or regional group to another and any applicable conditions on a transfer, and (iv) the conditions on which membership in a class or regional group ends; 142. Paragraph 16(b) of the Act is replaced by the following: (b) contained undertakings by every member and the successors, assigns and personal
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representatives of every member to observe all the provisions of the articles and bylaws. 143. Paragraph 19(4)(a) of the Act is replaced by the following: (a) make an order respecting the nature and extent of the obligations and liability under the contract of the cooperative and the person who entered into or purported to enter into the contract by or on behalf of the cooperative; and 144. Subsections 20(4) and (5) of the Act are replaced by the following: Alternate form
(4) The name of a cooperative may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The cooperative may use and be legally designated by any such form.
145. (1) Subsection 28(1) of the Act is amended by adding the word ‘‘or’’ at the end of paragraph (e) and by replacing paragraphs (f) and (g) with the following: (f) a sale, lease or exchange of all or substantially all of the property of the cooperative was not authorized. (2) Subsection 28(2) of the English version of the Act is replaced by the following: Exception
(2) Subsection (1) does not apply in respect of a person who has, or ought to have, knowledge of a situation described in that subsection by virtue of their relationship to the cooperative. 146. Subsection 31(3) of the Act is replaced by the following:
When records or registers kept outside Canada
(3) Despite subsection (1), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a cooperative may keep all or any of its records mentioned in paragraphs (1)(a), (b), (c), (f) and (g) and (2)(a) and (b) at a place outside Canada, if
Sociétés par actions (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or another office in Canada designated by the directors; and (b) the cooperative provides the technical assistance to facilitate an inspection referred to in paragraph (a). 147. Subsection 32(4) of the Act is replaced by the following:
Inspection and copying of records by members, creditors and shareholders
(4) Members, creditors and shareholders of the cooperative, their personal representatives and the Director may examine the records referred to in paragraphs 31(1)(a), (b), (c) (f) and (g) during the usual business hours of the cooperative and may take extracts from the records, free of charge, or have copies of them made after payment of a reasonable fee. 148. Subsection 33(1) of the Act is replaced by the following:
Lists
33. (1) Members, shareholders and creditors of a cooperative and their personal representatives and, where the cooperative is a distributing cooperative, any other person, may request that the cooperative provide them with a list of members or shareholders, no later than ten days after the cooperative receives the affidavit referred to in subsection (2) and after payment of a reasonable fee.
149. Subsection 48(3) of Act is replaced by the following: Participation in meeting by electronic means
(3) Unless the by-laws provide otherwise, a member or shareholder may participate in a meeting of the cooperative, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the cooperative makes available such a communication facility.
Meeting held by electronic means
(3.1) If the directors of a cooperative, or any other person, call a meeting of the cooperative pursuant to this Act, those directors or that person, as the case may be, may determine that
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the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide. 150. Subsection 50(3) of the Act is replaced by the following: Order to delay calling of annual meeting
(3) Despite subsection (1), the cooperative may apply to the court for an order extending the time for calling an annual meeting. 151. (1) Subsection 51(1) of the Act is replaced by the following:
Record date
51. (1) The directors may, within the prescribed period, fix in advance a date as the record date for the determination of the members or shareholders who are entitled to receive payment of a dividend or for any other purpose except the right to receive notice of, or to vote at, a meeting. (2) Subsections 51(3) and (4) of the Act are replaced by the following:
Record date — notice of shareholders’ meetings
(3) For the purpose of determining the shareholders who are entitled to receive notice of a meeting of the shareholders, the directors may, within the prescribed period, fix in advance a date as the record date for that determination.
Record date — voting at shareholders’ meetings
(4) For the purposes of determining the shareholders who are entitled to vote at a meeting of shareholders, the directors may, within the prescribed period, fix in advance a date as the record date for that determination. (3) The portion of subsection 51(6) of the Act before paragraph (a) is replaced by the following:
If record date fixed
(6) If a record date with respect to shareholders is fixed under this section, unless notice of the date is waived by each shareholder whose name is set out in the securities register at the close of business on the day the directors fix the record date, notice of the record date must be given within the prescribed period
Sociétés par actions
152. Subsection 52(1) of the Act is replaced by the following: Notice of meetings
52. (1) Notice of the time and place of a meeting of a cooperative must be sent within the prescribed period (a) to each person who is entitled to vote at the meeting; (b) to each director; and (c) to the auditor of the cooperative, if any.
Exception
(1.1) In the case of a cooperative that is not a distributing cooperative, the notice may be sent within a shorter period if so specified in the articles or the by-laws. 153. (1) Subsections 58(2) and (3) of the Act are replaced by the following:
Proposals by members or directors to amend articles
(2) Any member or director may, in accordance with section 290, make a proposal to amend the articles.
Proposals by other persons to amend articles
(2.1) Any other person may, in accordance with section 290, make a proposal to amend the articles if the person (a) has been, for at least the prescribed period, the registered holder or the beneficial owner of at least the prescribed number of outstanding investment shares of the cooperative; or (b) has the support of persons who, in the aggregate, and including or not including the person that submits the proposal, have been, for at least the prescribed period, the registered holders, or the beneficial owners of, at least the prescribed number of outstanding investment shares of the cooperative.
Information to be provided
(2.2) A proposal submitted by a person described in paragraph (2.1)(a) must be accompanied by the following information: (a) the name and address of the person and of the person’s supporters, if applicable; and (b) the number of investment shares held or owned by the person and by the person’s
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supporters, if applicable, and the date the investment shares were acquired. Information not part of proposal
(2.3) The information provided under subsection (2.2) does not form part of the proposal or of the supporting statement referred to in subsection (3) and is not included for the purposes of the prescribed maximum word limit set out in subsection (3).
Proof may be required
(2.4) If requested by the cooperative within the prescribed period, a person who submits a proposal must provide proof, within the prescribed period, that the person meets the requirements of subsection (2.1).
Proposal and statement to accompany notice of meeting
(3) A proposal submitted for consideration at a meeting must be attached to the notice of the meeting, together with, if requested by the person making the proposal, a statement in support of the proposal and the name and address of person making the proposal. The statement and the proposal must together not exceed the prescribed maximum number of words. (2) Paragraph 58(4)(a) of the Act is replaced by the following: (a) the proposal is not submitted to the cooperative at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to members and shareholders in connection with the previous annual meeting; (3) Paragraph 58(4)(b) of the English version of the Act is replaced by the following: (b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the cooperative or its directors, officers, members or security holders; (4) Paragraphs 58(4)(c) and (d) of the Act are replaced by the following: (c) not more than the prescribed period before the receipt of a proposal, a person failed to present, at a meeting, a proposal that, at the person’s request, had been attached by the cooperative to the notice of the meeting;
Sociétés par actions (d) substantially the same proposal was attached to a notice of meeting relating to a meeting of the cooperative held not more than the prescribed period before the receipt of the proposal and the proposal did not receive the prescribed minimum amount of support at the meeting; or (5) Section 58 of the Act is amended by adding the following after subsection (4):
Cooperative may refuse to include proposal
(4.1) If (a) a person described in subsection (2.1) makes a proposal and fails to continue to hold or own the number of investment shares referred to in that subsection up to and including the day of the meeting, or (b) a member makes a proposal and, prior to the meeting, withdraws from membership in accordance with section 39, the cooperative is not required to include in the notice of a meeting, or attach to it, any proposal submitted by that person for any meeting held within the prescribed period following the date of the meeting. 154. Subsections 60(1) and (2) of the Act are replaced by the following:
Refusal to include proposal
60. (1) If a cooperative refuses to include a proposal in a notice of a meeting referred to in section 52, the cooperative must, within the prescribed period after the day on which it receives the proposal or the day on which it receives the proof of ownership under subsection 58(2.4), as the case may be, notify in writing the person submitting the proposal of its intention to omit the proposal from the notice and of the reasons for the refusal.
Restraining order by court
(2) On the application of a person submitting a proposal who claims to be aggrieved by a cooperative’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order it thinks fit.
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155. Section 65 of the Act is amended by adding the following after subsection (2): Electronic voting
(3) Despite subsection (1), unless the bylaws provide otherwise, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the cooperative makes available such a communication facility.
Voting while participating electronically
(4) Unless the by-laws otherwise provide, a member or shareholder participating in a meeting of the cooperative under subsection 48(3) or (3.1) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the cooperative has made available for that purpose. 156. Section 67 of the Act is replaced by the following:
Evidence
67. Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. 157. Section 70 of the Act is repealed. 158. Paragraphs 71(1)(a) and (b) of the Act are replaced by the following: (a) it is not feasible to call the meeting within the time or in the manner in which those meetings are to be called; (b) it is not feasible to conduct the meeting in the manner required by this Act or the by-laws; or
159. Subsection 78(4) of the Act is replaced by the following:
2001 Resident in Canada
Sociétés par actions (4) At least twenty-five per cent of the directors must be resident in Canada. However, if the cooperative has only three directors, at least one director must be resident in Canada. 160. Subsections 83(6) and (7) of the Act are replaced by the following:
Election or appointment as director
(6) An individual who is elected or appointed to hold office as a director is not a director and is deemed not to have been elected or appointed to hold office as a director unless (a) he or she was present at the meeting when the election or appointment took place and he or she did not refuse to hold office as a director; or (b) he or she was not present at the meeting when the election or appointment took place and (i) he or she consented to hold office as a director in writing before the election or appointment or within ten days after it, or (ii) he or she has acted as a director pursuant to the election or appointment. 161. (1) The portion of subsection 85(1) of the Act before paragraph (a) is replaced by the following:
Vacancy on board
85. (1) Subject to subsection (3), if there is a vacancy on the board of directors, except a vacancy because of an increase in the number or the minimum or maximum number of directors provided for in the articles or because of a failure to elect or appoint the number or minimum number of directors provided for in the articles, and there is still a quorum on the board, the remaining directors may (2) Subsection 85(6) of the Act is replaced by the following:
Deemed directors
(6) If all of the directors have resigned or been removed without replacement, a person who manages or supervises the management of the business and affairs of the cooperative is deemed to be a director for the purposes of this Act.
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162. Section 91 of the Act is replaced by the following: Notice of change of director or director’s address
91. (1) A cooperative must, within fifteen days after (a) a change is made among its directors, or (b) it receives a notice of change of address of a director referred to in subsection (2), send to the Director a notice, in the form that the Director fixes, setting out the change.
Director’s change of address
(2) A director must, within fifteen days after changing his or her address, send the cooperative a notice of that change.
Application to court
(3) Any interested person, or the Director, may apply to a court for an order to require a cooperative to comply with subsection (1), and the court may so order and make any further order it thinks fit. 163. (1) Subsection 97(1) of the Act is replaced by the following:
Quorum
97. (1) To constitute a quorum, (a) at least twenty-five per cent of the directors at the meeting must be resident in Canada or, if the cooperative has only three directors, at least one of the directors at the meeting must be resident in Canada; and (b) a majority of the directors at the meeting must be members of the cooperative, or representatives of members that are entities or members of members that are cooperative entities.
(2) The portion of subsection 97(2) of the Act before paragraph (a) is replaced by the following: Exception
(2) Despite subsection (1), a meeting of directors may be held without the number of directors resident in Canada required under that subsection if
(3) Paragraph 97(2)(b) of the Act is replaced by the following:
Sociétés par actions (b) the required number would have been present had that director been present at the meeting.
164. Subsection 98(1) of the Act is replaced by the following: Participation
98. (1) Subject to the by-laws, a director may, in accordance with the regulations, if any, participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting. 165. Subsection 100(3) of the Act is replaced by the following:
Evidence
(3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. 166. Paragraph 101(3)(d) of the Act is repealed. 167. (1) Subsection 102(2) of the Act is repealed. (2) Subsection 102(7) of the French version of the Act is replaced by the following:
Subrogation
(7) L’administrateur qui acquitte les dettes visées au présent article, dont l’existence est établie au cours d’une procédure soit de liquidation et de dissolution, soit de faillitte, a droit à toute priorité qu’aurait pu faire valoir l’employé et, le cas échéant, est subrogé aux droits constatés dans le jugement. 168. Subsection 103(7) of the Act is repealed. 169. Subsection 104(1) of the Act is replaced by the following:
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104. (1) A director who is interested in a contract or transaction referred to in subsection 103(1) may not vote on any resolution to approve the contract or transaction. 170. Sections 106 and 107 of the Act are replaced by the following:
Effect of disclosure
106. A contract or transaction for which disclosure is required under section 103 is not invalid, and the director or officer is not accountable to the cooperative, its members or its shareholders for any profit realized from the contract or transaction, because of the director’s or officer’s interest in the contract or transaction or because the director was present or was counted to determine whether a quorum existed at the meeting of directors or committee of directors that considered the contract or transaction, if (a) disclosure of the interest was made in accordance with sections 103 to 105; (b) the directors approved the contract or transaction; and (c) the contract or transaction was reasonable and fair to the cooperative when it was approved.
Confirmation
106.1 Even if the conditions of section 106 are not met, a director or officer, acting honestly and in good faith, is not accountable to the cooperative, its members or its shareholders for any profit realized from a contract or transaction for which disclosure is required under section 103 and the contract or transaction is not invalid by reason only of the interest of the director or officer in the contract or transaction if (a) the contract or transaction is approved or confirmed by special resolution at a meeting of the members; (b) disclosure of the interest was made to the members in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and (c) the contract or transaction was reasonable and fair to the cooperative when it was approved or confirmed.
Court order
Sociétés par actions
107. If a director or officer of a cooperative fails to disclose an interest in a material contract or transaction in accordance with section 103, or otherwise fails to comply with sections 103 to 106.1, a court may, on the application of the cooperative or a member or shareholder, set aside the contract or transaction on any terms that it thinks fit or order that the director or officer account to the cooperative, its members or its shareholders for any profit realized from the contract or transaction. 171. (1) Paragraph 109(3)(g) of the Act is replaced by the following: (g) pay a commission referred to in section 128, except as authorized by the directors;
(2) Subsection 109(3) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (h), by adding the word ‘‘or’’ at the end of paragraph (i) and by adding the following after paragraph (i): (j) issue investment shares of a series under section 126 except as authorized by the directors. 172. Section 111 of the Act is replaced by the following: Due diligence
111. A director is not liable under this Part if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on (a) financial statements of the cooperative represented to the director by an officer of the cooperative or in a written report of the auditor of the cooperative fairly to reflect the financial condition of the cooperative; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. 173. (1) Subsection 113(2) of the Act is replaced by the following:
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(2) A cooperative may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1). The individual must repay the moneys if the individual did not fulfil the conditions of subsection (3), unless the members and shareholders decide, by separate resolutions, that the individual need not repay the moneys. (2) Paragraph 113(5)(a) of the Act is replaced by the following: (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and 174. (1) Subsection 115(1) of the Act is replaced by the following:
Restricting powers of directors
115. (1) A provision in the articles of the cooperative or in a unanimous agreement that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the cooperative or vests, in whole or in part, but only in members and subject to subsection 76(1), those powers, is valid. (2) Subsections 115(3) to (8) of the Act are replaced by the following:
Investment shareholders
(3) A purchaser or transferee of an investment share that is subject to a unanimous agreement is deemed to be party to the unanimous agreement.
When no notice given
(4) If notice is not given to the purchaser or transferee of the existence of a unanimous agreement, in the manner referred to in subsection 183(2) or otherwise, the purchaser or transferee may, no later than thirty days after they become aware of its existence, rescind the transaction by which they acquired the investment shares.
Rights of members
(5) To the extent that a provision in the articles of the cooperative, or in a unanimous agreement, restricts the powers of the directors to manage, or supervise the management of, the business and affairs of the cooperative, members who are given that power to manage or supervise the management of the business
Sociétés par actions and affairs of the cooperative have all the rights, powers, duties and liabilities of directors, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 102, to the same extent.
Discretion of shareholders
(6) Nothing in this section prevents members from fettering their discretion when exercising the powers of directors under a unanimous agreement. 175. Subsection 123(1) of the Act is replaced by the following:
Charge on membership shares for amounts
123. (1) A cooperative has a charge on a membership share or any amount standing to the credit of a member or the personal representative of a member for a debt of that member to the cooperative. 176. The portion of subsection 126(1) of the Act before paragraph (a) is replaced by the following:
Shares in series
126. (1) The articles may authorize, subject to any limitations set out in them and subject to subsection (2), the issue of any class of investment shares in one or more series and may do either or both of the following: 177. Subsection 129(1) of the Act is replaced by the following:
Charge on investment shares
129. (1) Subject to subsection 183(2), the articles may provide that the cooperative has a charge on an investment share registered in the name of a shareholder or the personal representative of a shareholder for a debt of the shareholder to the cooperative, including an amount unpaid as of the date a body corporate was continued under this Act, in respect of an investment share issued by it. 178. (1) The portion of subsection 130(1) of the Act before paragraph (a) is replaced by the following:
Constraints on shares
130. (1) Subject to subsection 290(3), a distributing cooperative that has issued investment shares that remain outstanding and are held by more than one person may, by special
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resolution of the members and by a separate special resolution of the shareholders of each class, amend its articles to constrain (2) Paragraph 130(1)(d) of the Act is replaced by the following: (d) the issue, transfer or ownership of any investment share to assist the cooperative to comply with any prescribed law; or 179. (1) Paragraph 131(1)(b) of the Act is replaced by the following: (b) complying with any prescribed law.
(2) Subsection 131(2) of the French version of the Act is replaced by the following: Choix des parts
(2) Les administrateurs doivent choisir les parts de placement à vendre en vertu du paragraphe (1) de bonne foi et de manière à ne pas se montrer injuste à l’égard des autres détenteurs de parts de placement de la catégorie soit en leur portant préjudice soit en ne tenant pas compte de leurs intérêts. 180. (1) The portion of section 137 of the Act before paragraph (a) is replaced by the following:
Borrowing
137. Unless the articles, the by-laws or a unanimous agreement provide otherwise, the directors may, subject to subsection 126(2), without the authorization of the members or shareholders,
Sociétés par actions (2) Paragraph 137(c) of the Act is replaced by the following: (c) give guarantees; 181. (1) Subparagraphs 138(3)(a)(i) and (ii) of the French version of the Act are replaced by the following: (i) de biens d’une personne avec laquelle elle avait, au moment de l’échange, un lien de dépendance au sens de la Loi de l’impôt sur le revenu, (ii) d’actions ou de parts de placement d’une entité ou de droits ou d’intérêts dans celle-ci, lorsque la coopérative avait avec celle-ci, soit au moment de l’échange, soit en raison de celui-ci, un tel lien; (2) Paragraph 138(3)(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (i) and by adding the following after subparagraph (ii): (iii) property of a person who, immediately before the exchange, dealt with the cooperative at arm’s length within the meaning of that expression in the Income Tax Act, if the person, the cooperative and all the holders of shares in the class or series of shares so issued consent to the exchange; or (3) Subsection 138(6) of the Act is replaced by the following:
Membership share inclusion
(6) For greater certainty, if a cooperative issues membership shares with a par value, the cooperative is deemed, for the purposes of subsection 147(2), sections 151 and 154 and paragraph 299(2)(d), to have a stated capital account for its membership shares that includes each amount that has been received by the cooperative for the membership shares. 182. Subsection 139(4) of the Act is replaced by the following:
Continued cooperative
(4) For the purposes of subsection 147(2), sections 151 and 154 and paragraph 299(2)(d), when a cooperative is continued under this Act, its stated capital account is deemed to include the amount that would have been included if the cooperative had been incorporated under this Act.
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183. The portion of subsection 147(2) of the French version of the Act before paragraph (a) is replaced by the following: Exception
(2) La coopérative ne peut faire aucun paiement en vue d’acquérir des parts de placement s’il existe des motifs raisonnables de croire que : 184. Section 160 of the Act and the heading before it are repealed. 185. The definitions ‘‘intermediary’’ and ‘‘solicit’’ or ‘‘solicitation’’ ’’ in subsection 163(1) of the Act are replaced by the following:
‘‘intermediary’’ « intermédiaire »
‘‘intermediary’’ means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes (a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction; (b) a securities depositary; (c) a financial institution; (d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer; (e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act; (f) a nominee of a person referred to in any of paragraphs (a) to (e); and (g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security.
2001 ‘‘solicit’’ or ‘‘solicitation’’ « sollicitation »
Sociétés par actions ‘‘solicit’’ or ‘‘solicitation’’ (a) includes (i) a request for a proxy whether or not accompanied by or included in a form of proxy, (ii) a request to execute or not to execute a form of proxy or to revoke a proxy, (iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and (iv) the sending of a form of proxy to a shareholder under section 165; but (b) does not include (i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder, (ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy, (iii) the sending by an intermediary of the documents referred to in section 169, (iv) a solicitation by a person in respect of investment shares of which they are the beneficial owner, (v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision, (vi) a communication for the purposes of obtaining the number of investment shares required for a proposal under subsection 58(2.1), or (vii) a communication, other than a solicitation by or on behalf of the management of the cooperative, that is made to shareholders, in any circumstances that may be prescribed.
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186. (1) Subsection 164(2) of the Act is replaced by the following: Execution of proxy
(2) For a proxy to be valid, it must be executed by the shareholder or by their personal representative authorized in writing. (2) The portion of paragraph 164(4)(a) of the Act before subparagraph (i) is replaced by the following: (a) by depositing a document in writing executed by the shareholder or by their personal representative authorized in writing 187. Paragraph 165(2)(b) of the Act is replaced by the following: (b) it has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder.
188. Subsection 166(4) of the Act is replaced by the following: Solicitation to fifteen or fewer shareholders
(4) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder.
Solicitation by public broadcast
(4.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the solicitation is, in the prescribed circum2001
Sociétés par actions stances, conveyed by public broadcast, speech or publication. 189. Subsection 167(1) of the Act is replaced by the following:
Exemption order
167. (1) On the application of any interested person, the Director may exempt, on any terms that the Director thinks fit, the person from any of the requirements of section 165 or subsection 166(1), which exemption may have retrospective effect. 190. (1) Subsection 169(2) of the Act is replaced by the following:
Restriction on voting
(2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner. (2) Subsection 169(5) of the Act is replaced by the following:
Beneficial owner as proxyholder
(5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder. 191. (1) The definitions ‘‘business combination’’, ‘‘insider’’ and ‘‘officer’’ in subsection 171(1) of the Act are replaced by the following:
‘‘business combination’’ « regroupement d’entreprises »
‘‘business combination’’ means an acquisition of all or substantially all the property of one entity by another, or an amalgamation of two or more entities, or any similar reorganization between or among two or more entities.
‘‘insider’’ « initié »
‘‘insider’’ means, except in section 173, (a) a director or officer of a distributing cooperative; (b) a director or officer of a subsidiary of a distributing cooperative; (c) a director or officer of an entity that enters into a business combination with a distributing cooperative; and
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‘‘officer’’ « dirigeant »
‘‘officer’’ means the chairperson of the board of directors, president, vice-president, secretary, treasurer, comptroller, general counsel, general manager, managing director, or any other individual who performs functions for an entity similar to those normally performed by an individual occupying any of those offices.
(2) Paragraph 171(2)(a) of the Act is replaced by the following: (a) a director or an officer of an entity that beneficially owns, directly or indirectly, shares of a distributing cooperative, or that exercises control or direction over shares of the distributing cooperative, or that has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the distributing cooperative not including shares held by the entity as underwriter while those shares are in the course of a distribution to the public is deemed to be an insider of the distributing cooperative;
(3) Subsection 171(3) of the French version of the Act is replaced by the following: Parts de membre
(3) Pour l’application de la présente partie, la vente de parts de membre à des membres ou le versement d’un prêt de membre à une coopérative ne constitue pas un appel public à l’épargne. (4) Subsection 171(4) of the Act is repealed. 192. Section 172 of the Act is replaced by the following:
Prohibition of short sale
172. (1) No insider shall knowingly sell, directly or indirectly, a security of a distributing cooperative or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold.
Sociétés par actions
Calls and puts
(2) No insider shall knowingly, directly or indirectly, buy a put or sell a call in respect of a security of the cooperative or any of its affiliates.
Exception
(3) Despite subsection (1), an insider may sell a security that the insider does not own if the insider owns another security convertible into the security sold or an option or right to acquire the security sold and, no later than ten days after the sale, the insider (a) exercises the conversion privilege, option or right and delivers the security so acquired to the purchaser; or (b) transfers the convertible security, option or right to the purchaser.
193. Section 173 of the Act is replaced by the following: Definition of ‘‘insider’’
173. (1) In this section, ‘‘insider’’, with respect to a cooperative, means (a) the cooperative; (b) an affiliate of the cooperative; (c) a director or an officer of the cooperative or of any persons described in paragraphs (b), (e) or (g); (d) a member who controls more than ten per cent of the voting rights that may be exercised to elect or appoint a director of the cooperative; (e) a person who beneficially owns, directly or indirectly, shares of the cooperative or who exercises control or direction over shares of the cooperative, or a combination of any such ownership, control and direction, carrying more than the prescribed percentage of the voting rights attached to all of the outstanding shares of the cooperative other than shares held by the person as underwriter while those shares are in the course of a distribution to the public; (f) a person, other than a person described in paragraph (g), employed or retained by the cooperative or by a person described in paragraph (g);
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(g) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the cooperative; (h) a person who received, while they were a person described in any of paragraphs (a) to (g) material confidential information concerning the cooperative; (i) a person who receives material confidential information from a person described in this subsection or in subsection (2) or (2.1), including from a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (2) or (2.1), including a person described in this paragraph; and (j) a prescribed person.
Deemed insiders
(2) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a cooperative, or to enter into a business combination with a cooperative, is an insider of the cooperative with respect to material confidential information obtained from the cooperative and is an insider of the cooperative for the purposes of subsection (6).
Deemed insiders
(2.1) An insider of a person referred to in subsection (2), and an affiliate or associate of such a person, is an insider of the cooperative referred to in that subsection. Paragraphs (1)(b) to (j) apply in determining whether a person is such an insider except that references to ‘‘cooperative’’ in those paragraphs are to be read as references to ‘‘person described in subsection (2)’’.
Expanded definition of ‘‘security’’
(3) For the purposes of this section, the following are deemed to be a security of the cooperative: (a) a put, call or option or other right or obligation to purchase or sell a security of the cooperative; and
Sociétés par actions (b) a security of another entity whose market price varies materially with the market price of the securities of the cooperative.
Insider trading — compensation to persons
(4) An insider who purchases or sells a security of the cooperative with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that (a) the insider reasonably believed that the information had been generally disclosed; (b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or (c) the purchase or sale of the security took place in the prescribed circumstances.
Insider trading — compensation to cooperative
(5) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances in paragraph 4(a).
Tipping — compensation to persons
(6) An insider who discloses to another person confidential information with respect to the cooperative that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate for damages any person who subsequently sells securities of the cooperative to, or purchases securities of the cooperative from, any person that received the information, unless the insider establishes (a) that the insider reasonably believed that the information had been generally disclosed;
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(b) that the information was known, or ought reasonably to have been known, to the person who alleges to have suffered the damages; (c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (2) or (2.1); or (d) if the insider is a person described in subsection (2) or (2.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be. Tipping — compensation to cooperative
(7) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances in paragraph (6)(a), (c) or (d).
Measure of damages
(8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing cooperative, the court must consider the following: (a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and (b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security.
Liability
(9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary.
2001 Limitation
Sociétés par actions (10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action. 194. The definitions ‘‘offeree cooperative’’ and ‘‘take-over bid’’ in section 174 of the Act are replaced by the following:
‘‘offeree cooperative’’ « coopérative pollicitée »
‘‘offeree cooperative’’ means a distributing cooperative whose shares are the object of a take-over bid.
‘‘take-over bid’’ « offre d’achat »
‘‘take-over bid’’ means an offer made by an offeror to shareholders of a distributing cooperative at approximately the same time to acquire all of the shares of a class of issued shares and includes an offer made by a distributing cooperative to repurchase all of the shares of a class of its shares.
195. (1) Subsection 175(8) of the English version of the Act is replaced by the following: When cooperative is offeror
(8) A cooperative that is an offeror making a take-over bid to repurchase all of the shares of a class of its shares is deemed to hold in trust for the dissenting shareholders the amounts that it would have had to pay or transfer to a dissenting offeree if the dissenting offeree had elected to accept the take-over bid under subparagraph (4)(b)(i), and the cooperative must deposit the amounts in a separate account in a body corporate any of whose deposits are insured by the Canada Deposit Insurance Corporation or guaranteed by the Quebec Deposit Insurance Board or by any other similar entity created by the law of another province, and must place any thing received in lieu of money in the custody of such a body corporate. (2) Subparagraph 175(9)(c)(ii) of the English version of the Act is replaced by the following: (ii) the offeree cooperative or some designated person holds in trust for the dissenting shareholder the money or other things to which that shareholder is entitled as payment for or in exchange for the shares, and
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196. Subsection 176(1) of the Act is replaced by the following: Distributing cooperative
176. (1) If a shareholder holding shares of a distributing cooperative does not receive a notice under this Part, the shareholder may (a) within ninety days after the date of the end of the take-over bid, or (b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of (i) the date of the end of the take-over bid, and (ii) the date on which the shareholder learned of the take-over bid, require the offeror to acquire those shares. 197. Subsection 182(1) of the Act is replaced by the following:
Signatures
182. (1) A security certificate must be signed by at least one of the following persons, or a facsimile of the signature must be reproduced on the certificate: (a) a director, or an individual on their behalf, or an officer; (b) a transfer agent or branch transfer agent of the cooperative, or an individual on their behalf; or (c) a trustee who certifies it in accordance with a trust indenture. 198. (1) Subsections 183(2) to (4) of the Act are replaced by the following:
Notation of restrictions
(2) No restriction, charge, agreement or endorsement described in subsection (3) is effective against a transferee of a security, issued by a cooperative or by a body corporate before it is continued under this Act, who has no actual knowledge of the restriction, charge, agreement or endorsement unless it or a reference to it is noted conspicuously on the security certificate.
2001 Restrictions, etc.
Sociétés par actions (3) The restrictions, charges, agreements and endorsements referred to in subsection (2) are (a) a restriction on transfer other than a constraint under section 130; (b) a charge in favour of the cooperative; (c) a unanimous agreement; and (d) an endorsement 302(10).
Restrictions
under
subsection
(4) If the issued investment shares of a distributing cooperative remain outstanding and are held by more than one person, the cooperative must not restrict the transfer or ownership of its investment shares of any class or series except by way of a constraint under section 130. (2) Paragraph 183(5)(b) of the Act is replaced by the following: (b) to comply with any prescribed law. 199. The heading before section 247 of the French version of the Act is replaced by the following: PRÉSENTATION DE RENSEIGNEMENTS D’ORDRE FINANCIER 200. Subsection 249(2) of the Act is replaced by the following:
Examination
(2) The members and shareholders of a cooperative and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the cooperative and may take extracts from them free of charge. 201. Subsection 252(1) of the Act is replaced by the following:
Copies to Director
252. (1) A distributing cooperative, any of the issued securities of which remain outstanding and are held by more than one person, must send a copy of the documents referred to in section 247 to the Director (a) not less than twenty-one days before each annual meeting of members or, without delay after a resolution referred to in paragraph 251(c) is signed; and (b) in any event within fifteen months after the last preceding annual meeting of share���
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holders was held or the resolution referred to in paragraph 251(c) was signed, but no later than six months after the end of the cooperative’s preceding financial year. 202. The portion of subsection 255(1) of the Act before paragraph (a) is replaced by the following: Dispensing with auditor
255. (1) A cooperative that is not a distributing cooperative may resolve not to appoint an auditor by
203. Subsection 260(5) of the French version of the Act is replaced by the following: Autres déclarations
(5) Lorsque la coopérative se propose de remplacer le vérificateur, pour cause de révocation ou d’expiration de son mandat, elle doit soumettre une déclaration motivée et le nouveau vérificateur a le droit de soumettre une déclaration commentant ces motifs. 204. Subsection 267(1) of the French version of the Act is replaced by the following:
Application
267. (1) La présente partie s’applique à tout acte de fiducie prévoyant une émission de titres de créance par voie d’appel public à l’épargne. 205. Paragraph 289(1)(j) of the Act is replaced by the following: (j) reduce or increase its stated capital, if its stated capital is set out in the articles; 206. Subsection 290(1) of the Act is replaced by the following:
Proposal to amend
290. (1) Subject to subsection (2), a person referred to in subsection 58(2) or (2.1) may make a proposal to amend the articles and section 58 applies, with any modifications that the circumstances require, to any meeting of the cooperative at which the proposal is to be considered.
Sociétés par actions 207. Subsection 294(1) of the English version of the Act is replaced by the following:
Restated articles
294. (1) The directors may at any time, and must when reasonably so directed by the Director, restate the articles of incorporation. 208. (1) Subparagraph 298(1)(b)(ii) of the Act is replaced by the following: (ii) except as may be prescribed, the articles of amalgamation be the same as the articles of the amalgamating holding cooperative, and (2) Subparagraph 298(2)(b)(ii) of the Act is replaced by the following: (ii) except as may be prescribed, the articles of amalgamation be the same as the articles of the amalgamating subsidiary cooperative whose shares are not cancelled, and 209. (1) Subsection 307(1) of the Act is replaced by the following:
Application of Part
307. (1) This Part, other than sections 308 and 311, does not apply to a cooperative that is an insolvent person or a bankrupt as those terms are defined in subsection 2(1) of the Bankruptcy and Insolvency Act. (2) Subsection 307(2) of the English version of the Act is replaced by the following:
Staying of proceedings
(2) Any proceedings taken under this Part to dissolve or to liquidate and dissolve a cooperative are stayed if the cooperative is at any time found, in a proceeding under the Bankruptcy and Insolvency Act, to be an insolvent person as defined in that Act. 210. (1) The portion of subsection 308(6) of the Act before paragraph (b) is replaced by the following:
Rights preserved
(6) In the same manner and to the same extent as if it had not been dissolved, but subject to any reasonable terms that may be imposed by the Director, to the rights acquired by any person after its dissolution and to any changes to the internal affairs of the cooperative after its dissolution, the revived cooperative is
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(a) restored to its previous position in law, including the restoration of any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and (2) Subsection 308(7) of the Act is replaced by the following: Legal actions
(7) Any legal action respecting the affairs of a revived cooperative taken between the time of its dissolution and its revival is valid and effective.
Definition of ‘‘interested person’’
(8) In this section, ‘‘interested person’’ includes (a) a member, a shareholder, a director, an officer, an employee and a creditor of the dissolved cooperative; (b) a person who has a contractual relationship with the dissolved cooperative; and (c) a trustee in bankruptcy for the dissolved cooperative. 211. (1) Paragraph 311(1)(d) of the Act is replaced by the following: (d) does not have any directors or is in the situation described in subsection 85(6). (2) Section 311 of the Act is amended by adding the following after subsection (3):
Exception — non-payment of incorporation fee
(3.1) Despite anything in this section, the Director may dissolve a cooperative by issuing a certificate of dissolution if the fee for the issuance of a certificate of incorporation is not paid. 212. Paragraph 312(1)(a) of the Act is replaced by the following: (a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings; 213. The portion of paragraph 313(1)(b) of the French version of the Act before subparagraph (i) is replaced by the following:
Sociétés par actions b) il constate qu’elle abuse des droits des membres, détenteurs de parts de placement, détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts : 214. Subsection 321(2) of the Act is replaced by the following:
Due diligence
(2) A liquidator is not liable under this Part if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on (a) financial statements of the cooperative represented to the liquidator by an officer of the cooperative or in a written report of the auditor of the cooperative fairly to reflect the financial condition of the cooperative; or (b) a report of a person whose profession lends credibility to a statement made by the professional person. 215. Subsection 326(1) of the Act is replaced by the following:
Heirs and representatives
326. (1) In this section, ‘‘member’’ and ‘‘shareholder’’ include their heirs and personal representatives.
216. Subsection 328(3) of the Act is repealed. 217. Paragraph 329(2)(d) of the French version of the Act is replaced by the following: d) que la coopérative ou toute autre personne morale de son groupe, soit par la façon dont elle conduit ou a conduit ses affaires tant commerciales qu’internes, soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs, abuse des droits des membres ou des détenteurs de valeurs mobilières ou se montre injuste à leur égard soit en leur portant préjudice soit en ne tenant pas compte de leurs intérêts;
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218. The Act is amended by adding the following after section 337: PART 18.1 APPORTIONING AWARD OF DAMAGES Interpretation and Application Definitions
337.1 The definitions in this section apply in this Part.
‘‘financial interest’’ « intérêt financier »
‘‘financial interest’’, with respect to a cooperative, includes (a) a security; (b) a title to or an interest in capital, assets, property, profits, earnings or royalties; (c) an option or other interest in, or a subscription to, a security; (d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets; (e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the cooperative; (f) a profit-sharing agreement or certificate; (g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty; (h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province; (i) an investment contract; and (j) anything that is prescribed to be a financial interest.
‘‘financial loss’’ « perte financière »
‘‘financial loss’’ means a financial loss arising out of an error, omission or misstatement in financial information concerning a cooperative that is required under this Act or the regulations.
Sociétés par actions
‘‘third party’’ Version anglaise seulement
‘‘third party’’ includes any subsequent party that is joined in proceedings before a court.
Application of Part
337.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss.
Non-application of Part
(2) This Part does not apply to an award of damages to any of the following plaintiffs: (a) Her Majesty in right of Canada or of a province; (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments; (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or (d) an unsecured creditor in respect of goods or services that the creditor provided to a cooperative.
Apportionment of Damages Degree of responsibility
337.3 (1) Subject to this section and sections 337.4 to 337.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss.
Uncollectable amounts
(2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable.
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Reallocation
(3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss.
Maximum amount
(4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.
Exception — fraud
337.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly.
Contribution
(2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss. Joint and Several, or Solidary, Liability
Individual or personal body corporate
337.5 (1) Defendants and third parties referred to in subsection 337.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who (a) had a financial interest in a cooperative on the day that an error, omission or misstatement in financial information concerning the cooperative occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and (b) has established that the value of the plaintiff’s total financial interest in the cooperative was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a finan2001
Sociétés par actions cial interest in the period referred to in paragraph (a).
Definition of ‘‘personal body corporate’’
(2) In subsection (1), ‘‘personal body corporate’’ means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.
Exception
(3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.
Equitable grounds
337.6 (1) If the value of the plaintiff’s total financial interest referred to in subsection 337.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so.
Factors
(2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable.
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
Value of security
337.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 337.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3), (a) the closing price of that class of security; (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or (c) if the security was not traded, the average of the bid and ask prices of that class of security.
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Court may adjust value
(2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so.
Valuation day
(3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired.
Definition of ‘‘organized market’’
(4) In this section, ‘‘organized market’’ means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.
Court determines value
337.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market.
Factors
(2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1).
Statutory Instruments Act
(3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.
Application to determine value
337.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff’s financial interest for the purpose of subsection 337.5(1). 219. The definition ‘‘complainant’’ in section 338 of the Act is amended by adding the word ‘‘or’’ at the end of paragraph (c) and by repealing paragraph (d). 220. Paragraph 339(2)(a) of the Act is replaced by the following: (a) if the directors of the cooperative or its subsidiary do not bring, diligently prosecute, defend or discontinue the action, the complainant has given notice to the directors of the cooperative or its subsidiary of
Sociétés par actions the complainant’s intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court; 221. The portion of subsection 340(2) of the French version of the Act before paragraph (a) is replaced by the following:
Motifs
(2) Le tribunal, saisi d’une demande visée au paragraphe (1), peut, par ordonnance, redresser la situation provoquée par la coopérative qui, à son avis, abuse des droits des membres ou autres détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants de la coopérative, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts : 222. Paragraphs 345(c) and (d) of the Act are replaced by the following: (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations; (d) to refuse to issue a certificate of discontinuance or a certificate attesting that as of a certain date the cooperative exists under section 375; (d.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 376.1; (d.2) to cancel, or to refuse to cancel, the articles and related certificate under section 376.2; 223. The Act is amended by adding the following after section 361: PART 21.1 DOCUMENTS IN ELECTRONIC OR OTHER FORM
Definitions
361.1 The definitions in this section apply in this Part.
‘‘electronic document’’ « document électronique »
‘‘electronic document’’ means, except in section 361.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means.
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‘‘information system’’ « système d’information »
‘‘information system’’ means a system used to generate, send, receive, store or otherwise process an electronic document.
Application
361.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.
Use not mandatory
361.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document.
Consent and other requirements
(2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and (b) the electronic document is provided to the designated information system, unless otherwise prescribed.
Revocation of consent
(3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.
Creation and provision of information
361.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided is satisfied by the creation or provision of an electronic document if (a) the by-laws or the articles of the cooperative do not provide otherwise; and (b) the regulations, if any, have been complied with.
Creation of information in writing
361.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 361.4,
Sociétés par actions (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with.
Provision of information in writing
(2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 361.4, (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and (b) the regulations pertaining to this subsection, if any, have been complied with.
Copies
(3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document.
Registered mail
(4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.
Statutory declarations and affidavits
361.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature; (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and (c) the requirements of sections 361.3 to 361.5 are complied with.
Definitions
(2) For the purposes of this section, ‘‘electronic document’’ and ‘‘secure electronic signature’’ have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
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Clarification
(3) For the purpose of complying with paragraph (1)(c), the references to an ‘‘electronic document’’ in sections 361.3 to 361.5 are to be read as references to an ‘‘electronic document’’ as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
Signatures
361.7 A requirement under this Act or the regulations for a signature or for a document to be executed, except with respect to a statutory declaration or an affidavit, is satisfied if, in relation to an electronic document, the prescribed requirements pertaining to this section, if any, are met and if the signature results from the application by a person of a technology or a process that permits the following to be proven: (a) the signature resulting from the use by a person of the technology or process is unique to the person; (b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and (c) the technology or process can be used to identify the person using the technology or process. 224. Subsection 362(4) of the French version of the Act is replaced by the following:
Retours
(4) La coopérative n’est pas tenue d’envoyer les avis ou documents visés au paragraphe (1) qui lui sont retournés deux fois de suite, sauf si elle est avisée par écrit de la nouvelle adresse du membre ou du détenteur de parts de placement introuvable. 225. Section 364 of the Act is replaced by the following:
Waiver of notice
364. When a notice or document is required by this Act or the regulations to be sent, the sending of the notice or document may be waived or the time for the notice or document may be waived or abridged at any time with the consent in writing of the person who is entitled to it.
Sociétés par actions 226. Section 367 of the Act is amended by adding the following after subsection (2):
Authority to sign notices
(3) The notices referred to in subsections 30(2) and (4), 81(1) and 91(1), and the annual return referred to in subsection 374(1), may be signed by any individual who has the relevant knowledge of the cooperative and who is authorized to do so by the directors, or, in the case of the notice referred to in subsection 81(1), the incorporators.
Execution of documents
(4) Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed or signed by one or more of the individuals. The documents, when duly executed or signed by all individuals required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of this Act. 227. (1) Section 372 of the Act is renumbered as subsection 372(1). (2) Paragraph 372(1)(d) of the Act is replaced by the following: (d) respecting the payment of any fees, including the time when and the manner in which the fees are to be paid, the additional fees that may be charged for the late payment of fees and the circumstances in which any fees previously paid may be refunded in whole or in part; (d.1) prescribing, for the purposes of subsection 58(2.1), a manner of determining the number of investment shares required for a person to be eligible to make a proposal, including the time and manner of determining a value or percentage of the outstanding investment shares; (d.2) prescribing, for the purposes of paragraph 58(4)(d), the minimum amount of support required in relation to the number of times the person has submitted substantially the same proposal within the prescribed period;
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(3) Subsection 372(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (e) and by adding the following after paragraph (f): (g) prescribing any matter necessary for the purposes of the application of Part 21.1, including the time and circumstances when an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received; (h) prescribing the manner of, and conditions for, participating in a meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting; and (i) prescribing, for the purposes of subsection 65(3), the manner of, and conditions for, voting at a meeting of a cooperative by means of a telephonic, electronic or other communication facility. (4) Section 372 of the Act is amended by adding the following after subsection (1): Incorporation by reference
(2) The regulations may incorporate any material by reference, regardless of its source and either as it exists on a particular date or as amended from time to time.
Incorporated material is not a regulation
(3) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference. 228. The Act is amended by adding the following after section 372:
Fee to be paid before service performed
372.1 The fee in respect of the filing, examination, or copying of any document or in respect of any action that the Director is required or authorized to take must be paid to the Director on the filing, examination, or copying or before the Director takes the action in respect of which the fee is payable.
Sociétés par actions 229. (1) The portion of paragraph 373(2)(b) of the Act before subparagraph (i) is replaced by the following: (b) on receiving the articles or statement in the form that the Director has fixed, any other required documents and the required fees, the Director must (2) Subparagraph 373(2)(b)(iv) of the Act is replaced by the following: (iv) send the certificate, or a copy, image or photographic, electronic or other reproduction of it, to the cooperative or its agent, and 230. Sections 375 and 376 of the Act are replaced by the following:
Certificate
375. (1) The Director may provide any person with a certificate that a cooperative (a) has sent to the Director a document required to be sent; (b) has paid all required fees; or (c) exists as of a certain date.
Director may refuse to issue certificate of existence
(2) For greater certainty, the Director may refuse to issue a certificate under paragraph (1)(c) if the Director has knowledge that the cooperative is in default of sending a document required to be sent or is in default of paying a required fee.
Alteration
376. The Director may alter a notice or document, other than an affidavit or statutory declaration, if authorized to do so by the person who sent the document or by their representative.
Corrections at request of Director
376.1 (1) If there is an error in articles, a notice, a certificate or other document, the directors, members or shareholders must, on the request of the Director, pass the resolutions and send to the Director the documents required to comply with this Act, and take any other steps that the Director may reasonably require so that the Director may correct the document.
No prejudice
(2) Before proceeding under subsection (1), the Director must be satisfied that the correction would not prejudice any of the members, shareholders or creditors of the cooperative.
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(3) The Director may, at the request of the cooperative or of any other interested person, accept a correction to any of the documents referred to in subsection (1) if (a) the correction is approved by the directors of the cooperative, unless the error is obvious or was made by the Director; and (b) the Director is satisfied that the correction would not prejudice any of the members, shareholders or creditors of the cooperative and that the correction reflects the original intention of the cooperative or the incorporators, as the case may be.
Application to court
(4) If, in the view of the Director, of the cooperative or of any interested person who wishes a correction, a correction to any of the documents referred to in subsection (1) would prejudice any of the members, shareholders or creditors of a cooperative, the Director, the cooperative or the person, as the case may be, may apply to the court for an order that the document be corrected and for an order determining the rights of the members, shareholders or creditors.
Notice to Director
(5) An applicant under subsection (4) must give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.
Director may require surrender of document
(6) The Director may demand the surrender of the original document, and may issue a corrected certificate or file the corrected articles, notice or other document.
Date of corrected document
(7) A corrected document must bear the date of the document it replaces unless (a) the correction is made with respect to the date of the document, in which case the document must bear the corrected date; or (b) the court decides otherwise.
Notice
(8) If a corrected certificate materially amends the terms of the original certificate, the Director must without delay give notice of the correction in a publication generally available to the public.
Sociétés par actions
Cancellation of articles by Director
376.2 (1) In the prescribed circumstances, the Director may cancel the articles and related certificate of a cooperative.
No prejudice
(2) Before proceeding under subsection (1), the Director must be satisfied that the cancellation would not prejudice any of the members, shareholders or creditors of the cooperative.
Request to Director to cancel articles
(3) In the prescribed circumstances, the Director may, at the request of a cooperative or of any other interested person, cancel the articles and related certificate of the cooperative if (a) the cancellation is approved by the directors of the cooperative; and (b) the Director is satisfied that the cancellation would not prejudice any of the members, shareholders or creditors of the cooperative and that the cancellation reflects the original intention of the cooperative or the incorporators, as the case may be.
Application to court
(4) If, in the view of the Director, of the cooperative or of any interested person who wishes a cancellation, a cancellation of articles and a related certificate would prejudice any of the members, shareholders or creditors of a cooperative, the Director, the cooperative or the person, as the case may be, may apply to the court for an order that the articles and certificate be cancelled and for an order determining the rights of the members, shareholders or creditors.
Notice to Director
(5) An applicant under subsection (4) must give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.
Return of certificate
(6) The Director may demand the surrender of a cancelled certificate. 231. Subsection 377(1) of the Act is replaced by the following:
Inspection
377. (1) A person who has paid the required fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent under subsection 330(2), and to make copies of it or take extracts from it.
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232. Subsection 378(3) of the Act is replaced by the following: (3) The Director is not required to produce any document, other than a certificate and attached articles or statement filed under section 373, after the expiration of the prescribed period. TRANSITIONAL PROVISIONS
233. Part XIX.1 of the Canada Business Corporations Act, as enacted by section 115 of this Act, does not apply to any proceeding commenced before the coming into force of that section. 234. Part 18.1 of the Canada Cooperatives Act, as enacted by section 218 of this Act, does not apply to any proceeding commenced before the coming into force of that section. CONSEQUENTIAL AMENDMENTS 1997, c. 26
Budget Implementation Act, 1997 235. Paragraph 8(2)(n) of the Budget Implementation Act, 1997 is replaced by the following: (n) subsections 124(1) to (6) (indemnification of directors and insurance for director’s liability);
R.S., c. C-10
Canada Post Corporation Act
1993, c. 17, s. 1
236. Section 27 of the Canada Post Corporation Act is replaced by the following: 27. (1) The definitions ‘‘beneficial ownership’’, ‘‘debt obligation’’, ‘‘redeemable share’’, ‘‘security’’, ‘‘security interest’’ and ‘‘special resolution’’ in subsection 2(1) and sections 23 to 26, 34, 36 to 38 (except subsection 38(6)), 42, 43, 50, 172 and 257 of the Canada Business Corporations Act apply, with such modifications as the circumstances require, in respect of the Corporation as if the references therein to articles were references to the by-laws of the Corporation.
Canada Business Corporations Act
Assets of Corporation
(2) For the purposes of applying subsections 34(2), 36(2) and 38(3) and section 42 of the Canada Business Corporations Act in respect of the Corporation, the assets held by the Corporation as an agent of Her Majesty in right of Canada shall be deemed to be assets of the Corporation.
Sociétés par actions COMING INTO FORCE
Coming into force
237. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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TECHNICAL AMENDMENTS TO THE ENGLISH VERSION OF THE CANADA BUSINESS CORPORATIONS ACT 1. Paragraph (c) of the definition ‘‘resident Canadian’’ in subsection 2(1) is replaced by the following: (c) a permanent resident within the meaning of the Immigration Act and ordinarily resident in Canada, except a permanent resident who has been ordinarily resident in Canada for more than one year after the time at which they first became eligible to apply for Canadian citizenship; 2. Subsection 21(4) is replaced by the following: Supplemental lists
(4) A person requiring a corporation to furnish a basic list may, by stating in the affidavit referred to in subsection (3) that they require supplemental lists, require the corporation or its agent on payment of a reasonable fee to furnish supplemental lists setting out any changes from the basic list in the names or addresses of the shareholders and the number of shares owned by each shareholder for each business day following the date the basic list is made up to. 3. Section 41 is replaced by the following:
Commission for sale of shares
41. The directors may authorize the corporation to pay a reasonable commission to any person in consideration of the person’s purchasing or agreeing to purchase shares of the corporation from the corporation or from any other person, or procuring or agreeing to procure purchasers for any such shares. 4. Subsection 46(3) is replaced by the following:
2001 Effect of sale
Sociétés par actions et les (3) Where shares are sold by a corporation under subsection (1), the owner of the shares immediately prior to the sale shall by that sale be divested of their interest in the shares, and the person who, but for the sale, would be the registered owner of the shares or a person who satisfies the corporation that, but for the sale, they could properly be treated as the registered owner or registered holder of the shares under section 51 shall, from the time of the sale, be entitled to receive only the net proceeds of the sale, together with any income earned thereon from the beginning of the month next following the date of the receipt by the corporation of the proceeds of the sale, less any taxes thereon and any costs of administration of a trust fund constituted under subsection 47(1) in relation thereto. 5. (1) The definitions ‘‘bona fide purchaser’’, ‘‘broker’’ and ‘‘holder’’ in subsection 48(2) are replaced by the following:
‘‘bona fide purchaser’’ « acheteur de bonne foi »
‘‘bona fide purchaser’’ means a purchaser for value in good faith and without notice of any adverse claim who takes delivery of a security in bearer form or order form or of a security in registered form issued or endorsed to the purchaser or endorsed in blank;
‘‘broker’’ « courtier »
‘‘broker’’ means a person who is engaged, whether or not exclusively , in the business of buying and selling securities and who, in the transaction concerned, acts for, or buys a security from, or sells a security to a customer;
‘‘holder’’ « détenteur »
‘‘holder’’ means a person in possession of a security issued or endorsed to the person or the bearer or in blank;
(2) Subsection 48(5) is replaced by the following: Order form
(5) A debt obligation is in order form where, by its terms, it is payable to the order or assigns of any person therein specified with reasonable certainty or to that person’s order. (3) Subsection 48(7) is replaced by the following:
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(7) A guarantor for an issuer is deemed to be an issuer to the extent of the guarantee whether or not the obligation is noted on the security. 6. (1) Subsection 49(1) is replaced by the following:
Rights of holder
49. (1) Every security holder is entitled at their option to a security certificate that complies with this Act or a non-transferable written acknowledgment of their right to obtain such a security certificate from a corporation in respect of the securities of that corporation held by them . (2) Subsection 49(6) is replaced by the following:
Continuation of signature
(6) If a security certificate contains a printed or mechanically reproduced signature of a person, the corporation may issue the security certificate, notwithstanding that the person has ceased to be a director or an officer of the corporation, and the security certificate is as valid as if the person were a director or an officer at the date of its issue. 7. (1) The portion of subsection 51(2) before paragraph (a) is replaced by the following:
Constructive registered holder
(2) Notwithstanding subsection (1), a corporation whose articles restrict the right to transfer its securities shall, and any other corporation may, treat a person as a registered security holder entitled to exercise all the rights of the security holder that the person represents, if the person furnishes the corporation with evidence as described in subsection 77(4) that the person is (2) Subsection 51(3) is replaced by the following:
Permissible registered holder
(3) If a person on whom the ownership of a security devolves by operation of law, other than a person described in subsection (2), furnishes proof of the person’s authority to exercise rights or privileges in respect of a security of the corporation that is not registered in the person’s name, the corporation shall treat the person as entitled to exercise those rights or privileges.
Sociétés par actions et les (3) The portion of subsection 51(7) before paragraph (a) is replaced by the following:
Transmission of securities
(7) Subject to any applicable law relating to the collection of taxes, a person referred to in paragraph (2)(a) is entitled to become a registered holder, or to designate a registered holder, if the person deposits with the corporation or its transfer agent 8. Paragraph 52(1)(a) is replaced by the following: (a) if a valid security, similar in all respects to the security involved in the overissue, is reasonably available for purchase, the person entitled to the validation or issue may compel the issuer to purchase and deliver such a security against surrender of the security that the person holds; 9. Paragraph 53(d) is replaced by the following: (d) if the defendant establishes that a defence or defect exists, the plaintiff has the burden of establishing that the defence or defect is ineffective against the plaintiff or some person under whom the plaintiff claims. 10. Section 54 is replaced by the following:
Securities fungible
54. Unless otherwise agreed, and subject to any applicable law, regulation or stock exchange rule, a person required to deliver securities may deliver any security of the specified issue in bearer form or registered in the name of the transferee or endorsed to the transferee or in blank. 11. Paragraphs 56(a) and (b) are replaced by the following: (a) if the event requires the payment of money or the delivery of securities, or both, on presentation or surrender of the security, and such money or securities are available on the date set for payment or exchange, and the purchaser takes the security more than one year after that date; or (b) if the purchaser takes the security more than two years after the date set for
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presentation or surrender or the date on which such performance became due. 12. Paragraph 57(b) is replaced by the following: (b) an employee of the issuer or of a person referred to in paragraph (a) who in the ordinary course of their duties handles the security. 13. Paragraph 58(1)(a) is replaced by the following: (a) any person may complete it by filling in the blanks in accordance with their authority; and 14. Paragraphs 59(1)(b) and (c) are replaced by the following: (b) the person’s acts in connection with the issue of the security are within their authority; and (c) the person has reasonable grounds for believing that the security is in the form and within the amount the issuer is authorized to issue. 15. Subsection 60(1) is replaced by the following: Title of purchaser
60. (1) On delivery of a security the purchaser acquires the rights in the security that the transferor had or had authority to convey, except that a purchaser who has been a party to any fraud or illegality affecting the security or who as a prior holder had notice of an adverse claim does not improve their position by taking from a later bona fide purchaser. 16. Subsection 61(2) is replaced by the following:
Notice of fiduciary duty
(2) Notwithstanding that a purchaser, or any broker for a seller or purchaser, has notice that a security is held for a third person or is registered in the name of or endorsed by a fiduciary, they have no duty to inquire into the rightfulness of the transfer and have no notice of an adverse claim, except that where they know that the consideration is to be used for, or that the transaction is for, the personal benefit of the fiduciary or is otherwise in breach of the fiduciary’s duty, the purchaser or broker is deemed to have notice of an adverse claim.
Sociétés par actions et les 17. (1) Subsection 63(1) is replaced by the following:
Warranties to issuer
63. (1) A person who presents a security for registration of transfer or for payment or exchange warrants to the issuer that the person is entitled to the registration, payment or exchange, except that a purchaser for value without notice of an adverse claim who receives a new, reissued or re-registered security on registration of transfer warrants only that the purchaser has no knowledge of any unauthorized signature in a necessary endorsement. (2) Paragraph 63(2)(c) is replaced by the following: (c) the person knows of nothing that might impair the validity of the security. (3) Subsection 63(3) is replaced by the following:
Warranties of intermediary
(3) Where a security is delivered by an intermediary known by the purchaser to be entrusted with delivery of the security on behalf of another or with collection of a draft or other claim to be collected against such delivery, the intermediary by such delivery warrants only the intermediary’s good faith and authority even if the intermediary has purchased or made advances against the draft or other claim to be collected against the delivery. (4) Subsection 63(5) is replaced by the following:
Warranties of broker
(5) A broker gives to a customer, to the issuer and to a purchaser, as the case may be, the warranties provided in this section and has the rights and privileges of a purchaser under this section, and those warranties of and in favour of the broker acting as an agent are in addition to warranties given by the customer and warranties given in favour of the customer. 18. Section 64 is replaced by the following:
Right to compel endorsement
64. When a security in registered form is delivered to a purchaser without a necessary endorsement, the purchaser may become a bona fide purchaser only as of the time the endorsement is supplied, but against the
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transferor the transfer is complete on delivery and the purchaser has a specifically enforceable right to have any necessary endorsement supplied. 19. (1) Paragraph 65(1)(b) is replaced by the following: (b) if a person described in paragraph (a) is described as a fiduciary but is no longer serving in the described capacity, either that person or the person’s successor; (2) Paragraph 65(1)(g) is replaced by the following: (g) to the extent that a person described in paragraphs (a) to (f) may act through an agent, the authorized agent. (3) Subsection 65(8) is replaced by the following: Immunity of endorser
(8) Unless otherwise agreed, the endorser assumes no obligation that the security will be honoured by the issuer. (4) Subsection 65(10) is replaced by the following:
Failure of fiduciary to comply
(10) Failure of a fiduciary to comply with a controlling instrument or with the law of the jurisdiction governing the fiduciary relationship, including any law requiring the fiduciary to obtain court approval of a transfer, does not render the fiduciary’s endorsement unauthorized for the purposes of this Part. 20. (1) Paragraph 70(1)(a) is replaced by the following: (a) the purchaser or a person designated by the purchaser acquires possession of a security; (2) Paragraphs 70(1)(c) and (d) are replaced by the following: (c) the broker of the purchaser sends the purchaser confirmation of the purchase and identifies in a record a specific security as belonging to the purchaser; or (d) with respect to an identified security to be delivered while still in the possession of a third person, that person acknowledges holding it for the purchaser.
Sociétés par actions et les (3) Subsection 70(2) is replaced by the following:
Constructive ownership
(2) A purchaser is the owner of a security that a broker holds for the purchaser , but is not a holder except in the cases referred to in paragraphs (1)(b) and (c). 21. (1) Paragraphs 71(1)(a) and (b) are replaced by the following: (a) the selling customer fulfils their duty to deliver by delivering the security to the selling broker or to a person designated by the selling broker or by causing an acknowledgment to be made to the selling broker that it is held for the selling broker ; and (b) the selling broker, including a correspondent broker, acting for a selling customer fulfils their duty to deliver by delivering the security or a like security to the buying broker or to a person designated by the buying broker or by effecting clearance of the sale in accordance with the rules of the exchange on which the transaction took place. (2) Subsections 71(2) and (3) are replaced by the following:
Duty to deliver
(2) Subject to this section and unless otherwise agreed, a transferor’s duty to deliver a security under a contract of purchase is not fulfilled until the transferor delivers the security in negotiable form to the purchaser or to a person designated by the purchaser, or causes an acknowledgment to be made to the purchaser that the security is held for the purchaser.
Delivery to broker
(3) A sale to a broker purchasing for the broker’s own account is subject to subsection (2) and not subsection (1), unless the sale is made on a stock exchange. 22. Subsection 72(1) is replaced by the following:
Right to reclaim possession
72. (1) A person against whom the transfer of a security is wrongful for any reason, including incapacity, may against anyone except a bona fide purchaser reclaim possession of the security or obtain possession of any new security evidencing all or part of the same rights or claim damages.
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23. Subsection 73(1) is replaced by the following: Right to requisites for registration
73. (1) Unless otherwise agreed, a transferor shall on demand supply a purchaser with proof of authority to transfer or with any other requisite that is necessary to obtain registration of the transfer of a security, but if the transfer is not for value a transferor need not do so unless the purchaser pays the reasonable and necessary costs of the proof and transfer. 24. Section 75 is replaced by the following:
No conversion if good faith delivery by agent
75. An agent or bailee who in good faith, including observance of reasonable commercial standards if the agent or bailee is in the business of buying, selling or otherwise dealing with securities of a corporation, has received securities and sold, pledged or delivered them according to the instructions of their principal is not liable for conversion or for participation in breach of fiduciary duty although the principal has no right to dispose of them. 25. (1) The portion of subsection 78(2) before paragraph (a) is replaced by the following:
Discharge of duty
(2) An issuer may discharge a duty of inquiry by any reasonable means, including notifying an adverse claimant by registered mail sent to the address furnished by the claimant or, if no such address has been furnished, to the claimant’s residence or regular place of business, that a security has been presented for registration of transfer by a named person, and that the transfer will be registered unless within thirty days from the date of mailing the notice either (2) Paragraph 78(3)(c) is replaced by the following: (c) an issuer is deemed not to have notice of the contents of any court record or any registered document even if the record or document is in the issuer’s possession and even if the transfer is made on the endorsement of a fiduciary to the fiduciary or the fiduciary’s nominee.
Sociétés par actions et les 26. (1) Subsection 80(1) is replaced by the following:
Notice of lost or stolen security
80. (1) Where a security has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the issuer of that fact by giving the issuer written notice of an adverse claim within a reasonable time after discovering the loss, destruction or taking and if the issuer has registered a transfer of the security before receiving such notice, the owner is precluded from asserting against the issuer any claim to a new security. (2) Subsection 80(4) is replaced by the following:
Right of issuer to recover
(4) In addition to any rights on an indemnity bond, the issuer may recover a new security issued under subsection (2) from the person to whom it was issued or anyone taking under the person other than a bona fide purchaser. 27. (1) Subsection 83(1) is replaced by the following:
Conflict of interest
83. (1) No person shall be appointed as trustee if there is a material conflict of interest between their role as trustee and their role in any other capacity. (2) The portion of subsection 83(2) before paragraph (a) is replaced by the following:
Eliminating conflict of interest
(2) A trustee shall, within ninety days after becoming aware that a material conflict of interest exists 28. Paragraphs 88(a) to (c) are replaced by the following: (a) declaring that they have read and understand the conditions of the trust indenture described in section 86; (b) describing the nature and scope of the examination or investigation on which the certificate, statement or opinion is based; and (c) declaring that they have made the examination or investigation that they believe necessary to enable them to make their statements or give their opinions.
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29. The portion of section 91 before paragraph (a) is replaced by the following: Duty of care
91. A trustee in exercising their powers and discharging their duties shall 30. Sections 92 and 93 are replaced by the following:
Reliance on statements
92. Notwithstanding section 91, a trustee is not liable if they rely in good faith on statements contained in a statutory declaration, certificate, opinion or report that complies with this Act or the trust indenture.
No exculpation
93. No term of a trust indenture or of any agreement between a trustee and the holders of debt obligations issued thereunder or between the trustee and the issuer or guarantor shall operate so as to relieve a trustee from the duties imposed on the trustee by section 91. 31. Sections 94 and 95 are replaced by the following:
Functions of receiver
94. A receiver of any property of a corporation may, subject to the rights of secured creditors, receive the income from the property and pay the liabilities connected with the property and realize the security interest of those on behalf of whom the receiver is appointed, but, except to the extent permitted by a court, the receiver may not carry on the business of the corporation.
Functions of receivermanager
95. A receiver of a corporation who is also appointed receiver-manager of the corporation may carry on any business of the corporation to protect the security interest of those on behalf of whom the receiver is appointed. 32. Paragraph 99(b) is replaced by the following: (b) deal with any property of the corporation in their possession or control in a commercially reasonable manner. 33. (1) Paragraph 100(a) is replaced by the following: (a) an order appointing, replacing or discharging a receiver or receiver-manager and approving their accounts;
Sociétés par actions et les (2) Paragraph 100(d) is replaced by the following: (d) an order requiring the receiver or receiver-manager, or a person by or on behalf of whom the receiver or receivermanager is appointed, to make good any default in connection with the receiver’s or receiver-manager’s custody or management of the property and business of the corporation, or to relieve any such person from any default on such terms as the court thinks fit, and to confirm any act of the receiver or receiver-manager; and 34. Section 101 is replaced by the following:
Duties of receiver and receivermanager
101. A receiver or receiver-manager shall (a) immediately notify the Director of their appointment and discharge; (b) take into their custody and control the property of the corporation in accordance with the court order or instrument under which they are appointed; (c) open and maintain a bank account in their name as receiver or receiver-manager of the corporation for the moneys of the corporation coming under their control; (d) keep detailed accounts of all transactions carried out as receiver or receivermanager; (e) keep accounts of their administration that shall be available during usual business hours for inspection by the directors of the corporation; (f) prepare at least once in every six month period after the date of their appointment financial statements of their administration as far as is practicable in the form required by section 155; and (g) on completion of their duties, render a final account of their administration in the form adopted for interim accounts under paragraph (f). 35. Subsection 106(5) is replaced by the following:
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(5) A director not elected for an expressly stated term ceases to hold office at the close of the first annual meeting of shareholders following the director’s election. 36. (1) Paragraph 107(b) is replaced by the following: (b) each shareholder entitled to vote at an election of directors has the right to cast a number of votes equal to the number of votes attached to the shares held by the shareholder multiplied by the number of directors to be elected, and may cast all of those votes in favour of one candidate or distribute them among the candidates in any manner; (2) Paragraph 107(d) is replaced by the following: (d) if a shareholder has voted for more than one candidate without specifying the distribution of votes, the shareholder is deemed to have distributed the votes equally among those candidates; (3) Paragraph 107(f) is replaced by the following: (f) each director ceases to hold office at the close of the first annual meeting of shareholders following the director’s election; 37. Subsection 108(1) is replaced by the following:
Ceasing to hold office
108. (1) A director of a corporation ceases to hold office when the director (a) dies or resigns; (b) is removed in accordance with section 109; or (c) becomes disqualified under subsection 105(1). 38. The portion of subsection 110(2) after paragraph (a) is replaced by the following: (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the director from office, or (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed or
Sociétés par actions et les elected to fill the office of director, whether because of the director’s resignation or removal or because the director’s term of office has expired or is about to expire, is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing any proposed action or resolution. 39. Subsection 111(5) is replaced by the following:
Unexpired term
(5) A director appointed or elected to fill a vacancy holds office for the unexpired term of their predecessor. 40. Section 116 is replaced by the following:
Validity of acts of directors and officers
116. An act of a director or officer is valid notwithstanding an irregularity in their election or appointment or a defect in their qualification. 41. Subsection 118(6) is replaced by the following:
No liability
(6) A director who proves that the director did not know and could not reasonably have known that the share was issued for a consideration less than the fair equivalent of the money that the corporation would have received if the share had been issued for money is not liable under subsection (1). 42. (1) Subsection 119(3) is replaced by the following:
Limitation
(3) A director, unless sued for a debt referred to in subsection (1) while a director or within two years after ceasing to be a director, is not liable under this section. (2) Subsection 119(5) is replaced by the following:
Subrogation of director
(5) Where a director pays a debt referred to in subsection (1) that is proved in liquidation and dissolution or bankruptcy proceedings, the director is entitled to any preference that the employee would have been entitled to, and where a judgment has been obtained, the director is entitled to an assignment of the judgment.
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43. (1) The portion of subsection 122(1) before paragraph (a) is replaced by the following: Duty of care of directors and officers
122. (1) Every director and officer of a corporation in exercising their powers and discharging their duties shall (2) Subsection 122(3) is replaced by the following:
No exculpation
(3) Subject to subsection 146(5), no provision in a contract, the articles, the by-laws or a resolution relieves a director or officer from the duty to act in accordance with this Act or the regulations or relieves them from liability for a breach thereof. 44. (1) Subsection 123(1) is replaced by the following: 123. (1) A director who is present at a meeting of directors or committee of directors is deemed to have consented to any resolution passed or action taken at the meeting unless (a) the director requests a dissent to be entered in the minutes of the meeting, or the dissent has been entered in the minutes; (b) the director sends a written dissent to the secretary of the meeting before the meeting is adjourned; or (c) the director sends a dissent by registered mail or delivers it to the registered office of the corporation immediately after the meeting is adjourned. (2) Subsection 123(3) is replaced by the following:
Dissent of absent director
(3) A director who was not present at a meeting at which a resolution was passed or action taken is deemed to have consented thereto unless within seven days after becoming aware of the resolution, the director (a) causes a dissent to be placed with the minutes of the meeting; or (b) sends a dissent by registered mail or delivers it to the registered office of the corporation. 45. Paragraph 126(2)(c) is replaced by the following: (c) a person is deemed to beneficially own shares that are beneficially owned by a
Sociétés par actions et les body corporate controlled directly or indirectly by the person; 46. Section 136 is replaced by the following:
Waiver of notice
136. A shareholder or any other person entitled to attend a meeting of shareholders may in any manner waive notice of a meeting of shareholders, and their attendance at a meeting of shareholders is a waiver of notice of the meeting, except where they attend a meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called. 47. Subsection 140(3) is replaced by the following:
Powers of representative
(3) An individual authorized under subsection (2) may exercise on behalf of the body corporate or association all the powers it could exercise if it were an individual shareholder. 48. The definition ‘‘proxy’’ in section 147 is replaced by the following:
‘‘proxy’’ « procuration »
‘‘proxy’’ means a completed and executed form of proxy by means of which a shareholder appoints a proxyholder to attend and act on the shareholder’s behalf at a meeting of shareholders; 49. (1) Subsection 148(2) is replaced by the following:
Execution of proxy
(2) A proxy shall be executed by the shareholder or by the shareholder’s attorney authorized in writing. (2) The portion of paragraph 148(4)(a) before subparagraph (i) is replaced by the following: (a) by depositing an instrument in writing executed by the shareholder or by the shareholder’s attorney authorized in writing 50. (1) Subsection 152(2) is replaced by the following:
Right of a proxyholder
(2) A proxyholder or an alternate proxyholder has the same rights as the shareholder by whom they were appointed to speak at a meeting of shareholders in respect of any matter, to vote by way of ballot at the meeting
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and, except where a proxyholder or an alternate proxyholder has conflicting instructions from more than one shareholder, to vote at such a meeting in respect of any matter by way of any show of hands. (2) Paragraph 152(3)(a) is replaced by the following: (a) the chairperson may conduct the vote in respect of that matter or group of matters by a show of hands; and 51. Subsection 159(1) is replaced by the following: Copies to shareholders
159. (1) A corporation shall, not less than twenty-one days before each annual meeting of shareholders or before the signing of a resolution under paragraph 142(1)(b) in lieu of the annual meeting, send a copy of the documents referred to in section 155 to each shareholder, except to a shareholder who has informed the corporation in writing that he or she does not want a copy of those documents. 52. (1) Subsection 161(1) is replaced by the following:
Qualification of auditor
161. (1) Subject to subsection (5), a person is disqualified from being an auditor of a corporation if the person is not independent of the corporation, any of its affiliates, or the directors or officers of any such corporation or its affiliates. (2) Subsection 161(3) is replaced by the following:
Duty to resign
(3) An auditor who becomes disqualified under this section shall, subject to subsection (5), resign forthwith after becoming aware of the disqualification. 53. Subsection 164(1) is replaced by the following:
Ceasing to hold office
164. (1) An auditor of a corporation ceases to hold office when the auditor (a) dies or resigns; or (b) is removed pursuant to section 165. 54. Subsection 166(4) is replaced by the following:
2001 Unexpired term
Sociétés par actions et les (4) An auditor appointed to fill a vacancy holds office for the unexpired term of the auditor’s predecessor. 55. (1) Subsections 168(1) and (2) are replaced by the following:
Right to attend meeting
168. (1) The auditor of a corporation is entitled to receive notice of every meeting of shareholders and, at the expense of the corporation, to attend and be heard on matters relating to the auditor’s duties.
Duty to attend
(2) If a director or shareholder of a corporation, whether or not the shareholder is entitled to vote at the meeting, gives written notice not less than ten days before a meeting of shareholders to the auditor or a former auditor of the corporation, the auditor or former auditor shall attend the meeting at the expense of the corporation and answer questions relating to their duties as auditor. (2) Subsection 168(5) is replaced by the following:
Statement of auditor
(5) An auditor is entitled to submit to the corporation a written statement giving reasons for resigning or for opposing any proposed action or resolution when the auditor (a) resigns; (b) receives a notice or otherwise learns of a meeting of shareholders called for the purpose of removing the auditor from office; (c) receives a notice or otherwise learns of a meeting of directors or shareholders at which another person is to be appointed to fill the office of auditor, whether because of the resignation or removal of the incumbent auditor or because the auditor’s term of office has expired or is about to expire; or (d) receives a notice or otherwise learns of a meeting of shareholders at which a resolution referred to in section 163 is to be proposed. (3) Subsections 168(7) and (8) are replaced by the following:
Replacing auditor
(7) No person shall accept appointment or consent to be appointed as auditor of a corporation to replace an auditor who has resigned, been removed or whose term of
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office has expired or is about to expire until the person has requested and received from that auditor a written statement of the circumstances and the reasons, in that auditor’s opinion, for their replacement . Exception
(8) Notwithstanding subsection (7), a person otherwise qualified may accept appointment or consent to be appointed as auditor of a corporation if, within fifteen days after making the request referred to in that subsection, the person does not receive a reply. 56. Subsection 169(1) is replaced by the following:
Examination
169. (1) An auditor of a corporation shall make the examination that is in their opinion necessary to enable them to report in the prescribed manner on the financial statements required by this Act to be placed before the shareholders, except such financial statements or part thereof that relate to the period referred to in subparagraph 155(1)(a)(ii). 57. (1) The portion of subsection 170(1) after paragraph (b) is replaced by the following: as are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169 and that the directors, officers, employees or agents are reasonably able to furnish. (2) Paragraph 170(2)(a) is replaced by the following: (a) obtain from the present or former directors, officers, employees and agents of any subsidiary of the corporation the information and explanations that the present or former directors, officers, employees and agents are reasonably able to furnish and that are, in the opinion of the auditor, necessary to enable the auditor to make the examination and report required under section 169; and 58. Subsections 171(6) and (7) are replaced by the following:
Notice of errors
(6) A director or an officer of a corporation shall forthwith notify the audit committee and the auditor of any error or mis-statement of which the director or officer becomes aware in
Sociétés par actions et les a financial statement that the auditor or a former auditor has reported on.
Error in financial statements
(7) An auditor or former auditor of a corporation who is notified or becomes aware of an error or mis-statement in a financial statement on which they have reported, if in their opinion the error or mis-statement is material, shall inform each director accordingly. 59. Subsection 175(2) is replaced by the following:
Notice of amendment
(2) Notice of a meeting of shareholders at which a proposal to amend the articles is to be considered shall set out the proposed amendment and, where applicable, shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amendment. 60. Paragraph 183(2)(b) is replaced by the following: (b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate an amalgamation. 61. Subsection 187(8) is replaced by the following:
Issued shares
(8) Subject to subsection 49(8), a share of a body corporate issued before the body corporate was continued under this Act is deemed to have been issued in compliance with this Act and with the provisions of the articles of continuance irrespective of whether the share is fully paid and irrespective of any designation, rights, privileges, restrictions or conditions set out on or referred to in the certificate representing the share; and continuance under this section does not deprive a holder of any right or privilege that the holder claims under, or relieve the holder of any liability in respect of, an issued share. 62. Subsection 188(3) is replaced by the following:
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(3) A notice of a meeting of shareholders complying with section 135 shall be sent in accordance with that section to each shareholder and shall state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a discontinuance under this Act. 63. Paragraph 189(4)(b) is replaced by the following: (b) state that a dissenting shareholder is entitled to be paid the fair value of their shares in accordance with section 190, but failure to make that statement does not invalidate a sale, lease or exchange referred to in subsection (3). 64. (1) Subsections 190(3) to (8) are replaced by the following:
Payment for shares
(3) In addition to any other right the shareholder may have, but subject to subsection (26), a shareholder who complies with this section is entitled, when the action approved by the resolution from which the shareholder dissents or an order made under subsection 192(4) becomes effective, to be paid by the corporation the fair value of the shares in respect of which the shareholder dissents, determined as of the close of business on the day before the resolution was adopted or the order was made.
No partial dissent
(4) A dissenting shareholder may only claim under this section with respect to all the shares of a class held on behalf of any one beneficial owner and registered in the name of the dissenting shareholder.
Objection
(5) A dissenting shareholder shall send to the corporation, at or before any meeting of shareholders at which a resolution referred to in subsection (1) or (2) is to be voted on, a written objection to the resolution, unless the corporation did not give notice to the shareholder of the purpose of the meeting and of their right to dissent.
Notice of resolution
(6) The corporation shall, within ten days after the shareholders adopt the resolution, send to each shareholder who has filed the objection referred to in subsection (5) notice that the resolution has been adopted, but such
Sociétés par actions et les notice is not required to be sent to any shareholder who voted for the resolution or who has withdrawn their objection.
Demand for payment
(7) A dissenting shareholder shall, within twenty days after receiving a notice under subsection (6) or, if the shareholder does not receive such notice, within twenty days after learning that the resolution has been adopted, send to the corporation a written notice containing (a) the shareholder’s name and address; (b) the number and class of shares in respect of which the shareholder dissents; and (c) a demand for payment of the fair value of such shares.
Share certificate
(8) A dissenting shareholder shall, within thirty days after sending a notice under subsection (7), send the certificates representing the shares in respect of which the shareholder dissents to the corporation or its transfer agent. (2) Subsection 190(11) is replaced by the following:
Suspension of rights
(11) On sending a notice under subsection (7), a dissenting shareholder ceases to have any rights as a shareholder other than to be paid the fair value of their shares as determined under this section except where (a) the shareholder withdraws that notice before the corporation makes an offer under subsection (12), (b) the corporation fails to make an offer in accordance with subsection (12) and the shareholder withdraws the notice, or (c) the directors revoke a resolution to amend the articles under subsection 173(2) or 174(5), terminate an amalgamation agreement under subsection 183(6) or an application for continuance under subsection 188(6), or abandon a sale, lease or exchange under subsection 189(9), in which case the shareholder’s rights are reinstated as of the date the notice was sent . (3) Paragraph 190(12)(a) is replaced by the following: (a) a written offer to pay for their shares in an amount considered by the directors of the
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corporation to be the fair value, accompanied by a statement showing how the fair value was determined; or (4) Paragraph 190(19)(b) is replaced by the following: (b) the corporation shall notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. (5) Paragraph 190(25)(a) is replaced by the following: (a) withdraw their notice of dissent, in which case the corporation is deemed to consent to the withdrawal and the shareholder is reinstated to their full rights as a shareholder; or 65. (1) Subparagraphs 206(3)(c)(i) and (ii) are replaced by the following: (i) to transfer their shares to the offeror on the terms on which the offeror acquired the shares of the offerees who accepted the take-over bid, or (ii) to demand payment of the fair value of the shares in accordance with subsections (9) to (18) by notifying the offeror within twenty days after receiving the offeror’s notice; (2) Paragraph 206(3)(e) is replaced by the following: (e) a dissenting offeree must send their shares to which the take-over bid relates to the offeree corporation within twenty days after receiving the offeror’s notice. (3) Subsection 206(11) is replaced by the following: Status of dissenter if no court application
(11) Where no application is made to a court under subsection (10) within the period set out in that subsection, a dissenting offeree is deemed to have elected to transfer their shares to the offeror on the same terms that the offeror acquired the shares from the offerees who accepted the take-over bid. (4) Paragraph 206(14)(b) is replaced by the following:
Sociétés par actions et les (b) the offeror shall notify each affected dissenting offeree of the date, place and consequences of the application and of their right to appear and be heard in person or by counsel. (5) Subsection 206(17) is replaced by the following:
Final order
(17) The final order of the court shall be made against the offeror in favour of each dissenting offeree and for the amount for the shares as fixed by the court. (6) Paragraph 206(18)(c) is replaced by the following: (c) allow a reasonable rate of interest on the amount payable to each dissenting offeree from the date they send or deliver their share certificates under subsection (5) until the date of payment; and 66. The portion of subsection 212(2) before paragraph (b) is replaced by the following:
Publication
(2) The Director shall not dissolve a corporation under this section until the Director has (a) given one hundred and twenty days notice of the decision to dissolve the corporation to the corporation and to each director thereof; and 67. Paragraph 217(o) is replaced by the following: (o) after the liquidator has rendered a final account to the court, an order dissolving the corporation. 68. Subsection 219(2) is replaced by the following:
Delegation by liquidator
(2) The liquidator may delegate any powers vested in the liquidator by paragraph (1)(b) to the directors or shareholders. 69. (1) Paragraph 221(a) is replaced by the following: (a) forthwith after appointment give notice thereof to the Director and to each claimant and creditor known to the liquidator;
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(2) Paragraph 221(c) is replaced by the following: (c) take into custody and control the property of the corporation; (3) Paragraphs 221(h) and (i) are replaced by the following: (h) deliver to the court and to the Director, at least once in every twelve month period after appointment or more often as the court may require, financial statements of the corporation in the form required by section 155 or in such other form as the liquidator may think proper or as the court may require; and (i) after the final accounts are approved by the court, distribute any remaining property of the corporation among the shareholders according to their respective rights. 70. Subsection 222(3) is replaced by the following: Application for examination
(3) If a liquidator has reason to believe that any person has in their possession or under their control, or has concealed, withheld or misappropriated any property of the corporation, the liquidator may apply to the court for an order requiring that person to appear before the court at the time and place designated in the order and to be examined. 71. The portion of subsection 223(2) before paragraph (b) is replaced by the following:
Final accounts
(2) Within one year after appointment, and after paying or making adequate provision for all claims against the corporation, the liquidator shall apply to the court (a) for approval of the final accounts and for an order permitting the liquidator to distribute in money or in kind the remaining property of the corporation to its shareholders according to their respective rights; or 72. The portion of subsection 226(5) before paragraph (b) is replaced by the following:
Representative action
(5) A court may order an action referred to in subsection (4) to be brought against the persons who were shareholders as a class, subject to such conditions as the court thinks
Sociétés par actions et les fit and, if the plaintiff establishes a claim, the court may refer the proceedings to a referee or other officer of the court who may (a) add as a party to the proceedings each person who was a shareholder found by the plaintiff; 73. Subsection 227(3) is replaced by the following:
Recovery
(3) A person who establishes an entitlement to any moneys paid to the Receiver General under this Act shall be paid by the Receiver General an equivalent amount out of the Consolidated Revenue Fund. 74. Subsection 229(3) is replaced by the following:
Notice to Director
(3) A security holder who makes an application under subsection (1) shall give the Director reasonable notice thereof and the Director is entitled to appear and be heard in person or by counsel. 75. (1) The portion of subsection 235(1) before paragraph (a) is replaced by the following:
Information respecting ownership and control
235. (1) If the Director is satisfied that, for the purposes of Part XI, XIII or XVII, or for the purposes of enforcing any regulation made under section 174, there is reason to inquire into the ownership or control of a security of a corporation or any of its affiliates, the Director may require any person that the Director reasonably believes has or has had an interest in the security or acts or has acted on behalf of a person with such an interest to report to him or her or to any person the Director designates (2) Subsection 235(2) is replaced by the following:
Constructive interest in securities
(2) For the purposes of subsection (1), a person is deemed to have an interest in a security if (a) the person has a right to vote or to acquire or dispose of the security or any interest therein; (b) the person’s consent is necessary for the exercise of the rights or privileges of any other person interested in the security; or
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(c) any other person interested in the security can be required or is accustomed to exercise rights or privileges attached to the security in accordance with the person’s instructions. 76. Section 236 is replaced by the following: Solicitor-client privilege
236. Nothing in this Part shall be construed as affecting solicitor-client privilege. 77. Paragraph 241(3)(g) is replaced by the following: (g) an order directing a corporation, subject to subsection (6), or any other person, to pay a security holder any part of the monies that the security holder paid for securities; 78. Paragraph 243(3)(c) is replaced by the following: (c) an order determining the right of a party to the proceedings to have their name entered or retained in, or deleted or omitted from, the registers or records of the corporation, whether the issue arises between two or more security holders or alleged security holders, or between the corporation and any security holders or alleged security holders; and 79. Section 244 is replaced by the following:
Application for directions
244. The Director may apply to a court for directions in respect of any matter concerning the Director’s duties under this Act, and on such application the court may give such directions and make such further order as it thinks fit. 80. Section 245 is replaced by the following:
Notice of refusal by Director
245. (1) If the Director refuses to file any articles or other document that this Act requires the Director to file before the articles or other document become effective, the Director shall, within twenty days after receiving them or twenty days after receiving any approval that may be required under any other Act, whichever is later, give written notice of the refusal to the person who sent the articles or document, giving reasons.
2001 Deemed refusal
Sociétés par actions et les (2) If the Director does not file or give written notice of the refusal to file any articles or document within the time limited therefor in subsection (1), the Director is deemed for the purposes of section 246 to have refused to file the articles or document. 81. Section 247 is replaced by the following:
Restraining or compliance order
247. If a corporation or any director, officer, employee, agent, auditor, trustee, receiver, receiver-manager or liquidator of a corporation does not comply with this Act, the regulations, articles, by-laws, or a unanimous shareholder agreement, a complainant or a creditor of the corporation may, in addition to any other right they have , apply to a court for an order directing any such person to comply with, or restraining any such person from acting in breach of, any provisions thereof, and on such application the court may so order and make any further order it thinks fit. 82. Subsection 250(3) is replaced by the following:
Immunity
(3) No person is guilty of an offence under subsection (1) or (2) if the person did not know, and in the exercise of reasonable diligence could not have known, of the untrue statement or omission. 83. Subsection 252(1) is replaced by the following:
Order to comply
252. (1) Where a person is guilty of an offence under this Act or the regulations, any court in which proceedings in respect of the offence are taken may, in addition to any punishment it may impose, order that person to comply with the provisions of this Act or the regulations for the contravention of which the person has been convicted. 84. (1) Paragraphs 253(1)(a) and (b) are replaced by the following: (a) the shareholder at the shareholder’s latest address as shown in the records of the corporation or its transfer agent; and (b) the director at the director’s latest address as shown in the records of the corporation or in the last notice filed under section 106 or 113.
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Deemed receipt
Proof required by Director
Date of certificate
Alteration
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(2) Subsection 253(3) is replaced by the following: (3) A notice or document sent in accordance with subsection (1) to a shareholder or director of a corporation is deemed to be received at the time it would be delivered in the ordinary course of mail unless there are reasonable grounds for believing that the shareholder or director did not receive the notice or document at that time or at all. 85. Subsection 259(1) is replaced by the following: 259. (1) The Director may require that a document or a fact stated in a document required by this Act or the regulations to be sent to the Director shall be verified in accordance with subsection (2). 86. Subsection 262(3) is replaced by the following: (3) A certificate referred to in subsection (2) issued by the Director may be dated as of the day the Director receives the articles, statement or court order pursuant to which the certificate is issued or as of any later day specified by the court or person who signed the articles or statement. 87. Section 264 is replaced by the following: 264. The Director may alter a notice or document, other than an affidavit or statutory declaration, if authorized by the person who sent the document or by that person’s representative.
Published under authority of the Senate of Canada Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 28
An Act to implement the Free Trade Agreement between the Government of Canada and the Government of the Republic of Costa Rica
BILL C-32 ASSENTED TO 18th DECEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to implement the Free Trade Agreement between the Government of Canada and the Government of the Republic of Costa Rica’’.
SUMMARY This enactment implements the Free Trade Agreement between Canada and Costa Rica (the Agreement), signed by the Minister for International Trade at Ottawa on April 23, 2001. The general provisions of the enactment specify that no recourse may be taken on the basis of the provisions of Part 1 of the enactment or any order made under that Part, or the provisions of the Agreement itself, without the consent of the Attorney General of Canada. Part 1 of the enactment approves the Agreement and provides for the designation or appointment of Ministers or other persons to carry out various functions of the Agreement, the payment by Canada of its share of the expenditures associated with the operation of the institutional aspects of the Agreement and the power of the Governor in Council to make regulations for carrying out the provisions of the enactment. Part 2 of the enactment amends existing laws in order to bring them into conformity with Canada’s obligations under the Agreement. Part 3 of the enactment states that the Governor in Council may not issue an order bringing into force any of the provisions of the enactment until the Governor in Council is satisfied that Costa Rica has taken satisfactory steps to implement the Agreement.
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TABLE OF PROVISIONS
AN ACT TO IMPLEMENT THE FREE TRADE AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF COSTA RICA
SHORT TITLE
1. Short title INTERPRETATION
2. Definitions
3. Interpretation consistent with Agreement
4. Purpose
PURPOSE
HER MAJESTY
5. Binding on Her Majesty GENERAL
6. Causes of action under Part 1
7. Non-application of Agreement to water
8. Construction PART 1 IMPLEMENTATION OF AGREEMENT GENERALLY Approval of Agreement
9. Agreement approved Designation of Minister
10. Order designating Minister Administrative and Institutional Provisions
11. Commission
12. Payment of expenditures
13. Administrative support Panels, Committees, Subcommittees and Working Groups
14. Appointments to roster
15. Appointments to certain committees
16. Costs
�� Orders and Regulations 17.
Regulations re Article III.8
18. Orders re Article XIII.18
PART 2 RELATED AND CONSEQUENTIAL AMENDMENTS 19-25. Canadian International Trade Tribunal Act 26-30. Customs Act 31-46. Customs Tariff 47-50. Export and Import Permits Act 51.
Financial Administration Act
52-53. Importation of Intoxicating Liquors Act 54-59. National Energy Board Act
PART 3
60. COMING INTO FORCE Coming into force
SCHEDULES 1 TO 3
49-50 ELIZABETH II CHAPTER 28 An Act to implement the Free Trade Agreement between the Government of Canada and the Government of the Republic of Costa Rica [Assented to 18th December, 2001] Preamble
WHEREAS the Government of Canada and the Government of the Republic of Costa Rica have entered into a Free Trade Agreement having resolved to strengthen the special bonds of friendship and cooperation among their peoples, contribute to the harmonious development and expansion of world and regional trade and provide a catalyst to broader international cooperation, create new employment opportunities and improve working conditions and living standards in their respective territories, recognize the differences in the level of development and the size of their respective economies and create opportunities for economic development, create an expanded and secure market for the goods and services produced in their territories, reduce distortions to trade, establish clear and mutually advantageous rules governing their trade, ensure a predictable commercial framework for business planning and investment, recognize the importance of trade facilitation in promoting efficient and transparent procedures to reduce costs and to ensure predictability for their importers and exporters, build on their respective rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization and other multilateral and bilateral instruments of cooperation,
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promote regional integration with an instrument that will contribute to the establishment of the Free Trade Area of the Americas (FTAA), enhance the competitiveness of their firms in global markets, ensure that the benefits of trade liberalization are not undermined by anticompetitive activities, promote sustainable development, undertake each of the preceding in a manner consistent with environmental protection and conservation, preserve their flexibility to safeguard the public welfare, recognize that States have the ability to preserve, develop and implement their cultural policies for the purpose of strengthening cultural diversity, and recognize the increased cooperation between Canada and Costa Rica on labour and environmental cooperation;
WHEREAS the Government of Canada has entered into the Agreement having further resolved to strengthen Canada’s national identity while at the same time protecting vital national characteristics and qualities, and strengthen the Canadian economy and Canada’s competitiveness as a trading nation; WHEREAS the Agreement applies generally throughout Canada; AND WHEREAS it is necessary, in order to give effect to the Agreement, to make related or consequential amendments to certain Acts; NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
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Accord de libre-échan SHORT TITLE
Short title
1. This Act may be cited as the Canada– Costa Rica Free Trade Agreement Implementation Act. INTERPRETATION
Definitions
2. (1) The definitions in this subsection apply in this Act.
‘‘Agreement’’ « Accord »
‘‘Agreement’’ means the Free Trade Agreement entered into between the Government of Canada and the Government of the Republic of Costa Rica and signed on April 23, 2001, and includes any rectifications to it made before its ratification by Canada.
‘‘Commission’’ « Commission »
‘‘Commission’’ means the Free Trade Commission established under Article XIII.1 of the Agreement.
‘‘federal law’’ « texte législatif fédéral »
‘‘federal law’’ means the whole or any portion of an Act of Parliament or a regulation, order or other instrument issued, made or established in the exercise of a power conferred by or under an Act of Parliament.
‘‘Minister’’ « ministre »
‘‘Minister’’, in respect of any provision of this Act, means the member of the Queen’s Privy Council for Canada designated under section 10 as the Minister for the purposes of that provision.
‘‘territory’’ « territoire »
‘‘territory’’ means (a) with respect to Canada, the territory to which its customs laws apply, including any areas beyond the territorial seas of Canada within which, in accordance with international law and its domestic law, Canada may exercise rights with respect to the seabed and subsoil and their natural resources; and (b) with respect to Costa Rica, the territory and air space, and the maritime areas, including the seabed and subsoil adjacent to the outer limit of the territorial sea, over which it exercises, in accordance with international law and its domestic law, sovereign rights with respect to the natural resources of such areas.
Publication of Agreement
(2) The Agreement shall be published in the Canada Treaty Series.
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3. For greater certainty, this Act, any provision of an Act enacted or amended by Part 2 and any other federal law that implements a provision of the Agreement or fulfils an obligation of the Government of Canada under the Agreement shall be interpreted in a manner consistent with the Agreement.
PURPOSE Purpose
4. The purpose of this Act is to implement the Agreement, the objectives of which, as elaborated more specifically through its provisions, are to (a) establish a free trade area in accordance with the Agreement; (b) promote regional integration through an instrument that contributes to the establishment of the Free Trade Area of the Americas (FTAA) and to the progressive elimination of barriers to trade and investment; (c) create opportunities for economic development; (d) eliminate barriers to trade in, and facilitate the cross-border movement of, goods and services between the territories of Canada and Costa Rica; (e) substantially increase investment opportunities in the territories of Canada and Costa Rica; (f) facilitate trade in services and investment with a view to developing and deepening the relations of Canada and Costa Rica under the Agreement; (g) promote conditions of fair competition in the free-trade area established by the Agreement; (h) establish a framework for further bilateral, regional and multilateral cooperation to expand and enhance the benefits of the Agreement; and (i) create effective procedures for the implementation and application of the Agreement, for its joint administration and for the resolution of disputes.
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Accord de libre-échan HER MAJESTY
Binding on Her Majesty
5. This Act is binding on Her Majesty in right of Canada. GENERAL
Causes of action under Part 1
6. (1) No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of Part 1 or an order or regulation made under Part 1.
Causes of action under the Agreement
(2) No person has any cause of action and no proceedings of any kind shall be taken, without the consent of the Attorney General of Canada, to enforce or determine any right or obligation that is claimed or arises solely under or by virtue of the Agreement.
Non-application of Agreement to water
7. For greater certainty, nothing in this Act or the Agreement applies to natural surface or ground water in liquid, gaseous or solid state.
Construction
8. For greater certainty, nothing in this Act, by specific mention or omission, shall be construed to affect in any manner the right of Parliament to enact legislation to implement any provision of the Agreement or fulfil any of the obligations of the Government of Canada under the Agreement.
PART 1 IMPLEMENTATION OF AGREEMENT GENERALLY Approval of Agreement Agreement approved
9. The Agreement is hereby approved. Designation of Minister
Order designating Minister
10. The Governor in Council may, by order, designate any member of the Queen’s Privy Council for Canada to be the Minister for the purposes of any provision of this Act.
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Administrative and Institutional Provisions Commission
11. The Minister for International Trade is the principal representative of Canada on the Commission.
Payment of expenditures
12. The Government of Canada shall pay its appropriate share of the aggregate of any expenditures incurred by or on behalf of the Commission.
Administrative support
13. The Minister for International Trade shall designate an agency, division or branch of the Government of Canada to facilitate the operation of, and provide administrative assistance to panels established under, Chapter XIII of the Agreement.
Panels, Committees, Subcommittees and Working Groups Appointments to roster
14. The Governor in Council may, in accordance with a consensus reached under Article XIII.9 of the Agreement, appoint any person to be a member of the roster established under that Article.
Appointments to committees, subcommittees and working groups
15. The Minister may appoint any person to be a representative of Canada on any committee or subcommittee referred to in Annex XIII.2.2 of the Agreement or on any committee, subcommittee or working group established under Article XIII.1.5 of the Agreement.
Costs
16. The Government of Canada shall, in accordance with Annex XIII.3.2 of the Agreement, pay the costs of or its appropriate share of the costs of (a) the remuneration and expenses payable to panellists, members of committees, subcommittees and working groups, including persons appointed under section 15; (b) the remuneration and expenses payable to assistants; and (c) the general expenses incurred by panels, committees, subcommittees and working groups.
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Accord de libre-échan Orders and Regulations
Regulations re Article III.8
17. (1) The Governor in Council may, if the Governor in Council is of the opinion that, for the purpose of giving effect in a province to Article III.8 of the Agreement, regulations are necessary in relation to any matter dealt with by that Article, make regulations for that purpose including, without limiting the generality of the foregoing, regulations requiring or prohibiting the doing of anything in relation to which a regulation may be made under this subsection and prescribing penalties for the contravention of any such regulation.
Applicability of regulations in respect of a province
(2) A regulation made under subsection (1) shall not come into force in respect of a province if the Governor in Council is of the opinion that the province has, by or under provincial law, enacted provisions or is carrying on practices that are in conformity with the portion of Article III.8 of the Agreement in respect of which the regulation was made.
Consultation with provincial governments
(3) The Minister shall consult with the government of a province before the making of a regulation under subsection (1) in respect of that province.
Expiration
(4) A regulation made under subsection (1) or any of its provisions ceases to be in force in respect of a province on a day or days to be fixed, in respect of that province, by order of the Governor in Council.
Binding on province
(5) A regulation made under subsection (1) in respect of a province is binding on Her Majesty in right of that province.
Orders re Article XIII.18
18. (1) The Governor in Council may, for the purpose of suspending concessions or other obligations in accordance with Article XIII.18 of the Agreement, by order, do any one or more of the following: (a) suspend rights or privileges granted by Canada to Costa Rica or to goods, service providers, suppliers, investors or investments of Costa Rica under the Agreement or any federal law; (b) modify or suspend the application of any federal law enacted by Part 2, with respect to Costa Rica or to goods, service providers, suppliers, investors or investments of Costa Rica;
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(c) extend the application of any federal law to Costa Rica or to goods, service providers, suppliers, investors or investments of Costa Rica; and (d) take any other measure that the Governor in Council considers necessary for that purpose. Period of order
(2) Unless revoked, an order made under subsection (1) has effect for the period specified in the order. PART II RELATED AND CONSEQUENTIAL AMENDMENTS
R.S., c. 47 (4th Supp.)
Canadian International Trade Tribunal Act
1997, c. 14, s. 19(1)
19. (1) The definition ‘‘textile and apparel goods’’ in subsection 2(1) of the Canadian International Trade Tribunal Act is replaced by the following:
‘‘textile and apparel goods’’ « produits textiles et vêtements »
‘‘textile and apparel goods’’ means the textile and apparel goods set out in Appendix 1.1 of Annex 300-B of the Agreement, in Appendix 1.1 of Annex C-00-B of the CCFTA or in Appendix III.1.1.1 of Annex III.1 of the CCRFTA, as the case may be;
1997, c. 14, s. 19(2)
(2) Subsection 2(4) of the Act is replaced by the following:
Same meaning
(4) In this Act, (a) ‘‘CCRFTA’’ has the same meaning as ‘‘Agreement’’ in subsection 2(1) of the Canada–Costa Rica Free Trade Agreement Implementation Act; and (b) ‘‘Costa Rica Tariff’’ means the rates of customs duty referred to in section 49.1 of the Customs Tariff.
Goods imported from a NAFTA country, Chile or Costa Rica
(5) For the purposes of this Act, goods are imported from a NAFTA country, from Chile or from Costa Rica if they are shipped directly to Canada from the NAFTA country, from Chile or from Costa Rica, as the case may be, within the meaning of sections 17 and 18 of the Customs Tariff. 20. The Act is amended by adding the following after section 19.012:
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Accord de libre-échan
Definition of ‘‘principal cause’’
19.013 (1) In this section, ‘‘principal cause’’ means, in respect of a serious injury or threat thereof, an important cause that is no less important than any other cause of the serious injury or threat.
Emergency measures — Costa Rica
(2) The Tribunal shall inquire into and report to the Governor in Council on the question whether goods that are entitled to the benefit of the Costa Rica Tariff, other than textile and apparel goods, are, as a result of that entitlement, being imported in such increased quantities and under such conditions that they alone constitute a principal cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods, if the Governor in Council, on the recommendation of the Minister, refers the question to it for inquiry and report.
Terms of reference
(3) The Tribunal shall conduct an inquiry under subsection (2) and prepare its report in accordance with the terms of reference established by the Governor in Council or the Minister, as the case may be.
Tabling of report
(4) The Minister shall cause a copy of each report submitted to the Governor in Council or the Minister to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the report is so submitted.
Notice of report
(5) The Tribunal shall cause notice of the submission of a report to be published in the Canada Gazette.
1997, c. 14, s. 23
21. Section 21.1 of the Act is replaced by the following:
Definition of ‘‘complaint’’
21.1 In sections 23 to 30, ‘‘complaint’’ means a written complaint filed with the Tribunal under subsection 23(1), (1.01), (1.02), (1.03), (1.04), (1.05), (1.06), (1.07) or (1.08) and, for the purposes of those sections, a complaint is properly documented if the Tribunal is satisfied that it contains or is accompanied by the information required by section 23. 22. Section 23 of the Act is amended by adding the following after subsection (1.06):
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Filing of complaint — Costa Rica Tariff
(1.07) Any domestic producer of goods that are like or directly competitive with any goods, other than textile and apparel goods, being imported into Canada and that are entitled to the Costa Rica Tariff, or any person or association acting on behalf of such a domestic producer, may file a written complaint with the Tribunal alleging that, as a result of that entitlement, the imported goods are being imported in such increased quantities and under such conditions as to alone constitute a cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods.
Filing of complaint — Costa Rica Tariff
(1.08) Any domestic producer of any textile and apparel goods that are like or directly competitive with any textile and apparel goods being imported into Canada and that are entitled, either under section 24 of the Customs Tariff or, in respect of goods that fall under the scope of the Agreement on Textiles and Clothing in Annex 1A of the World Trade Organization Agreement pursuant to a commitment made by Canada, under section 49.2 of the Customs Tariff, to the Costa Rica Tariff, or any person or association acting on behalf of such a domestic producer, may file a written complaint with the Tribunal alleging that, as a result of that entitlement, the imported goods are being imported in such increased quantities, in absolute terms or relative to the domestic market in Canada for the goods, and under such conditions as to cause serious damage, or actual threat thereof, to domestic producers of like or directly competitive textile and apparel goods.
1997, c. 14, s. 25
23. Paragraph 25(2)(c) of the Act is replaced by the following: (c) in the case of a complaint filed under subsection 23(1.03), (1.06) or (1.08), send to the Minister a copy of the complaint and the information examined by the Tribunal in making its determination.
24. (1) Paragraph 26(1)(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (i.6) and by adding the following after subparagraph (i.6):
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Accord de libre-échan (i.7) in the case of a complaint filed under subsection 23(1.07), the goods that are entitled to the Costa Rica Tariff are, as a result of that entitlement, being imported in such increased quantities and under such conditions that they alone constitute a cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods, (i.8) in the case of a complaint filed under subsection 23(1.08), the textile and apparel goods that are entitled to the Costa Rica Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to the market in Canada for the goods, and under such conditions as to cause serious damage, or actual threat thereof, to domestic producers of like or directly competitive textile and apparel goods, or
1997, c. 14, s. 26(2)
(2) Subsection 26(2.1) of the Act is replaced by the following:
Copies to Minister
(2.1) Notwithstanding subsection (2), in the case of a complaint filed under subsection 23(1.03), (1.06) or (1.08), the Tribunal shall send to the Minister only a copy of its decision and a copy of any relevant information examined by the Tribunal in relation to the complaint that was not previously sent to the Minister under subsection 25(2). 25. (1) Subsection 27(1) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (a.6) and by adding the following after paragraph (a.6): (a.7) in the case of a complaint filed under subsection 23(1.07), the goods that are entitled to the Costa Rica Tariff are, as a result of that entitlement, being imported in such increased quantities and under such conditions that they alone constitute a principal cause of serious injury, or threat thereof, to domestic producers of like or directly competitive goods;
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(a.8) in the case of a complaint filed under subsection 23(1.08), the textile and apparel goods that are entitled to the Costa Rica Tariff are, as a result of that entitlement, being imported in such increased quantities, in absolute terms or relative to the market in Canada for the goods, and under such conditions as to cause serious damage, or actual threat thereof, to domestic producers of like or directly competitive textile and apparel goods; or
(2) Section 27 of the Act is amended by adding the following after subsection (2.2): Considerations
(2.3) In making a determination under paragraph (1)(a.8), regard shall be had to paragraph 2 of section 4 of Annex III.1 of the CCRFTA.
R.S., c. 1 (2nd Supp.)
Customs Act
1997, c. 14, s. 35(3)
26. (1) The definitions ‘‘free trade agreement’’ and ‘‘free trade partner’’ in subsection 2(1) of the Customs Act are replaced by the following:
‘‘free trade agreement’’ « accord de libre-échange »
‘‘free trade agreement’’ means NAFTA, CCFTA, CCRFTA or CIFTA;
‘‘free trade partner’’ « partenaire de libre-échange »
‘‘free trade partner’’ means (a) a NAFTA country, (b) Chile, (c) Costa Rica, or (d) Israel or another CIFTA beneficiary;
(2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order: ‘‘CCRFTA’’ « ALÉCCR »
‘‘CCRFTA’’ has the same meaning as ‘‘Agreement’’ in subsection 2(1) of the Canada– Costa Rica Free Trade Agreement Implementation Act;
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Accord de libre-échan
‘‘Costa Rica’’ « Costa Rica »
‘‘Costa Rica’’ has the same meaning as in subsection 2(1) of the Customs Tariff;
‘‘preferential tariff treatment under CCRFTA’’ « traitement tarifaire préférentiel de l’ALÉCCR »
‘‘preferential tariff treatment under CCRFTA’’ means, in respect of goods, entitlement to the Costa Rica Tariff rates of customs duty under the Customs Tariff;
1997, c. 14, s. 35(4)
(3) Paragraph 2(1.2)(c) of the Act is replaced by the following: (c) preferential CCRFTA; or
tariff
treatment
under
(d) preferential tariff treatment under CIFTA. 1997, c. 14, s. 38, c. 36, s. 163
27. Sections 42.3 and 42.4 of the Act are replaced by the following:
Definition of ‘‘customs administration’’
42.3 (1) In this section,‘‘customs administration’’ has the meaning assigned to that expression by Article 514 of NAFTA, Article E-14 of CCFTA or Article V.14 of CCRFTA, as the case may be.
Effective date of redetermination or further redetermination of origin of goods
(2) Subject to subsection (4), a redetermination or further redetermination of origin does not take effect until notice of it is given to the importer of the goods and any person who completed and signed a Certificate of Origin for the goods if the result of the redetermination or further redetermination of origin made under subsection 59(1) in respect of goods for which preferential tariff treatment under NAFTA, CCFTA or CCRFTA is claimed and that are the subject of a verification of origin under this Act is that (a) the goods are not eligible for that preferential tariff treatment on the basis of the tariff classification or value of one or more materials used in their production; and (b) that tariff classification or value differs from the tariff classification or value applied to those materials by the NAFTA country from which the goods were exported, from Chile or from Costa Rica, as the case may be.
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(3) A redetermination or further redetermination of origin referred to in subsection (2) shall not be applied to goods imported before the date on which the notice was given if the customs administration of the NAFTA country from which the goods were exported, of Chile or of Costa Rica, as the case may be, has, before that date, (a) given an advance ruling under Article 509 of NAFTA, Article E-09 of CCFTA or Article V.9 of CCRFTA, as the case may be, or given another ruling referred to in paragraph 12 of Article 506 of NAFTA, paragraph 12 of Article E-06 of CCFTA or paragraph 15 of Article V.6 of CCRFTA, as the case may be, on the tariff classification or value of the materials referred to in subsection (2); or (b) given consistent treatment with respect to the tariff classification or value of the materials referred to in subsection (2) on their importation into the NAFTA country, Chile or Costa Rica, as the case may be.
Postponement of effective date
(4) The date on which a redetermination or further redetermination of origin referred to in subsection (2) takes effect shall be postponed for a period not exceeding ninety days if the importer of the goods that are the subject of the redetermination or further redetermination or any person who completed and signed a Certificate of Origin for the goods establishes to the satisfaction of the Minister that the importer or the person, as the case may be, has relied in good faith, to the detriment of the importer or person, on the tariff classification or value applied to the materials referred to in that subsection by the customs administration of the NAFTA country from which the goods were exported, of Chile or of Costa Rica, as the case may be. Denial or Withdrawal of Benefit of Preferential Tariff Treatment under NAFTA, CCFTA or CCRFTA
Definition of ‘‘identical goods’’
42.4 (1) In this section, ‘‘identical goods’’ has the meaning assigned to that expression by Article 514 of NAFTA, Article E-14 of CCFTA or Article V.14 of CCRFTA, as the case may be.
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Denial or withdrawal of benefit: NAFTA country, Chile or Costa Rica
(2) Notwithstanding section 24 of the Customs Tariff, the Minister may, subject to the prescribed conditions, deny or withdraw preferential tariff treatment under NAFTA, CCFTA or CCRFTA in respect of goods for which that treatment is claimed if the exporter or producer of the goods has made false representations that identical goods exported or produced by that exporter or producer and for which that treatment was claimed were eligible for that treatment.
1997, c. 14, s. 39
28. Paragraph 43.1(1)(b) of the Act is replaced by the following: (b) in the case of goods exported from a NAFTA country, from Chile or from Costa Rica, any other matter concerning those goods that is set out in paragraph 1 of Article 509 of NAFTA, in paragraph 1 of Article E-09 of CCFTA or in paragraph 1 of Article V.9 or paragraph 10 of Article IX.2 of CCRFTA, as the case may be.
1996, c. 33, s. 36(1)
29. Paragraph 74(1)(c.11) of the Act is replaced by the following: (c.11) the goods were imported from Costa Rica or from Israel or another CIFTA beneficiary but no claim for preferential tariff treatment under CCRFTA or CIFTA, as the case may be, was made in respect of those goods at the time they were accounted for under subsection 32(1), (3) or (5);
30. Section 164 of the Act is amended by adding the following after subsection (1.2): Uniform Regulations
(1.3) The Governor in Council may, on the recommendation of the Minister, make regulations for the purpose of the uniform interpretation, application and administration of Chapters III and V of CCRFTA and any other matters that may be agreed on from time to time by the parties to CCRFTA.
�� 1997, c. 36
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31. Subsection 2(1) of the Customs Tariff is amended by adding the following in alphabetical order: ‘‘Canada– Costa Rica Free Trade Agreement’’ « Accord de libre-échange Canada– Costa Rica »
‘‘Canada–Costa Rica Free Trade Agreement’’ has the same meaning as ‘‘Agreement’’ in subsection 2(1) of the Canada–Costa Rica Free Trade Agreement Implementation Act;
‘‘Costa Rica’’ « Costa Rica »
‘‘Costa Rica’’ means the territory and air space, and the maritime areas, including the seabed and subsoil adjacent to the outer limit of the territorial sea, over which it exercises, in accordance with international law and its domestic law, sovereign rights with respect to the natural resources of such areas; 32. Section 5 of the Act is replaced by the following:
Goods imported from a NAFTA country, Chile or Costa Rica
5. For the purposes of this Act, goods are imported from a NAFTA country, from Chile or from Costa Rica if they are shipped directly to Canada from the NAFTA country, from Chile or from Costa Rica, as the case may be.
33. Paragraph 14(2)(c) of the Act is replaced by the following: (c) by way of compensation for any action taken under subsection 55(1), section 60 or subsection 63(1), 69(2), 70(2), 71(2), 71.1(2), 72(1), 75(1), 76(1) or 76.1(1) or under subsection 5(3), (3.2) or (4.1) of the Export and Import Permits Act.
34. (1) Paragraph 16(2)(a) of the Act is replaced by the following: (a) respecting the origin of goods, including regulations (i) deeming goods, the whole or a portion of which is produced outside a country, to originate in that country for the purposes of this Act or any other Act of Parliament, subject to such conditions as are specified in the regulations,
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Accord de libre-échan (ii) deeming goods, the whole or a portion of which is produced within a geographic area of a country, not to originate in that country for the purposes of this Act or any other Act of Parliament and not to be entitled to the preferential tariff treatment otherwise applicable under this Act, subject to such conditions as are specified in the regulations, and (iii) for determining when goods originate in a country for the purposes of this Act or any other Act of Parliament; and (2) Section 16 of the Act is amended by adding the following after subsection (2):
Definition of ‘‘geographic area’’
(2.1) In subsections (2) and 49.1(4), ‘‘geographic area’’ means any area specified by the Minister of National Revenue after consultation with the Minister for International Trade. (3) Subsection 16(4) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) Chapters III and IV of the Canada–Costa Rica Free Trade Agreement and any other matters agreed on from time to time by the parties to that Agreement for the purposes of that Agreement. 35. Paragraph 24(1)(b) of the Act is replaced by the following: (b) the goods are entitled to that tariff treatment in accordance with regulations made under section 16 or an order made under paragraph 31(1)(a), 34(1)(a), 38(1)(a) or 42(1)(a), subsection 45(13) or 49(2) or section 48. 36. Section 27 of the Act is replaced by the following:
Abbreviations
27. For the purposes of the List of Tariff Provisions and the ‘‘F’’ Staging List, the abbreviations ‘‘UST’’, ‘‘MT’’, ‘‘MUST’’, ‘‘CT’’, ‘‘CRT’’, ‘‘CIAT’’, ‘‘GPT’’, ‘‘LDCT’’, ‘‘CCCT’’, ‘‘AUT’’ and ‘‘NZT’’ refer, respectively, to ‘‘United States Tariff’’, ‘‘Mexico Tariff’’, ‘‘Mexico–United States Tariff’’,
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‘‘Chile Tariff’’, ‘‘Costa Rica Tariff’’, ‘‘Canada–Israel Agreement Tariff’’, ‘‘General Preferential Tariff’’, ‘‘Least Developed Country Tariff’’, ‘‘Commonwealth Caribbean Countries Tariff’’, ‘‘Australia Tariff’’ and ‘‘New Zealand Tariff’’. 37. The Act is amended by adding the following after section 49: Costa Rica Tariff Application of CRT
49.1 (1) Subject to section 24, goods that originate in Costa Rica are entitled to the Costa Rica Tariff rates of customs duty.
‘‘A’’ final rate
(2) If ‘‘A’’ is set out in the column entitled ‘‘Preferential Tariff’’ in the List of Tariff Provisions following the abbreviation ‘‘CRT’’ in relation to goods entitled to the Costa Rica Tariff, the Costa Rica Tariff rate of customs duty that applies to those goods is the final rate of ‘‘Free’’.
‘‘F’’ staging for CRT
(3) If ‘‘F’’ is set out in the column entitled ‘‘Preferential Tariff’’ in the List of Tariff Provisions following the abbreviation ‘‘CRT’’ in relation to goods entitled to the Costa Rica Tariff, the Costa Rica Tariff rate of customs duty that applies to those goods is the initial rate, reduced as provided in the ‘‘F’’ Staging List.
‘‘M’’ Staging for CRT
(4) If ‘‘M’’ is set out in the column entitled ‘‘Preferential Tariff’’ in the List of Tariff Provisions following the abbreviation ‘‘CRT’’ in relation to goods entitled to the Costa Rica Tariff, the Costa Rica Tariff rate of customs duty that applies to those goods is the initial rate, reduced to a final rate of ‘‘Free’’ when the Minister is satisfied that Costa Rica has eliminated all business income tax exemptions and other export subsidies in respect of goods produced wholly or partially within a geographic area, as defined in subsection 16(2.1).
Staging for CRT
(5) If ‘‘N’’, ‘‘O’’ or ‘‘P’’ is set out in the column entitled ‘‘Preferential Tariff’’ in the List of Tariff Provisions following the abbreviation ‘‘CRT’’ in relation to goods entitled to the Costa Rica Tariff, the Costa Rica Tariff rate of customs duty that applies to those goods is the initial rate, reduced
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Accord de libre-échan (a) if ‘‘N’’ is set out, (i) effective on the coming into force of this subsection, to four fifths of the initial rate, (ii) effective on January 1, 2003, to three fifths of the initial rate, (iii) effective on January 1, 2004, to two fifths of the initial rate, (iv) effective on January 1, 2005, to one fifth of the initial rate, and (v) effective on January 1, 2006, to the final rate of ‘‘Free’’; (b) if ‘‘O’’ is set out, (i) effective on the coming into force of this subsection, to seven eighths of the initial rate, (ii) effective on January 1, 2003, to six eighths of the initial rate, (iii) effective on January 1, 2004, to five eighths of the initial rate, (iv) effective on January 1, 2005, to four eighths of the initial rate, (v) effective on January 1, 2006, to three eighths of the initial rate, (vi) effective on January 1, 2007, to two eighths of the initial rate, (vii) effective on January 1, 2008, to one eighth of the initial rate, and (viii) effective on January 1, 2009, to the final rate of ‘‘Free’’; and (c) if ‘‘P’’ is set out, (i) effective on January 1, 2003, to eight ninths of the initial rate, (ii) effective on January 1, 2004, to seven ninths of the initial rate, (iii) effective on January 1, 2005, to six ninths of the initial rate, (iv) effective on January 1, 2006, to five ninths of the initial rate, (v) effective on January 1, 2007, to four ninths of the initial rate, (vi) effective on January 1, 2008, to three ninths of the initial rate,
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Canada–Costa Rica Free Trad (vii) effective on January 1, 2009, to two ninths of the initial rate, (viii) effective on January 1, 2010, to one ninth of the initial rate, and (ix) effective on January 1, 2011, to the final rate of ‘‘Free’’.
Rounding of specific rates
(6) If a reduction under subsection (3) or (5) results in a specific rate of customs duty that includes a fraction of one tenth of a cent, the rate shall be rounded down to the nearest one tenth of a cent.
Rounding of amounts
(7) If a reduction under subsection (3) or (5) results in a rate of customs duty that includes a fraction of one per cent other than 0.5, the resulting percentage shall be rounded down to the nearest percentage that divides evenly by 0.5.
Elimination of rates of less than two per cent
(8) If a reduction under subsection (3) or (5) results in a rate of customs duty that is a percentage of less than two per cent, the rate shall be further reduced to ‘‘Free’’ immediately.
Extension of Costa Rica Tariff
49.2 Notwithstanding any other provision of this Act and for the purpose of giving effect to Appendix III.1.6.1 of Annex III.1 of the Canada–Costa Rica Free Trade Agreement, the Minister may, by order, amend the schedule to extend entitlement to the Costa Rica Tariff to any imported goods under such conditions as are specified in the order.
Limits on reduction of duty
49.3 (1) The Governor in Council may, on the recommendation of the Minister, by order, specify limits on the aggregate quantity of goods of tariff item Nos. 1701.91.00, 1701.99.00, 1702.90.11, 1702.90.12, 1702.90.13, 1702.90.14, 1702.90.15, 1702.90.16, 1702.90.17, 1702.90.18 and 1702.90.30 that are entitled to the Costa Rica Tariff, and the limits apply during the periods and subject to the conditions that may be specified in the order.
Ceases to have effect
(2) This section ceases to have effect on December 31, 2010.
Reduction of rate: ‘‘M’’ Staging
49.4 The Governor in Council may, on the recommendation of the Minister, by order, amend the List of Tariff Provisions and the ‘‘F’’ Staging List to reduce, subject to the
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Accord de libre-échan conditions specified in the order, the initial rate for goods of a tariff item entitled to the Costa Rica Tariff in respect of which ‘‘M’’ is set out in the column entitled ‘‘Preferential Tariff’’ in the List of Tariff Provisions following the abbreviation ‘‘CRT’’ in that tariff item. 38. The Act is amended by adding the following after section 71: Bilateral Emergency Measures — Costa Rica
Non-application
71.1 (1) This section does not apply in respect of textile and apparel goods set out in Appendix III.1.1.1 of Annex III.1 of the Canada–Costa Rica Free Trade Agreement.
Order by Governor in Council
(2) Subject to subsections (3) and (4), if at any time it appears to the satisfaction of the Governor in Council, as a result of an inquiry made by the Canadian International Trade Tribunal under subsection 19.013(2) of the Canadian International Trade Tribunal Act or further to a complaint filed under subsection 23(1.07) of that Act, that goods that are entitled to the Costa Rica Tariff are, as a result of that entitlement, being imported in such increased quantities and under such conditions as to alone constitute a principal cause of serious injury, or a threat of serious injury, to domestic producers of like or directly competitive goods, the Governor in Council may, on the recommendation of the Minister, by order (a) suspend, during the period that the order is in effect, any reduction of the rate of customs duty with respect to those goods that would otherwise be made after that time by virtue of section 49.1; (b) in respect of goods on which a customs duty is imposed on a seasonal basis, make those goods subject to a temporary duty, in addition to any other duty specified in this Act or in any other Act of Parliament relating to customs, at a rate set out in the order, but that rate, when added to the rate of customs duty set out in the List of Tariff Provisions that is in effect in respect of those goods at that time, may not exceed the Most-Favoured-Nation Tariff rate of cus��
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toms duty that was in effect in respect of those goods immediately before the coming into force of this subsection; and (c) in respect of goods other than goods referred to in paragraph (b), make those goods subject to a temporary duty, in addition to any other duty specified in this Act or in any other Act of Parliament relating to customs, at a rate set out in the order, but that rate, when added to the rate of customs duty specified in the Costa Rica Tariff that is in effect in respect of those goods at that time, may not exceed the lesser of (i) the Most-Favoured-Nation Tariff rate of customs duty that was in effect in respect of those goods immediately before the coming into force of this subsection, and (ii) the Most-Favoured-Nation Tariff rate of customs duty that is in effect in respect of those goods at the time the order is made. Terms and conditions
(3) An order under subsection (2) (a) may not be made more than twice during the period beginning on the coming into force of this subsection and ending on the date that is seven years after the coming into force of this subsection in respect of goods of a particular kind and, if made during that period, remains in effect for the period, not exceeding three years, specified in the order; and (b) may be made after the date that is seven years after the coming into force of this subsection only if it is based on an agreement between the Government of Canada and the Government of the Republic of Costa Rica relating to the application of subsection (2).
Application of measures a second time
(4) A measure referred to in an order made under subsection (2) may be applied a second time if (a) the period of time that has elapsed since the initial application of the measure ended is equal to at least one half the initial period of application;
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Accord de libre-échan (b) the rate of duty for the first year of the second action is not greater than the rate that would be in effect in accordance with the Schedule of Canada referred to in Annex III.3.1 of the Canada–Costa Rica Free Trade Agreement, entitled ‘‘Tariff Elimination’’, at the time the first action was imposed; and (c) the rate of duty applicable to any subsequent year is reduced in equal steps such that the duty rate in the final year of the action is equivalent to the rate provided for in the Schedule of Canada referred to in Annex III.3.1 of the Canada–Costa Rica Free Trade Agreement, entitled ‘‘Tariff Elimination’’, for that year.
Rate of duty when order ceases to have effect
(5) If an order made under subsection (2) ceases to have effect in a particular calendar year, (a) the rate of customs duty applicable to the goods after the order ceases to have effect and until December 31 of that year is the rate that would otherwise have been applicable one year after the making of the order, as reduced in accordance with section 49.1; and (b) the rate of customs duty applicable to the goods beginning on January 1 of the following year is the rate specified by the Minister under subsection (6).
Specification of applicable rate
(6) For the purposes of subsection (5), the Minister shall, by order, specify that the rate referred to in paragraph (5)(b) is (a) the rate of customs duty that would have been applicable on January 1 of the year following the year in which the order ceases to have effect, if the rate of customs duty had been reduced in accordance with section 49.1, reduced for subsequent years in accordance with that section; or (b) the rate of customs duty that would have been applicable one year after the making of the order, reduced in equal annual stages beginning on January 1 of the year following the year in which the order ceases to
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have effect and ending on the day on which the rate of customs duty for the goods would otherwise be reduced to the final rate in accordance with section 49.1. Definition of ‘‘principal cause’’
(7) In this section, ‘‘principal cause’’ means, in respect of a serious injury or threat of serious injury, an important cause that is not less important than any other cause of the serious injury or threat.
Reference to customs duty in effect
(8) For the purposes of paragraph (2)(b), the Most-Favoured-Nation Tariff rate of customs duty in effect in respect of a fresh fruit or vegetable is (a) in respect of a fresh vegetable, the rate of customs duty applicable to that vegetable set out in the applicable tariff item referred to in Supplementary Note 2(b) in Chapter 7 of the List of Tariff Provisions; and (b) in respect of a fresh fruit, the rate of customs duty applicable to that fruit set out in the applicable tariff item referred to in Supplementary Note 4(b) in Chapter 8 of the List of Tariff Provisions. 39. The Act is amended by adding the following after section 76: Bilateral Emergency Measures for Textile and Apparel Goods Imported from Costa Rica
Order by Governor in Council
76.1 (1) If it appears to the satisfaction of the Governor in Council, on the basis of a report of the Minister further to a complaint under subsection 23(1.08) of the Canadian International Trade Tribunal Act or as a result of an inquiry made by the Canadian International Trade Tribunal under subparagraph 26(1)(a)(i.8) of that Act, that textile and apparel goods set out in Appendix III.1.1.1 of Annex III.1 of the Canada–Costa Rica Free Trade Agreement and entitled to the Costa Rica Tariff are being imported in such increased quantities, in absolute terms or relative to the domestic market for the goods, and under such conditions as to cause serious damage or an actual threat of serious damage to domestic producers of like or directly competitive goods, the Governor in Council may, on the recommendation of the Minister, by order
����
Accord de libre-échan (a) suspend any further reduction of any rate of customs duty in respect of the goods that would otherwise result under section 49.1; or (b) impose, in addition to any other duty imposed under this or any other Act of Parliament, a temporary duty on the goods at a rate specified in the order.
Limit on amount of temporary duty
(2) A rate of temporary duty imposed under paragraph (1)(b) may not, when added to the rate of customs duty specified in the List of Tariff Provisions for the goods, exceed the lesser of (a) the Most-Favoured-Nation Tariff rate for the goods in effect when the order is made, and (b) the Most-Favoured-Nation Tariff rate for the goods in effect on the coming into force of this subsection.
Period
(3) Subject to subsection (4), an order made under subsection (1) remains in effect for a period, not exceeding three years, specified in the order.
Duration of order
(4) If an order is made under subsection (1) on the basis of a report of the Minister, the order ceases to have effect at the end of the one hundred and eightieth day after the day on which the order is made unless, before the order so ceases to have effect, the Canadian International Trade Tribunal reports to the Governor in Council, on the basis of an inquiry made under subparagraph 26(1)(a)(i.8) of the Canadian International Trade Tribunal Act, that the goods described in the report of the Minister are being imported from the country named in the report under such conditions as to cause or threaten serious damage to domestic producers of like or directly competitive goods.
Extension of order
(5) The Governor in Council may, on the recommendation of the Minister, by order, extend the period of an order made as a result of an inquiry of the Canadian International Trade Tribunal made under subparagraph 26(1)(a)(i.8) of the Canadian International Trade Tribunal Act or an order that remains in effect by virtue of subsection (4) on the basis
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of a report of that Tribunal, but the total period of the order may not exceed three years.
Rate of duty after order ceases to have effect
(6) If an order made under subsection (1) ceases to have effect in a particular calendar year, (a) the rate of customs duty applicable to the goods after the order ceases to have effect and until December 31 of that year is the rate that would have been applicable one year after the making of the order, as reduced in accordance with section 49.1; and (b) the rate of customs duty applicable to the goods beginning on January 1 of the following year is the rate specified by the Minister under subsection (7).
Specification of applicable rates
(7) For the purposes of subsection (6), the Minister shall, by order, specify that the rate referred to in paragraph (6)(b) is (a) the rate of customs duty that would have been applicable on January 1 of the year following the year in which the order ceases to have effect if the rate of customs duty had been reduced in accordance with section 49.1, reduced to ‘‘Free’’ in accordance with that section; or (b) the rate of customs duty that would have been applicable one year after the making of the order, reduced to ‘‘Free’’ in equal annual stages beginning on January 1 of the year following the year in which the order ceases to have effect and ending on the day on which the rate of customs duty for the goods would otherwise be reduced to ‘‘Free’’ in accordance with section 49.1.
Further orders
(8) An order under subsection (1) may not be made more than once during the period beginning on the coming into force of this subsection and ending on the date that is seven years after the coming into force of this subsection in respect of goods of a particular kind. 40. Section 79 of the Act is replaced by the following:
���� Goods in transit
Accord de libre-échan 79. An order made under subsection 53(2) or 55(1), section 60 or subsection 63(1), 69(2), 70(2), 71.1(2), 72(1), 75(1), 76(1) or 76.1(1) may provide that goods that are in transit to Canada at the time the order comes into force are entitled to the tariff treatment that was applicable to those goods immediately before that time. 41. The definition ‘‘customs duties’’ in section 80 of the Act is replaced by the following:
‘‘customs duties’’ « droits de douane »
‘‘customs duties’’, other than for the purposes of sections 95 and 96, means customs duties imposed under Part 2, other than surtaxes imposed under section 53, 55, 60, 63, 68 or 78 or temporary duties imposed under any of sections 69 to 76.1. 42. Subsection 94(1) of the Act is replaced by the following:
Definition of ‘‘customs duties’’
94. (1) In sections 95 and 96, ‘‘customs duties’’ means customs duties imposed under Part 2, other than additional customs duties levied under section 21, surtaxes imposed under section 53, 55, 60, 63, 68 or 78 or temporary duties imposed under any of sections 69 to 76.1. 43. Subparagraph 99(a)(iii) of the Act is replaced by the following: (iii) the circumstances in which, and the classes of goods in respect of which, relief of duties levied under section 21 or under the Special Import Measures Act, a surtax imposed under section 53, 55, 60, 63, 68 or 78, a temporary duty imposed under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty imposed under the Excise Act may not be granted,
44. Paragraph 113(4)(a) of the Act is replaced by the following: (a) the circumstances in which, and the classes of goods in respect of which, a refund or drawback of duties levied under section 21 or under the Special Import
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Measures Act, a surtax levied under section 53, 55, 60, 63, 68 or 78, a temporary duty levied under any of sections 69 to 76.1, a tax levied under the Excise Tax Act or a duty levied under the Excise Act may not be granted under subsection (1);
45. Paragraph 133(j) of the Act is replaced by the following: (j) for the purpose of tariff item No. 9971.00.00 or 9992.00.00, prescribing conditions under which goods that have been exported to a NAFTA country, Chile, Costa Rica, Israel or another CIFTA beneficiary for repair or alteration may be imported; 46. (1) The List of Tariff Provisions set out in the schedule to the Act is amended by (a) adding in the column ‘‘Preferential Tariff / Initial Rate’’, below the reference to ‘‘CIAT’’, a reference to ‘‘CRT:’’; (b) adding in the column ‘‘Preferential Tariff / Final Rate’’, below the reference to ‘‘CIAT’’, a reference to ‘‘CRT:’’; (c) adding in the column ‘‘Preferential Tariff / Initial Rate’’ a reference to ‘‘Free’’ after the abbreviation ‘‘CRT’’, and adding in the column ‘‘Preferential Tariff / Final Rate’’ a reference to ‘‘Free (A)’’ after the abbreviation ‘‘CRT’’, for all tariff items except those set out in Schedules 1 to 3 to this Act; (d) adding in the columns ‘‘Preferential Tariff / Initial Rate’’ and ‘‘Preferential Tariff / Final Rate’’ a reference to ‘‘N/A’’ after the abbreviation ‘‘CRT’’ for the tariff items set out in Schedule 1 to this Act; and (e) adding in the columns ‘‘Preferential Tariff / Initial Rate’’ and ‘‘Preferential Tariff / Final Rate’’ after the abbreviation ‘‘CRT’’, for each tariff item set out in Schedule 2 to this Act, the rates of duty and staging categories set out with respect to that tariff item No. in that Schedule.
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Accord de libre-échan
(2) The Description of Goods of tariff item No. 9929.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to ‘‘imported from the United States, Mexico or Chile’’ with a reference to ‘‘imported from the United States, Mexico, Chile or Costa Rica’’. (3) The Description of Goods of tariff item No. 9938.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to ‘‘certified by the Government of Mexico, the United States or Chile or by any authority in Mexico, the United States or Chile recognized by the Minister of National Revenue’’ with a reference to ‘‘certified by the Government of Mexico, the United States, Chile or Costa Rica or by any authority in Mexico, the United States, Chile or Costa Rica recognized by the Minister of National Revenue’’. (4) The Description of Goods of tariff item No. 9971.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to ‘‘exported to the United States, Mexico, Chile or Israel or another CIFTA beneficiary for repair or alteration’’ with a reference to ‘‘exported to the United States, Mexico, Chile, Costa Rica or Israel or another CIFTA beneficial for repair or alteration’’. (5) The Description of Goods of tariff item No. 9990.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by (a) replacing the reference to ‘‘Commercial samples imported from the United States, Mexico or Chile’’ with a reference to ‘‘Commercial samples imported from the United States, Mexico, Chile or Costa Rica’’; and (b) replacing, in paragraph (i), the reference to ‘‘in Canadian, Chilean or Mexi��
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Canada–Costa Rica Free Trad
can currency’’ with a reference to ‘‘in Canadian, Chilean, Mexican or Costa Rican currency’’. (6) The Description of Goods of tariff item No. 9992.00.00 in the List of Tariff Provisions set out in the schedule to the Act is amended by replacing the reference to ‘‘exported to the United States, Mexico, Chile, or Israel or another CIFTA beneficiary for repair or alteration’’ with a reference to ‘‘exported to the United States, Mexico, Chile, Costa Rica, or Israel or another CIFTA beneficiary for repair or alteration’’. (7) The List of Intermediate and Final Rates for Tariff Items of the ‘‘F’’ Staging Category set out in the schedule to the Act is amended by (a) deleting tariff item No. 3921.90.12; and (b) adding, in numerical order, the tariff items set out in Schedule 3 to this Act.
R.S., c. E-19
Export and Import Permits Act 47. (1) Subsection 2(1) of the Export and Import Permits Act is amended by adding the following in alphabetical order:
‘‘CCRFTA’’ « ALÉCCR »
‘‘CCRFTA’’ has the same meaning as ‘‘Agreement’’ in subsection 2(1) of the Canada– Costa Rica Free Trade Agreement Implementation Act;
‘‘Costa Rica’’ « Costa Rica »
‘‘Costa Rica’’ has the same meaning as in subsection 2(1) of the Customs Tariff;
1997, c. 14, s. 70(3)
(2) Subsection 2(2) of the Act is replaced by the following:
Goods imported from a NAFTA country, Chile or Costa Rica
(2) For the purposes of this Act, goods are imported from a NAFTA country, from Chile or from Costa Rica if they are shipped directly to Canada from the NAFTA country, from Chile or from Costa Rica, as the case may be, within the meaning of sections 17 and 18 of the Customs Tariff.
1997, c. 14, s. 73
48. Subsections 5.2(1) and (2) of the Act are replaced by the following:
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Accord de libre-échan
Addition to Export Control List or Import Control List
5.2 (1) If at any time it appears to the satisfaction of the Governor in Council that it is advisable to collect information with respect to the exportation or importation of any goods in respect of which a specified quantity is eligible each year for the rate of duty provided for in the Schedules to Annex 302.2 of NAFTA in accordance with Appendix 6 of Annex 300-B of NAFTA, for the rate of duty provided for in the Schedules to Annex C-02.2 of CCFTA in accordance with Appendix 5.1 of Annex C-00-B of CCFTA or for the rate of duty provided for in the Schedule to Annex III.3.1 of CCRFTA in accordance with Appendix III.1.6.1 of Annex III.1 of CCRFTA, as the case may be, the Governor in Council may, by order and without reference to that quantity, include those goods on the Export Control List or the Import Control List, or on both, in order to facilitate the collection of that information.
Addition to Import Control List
(2) If at any time it appears to the satisfaction of the Governor in Council that, for the purposes of implementing NAFTA, CCFTA or CCRFTA it is advisable to collect information with respect to the importation into Canada of any goods listed in Appendix 1.1 of Annex 300-B of NAFTA, in Appendix 1.1 of Annex C-00-B of CCFTA or in Appendix III.1.1.1 of Annex III.1 of CCRFTA as the case may be, the Governor in Council may, by order, include those goods on the Import Control List in order to facilitate the collection of that information.
1997, c. 14, s. 74, c. 36, s. 210
49. Section 6.1 of the Act is replaced by the following:
Definition of ‘‘originating goods’’
6.1 (1) In this section, ‘‘originating goods’’ means goods that are entitled under the Customs Tariff to the United States Tariff, the Mexico Tariff, the Mexico–United States Tariff, the Chile Tariff or the Costa Rica Tariff.
When Minister may take measures
(2) If at any time it appears to the satisfaction of the Minister that any goods that are referred to in paragraph (a) or (b) and are not originating goods are being imported from a NAFTA country, from Chile or from Costa Rica, as the case may be, in such increased
��
C. 28
Canada–Costa Rica Free Trad
quantities, measured in absolute terms or relative to the domestic market, and under such conditions as to cause serious damage or actual threat of serious damage to domestic producers of like or directly competitive goods, the Minister may take the measures set out (a) in the case of goods listed in Appendix 1.1 of Annex 300-B of NAFTA that are imported from a NAFTA country, in section 5 of that Annex in relation to those goods; (b) in the case of goods listed in Appendix 1.1 of Annex C-00-B of CCFTA that are imported from Chile, in section 4 of that Annex in relation to those goods; and (c) in the case of goods listed in Appendix III.1.1.1 of Annex III.1 of CCRFTA that are imported from Costa Rica, in section 5 of that Annex in relation to those goods. Factors to be considered
(3) In determining whether the conditions referred to in subsection (2) exist, the Minister shall have regard to paragraph 2 of section 4 of Annex 300-B of NAFTA, paragraph 2 of section 3 of Annex C-00-B of CCFTA or paragraph 2 of section 4 of Annex III.1 of CCRFTA, as the case may be.
1997, c. 14, s. 77
50. Section 9.1 of the Act is replaced by the following:
Minister may issue certificate
9.1 The Minister may, for the purpose of implementing an intergovernmental arrangement with a NAFTA country respecting the administration of Appendix 6 to Annex 300-B of NAFTA, with Chile respecting the administration of Appendix 5.1 to Annex C-00-B of CCFTA or with Costa Rica respecting the administration of Appendix III.1.6.1 to Annex III.1 of CCRFTA, issue a certificate with respect to an exportation of goods to the NAFTA country, to Chile or to Costa Rica, as the case may be, stating the specific quantity of those goods that (a) in the case of an exportation of goods to the NAFTA country, on importation into the NAFTA country is eligible for the rate of duty provided for in the Schedules to Annex 302.2 of NAFTA in accordance with Appendix 6 to Annex 300-B of NAFTA;
����
Accord de libre-échan (b) in the case of an exportation of goods to Chile, on importation into Chile is eligible for the rate of duty provided for in the Schedules to Annex C-02.2 of CCFTA in accordance with Appendix 5.1 to Annex C-00-B of CCFTA; and (c) in the case of an exportation of goods to Costa Rica, on importation into Costa Rica is eligible for the rate of duty provided for in the Schedules to Annex III.3.1 of CCRFTA in accordance with Appendix III.1.6.1 to Annex III.1 of CCRFTA.
R.S., c. F-11
Financial Administration Act 51. The Financial Administration Act is amended by adding the following after section 89.4:
Implementation of Canada–Costa Rica Free Trade Agreement Directive
89.5 (1) Notwithstanding subsection 85(1), the Governor in Council may give a directive under subsection 89(1) to any parent Crown corporation for the purpose of implementing any provision of the Canada–Costa Rica Free Trade Agreement that pertains to that Crown corporation.
Regulations
(2) The Governor in Council may, on the recommendation of the Treasury Board and the appropriate Minister made at the request of a Crown corporation, make such regulations in relation to that corporation as the Governor in Council considers necessary for the purpose of implementing any provision of the Canada– Costa Rica Free Trade Agreement that pertains to that corporation.
Definition of ‘‘Canada– Costa Rica Free Trade Agreement’’
(3) In subsections (1) and (2), ‘‘Canada– Costa Rica Free Trade Agreement’’ has the meaning given to the word ‘‘Agreement’’ by subsection 2(1) of the Canada–Costa Rica Free Trade Agreement Implementation Act.
�� R.S., c. I-3
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Canada–Costa Rica Free Trad
Importation of Intoxicating Liquors Act 52. Section 2 of the Importation of Intoxicating Liquors Act is amended by adding the following in alphabetical order:
‘‘Costa Rica’’ « Costa Rica »
‘‘Costa Rica’’ has the same meaning as in subsection 2(1) of the Customs Tariff; 53. (1) Subsection 3(2) of the Act is amended by adding the following after paragraph (b.02): (b.03) the importation of distilled spirits in bulk into a province from Costa Rica for the purpose of bottling by any person duly licensed by the Government of Canada to carry on the business or trade of a distiller, where the distilled spirits (i) are entitled to the benefit of the Costa Rica Tariff referred to in section 49.1 of the Customs Tariff, and (ii) while kept by the distiller, are kept by the distiller in a place or warehouse that conforms in all respects to the requirements of the law governing such places or warehouses;
1997, c. 14, s. 81(2)
(2) Subsection 3(3) of the Act is replaced by the following:
Regulations
(3) The Governor in Council may, for the purposes of paragraph (2)(b.01), (b.02), (b.03) or (b.1), make regulations defining the expressions ‘‘distilled spirits’’, ‘‘in bulk’’ and ‘‘bottling’’.
R.S., c. N-7
National Energy Board Act
1997, c. 14, s. 82
54. Paragraph 119.01(2)(b) of the National Energy Board Act is replaced by the following: (b) exempting oil or gas that is exported to a NAFTA country, as defined in subsection 2(1) of the North American Free Trade Agreement Implementation Act, to Chile or to Costa Rica, or any quality, kind or class of that oil or gas or type of service in relation thereto, from the application of regulations made under paragraph (a).
����
Accord de libre-échan 55. Section 120 of the Act is amended by adding the following in alphabetical order:
‘‘CCRFTA’’ « ALÉCCR »
‘‘CCRFTA’’ has the same meaning as ‘‘Agreement’’ in the Canada–Costa Rica Free Trade Agreement Implementation Act.
1997, c. 14, s. 84
56. Subsections 120.1(1) and (2) of the Act are replaced by the following:
Giving effect to NAFTA, CCFTA and CCRFTA
120.1 (1) In exercising its powers and performing its duties, the Board shall give effect to NAFTA, CCFTA and CCRFTA.
Orders
(2) The Governor in Council may, either on the recommendation of the Minister made at the request of the Board or on the Governor in Council’s own motion, make orders of general application respecting the manner in which the Board shall perform the duty imposed on it by subsection (1) or the interpretation to be given to NAFTA, CCFTA or CCRFTA by the Board for the purposes of this Act.
1997, c. 14, s. 85
57. Sections 120.2 and 120.3 of the Act are replaced by the following:
Declaration of Governor in Council
120.2 The Governor in Council may, by order, declare that the maintenance or introduction of a restriction on the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods is justified under Article 605 of NAFTA, Article C-13 of CCFTA or Article III.11 of CCRFTA, as the case may be.
Board may request declaration
120.3 If, in the course of determining an application for a licence or permit, or determining whether to make an order, for the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods, the Board considers that the maintenance or introduction of a restriction on that exportation is in the public interest and that subparagraph (a), (b) or (c) of Article 605 of NAFTA, subparagraph 1(a), (b) or (c) of Article C-13 of CCFTA or subparagraph 1(a), (b) or (c) of Article III.11 of CCRFTA, as the case may be, would apply as a consequence of the restriction, the Board may, in order to request that the Minister recommend to the Governor in Council that an order be made under section 120.2 in respect
��
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Canada–Costa Rica Free Trad
of the relevant energy goods, suspend the determination until not later than one hundred and twenty days after the request is made. 1997, c. 14, s. 86
58. Subsections 120.4(1) and (2) of the Act are replaced by the following:
Exportation to United States, Chile or Costa Rica
120.4 (1) The Board may neither refuse to issue a licence or permit or make an order nor revoke, suspend or vary a licence, permit or order for the exportation to the United States, Chile or Costa Rica of energy goods or of any quality, kind or class of energy goods if that refusal, revocation, suspension or variation would constitute the maintenance or introduction of a restriction on that exportation as a consequence of which subparagraph (a), (b) or (c) of Article 605 of NAFTA, subparagraph 1(a), (b) or (c) of Article C-13 of CCFTA or subparagraph 1(a), (b) or (c) of Article III.11 of CCRFTA, as the case may be, would apply.
Effect of orders
(2) Subsection (1) does not apply in respect of the exportation to the United States, Chile or Costa Rica of such energy goods as are, or of such quality, kind or class of energy goods as is, referred to in an order made under section 120.2 during the time that the order is in force.
1997, c. 14, s. 87
59. The portion of section 120.5 of the Act before paragraph (a) is replaced by the following:
Where no declaration made
120.5 The Board may, despite its not being satisfied in accordance with paragraph 118(a), issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if
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Accord de libre-échan PART 3
Coming into force
Condition
COMING INTO FORCE 60. (1) Subject to subsection (2), the provisions of this Act, or any provisions of an Act as enacted or amended by this Act, come into force on a day or days to be fixed by order of the Governor in Council. (2) No order may be made under subsection (1) unless the Governor in Council is satisfied that the Government of the Republic of Costa Rica has taken satisfactory steps to implement the Agreement.
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Canada–Costa Rica Free Trade Agre
SCHED (Paragraph
0105.11.21 0105.11.22 0105.92.91 0105.92.92 0105.93.91 0105.93.92 0105.99.11 0105.99.12 0201.10.20 0201.20.20 0201.30.20 0202.10.20 0202.20.20 0202.30.20 0207.11.91 0207.11.92 0207.12.91 0207.12.92 0207.13.91 0207.13.92 0207.13.93 0207.14.22 0207.14.91 0207.14.92 0207.14.93 0207.24.11 0207.24.12 0207.24.91 0207.24.92 0207.25.11 0207.25.12 0207.25.91 0207.25.92 0207.26.10 0207.26.20 0207.26.30 0207.27.12 0207.27.91 0207.27.92
0207.27.93 0209.00.21 0209.00.22 0209.00.23 0209.00.24 0210.99.11 0210.99.12 0210.99.13 0210.99.14 0210.99.15 0210.99.16 0401.10.20 0401.20.10 0401.20.20 0401.30.10 0401.30.20 0402.10.20 0402.21.11 0402.21.12 0402.21.21 0402.21.22 0402.29.11 0402.29.12 0402.29.21 0402.29.22 0402.91.20 0402.99.20 0403.10.10 0403.10.20 0403.90.12 0403.90.92 0404.10.22 0404.90.20 0405.10.10 0405.10.20 0405.20.10 0405.20.20 0405.90.20 0406.10.10
0406.10.2 0406.20.1 0406.20.9 0406.20.9 0406.30.1 0406.30.2 0406.40.2 0406.90.1 0406.90.1 0406.90.2 0406.90.2 0406.90.3 0406.90.3 0406.90.4 0406.90.4 0406.90.5 0406.90.5 0406.90.6 0406.90.6 0406.90.7 0406.90.7 0406.90.8 0406.90.8 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0407.00.1 0407.00.1 0408.11.1 0408.11.2 0408.19.1 0408.19.2 0408.91.1 0408.91.2
����
Accord de libre-échange Cana
ANNE (alinéa 4
0105.11.21 0105.11.22 0105.92.91 0105.92.92 0105.93.91 0105.93.92 0105.99.11 0105.99.12 0201.10.20 0201.20.20 0201.30.20 0202.10.20 0202.20.20 0202.30.20 0207.11.91 0207.11.92 0207.12.91 0207.12.92 0207.13.91 0207.13.92 0207.13.93 0207.14.22 0207.14.91 0207.14.92 0207.14.93 0207.24.11 0207.24.12 0207.24.91 0207.24.92 0207.25.11 0207.25.12 0207.25.91 0207.25.92 0207.26.10 0207.26.20 0207.26.30 0207.27.12 0207.27.91 0207.27.92
0207.27.93 0209.00.21 0209.00.22 0209.00.23 0209.00.24 0210.99.11 0210.99.12 0210.99.13 0210.99.14 0210.99.15 0210.99.16 0401.10.20 0401.20.10 0401.20.20 0401.30.10 0401.30.20 0402.10.20 0402.21.11 0402.21.12 0402.21.21 0402.21.22 0402.29.11 0402.29.12 0402.29.21 0402.29.22 0402.91.20 0402.99.20 0403.10.10 0403.10.20 0403.90.12 0403.90.92 0404.10.22 0404.90.20 0405.10.10 0405.10.20 0405.20.10 0405.20.20 0405.90.20 0406.10.10
0406.10.2 0406.20.1 0406.20.9 0406.20.9 0406.30.1 0406.30.2 0406.40.2 0406.90.1 0406.90.1 0406.90.2 0406.90.2 0406.90.3 0406.90.3 0406.90.4 0406.90.4 0406.90.5 0406.90.5 0406.90.6 0406.90.6 0406.90.7 0406.90.7 0406.90.8 0406.90.8 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0406.90.9 0407.00.1 0407.00.1 0408.11.1 0408.11.2 0408.19.1 0408.19.2 0408.91.1 0408.91.2
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C. 28
Canada–Costa Rica Free Trade Agre
SCHED (Paragraph
Tariff Item
Initial Rate
1701.91.00 1701.99.00 1702.90.11 1702.90.12 1702.90.13 1702.90.14 1702.90.15 1702.90.16 1702.90.17 1702.90.18 1702.90.30 3825.30.20 3919.10.10 3919.10.20 3919.10.99 3919.90.10 3919.90.99 3920.10.10 3920.10.90 3920.20.20 3920.20.90 3920.30.00 3920.43.90 3920.49.90 3920.51.90 3920.59.10 3920.61.10 3920.62.90 3920.63.00 3920.71.00 3920.72.90 3920.73.10 3920.79.10 3920.92.90 3920.93.00 3920.94.10 3920.99.91 3921.11.00
$30.86/tonn $30.86/tonn $11.99/tonn $13.05/tonn $13.26/tonn $13.47/tonn $13.69/tonn $13.90/tonn $14.11/tonn $15.17/tonn $4.52/tonne 15.5% 13.5% 6.5% 9% 13.5% 9% 4% 9% 4% 9% 9% 9% 9% 6.5% 9% 9% 4% 9% 8.5% 6.5% 6.5% 6.5% 9% 5.5% 9% 9% 9%
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Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
3921.12.91 3921.12.99 3921.13.91 3921.13.99 3921.14.00 3921.19.90 3921.90.12 3921.90.19 3921.90.92 3921.90.93 3921.90.99 3922.10.00 3922.20.00 3922.90.00 3923.10.90 3923.21.90 3923.29.90 3923.30.90 3923.40.90 3923.50.90 3923.90.90 3924.10.00 3924.90.00 3925.10.00 3925.20.00 3925.30.00 3925.90.00 3926.10.00 3926.20.91 3926.20.92 3926.20.93 3926.20.94 3926.20.95 3926.20.99 3926.30.00 3926.40.10 3926.40.90 3926.90.20 3926.90.30
9% 9% 9% 9% 8.5% 9% 13.5% 13.5% 6.5% 9% 9% 8% 8% 8% 9% 9% 9% 9% 5% 9% 9% 9% 9% 9% 9% 8.5% 9% 9% 13.5% 13.5% 9% 11.5% 13.5% 9% 6% 7.5% 9% 10.5% 8%
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C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
3926.90.40 3926.90.50 3926.90.90 4005.10.90 4005.20.00 4005.91.90 4005.99.00 4006.10.00 4006.90.90 4007.00.20 4007.00.90 4008.11.90 4008.19.10 4008.19.90 4008.21.90 4008.29.10 4008.29.90 4009.11.00 4009.12.00 4009.21.00 4009.22.90 4009.31.00 4009.32.90 4009.41.90 4009.42.90 4010.11.10 4010.11.20 4010.12.19 4010.12.29 4010.13.19 4010.13.20 4010.19.19 4010.19.29 4010.31.10 4010.31.90 4010.32.10 4010.32.90 4010.33.10 4010.33.90 4010.34.10
6.5% 5% 9% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 4.5% 6.5% 6.5% 6.5% 6.5% 6.5% 7% 7% 7% 7% 7% 7% 11% 7% 7% 7% 9% 11% 9% 11% 9% 11% 9% 11% 6.5% 11% 6.5% 11% 6.5% 11% 6.5%
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C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
4010.34.90 4010.35.90 4010.36.90 4010.39.10 4010.39.20 4010.39.90 4011.10.00 4011.20.00 4011.61.90 4011.62.90 4011.63.90 4011.69.90 4011.92.90 4011.93.90 4011.94.90 4011.99.90 4012.20.20 4012.20.90 4012.90.90 4013.10.00 4013.90.90 4014.10.00 4014.90.90 4015.11.00 4015.19.90 4015.90.20 4015.90.90 4016.10.00 4016.91.00 4016.92.00 4016.93.10 4016.93.99 4016.94.00 4016.95.10 4016.95.90 4016.99.30 4016.99.90 4017.00.90 4201.00.10 4201.00.90
11% 11% 11% 11% 6.5% 11% 7% 7% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 6.5% 15.5% 15.5% 10% 14% 6.5% 7% 6.5% 6.5% 6.5% 6.5% 9.5% 6.5% 6.5% 6.5% 6.5% 5% 7%
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C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
4202.11.00 4202.12.10 4202.12.90 4202.19.00 4202.21.00 4202.22.10 4202.22.90 4202.29.00 4202.31.00 4202.32.10 4202.32.90 4202.39.00 4202.91.20 4202.91.90 4202.92.90 4202.99.90 4203.10.00 4203.21.10 4203.21.90 4203.29.10 4203.29.90 4203.30.00 4203.40.00 4206.90.00 5105.10.90 5105.29.90 5105.31.90 5105.39.90 5105.40.90 5106.10.00 5106.20.00 5107.10.90 5107.20.90 5108.10.10 5108.10.20 5108.20.10 5108.20.20 5109.10.00 5109.90.00 5110.00.00
11% 11% 11% 11% 10% 10.5% 10.5% 10.5% 8.5% 8% 8% 9.5% 11% 7% 7% 7% 13% 7% 15.5% 7% 15.5% 9.5% 8% 6.5% 5% 5% 5% 5% 5% 9.5% 9.5% 9.5% 9.5% 5.5% 9.5% 5.5% 9.5% 9.5% 9.5% 5.5%
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C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5111.11.20 5111.11.30 5111.11.90 5111.19.31 5111.19.32 5111.19.39 5111.19.90 5111.20.11 5111.20.12 5111.20.13 5111.20.18 5111.20.19 5111.20.20 5111.20.91 5111.20.92 5111.30.11 5111.30.12 5111.30.13 5111.30.18 5111.30.19 5111.30.20 5111.30.91 5111.30.92 5111.90.21 5111.90.22 5111.90.23 5111.90.28 5111.90.29 5111.90.30 5111.90.91 5111.90.92 5112.11.10 5112.11.90 5112.19.19 5112.19.91 5112.19.92 5112.20.10 5112.20.91 5112.20.92 5112.30.20
5.5% 12.5% 16% but no 6.5% 7.5% 16% 16% 5.5% 6.5% 7.5% 16% but no 16% 12.5% 16% but no 16% 5.5% 6.5% 7.5% 16% but no 16% 12.5% 16% but no 16% 5.5% 6.5% 7.5% 16% but no 16% 12.5% 16% but no 16% 12.5% 16% but no 15.5% 16% but no 16% 12.5% 16% but no 16% 12.5%
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C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5112.30.30 5112.30.91 5112.30.92 5112.90.10 5112.90.91 5112.90.92 5113.00.00 5203.00.90 5204.11.10 5204.11.90 5204.19.00 5204.20.00 5205.11.20 5205.11.90 5205.12.90 5205.13.90 5205.14.90 5205.15.90 5205.21.90 5205.22.20 5205.22.90 5205.23.90 5205.24.90 5205.26.90 5205.27.90 5205.28.90 5205.31.10 5205.31.90 5205.32.10 5205.32.90 5205.33.10 5205.33.90 5205.34.20 5205.34.90 5205.35.10 5205.35.90 5205.41.10 5205.41.90 5205.42.10 5205.42.90
15.5% 16% but no 16% 12.5% 16% but no 16% 16% 5% 5% 9.5% 9.5% 9.5% 5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5%
�
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5205.43.10 5205.43.90 5205.44.20 5205.44.90 5205.46.30 5205.46.90 5205.47.30 5205.47.90 5205.48.30 5205.48.90 5206.11.00 5206.12.00 5206.13.00 5206.14.00 5206.14.90 5206.15.00 5206.15.90 5206.21.00 5206.22.00 5206.23.00 5206.24.00 5206.24.90 5206.25.00 5206.25.90 5206.31.00 5206.32.00 5206.33.00 5206.34.00 5206.35.00 5206.41.00 5206.42.00 5206.43.00 5206.44.00 5206.45.00 5207.10.00 5207.90.00 5208.11.20 5208.11.90 5208.12.30 5208.12.90
5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 8% 10% 8% 10%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5208.13.10 5208.13.90 5208.19.20 5208.19.90 5208.21.90 5208.22.90 5208.23.90 5208.29.90 5208.31.90 5208.32.90 5208.33.90 5208.39.90 5208.41.90 5208.42.90 5208.43.90 5208.49.90 5208.51.00 5208.52.90 5208.53.00 5208.59.90 5209.11.20 5209.11.90 5209.12.10 5209.12.90 5209.19.20 5209.19.90 5209.21.90 5209.22.90 5209.29.90 5209.31.90 5209.32.90 5209.39.00 5209.41.00 5209.42.00 5209.43.90 5209.49.00 5209.51.00 5209.52.00 5209.59.00 5210.11.00
8% 10% 8% 10% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 8% 10% 8% 10% 8% 10% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 14% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5210.12.00 5210.19.00 5210.21.00 5210.22.00 5210.29.00 5210.31.00 5210.32.00 5210.39.00 5210.41.00 5210.42.00 5210.49.00 5210.51.00 5210.52.00 5210.59.00 5211.11.00 5211.12.00 5211.19.00 5211.21.00 5211.22.00 5211.29.00 5211.31.00 5211.32.00 5211.39.00 5211.41.00 5211.42.00 5211.43.00 5211.49.00 5211.51.00 5211.52.00 5211.59.00 5212.11.10 5212.11.90 5212.12.10 5212.12.90 5212.13.20 5212.13.90 5212.14.20 5212.14.90 5212.15.10 5212.15.90
16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 9% 16% 9% 16% 9% 16% 9% 16% 9% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5212.21.10 5212.21.90 5212.22.10 5212.22.90 5212.23.10 5212.23.90 5212.24.10 5212.24.90 5212.25.10 5212.25.90 5306.20.20 5307.10.90 5307.20.00 5308.20.00 5308.90.10 5308.90.90 5309.11.90 5309.19.90 5309.21.00 5309.29.90 5310.90.90 5311.00.00 5311.00.90 5401.10.00 5401.20.00 5402.10.90 5402.20.90 5402.31.00 5402.32.90 5402.33.90 5402.39.00 5402.41.14 5402.41.19 5402.41.93 5402.41.99 5402.42.90 5402.43.99 5402.49.90 5402.51.00 5402.52.99
9% 16% 9% 16% 9% 16% 9% 16% 9% 16% 9% 8% 10% 7% 5% 8.5% 9% 9% 16% 16% 14% 10.5% 10.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5402.59.90 5402.61.00 5402.62.90 5402.69.90 5403.10.90 5403.20.90 5403.31.90 5403.32.90 5403.33.90 5403.39.00 5403.41.90 5403.49.00 5404.10.90 5404.90.00 5405.00.00 5406.10.00 5406.20.00 5407.10.20 5407.10.90 5407.20.90 5407.30.00 5407.41.90 5407.42.90 5407.43.00 5407.44.00 5407.51.90 5407.52.10 5407.52.90 5407.53.00 5407.54.00 5407.61.11 5407.61.19 5407.61.93 5407.61.99 5407.69.90 5407.71.00 5407.72.00 5407.73.90 5407.74.00 5407.81.00
9.5% 9.5% 9.5% 9.5% 8.5% 9.5% 8.5% 8.5% 9.5% 9.5% 8.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 11% 16% 16% 16% 16% 16% 16% 16% 16% 10% 16% 16% 16% 11% 16% 11% 16% 16% 16% 16% 16% 16% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5407.82.90 5407.83.90 5407.84.00 5407.91.90 5407.92.90 5407.93.90 5407.94.90 5408.10.00 5408.21.90 5408.22.29 5408.22.90 5408.23.10 5408.23.90 5408.24.19 5408.24.99 5408.31.90 5408.32.90 5408.33.90 5408.34.90 5501.10.90 5501.20.90 5501.90.00 5502.00.00 5503.10.90 5503.20.90 5503.40.00 5503.90.90 5504.90.90 5506.10.90 5506.20.90 5506.90.00 5507.00.90 5508.10.00 5508.20.00 5509.11.00 5509.12.00 5509.21.90 5509.22.10 5509.22.90 5509.31.00
16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5509.32.90 5509.41.90 5509.42.00 5509.51.00 5509.52.90 5509.53.00 5509.53.90 5509.59.00 5509.61.00 5509.62.00 5509.69.00 5509.91.00 5509.92.00 5509.99.00 5510.11.00 5510.12.00 5510.20.90 5510.30.00 5510.90.00 5511.10.00 5511.20.00 5511.30.00 5512.11.90 5512.19.90 5512.21.00 5512.29.00 5512.91.00 5512.99.90 5513.11.90 5513.12.00 5513.13.00 5513.19.00 5513.21.00 5513.22.00 5513.23.00 5513.29.00 5513.31.90 5513.32.90 5513.33.90 5513.39.00
9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 9.5% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5513.41.90 5513.42.00 5513.43.00 5513.49.00 5514.11.00 5514.12.00 5514.13.00 5514.19.00 5514.21.00 5514.22.00 5514.23.00 5514.29.00 5514.31.00 5514.32.00 5514.33.00 5514.39.00 5514.41.00 5514.42.00 5514.43.00 5514.49.00 5515.11.90 5515.12.00 5515.13.20 5515.13.90 5515.19.00 5515.21.00 5515.22.00 5515.29.00 5515.91.00 5515.92.00 5515.99.00 5516.11.00 5516.12.00 5516.13.00 5516.14.90 5516.21.90 5516.22.00 5516.23.90 5516.24.90 5516.31.00
16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 5.5% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5516.32.00 5516.33.00 5516.34.00 5516.41.00 5516.42.00 5516.43.00 5516.44.00 5516.91.90 5516.92.00 5516.93.90 5516.94.00 5601.10.90 5601.21.20 5601.21.30 5601.22.20 5601.22.30 5601.29.00 5601.30.10 5602.10.90 5602.21.90 5602.29.00 5602.90.00 5603.11.30 5603.11.40 5603.11.50 5603.11.90 5603.12.30 5603.12.40 5603.12.50 5603.12.90 5603.13.30 5603.13.40 5603.13.50 5603.13.90 5603.14.30 5603.14.40 5603.14.50 5603.14.90 5603.91.30 5603.91.90
16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 14% 6.5% 17% 7% 19% 7% 6% 16% 14% 16% 16% 12.5% 13.5% 16% 16% 12.5% 13.5% 16% 16% 12.5% 13.5% 16% 16% 12.5% 13.5% 16% 16% 9% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5603.92.30 5603.92.90 5603.93.30 5603.93.90 5603.94.30 5603.94.90 5604.10.00 5604.20.90 5604.90.00 5605.00.90 5606.00.90 5607.10.90 5607.29.20 5607.29.90 5607.49.20 5607.49.90 5607.50.20 5607.50.90 5607.90.20 5607.90.90 5608.11.90 5608.19.90 5608.90.90 5609.00.00 5701.10.10 5701.10.90 5701.90.10 5701.90.90 5702.10.00 5702.31.00 5702.32.00 5702.39.00 5702.41.00 5702.42.00 5702.49.00 5702.51.00 5702.52.00 5702.59.10 5702.59.90 5702.91.00
9% 16% 9% 16% 9% 16% 9.5% 8.5% 9.5% 9.5% 9.5% 11% 11% 14% 11% 14% 11% 14% 11% 14% 18% 18% 15.5% 17.5% 15.5% 7.5% 15.5% 7.5% 15.5% 15.5% 15.5% 15.5% 15.5% 17% 17% 15.5% 15.5% 7.5% 15.5% 15.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5702.92.00 5702.99.10 5702.99.90 5703.10.10 5703.10.90 5703.20.10 5703.20.90 5703.30.10 5703.30.90 5703.90.10 5703.90.90 5704.10.00 5704.90.00 5705.00.00 5801.10.90 5801.22.20 5801.22.90 5801.23.00 5801.24.00 5801.25.10 5801.25.20 5801.26.00 5801.31.00 5801.32.90 5801.33.00 5801.34.00 5801.35.90 5801.36.00 5801.90.90 5802.11.90 5802.19.90 5802.20.00 5802.30.00 5803.10.90 5803.90.11 5803.90.19 5803.90.99 5804.10.10 5804.10.90 5804.21.00
17% 7.5% 15.5% 15.5% 10% 15.5% 10% 15.5% 10% 15.5% 10% 15.5% 15.5% 14.5% 16% 13% 16% 13% 14% 13% 16% 15% 16% 16% 16% 16% 16% 16% 14% 15% 14% 16% 16% 15% 12.5% 16% but no 16% 8% 15% 14%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5804.29.00 5804.30.10 5804.30.90 5805.00.90 5806.10.10 5806.10.90 5806.20.90 5806.31.10 5806.31.20 5806.31.90 5806.32.90 5806.39.90 5806.40.00 5807.10.10 5807.10.20 5807.90.00 5808.10.00 5808.90.00 5809.00.00 5810.10.00 5810.91.10 5810.91.90 5810.92.00 5810.99.00 5811.00.10 5811.00.20 5811.00.90 5901.10.90 5901.90.10 5901.90.90 5902.10.00 5902.20.00 5902.90.00 5903.10.19 5903.10.29 5903.20.19 5903.20.23 5903.20.29 5903.90.10 5903.90.29
8% 8% 15% 17% 13% 16% 16% 13% 14% 15% 16% 16% 16% 17.5% 13% 13% 15% 18% 16% 9.5% 8% 15% 15% 15% 18% 18% 18% 16% 8% 16% 9.5% 9.5% 9.5% 16% 16% 16% 10% 16% 16% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
5904.10.00 5904.90.10 5904.90.90 5905.00.10 5905.00.90 5906.10.90 5906.91.90 5906.99.10 5906.99.22 5906.99.29 5907.00.13 5907.00.18 5907.00.19 5907.00.29 5908.00.90 5909.00.00 5910.00.19 5910.00.90 5911.10.10 5911.10.90 5911.20.90 5911.31.10 5911.32.10 5911.40.90 5911.90.20 5911.90.90 6001.10.90 6001.21.00 6001.22.00 6001.29.00 6001.91.00 6001.92.90 6001.99.00 6002.40.10 6002.40.90 6002.90.10 6002.90.90 6003.10.90 6003.20.10 6003.20.90
8% 13.5% 20.5% 6% 17% 16% 16% 16% 11% 16% 8.5% 16% 16% 16% 16% 15% 9% 13.5% 9.5% 16% 16% 7% 7% 16% 9% 14.5% 16% 16% 16% 16% 16% 16% 16% 10% 16% 10% 16% 16% 10% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6003.30.90 6003.40.90 6003.90.10 6003.90.90 6004.10.10 6004.10.90 6004.90.10 6004.90.90 6005.10.00 6005.21.10 6005.21.90 6005.22.10 6005.22.90 6005.23.10 6005.23.90 6005.24.10 6005.24.90 6005.31.90 6005.32.90 6005.33.90 6005.34.90 6005.41.90 6005.42.90 6005.43.90 6005.44.90 6005.90.90 6006.10.00 6006.21.10 6006.21.90 6006.22.10 6006.22.90 6006.23.20 6006.23.90 6006.24.10 6006.24.90 6006.31.90 6006.32.90 6006.33.90 6006.34.90 6006.41.90
16% 16% 10% 16% 10% 16% 10% 16% 16% 10% 16% 10% 16% 10% 16% 10% 16% 16% 16% 16% 16% 16% 16% 16% 16% 10% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16% 16%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6006.42.90 6006.43.90 6006.44.90 6006.90.00 6101.10.00 6101.20.00 6101.30.00 6101.90.00 6102.10.00 6102.20.00 6102.30.00 6102.90.00 6103.11.00 6103.12.00 6103.19.10 6103.19.90 6103.21.00 6103.22.00 6103.23.00 6103.29.00 6103.31.00 6103.32.00 6103.33.00 6103.39.10 6103.39.90 6103.41.00 6103.42.00 6103.43.00 6103.49.00 6104.11.00 6104.12.00 6104.13.00 6104.19.10 6104.19.90 6104.21.00 6104.22.00 6104.23.00 6104.29.00 6104.31.00 6104.32.00
16% 16% 16% 16% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6104.33.00 6104.39.10 6104.39.90 6104.41.00 6104.42.00 6104.43.00 6104.44.00 6104.49.00 6104.51.00 6104.52.00 6104.53.00 6104.59.10 6104.59.90 6104.61.00 6104.62.00 6104.63.00 6104.69.00 6105.10.00 6105.20.00 6105.90.00 6106.10.00 6106.20.00 6106.90.00 6107.11.90 6107.12.90 6107.19.00 6107.21.00 6107.22.00 6107.29.00 6107.91.00 6107.92.00 6107.99.00 6108.11.00 6108.19.00 6108.21.00 6108.22.90 6108.29.00 6108.31.00 6108.32.00 6108.39.00
20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6108.91.00 6108.92.00 6108.99.00 6109.10.00 6109.90.00 6110.11.10 6110.11.90 6110.12.10 6110.12.90 6110.19.10 6110.19.90 6110.20.00 6110.30.00 6110.90.00 6111.10.00 6111.20.00 6111.30.00 6111.90.00 6112.11.00 6112.12.00 6112.19.00 6112.20.00 6112.31.00 6112.39.00 6112.41.00 6112.49.00 6113.00.20 6113.00.90 6114.10.00 6114.20.00 6114.30.00 6114.90.00 6115.11.00 6115.12.00 6115.19.00 6115.20.00 6115.91.00 6115.92.00 6115.93.00 6115.99.00
20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 10% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 16% and 1.3 17% 16% and 1.3 16% and 1.3 16% and 1.3
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6116.10.00 6116.91.00 6116.92.00 6116.93.00 6116.99.00 6117.10.90 6117.20.00 6117.80.10 6117.80.90 6117.90.20 6117.90.90 6201.11.00 6201.12.00 6201.13.00 6201.19.00 6201.91.00 6201.92.10 6201.92.90 6201.93.00 6201.99.00 6202.11.00 6202.12.00 6202.13.00 6202.19.00 6202.91.00 6202.92.00 6202.93.00 6202.99.00 6203.11.00 6203.12.00 6203.19.10 6203.19.90 6203.21.00 6203.22.00 6203.23.00 6203.29.00 6203.31.00 6203.32.00 6203.33.00 6203.39.10
20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 20.5% 13% 20.5% 10% 20.5% 20.5% 19% 20.5% 19% 20.5% 22.5% 19% 19% 19% 20.5% 19% 20.5% 17% 20.5% 19% 20.5% 19% 20.5% 20.5% 19% 19% 20.5% 19% 20.5% 19% 20.5% 19% 20.5% 19%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6203.39.90 6203.41.00 6203.42.00 6203.43.00 6203.49.00 6204.11.00 6204.12.00 6204.13.00 6204.19.10 6204.19.90 6204.21.00 6204.22.00 6204.23.00 6204.29.00 6204.31.00 6204.32.00 6204.33.00 6204.39.10 6204.39.90 6204.41.00 6204.42.00 6204.43.00 6204.44.00 6204.49.00 6204.51.00 6204.52.00 6204.53.00 6204.59.10 6204.59.90 6204.61.00 6204.62.00 6204.63.00 6204.69.00 6205.10.00 6205.20.00 6205.30.00 6205.90.00 6206.10.00 6206.20.00 6206.30.00
19% 20.5% 19% 20.5% 20.5% 20.5% 19% 20.5% 20.5% 20.5% 20.5% 19% 20.5% 19% 20.5% 19% 20.5% 19% 19% 20.5% 19% 20.5% 20.5% 17% 20.5% 19% 20.5% 19% 19% 20.5% 19% 20.5% 19% 20.5% 19% 20.5% 20.5% 17% 20.5% 19%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6206.40.00 6206.90.00 6207.11.00 6207.19.00 6207.21.00 6207.22.00 6207.29.00 6207.91.00 6207.92.00 6207.99.00 6208.11.00 6208.19.00 6208.21.00 6208.22.00 6208.29.00 6208.91.00 6208.92.00 6208.99.00 6209.10.00 6209.20.00 6209.30.00 6209.90.00 6210.10.90 6210.20.00 6210.30.00 6210.40.90 6210.50.90 6211.11.00 6211.12.90 6211.20.00 6211.31.00 6211.32.00 6211.33.10 6211.33.90 6211.39.00 6211.41.00 6211.42.00 6211.43.10 6211.43.20 6211.43.90
20.5% 19% 19% 20.5% 19% 20.5% 17% 19% 20.5% 19% 20.5% 18.5% 19% 20.5% 17% 19% 20.5% 17% 20.5% 19% 20.5% 20% 20% 20% 20% 20% 20% 20% 20.5% 20.5% 20.5% 19% 8.5% 20.5% 19% 20.5% 19% 7% 8.5% 20.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6211.49.10 6211.49.20 6211.49.90 6212.10.00 6212.20.00 6212.30.00 6212.90.00 6213.10.00 6213.20.00 6213.90.00 6214.10.90 6214.20.90 6214.30.90 6214.40.00 6214.90.00 6215.10.00 6215.20.00 6215.90.00 6216.00.00 6217.10.10 6217.10.90 6217.90.90 6301.10.00 6301.20.00 6301.30.00 6301.40.00 6301.90.00 6302.10.00 6302.21.00 6302.22.00 6302.29.00 6302.31.00 6302.32.00 6302.39.00 6302.40.00 6302.51.00 6302.52.00 6302.53.10 6302.53.90 6302.59.00
7% 8.5% 19% 20.5% 20.5% 20.5% 20.5% 10% 10% 16% 10% 20.5% 20.5% 20.5% 20% 17% 20.5% 20.5% 20.5% 8.5% 16% 20% 19% 19% 19% 19% 19% 20.5% 19% 20.5% 19% 19% 20.5% 19% 20.5% 19% 9.5% 8.5% 20.5% 18.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6302.60.00 6302.91.00 6302.92.00 6302.93.00 6302.99.00 6303.11.00 6303.12.00 6303.19.00 6303.91.00 6303.92.10 6303.92.90 6303.99.00 6304.11.00 6304.19.00 6304.91.10 6304.91.90 6304.92.10 6304.92.90 6304.93.10 6304.93.90 6304.99.10 6304.99.90 6305.10.00 6305.20.00 6305.32.00 6305.33.00 6305.39.00 6305.90.00 6306.11.00 6306.12.00 6306.19.00 6306.21.00 6306.22.00 6306.29.00 6306.31.00 6306.39.00 6306.41.00 6306.49.00 6306.91.00 6306.99.00
19% 19% 17% 20.5% 19% 20.5% 20.5% 20.5% 19% 20.5% 20.5% 20.5% 20.5% 20% 15.5% 20.5% 15.5% 19% 15.5% 20.5% 15.5% 19% 6% 19% 20.5% 20.5% 20.5% 6% 19% 20.5% 19% 19% 20.5% 19% 17% 17% 13% 13% 19% 20.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6307.10.10 6307.10.90 6307.20.00 6307.90.20 6307.90.30 6307.90.40 6307.90.91 6307.90.92 6307.90.93 6307.90.99 6308.00.00 6309.00.90 6401.10.11 6401.10.19 6401.10.20 6401.91.11 6401.91.19 6401.91.20 6401.92.11 6401.92.12 6401.92.30 6401.92.91 6401.92.92 6401.99.10 6401.99.21 6401.99.29 6401.99.30 6402.12.20 6402.12.30 6402.19.10 6402.19.90 6402.20.11 6402.20.19 6402.20.20 6402.30.00 6402.91.00 6402.99.00 6403.12.20 6403.12.30 6403.19.20
19% 19% 19% 8.5% 13% 19% 9.5% 17% 19% 20.5% 20.5% 20.5% 20% 20% 20% 20% 20% 20% 20% 20% 20% 20% 20% 20% 10% 20% 20% 18% 19.5% 19.5% 19.5% 17% 17% 20% 17.5% 19.5% 19.5% 18% 20% 20%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6403.19.90 6403.20.00 6403.30.00 6403.40.00 6403.51.00 6403.59.20 6403.59.90 6403.91.00 6403.99.20 6403.99.30 6403.99.90 6404.11.11 6404.11.19 6404.11.91 6404.11.99 6404.19.20 6404.19.30 6404.19.90 6404.20.90 6405.10.90 6405.20.20 6405.20.90 6405.90.00 6406.10.11 6406.10.19 6406.10.90 6406.20.00 6406.99.20 6406.99.90 6503.00.90 6504.00.90 6505.10.00 6505.90.20 6505.90.90 6506.10.90 6506.91.00 6506.92.00 6506.99.10 6506.99.90 6904.10.00
20% 18% 20% 20% 18% 11% 20% 20% 20% 11% 20% 17% 17% 19.5% 19.5% 8.5% 17% 20% 18% 20% 20% 20% 20% 15.5% 15.5% 8% 2.5% 10% 5% 12.5% 12.5% 15.5% 12.5% 15.5% 8.5% 9% 8% 5% 12.5% 3%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
6904.90.10 6904.90.20 6905.10.00 6905.90.00 6907.10.00 6907.90.00 6908.10.00 6908.90.10 6908.90.90 6909.11.00 6909.12.90 6909.19.90 6909.90.00 6910.10.10 6910.10.90 6910.90.00 6911.10.20 6911.10.90 6911.90.00 6912.00.20 6912.00.90 6913.10.00 6913.90.90 6914.10.90 6914.90.00 9401.20.00 9401.30.10 9401.40.00 9401.50.10 9401.50.90 9401.61.10 9401.69.10 9401.71.10 9401.79.10 9401.80.10 9401.90.19 9401.90.20 9403.20.00 9403.40.00 9403.50.00
3% 8% 6.5% 7% 8% 8% 8% 8% 8% 4.5% 4.5% 4.5% 7% 7.5% 7.5% 7.5% 4.5% 7% 5.5% 4.5% 7% 6.5% 6.5% 7% 7% 6% 8% 9.5% 9.5% 9.5% 9.5% 9.5% 8% 8% 9.5% 8% 15.5% 8% 9.5% 9.5%
��
C. 28
Canada–Costa Rica Free Trade Agre
Tariff Item
Initial Rate
9403.60.10 9403.70.10 9403.80.11 9403.80.19 9404.10.00 9404.21.00 9404.29.00 9404.30.00 9404.90.10 9404.90.90 9405.10.00 9405.20.00 9405.30.00 9405.40.20 9405.40.90 9405.50.10 9405.50.90 9405.60.00 9405.91.10 9405.91.99 9405.92.00 9405.99.90
9.5% 9.5% 9.5% 9.5% 8% 9.5% 9.5% 15.5% 14% 14% 7% 7% 7% 6% 7% 5% 7% 7% 7% 4.5% 3.5% 6%
����
Accord de libre-échange Can
ANNE (alinéa 4
Numéro tarifaire
Taux ini
1701.91.00 1701.99.00 1702.90.11 1702.90.12 1702.90.13 1702.90.14 1702.90.15 1702.90.16 1702.90.17 1702.90.18 1702.90.30 3825.30.20 3919.10.10 3919.10.20 3919.10.99 3919.90.10 3919.90.99 3920.10.10 3920.10.90 3920.20.20 3920.20.90 3920.30.00 3920.43.90 3920.49.90 3920.51.90 3920.59.10 3920.61.10 3920.62.90 3920.63.00 3920.71.00 3920.72.90 3920.73.10 3920.79.10 3920.92.90 3920.93.00 3920.94.10 3920.99.91 3921.11.00
30,86 $/t 30,86 $/t 11,99 $/t 13,05 $/t 13,26 $/t 13,47 $/t 13,69 $/t 13,90 $/t 14,11 $/t 15,17 $/t 4,52 $/to 15,5 % 13,5 % 6,5 % 9% 13,5 % 9% 4% 9% 4% 9% 9% 9% 9% 6,5 % 9% 9% 4% 9% 8,5 % 6,5 % 6,5 % 6,5 % 9% 5,5 % 9% 9% 9%
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
3921.12.91 3921.12.99 3921.13.91 3921.13.99 3921.14.00 3921.19.90 3921.90.12 3921.90.19 3921.90.92 3921.90.93 3921.90.99 3922.10.00 3922.20.00 3922.90.00 3923.10.90 3923.21.90 3923.29.90 3923.30.90 3923.40.90 3923.50.90 3923.90.90 3924.10.00 3924.90.00 3925.10.00 3925.20.00 3925.30.00 3925.90.00 3926.10.00 3926.20.91 3926.20.92 3926.20.93 3926.20.94 3925.20.95 3926.20.99 3926.30.00 3926.40.10 3926.40.90 3926.90.20 3926.90.30
9% 9% 9% 9% 8,5 % 9% 13,5 % 13,5 % 6,5 % 9% 9% 8% 8% 8% 9% 9% 9% 9% 5% 9% 9% 9% 9% 9% 9% 8,5 % 9% 9% 13,5 % 13,5 % 9% 11,5 % 13,5 % 9% 6% 7,5 % 9% 10,5 % 8%
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
3926.90.40 3926.90.50 3926.90.90 4005.10.90 4005.20.00 4005.91.90 4005.99.00 4006.10.00 4006.90.90 4007.00.20 4007.00.90 4008.11.90 4008.19.10 4008.19.90 4008.21.90 4008.29.10 4008.29.90 4009.11.00 4009.12.00 4009.21.00 4009.22.90 4009.31.00 4009.32.90 4009.41.90 4009.42.90 4010.11.10 4010.11.20 4010.12.19 4010.12.29 4010.13.19 4010.13.20 4010.19.19 4010.19.29 4010.31.10 4010.31.90 4010.32.10 4010.32.90 4010.33.10 4010.33.90 4010.34.10
6,5 % 5% 9% 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 4,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 7% 7% 7% 7% 7% 7% 11 % 7% 7% 7% 9% 11 % 9% 11 % 9% 11 % 9% 11 % 6,5 % 11 % 6,5 % 11 % 6,5 % 11 % 6,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
4010.34.90 4010.35.90 4010.36.90 4010.39.10 4010.39.20 4010.39.90 4011.10.00 4011.20.00 4011.61.90 4011.62.90 4011.63.90 4011.69.90 4011.92.90 4011.93.90 4011.94.90 4011.99.90 4012.20.20 4012.20.90 4012.90.90 4013.10.00 4013.90.90 4014.10.00 4014.90.90 4015.11.00 4015.19.90 4015.90.20 4015.90.90 4016.10.00 4016.91.00 4016.92.00 4016.93.10 4016.93.99 4016.94.00 4016.95.10 4016.95.90 4016.99.30 4016.99.90 4017.00.90 4201.00.10 4201.00.90
11 % 11 % 11 % 11 % 6,5 % 11 % 7% 7% 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 6,5 % 15,5 % 15,5 % 10 % 14 % 6,5 % 7% 6,5 % 6,5 % 6,5 % 6,5 % 9,5 % 6,5 % 6,5 % 6,5 % 6,5 % 5% 7%
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
4202.11.00 4202.12.10 4202.12.90 4202.19.00 4202.21.00 4202.22.10 4202.22.90 4202.29.00 4202.31.00 4202.32.10 4202.32.90 4202.39.00 4202.91.20 4202.91.90 4202.92.90 4202.99.90 4203.10.00 4203.21.10 4203.21.90 4203.29.10 4203.29.90 4203.30.00 4203.40.00 4206.90.00 5105.10.90 5105.29.90 5105.31.90 5105.39.90 5105.40.90 5106.10.00 5106.20.00 5107.10.90 5107.20.90 5108.10.10 5108.10.20 5108.20.10 5108.20.20 5109.10.00 5109.90.00 5110.00.00
11 % 11 % 11 % 11 % 10 % 10,5 % 10,5 % 10,5 % 8,5 % 8% 8% 9,5 % 11 % 7% 7% 7% 13 % 7% 15,5 % 7% 15,5 % 9,5 % 8% 6,5 % 5% 5% 5% 5% 5% 9,5 % 9,5 % 9,5 % 9,5 % 5,5 % 9,5 % 5,5 % 9,5 % 9,5 % 9,5 % 5,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5111.11.20 5111.11.30 5111.11.90 5111.19.31 5111.19.32 5111.19.39 5111.19.90 5111.20.11 5111.20.12 5111.20.13 5111.20.18 5111.20.19 5111.20.20 5111.20.91 5111.20.92 5111.30.11 5111.30.12 5111.30.13 5111.30.18 5111.30.19 5111.30.20 5111.30.91 5111.30.92 5111.90.21 5111.90.22 5111.90.23 5111.90.28 5111.90.29 5111.90.30 5111.90.91 5111.90.92 5112.11.10 5112.11.90 5112.19.19 5112.19.91 5112.19.92 5112.20.10 5112.20.91 5112.20.92 5112.30.20
5,5 % 12,5 % 16 % ma 6,5 % 7,5 % 16 % 16 % 5,5 % 6,5 % 7,5 % 16 % ma 16 % 12,5 % 16 % ma 16 % 5,5 % 6,5 % 7,5 % 16 % ma 16 % 12,5 % 16 % ma 16 % 5,5 % 6,5 % 7,5 % 16 % ma 16 % 12,5 % 16 % ma 16 % 12,5 % 16 % ma 15,5 % 16 % ma 16 % 12,5 % 16 % ma 16 % 12,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5112.30.30 5112.30.91 5112.30.92 5112.90.10 5112.90.91 5112.90.92 5113.00.00 5203.00.90 5204.11.10 5204.11.90 5204.19.00 5204.20.00 5205.11.20 5205.11.90 5205.12.90 5205.13.90 5205.14.90 5205.15.90 5205.21.90 5205.22.20 5205.22.90 5205.23.90 5205.24.90 5205.26.90 5205.27.90 5205.28.90 5205.31.10 5205.31.90 5205.32.10 5205.32.90 5205.33.10 5205.33.90 5205.34.20 5205.34.90 5205.35.10 5205.35.90 5205.41.10 5205.41.90 5205.42.10 5205.42.90
15,5 % 16 % ma 16 % 12,5 % 16 % ma 16 % 16 % 5% 5% 9,5 % 9,5 % 9,5 % 5% 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 5% 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5205.43.10 5205.43.90 5205.44.20 5205.44.90 5205.46.30 5205.46.90 5205.47.30 5205.47.90 5205.48.30 5205.48.90 5206.11.00 5206.12.00 5206.13.00 5206.14.00 5206.14.90 5206.15.00 5206.15.90 5206.21.00 5206.22.00 5206.23.00 5206.24.00 5206.24.90 5206.25.00 5206.25.90 5206.31.00 5206.32.00 5206.33.00 5206.34.00 5206.35.00 5206.41.00 5206.42.00 5206.43.00 5206.44.00 5206.45.00 5207.10.00 5207.90.00 5208.11.20 5208.11.90 5208.12.30 5208.12.90
5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 5% 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 8% 10 % 8% 10 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5208.13.10 5208.13.90 5208.19.20 5208.19.90 5208.21.90 5208.22.90 5208.23.90 5208.29.90 5208.31.90 5208.32.90 5208.33.90 5208.39.90 5208.41.90 5208.42.90 5208.43.90 5208.49.90 5208.51.00 5208.52.90 5208.53.00 5208.59.90 5209.11.20 5209.11.90 5209.12.10 5209.12.90 5209.19.20 5209.19.90 5209.21.90 5209.22.90 5209.29.90 5209.31.90 5209.32.90 5209.39.00 5209.41.00 5209.42.00 5209.43.90 5209.49.00 5209.51.00 5209.52.00 5209.59.00 5210.11.00
8% 10 % 8% 10 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 8% 10 % 8% 10 % 8% 10 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 14 % 16 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5210.12.00 5210.19.00 5210.21.00 5210.22.00 5210.29.00 5210.31.00 5210.32.00 5210.39.00 5210.41.00 5210.42.00 5210.49.00 5210.51.00 5210.52.00 5210.59.00 5211.11.00 5211.12.00 5211.19.00 5211.21.00 5211.22.00 5211.29.00 5211.31.00 5211.32.00 5211.39.00 5211.41.00 5211.42.00 5211.43.00 5211.49.00 5211.51.00 5211.52.00 5211.59.00 5212.11.10 5212.11.90 5212.12.10 5212.12.90 5212.13.20 5212.13.90 5212.14.20 5212.14.90 5212.15.10 5212.15.90
16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 9% 16 % 9% 16 % 9% 16 % 9% 16 % 9% 16 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5212.21.10 5212.21.90 5212.22.10 5212.22.90 5212.23.10 5212.23.90 5212.24.10 5212.24.90 5212.25.10 5212.25.90 5306.20.20 5307.10.90 5307.20.00 5308.20.00 5308.90.10 5308.90.90 5309.11.90 5309.19.90 5309.21.00 5309.29.90 5310.90.90 5311.00.00 5311.00.90 5401.10.00 5401.20.00 5402.10.90 5402.20.90 5402.31.00 5402.32.90 5402.33.90 5402.39.00 5402.41.14 5402.41.19 5402.41.93 5402.41.99 5402.42.90 5402.43.99 5402.49.90 5402.51.00 5402.52.99
9% 16 % 9% 16 % 9% 16 % 9% 16 % 9% 16 % 9% 8% 10 % 7% 5% 8,5 % 9% 9% 16 % 16 % 14 % 10,5 % 10,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5402.59.90 5402.61.00 5402.62.90 5402.69.90 5403.10.90 5403.20.90 5403.31.90 5403.32.90 5403.33.90 5403.39.00 5403.41.90 5403.49.00 5404.10.90 5404.90.00 5405.00.00 5406.10.00 5406.20.00 5407.10.20 5407.10.90 5407.20.90 5407.30.00 5407.41.90 5407.42.90 5407.43.00 5407.44.00 5407.51.90 5407.52.10 5407.52.90 5407.53.00 5407.54.00 5407.61.11 5407.61.19 5407.61.93 5407.61.99 5407.69.90 5407.71.00 5407.72.00 5407.73.90 5407.74.00 5407.81.00
9,5 % 9,5 % 9,5 % 9,5 % 8,5 % 9,5 % 8,5 % 8,5 % 9,5 % 9,5 % 8,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 11 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 10 % 16 % 16 % 16 % 11 % 16 % 11 % 16 % 16 % 16 % 16 % 16 % 16 % 16 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5407.82.90 5407.83.90 5407.84.00 5407.91.90 5407.92.90 5407.93.90 5407.94.90 5408.10.00 5408.21.90 5408.22.29 5408.22.90 5408.23.10 5408.23.90 5408.24.19 5408.24.99 5408.31.90 5408.32.90 5408.33.90 5408.34.90 5501.10.90 5501.20.90 5501.90.00 5502.00.00 5503.10.90 5503.20.90 5503.40.00 5503.90.90 5504.90.90 5506.10.90 5506.20.90 5506.90.00 5507.00.90 5508.10.00 5508.20.00 5509.11.00 5509.12.00 5509.21.90 5509.22.10 5509.22.90 5509.31.00
16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 5% 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5509.32.90 5509.41.90 5509.42.00 5509.51.00 5509.52.90 5509.53.00 5509.53.90 5509.59.00 5509.61.00 5509.62.00 5509.69.00 5509.91.00 5509.92.00 5509.99.00 5510.11.00 5510.12.00 5510.20.90 5510.30.00 5510.90.00 5511.10.00 5511.20.00 5511.30.00 5512.11.90 5512.19.90 5512.21.00 5512.29.00 5512.91.00 5512.99.90 5513.11.90 5513.12.00 5513.13.00 5513.19.00 5513.21.00 5513.22.00 5513.23.00 5513.29.00 5513.31.90 5513.32.90 5513.33.90 5513.39.00
9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5513.41.90 5513.42.00 5513.43.00 5513.49.00 5514.11.00 5514.12.00 5514.13.00 5514.19.00 5514.21.00 5514.22.00 5514.23.00 5514.29.00 5514.31.00 5514.32.00 5514.33.00 5514.39.00 5514.41.00 5514.42.00 5514.43.00 5514.49.00 5515.11.90 5515.12.00 5515.13.20 5515.13.90 5515.19.00 5515.21.00 5515.22.00 5515.29.00 5515.91.00 5515.92.00 5515.99.00 5516.11.00 5516.12.00 5516.13.00 5516.14.90 5516.21.90 5516.22.00 5516.23.90 5516.24.90 5516.31.00
16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 5,5 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 %
����
Accord de libre-échange Can
Numéro tarifaire
Taux ini
5516.32.00 5516.33.00 5516.34.00 5516.41.00 5516.42.00 5516.43.00 5516.44.00 5516.91.90 5516.92.00 5516.93.90 5516.94.00 5601.10.90 5601.21.20 5601.21.30 5601.22.20 5601.22.30 5601.29.00 5601.30.10 5602.10.90 5602.21.90 5602.29.00 5602.90.00 5603.11.30 5603.11.40 5603.11,50 5603.11.90 5603.12.30 5603.12.40 5603.12.50 5603.12.90 5603.13.30 5603.13.40 5603.13.50 5603.13.90 5603.14.30 5603.14.40 5603.14.50 5603.14.90 5603.91.30 5603.91.90
16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 14 % 6,5 % 17 % 7% 19 % 7% 6% 16 % 14 % 16 % 16 % 12,5 % 13,5 % 16 % 16 % 12,5 % 13,5 % 16 % 16 % 12,5 % 13,5 % 16 % 16 % 12,5 % 13,5 % 16 % 16 % 9% 16 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
5603.92.30 5603.92.90 5603.93.30 5603.93.90 5603.94.30 5603.94.90 5604.10.00 5604.20.90 5604.90.00 5605.00.90 5606.00.90 5607.10.90 5607.29.20 5607.29.90 5607.49.20 5607.49.90 5607.50.20 5607.50.90 5607.90.20 5607.90.90 5608.11.90 5608.19.90 5608.90.90 5609.00.00 5701.10.10 5701.10.90 5701.90.10 5701.90.90 5702.10.00 5702.31.00 5702.32.00 5702.39.00 5702.41.00 5702.42.00 5702.49.00 5702.51.00 5702.52.00 5702.59.10 5702.59.90 5702.91.00
9% 16 % 9% 16 % 9% 16 % 9,5 % 8,5 % 9,5 % 9,5 % 9,5 % 11 % 11 % 14 % 11 % 14 % 11 % 14 % 11 % 14 % 18 % 18 % 15,5 % 17,5 % 15,5 % 7,5 % 15,5 % 7,5 % 15,5 % 15,5 % 15,5 % 15,5 % 15,5 % 17 % 17 % 15,5 % 15,5 % 7,5 % 15,5 % 15,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
5702.92.00 5702.99.10 5702.99.90 5703.10.10 5703.10.90 5703.20.10 5703.20.90 5703.30.10 5703.30.90 5703.90.10 5703.90.90 5704.10.00 5704.90.00 5705.00.00 5801.10.90 5801.22.20 5801.22.90 5801.23.00 5801.24.00 5801.25.10 5801.25.20 5801.26.00 5801.31.00 5801.32.90 5801.33.00 5801.34.00 5801.35.90 5801.36.00 5801.90.90 5802.11.90 5802.19.90 5802.20.00 5802.30.00 5803.10.90 5803.90.11 5803.90.19 5803.90.99 5804.10.10 5804.10.90 5804.21.00
17 % 7,5 % 15,5 % 15,5 % 10 % 15,5 % 10 % 15,5 % 10 % 15,5 % 10 % 15,5 % 15,5 % 14,5 % 16 % 13 % 16 % 13 % 14 % 13 % 16 % 15 % 16 % 16 % 16 % 16 % 16 % 16 % 14 % 15 % 14 % 16 % 16 % 15 % 12,5 % 16 % ma 16 % 8% 15 % 14 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
5804.29.00 5804.30.10 5804.30.90 5805.00.90 5806.10.10 5806.10.90 5806.20.90 5806.31.10 5806.31.20 5806.31.90 5806.32.90 5806.39.90 5806.40.00 5807.10.10 5807.10.20 5807.90.00 5808.10.00 5808.90.00 5809.00.00 5810.10.00 5810.91.10 5810.91.90 5810.92.00 5810.99.00 5811.00.10 5811.00.20 5811.00.90 5901.10.90 5901.90.10 5901.90.90 5902.10.00 5902.20.00 5902.90.00 5903.10.19 5903.10.29 5903.20.19 5903.20.23 5903.20.29 5903.90.10 5903.90.29
8% 8% 15 % 17 % 13 % 16 % 16 % 13 % 14 % 15 % 16 % 16 % 16 % 17,5 % 13 % 13 % 15 % 18 % 16 % 9,5 % 8% 15 % 15 % 15 % 18 % 18 % 18 % 16 % 8% 16 % 9,5 % 9,5 % 9,5 % 16 % 16 % 16 % 10 % 16 % 16 % 16 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
5904.10.00 5904.90.10 5904.90.90 5905.00.10 5905.00.90 5906.10.90 5906.91.90 5906.99.10 5906.99.22 5906.99.29 5907.00.13 5907.00.18 5907.00.19 5907.00.29 5908.00.90 5909.00.00 5910.00.19 5910.00.90 5911.10.10 5911.10.90 5911.20.90 5911.31.10 5911.32.10 5911.40.90 5911.90.20 5911.90.90 6001.10.90 6001.21.00 6001.22.00 6001.29.00 6001.91.00 6001.92.90 6001.99.00 6002.40.10 6002.40.90 6002.90.10 6002.90.90 6003.10.90 6003.20.10 6003.20.90
8% 13,5 % 20,5 % 6% 17 % 16 % 16 % 16 % 11 % 16 % 8,5 % 16 % 16 % 16 % 16 % 15 % 9% 13,5 % 9,5 % 16 % 16 % 7% 7% 16 % 9% 14,5 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 10 % 16 % 10 % 16 % 16 % 10 % 16 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6003.30.90 6003.40.90 6003.90.10 6003.90.90 6004.10.10 6004.10.90 6004.90.10 6004.90.90 6005.10.00 6005.21.10 6005.21.90 6005.22.10 6005.22.90 6005.23.10 6005.23.90 6005.24.10 6005.24.90 6005.31.90 6005.32.90 6005.33.90 6005.34.90 6005.41.90 6005.42.90 6005.43.90 6005.44.90 6005.90.90 6006.10.00 6006.21.10 6006.21.90 6006.22.10 6006.22.90 6006.23.20 6006.23.90 6006.24.10 6006.24.90 6006.31.90 6006.32.90 6006.33.90 6006.34.90 6006.41.90
16 % 16 % 10 % 16 % 10 % 16 % 10 % 16 % 16 % 10 % 16 % 10 % 16 % 10 % 16 % 10 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 10 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 % 16 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6006.42.90 6006.43.90 6006.44.90 6006.90.00 6101.10.00 6101.20.00 6101.30.00 6101.90.00 6102.10.00 6102.20.00 6102.30.00 6102.90.00 6103.11.00 6103.12.00 6103.19.10 6103.19.90 6103.21.00 6103.22.00 6103.23.00 6103.29.00 6103.31.00 6103.32.00 6103.33.00 6103.39.10 6103.39.90 6103.41.00 6103.42.00 6103.43.00 6103.49.00 6104.11.00 6104.12.00 6104.13.00 6104.19.10 6104.19.90 6104.21.00 6104.22.00 6104.23.00 6104.29.00 6104.31.00 6104.32.00
16 % 16 % 16 % 16 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6104.33.00 6104.39.10 6104.39.90 6104.41.00 6104.42.00 6104.43.00 6104.44.00 6104.49.00 6104.51.00 6104.52.00 6104.53.00 6104.59.10 6104.59.90 6104.61.00 6104.62.00 6104.63.00 6104.69.00 6105.10.00 6105.20.00 6105.90.00 6106.10.00 6106.20.00 6106.90.00 6107.11.90 6107.12.90 6107.19.00 6107.21.00 6107.22.00 6107.29.00 6107.91.00 6107.92.00 6107.99.00 6108.11.00 6108.19.00 6108.21.00 6108.22.90 6108.29.00 6108.31.00 6108.32.00 6108.39.00
20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6108.91.00 6108.92.00 6108.99.00 6109.10.00 6109.90.00 6110.11.10 6110.11.90 6110.12.10 6110.12.90 6110.19.10 6110.19.90 6110.20.00 6110.30.00 6110.90.00 6111.10.00 6111.20.00 6111.30.00 6111.90.00 6112.11.00 6112.12.00 6112.19.00 6112.20.00 6112.31.00 6112.39.00 6112.41.00 6112.49.00 6113.00.20 6113.00.90 6114.10.00 6114.20.00 6114.30.00 6114.90.00 6115.11.00 6115.12.00 6115.19.00 6115.20.00 6115.91.00 6115.92.00 6115.93.00 6115.99.00
20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 10 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 16 % et 1 17 % 16 % et 1 16 % et 1 16 % et 1
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6116.10.00 6116.91.00 6116.92.00 6116.93.00 6116.99.00 6117.10.90 6117.20.00 6117.80.10 6117.80.90 6117.90.20 6117.90.90 6201.11.00 6201.12.00 6201.13.00 6201.19.00 6201.91.00 6201.92.10 6201.92.90 6201.93.00 6201.99.00 6202.11.00 6202.12.00 6202.13.00 6202.19.00 6202.91.00 6202.92.00 6202.93.00 6202.99.00 6203.11.00 6203.12.00 6203.19.10 6203.19.90 6203.21.00 6203.22.00 6203.23.00 6203.29.00 6203.31.00 6203.32.00 6203.33.00 6203.39.10
20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 20,5 % 13 % 20,5 % 10 % 20,5 % 20,5 % 19 % 20,5 % 19 % 20,5 % 22,5 % 19 % 19 % 19 % 20,5 % 19 % 20,5 % 17 % 20,5 % 19 % 20,5 % 19 % 20,5 % 20,5 % 19 % 19 % 20,5 % 19 % 20,5 % 19 % 20,5 % 19 % 20,5 % 19 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6203.39.90 6203.41.00 6203.42.00 6203.43.00 6203.49.00 6204.11.00 6204.12.00 6204.13.00 6204.19.10 6204.19.90 6204.21.00 6204.22.00 6204.23.00 6204.29.00 6204.31.00 6204.32.00 6204.33.00 6204.39.10 6204.39.90 6204.41.00 6204.42.00 6204.43.00 6204.44.00 6204.49.00 6204.51.00 6204.52.00 6204.53.00 6204.59.10 6204.59.90 6204.61.00 6204.62.00 6204.63.00 6204.69.00 6205.10.00 6205.20.00 6205.30.00 6205.90.00 6206.10.00 6206.20.00 6206.30.00
19 % 20,5 % 19 % 20,5 % 20,5 % 20,5 % 19 % 20,5 % 20,5 % 20,5 % 20,5 % 19 % 20,5 % 19 % 20,5 % 19 % 20,5 % 19 % 19 % 20,5 % 19 % 20,5 % 20,5 % 17 % 20,5 % 19 % 20,5 % 19 % 19 % 20,5 % 19 % 20,5 % 19 % 20,5 % 19 % 20,5 % 20,5 % 17 % 20,5 % 19 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6206.40.00 6206.90.00 6207.11.00 6207.19.00 6207.21.00 6207.22.00 6207.29.00 6207.91.00 6207.92.00 6207.99.00 6208.11.00 6208.19.00 6208.21.00 6208.22.00 6208.29.00 6208.91.00 6208.92.00 6208.99.00 6209.10.00 6209.20.00 6209.30.00 6209.90.00 6210.10.90 6210.20.00 6210.30.00 6210.40.90 6210,50.90 6211.11.00 6211.12.90 6211.20.00 6211.31.00 6211.32.00 6211.33.10 6211.33.90 6211.39.00 6211.41.00 6211.42.00 6211.43.10 6211.43.20 6211.43.90
20,5 % 19 % 19 % 20,5 % 19 % 20,5 % 17 % 19 % 20,5 % 19 % 20,5 % 18,5 % 19 % 20,5 % 17 % 19 % 20,5 % 17 % 20,5 % 19 % 20,5 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20,5 % 20,5 % 20,5 % 19 % 8,5 % 20,5 % 19 % 20,5 % 19 % 7% 8,5 % 20,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6211.49.10 6211.49.20 6211.49.90 6212.10.00 6212.20.00 6212.30.00 6212.90.00 6213.10.00 6213.20.00 6213.90.00 6214.10.90 6214.20.90 6214.30.90 6214.40.00 6214.90.00 6215.10.00 6215.20.00 6215.90.00 6216.00.00 6217.10.10 6217.10.90 6217.90.90 6301.10.00 6301.20.00 6301.30.00 6301.40.00 6301.90.00 6302.10.00 6302.21.00 6302.22.00 6302.29.00 6302.31.00 6302.32.00 6302.39.00 6302.40.00 6302.51.00 6302.52.00 6302.53.10 6302.53.90 6302.59.00
7% 8,5 % 19 % 20,5 % 20,5 % 20,5 % 20,5 % 10 % 10 % 16 % 10 % 20,5 % 20,5 % 20,5 % 20 % 17 % 20,5 % 20,5 % 20,5 % 8,5 % 16 % 20 % 19 % 19 % 19 % 19 % 19 % 20,5 % 19 % 20,5 % 19 % 19 % 20,5 % 19 % 20,5 % 19 % 9,5 % 8,5 % 20,5 % 18,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6302.60.00 6302.91.00 6302.92.00 6302.93.00 6302.99.00 6303.11.00 6303.12.00 6303.19.00 6303.91.00 6303.92.10 6303.92.90 6303.99.00 6304.11.00 6304.19.00 6304.91.10 6304.91.90 6304.92.10 6304.92.90 6304.93.10 6304.93.90 6304.99.10 6304.99.90 6305.10.00 6305.20.00 6305.32.00 6305.33.00 6305.39.00 6305.90.00 6306.11.00 6306.12.00 6306.19.00 6306.21.00 6306.22.00 6306.29.00 6306.31.00 6306.39.00 6306.41.00 6306.49.00 6306.91.00 6306.99.00
19 % 19 % 17 % 20,5 % 19 % 20,5 % 20,5 % 20,5 % 19 % 20,5 % 20,5 % 20,5 % 20,5 % 20 % 15,5 % 20,5 % 15,5 % 19 % 15,5 % 20,5 % 15,5 % 19 % 6% 19 % 20,5 % 20,5 % 20,5 % 6% 19 % 20,5 % 19 % 19 % 20,5 % 19 % 17 % 17 % 13 % 13 % 19 % 20,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6307.10.10 6307.10.90 6307.20.00 6307.90.20 6307.90.30 6307.90.40 6307.90.91 6307.90.92 6307.90.93 6307.90.99 6308.00.00 6309.00.90 6401.10.11 6401.10.19 6401.10.20 6401.91.11 6401.91.19 6401.91.20 6401.92.11 6401.92.12 6401.92.30 6401.92.91 6401.92.92 6401.99.10 6401.99.21 6401.99.29 6401.99.30 6402.12.20 6402.12.30 6402.19.10 6402.19.90 6402.20.11 6402.20.19 6402.20.20 6402.30.00 6402.91.00 6402.99.00 6403.12.20 6403.12.30 6403.19.20
19 % 19 % 19 % 8,5 % 13 % 19 % 9,5 % 17 % 19 % 20,5 % 20,5 % 20,5 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 20 % 10 % 20 % 20 % 18 % 19,5 % 19,5 % 19,5 % 17 % 17 % 20 % 17,5 % 19,5 % 19,5 % 18 % 20 % 20 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6403.19.90 6403.20.00 6403.30.00 6403.40.00 6403.51.00 6403.59.20 6403.59.90 6403.91.00 6403.99.20 6403.99.30 6403.99.90 6404.11.11 6404.11.19 6404.11.91 6404.11.99 6404.19.20 6404.19.30 6404.19.90 6404.20.90 6405.10.90 6405.20.20 6405.20.90 6405.90.00 6406.10.11 6406.10.19 6406.10.90 6406.20.00 6406.99.20 6406.99.90 6503.00.90 6504.00.90 6505.10.00 6505.90.20 6505.90.90 6506.10.90 6506.91.00 6506.92.00 6506.99.10 6506.99.90 6904.10.00
20 % 18 % 20 % 20 % 18 % 11 % 20 % 20 % 20 % 11 % 20 % 17 % 17 % 19,5 % 19,5 % 8,5 % 17 % 20 % 18 % 20 % 20 % 20 % 20 % 15,5 % 15,5 % 8% 2,5 % 10 % 5% 12,5 % 12,5 % 15,5 % 12,5 % 15,5 % 8,5 % 9% 8% 5% 12,5 % 3%
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
6904.90.10 6904.90.20 6905.10.00 6905.90.00 6907.10.00 6907.90.00 6908.10.00 6908.90.10 6908.90.90 6909.11.00 6909.12.90 6909.19.90 6909.90.00 6910.10.10 6910.10.90 6910.90.00 6911.10.20 6911.10.90 6911.90.00 6912.00.20 6912.00.90 6913.10.00 6913.90.90 6914.10.90 6914.90.00 9401.20.00 9401.30.10 9401.40.00 9401.50.10 9401.50.90 9401.61.10 9401.69.10 9401.71.10 9401.79.10 9401.80.10 9401.90.19 9401.90.20 9403.20.00 9403.40.00 9403.50.00
3% 8% 6,5 % 7% 8% 8% 8% 8% 8% 4,5 % 4,5 % 4,5 % 7% 7,5 % 7,5 % 7,5 % 4,5 % 7% 5,5 % 4,5 % 7% 6,5 % 6,5 % 7% 7% 6% 8% 9,5 % 9,5 % 9,5 % 9,5 % 9,5 % 8% 8% 9,5 % 8% 15,5 % 8% 9,5 % 9,5 %
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Accord de libre-échange Can
Numéro tarifaire
Taux ini
9403.60.10 9403.70.10 9403.80.11 9403.80.19 9404.10.00 9404.21.00 9404.29.00 9404.30.00 9404.90.10 9404.90.90 9405.10.00 9405.20.00 9405.30.00 9405.40.20 9405.40.90 9405,50.10 9405.50.90 9405.60.00 9405.91.10 9405.91.99 9405.92.00 9405.99.90
9,5 % 9,5 % 9,5 % 9,5 % 8% 9,5 % 9,5 % 15,5 % 14 % 14 % 7% 7% 7% 6% 7% 5% 7% 7% 7% 4,5 % 3,5 % 6%
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C. 28
Canada–Costa Rica Free Trade Agre
SCHED (Paragraph
Tariff Item 3919.10.10
3919.90.10
3921.90.12
3921.90.19
3926.20.91
3926.20.92
Most–Favoured–Nation Tariff
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Tariff Item 3926.20.95
3926.90.50
C. 28
Canada–Costa Rica Free Trade Agre
Most–Favoured–Nation Tariff
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Accord de libre-échange Can
ANNE (alinéa 4
Numéro tarifaire 3919.10.10
3919.90.10
3921.90.12
3921.90.19
3926.20.91
3926.20.92
Tarif de la nation la plus favorisée
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Numéro tarifaire
Accord de libre-échange Can
Tarif de la nation la plus favorisée
3926.20.95
3926.90.50
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 29
An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts
BILL C-34 ASSENTED TO 18th DECEMBER, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts’’.
SUMMARY This enactment establishes the Transportation Appeal Tribunal of Canada, which replaces the Civil Aviation Tribunal established under Part IV of the Aeronautics Act, and extends the new Tribunal’s jurisdiction to the marine and railway sectors. The enactment provides for the appointment of members to the Tribunal, and sets out the general powers and authorities of the Tribunal to conduct its affairs. It also provides for an independent process of review by the Tribunal of administrative enforcement actions — including the suspension and cancellation of licences, certificates and other documents of entitlement, and the imposition of monetary penalties — taken under various federal transportation Acts. The Tribunal will also hear appeals from determinations made on review.
The enactment amends the Aeronautics Act, the Canada Shipping Act, the Canada Transportation Act, the Marine Transportation Security Act and the Railway Safety Act to establish the jurisdiction and decision-making authorities of the Tribunal under those Acts.
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TABLE OF PROVISIONS
AN ACT TO ESTABLISH THE TRANSPORTATION APPEAL TRIBUNAL OF CANADA AND TO MAKE CONSEQUENTIAL AMENDMENTS TO OTHER ACTS SHORT TITLE
1. Short title TRANSPORTATION APPEAL TRIBUNAL OF CANADA
2. Establishment
3. Members
4. Chairperson and Vice-Chairperson
5. Duties of Chairperson
6. Term of office
7. Remuneration
8. Inconsistent interests — full-time members
9. Principal office
10. Employees
11. Sittings
12. Hearings on review
13. Hearings on appeal
14. Nature of appeal
15. Nature of hearings
16. Powers of Tribunal
17. Reasons
18. Rules of Tribunal
19. Costs
20. Proceedings to be recorded
21. Decision on appeal final
22. Annual report TRANSITIONAL PROVISIONS
23. Definitions
24. Powers, duties and functions
25. Appropriations
26. Members of Tribunal
27. Employment continued
28. References
29. Rights and obligations
30. Commencement of legal proceedings
31. Continuation of legal proceedings
�� 32.
Continuation of proceedings CONSEQUENTIAL AMENDMENTS
33-45. Aeronautics Act 46-51. Canada Shipping Act 52.
Canada Transportation Act
53-54. Financial Administration Act 55-59. Marine Transportation Security Act 60-61. Public Sector Compensation Act 62-63. Public Service Staff Relations Act 64-70. Railway Safety Act COORDINATING AMENDMENTS
71. Amendment to This Act
72. Bill C-14 COMING INTO FORCE
73. Coming into force
49-50 ELIZABETH II
CHAPTER 29 An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts [Assented to 18th December, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Transportation Appeal Tribunal of Canada Act. TRANSPORTATION APPEAL TRIBUNAL OF CANADA
Establishment
Jurisdiction generally
Jurisdiction in respect of Canada Transportation Act
Members
2. (1) There is hereby established a tribunal to be known as the Transportation Appeal Tribunal of Canada (‘‘the Tribunal’’). (2) The Tribunal has jurisdiction in respect of reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.
(3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act. 3. (1) The Governor in Council shall appoint as members of the Tribunal persons who, in the opinion of the Governor in Council, collectively have expertise in the transportation sectors in respect of which the federal government has jurisdiction.
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Full- or part-time members
(2) Members may be appointed as full-time or part-time members.
Chairperson and ViceChairperson
4. The Governor in Council shall designate one member as Chairperson of the Tribunal and one member as Vice-Chairperson. The Chairperson and Vice-Chairperson must be full-time members.
Duties of Chairperson
5. (1) The Chairperson is the chief executive officer of the Tribunal and has supervision over, and direction of, the work of the members and staff of the Tribunal, including (a) the apportionment of work among members and the assignment of members to hear matters brought before the Tribunal and, when the Tribunal sits in panels, the assignment of members to panels and to preside over panels; and (b) generally, the conduct of the work of the Tribunal and the management of its internal affairs.
Absence of Chairperson
(2) In the event of the absence or incapacity of the Chairperson or if the office of Chairperson is vacant, the Vice-Chairperson shall act as Chairperson during the continuance of that absence or incapacity or until a new Chairperson is designated.
Term of office
6. (1) A member shall be appointed to hold office during good behaviour for a term not exceeding seven years and may be removed for cause by the Governor in Council.
Reappointment
(2) A member is eligible to be reappointed.
Disposition after member ceases to hold office
(3) At the request of the Chairperson, a former member, within eight weeks after ceasing to be a member, may make or take part in a determination or decision on a matter that they heard as a member. For that purpose, the former member is deemed to be a member.
Remuneration
7. (1) Members shall receive the remuneration that is fixed by the Governor in Council.
Expenses
(2) Each member is entitled to be paid reasonable travel and living expenses incurred while absent in the course of their duties from, in the case of a full-time member, their ordinary place of work and, in the case of a part-time member, their ordinary place of residence.
Tribunal d’appel des tr
Status
(3) Members are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.
Inconsistent interests — full-time members
8. (1) Full-time members shall not accept or hold any office, membership, employment or interest, or engage in any business activity, that is inconsistent with the proper performance of their duties and functions.
Divesting of interests
(2) If an interest that is prohibited under subsection (1) vests, by whatever means, in a full-time member, the member shall disclose the interest to the Chairperson without delay and, within three months after the interest vests, either divest himself or herself of the interest or resign as a member.
Duties of full-time members
(3) Full-time members shall devote the whole of their time to the performance of their duties and functions under this Act.
Inconsistent interests — part-time members
(4) If a part-time member who is assigned to hear or is hearing any matter before the Tribunal, either alone or as a member of a panel, holds any pecuniary or other interest that could be inconsistent with the proper performance of their duties and functions in relation to the matter, the member shall disclose the interest to the Chairperson without delay and is ineligible to hear, or to continue to hear, the matter.
Principal office
9. The principal office of the Tribunal shall be in the National Capital Region described in the schedule to the National Capital Act.
Employees
10. (1) The employees that are necessary for the proper conduct of the work of the Tribunal shall be appointed in accordance with the Public Service Employment Act.
Status
(2) Employees appointed under subsection (1) are deemed to be employed in the Public Service for the purposes of the Public Service Superannuation Act.
Experts
(3) The Tribunal may engage experts or persons having technical or specialized knowledge to assist the Tribunal in any matter in an advisory capacity and may, subject to the approval of the Treasury Board, fix their remuneration.
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Sittings
11. The Tribunal shall sit at those times and places in Canada that the Chairperson considers necessary for the proper performance of its functions.
Hearings on review
12. A review shall be heard by a member, sitting alone, who has expertise in the transportation sector to which the review relates. However, a review that concerns a matter of a medical nature shall be heard by a member with medical expertise, whether or not that member has expertise in the transportation sector to which the review relates.
Hearings on appeal
13. (1) Subject to subsection (2), an appeal to the Tribunal shall be heard by an appeal panel consisting of three members.
Size of panel
(2) The Chairperson may, if he or she considers it appropriate, direct that an appeal be heard by an appeal panel consisting of more than three members or, with the consent of the parties to the appeal, of one member.
Composition of panel
(3) A member who conducts a review may not sit on an appeal panel that is established to hear an appeal from his or her determination.
Qualifications of members
(4) With the exception of the Chairperson and Vice-Chairperson, who may sit on any appeal panel, an appeal shall be heard by an appeal panel consisting of members who have expertise in the transportation sector to which the appeal relates.
Medical matters
(5) Despite subsection (4), in an appeal that concerns a matter of a medical nature, at least one member of the appeal panel shall have medical expertise, whether or not that member has expertise in the transportation sector to which the appeal relates.
Decision of panel
(6) A decision of a majority of the members of an appeal panel is a decision of the panel.
Nature of appeal
14. An appeal shall be on the merits based on the record of the proceedings before the member from whose determination the appeal is taken, but the appeal panel shall allow oral argument and, if it considers it necessary for the purposes of the appeal, shall hear evidence not previously available.
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Nature of hearings
15. (1) Subject to subsection (2), the Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it, and all such matters shall be dealt with by it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.
Restriction
(2) The Tribunal shall not receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence.
Appearance
(3) A party to a proceeding before the Tribunal may appear in person or be represented by another person, including legal counsel.
Private hearings
(4) Hearings shall be held in public. However, the Tribunal may hold all or any part of a hearing in private if it is of the opinion that (a) a public hearing would not be in the public interest; (b) medical information about a person may be disclosed and the desirability of ensuring that, in the interests of that person, the information is not publicly disclosed outweighs the desirability of adhering to the principle that hearings be open to the public; or (c) confidential business information may be disclosed and the desirability of ensuring that the information is not publicly disclosed outweighs the desirability of adhering to the principle that hearings be open to the public.
Standard of proof
(5) In any proceeding before the Tribunal, a party that has the burden of proof discharges it by proof on the balance of probabilities.
Powers of Tribunal
16. The Tribunal, and each of its members, has all the powers of a commissioner under Part I of the Inquiries Act.
Reasons
17. A member who conducts a review shall provide a determination, and an appeal panel shall provide a decision, with reasons, in writing to all parties to a proceeding.
Rules of Tribunal
18. The Tribunal may, with the approval of the Governor in Council, make rules that are not inconsistent with this Act or any Act referred to in section 2 to govern the manage�
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ment of its affairs and the practice and procedure in connection with matters brought before it. Costs
19. (1) The Tribunal may award any costs, and may require the reimbursement of any expenses incurred in connection with a hearing, that it considers reasonable if (a) it is seized of the matter for reasons that are frivolous or vexatious; (b) a party that files a request for a review or an appeal and does not appear at the hearing does not establish that there was sufficient reason to justify their absence; or (c) a party that is granted an adjournment of the hearing requested the adjournment without adequate notice to the Tribunal.
Recovery
(2) Costs awarded to the Minister of Transport, and expenses of that Minister or the Tribunal that are subject to reimbursement, under subsection (1) are a debt due to Her Majesty in right of Canada.
Certificate
(3) Costs or expenses under subsection (1) that have not been paid may be certified by the Tribunal.
Registration of certificate
(4) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect as if it were a judgment obtained in the Federal Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration, recoverable in that Court or in any other court of competent jurisdiction.
Proceedings to be recorded
20. Proceedings before the Tribunal shall be recorded, and the record shall show all evidence taken and all determinations, decisions and findings made in respect of the proceedings.
Decision on appeal final
21. A decision of an appeal panel of the Tribunal is final and binding on the parties to the appeal.
Annual report
22. The Tribunal shall, not later than June 30 in each fiscal year, submit to Parliament, through the member of the Queen’s Privy Council for Canada who is designated by the Governor in Council as the Minister for the
Tribunal d’appel des tr purposes of this section, a report of its activities during the preceding fiscal year, and that Minister shall cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the Minister receives it. TRANSITIONAL PROVISIONS
Definitions
23. The definitions in this section apply in sections 24 to 32.
‘‘former Tribunal’’ « ancien Tribunal »
‘‘former Tribunal’’ means the Civil Aviation Tribunal established by subsection 29(1) of the Aeronautics Act as that Act read immediately before the coming into force of section 44.
‘‘new Tribunal’’ « nouveau Tribunal »
‘‘new Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1).
Powers, duties and functions
24. Wherever, in any Act of Parliament, in any instrument made under an Act of Parliament or in any contract, lease, licence or other document, a power, duty or function is vested in or is exercisable by the former Tribunal, the power, duty or function is vested in or is exercisable by the new Tribunal.
Appropriations
25. Any amount that is appropriated, for the fiscal year in which this section comes into force, by an appropriation Act based on the Estimates for that year for defraying the charges and expenses of the former Tribunal and that, on the day on which section 44 comes into force, is unexpended is deemed, on that day, to be an amount appropriated for defraying the charges and expenses of the new Tribunal.
Members of Tribunal
26. The Chairman, Vice-Chairman and other members of the former Tribunal immediately before the coming into force of section 44 shall, on the coming into force of that section, occupy the positions of Chairperson, Vice-Chairperson and members, respectively, with the new Tribunal until the expiry of the period of their appointment to the former Tribunal.
Employment continued
27. (1) Nothing in this Act shall be construed as affecting the status of an employee who, immediately before the coming into force of section 44, occupied a
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position with the former Tribunal, except that each of those persons shall, on the coming into force of that section, occupy their position with the new Tribunal. Definition of ‘‘employee’’
(2) For the purposes of this section, ‘‘employee’’ has the same meaning as in subsection 2(1) of the Public Service Employment Act.
References
28. Every reference to the former Tribunal in any deed, contract, agreement or other document executed by the former Tribunal in its own name shall, unless the context otherwise requires, be read as a reference to the new Tribunal.
Rights and obligations
29. All rights and property of the former Tribunal and of Her Majesty in right of Canada that are under the administration and control of the former Tribunal and all obligations of the former Tribunal are transferred to the new Tribunal.
Commencement of legal proceedings
30. Any action, suit or other legal proceeding in respect of an obligation or liability incurred by the former Tribunal may be brought against the new Tribunal in any court that would have had jurisdiction if the action, suit or other legal proceeding had been brought against the former Tribunal.
Continuation of legal proceedings
31. Any action, suit or other legal proceeding to which the former Tribunal is a party that is pending in any court immediately before the day on which section 44 comes into force may be continued by or against the new Tribunal in the same manner and to the same extent as it could have been continued by or against the former Tribunal.
Continuation of proceedings
32. (1) Proceedings relating to any matter before the former Tribunal on the coming into force of section 44, including any matter that is in the course of being heard by the former Tribunal, shall be continued by the new Tribunal.
Application of provisions
(2) Unless the Governor in Council, by order, directs that proceedings continued under this section are to be dealt with in accordance with the provisions of this Act, the proceedings shall be dealt with and
Tribunal d’appel des tr determined in accordance with the provisions of the Aeronautics Act as that Act read immediately before the coming into force of section 44.
Directions re proceedings
(3) The Governor in Council may, by order, direct that proceedings in respect of any class of matter referred to in subsection (1) in respect of which no decision or order is made on the coming into force of section 44 shall be discontinued or continued by the new Tribunal, as the case may be, on the terms and conditions specified in the order for the protection and preservation of the rights and interests of the parties.
CONSEQUENTIAL AMENDMENTS R.S., c. A-2
Aeronautics Act
R.S., c. 33 (1st Supp.), s. 1
33. The definition ‘‘Tribunal’’ in subsection 3(1) of the Aeronautics Act is replaced by the following:
‘‘Tribunal’’ « Tribunal »
‘‘Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 14
34. Sections 6.6 to 6.8 of the Act are replaced by the following:
Definition of ‘‘Canadian aviation document’’
6.6 In sections 6.7 to 7.21, ‘‘Canadian aviation document’’ includes any privilege accorded by a Canadian aviation document.
Non-application of certain provisions
6.7 Sections 6.71 to 7.21 do not apply to a member of the Canadian Armed Forces acting in that capacity or to any other person in relation to a Canadian aviation document issued in respect of a military aircraft, military aerodrome or military facility.
Minister may refuse to issue or amend Canadian aviation document
6.71 (1) The Minister may refuse to issue or amend a Canadian aviation document on the grounds that (a) the applicant is incompetent; (b) the applicant or any aircraft, aerodrome, airport or other facility in respect of which the application is made does not meet the qualifications or fulfil the conditions neces��
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sary for the issuance or amendment of the document; or (c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the applicant or of any principal of the applicant, as defined in regulations made under paragraph (3)(a), warrant the refusal. Notice
(2) The Minister shall, by personal service or by registered or certified mail sent to their latest known address, notify the applicant or the owner or operator of the aircraft, aerodrome, airport or other facility, as the case may be, of a decision made under subsection (1). The notice shall be in a form prescribed by regulation of the Governor in Council and, in addition to any other information that may be prescribed, shall indicate, as the case requires, (a) the nature of the incompetence of the applicant; (b) the qualifications or conditions referred to in paragraph (1)(b) that are not met or fulfilled, as the case may be; (c) the reasons for the Minister’s opinion referred to in paragraph (1)(c); and (d) except in the case of a document or class of documents prescribed under paragraph (3)(b), the address at which, and the date, being thirty days after the notice is served or sent, on or before which the applicant, owner or operator may file a request for a review of the Minister’s decision.
Regulations
(3) The Governor in Council may make regulations (a) defining the word ‘‘principal’’; and (b) prescribing Canadian aviation documents, or classes of such documents, in respect of which a review of the Minister’s decision to refuse to issue or amend a document may not be requested.
Request for review
6.72 (1) Subject to any regulations made under paragraph 6.71(3)(b), an applicant, owner or operator who is served with or sent a notice under subsection 6.71(2) and who wishes to have the Minister’s decision reviewed shall, on or before the date specified in the notice or within any further time that the
Tribunal d’appel des tr Tribunal on application may allow, file a written request for a review of the decision with the Tribunal at the address set out in the notice.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Determination
(4) The member of the Tribunal who conducts the review may determine the matter by confirming the Minister’s decision or by referring the matter back to the Minister for reconsideration.
Suspensions, etc., generally
6.8 In addition to any ground referred to in any of sections 6.71, 6.9 to 7.1 and 7.21, the Minister may suspend, cancel or refuse to issue, amend or renew a Canadian aviation document in the circumstances and on the grounds prescribed by regulation of the Governor in Council.
R.S., c. 33 (1st Supp.), s. 1
35. Subsection 6.9(8) of the Act is replaced by the following:
Holder, etc., not compelled to testify
(7.1) In a review under this section, a holder, owner or operator referred to in subsection (1) is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determination of Tribunal member
(8) On a review under this section of a decision of the Minister to suspend or cancel a Canadian aviation document, the member of the Tribunal who conducts the review may determine the matter by confirming the Minister’s decision or substituting his or her own determination. 36. (1) Section 7 of the Act is amended by adding the following after subsection (2):
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Effective date of Minister’s decision
(2.1) The Minister’s decision takes effect on the date of receipt of the notice under subsection (1) by the person on whom it is served or to whom it is sent, unless the notice indicates that the decision is to take effect on a later date.
R.S., c. 33 (1st Supp.), s. 1
(2) Subsections 7(7) and (8) of the Act are replaced by the following:
Determination of Tribunal member
(7) On a review under this section of a decision of the Minister to suspend a Canadian aviation document, the member of the Tribunal who conducts the review may determine the matter by confirming the Minister’s decision or substituting his or her own determination.
Request for reconsideration of immediate threat
(8) Where (a) no appeal from a determination under subsection (7) confirming the Minister’s decision is taken under section 7.2 within the time limited for doing so under that section, or (b) an appeal panel has, on an appeal under section 7.2, confirmed the Minister’s decision under this section, the holder of the document or the owner or operator of any aircraft, airport or other facility in respect of which the document was issued may, in writing, request the Minister to reconsider whether the immediate threat to aviation safety referred to in subsection (1) that occasioned the suspension continues to exist or is likely to occur as described in that subsection.
1992, c. 4, s. 15(1)
37. (1) Subsection 7.1(1) of the Act is replaced by the following:
Suspension, etc., on other grounds
7.1 (1) If the Minister decides to suspend, cancel or refuse to renew a Canadian aviation document on the grounds that (a) the holder of the document is incompetent, (b) the holder or any aircraft, airport or other facility in respect of which the document was issued ceases to meet the qualifications necessary for the issuance of the document or to fulfil the conditions
Tribunal d’appel des tr subject to which the document was issued, or (c) the Minister is of the opinion that the public interest and, in particular, the aviation record of the holder of the document or of any principal of the holder, as defined in regulations made under paragraph 6.71(3)(a), warrant it, the Minister shall, by personal service or by registered or certified mail sent to the holder or the owner or operator of the aircraft, airport or facility, as the case may be, at their latest known address, notify that person of the Minister’s decision.
1992, c. 4, s. 15(2)
(2) Subparagraph 7.1(2)(a)(i) of the Act is repealed.
(3) Section 7.1 of the Act is amended by adding the following after subsection (2): Effective date of Minister’s decision
(2.1) The Minister’s decision to suspend or cancel a Canadian aviation document takes effect on the date of receipt of the notice under subsection (1) by the person on whom it is served or to whom it is sent, unless the notice indicates that the decision is to take effect on a later date.
R.S., c. 33 (1st Supp.), s. 1
(4) Subsections 7.1(7) to (9) of the Act are replaced by the following:
Determination of Tribunal member
(7) On a review under this section of a decision of the Minister to suspend, cancel or refuse to renew a Canadian aviation document, the member of the Tribunal who conducts the review may determine the matter by confirming the Minister’s decision or by referring the matter back to the Minister for reconsideration.
Effect of decision pending reconsideration
(8) If a decision to suspend or cancel a Canadian aviation document is referred back to the Minister for reconsideration under subsection (7), the decision of the Minister
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remains in effect until the reconsideration is concluded. However, the member, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded, if he or she is satisfied that granting a stay would not constitute a threat to aviation safety. R.S., c. 33 (1st Supp.), s. 1
38. Section 7.2 of the Act is replaced by the following:
Right of appeal
7.2 (1) Within thirty days after the determination, (a) a person affected by the determination may appeal a determination made under subsection 6.72(4) or 7.1(7) to the Tribunal; or (b) a person affected by the determination or the Minister may appeal a determination made under subsection 6.9(8) or 7(7) to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under subsection 6.72(4) or 7.1(7), dismiss the appeal or refer the matter back to the Minister for reconsideration; or (b) in the case of a determination made under subsection 6.9(8) or 7(7), dismiss the appeal, or allow the appeal and substitute its own decision.
Effect of decision pending reconsideration
(4) If a decision to suspend or cancel a Canadian aviation document is referred back to the Minister for reconsideration under paragraph (3)(a), the decision of the Minister remains in effect until the reconsideration is concluded. However, the appeal panel, after considering any representations made by the parties, may grant a stay of the decision until the reconsideration is concluded, if it is satisfied that granting a stay would not constitute a threat to aviation safety.
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Default in payment
7.21 (1) The Minister may suspend, or refuse to issue, amend or renew, a Canadian aviation document if a certificate under section 7.92, paragraph 8(b) or subsection 8.1(4) has been issued to the Minister in respect of the applicant for, or the holder of, the document or in respect of the owner or operator of an aircraft, aerodrome, airport or other facility to which the document relates.
Notice
(2) The Minister shall, by personal service or by registered or certified mail sent to the applicant, holder, owner or operator, as the case may be, at their latest known address, notify that person of a decision made under subsection (1) and, in the case of a suspension, of the effective date of the suspension, which shall not be earlier than thirty days after the notice is served or sent.
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 1, s. 5, c. 4, s. 20
39. Sections 7.7 to 7.9 of the Act are replaced by the following:
Notice of assessment of monetary penalty
7.7 (1) If the Minister believes on reasonable grounds that a person has contravened a designated provision, the Minister may decide to assess a monetary penalty in respect of the alleged contravention, in which case the Minister shall, by personal service or by registered or certified mail sent to the person at their latest known address, notify the person of his or her decision.
Contents of notice
(2) A notice under subsection (1) shall be in a form prescribed by regulation of the Governor in Council and shall, in addition to any other information that may be prescribed, indicate (a) the designated provision that the Minister believes has been contravened; (b) subject to any regulations made under paragraph 7.6(1)(b), the amount that is determined by the Minister, in accordance with any guidelines that the Minister may make for the purpose, to be the amount that must be paid to the Minister as the penalty in the event that the person does not wish to appear before a member of the Tribunal assigned to conduct a review to make representations in respect of the alleged contravention; and
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(c) the address at which, and the date, being thirty days after the notice is served or sent, on or before which, the penalty must be paid or a request for a review must be filed. Option
7.8 A person who has been served with or sent a notice under subsection 7.7(1) must either pay the amount of the penalty specified in the notice or file with the Tribunal a written request for a review of the facts of the alleged contravention or of the amount of the penalty.
Payment of specified amount precludes further proceedings
7.9 If a person who is served with or sent a notice under subsection 7.7(1) pays the amount specified in the notice in accordance with the requirements set out in the notice, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention by that person of the designated provision and no further proceedings under this Part shall be taken against the person in respect of that contravention.
Request for review of determination
7.91 (1) A person who is served with or sent a notice under subsection 7.7(1) and who wishes to have the facts of the alleged contravention or the amount of the penalty reviewed shall, on or before the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal at the address set out in the notice.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden of establishing that a person has contravened a designated provision is on the Minister.
Person not compelled to testify
(5) A person who is alleged to have contravened a designated provision is not required, and shall not be compelled, to give any evidence or testimony in the matter.
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Certificate
7.92 If a person fails to pay the amount of the penalty specified in a notice under subsection 7.7(1) within the time specified in the notice and does not file a request for a review under subsection 7.91(1), the person is deemed to have committed the contravention alleged in the notice, and the Minister may obtain from the Tribunal a certificate in a form prescribed by the Governor in Council that indicates the amount of the penalty specified in the notice.
R.S., c. 33 (1st Supp.), s. 1
40. The portion of section 8 of the English version of the Act before paragraph (a) is replaced by the following:
Determination by Tribunal member
8. If, at the conclusion of a review under section 7.91, the member of the Tribunal who conducts the review determines that
R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 22
41. Section 8.1 of the Act is replaced by the following:
Right of appeal
8.1 (1) A person affected by the determination or the Minister may, within thirty days after the determination, appeal a determination made under section 8 to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.
Certificate
(4) Where the appeal panel finds on an appeal that a person has contravened the designated provision, the panel shall without delay inform the person of the finding and, subject to any regulations made under paragraph 7.6(1)(b), of the amount determined by the panel to be payable by the person in respect of the contravention and, where the amount is not paid to the Tribunal by or on behalf of the person within the time allowed by the Tribunal, the Tribunal shall issue to the Minister a certificate in a form prescribed by regulation of the Governor in Council, setting out the amount required to be paid by the person.
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R.S., c. 33 (1st Supp.), s. 1
42. Subsection 8.2(1) of the Act is replaced by the following:
Registration of certificate
8.2 (1) If the time limit for the payment of an amount determined by the Minister in a notice under subsection 7.7(1) has expired, the time limit for the request for a review under subsection 7.91(1) has expired, the time limit for an appeal under subsection 8.1(1) has expired, or an appeal taken under section 8.1 has been disposed of, on production in any superior court, a certificate issued under section 7.92, paragraph 8(b) or subsection 8.1(4) shall be registered in the court. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person named in the certificate for a debt of the amount set out in the certificate.
R.S., c. 33 (1st Supp.), s. 1
43. Subsection 8.3(3) of the Act is replaced by the following:
Application of certain provisions
(3) Subsections 7.1(3) to (8) and section 7.2 apply, with any modifications that the circumstances require, in respect of a decision of the Minister referred to in subsection (2).
R.S., c. 33 (1st Supp.), s. 5; 1992, c. 1, s. 4 Replacement of ‘‘full opportunity’’ with ‘‘opportunity’’
44. Part IV of the Act is repealed. 45. (1) The Act is amended by replacing the words ‘‘full opportunity’’ with the word ‘‘opportunity’’ in the following provisions: (a) subsection 6.9(7); (b) subsection 7(6); and (c) subsection 7.1(6).
Replacement of ‘‘audition’’ with ‘‘audience’’
(2) The French version of the Act is amended by replacing the word ‘‘audition’’ with the word ‘‘audience’’ in the following provisions: (a) subsections 6.9(6) and (7); (b) subsections 7(5) and (6); and (c) subsections 7.1(5) and (6).
2001 R.S., c. S-9
Tribunal d’appel des tr Canada Shipping Act 46. Section 2 of the Canada Shipping Act is amended by adding the following in alphabetical order:
‘‘Tribunal’’ « Tribunal »
‘‘Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act;
R.S., c. 6 (3rd Supp.), s. 11
47. Section 120 of the Act is replaced by the following:
Medical incapacity of certificate holder
120. (1) If the Minister believes on reasonable grounds that the holder of a certificate granted under this Part is incapacitated in respect of the performance of his or her duties as a certificated master or seaman by reason of not meeting the medical fitness standards prescribed under paragraph 110(1)(c), the Minister may suspend the certificate until the Minister is satisfied that the certificate holder is no longer incapacitated.
Provisions applicable to suspension
(2) Sections 504.1 to 505.2 apply in respect of a suspension under subsection (1) with any modifications that the circumstances require. However, subsections 505.1(4) and 505.2(3) apply as if the suspension were a suspension of a certificate under paragraph 504(a), (c) or (e). 48. Section 125 of the Act is amended by adding the following after subsection (4):
Provisions applicable to suspensions and cancellations
(5) Sections 504.1 to 505.2 apply in respect of a suspension or cancellation under subsection (4) with any modifications that the circumstances require. However, subsections 505.1(4) and 505.2(3) apply as if the suspension or cancellation were a suspension or cancellation of a certificate under paragraph 504(a), (c) or (e). 49. Section 128 of the Act is amended by adding the following after subsection (2):
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(2.1) Sections 504.1 to 505.2 apply in respect of a suspension or cancellation under subsection (2) with any modifications that the circumstances require. 50. Section 133 of the Act is amended by adding the following after subsection (3):
Provisions applicable to suspensions
(4) Sections 504.1 to 505.2 apply in respect of a suspension under subsection (3) with any modifications that the circumstances require. However, subsections 505.1(4) and 505.2(3) apply as if the suspension were a suspension of a certificate under paragraph 504(b) or (d).
R.S., c. 6 (3rd Supp.), s. 87(F); 1999, c. 19, ss. 15, 16
51. The heading before section 504 and sections 504 and 505 of the Act are replaced by the following: Tribunal Hearings Related to the Competency and Conduct of Officers
Suspension or cancellation of certificate
504. With respect to a certificate granted by the Minister, or a certificate granted in any other country in so far only as concerns its validity in Canada, the Minister may suspend or cancel the certificate of competency or service of a master, mate or engineer if the Minister is satisfied that (a) the master, mate or engineer is incompetent or is guilty of any act of misconduct, drunkenness or tyranny; (b) the master, mate or engineer on board a vessel that has contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act knew, when the contravention occurred, that the vessel was committing the contravention; (c) the loss or abandonment of, or serious damage to, any ship or any loss of life was caused by the wrongful act or default of the master, mate or engineer; (d) the master, mate or engineer is guilty of a criminal offence; or (e) the master or mate, in the case of collision between his or her vessel and another vessel, has failed without reasonable cause to comply with the requirements of section 568 with regard to rendering assistance or giving information.
Notice before suspension or cancellation
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504.1 Before suspending or cancelling a certificate of competency or service, the Minister shall, by personal service or by registered or certified mail sent to the holder of the certificate at his or her latest known address, give the holder 30 days notice of the proposed suspension or cancellation. The notice shall be in a form prescribed by regulation of the Governor in Council and shall indicate (a) the grounds for the proposed suspension or cancellation; and (b) the address at which, and the date, being 30 days after the notice is given, on or before which, the holder may file a request for a review of the Minister’s decision.
Exception
504.2 (1) The Minister may suspend or cancel a certificate of competency or service without giving notice under section 504.1 if, on ex parte application by the Minister, the Tribunal determines that compliance with that section is not in the interest of public safety.
Decision within 24 hours
(2) An application by the Minister under subsection (1) shall be heard by a member of the Tribunal, sitting alone, whose determination shall be made within 24 hours after the application is filed with the Tribunal.
Appeal
(3) The Minister may appeal the determination to the Tribunal within 24 hours after the determination.
Decision within 48 hours
(4) The appeal panel of the Tribunal assigned to hear the appeal shall make a decision within 48 hours after the appeal is filed with the Tribunal.
Notice after suspension or cancellation
504.3 Unless a notice is given under section 504.1, immediately after suspending or cancelling a certificate, the Minister shall, by personal service or by registered or certified mail sent to the holder of the certificate at his or her latest known address, give the holder a notice in a form prescribed by regulation of the Governor in Council (a) confirming the suspension or cancellation and providing all relevant information
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concerning the grounds on which the Minister suspended or cancelled the certificate; and (b) indicating the address at which, and the date, being 30 days after the notice is given, on or before which, the holder may file a request for a review of the Minister’s decision. Request for review
505. (1) The holder of a certificate may, on or before the date specified in a notice under section 504.1 or 504.3 or within any further time that the Tribunal on application allows, file a written request for a review of the decision referred to in the notice.
Effect of request
(2) The filing of a request for a review of a decision referred to in a notice under section 504.1 operates as a stay of the proposed suspension or cancellation until the matter is finally disposed of in accordance with section 505.1 or 505.2.
Time and place for review
505.1 (1) On receipt of a request filed under subsection 505(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the holder of the certificate of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the holder of the certificate with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(3) In a review of a decision made under paragraph 504(c) or (e), the holder of the certificate is not required, and must not be compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may (a) in the case of a suspension or cancellation of a certificate under paragraph 504(a), (c) or (e), confirm the Minister’s decision or refer the matter back to the Minister for reconsideration; or (b) in the case of a suspension or cancellation of a certificate under paragraph 504(b) or (d), confirm the Minister’s decision or substitute his or her own determination.
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Right of appeal
505.2 (1) The holder of a certificate may appeal a determination made under paragraph 505.1(4)(a), and the holder of a certificate or the Minister may appeal a determination made under paragraph 505.1(4)(b), to the Tribunal within 30 days after the determination.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under paragraph 505.1(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or (b) in the case of a determination made under paragraph 505.1(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.
Endorsements
1996, c. 10
505.3 A reference to a certificate in sections 504 to 505.2 includes a reference to an endorsement of that certificate. Canada Transportation Act 52. (1) The portion of subsection 180(2) of the Canada Transportation Act before paragraph (a) is replaced by the following:
Application of Aeronautics Act
(2) Sections 7.8 to 8.2 of the Aeronautics Act apply to the contravention of a provision, requirement or condition designated under section 177, with any modifications that are necessary, and a reference in any of those provisions or in any document issued under any of those provisions to (2) Paragraph 180(2)(c) of the Act is replaced by the following: (c) ‘‘Minister’’ shall be read as a reference to the Agency or, in any provision other than section 7.9 of the Aeronautics Act, to a person designated by the Agency;
�� R.S., c. F-11
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53. Schedule I.1 to the Financial Administration Act is amended by striking out, in column I, the reference to Civil Aviation Tribunal Tribunal de l’aviation civile and the corresponding reference in column II to the ‘‘Minister of Transport’’. 54. Schedule I.1 to the Act is amended by adding, in alphabetical order in column I, a reference to Transportation Appeal Tribunal of Canada Tribunal d’appel des transports du Canada and a corresponding reference in column II to the ‘‘Minister of Transport’’.
1994, c. 40
Marine Transportation Security Act 55. (1) The definition ‘‘screening officer’’ in subsection 2(1) of the Marine Transportation Security Act is replaced by the following:
‘‘screening officer’’ « agent de contrôle »
‘‘screening officer’’ means a person designated by the Minister under section 19.1 as a screening officer for the purposes of this Act; (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘Tribunal’’ « Tribunal »
‘‘Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act;
56. Sections 5 and 6 of the Act are replaced by the following: Regulations respecting security
5. (1) The Governor in Council may make regulations respecting the security of marine transportation, including regulations (a) for preventing unlawful interference with marine transportation and ensuring that appropriate action is taken where that interference occurs or could occur;
Tribunal d’appel des tr (b) requiring or authorizing screening for the purpose of protecting persons, goods, vessels and marine facilities; (c) respecting the establishment of restricted areas; (d) respecting the keeping and preservation of records and documents relating to the security of marine operations, including copies of the regulations, security measures and security rules; (e) for requiring the records and documents to be filed with the Minister or provided on request; and (f) respecting the protection, preservation and return of any evidence that has been seized under this Act without a warrant or any vessel that has been detained under this Act.
Offences relating to the regulations
(2) Every person who contravenes a regulation made under subsection (1) is guilty of an offence punishable on summary conviction and liable (a) in the case of an individual, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding six months or to both; or (b) in the case of a corporation, to a fine not exceeding $100,000.
Notices and service of documents
6. The Governor in Council may make regulations respecting (a) the form and manner of giving notice under this Act; and (b) the service of documents required or authorized to be served under this Act, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served. 57. Section 19 of the Act is replaced by the following:
Definition of ‘‘designation’’
19. For the purposes of sections 19.1 to 19.8, ‘‘designation’’ includes any privilege accorded by a designation.
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Designation of screening officers
19.1 The Minister may designate persons or classes of persons to act as screening officers for the purposes of this Act or any of its provisions.
Refusal to designate, etc.
19.2 (1) The Minister may refuse to designate a person as a screening officer under section 19.1, or may suspend, cancel or refuse to renew the designation of a person as a screening officer, if the Minister is of the opinion that the person is incompetent, does not meet the qualifications or fulfil the conditions required for the designation or ceases to meet the qualifications or fulfil the conditions of the designation.
Suspension or cancellation of designation for contraventions
(2) The Minister may suspend or cancel the designation of a person as a screening officer if the Minister is of the opinion that the person has contravened this Act or any regulation, security measure or security rule, or any condition referred to in subsection 10(6).
Suspension for immediate threat
(3) The Minister may suspend the designation of a person as a screening officer if the Minister is of the opinion that the exercise by the person of the functions of a screening officer constitutes, or is likely to constitute, an immediate threat to marine transportation security.
Notice
19.3 (1) If the Minister decides to refuse to designate a person as a screening officer or decides to suspend, cancel or refuse to renew a person’s designation as a screening officer, the Minister shall notify the person of that decision.
Contents of notice
(2) A notice under subsection (1) shall include (a) the grounds for the Minister’s decision; and (b) the address at which, and the date, being thirty days after the notice is given, on or before which, the person may file a request for a review of the decision.
Effective date of suspension or cancellation
(3) In the case of a suspension or cancellation, the effective date of the decision shall not be earlier than (a) in the case of a decision made under subsection 19.2(1) or (3), the day that the notice was received by the person; and
Tribunal d’appel des tr (b) in the case of a decision made under subsection 19.2(2), the thirtieth day after the notice is given.
Request for review
19.4 (1) A person affected by a decision of the Minister under section 19.2 may, on or before the date specified in the notice under subsection 19.3(1) or within any further time that the Tribunal on application allows, file a written request for a review of the decision.
Effect of request
(2) A request under subsection (1) for a review of a decision of the Minister does not operate as a stay of the decision.
Exception
(3) On application in writing by the person affected by a decision made under subsection 19.2(2), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to marine transportation security.
Time and place for review
19.5 (1) On receipt of a request filed under subsection 19.4(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(3) In a review of a decision made under subsection 19.2(2), the person who filed the request for the review is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may (a) in the case of a decision made under subsection 19.2(1) or (3), confirm the decision or refer the matter back to the Minister for reconsideration; or
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(b) in the case of a decision made under subsection 19.2(2), confirm the decision or substitute his or her own determination. Right of appeal
19.6 (1) Within thirty days after the determination, (a) a person affected by the determination may appeal a determination made under paragraph 19.5(4)(a) to the Tribunal; or (b) a person affected by the determination or the Minister may appeal a determination made under paragraph 19.5(4)(b) to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under paragraph 19.5(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or (b) in the case of a determination made under paragraph 19.5(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.
Decision to remain in effect pending reconsideration
19.7 If a matter is referred back to the Minister for reconsideration under paragraph 19.5(4)(a) or 19.6(3)(a), the decision of the Minister under subsection 19.2(1) or (3) to suspend or cancel a designation remains in effect until the reconsideration is concluded. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of a decision under subsection 19.2(1) to suspend or cancel a designation until the reconsideration is concluded, if the member or panel is satisfied that granting a stay would not constitute a threat to marine transportation security.
Reconsideration
19.8 (1) In the case of a decision made under subsection 19.2(3), if the appeal panel has, on an appeal under section 19.6, dismissed the appeal or if the Minister has, after reconsidering the matter pursuant to paragraph 19.5(4)(a) or 19.6(3)(a), confirmed the sus2001
Procedure applicable
Tribunal d’appel des tr pension, the person affected by the decision may, in writing, request the Minister to reconsider whether the exercise by the person of the functions of a screening officer continues to constitute, or is likely to continue to constitute, an immediate threat to marine transportation security. (2) On the receipt of a request by a person under subsection (1), the Minister shall without delay conduct the reconsideration and inform the person of his or her decision regarding the request. Sections 19.3 to 19.7 apply in respect of that decision with any modifications that are necessary. 58. Subsection 28(2) of the French version of the Act is replaced by the following:
Exploitant du bâtiment
(2) L’exploitant d’un bâtiment peut être déclaré coupable d’une infraction à la présente loi, en rapport avec ce bâtiment, commise par une autre personne, que celle-ci ait été ou non identifiée, poursuivie ou déclarée coupable, à moins que, lors de l’infraction, le bâtiment n’ait été en la possession d’une autre personne sans son consentement. 59. Section 32 of the Act and the headings before it are replaced by the following: ADMINISTRATIVE PENALTIES
Definition of ‘‘violation’’
If reasonable grounds to believe a violation
Interpretation 32. In sections 33 to 51, ‘‘violation’’ means a contravention of a provision that is designated as a violation by the regulations. Assurances of Compliance and Notices of Violation 33. (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may (a) enter into an assurance of compliance with the person that (i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,
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(b) issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out (i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation, (ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested. Extension of period
(2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.
Short-form descriptions in notices of violation
(3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.
Deemed violation
34. (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.
Request for review
(2) A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.
2001 When assurance of compliance complied with
Tribunal d’appel des tr 35. If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice, (a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and (b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.
When assurance of compliance not complied with
36. (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with, (a) the person is liable to pay double the amount of the penalty set out in the assurance; or (b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
Contents of notice
(2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
No set-off
(3) On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.
Request for review
37. (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
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Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Certain defences not available
(5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.
Determination
(6) The member may confirm the Minister’s decision or determine that the person has complied with the assurance of compliance.
Return of security
38. Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if (a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or (b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.
Notice of violation
39. (1) A person served with a notice of violation under paragraph 33(1)(b) must (a) pay the amount of the penalty; or (b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.
When review not requested
(2) If a review of the facts of the violation is not requested, the person is deemed to have committed the violation in respect of which the notice was served.
Time and place for review
(3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
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Review procedure
(4) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(5) The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determination
(6) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.
Right of appeal
40. (1) The Minister or the person who requested the review of the decision may appeal a determination made under subsection 37(6) or 39(6) to the Tribunal within thirty days after the determination.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or (b) in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision. Choice of Proceedings
How contravention may be proceeded with
41. If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.
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Debts due to Her Majesty
42. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction: (a) unless a review of the amount of a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served; (b) the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served; (c) the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, from the time of the respective determination or decision; and (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).
Certificate
43. (1) All or part of a debt referred to in section 42 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.
Registration of certificate
(2) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration. Rules of Law about Violations
Violations are not offences
44. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Defence
45. For greater certainty, no person is liable for the commission of a violation if the person exercised all due diligence to prevent the commission.
2001 Violation by employee or agent
Liability of operator of a vessel
Liability of operator of marine facility
Officers, etc., of corporation
Notations removed
Tribunal d’appel des tr 46. (1) A person is liable for a violation committed by their employee or agent, whether or not the employee or agent has been identified or proceeded against under sections 33 to 43. (2) The operator of a vessel is liable for a violation committed in relation to the vessel by another person, whether or not the other person has been identified or proceeded against under sections 33 to 43 unless, at the time of the violation, the vessel was in the possession of another person without the operator’s consent. (3) The operator of a marine facility is liable for a violation committed with their consent by another person in relation to the facility, whether or not the other person has been identified or proceeded against under sections 33 to 43. (4) An officer, director or agent of a corporation that commits a violation under this Act is a party to and liable for the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation has been identified or proceeded against under sections 33 to 43. General Provisions 47. (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs, the Minister is to remove every notation of violation or default, and every suspension or cancellation of the designation of or refusal to designate or to renew the designation of a person as a screening officer on prescribed grounds, from any records that the Minister may keep respecting the person: (a) payment by the person of every penalty that the person is liable to pay after a notice of violation, a notice of default, a determination of a member of the Tribunal on review or a decision of an appeal panel of the Tribunal; or
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(b) the suspension or cancellation of the designation of, or the refusal to designate or to renew the designation of, the person as a screening officer under section 19.2. Duty to notify
(2) When the Minister is of the opinion that removal of a notation is not in the public interest, the Minister shall give notice of that fact to the person.
Contents of notice
(3) A notice under subsection (2) shall provide all relevant information concerning the grounds on which the Minister has refused to remove the notation and shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
Review
(4) Subsections 37(1) to (3) apply in respect of a refusal to remove a notation, with any modifications that the circumstances require.
Determination
(5) The member of the Tribunal assigned to conduct the review may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.
Right of appeal
(6) The person may, within thirty days after a determination is made under subsection (5), appeal the determination to the Tribunal.
Loss of right of appeal
(7) If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(8) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.
Public record
48. The Minister shall keep a public record of notations of violations or default that appear on any record that the Minister may keep respecting persons under this Act.
Limitation period
49. No notice of violation may be issued more than two years after the Minister becomes aware of the violation.
2001 Certificate of Minister
Tribunal d’appel des tr 50. A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day. Regulations
Regulations
51. The Governor in Council may make regulations (a) designating, as a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50, the contravention of a provision that is an offence under this Act; (b) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued; (c) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine that would be payable if the violation were proceeded with by way of summary conviction; and (d) prescribing anything that by subsections 33 to 50 is to be prescribed.
1991, c. 30
Public Sector Compensation Act 60. Schedule I to the Public Sector Compensation Act is amended by striking out the following under the heading ‘‘Other Portions of the Public Service’’: Civil Aviation Tribunal Tribunal de l’aviation civile 61. Schedule I to the Act is amended by adding the following in alphabetical order under the heading ‘‘Other Portions of the Public Service’’: Transportation Appeal Tribunal of Canada Tribunal d’appel des transports du Canada
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R.S., c. P-35
Public Service Staff Relations Act
SOR/88-105
62. Part I of Schedule I to the Public Service Staff Relations Act is amended by striking out the following: Civil Aviation Tribunal Tribunal de l’aviation civile 63. Part I of Schedule I to the Act is amended by adding the following in alphabetical order: Transportation Appeal Tribunal of Canada Tribunal d’appel des transports du Canada
R.S., c. 32 (4th Supp.)
Railway Safety Act 64. (1) Subsection 4(1) of the Railway Safety Act is amended by adding the following in alphabetical order:
‘‘Tribunal’’ « Tribunal »
‘‘Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act;
(2) The portion of subsection 4(5) of the Act before paragraph (a) is replaced by the following: Manner of filing or sending notices and documents
(5) With the exception of a notice or document sent to or by the Tribunal, for the purposes of this Act, a notice or document must be filed with, or sent to, a person
65. The Act is amended by adding the following after section 27:
Tribunal d’appel des tr
Refusal to designate etc.
27.1 (1) The Minister may refuse to designate a person as a screening officer under section 27 or may suspend, cancel or refuse to renew the designation of a person as a screening officer if the Minister is of the opinion that the person is incompetent, does not meet the qualifications or fulfil the conditions required for the designation or ceases to meet the qualifications or fulfil the conditions of the designation.
Suspension or cancellation of designation for offences
(2) The Minister may suspend or cancel the designation of a person as a screening officer if the Minister is of the opinion that the person has committed an offence within the meaning of section 41.
Suspension of designation for immediate threat
(3) The Minister may suspend the designation of a person as a screening officer if the Minister is of the opinion that the exercise by the person of the functions of a screening officer constitutes, or is likely to constitute, an immediate threat to railway security.
Notice
27.2 (1) If the Minister decides to refuse to designate a person as a screening officer or decides to suspend, cancel or refuse to renew the designation of a person as a screening officer, the Minister shall notify the person of that decision.
Contents of notice
(2) A notice under subsection (1) shall include (a) the grounds for the Minister’s decision; and (b) the address at which, and the date, being thirty days after the notice is sent, on or before which, the person may file a request for a review of the decision.
Effective date of suspension or cancellation
(3) In the case of a suspension or cancellation, the effective date of the decision shall not be earlier than (a) in the case of a decision made under subsection 27.1(1) or (3), the day that the notice was received by the person; and (b) in the case of a decision made under subsection 27.1(2), the thirtieth day after the notice is sent.
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Request for review
27.3 (1) A person affected by a decision of the Minister under section 27.1 may, on or before the date specified in the notice under subsection 27.2(1) or within any further time that the Tribunal on application allows, file a written request for a review of the decision.
Effect of request
(2) A request under subsection (1) for a review of a decision of the Minister does not operate as a stay of the decision.
Exception
(3) On application in writing by the person affected by a decision made under subsection 27.1(2), after giving any notice to the Minister that is, in the member’s opinion, necessary and after considering any representations made by the parties, a member of the Tribunal assigned for the purpose may grant a stay of the decision until the review is completed, unless he or she is of the opinion that granting a stay would constitute a threat to railway security.
Time and place for review
27.4 (1) On receipt of a request filed under subsection 27.3(1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(3) In a review of a decision made under subsection 27.1(2), the person who filed the request for the review is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may (a) in the case of a decision made under subsection 27.1(1) or (3), confirm the decision or refer the matter back to the Minister for reconsideration; or (b) in the case of a decision made under subsection 27.1(2), confirm the decision or substitute his or her own determination.
2001 Right of appeal
Tribunal d’appel des tr 27.5 (1) Within thirty days after the determination, (a) a person affected by the determination may appeal a determination made under paragraph 27.4(4)(a) to the Tribunal; or (b) a person affected by the determination or the Minister may appeal a determination made under paragraph 27.4(4)(b) to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under paragraph 27.4(4)(a), dismiss the appeal or refer the matter back to the Minister for reconsideration; or (b) in the case of a determination made under paragraph 27.4(4)(b), dismiss the appeal, or allow the appeal and substitute its own decision.
Decision to remain in effect pending reconsideration
27.6 If a matter is referred back to the Minister for reconsideration under paragraph 27.4(4)(a) or 27.5(3)(a), the decision of the Minister under subsection 27.1(1) or (3) to suspend or cancel a designation remains in effect until the reconsideration is completed. However, the member who made the determination or the appeal panel, after considering any representations made by the parties, may grant a stay of a decision under subsection 27.1(1) to suspend or cancel a designation until the reconsideration is completed, if the member or panel is satisfied that granting a stay would not constitute a threat to railway security.
Reconsideration
27.7 (1) In the case of a decision made under subsection 27.1(3), if the appeal panel has, on an appeal under section 27.5, dismissed the appeal or if the Minister has, after reconsidering the matter pursuant to paragraph 27.4(4)(a) or 27.5(3)(a), confirmed the suspension, the person affected by the decision may, in writing, request the Minister to reconsider whether the exercise by the person
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of the functions of a screening officer continues to constitute, or is likely to continue to constitute, an immediate threat to railway security. Procedure applicable
(2) On receipt of a request by a person under subsection (1), the Minister shall without delay conduct the reconsideration and inform the person of his or her decision regarding the request. Sections 27.2 to 27.6 apply in respect of that decision, with any modifications that are necessary.
Definition of ‘‘designation’’
27.8 For the purposes of sections 27.1 to 27.7, ‘‘designation’’ includes any privilege accorded by a designation. 66. (1) Section 31 of the Act is amended by adding the following after subsection (4):
Contents of notice
(4.1) A notice under subsections (1) to (3) that contains an order shall indicate the address at which, and the date, being thirty days after the notice is sent, on or before which, the recipient of the notice may file a request for a review of the order of the railway safety inspector. (2) Subsection 31(9) of the Act is replaced by the following:
Reviewable order
(9) The alteration of an order under subsection (8) is an order that is reviewable under sections 31.1 to 31.5. 67. The Act is amended by adding the following after section 31:
Request for review of order of railway safety inspector
31.1 (1) A person, including a railway company, who is sent a notice under section 31 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall without delay appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.
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Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Determination
(4) The member may confirm the order or refer the matter to the Minister for consideration.
Right of appeal
31.2 (1) The person who requested the review under section 31.1 may, within thirty days after the determination, appeal a determination made under subsection 31.1(4) to the Tribunal.
Loss of right of appeal
(2) If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter to the Minister for consideration.
No stay of order
31.3 An order of a railway safety inspector shall not be stayed pending a review under section 31.1, an appeal under section 31.2 or consideration by the Minister under subsection 31.1(4) or 31.2(3).
Consideration by Minister
31.4 If a matter is referred to the Minister under subsection 31.1(4) or 31.2(3), or if the Minister on his or her own initiative decides to review an order of a railway safety inspector, the Minister may confirm the order, or may, by order, alter or revoke the order of the railway safety inspector. For greater certainty, the Minister’s order may be made an order of the Federal Court or of any superior court under section 34.
When alteration or revocation effective
31.5 An alteration or revocation under section 31.4 has effect when the railway company or other person to whom notice of the order under section 31 was sent receives notice of the alteration or revocation.
1999, c. 9, s. 25
68. Subsection 32(4) of the Act is replaced by the following:
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(4) An order contained in a notice under subsection (1), (3) or (3.1) takes effect on the date of receipt of the notice. The notice shall indicate the address at which, and the date, being thirty days after the notice is sent, on or before which, the recipient of the notice may file a request for a review of the order. 69. The Act is amended by adding the following after section 32:
Request for review
32.1 (1) A person, including a railway company, who is sent a notice under section 32 that contains an order may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the order.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing. In the case of a request for review of an order made under subsection 32(3), the Tribunal shall do so without delay.
Review procedure
(3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(4) In a review of an order made under subsection 32(3), a person who the Minister is of the opinion has contravened a regulation made under section 24 is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Determination
(5) The member may confirm the order or refer the matter back to the Minister for reconsideration.
Right of appeal
32.2 (1) The person who requested the review under section 32.1 may, within thirty days after the determination, appeal a determination made under subsection 32.1(5) to the Tribunal.
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Loss of right of appeal
(2) If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.
Stay of order
32.3 If a request for review is filed, an order made under subsection 32(1) or (3.1) shall be stayed until the matter is finally disposed of in accordance with section 32.1, 32.2 or 32.4. However, an order made under subsection 32(3) shall not be stayed pending a review under section 32.1, an appeal under section 32.2 or reconsideration by the Minister under subsection 32.1(5) or 32.2(3).
Reconsideration by Minister
32.4 If a matter is referred back to the Minister under subsection 32.1(5) or 32.2(3), the Minister may confirm the order, or may, by order, alter or revoke the order. For greater certainty, the Minister’s order may be made an order of the Federal Court or of any superior court under section 34.
When alteration or revocation effective
32.5 An alteration or revocation under section 32.4 has effect when the railway company or other person to whom notice of the order under section 32 was sent receives notice of the alteration or revocation.
1999, c. 9, s. 33
70. Paragraph 46(d) of the Act is replaced by the following: (d) orders and notices sent under sections 31 to 32.5; COORDINATING AMENDMENTS
Amendment to This Act Amendment to this Act
71. If Bill C-14, introduced in the first session of the 37th Parliament and entitled the Canada Shipping Act, 2001, receives royal assent, then, on the coming into force of section 1 of that Act, subsection 2(2) of this Act is replaced by the following:
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(2) The Tribunal has jurisdiction in respect of reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, 2001, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.
Bill C-14 Bill C-14
72. If Bill C-14, introduced in the first session of the 37th Parliament and entitled the Canada Shipping Act, 2001 (referred to in this section as the ‘‘other Act’’), receives royal assent, then, on the coming into force of section 2 of this Act, (a) the definition ‘‘adjudicator’’ in section 2 of the other Act is repealed; (b) section 2 of the other Act is amended by adding the following in alphabetical order:
‘‘Tribunal’’ « Tribunal »
‘‘Tribunal’’ means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act. (c) section 15 of the other Act and the heading before it are repealed; (d) subparagraph 16(4)(e)(ii) of the French version of the other Act is replaced by the following: (ii) le capitaine ou le membre de l’équipage a été déclaré coupable d’une infraction liée à l’exécution de ses fonctions sur un bâtiment ou a commis une violation pour laquelle un procès-verbal a été dressé en vertu de l’alinea 229(1)b). (e) subsections 16(5) and (6) of the other Act are replaced by the following:
Notice after refusal to issue
(5) The Minister of Transport must, immediately after refusing to issue a Canadian maritime document, give the applicant a notice
Tribunal d’appel des tr (a) confirming the refusal and providing all relevant information concerning the grounds on which the Minister has refused to issue the document; and (b) indicating, in the case of a refusal to issue a document under Part 3 (Personnel) on the grounds set out in paragraph (4)(a), (b), (c) or (e), the address at which, and the date, being thirty days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision. (f) the other Act is amended by adding the following after section 16:
Request for review
16.1 (1) An applicant who receives a notice under subsection 16(5) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the decision if (a) the request is in respect of a Canadian maritime document that is issued under Part 3 (Personnel); and (b) the grounds for refusing to issue the document are set out in paragraph 16(4)(a), (b), (c) or (e).
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister of Transport and the applicant of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review must provide the Minister of Transport and the applicant with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(4) In a review of a decision made under subparagraph 16(4)(e)(ii) on the ground that an applicant has committed a violation in respect of which a notice of violation has been issued to the applicant, the applicant is not required, and must not be compelled, to give any evidence or testimony in the matter before the matter that gave rise to the issue of the notice has been disposed of in accordance with sections 232 to 232.2.
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(5) The member may (a) in the case of a decision made under paragraph 16(4)(e), confirm the decision or substitute his or her own determination; or (b) in any other case, confirm the decision or refer the matter back to the Minister of Transport for reconsideration. (g) section 20 of the other Act is replaced by the following:
Suspension, cancellation and refusal to renew
20. (1) Subject to section 20.1, the Minister of Transport may suspend, cancel or refuse to renew a Canadian maritime document if the Minister is satisfied that (a) the requirements for the issuance of the document are no longer met; (b) a term or condition attached to the document has been contravened; (c) the document was obtained by any fraudulent or improper means or a misrepresentation of any material fact; (d) the holder of the document has not paid a fine or penalty imposed on them under this Act; (e) the holder of the document has contravened a provision of this Act or the regulations that the Minister is responsible for administering; (f) in the case of a Canadian maritime document issued under Part 3 (Personnel) to a master or crew member, (i) the master or crew member is incompetent or has committed an act of misconduct, (ii) the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or (iii) the master or crew member has been found guilty of an offence related to their duties on a vessel; or (g) in the case of a refusal to renew, (i) the applicant has not paid a fee set under paragraph 35(1)(g) in respect of the issuance of the document, or
Tribunal d’appel des tr (ii) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it.
Return of document
(2) If a Canadian maritime document is suspended or cancelled, the person who held it shall return it on demand to the Minister of Transport.
Notice before suspension or cancellation
20.1 The Minister of Transport must, before suspending or cancelling a Canadian maritime document issued under Part 3 (Personnel), give the holder 30 days notice of the proposed suspension or cancellation. The notice must (a) provide the holder with all relevant information concerning the grounds on which the Minister proposes to suspend or cancel the document; and (b) indicate, in the case of a proposed suspension or cancellation of a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision.
Exception
20.2 (1) The Minister of Transport may suspend or cancel a Canadian maritime document issued under Part 3 (Personnel) without complying with section 20.1 if, on ex parte application by the Minister, the Tribunal determines that compliance with that section is not in the interest of public safety.
Decision within 24 hours
(2) An application by the Minister of Transport under subsection (1) must be heard by a member of the Tribunal, sitting alone, whose determination shall be made within 24 hours after the application is filed with the Tribunal.
Appeal
(3) The Minister of Transport may, within 24 hours after the determination, appeal the determination to the Tribunal.
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Decision within 48 hours
(4) The appeal panel of the Tribunal assigned to hear the appeal shall make a decision within 48 hours after the appeal is filed with the Tribunal.
Notice after suspension, cancellation or refusal to renew
20.3 Except where notice of a proposed suspension or cancellation of a Canadian maritime document is given under section 20.1, the Minister of Transport must, immediately after suspending, cancelling or refusing to renew a Canadian maritime document, give the holder a notice that (a) confirms the suspension, cancellation or refusal and provides all relevant information concerning the grounds on which the Minister suspended, cancelled or refused to renew the document; and (b) indicates, in the case of the suspension or cancellation of, or the refusal to renew, a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision.
Request for review
20.4 (1) Subject to subsection (2), the holder of a Canadian maritime document that is referred to in a notice under section 20.1 or 20.3 may, within the time specified in the notice or any further time that the Tribunal on application allows, file a written request for a review of the decision referred to in the notice.
Exception
(2) A request for a review must not be filed with, or accepted by, the Tribunal if the grounds for suspending, cancelling or refusing to renew the document are set out in paragraph 20(1)(d) or subparagraph 20(1)(g)(i).
Effect of request
(3) The filing of a request for a review in respect of a notice under section 20.1 operates as a stay of the proposed suspension or cancellation until the matter is finally disposed of in accordance with this section or section 20.5.
Time and place for review
(4) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister of Transport and the holder of the time and place in writing.
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Review procedure
(5) The member of the Tribunal assigned to conduct the review must provide the Minister of Transport and the holder with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Person not compelled to testify
(6) In a review of a decision made under paragraph 20(1)(e), the holder is not required, and must not be compelled, to give any evidence or testimony in the matter.
Determination
(7) The member may (a) in the case of a decision made under paragraph 20(1)(e) or subparagraph 20(1)(f)(ii) or (iii), confirm the Minister of Transport’s decision or substitute his or her own determination; and (b) in any other case, confirm the Minister of Transport’s decision or refer the matter back to the Minister for reconsideration.
Right of appeal
20.5 (1) The applicant for, or holder of, a Canadian maritime document may appeal to the Tribunal a determination made under subsection 16.1(5) or 20.4(7), and the Minister of Transport may appeal to the Tribunal a determination made under paragraph 16.1(5)(a) or 20.4(7)(a). The time limit for making an appeal is 30 days after the determination.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under paragraph 16.1(5)(a) or 20.4(7)(a), dismiss the appeal, or allow the appeal and substitute its own decision; or (b) in the case of a determination made under paragraph 16.1(5)(b) or 20.4(7)(b), dismiss the appeal or refer the matter back to the Minister of Transport for reconsideration. (h) paragraphs 35(1)(a) and (c) of the other Act are repealed;
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(i) subsection 229(1) of the other Act is replaced by the following: 229. (1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may (a) enter into an assurance of compliance with the person or vessel that (i) identifies the violation and provides that the person or vessel will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance, (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and (iii) sets out the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or (b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out (i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay, (ii) the period, being thirty days after the notice is served, within which the penalty must be paid or a review of the notice requested, and (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested. (j) subsection 229(3) of the French version of the other Act is replaced by the following: Description abrégée
(3) Il peut établir, pour toute violation, une description abrégée à utiliser dans les procèsverbaux. (k) sections 230 to 232 of the other Act are replaced by the following:
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Deemed violation
230. (1) A person who, or vessel that, enters into an assurance of compliance is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.
Request for review
(2) A person who, or vessel that, enters into an assurance of compliance may, within 48 hours after the assurance is signed, unless a notice of default is served within that period under section 231.1, request a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under paragraph 232(1)(b) of the facts of the violation and the amount of the penalty is deemed to have been requested.
When assurance of compliance complied with
231. If the Minister is satisfied that an assurance of compliance has been complied with, the Minister must cause a notice to that effect to be served on the person or vessel and, on the service of the notice, (a) no further proceedings may be taken against the person or vessel with respect to the violation in respect of which the assurance was entered into; and (b) any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel.
When assurance of compliance not complied with
231.1 (1) If the Minister is of the opinion that a person who, or vessel that, has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person or vessel to the effect that, unless a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance has been complied with, (a) the person or vessel is liable to pay double the amount of the penalty set out in the assurance; or (b) the security deposited under subparagraph 229(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
Contents of notice
(2) A notice under subsection (1) must include the address at which, and the date, being 30 days after the notice is served, on or before which, a request for a review may be filed.
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No set-off
(3) On the service of a notice of default, the person or vessel served has no right of set-off against any amount spent by the person or vessel under the assurance of compliance.
Request for review
231.2 (1) A person or vessel served with a notice under subsection 231.1(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.
Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(4) The burden is on the Minister to establish that the person or vessel did not comply with the assurance of compliance referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.
Certain defences not available
(5) A person or vessel named in a notice of default does not have a defence by reason that the person or vessel exercised due diligence to comply with the assurance of compliance.
Determination
(6) The member may confirm the Minister’s decision or determine that the person or vessel has complied with the assurance of compliance.
Return of security
231.3 Any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel if (a) the person or vessel pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice of default under section 231.1; or (b) a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance of compliance has been complied with.
2001 Notice of violation
Tribunal d’appel des tr 232. (1) A person or vessel served with a notice of violation under paragraph 229(1)(b) must (a) pay the amount of the penalty; or (b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.
When review not requested
(2) If a review of the facts of the violation is not requested, the person or vessel is deemed to have committed the violation in respect of which the notice was served.
Time and place for review
232.1 (1) On receipt of a request filed under paragraph 232(1)(b), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Burden of proof
(3) The burden is on the Minister to establish that the person or vessel committed the violation referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.
Right of appeal
232.2 (1) The Minister or the person who, or vessel that, requested the review may, within 30 days after the determination, appeal a determination made under subsection 231.2(6) or 232.1(4) to the Tribunal.
Loss of right of appeal
(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.
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(3) The appeal panel of the Tribunal assigned to hear the appeal may (a) in the case of a determination made under subsection 231.2(6), dismiss the appeal or allow the appeal and substitute its own decision; or (b) in the case of a determination made under subsection 232.1(4), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 244(h), substitute its own decision. (l) section 234 of the other Act is replaced by the following:
Debts due to Her Majesty
234. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction: (a) unless a review of the amount of the penalty is requested under paragraph 232(1)(b), the amount of a penalty set out in a notice of violation, from the time the notice is served; (b) the amount that a notice of default served under subsection 231.1(1) provides that a person is liable to pay, from the time the notice is served; (c) the amount of a penalty determined by a member after a review under section 232.1, or decided by an appeal panel after an appeal under section 232.2, from the time of the respective determination or decision; and (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c). (m) subsection 235(1) of the other Act is replaced by the following:
Certificate
235. (1) All or part of a debt referred to in section 234 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be. (n) paragraph 239(1)(a) of the other Act is replaced by the following: (a) the person or vessel pays every penalty that the person or vessel is liable to pay after
Tribunal d’appel des tr a notice of violation, a notice of default, a determination of a member of the Tribunal on review or a decision of an appeal panel of the Tribunal; (o) subsection 239(3) of the other Act is replaced by the following:
Contents of notice
(3) A notice under subsection (2) must include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.
Request for review
(4) The person or vessel may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.
Time and place for review
(5) On receipt of a request filed under subsection (4), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.
Review procedure
(6) The member of the Tribunal assigned to conduct the review must provide the Minister and the person who, or vessel that, filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Determination
(7) The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.
Right of appeal
(8) The person who, or vessel that, requested the review may, within 30 days after the determination, appeal a determination made under subsection (7) to the Tribunal.
Loss of right of appeal
(9) If the person or vessel does not appear at the review hearing, the person or vessel is not entitled to appeal a determination unless the person or vessel establishes that there was sufficient reason to justify the absence.
Disposition of appeal
(10) The appeal panel assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration. (p) paragraph 244(i) of the other Act is repealed.
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Transportation Appeal COMING INTO FORCE
Coming into force
73. The provisions of this Act, other than sections 71 and 72, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 15
An Act to amend the Excise Tax Act
BILL C-13 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Excise Tax Act’’.
SUMMARY This enactment mainly implements measures relating to the Goods and Services Tax and Harmonized Sales Tax (GST/HST), including sales tax initiatives proposed in the February 28, 2000 Budget. These measures are aimed principally at improving the operation and fairness of the GST/HST in the affected areas and ensuring that the legislation accords with the policy intent. This enactment also implements two amendments to the excise tax provisions of the Act. The first is made for greater certainty to clarify the deferral of the existing excise taxes on air conditioners installed in automobiles, and on new heavy automobiles, at the time of importation by a licensed manufacturer or sale to a licensed manufacturer. The second amendment provides discretionary power to the Minister of National Revenue to waive or cancel interest, or penalties calculated in the same manner as interest, under the excise tax system, consistent with the discretion already provided to the Minister in relation to the sales tax and income tax systems.
The principal GST/HST measures included in this enactment are as follows: (1) Export Distribution Centre and Export Trading House Programs: implements new rules that ensure that the GST/HST does not present an impediment to the establishment of North American distribution centres in Canada by permitting export-oriented nonmanufacturing businesses to purchase or import inventory, certain inputs and customers’ goods on a tax-free basis, rather than having to pay the tax and later claim a refund; parallels certain administrative aspects of the new export distribution centre rules in the existing Export Trading House program to ensure consistency between these two measures. ��� ������������� ������������ ��� ��������� �� ��� ������������� �������� ������������� �� ��� ��������� �������� ���������������������
(2) Non-residents and Cross-border Transactions: ensures that no tax is payable on the importation of defective goods imported solely to be replaced under warranty, at no additional cost, by other goods that are subsequently exported; ensures that businesses in Canada can import, on a tax-free basis, non-resident customers’ goods solely for storage or distribution in Canada and subsequent export without incurring cash-flow costs due to the tax; ensures that there is no tax on the service of storing goods for a non-resident business in certain circumstances in which the business is relieved from paying tax on the goods themselves and would otherwise be unable to recover the tax; removes an unnecessary condition on the tax-free treatment of sales of exported railway rolling stock to a non-resident business that would otherwise be unable to recover the tax.
(3) Real Property: implements the New Residential Rental Property Rebate, which is a partial rebate of GST paid in respect of newly constructed or substantially renovated long-term residential rental accommodation; permits a new home used primarily as a place of residence of the owner and also to provide short-term accommodation to the public (e.g., a Bed-and-Breakfast establishment) to qualify for the New Housing Rebate; allows a person who purchased real property and paid tax to recover that tax if the property is returned to the original vendor within one year and pursuant to the original contract; ensures that real property cannot be sold exempt from tax if the seller was previously leasing it to other persons on a taxable basis and was therefore entitled to recover any tax paid on the purchase of the property or improvements to it; clarifies that charities are not required to charge tax on the rental of real property or on any goods rented in conjunction with the real property.
(4) Health: continues in force an existing GST/HST exemption for speech therapy services that are billed by individual practitioners and not covered by the applicable provincial health care plan. The amendment extends the exemption to provide time for the profession to complete a process now under way of becoming regulated in a fifth province. (5) Education: ensures that similar vocational training across the country is provided the same exempt treatment regardless of how vocational schools are regulated in each province; exempts from tax vocational training supplied by a government entity or agency; allows suppliers of vocational training to elect to treat that training as taxable where it is provided to registrants that are able to recover the tax by way of input tax credits.
(6) Electronic Filing: removes the requirement to apply to the Minister of National Revenue for permission to file GST/HST returns electronically (e.g., over the telephone or the Internet) and therefore allows anyone to do so provided they meet the criteria set out by the Minister. (7) Miscellaneous Amendments: corrects ambiguities in existing provisions consistent with current industry practice, administrative interpretation and the underlying policy intent.
49-50 ELIZABETH II
CHAPTER 15 An Act to amend the Excise Tax Act [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. E-15
1. This Act may be cited as the Sales Tax and Excise Tax Amendments Act, 2001. EXCISE TAX ACT
2. (1) Subsection 23(7) of the Excise Tax Act is amended by adding the word ‘‘or’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) the sale of a new motor vehicle designed for highway use, or a chassis therefor, to a person described in paragraph (h) of the definition ‘‘manufacturer or producer’’ in subsection 2(1) who is a manufacturer licensed for the purposes of this Part. R.S., c. 15 (1st Supp.), s. 12(2)
(2) Paragraphs 23(7)(e) and (f) of the Act are repealed. (3) Subsection (1) and subsection (2), to the extent that it repeals paragraph 23(7)(f) of the Act, are deemed to have come into force on January 1, 1994 and apply to sales made after 1993. (4) Subsection (2), to the extent that it repeals paragraph 23(7)(e) of the Act, is deemed to have come into force on January 1, 1994 and applies in respect of motor vehicles, or chassis therefor, imported after 1993 by a person described in paragraph (g) of the definition ‘‘manufacturer or producer’’ in subsection 2(1) of the Act who is a manufacturer licensed for the purposes of Part III of the Act.
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3. (1) The Act is amended by adding the following after section 87: Waiver or cancellation of interest or penalty
88. The Minister may waive or cancel any amount otherwise payable to the Receiver General under this Act that is interest or a penalty calculated in the same manner as interest. (2) Subsection (1) applies to amounts that, but for section 88 of the Act, as enacted by subsection (1), would become payable on or after the day on which this Act is assented to.
1993, c. 27, s. 44(1)
4. (1) The portion of subsection 179(2) of the Act after paragraph (c) is replaced by the following: subsection (1) does not apply to a supply referred to in subparagraph (a)(i) and, except in the case of a supply of a service of shipping the property, any supply made by the registrant and referred to in that subparagraph is deemed to have been made outside Canada.
1993, c. 27, s. 44(1)
(2) The portion of subsection 179(3) of the Act after paragraph (c) is replaced by the following: subsection (1) does not apply to a supply referred to in paragraph (a) and, except in the case of a supply of a service of shipping the property, any supply made by the registrant and referred to in that paragraph is deemed to have been made outside Canada. (3) Section 179 of the Act is amended by adding the following after subsection (6):
Use of railway rolling stock
(7) For the purpose of clause (3)(c)(ii)(C), if the only use of railway rolling stock after physical possession of it is transferred as described in that clause and before it is next exported is for the purpose of transporting tangible personal property or passengers in the course of that exportation and that exportation occurs within sixty days after the day on which the transfer takes place, that use of the rolling stock is deemed to take place entirely outside Canada.
Taxes de vente et (4) Subsections (1) and (2) apply to supplies for which all of the consideration becomes due after February 28, 2000 or is paid after that day without having become due. (5) Subsection (3) applies to railway rolling stock the physical possession of which is transferred by a registrant pursuant to a supply by way of sale by the registrant for which all of the consideration becomes due after February 28, 2000 or is paid after that day without having become due.
1993, c. 27, s. 78(1)
5. (1) Subsection 213.2(1) of the Act is replaced by the following:
Import certificate
213.2 (1) The Minister may, on the request of a registrant who imports goods, issue to the registrant, subject to such conditions as the Minister may specify, a written authorization (in this section referred to as an ‘‘import certificate’’) for the purpose of applying, on and after the effective date specified in the authorization, section 8.1 of Schedule VII in respect of goods of a particular class imported by the registrant, in which event the Minister shall assign to the registrant a number to be disclosed when the goods are accounted for under section 32 of the Customs Act. (2) Subsection (1) is deemed to have come into force on February 1, 1992. 6. (1) Section 215 of the Act is amended by adding the following after subsection (2):
Value of goods re-imported after processing
(3) The value of goods that are being imported for the first time after having been processed (as defined in subsection 2(1) of the Value of Imported Goods (GST/HST) Regulations) outside Canada shall be determined for the purposes of this Division without regard to section 13 of those Regulations if (a) the value of the goods would, but for this subsection, be determined for the purposes of this Division under that section; and (b) they are the same goods, in their processed state, as other goods, or incorporate, as a result of their processing, other goods, that were last imported in circum�
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stances in which no tax was payable under this Division because of section 8.1 or 11 of Schedule VII.
(2) Subsection (1) applies to goods imported after February 1992 except that, with respect to goods imported before January 1, 2001, the reference in subsection 215(3) of the Act, as enacted by subsection (1), to ‘‘section 8.1 or 11’’ shall be read as a reference to ‘‘section 8.1’’. 7. (1) Section 217 of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b.3) and by adding the following after paragraph (c): (d) a supply of property that is a zero-rated supply only because it is included in section 1.1 of Part V of Schedule VI, if the recipient is not acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the recipient and (i) an authorization of the recipient to use the certificate referred to in that section is not in effect at the time the supply is made, or (ii) the recipient does not export the property in the circumstances described in paragraphs 1(b) to (d) of that Part; or (e) a supply of property that is a zero-rated supply only because it is included in section 1.2 of Part V of Schedule VI, if the recipient is not acquiring the property for consumption, use or supply exclusively in the course of commercial activities of the recipient and (i) an authorization of the recipient to use the certificate referred to in that section is not in effect at the time the supply is made, or (ii) the recipient is not acquiring the property for use or supply as domestic inventory or as added property (as those expressions are defined in subsection 273.1(1)). (2) Subsection (1) applies to supplies made after 2000.
Taxes de vente et 8. (1) Subsection 218.1(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (b), by adding the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) every person who is the recipient of a supply that is included in paragraph 217(d) or (e) and that is made in a particular participating province (2) Section 218.1 of the Act is amended by adding the following after subsection (1):
Delivery in a province
(1.1) Section 3 of Part II of Schedule IX applies for the purpose of paragraph (1)(c). (3) Subsection (1) applies to supplies made after 2000. (4) Subsection (2) applies to supplies made after October 4, 2000. 9. (1) Subsection 221(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b) and by adding the following after paragraph (b): (b.1) the supplier and the recipient have made an election under section 2 of Part I of Schedule V in respect of the supply; or
1993, c. 27, s. 85(1)
(2) Subsection 221(3.1) of the Act is repealed. (3) Subsection (1) applies to supplies made after October 4, 2000. (4) Subsection (2) applies to supplies made after 2000.
1993, c. 27, s. 86(1)
10. (1) The portion of subsection 221.1(2) of the Act before paragraph (a) is replaced by the following:
Export certificate
(2) The Minister may, on the application of a person who is registered under Subdivision d, authorize the person to use, beginning on a particular day in a fiscal year of the person and subject to such conditions as the Minister may from time to time specify, a certificate (in this section referred to as an ‘‘export certificate’’) for the purpose of section 1.1 of Part V of Schedule VI, if it can reasonably be expected
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1993, c. 27, s. 86(1)
(2) Subsection 221.1(4) of the Act is replaced by the following:
Notice of authorization
(4) If the Minister authorizes a registrant to use an export certificate, the Minister shall notify the registrant in writing of the authorization, its effective date and its expiry date and the number assigned by the Minister that identifies the registrant or the authorization and that must be disclosed by the registrant when providing the certificate for the purpose of section 1.1 of Part V of Schedule VI. (3) Subsection (1) is deemed to have come into force on January 1, 2001. (4) Subsection (2) applies to any authorization granted to a person after 2000, whether on the first application of the person or on the renewal of an authorization previously granted. 11. (1) The Act is amended by adding the following after section 236.1:
Adjustment if invalid use of export certificate
236.2 (1) If a registrant has received a supply of property (other than a supply that is included in any provision of Schedule VI other than section 1.1 of Part V of that Schedule) from a supplier to whom the registrant has provided an export certificate (within the meaning of section 221.1) for the purpose of that supply and an authorization of the registrant to use the certificate was not in effect at the time the supply was made or the registrant does not export the property in the circumstances described in paragraphs 1(b) to (d) of that Part, the registrant shall, in determining the net tax for the reporting period of the registrant that includes the earliest day on which tax in respect of the supply became payable or would have become payable if the supply were not a zero-rated supply, add an amount equal to interest, at the rate prescribed for the purposes of paragraph 280(1)(b) plus 4% per year compounded daily, on the total amount of tax in respect of the supply that was payable or would have been payable if the supply were not a zero-rated supply, computed for the period beginning on that earliest day and ending on the day on or before which the return under section 238 for that reporting period is required to be filed.
2001 Adjustment if deemed revocation of export certificate
Taxes de vente et (2) If a registrant’s authorization to use an export certificate (within the meaning of section 221.1) is deemed to have been revoked under subsection 221.1(6) effective immediately after the last day of a fiscal year of the registrant, the registrant shall, in determining the net tax for the first reporting period of the registrant following that year, add the amount determined by the formula A x B/12 where A is the total of (a) the product obtained when the rate set out in subsection 165(1) is multiplied by the total of all amounts each of which is consideration paid or payable by the registrant for a supply made in a non-participating province of an item of inventory acquired by the registrant in the year that is a zero-rated supply only because it is included in section 1.1 of Part V of Schedule VI, other than a supply in respect of which the registrant is required under subsection (1) to add an amount in determining net tax for any reporting period, and (b) the product obtained when the total of the rates set out in subsections 165(1) and (2) is multiplied by the total of all amounts each of which is consideration paid or payable by the registrant for a supply made in a participating province of an item of inventory acquired by the registrant in the year that is a zero-rated supply only because it is included in section 1.1 of Part V of Schedule VI, other than a supply in respect of which the registrant is required under subsection (1) to add an amount in determining net tax for any reporting period, and B is the total of 4% and the rate of interest prescribed for the purposes of paragraph 280(1)(b) (expressed as a percentage per year) that is in effect on the last day of that first reporting period following the year.
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Adjustment if invalid use of export distribution centre certificate
236.3 (1) If a registrant has received a supply of property (other than a supply that is included in any provision of Schedule VI other than section 1.2 of Part V of that Schedule) from a supplier to whom the registrant has provided an export distribution centre certificate (within the meaning of section 273.1) for the purpose of that supply and an authorization of the registrant to use the certificate was not in effect at the time the supply was made or the property was not acquired by the registrant for use or supply as domestic inventory or as added property (as those expressions are defined in subsection 273.1(1)) in the course of commercial activities of the registrant, the registrant shall, in determining the net tax for the reporting period of the registrant that includes the earliest day on which tax in respect of the supply became payable or would have become payable if the supply were not a zero-rated supply, add an amount equal to interest, at the rate prescribed for the purposes of paragraph 280(1)(b) plus 4% per year compounded daily, on the total amount of tax in respect of the supply that was payable or that would have been payable in respect of the supply if the supply were not a zero-rated supply, computed for the period beginning on that earliest day and ending on the day on or before which the return under section 238 for that reporting period is required to be filed.
Adjustment if export distribution centre conditions not met
(2) If an authorization granted to a registrant under subsection 273.1(7) is in effect at any time in a fiscal year of the registrant and the export revenue percentage of the registrant (as defined in subsection 273.1(1)) for that year is less than 90% or the circumstances described in paragraph 273.1(11)(a) or (b) exist with respect to the year, the registrant shall, in determining the net tax for the first reporting period of the registrant following the year, add the amount determined by the formula A x B/12 where A is the total of (a) the product obtained when the rate set out in subsection 165(1) is multiplied by
Taxes de vente et the total of all amounts each of which is consideration paid or payable by the registrant for a supply made in a non-participating province of property acquired by the registrant in the year that is a zero-rated supply only because it is included in section 1.2 of Part V of Schedule VI, other than a supply in respect of which the registrant is required under subsection (1) to add an amount in determining net tax for any reporting period, (b) the product obtained when the total of the rates set out in subsections 165(1) and (2) is multiplied by the total of all amounts each of which is consideration paid or payable by the registrant for a supply made in a participating province of property acquired by the registrant in the year that is a zero-rated supply only because it is included in section 1.2 of Part V of Schedule VI, other than a supply in respect of which the registrant is required under subsection (1) to add an amount in determining net tax for any reporting period, and (c) the product obtained when the rate set out in subsection 165(1) is multiplied by the total of all amounts each of which is the value that is or would be, but for subsection 215(2), deemed under subsection 215(1) to be the value, for the purposes of Division III, of a good that was imported by the registrant in the year and in respect of which, by reason only of section 11 of Schedule VII, tax under that Division did not apply, and B is the total of 4% and the rate of interest prescribed for the purposes of paragraph 280(1)(b) (expressed as a percentage per year) that is in effect on the last day of that first reporting period following the year.
(2) Subsection (1) is deemed to have come into force on January 1, 2001 and applies to supplies made after 2000.
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1990, c. 45, s. 12(1)
12. (1) The definition ‘‘single unit residential complex’’ in subsection 254(1) of the Act is replaced by the following:
‘‘single unit residential complex’’ « immeuble d’habitation à logement unique »
‘‘single unit residential complex’’ includes (a) a multiple unit residential complex that does not contain more than two residential units, and (b) any other multiple unit residential complex if it is described by paragraph (c) of the definition ‘‘residential complex’’ in subsection 123(1) and contains one or more residential units that are for supply as rooms in a hotel, motel, inn, boarding house, lodging house or similar premises and that would be excluded from being part of the residential complex if the complex were a residential complex not described by that paragraph.
(2) Subsection (1) is deemed to have come into force on June 1, 1997 and applies for the purpose of determining any rebate of a person under section 254 of the Act in respect of a residential complex ownership of which is transferred to the person after May 1997. 1993, c. 27, s. 110(1)
13. (1) The definition ‘‘single unit residential complex’’ in subsection 254.1(1) of the Act is replaced by the following:
‘‘single unit residential complex’’ « immeuble d’habitation à logement unique »
‘‘single unit residential complex’’ includes (a) a multiple unit residential complex that does not contain more than two residential units, and (b) any other multiple unit residential complex if it is described by paragraph (c) of the definition ‘‘residential complex’’ in subsection 123(1) and contains
Taxes de vente et one or more residential units that are for supply as rooms in a hotel, motel, inn, boarding house, lodging house or similar premises and that would be excluded from being part of the residential complex if the complex were a residential complex not described by that paragraph.
(2) Subsection (1) is deemed to have come into force on June 1, 1997 and applies for the purpose of determining any rebate of a person under section 254.1 of the Act in respect of a residential complex possession of which is given to the person after May 1997. 1993, c. 27, s. 112(1)
14. (1) The definition ‘‘single unit residential complex’’ in subsection 256(1) of the Act is replaced by the following:
‘‘single unit residential complex’’ « immeuble d’habitation à logement unique »
‘‘single unit residential complex’’ includes (a) a multiple unit residential complex that does not contain more than two residential units, and (b) any other multiple unit residential complex if it is described by paragraph (c) of the definition ‘‘residential complex’’ in subsection 123(1) and contains one or more residential units that are for supply as rooms in a hotel, motel, inn, boarding house, lodging house or similar premises and that would be excluded from being part of the residential complex if the complex were a residential complex not described by that paragraph.
(2) Subsection (1) is deemed to have come into force on June 1, 1997 and applies for the purpose of determining any rebate of a person under section 256 of the Act in respect of a residential complex that the person has constructed or substantially renovated, or has engaged another person to construct or substantially renovate, if the
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construction or substantial renovation is not substantially completed until after May 1997. 15. If (a) a person would be entitled to claim a rebate under section 254, 254.1 or 256 of the Act in respect of a single unit residential complex described in paragraph (b) of the definition of that expression in that section, as enacted by subsection 12(1), 13(1) or 14(1), as the case may be, if there were no limitation on the period for filing an application for the rebate or on the number of applications that the person may make with respect to that matter, and (b) the day on or before which the person would, but for this section, be required to file an application for the rebate is before March 31, 2003, despite subsections 254(3), 254.1(3) and 256(3) of the Act, the person has until March 31, 2003 to file an application for the rebate with the Minister of National Revenue. That application may, despite subsection 262(2) of the Act, be the person’s second application for the rebate if, before March 2001, the person had made an application for the rebate and it has been assessed. 16. (1) The Act is amended by adding the following after section 256.1: Definitions
256.2 (1) The definitions in this subsection apply in this section.
‘‘first use’’ « première utilisation »
‘‘first use’’, in respect of a residential unit, means the first use of the unit after the construction or last substantial renovation of the unit or, in the case of a unit that is situated in a multiple unit residential complex, of the complex or addition to the complex in which the residential unit is situated is substantially completed.
‘‘percentage of total floor space’’ « pourcentage de superficie totale »
‘‘percentage of total floor space’’, in respect of a residential unit forming part of a residential complex or part of an addition to a mul2001
Taxes de vente et tiple unit residential complex, means the proportion (expressed as a percentage) that the total square metres of floor space occupied by the unit is of the total square metres of floor space occupied by all of the residential units in the residential complex or addition, as the case may be.
‘‘qualifying portion of basic tax content’’ « fraction admissible de teneur en taxe »
‘‘qualifying portion of basic tax content’’, at a particular time, of property of a person means the amount that would be the basic tax content of the property at that time if that amount were determined without reference to subparagraph (v) of the description of A in the definition ‘‘basic tax content’’ in subsection 123(1) and if no amount of tax under any of subsections 165(2), 212.1(2) and 218.1(1) and Division IV.1 were included in determining that basic tax content.
‘‘qualifying residential unit’’ « habitation admissible »
‘‘qualifying residential unit’’ of a person, at a particular time, means (a) a residential unit of which, at or immediately before the particular time, the person is the owner, a co-owner, a lessee or a sub-lessee or has possession as purchaser under an agreement of purchase and sale, or a residential unit that is situated in a residential complex of which the person is, at or immediately before the particular time, a lessee or a sub-lessee, where (i) at the particular time, the unit is a self-contained residence, (ii) the person holds the unit (A) for the purpose of making exempt supplies of the unit that are included in section 5.1, 6, 6.1 or 7 of Part I of Schedule V, or (B) if the complex in which the unit is situated includes one or more other residential units that would be qualifying residential units of the person without regard to this clause, for use as the primary place of residence of the person,
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Sales Tax and Ex (iii) it is the case, or can reasonably be expected by the person at the particular time to be the case, that the first use of the unit is or will be (A) as the primary place of residence of the person or a relation of the person, or of a lessor of the complex or a relation of that lessor, for a period of at least one year or for a shorter period where the next use of the unit after that shorter period is as described in clause (B), or (B) as a place of residence of individuals, each of whom is given continuous occupancy of the unit, under one or more leases, for a period, throughout which the unit is used as the primary place of residence of that individual, of at least one year or for a shorter period ending when (I) the unit is sold to a recipient who acquires the unit for use as the primary place of residence of the recipient or of a relation of the recipient, or (II) the unit is taken for use as the primary place of residence of the person or a relation of the person or of a lessor of the complex or a relation of that lessor, and (iv) except where subclause (iii)(B)(II) applies, if, at the particular time, the person intends that, after the unit is used as described in subparagraph (iii), the person will occupy it for the person’s own use or the person will supply it by way of lease as a place of residence or lodging for an individual who is a relation, shareholder, member or partner of, or not dealing at arm’s length with, the person, the person can reasonably expect that the unit will be the primary place of residence of the person or of that individual; or (b) a prescribed residential unit of the person.
Taxes de vente et
‘‘relation’’ « proche »
‘‘relation’’ has the meaning assigned by subsection 256(1).
‘‘self-contained residence’’ « résidence autonome »
‘‘self-contained residence’’ means a residential unit (a) that is a suite or room in a hotel, a motel, an inn, a boarding house or a lodging house or in a residence for students, seniors, individuals with a disability or other individuals; or (b) that contains private kitchen facilities, a private bath and a private living area.
Reference to ‘‘lease’’
Rebate in respect of land and building for residential rental accommodation
(2) In this section, a reference to a ‘‘lease’’ shall be read as a reference to a ‘‘lease, licence or similar arrangement’’. (3) If (a) a particular person, other than a cooperative housing corporation, (i) is the recipient of a taxable supply by way of sale (in this subsection referred to as the ‘‘purchase from the supplier’’) from another person of a residential complex or of an interest in a residential complex and is not a builder of the complex, or (ii) is a builder of a residential complex, or of an addition to a multiple unit residential complex, who makes an exempt supply by way of lease included in section 6 or 6.1 of Part I of Schedule V that results in the particular person being deemed under section 191 to have made
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Sales Tax and Ex and received a taxable supply by way of sale (in this subsection referred to as the ‘‘deemed purchase’’) of the complex or addition,
(b) at a particular time, tax first becomes payable in respect of the purchase from the supplier or tax in respect of the deemed purchase is deemed to have been paid by the person, (c) at the particular time, the complex or addition, as the case may be, is a qualifying residential unit of the person or includes one or more qualifying residential units of the person, and (d) the person is not entitled to include the tax in respect of the purchase from the supplier, or the tax in respect of the deemed purchase, in determining an input tax credit of the person, the Minister shall, subject to subsections (7) and (8), pay a rebate to the person equal to the total of all amounts each of which is an amount, in respect of a residential unit that forms part of the residential complex or addition, as the case may be, and is a qualifying residential unit of the person at the particular time, determined by the formula A x ($450,000 - B)/$100,000 where A is the lesser of $8750 and the amount determined by the formula A1 x A2 where A1 is 36% of the total tax under subsection 165(1) that is payable in respect of the purchase from the supplier or is deemed to have been paid in respect of the deemed purchase, and A2 is (i) if the unit is a single unit residential complex or a residential condominium unit, 1, and (ii) in any other case, the unit’s percentage of total floor space, and B is the greater of $350,000 and
Taxes de vente et (i) if the unit is a single unit residential complex or a residential condominium unit, the fair market value of the unit at the particular time, and (ii) in any other case, the amount determined by the formula B1 x B2 where B1 is the unit’s percentage of total floor space, and B2 is the fair market value at the particular time of the residential complex or addition, as the case may be.
Rebate in respect of sale of building and lease of land
(4) If (a) a person, other than a cooperative housing corporation, is a builder of a residential complex or of an addition to a multiple unit residential complex and the person makes (i) an exempt supply by way of sale, included in section 5.1 of Part I of Schedule V, of a building or part of a building, and (ii) an exempt supply, included in section 7 of that Part, of land by way of lease or an exempt supply, included in that section, by way of assignment of a lease in respect of land, (b) the lease provides for continuous possession or use of the land for a period of at least twenty years or it contains an option to purchase the land, (c) those supplies result in the person being deemed under section 191 to have made and received a taxable supply by way of sale of the complex or addition and to have paid tax at a particular time in respect of that supply, (d) in the case of a multiple unit residential complex or an addition to such a complex, the complex or addition, as the case may be, includes, at the particular time, one or more qualifying residential units of the person,
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(e) the person is not entitled to include the tax deemed to have been paid by the person in determining an input tax credit of the person, and (f) in the case of an exempt supply by way of sale of a single unit residential complex or a residential condominium unit, the recipient of that supply is entitled to claim a rebate under subsection 254.1(2) in respect of the complex or unit, the Minister shall, subject to subsections (7) and (8), pay a rebate to the person equal to the total of all amounts each of which is an amount, in respect of a residential unit that forms part of the complex or addition, as the case may be, and is, in the case of a multiple unit residential complex or an addition to such a complex, a qualifying residential unit of the person at the particular time, determined by the formula [A x ($450,000 - B)/$100,000] - C where A is the lesser of $8750 and the amount determined by the formula A1 x A2 where A1 is 36% of the tax under subsection 165(1) that is deemed to have been paid by the person at the particular time, and A2 is (i) if the unit is a single unit residential complex or a residential condominium unit, 1, and (ii) in any other case, the unit’s percentage of total floor space, B is the greater of $350,000 and (i) if the unit is a single unit residential complex or a residential condominium unit, the fair market value of the unit at the particular time, and (ii) in any other case, the amount determined by the formula B1 x B2 where
Taxes de vente et B1 is the unit’s percentage of total floor space, and B2 is the fair market value at the particular time of the residential complex or addition, as the case may be, and C is the amount of the rebate, if any, under subsection 254.1(2) that the recipient of the exempt supply by way of sale is entitled to claim in respect of the complex or unit.
Rebate for cooperative housing corporation
(5) If (a) a cooperative housing corporation (in this subsection referred to as the ‘‘cooperative’’) (i) is the recipient of a taxable supply by way of sale (in this subsection referred to as the ‘‘purchase from the supplier’’) from another person of a residential complex or of an interest in a residential complex and is not a builder of the complex, or (ii) is a builder of a residential complex, or of an addition to a multiple unit residential complex, who makes an exempt supply by way of lease included in section 6 of Part I of Schedule V that results in the cooperative being deemed under section 191 to have made and received a taxable supply by way of sale (in this subsection referred to as the ‘‘deemed purchase’’) of the complex or addition and to have paid tax in respect of that supply, (b) the cooperative is not entitled to include the tax in respect of the purchase from the supplier, or the tax in respect of the deemed purchase, in determining an input tax credit of the cooperative, and (c) at any time at which a residential unit included in the complex is a qualifying residential unit of the cooperative, the cooperative first gives occupancy of the unit after its construction or last substantial renovation under an agreement for a supply of that unit that is an exempt supply
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included in section 6 of Part I of Schedule V, the Minister shall, subject to subsections (7) and (8), pay a rebate to the cooperative in respect of that unit equal to the amount determined by the formula [A x ($450,000 - B)/$100,000] - C where A is the lesser of $8750 and the amount determined by the formula A1 x A2 where A1 is 36% of the total tax under subsection 165(1) that is payable in respect of the purchase from the supplier or is deemed to have been paid in respect of the deemed purchase, and A2 is (i) if the unit is a single unit residential complex, 1, and (ii) in any other case, the unit’s percentage of total floor space, B is the greater of $350,000 and (i) if the unit is a single unit residential complex or a residential condominium unit, the fair market value of the unit at the particular time at which tax first becomes payable in respect of the purchase from the supplier or tax in respect of the deemed purchase is deemed to have been paid by the cooperative, and (ii) in any other case, the amount determined by the formula B1 x B2 where B1 is the unit’s percentage of total floor space, and B2 is the fair market value of the complex at the particular time, and C is the amount of the rebate, if any, under subsection 255(2) that the recipient of the exempt supply of the unit was entitled to claim in respect of the unit.
2001 Rebate for land leased for residential purposes
Taxes de vente et (6) If (a) a person makes an exempt supply of land (i) that is a supply included in paragraph 7(a) of Part I of Schedule V made to a person described in subparagraph (i) of that paragraph, or that is a supply, included in paragraph 7(b) of that Part, of a site in a residential trailer park, and (ii) that results in the person being deemed under any of subsections 190(3) to (5), 200(2), 206(4) and 207(1) to have made and received a taxable supply by way of sale of the land and to have paid tax, at a particular time, in respect of that supply, (b) in the case of an exempt supply of land described in paragraph 7(a) of Part I of Schedule V, the residential unit that is or is to be affixed to the land is or will be so affixed for the purpose of its use and enjoyment as a primary place of residence for individuals, and (c) the person is not entitled to include the tax deemed to have been paid by the person in determining an input tax credit of the person, the Minister shall, subject to subsections (7) and (8), pay a rebate to the person equal to the amount determined by the formula A x ($112,500 - B)/$25,000 where A is (i) in the case of a taxable supply in respect of which the person is deemed to have paid tax calculated on the fair market value of the land, 36% of the tax under subsection 165(1) that is deemed to have been paid in respect of that supply, and (ii) in the case of a taxable supply in respect of which the person is deemed to have paid tax equal to the basic tax content of the land, 36% of the qualifying portion of the basic tax content of the land at the particular time, and
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B is the greater of $87,500 and (i) in the case of a supply of land included in paragraph 7(a) of Part I of Schedule V, the fair market value of the land at the particular time, and (ii) in the case of a supply of a site in a residential trailer park or in an addition to a residential trailer park, the fair market value, at the particular time, of the park or addition, as the case may be, divided by the total number of sites in the park or addition, as the case may be, at the particular time.
Application for rebate and payment of tax
(7) A rebate shall not be paid to a person under this section unless (a) the person files an application for the rebate within two years after (i) in the case of a rebate under subsection (5), the end of the month in which the person makes the exempt supply referred to in subparagraph (5)(a)(ii), (ii) in the case of a rebate under subsection (6), the end of the month in which the tax referred to in that subsection is deemed to have been paid by the person, and (iii) in any other case of a rebate in respect of a residential unit, the end of the month in which tax first becomes payable by the person, or is deemed to have been paid by the person, in respect of the unit or interest in the unit or in respect of the residential complex or addition, or interest therein, in which the unit is situated; (b) if the rebate is in respect of a taxable supply received by the person from another person, the person has paid all of the tax payable in respect of that supply; and (c) if the rebate is in respect of a taxable supply in respect of which the person is deemed to have collected tax in a reporting period of the person, the person has reported
Taxes de vente et the tax in the person’s return under Division V for the reporting period and has remitted all net tax remittable, if any, as reported in that return.
Special rules
(8) For the purposes of this section, (a) if, at any time, substantially all of the residential units in a multiple unit residential complex containing ten or more residential units are residential units in respect of which the condition set out in subparagraph (a)(iii) of the definition ‘‘qualifying residential unit’’ in subsection (1) is satisfied, all of the residential units in the complex are deemed to be residential units in respect of which that condition is satisfied at that time; and (b) except in the case of residential units referred to in paragraph (a) of the definition ‘‘self-contained residence’’ in subsection (1), (i) the two residential units that are located in a multiple unit residential complex containing only those two residential units are deemed to together form a single residential unit, and the complex is deemed to be a single unit residential complex and not to be a multiple unit residential complex, and (ii) if a residential unit (in this subparagraph referred to as a ‘‘specified unit’’) in a building affords direct internal access (with or without the use of a key or similar device) to another area of the building that is all or part of the living area of a particular residential unit, the specified unit is deemed to be part of the particular residential unit and not to be a separate residential unit.
Restrictions
(9) No rebate shall be paid to a person under this section if all or part of the tax included in determining the rebate would otherwise be included in determining a rebate of the person under any of sections 254, 256, 256.1 and 259
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and, in determining the rebate of a person under this section, there shall not be included any amount of tax that the person is, under an Act of Parliament (other than this Act) or any other law, (a) not required to pay or remit; or (b) entitled to recover by way of a rebate, refund or remission.
Repayment of rebate
(10) If a person was entitled to claim a rebate under subsection (3) in respect of a qualifying residential unit (other than a unit located in a multiple unit residential complex) and, within one year after the unit is first occupied as a place of residence after the construction or last substantial renovation of the unit was substantially completed, the person makes a supply by way of sale (other than a supply deemed under section 183 or 184 to have been made) of the unit to a purchaser who is not acquiring the unit for use as the primary place of residence of the purchaser or of a relation of the purchaser, the person shall pay to the Receiver General an amount equal to the rebate, plus interest at the rate prescribed for the purposes of paragraph 280(1)(b), calculated on that amount for the period beginning on the day the rebate was paid or applied to a liability of the person and ending on the day the amount of the rebate is paid by the person to the Receiver General.
(2) Section 256.2 of the Act, as enacted by subsection (1), is deemed to have come into force on February 28, 2000 except that (a) subsections (3) to (5) of that section apply (i) to a taxable supply by way of sale of a residential complex or an interest in a residential complex to a person who is not a builder of the complex, or of a residential complex or an addition to a residential complex to a person who is, otherwise than by reason of subsection 190(1) of the Act, a builder of the
Taxes de vente et complex or addition, as the case may be, only if the construction or last substantial renovation of the complex or addition, as the case may be, began after February 27, 2000, and (ii) to a taxable supply by way of sale of a residential complex or an addition to a residential complex that is deemed to be made to a person who has converted real property for use as the residential complex or the addition to a residential complex and is, as a result, deemed under subsection 190(1) of the Act to be a builder of the complex or addition, only if the construction or alteration necessary to effect the conversion began after February 27, 2000; and (b) subsection (6) of that section does not apply to exempt supplies made before February 28, 2000.
(3) If, in order to satisfy the condition under paragraph 256.2(7)(a) of the Act, as enacted by subsection (1), with respect to a rebate of a person, the person would have to file an application for the rebate before the particular day that is two years after the day on which this Act is assented to, the person shall, despite that paragraph, have until the particular day to file the application. 17. (1) Subsection 261.01(3) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) an amount of tax under subsection 165(1) that was payable or was deemed under section 191 to have been paid by a trust in respect of a taxable supply to the trust of a residential complex, an addition to a residential complex or land if, in respect
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of that supply, the trust was entitled to claim any rebate under section 256.2 or would be so entitled after paying the tax payable in respect of that supply. (2) Subsection (1) is deemed to have come into force on February 28, 2000. 1993, c. 27, s. 117(2) Group of individuals
18. (1) Subsection 262(3) of the Act is replaced by the following: (3) If (a) a supply of a residential complex or a share of the capital stock of a cooperative housing corporation is made to two or more individuals, or (b) two or more individuals construct or substantially renovate, or engage another person to construct or substantially renovate, a residential complex, the references in sections 254 to 256 to a particular individual shall be read as references to all of those individuals as a group, but only one of those individuals may apply for the rebate under section 254, 254.1, 255 or 256, as the case may be, in respect of the complex or share. (2) Subsection (1) is deemed to have come into force on June 1, 1997. 19. (1) The Act is amended by adding the following after section 273:
Subdivision b.2 Export distribution centres Definitions
273.1 (1) The definitions in this subsection apply in this section.
‘‘added property’’ « bien d’appoint »
‘‘added property’’ that is in the possession of a person means tangible personal property (other than property that serves as evidence of the payment of postage) or software that the person incorporates into, attaches to, combines or assembles with, or uses to pack, other property that is not property of the person held otherwise than for sale by the person.
‘‘base value’’ « valeur de base »
‘‘base value’’ of property that a particular person imports or obtains physical possession of in Canada from another person means
Taxes de vente et (a) if the particular person imports the property, the value that is or would be, but for subsection 215(2), deemed under subsection 215(1) to be the value of the property for the purposes of Division III; and (b) in any other case, the fair market value of the property at the time the particular person obtains physical possession of it in Canada.
‘‘basic service’’ « service de base »
‘‘basic service’’ means any of the following services performed at any time in respect of goods, to the extent that, if the goods were held in a bonded warehouse at that time, it would be feasible, given the stage of processing of the goods at that time, to perform that service in the bonded warehouse and it would be permissible to do so according to the Customs Bonded Warehouses Regulations: (a) disassembling or reassembling, if the goods have been assembled or disassembled for packing, handling or transportation purposes; (b) displaying; (c) inspecting; (d) labelling; (e) packing; (f) removing, for the sole purpose of soliciting orders for goods or services, a small quantity of material, or a portion, a piece or an individual object, that represents the goods; (g) storing; (h) testing; or (i) any of the following that do not materially alter the characteristics of the goods: (i) cleaning, (ii) complying with any applicable law of Canada or of a province, (iii) diluting, (iv) normal maintenance and servicing, (v) preserving,
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Sales Tax and Ex (vi) separating defective goods from prime quality goods, (vii) sorting or grading, and (viii) trimming, filing, slitting or cutting.
‘‘bonded warehouse’’ « entrepôt de stockage »
‘‘bonded warehouse’’ has the meaning assigned by subsection 2(1) of the Customs Act.
‘‘customer’s good’’ « produit de client »
‘‘customer’s good’’, in respect of a particular person, means tangible personal property of another person that the particular person imports, or obtains physical possession of in Canada, for the purpose of supplying a service or added property in respect of the tangible personal property.
‘‘domestic inventory’’ « stocks intérieurs »
‘‘domestic inventory’’ of a person means tangible personal property that the person acquires in Canada, or acquires outside Canada and imports, for the purpose of selling the property separately for consideration in the ordinary course of a business carried on by the person.
‘‘export revenue’’ « recettes d’exportation »
‘‘export revenue’’ of a particular person for a fiscal year means the total of all amounts each of which is consideration, included in determining the specified total revenue of the person for the year, for (a) a supply by way of sale of an item of domestic inventory of the person that is made outside Canada or included in Part V of Schedule VI (other than sections 2.1, 3, 11, 14 and 15.1 of that Part); (b) a supply by way of sale of added property acquired by the person for the purpose of processing in Canada particular property where the particular property, or all the products resulting from that processing, as the case may be, are exported, after that processing is complete, without being consumed, used, transformed or further processed, manufactured or produced in Canada by another person except to the extent reasonably necessary or incidental to the transportation of the particular property or those products; or
Taxes de vente et (c) a supply of a service of processing, storing or distributing tangible personal property of another person if the property, or all the products resulting from that processing, as the case may be, are exported, after the processing in Canada, if any, by the particular person is complete, without being consumed, used, transformed or further processed, manufactured or produced in Canada by any person other than the particular person except to the extent reasonably necessary or incidental to the transportation of that property or those products.
‘‘export revenue percentage’’ « pourcentage de recettes d’exportation »
‘‘export revenue percentage’’ of a person for a year means the proportion (expressed as a percentage) that the person’s export revenue for the year is of the person’s specified total revenue for the year.
‘‘finished inventory’’ « stocks finis »
‘‘finished inventory’’ of a person means property of the person (other than capital property) that is in the state at which it is intended to be sold by the person, or to be used by the person as added property, in the course of a business carried on by the person.
‘‘labelling’’ « étiquetage »
‘‘labelling’’ includes marking, tagging and ticketing.
‘‘packing’’ « emballage »
‘‘packing’’ includes unpacking, repacking, packaging and repackaging.
‘‘processing’’ « traitement »
‘‘processing’’ includes adjusting, altering, assembling and any basic service.
‘‘specified total revenue’’ « recettes totales déterminées »
‘‘specified total revenue’’ of a person for a fiscal year of the person means the total of all amounts each of which is consideration, included in determining the income from a business of the person for the year, for a supply made by the person (or that would be made by the person but for any provision of this Part that deems the supply to be made by another person), other than (a) a supply of a service in respect of property that the person neither imports nor obtains physical possession of in Canada for the purpose of providing the service; (b) a supply by way of sale of particular property that the person acquires for the
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Sales Tax and Ex purpose of selling the particular property (or selling other property to which the particular property has been added or with which the particular property has been combined) for consideration but that is neither acquired in Canada nor imported by the person; (c) a supply by way of sale of added property that the person acquires for the purpose of processing tangible personal property that the person neither imports nor obtains physical possession of in Canada; and (d) a supply by way of sale of capital property of the person.
‘‘substantial alteration of property’’ « modification sensible »
‘‘substantial alteration of property’’ by a person, in respect of a fiscal year of the person, means (a) manufacturing or producing, or engaging another person to manufacture or produce, property (other than capital property of the person) at any time in the year in the course of a business carried on by the person; or (b) any processing undertaken by or for the person during the year to bring property of the person to a state at which the property or the product of that processing is finished inventory of the person, if (i) the person’s percentage value added attributable to non-basic services in respect of finished inventory of the person for the year exceeds 10%, and (ii) the person’s percentage total value added in respect of finished inventory of the person for the year exceeds 20%.
Value added attributable to non-basic services in respect of finished inventory
(2) A person’s percentage value added attributable to non-basic services in respect of finished inventory of the person for a fiscal year of the person is the amount (expressed as a percentage) determined by the formula
Taxes de vente et A/B where A is the total of all amounts each of which (a) is part of the total cost to the person of all property that was finished inventory of the person supplied, or used as added property, by the person during the year, and (b) is reasonably attributable to (i) salary, wages or other remuneration paid or payable to employees of the person, excluding any amounts that are reasonably attributable to the performance of basic services, or (ii) consideration paid or payable by the person to engage other persons to perform processing, excluding any portion of such consideration that is reasonably attributed by the other persons to tangible personal property supplied in connection with that processing or that is reasonably attributable to the performance of basic services, and B is the total cost to the person of the property.
Total value added in respect of finished inventory
(3) The percentage total value added in respect of finished inventory of a person for a fiscal year of the person is the amount (expressed as a percentage) that would be determined for the year by the formula in subsection (2) if the total for A in that subsection did not exclude any amounts that are reasonably attributable to the performance of basic services.
Value added attributable to non-basic services in respect of customers’ goods
(4) A person’s percentage value added attributable to non-basic services in respect of customers’ goods for a fiscal year of the person is the amount (expressed as a percentage) determined by the formula A/(A + B) where
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A is the total of all consideration, included in determining the income from a business of the person for the year, for supplies of services, or of added property, in respect of customers’ goods, other than the portion of such consideration that is reasonably attributable to the performance of basic services or to the provision of added property used in the performance of basic services, and B is the total of the base values of the customers’ goods.
Total value added in respect of customers’ goods
(5) A person’s percentage total value added in respect of customers’ goods for a fiscal year of the person is the percentage that would be determined for the year by the formula in subsection (4) if the total for A in that subsection did not exclude any amounts that are reasonably attributable to the performance of basic services or the provision of added property used in the performance of basic services.
Non-arm’s length transactions
(6) For the purpose of determining a particular person’s export revenue percentage or an amount under any of subsections (2) to (5) in respect of finished inventory of a particular person or customers’ goods in respect of a particular person, if a supply between the particular person and another person with whom the particular person is not dealing at arm’s length is made for no consideration or for less than fair market value and any consideration for the supply would be included in determining the income from a business of the particular person for a year, the supply is deemed to have been made for consideration equal to fair market value and that consideration is deemed to be included in determining that income.
Export distribution centre certificate
(7) The Minister may, on the application of a person who is registered under Subdivision d of Division V and who is engaged exclusively in commercial activities, authorize the person to use, beginning on a particular day in
Taxes de vente et a fiscal year of the person and subject to such conditions as the Minister may from time to time specify, a certificate (in this section referred to as an ‘‘export distribution centre certificate’’) for the purposes of section 1.2 of Part V of Schedule VI and section 11 of Schedule VII, if it can reasonably be expected that (a) the person will not engage in the substantial alteration of property in the year; (b) either the person’s percentage value added attributable to non-basic services in respect of customers’ goods for the year will not exceed 10% or the person’s percentage total value added in respect of customers’ goods for the year will not exceed 20%; and (c) the person’s export revenue percentage for the year will be at least 90%.
Application
(8) An application for an authorization to use an export distribution centre certificate shall be made in prescribed form containing prescribed information and be filed with the Minister in prescribed manner.
Notice of authorization
(9) If the Minister authorizes a person to use an export distribution centre certificate, the Minister shall notify the person in writing of the authorization, its effective date and its expiry date and the number assigned by the Minister that identifies the person or the authorization and that must be disclosed by the person when providing the certificate for the purpose of section 1.2 of Part V of Schedule VI or when accounting for imported goods in accordance with section 11 of Schedule VII.
Revocation
(10) The Minister may, after giving a person to whom an authorization has been granted under subsection (7) reasonable written notice, revoke the authorization, effective on a day in a particular fiscal year of the person, if (a) the person fails to comply with any condition attached to the authorization or with any provision of this Part;
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(b) it can reasonably be expected that (i) one or both of the conditions described in paragraphs (7)(a) and (b) would not be met if the fiscal year referred to in those paragraphs were the particular fiscal year, or (ii) the person’s export revenue percentage for the particular fiscal year will be less than 80%; or (c) the person has requested in writing that the authorization be revoked as of that day.
Deemed revocation
(11) Subject to subsection (10), an authorization granted to a person under subsection (7) is deemed to have been revoked, effective immediately after a fiscal year of the person, if (a) the person had engaged in the substantial alteration of property in that year; (b) the person’s percentage value added attributable to non-basic services in respect of customers’ goods for the year exceeds 10% and the person’s percentage total value added in respect of customers’ goods for the year exceeds 20%; or (c) the person’s export revenue percentage for the year is less than 80%.
Cessation
(12) An authorization granted under subsection (7) to a person ceases to have effect immediately before the earlier of (a) the day on which a revocation of the authorization becomes effective, and (b) the day that is three years after the day on which the authorization became effective.
Application after revocation
(13) If an authorization granted to a person under subsection (7) is revoked, effective on a particular day, the Minister shall not grant to the person another authorization under that subsection that becomes effective before (a) if the authorization was revoked in circumstances described in paragraph (10)(a), the day that is two years after the particular day; and
Taxes de vente et (b) in any other case, the first day of the second fiscal year of the person beginning after the particular day. (2) Subsection (1) is deemed to have come into force on January 1, 2001.
1997, c. 10, s. 77(1)
20. (1) Subsections 278.1(2) to (4) of the Act are replaced by the following:
Filing of return by electronic filing
(2) A person who is required to file with the Minister a return under this Part, and who meets the criteria specified in writing by the Minister for the purposes of this section, may file the return by way of electronic filing.
1997, c. 10, s. 77(1)
(2) Subsection 278.1(5) of the Act is renumbered as subsection 278.1(3). (3) Subsections (1) and (2) are deemed to have come into force on October 4, 2000.
1997, c. 10, s. 243(1)
21. (1) Section 2 of Part I of Schedule V to the Act is replaced by the following: 2. A particular supply by way of sale of a residential complex or an interest in a residential complex made by a particular person who is not a builder of the complex or, if the complex is a multiple unit residential complex, an addition to the complex, unless (a) the particular person claimed an input tax credit in respect of the last acquisition by the person of the complex or in respect of an improvement to the complex acquired, imported or brought into a participating province by the person after the complex was last acquired by the person; or (b) the recipient is registered under Subdivision d of Division V of Part IX of the Act and (i) the recipient made a taxable supply by way of sale (in this paragraph referred to as the ‘‘prior supply’’) of the complex or interest to a person (in this paragraph referred to as the ‘‘prior recipient’’) who is the particular person or, if the particular person is a personal trust other than a testamentary trust, the settlor of the trust or, in the case of a testamentary trust that arose as a result of the death of an individual, the deceased individual,
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(2) Subsection (1) applies to supplies made after October 4, 2000.
1997, c. 10, s. 90(1)
22. (1) Paragraph 9(2)(a) of Part I of Schedule V to the Act is replaced by the following: (a) a supply of real property that is, immediately before the time ownership or possession of the property is transferred to the recipient of the supply under the agreement for the supply, capital property used primarily
Taxes de vente et (i) in a business carried on by the individual or trust with a reasonable expectation of profit, or (ii) if the individual or trust is a registrant, (A) in making taxable supplies of the real property by way of lease, licence or similar arrangement, or (B) in any combination of the uses described in subparagraph (i) and clause (A);
1997, c. 10, s. 90(1)
(2) Subsection 9(2) of Part I of Schedule V to the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (d) and by replacing paragraph (e) with the following: (e) a supply of a residential complex or an interest in a residential complex; or (f) a particular supply to a recipient who is registered under Subdivision d of Division V of Part IX of the Act and who has made an election under this paragraph jointly with the individual or trust in prescribed form containing prescribed information and filed with the Minister with the recipient’s return in which the recipient is required to report the tax in respect of the supply, if (i) the recipient made a taxable supply by way of sale (in this paragraph referred to as the ‘‘prior supply’’) of the real property to a person (in this paragraph referred to as the ‘‘prior recipient’’) who is the individual, trust or settlor of the trust and that supply is the last supply by way of sale of the real property to the prior recipient, (ii) the particular day that is the earlier of the day on which, under the agreement for the prior supply, the prior recipient acquired ownership of the real property and the day the prior recipient acquired possession of the real property is not more than one year before the day the particular supply is made, and (iii) the particular supply is made pursuant to a right or obligation of the recipient to purchase the real property that is provided for under the agreement for the prior supply.
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(3) Subsections (1) and (2) apply to supplies by way of sale made after October 4, 2000. 2000, c. 30, s. 113(1)
23. (1) The portion of the definition ‘‘practitioner’’ in section 1 of Part II of Schedule V to the Act before paragraph (b) is replaced by the following: ‘‘practitioner’’, in respect of a supply of optometric, chiropractic, physiotherapy, chiropodic, podiatric, osteopathic, audiological, speech therapy, occupational therapy, psychological or dietetic services, means a person who (a) practises the profession of optometry, chiropractic, physiotherapy, chiropody, podiatry, osteopathy, audiology, speech therapy, occupational therapy, psychology or dietetics, as the case may be,
(2) Subsection (1) applies only to supplies made in 2001. 24. (1) Section 7 of Part II of Schedule V to the Act is amended by adding the following after paragraph (g): (h) speech therapy services; (2) Subsection (1) applies only to supplies made in 2001. 1993, c. 27, s. 159(1); 1997, c. 10, s. 99(1)
25. (1) Section 8 of Part III of Schedule V to the Act is replaced by the following:
8. A supply, other than a zero-rated supply, made by a government, a school authority, a vocational school, a public college or a university of a service of instructing individuals in, or administering examinations in respect of, courses leading to certificates, diplomas, licences or similar documents, or classes or ratings in respect of licences, that attest to the competence of individuals to practise or perform a trade or vocation, except where the supplier has made an election under this section in prescribed form containing prescribed information.
Taxes de vente et (2) Subsection (1) applies (a) to supplies for which all of the consideration becomes due after October 4, 2000 or is paid after that day without having become due; and (b) to any supply for which consideration becomes due or is paid on or before that day if no amount was charged or collected as or on account of tax under Part IX of the Act in respect of the supply on or before that day, except that, with respect to that supply, section 8 of Part III of Schedule V to the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘except where the supplier has made an election under this section in prescribed form containing prescribed information’’.
1997, c. 10, s. 102(1)
26. (1) Paragraph 1(b) of Part V.1 of Schedule V to the Act is replaced by the following: (b) property or a service where the supply is deemed under Part IX of the Act to have been made by the charity (other than a supply that is deemed to have been made under section 187 of the Act or that is deemed only under section 136.1 of the Act to have been made);
1997, c. 10, s. 102(1)
(2) Paragraph 1(c) of Part V.1 of Schedule V to the Act is replaced by the following: (c) particular personal property (other than property that was acquired, manufactured or produced by the charity for the purpose of making a supply by way of sale of the property and property supplied by way of lease, licence or similar arrangement in conjunction with an exempt supply by way of lease, licence or similar arrangement by the charity of real property) where, immediately before the time tax would first become payable in respect of the supply of the particular property if it were a taxable supply, that property is used (otherwise than in making the supply) in commercial activities of the charity or, in the case of capital property, primarily in such activities;
�� 1997, c. 10, s. 102(1)
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(3) Paragraph 1(l) of Part V.1 of Schedule V to the Act is replaced by the following: (l) real property where the supply is made by way of sale and, immediately before the time tax would first become payable in respect of the supply if it were a taxable supply, the property is used (otherwise than in making the supply) primarily in commercial activities of the charity; or
(4) Subsection (1) applies to supplies that are deemed to have been made under section 136.1 of the Act for lease intervals or billing periods beginning on or after April 1, 1997.
(5) Subsections (2) and (3) apply to supplies for which consideration becomes due after 1996 or is paid after 1996 without having become due but do not apply to any supply in respect of which an amount was charged or collected as or on account of tax under Part IX of the Act on or before October 4, 2000. (6) Where (a) before 1997 a charity was using capital property of the charity in making taxable supplies by way of lease, licence or similar arrangement of real property, or of personal property in conjunction with supplies of real property, that were included in paragraph 2(f) or 25(f) or (h) of Part VI of Schedule V to the Act as the Act then read, and (b) because of the enactment of section 1 of Part V.1 of that Schedule, as amended by subsections (2) and (3), the charity (i) is considered to have, at a particular time, ceased to use the capital property, or reduced the extent to which the capital property is used, in commercial activities of the charity, upon beginning to use the property for the purpose of making the charity’s first exempt supply by way of lease, licence or similar arrangement of real property, or of personal property in conjunc2001
Taxes de vente et tion with a supply of real property, included in that section that would have been a taxable supply included in any of the said paragraphs if Part VI of the Schedule had continued to apply to charities, and (ii) is deemed under subsection 200(2) or 206(4) or (5) of the Act to have made, immediately before the particular time, a supply of the capital property, or a portion of it, and to have collected tax in respect of that supply, the charity is not required to include that tax in determining the net tax for any reporting period of the charity and is deemed, for the purpose of determining the basic tax content (as defined in subsection 123(1) of the Act) of the capital property, to have been entitled to recover an amount equal to the tax as a rebate of tax included in the description of A in that definition.
1997, c. 10, s. 104(2)
27. (1) Paragraph 2(b) of Part VI of Schedule V to the Act is replaced by the following: (b) property or a service where the supply is deemed under Part IX of the Act to have been made by the institution (other than a supply that is deemed only under section 136.1 of the Act to have been made); (2) Subsection (1) applies to supplies that are deemed to have been made under section 136.1 of the Act for lease intervals or billing periods beginning on or after April 1, 1997.
1990, c. 45, s. 18
28. (1) Paragraph 25(b) of Part VI of Schedule V to the Act is replaced by the following: (b) real property where the supply is deemed under Part IX of the Act to have
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been made (other than a supply that is deemed only under section 136.1 of the Act to have been made); (2) Subsection (1) applies to supplies that are deemed to have been made under section 136.1 of the Act for lease intervals beginning on or after April 1, 1997.
2000, c. 30, s. 126(2)
29. (1) Paragraph 1(e) of Part V of Schedule VI to the Act is replaced by the following: (e) the person maintains evidence satisfactory to the Minister of the exportation of the property by the recipient. (2) Subsection (1) applies to supplies made after 2000. 30. (1) Part V of Schedule VI to the Act is amended by adding the following after section 1: 1.1 A taxable supply made by way of sale to a recipient (other than a consumer) who is registered under Subdivision d of Division V of Part IX of the Act of tangible personal property (other than property that is an excisable good or is a continuous transmission commodity that is to be transported by or on behalf of the recipient by means of a wire, pipeline or other conduit), where (a) the recipient provides the supplier with an export certificate (within the meaning of section 221.1 of the Act), certifying that an authorization to use the certificate granted to the recipient under that section is in effect at the time the supply is made, and discloses to the supplier the number referred to in subsection 221.1(4) of the Act and the expiry date of the authorization; and (b) if an authorization granted by the Minister to use the certificate is not, in fact, in effect at the time the supply is made or the recipient does not export the property in the circumstances described in paragraphs 1(b) to (d), it is the case that the supplier did not know and could not reasonably be expected to have known, at or before the latest time at which tax in respect of the supply would have become payable if the supply were not
Taxes de vente et a zero-rated supply, that the authorization was not in effect at the time the supply was made or that the recipient would not so export the property.
1.2 A taxable supply made by way of sale to a recipient who is registered under Subdivision d of Division V of Part IX of the Act of property (other than property that is an excisable good or is a continuous transmission commodity that is to be transported by or on behalf of the recipient by means of a wire, pipeline or other conduit), where (a) the recipient provides the supplier with an export distribution centre certificate (within the meaning of section 273.1 of the Act), certifying that an authorization to use the certificate granted to the recipient under that section is in effect at the time the supply is made and that the property is being acquired for use or supply as domestic inventory or as added property of the recipient (as those expressions are defined in that section), and discloses to the supplier the number referred to in subsection 273.1(9) of the Act and the expiry date of the authorization; (b) the total amount, included in a single invoice or agreement, of the consideration for that supply and for all other supplies, if any, that are made to the recipient and are otherwise included in this section is at least $1000; and (c) if an authorization granted by the Minister to use the certificate is not, in fact, in effect at the time the supply is made or the recipient is not acquiring the property for use or supply as domestic inventory or as added property (as those expressions are defined in that section) in the course of commercial activities of the recipient, it is the case that, at or before the latest time at which tax in respect of the supply would have become payable if the supply were not a zero-rated supply, the supplier did not know, and could not reasonably be expected to have known, that the authorization was not in effect at the time the supply was made or that the recipient was not acquiring the property for that purpose.
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(2) Subsection (1) applies to supplies made after 2000 except that, with respect to any supply in respect of which the recipient provides an export certificate (within the meaning of section 221.1 of the Act) that is in effect at the time the supply is made but was issued before January 1, 2001 and not renewed before the supply is made, or was last renewed before January 1, 2001, paragraph 1.1(a) of Part V of Schedule VI to the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘and discloses to the supplier the number referred to in subsection 221.1(4) of the Act and the expiry date of the authorization’’.
31. (1) Schedule VII to the Act is amended by adding the following after section 5: 5.1 Goods that are imported solely for the purpose of fulfilling an obligation under a warranty to repair or replace the goods if defective, where replacement goods are supplied for no additional consideration, other than shipping and handling charges, and exported without being consumed or used in Canada except to the extent reasonably necessary or incidental to the transportation of the goods. (2) Subsection (1) applies to goods imported after February 28, 2000. 32. (1) Schedule VII to the Act is amended by adding the following after section 8: 8.1 Particular goods that are imported at any time by a registrant to whom has been issued an authorization under section 213.2 of the Act that is in effect at that time and that are (a) processed, distributed or stored in Canada and subsequently exported without being consumed or used in Canada except to the extent reasonably necessary or incidental to the transportation of the goods,
Taxes de vente et (b) incorporated or transformed into, attached to, or combined or assembled with, other goods that are processed in Canada and subsequently exported without being consumed or used in Canada except to the extent reasonably necessary or incidental to the transportation of those other goods, or (c) materials (other than fuel, lubricants and plant equipment) directly consumed or expended in the processing in Canada of other goods that are exported without being consumed or used in Canada except to the extent reasonably necessary or incidental to the transportation of those other goods, where (d) the particular goods are imported solely for the purpose of having services performed that are supplied by the registrant to a non-resident person, (e) throughout the period beginning at the time the particular goods are imported by the registrant and ending at the time of the exportation of the particular goods or the products (in this section referred to as the ‘‘processed products’’) resulting from the processing referred to in whichever of paragraphs (a) to (c) applies, (i) neither the particular goods nor the processed products are the property of a person resident in Canada, (ii) the registrant does not have any proprietary interest in the particular goods or the processed products, and (iii) the registrant is not closely related to any non-resident person referred to in paragraph (d) or to any non-resident person whose property are the particular goods or the processed products, (f) at no time during the period referred to in paragraph (e) does the registrant transfer physical possession of the particular goods or the processed products to another person in Canada except for the purpose of their storage, their transportation to or from a place of storage or their transportation in the course of being exported,
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(g) the exportation of the particular goods or the processed products, as the case may be, occurs within four years after the day on which the particular goods are accounted for under section 32 of the Customs Act, (h) at the time of that accounting for the particular goods, the registrant discloses, on the accounting document, the number assigned to the registrant under subsection 213.2(1) of the Act, and (i) the registrant has provided any security that is required under section 213.1 of the Act.
8.2 For the purpose of section 8.1, ‘‘processing’’ includes adjusting, altering, assembling or disassembling, cleaning, maintaining, repairing or servicing, inspecting or testing, labelling, marking, tagging or ticketing, manufacturing, producing, packing, unpacking or repacking, and packaging or repackaging. 8.3 For the purpose of section 8.1, a registrant and another person are closely related to each other if they would be closely related under section 128 of the Act if the other person were a registrant resident in Canada. (2) Subsection (1) is deemed to have come into force on March 1, 1992 and applies to goods imported on or after that day except that, with respect to goods imported before February 29, 2000, paragraph 8.1(a) of Schedule VII to the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘distributed or stored’’. 33. (1) Schedule VII to the Act is amended by adding the following after section 10: 11. A particular good that is an item of domestic inventory, added property or a customer’s good (as those expressions are defined in section 273.1 of the Act) imported at any time by a person who is registered under Subdivision d of Division V of Part IX of the Act and to whom has been granted an
Taxes de vente et authorization that is in effect at that time to use an export distribution centre certificate (within the meaning of that section), if (a) when the particular good is accounted for under section 32 of the Customs Act, the person certifies that the authorization is in effect at that time and discloses the number referred to in subsection 273.1(9) of the Act and the effective date and expiry date of the authorization; and (b) the person has provided any security that is required under section 213.1 of the Act.
(2) Subsection (1) applies to goods imported after 2000.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 17
An Act to amend the Income Tax Act, the Income Tax Application Rules, certain Acts related to the Income Tax Act, the Canada Pension Plan, the Customs Act, the Excise Tax Act, the Modernization of Benefits and Obligations Act and another Act related to the Excise Tax Act
BILL C-22 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Income Tax Act, the Income Tax Application Rules, certain Acts related to the Income Tax Act, the Canada Pension Plan, the Customs Act, the Excise Tax Act, the Modernization of Benefits and Obligations Act and another Act related to the Excise Tax Act’’.
SUMMARY These amendments implement income tax measures announced in the February 2000 budget and the October 2000 Economic Statement and Budget Update, as well as a variety of amendments to the Income Tax Act and related statutes most of which were originally included in Bill C-43 (first reading in September 2000) or otherwise previously announced. The measures of greater significance are summarized below. (1) Government’s Five-Year Tax Reduction Plan: provides $100 billion in tax relief by 2004-2005, reducing the federal income tax paid by individuals resident in Canada by 21% on average. Families with children will receive an even larger tax cut — about 27% on average. Measures included will (a) reduce tax rates at all income levels; (b) eliminate the 5% deficit reduction surtax; (c) increase support for families with children through the Canada Child Tax Benefit; (d) reduce the capital gains inclusion rate; (e) provide a tax-deferred capital gains rollover for investments in shares of certain small- and medium-sized active business corporations; (f) provide a tax-deferred rollover for shares received on certain foreign spin-offs; (g) reduce the 28% general corporate tax rate to 21%; and (h) defer the taxation of certain stock option benefits, increase the stock option deduction and allow an additional deduction for certain stock option shares donated to charity.
(2) Child Care Expense Deduction: increases the maximum annual amount deductible for child care expenses for each eligible child in respect of whom the disability tax credit may be claimed to $10,000 from $7,000.
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(3) Disability Tax Credit: extends the disability tax credit to individuals who, but for extensive therapy, would be markedly restricted in their activities of daily living; provides a supplement for disabled children under the age of 18 years; extends the transferability of the credit to most relatives of a disabled person; and, starting in 2001, increases the amounts on which the credit and the new supplement are calculated to $6,000 and $3,500 from $4,293 and $2,941, respectively.
(4) Caregiver and Infirm Dependant Tax Credits: increases the amount on which each of these credits is calculated to $3,500 from $2,446. (5) Medical Expense Tax Credit: includes reasonable incremental costs relating to the construction of the principal place of residence of an individual who lacks normal physical development or has a severe and prolonged ability impairment to enable the individual to gain access to, or to be mobile within, the residence. (6) Donations of Ecological Gifts: halves the normal capital gains inclusion for an ecological gift the value of which has been certified by the Minister of the Environment; and clarifies rules for calculating any capital gain or loss realized as a result of such a gift. (7) Scholarships, Fellowships and Bursaries: increases by $2,500 the exemption for scholarships, fellowships and bursaries received by a taxpayer in connection with the taxpayer’s enrolment in a program in respect of which the taxpayer may claim the education tax credit. (8) Education Tax Credit: doubles the monthly amounts on which the credit allowed to full-time and part-time students is based to $400 and $120, respectively. (9) Clergy Residence Deduction: provides clearer rules for determining the amount deductible in respect of a clergy’s residence. (10) CPP/QPP Contributions on Self-Employed Earnings: introduces a deduction from business income for one-half of CPP/QPP contributions on self-employed earnings, with the other half of the contributions remaining eligible for the CPP/QPP tax credit. (11) Thin Capitalization: amends the provisions to have the debt-to-equity ratio calculated on an averaged basis, reduces the acceptable debt-to-equity ratio to 2:1 from 3:1 and repeals the exemption for manufacturers of aircraft and aircraft components. (12) Non-Resident-Owned Investment Corporations: phases out, over a three-year period, the special income tax regime for this type of corporation. (13) Weak Currency Debt: limits the deductibility of interest expenses and adjusts foreign exchange gains and losses in respect of weak currency debts and associated hedging transactions. (14) Government Assistance — SR & ED: categorizes as government assistance provincial deductions for SR&ED that exceed the amount of the SR&ED expenditures.
(15) Foreign Tax Credits — Oil and Gas Production Sharing Agreements: clarifies the eligibility for a business foreign tax credit of certain payments made by Canadian resident taxpayers to foreign governments on account of levies imposed in connection with production sharing agreements. (16) Foreign Exploration and Development Expenses (FEDE): amends the rules to require that the FEDE of a claimant must relate to either foreign resource property acquired by the claimant or be made for the purpose of enhancing the value of foreign resource property owned, or to be owned, by the claimant; ensures appropriate treatment of FEDE in computing foreign tax credits, and imposes a 30% restriction for the annual deduction of new FEDE balances. (17) Flow-Through Share Investment Tax Credit: introduces a temporary 15% investment tax credit for certain ‘‘grass roots’’ mineral exploration. (18) Foreign Branch Banking: provides amendments to the Income Tax Act to accommodate branches of foreign banks operating in Canada. (19) Capital Dividend Account: permits amounts distributed to a corporation from a trust in respect of capital gains or capital dividends realized or received by the trust to be included in the corporation’s capital dividend account. (20) Taxpayer Migration: enhances Canada’s ability to tax the gains accrued by emigrants while they were resident in Canada. (21) Trusts: addresses the tax treatment of property distributed from a Canadian trust to a non-resident beneficiary and introduces new measures dealing with the tax treatment of bare, protective and similar trusts as well as mutual fund trusts, health and welfare trusts and trusts governed by registered retirement savings plans and registered retirement income funds. (22) Advertising Expenses: implements the income tax aspects of the June 1999 agreement between Canada and the United States concerning periodicals. (23) Simultaneous Control: confirms that, in a chain of corporations, a corporation is controlled by its immediate parent even where the parent is itself controlled by a third corporation. (24) Foreign Affiliates Held by Partnerships: ensures that Canadian corporations that are members of a partnership that holds shares of non-resident corporations are provided relief from double taxation on the income derived from those shares and receive the same tax treatment in respect of the disposition of those shares as if they held the shares directly. (25) Foreign Affiliate Losses: provides that foreign accrual property losses of a foreign affiliate may be carried back three years and forward seven years for the purpose of determining the affiliate’s foreign accrual property income for a particular taxation year. (26) Capital Tax: extends to the end of 2000 the additional capital tax on life insurance corporations.
(27) Stop-Loss Rule: extends the rule that suspends recognition of a loss when a corporation, trust or partnership transfers depreciable property to transferors who are affiliated persons (including individuals). (28) Types of Property: amends the corporate divisive reorganization rules to no longer require that each transferee corporation receive its pro-rata share of each type of property in the case of certain public corporate divisive reorganizations. (29) Replacement Property Rules: provides that the replacement property rules do not apply to shares of the capital stock of corporations. (30) Limited Liability Partnerships: ensures that a member of a ‘‘limited liability partnership’’ (under provincial law) is not automatically a ‘‘limited partner’’ for the purposes of the Income Tax Act.
(31) Non-Resident Film and Video Actors: applies a new 23% withholding tax on payments to non-resident film and video actors and their corporations, with an option to have the actor and corporation pay regular Part I tax on the net earnings instead.
49-50 ELIZABETH II
CHAPTER 17 An Act to amend the Income Tax Act, the Income Tax Application Rules, certain Acts related to the Income Tax Act, the Canada Pension Plan, the Customs Act, the Excise Tax Act, the Modernization of Benefits and Obligations Act and another Act related to the Excise Tax Act
[Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
1. This Act may be cited as the Income Tax Amendments Act, 2000. PART 1
R.S., c. 1 (5th Supp.)
Agreement to issue securities to employees
Order of disposition of securities
INCOME TAX ACT 2. (1) The portion of subsection 7(1) of the Income Tax Act before paragraph (a) is replaced by the following: 7. (1) Subject to subsections (1.1) and (8), where a particular qualifying person has agreed to sell or issue securities of the particular qualifying person (or of a qualifying person with which it does not deal at arm’s length) to an employee of the particular qualifying person (or of a qualifying person with which the particular qualifying person does not deal at arm’s length), (2) Subsection 7(1.3) of the Act is replaced by the following: (1.3) For the purposes of this subsection, subsections (1.1) and (8), subdivision c, paragraph 110(1)(d.01), subparagraph 110(1)(d.1)(ii) and subsections 110(2.1) and
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Disposition of newly-acquired security
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147(10.4), and subject to subsection (1.31) and paragraph (14)(c), a taxpayer is deemed to dispose of securities that are identical properties in the order in which the taxpayer acquired them and, for this purpose, (a) where a taxpayer acquires a particular security (other than under circumstances to which subsection (1.1) or (8) or 147(10.1) applies) at a time when the taxpayer also acquires or holds one or more other securities that are identical to the particular security and are, or were, acquired under circumstances to which any of subsections (1.1), (8) or 147(10.1) applied, the taxpayer is deemed to have acquired the particular security at the time immediately preceding the earliest of the times at which the taxpayer acquired those other securities; and (b) where a taxpayer acquires, at the same time, two or more identical securities under circumstances to which either subsection (1.1) or (8) applied, the taxpayer is deemed to have acquired the securities in the order in which the agreements under which the taxpayer acquired the rights to acquire the securities were made. (1.31) Where a taxpayer acquires, at a particular time, a particular security under an agreement referred to in subsection (1) and, on a day that is no later than 30 days after the day that includes the particular time, the taxpayer disposes of a security that is identical to the particular security, the particular security is deemed to be the security that is so disposed of if (a) no other securities that are identical to the particular security are acquired, or disposed of, by the taxpayer after the particular time and before the disposition; (b) the taxpayer identifies the particular security as the security so disposed of in the taxpayer’s return of income under this Part for the year in which the disposition occurs; and (c) the taxpayer has not so identified the particular security, in accordance with this subsection, in connection with the disposition of any other security. (3) Paragraph 7(1.4)(a) of the Act is replaced by the following:
Impôt sur le re (a) a taxpayer disposes of rights under an agreement referred to in subsection (1) to acquire securities of a particular qualifying person that made the agreement or of a qualifying person with which it does not deal at arm’s length (which rights and securities are referred to in this subsection as the ‘‘exchanged option’’ and the ‘‘old securities’’, respectively), (4) Paragraph 7(1.4)(d) of the Act is replaced by the following: (d) the taxpayer is deemed (other than for the purposes of subparagraph (9)(d)(ii)) not to have disposed of the exchanged option and not to have acquired the new option, (5) Subsection 7(1.5) of the Act is replaced by the following:
Rules where securities exchanged
(1.5) For the purposes of this section and paragraphs 110(1)(d) to (d.1), where (a) a taxpayer disposes of or exchanges securities of a particular qualifying person that were acquired by the taxpayer under circumstances to which either subsection (1.1) or (8) applied (in this subsection referred to as the ‘‘exchanged securities’’), (b) the taxpayer receives no consideration for the disposition or exchange of the exchanged securities other than securities (in this subsection referred to as the ‘‘new securities’’) of (i) the particular qualifying person, (ii) a qualifying person with which the particular qualifying person does not deal at arm’s length immediately after the disposition or exchange, (iii) a corporation formed on the amalgamation or merger of the particular qualifying person and one or more other corporations, (iv) a mutual fund trust to which the particular qualifying person has transferred property in circumstances to which subsection 132.2(1) applied, or (v) a qualifying person with which the corporation referred to in subparagraph (iii) does not deal at arm’s length immediately after the disposition or exchange, and
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(c) the total value of the new securities immediately after the disposition or exchange does not exceed the total value of the old securities immediately before the disposition or exchange, the following rules apply: (d) the taxpayer is deemed not to have disposed of or exchanged the exchanged securities and not to have acquired the new securities, (e) the new securities are deemed to be the same securities as, and a continuation of, the exchanged securities, except for the purpose of determining if the new securities are identical to any other securities, (f) the qualifying person that issued the new securities is deemed to be the same person as, and a continuation of, the qualifying person that issued the exchanged securities, and (g) where the exchanged securities were issued under an agreement, the new securities are deemed to have been issued under that agreement. Emigrant
(1.6) For the purposes of this section and paragraph 110(1)(d.1), a taxpayer is deemed not to have disposed of a share acquired under circumstances to which subsection (1.1) applied solely because of subsection 128.1(4).
Rights ceasing to be exercisable
(1.7) For the purposes of paragraphs (1)(b) and 110(1)(d), where a taxpayer receives at a particular time one or more particular amounts in respect of rights of the taxpayer to acquire securities under an agreement referred to in subsection (1) ceasing to be exercisable in accordance with the terms of the agreement, and the cessation would not, if this Act were read without reference to this subsection, constitute a transfer or disposition of those rights by the taxpayer, (a) the taxpayer is deemed to have disposed of those rights at the particular time to a person with whom the taxpayer was dealing at arm’s length and to have received the particular amounts as consideration for the disposition; and
Impôt sur le re (b) for the purpose of determining the amount, if any, of the benefit that the taxpayer is deemed by paragraph (1)(b) to have received as a consequence of the disposition referred to in paragraph (a), the taxpayer is deemed to have paid an amount to acquire those rights equal to the amount, if any, by which (i) the amount paid by the taxpayer to acquire those rights (determined without reference to this subsection) exceeds (ii) the total of all amounts each of which is an amount received by the taxpayer before the particular time in respect of the cessation.
(6) The portion of subsection 7(2) of the Act before paragraph (a) is replaced by the following: Securities held by trustee
(2) If a security is held by a trustee in trust or otherwise, whether absolutely, conditionally or contingently, for an employee, the employee is deemed, for the purposes of this section and paragraphs 110(1)(d) to (d.1), (7) The portion of paragraph 7(6)(a) of the Act before subparagraph (i) is replaced by the following: (a) for the purposes of this section (other than subsection (2)) and paragraphs 110(1)(d) to (d.1), (8) The portion of subsection 7(7) of the Act before the definition ‘‘qualifying person’’ is replaced by the following:
Definitions
(7) The definitions in this subsection apply in this section and in subsection 47(3), paragraphs 53(1)(j), 110(1)(d) and (d.01) and subsections 110(1.5), (1.6) and (2.1). (9) Section 7 of the Act is amended by adding the following after subsection (7):
� Deferral in respect of non-CCPC employee options
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Income Ta
(8) Where a particular qualifying person (other than a Canadian-controlled private corporation) has agreed to sell or issue securities of the particular qualifying person (or of a qualifying person with which it does not deal at arm’s length) to a taxpayer who is an employee of the particular qualifying person (or of a qualifying person with which the particular qualifying person does not deal at arm’s length), in applying paragraph (1)(a) in respect of the taxpayer’s acquisition of a security under the agreement, the reference in that paragraph to ‘‘the taxation year in which the employee acquired the securities’’ shall be read as a reference to ‘‘the taxation year in which the employee disposed of or exchanged the securities’’ if (a) the acquisition is a qualifying acquisition; and (b) the taxpayer elects, in accordance with subsection (10), to have this subsection apply in respect of the acquisition.
Meaning of ‘‘qualifying acquisition’’
(9) For the purpose of subsection (8), a taxpayer’s acquisition of a security under an agreement made by a particular qualifying person is a qualifying acquisition if (a) the acquisition occurs after February 27, 2000; (b) the taxpayer would, if this Act were read without reference to subsection (8), be entitled to deduct an amount under paragraph 110(1)(d) in respect of the acquisition in computing income for the taxation year in which the security is acquired; (c) where the particular qualifying person is a corporation, the taxpayer was not, at the time immediately after the agreement was made, a person who would, if the references in the portion of the definition ‘‘specified shareholder’’ in subsection 248(1) before paragraph (a) to ‘‘in a taxation year’’ and ‘‘at any time in the year’’ were read as references to ‘‘at any time’’ and ‘‘at that time’’, respectively, be a specified shareholder of any of (i) the particular qualifying person,
Impôt sur le re (ii) any qualifying person that, at that time, was an employer of the taxpayer and was not dealing at arm’s length with the particular qualifying person, and (iii) the qualifying person of which the taxpayer had, under the agreement, a right to acquire a security; and (d) where the security is a share, (i) it is of a class of shares that, at the time the acquisition occurs, is listed on a prescribed stock exchange, and (ii) where rights under the agreement were acquired by the taxpayer as a result of one or more dispositions to which subsection (1.4) applied, none of the rights that were the subject of any of the dispositions included a right to acquire a share of a class of shares that, at the time the rights were disposed of, was not listed on any prescribed stock exchange.
Election for the purpose of subsection (8)
(10) For the purpose of subsection (8), a taxpayer’s election to have that subsection apply in respect of the taxpayer’s acquisition of a particular security under an agreement referred to in subsection (1) is in accordance with this subsection if (a) the election is filed, in the prescribed form and manner at a particular time that is before January 16 of the year following the year in which the acquisition occurs, with a person who would be required to file an information return in respect of the acquisition if subsection (8) were read without reference to paragraph (8)(b); (b) the taxpayer is resident in Canada at the time the acquisition occurs; and (c) the specified value of the particular security does not exceed the amount by which (i) $100,000 exceeds (ii) the total of all amounts each of which is the specified value of another security acquired by the taxpayer at or before the
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Income Ta particular time under an agreement referred to in subsection (1), where (A) the taxpayer’s right to acquire that other security first became exercisable in the year that the taxpayer’s right to acquire the particular security first became exercisable, and (B) at or before the particular time, the taxpayer has elected in accordance with this subsection to have subsection (8) apply in respect of the acquisition of that other security.
Meaning of ‘‘specified value’’
(11) For the purpose of paragraph (10)(c), the specified value of a particular security acquired by a taxpayer under an agreement referred to in subsection (1) is the amount determined by the formula A/B where A is the fair market value, determined at the time the agreement was made, of a security that was the subject of the agreement at the time the agreement was made; and B is (a) except where paragraph (b) applies, 1, and (b) where the number or type of securities that are the subject of the agreement has been modified in any way after the time the agreement was made, the number of securities (including any fraction of a security) that it is reasonable to consider the taxpayer would, at the time the particular security was acquired, have a right to acquire under the agreement in lieu of one of the securities that was the subject of the agreement at the time the agreement was made.
Identical options — order of exercise
(12) Unless the context otherwise requires, a taxpayer is deemed to exercise identical rights to acquire securities under agreements referred to in subsection (1)
Impôt sur le re (a) where the taxpayer has designated an order, in the order so designated; and (b) in any other case, in the order in which those rights first became exercisable and, in the case of identical rights that first became exercisable at the same time, in the order in which the agreements under which those rights were acquired were made.
Revoked election
(13) For the purposes of this section (other than this subsection), an election filed by a taxpayer to have subsection (8) apply to the taxpayer’s acquisition of a security is deemed never to have been filed if, before January 16 of the year following the year in which the acquisition occurs, the taxpayer files with the person with whom the election was filed a written revocation of the election.
Deferral deemed valid
(14) For the purposes of this section and paragraph 110(1)(d), where a taxpayer files an election to have subsection (8) apply in respect of the taxpayer’s acquisition of a particular security and subsection (8) would not apply to the acquisition if this section were read without reference to this subsection, the following rules apply if the Minister so notifies the taxpayer in writing: (a) the acquisition is deemed, for the purpose of subsection (8), to be a qualifying acquisition; (b) the taxpayer is deemed to have elected, in accordance with subsection (10), at the time of the acquisition, to have subsection (8) apply in respect of the acquisition; and (c) if, at the time the Minister sends the notice, the taxpayer has not disposed of the security, the taxpayer is deemed (other than for the purpose of subsection (1.5)) to have disposed of the security at that time and to have acquired the security immediately after that time other than under an agreement referred to in subsection (1).
Withholding
(15) Where, because of subsection (8), a taxpayer is deemed by paragraph (1)(a) to have received a benefit from employment in a taxation year, the benefit is deemed to be nil for the purpose of subsection 153(1).
�� Prescribed form for deferral
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Income Ta
(16) Where, at any time in a taxation year, a taxpayer holds a security that was acquired under circumstances to which subsection (8) applied, the taxpayer shall file with the Minister, with the taxpayer’s return of income for the year, a prescribed form containing prescribed information relating to the taxpayer’s acquisition and disposition of securities under agreements referred to in subsection (1). (10) Subsections (1), (4), (6), (7) and (9) apply to the 2000 and subsequent taxation years except that (a) a share acquired in 2000 under an agreement referred to in subsection 7(1) of the Act, as enacted by subsection (1), is deemed to comply with the requirements of paragraph 7(9)(d) of the Act, as enacted by subsection (9), if, at all times during the period beginning at the time the agreement was made (determined without reference to subsection 7(1.4) of the Act, as enacted by subsections (3) and (4)) and ending at the time the share was acquired, the class of shares to which the share belongs was listed on a prescribed stock exchange; (b) an election under subsection 7(10) of the Act, as enacted by subsection (9), to have subsection 7(8) of the Act, as enacted by subsection (9), apply in respect of a security acquired in 2000 is deemed to have been filed in a timely manner if it is filed on or before the day that is 60 days after the day on which this Act receives royal assent; and (c) a written request under subsection 7(13) of the Act, as enacted by subsection (9), to revoke an election in respect of a security acquired in 2000 is deemed to have been filed in a timely manner if it is filed on or before the day that is 60 days after the day on which this Act receives royal assent.
Impôt sur le re (11) Subsection (2) applies to securities acquired, but not disposed of, before February 28, 2000 and to securities acquired after February 27, 2000. (12) Subsection (3) applies to the 1998 and subsequent taxation years. (13) Subsection 7(1.5) of the Act, as enacted by subsection (5), applies to dispositions and exchanges of securities by a taxpayer that occur after February 27, 2000. (14) Subsection 7(1.6) of the Act, as enacted by subsection (5), applies after 1992. (15) Subsection 7(1.7) of the Act, as enacted by subsection (5), applies to amounts received on or after March 16, 2001, other than amounts received on or after that day (a) pursuant to an agreement in writing made before that day in settlement of claims arising as a result of a cessation occurring before that day; or (b) pursuant to an order or judgment issued before that day in respect of claims arising as a result of a cessation occurring before that day. (16) Subsection (8) applies after 1997, except that (a) it does not apply to a right under an agreement to which subsection 7(7) of the Act, as enacted by subsection 3(7) of chapter 22 of the Statutes of Canada, 1999, does not (except for the purpose of applying paragraph 7(3)(b) of the Act) apply; and (b) before 2000, the portion of subsection 7(7) of the Act, as enacted by subsection (8), before the definition ‘‘qualifying person’’ shall be read as follows: (7) The definitions in this subsection apply in this section and in paragraph 110(1)(d) and subsections 110(1.5) and (1.6).
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3. (1) Paragraph 8(1)(a) of the Act is repealed. (2) Paragraph 8(1)(c) of the Act is replaced by the following: Clergy residence
(c) where, in the year, the taxpayer (i) is a member of the clergy or of a religious order or a regular minister of a religious denomination, and (ii) is (A) in charge of a diocese, parish or congregation, (B) ministering to a diocese, parish or congregation, or (C) engaged exclusively in full-time administrative service by appointment of a religious order or religious denomination, the amount, not exceeding the taxpayer’s remuneration for the year from the office or employment, equal to (iii) the total of all amounts including amounts in respect of utilities, included in computing the taxpayer’s income for the year under section 6 in respect of the residence or other living accommodation occupied by the taxpayer in the course of, or because of, the taxpayer’s office or employment as such a member or minister so in charge of or ministering to a diocese, parish or congregation, or so engaged in such administrative service, or (iv) rent and utilities paid by the taxpayer for the taxpayer’s principal place of residence (or other principal living accommodation) , ordinarily occupied during the year by the taxpayer, or the fair rental value of such a residence (or other living accommodation), including utilities, owned by the taxpayer or the taxpayer’s spouse or common-law partner, not exceeding the lesser of (A) the greater of (I) $1,000 multiplied by the number of months (to a maximum of ten) in the year, during which the taxpayer is a person described in subparagraphs (i) and (ii), and
Impôt sur le re (II) one-third of the taxpayer’s remuneration for the year from the office or employment, and (B) the amount, if any, by which (I) the rent paid or the fair rental value of the residence or living accommodation, including utilities exceeds (II) the total of all amounts each of which is an amount deducted, in connection with the same accommodation or residence, in computing an individual’s income for the year from an office or employment or from a business (other than an amount deducted under this paragraph by the taxpayer), to the extent that the amount can reasonably be considered to relate to the period, or a portion of the period, in respect of which an amount is claimed by the taxpayer under this paragraph;
(3) Subsection 8(10) of the Act is replaced by the following: Certificate of employer
(10) An amount otherwise deductible for a taxation year under paragraph (1)(c), (f), (h) or (h.1) or subparagraph (1)(i)(ii) or (iii) by a taxpayer shall not be deducted unless a prescribed form, signed by the taxpayer’s employer certifying that the conditions set out in the applicable provision were met in the year in respect of the taxpayer, is filed with the taxpayer’s return of income for the year. (4) Subsections (1) and (3) apply to the 1998 and subsequent taxation years except that in its application to the 1998 to 2000 taxation years the reference to ‘‘paragraph (1)(c), (f)’’ in subsection 8(10), as enacted by subsection (3), shall be read as a reference to ‘‘paragraph (1)(f)’’.
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(5) Subsection (2) applies to the 2001 and subsequent taxation years. 4. (1) Section 10 of the Act is amended by adding the following after subsection (11): Removing property from inventory
(12) If at any time a non-resident taxpayer ceases to use, in connection with a business or part of a business carried on by the taxpayer in Canada immediately before that time, a property that was immediately before that time described in the inventory of the business or the part of the business, as the case may be, (other than a property that was disposed of by the taxpayer at that time), the taxpayer is deemed (a) to have disposed of the property immediately before that time for proceeds of disposition equal to its fair market value at that time; and (b) to have received those proceeds immediately before that time in the course of carrying on the business or the part of the business, as the case may be.
Adding property to inventory
(13) If at any time a property becomes included in the inventory of a business or part of a business that a non-resident taxpayer carries on in Canada after that time (other than a property that was, otherwise than because of this subsection, acquired by the taxpayer at that time), the taxpayer is deemed to have acquired the property at that time at a cost equal to its fair market value at that time.
Work in progress
(14) For the purposes of subsections (12) and (13), property that is included in the inventory of a business includes property that would be so included if paragraph 34(a) did not apply. (2) Subsection (1) applies after December 23, 1998. 5. (1) Paragraph 12(1)(c) of the Act is replaced by the following:
Interest
(c) subject to subsections (3) and (4.1), any amount received or receivable by the taxpayer in the year (depending on the method
Impôt sur le re regularly followed by the taxpayer in computing the taxpayer’s income) as, on account of, in lieu of payment of or in satisfaction of, interest to the extent that the interest was not included in computing the taxpayer’s income for a preceding taxation year; (2) Paragraph 12(1)(i.1) of the Act is replaced by the following:
Bad debts recovered
(i.1) where an amount is received in the year on account of a debt in respect of which a deduction for bad debts was made under subsection 20(4.2) in computing the taxpayer’s income for a preceding taxation year, the amount determined by the formula A x B/C where A is 1/2 of the amount so received, B is the amount that was deducted under subsection 20(4.2) in respect of the debt, and C is the total of the amount that was so deducted under subsection 20(4.2) and the amount that was deemed by that subsection or subsection 20(4.3) to be an allowable capital loss in respect of the debt; (3) Subsection 12(1) of the Act is amended by adding the following after paragraph (o):
Foreign oil and gas production taxes
(o.1) the total of all amounts, each of which is the taxpayer’s production tax amount for a foreign oil and gas business of the taxpayer for the year, within the meaning assigned by subsection 126(7); (4) Subsection (1) applies to taxation years that end after September 1997. (5) Subsection (2) applies in respect of taxation years that end after February 27, 2000 except that, for taxation years that ended after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘1/2’’ in the description of A in paragraph 12(1)(i.1) of the Act, as enacted by subsection (2), shall be read as a reference to the fraction ‘‘2/3’’.
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(6) Subsection (3) applies to taxation years of a taxpayer that begin after the earlier of (a) December 31, 1999; and (b) where, for the purposes of subsection 117(26), a date is designated in writing by the taxpayer and the designation is filed with the Minister of National Revenue on or before the taxpayer’s filing-due date for the taxpayer’s taxation year that includes the day on which this Act receives royal assent, the later of (i) the date so designated, and (ii) December 31, 1994.
6. (1) Clause 13(7)(b)(ii)(B) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’ and by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (2) Clause 13(7)(d)(i)(B) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’ and by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (3) Paragraph 13(7)(e) of the Act is amended by replacing the references to the fraction ‘‘3/4’’ with references to the fraction ‘‘1/2’’ and by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (4) Subparagraph 13(7)(f)(ii) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (5) The definition ‘‘disposition of property’’ in subsection 13(21) of the Act is repealed. (6) Subparagraph 13(21.1)(b)(ii) of the Act is amended by replacing the reference to the fraction ‘‘1/4’’ with a reference to the fraction ‘‘1/2’’.
Impôt sur le re (7) Paragraph 13(21.2)(a) of the Act is replaced by the following: (a) a person or partnership (in this subsection referred to as the ‘‘transferor’’) disposes at a particular time (otherwise than in a disposition described in any of paragraphs (c) to (g) of the definition ‘‘superficial loss’’ in section 54) of a depreciable property of a particular prescribed class of the transferor, (8) Subparagraph 13(21.2)(e)(ii) of the Act is replaced by the following: (ii) where two or more properties of a prescribed class of the transferor are disposed of at the same time, subparagraph (i) applies as if each property so disposed of had been separately disposed of in the order designated by the transferor or, if the transferor does not designate an order, in the order designated by the Minister, (9) Section 13 of the Act is amended by adding the following after subsection (33):
Deductible expenses
(34) Notwithstanding paragraph 1102(1)(a) of the Regulations, for taxation years that end after 1987 and before December 6, 1996, the classes of property prescribed for the purpose of paragraph 20(1)(a) are deemed to include property of a taxpayer that, if the Act were read without reference to sections 66 to 66.4, would be included in one of the classes. (10) Subsections (1) and (2) apply to changes in use of property that occur in taxation years that end after February 27, 2000 except that, for changes in use of property that occur in a taxpayer’s taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the references in clauses 13(7)(b)(ii)(B) and 13(7)(d)(i)(B) of the Act, as enacted by subsections (1) and (2), respectively, to the fraction ‘‘1/2’’ shall be read as references to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpay��
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er for the year and the references to the word ‘‘twice’’ shall be read as references to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the taxpayer for the year, multiplied by’’.
(11) Subsection (3) applies to acquisitions of property that occur in taxation years that end after February 27, 2000 except that, for acquisitions of property in a taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, of a person or partnership from whom the property was acquired, the references in paragraph 13(7)(e) of the Act, as enacted by subsection (3), to the fraction ‘‘1/2’’ shall be read as references to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the person or partnership from whom the taxpayer acquired the property for the year in which the person or partnership disposed of the property, and the references to the word ‘‘twice’’ shall be read as references to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the person or partnership from whom the taxpayer acquired the property for the year in which the person or partnership disposed of the property, multiplied by’’.
(12) Subsection (4) applies to acquisitions of property that occur in taxation years that end after February 27, 2000 except that, for acquisitions of property that occur in a taxpayer’s taxation year that includes February 28, 2000 or October 17, 2000, or
Impôt sur le re began after February 28, 2000 and ended before October 17, 2000, the reference in subparagraph 13(7)(f)(ii) of the Act, as enacted by subsection (4), to the fraction ‘‘1/2’’ shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year.
(13) Subsection (5) applies to transactions and events that occur after December 23, 1998. (14) Subsection (6) applies to taxation years that end after February 27, 2000 except that, for a taxpayer’s taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference in subparagraph 13(21.1)(b)(ii) of the Act, as enacted by subsection (6), to the fraction ‘‘1/2’’ shall be read as a reference to the fraction determined when the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year is subtracted from 1. (15) Subsections (7) and (8) apply after November 1999 except that, if an individual (other than a trust) so elects in writing and files the election with the Minister of National Revenue on or before the individual’s filing-due date for the taxation year in which this Act receives royal assent, subsection (7) does not apply in respect of the disposition of a property by the individual before July 2000 (a) to a person who was obliged on November 30, 1999 to acquire the property pursuant to the terms of an agreement in writing made on or before that day; or (b) in a transaction, or as part of a series of transactions, the arrangements for which, evidenced in writing, were substantially advanced before December 1999, other than a transaction or series of
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transactions a main purpose of which can reasonably be considered to have been to enable an unrelated person to obtain the benefit of (i) any deduction in computing income, taxable income, taxable income earned in Canada or tax payable under the Act, or (ii) any balance of undeducted outlays, expenses or other amounts. 7. (1) Subsection 14(1) of the Act is replaced by the following: Eligible capital property — inclusion in income from business
14. (1) Where, at the end of a taxation year, the total of all amounts each of which is an amount determined, in respect of a business of a taxpayer, for E in the definition ‘‘cumulative eligible capital’’ in subsection (5) (in this section referred to as an ‘‘eligible capital amount’’) or for F in that definition exceeds the total of all amounts determined for A to D in that definition in respect of the business (which excess is in this subsection referred to as ‘‘the excess’’), there shall be included in computing the taxpayer’s income from the business for the year the total of (a) the amount, if any, that is the lesser of (i) the excess, and (ii) the amount determined for F in the definition ‘‘cumulative eligible capital’’ in subsection (5) at the end of the year in respect of the business, and (b) the amount, if any, determined by the formula 2/3 x (A - B - C - D) where A is the excess, B is the amount determined for F in the definition ‘‘cumulative eligible capital’’ in subsection (5) at the end of the year in respect of the business, C is 1/2 of the amount determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection (5) at the end of the year in respect of the business, and
Impôt sur le re D is the amount claimed by the taxpayer, not exceeding the taxpayer’s exempt gains balance for the year in respect of the business.
Election re capital gain
(1.01) Where, at any time in a taxation year, a taxpayer disposes of an eligible capital property (other than goodwill) in respect of a business, the cost of the property to the taxpayer can be determined, the proceeds of the disposition (in this subsection referred to as the ‘‘actual proceeds’’) exceed that cost, the taxpayer’s exempt gains balance in respect of the business for the year is nil and the taxpayer so elects under this subsection in the taxpayer’s return of income for the year, (a) for the purposes of subsection (5), the proceeds of disposition of the property are deemed to be equal to that cost; (b) the taxpayer is deemed to have disposed at that time of a capital property that had at that time an adjusted cost base to the taxpayer equal to that cost, for proceeds of disposition equal to the actual proceeds; and (c) where the eligible capital property is at that time a qualified farm property (within the meaning assigned by subsection 110.6(1)) of the taxpayer, the capital property deemed by paragraph (b) to have been disposed of by the taxpayer is deemed to have been at that time a qualified farm property of the taxpayer. (2) The portion of subsection 14(1.1) of the Act before the description of B in paragraph (b) is replaced by the following:
Deemed taxable capital gain
(1.1) For the purposes of section 110.6 and paragraph 3(b) as it applies for the purposes of that section, an amount included under paragraph (1)(b) in computing a taxpayer’s income for a particular taxation year from a business is deemed to be a taxable capital gain of the taxpayer for the year from the disposition in the year of qualified farm property to the extent of the lesser of (a) the amount included under paragraph (1)(b) in computing the taxpayer’s income
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for the particular year from the business, and (b) the amount determined by the formula A-B where A is the amount by which the total of (i) 3/4 of the total of all amounts each of which is the taxpayer’s proceeds from a disposition in a preceding taxation year that began after 1987 and ended before February 28, 2000 of eligible capital property in respect of the business that, at the time of the disposition, was a qualified farm property (within the meaning assigned by subsection 110.6(1)) of the taxpayer, (ii) 2/3 of the total of all amounts each of which is the taxpayer’s proceeds from a disposition in the particular year or a preceding taxation year that ended after February 27, 2000 and before October 18, 2000 of eligible capital property in respect of the business that, at the time of the disposition, was a qualified farm property (within the meaning assigned by subsection 110.6(1)) of the taxpayer, and (iii) 1/2 of the total of all amounts each of which is the taxpayer’s proceeds from a disposition in the particular year or a preceding taxation year that ended after October 17, 2000 of eligible capital property in respect of the business that, at the time of the disposition, was a qualified farm property (within the meaning assigned by subsection 110.6(1)) of the taxpayer exceeds the total of (iv) 3/4 of the total of all amounts each of which is (A) an eligible capital expenditure of the taxpayer in respect of the business that was made or incurred in respect of a qualified farm property disposed of by the taxpayer in a preceding taxation year that began after 1987 and ended before February 28, 2000, or
Impôt sur le re (B) an outlay or expense of the taxpayer that was not deductible in computing the taxpayer’s income and that was made or incurred for the purpose of making a disposition referred to in clause (A), (v) 2/3 of the total of all amounts each of which is (A) an eligible capital expenditure of the taxpayer in respect of the business that was made or incurred in respect of a qualified farm property disposed of by the taxpayer in the particular year or a preceding taxation year that ended after February 27, 2000 and before October 18, 2000, or (B) an outlay or expense of the taxpayer that was not deductible in computing the taxpayer’s income and that was made or incurred for the purpose of making a disposition referred to in clause (A), and (vi) 1/2 of the total of all amounts each of which is (A) an eligible capital expenditure of the taxpayer in respect of the business that was made or incurred in respect of a qualified farm property disposed of by the taxpayer in the particular year or a preceding taxation year that ended after October 17, 2000, or (B) an outlay or expense of the taxpayer that was not deductible in computing the taxpayer’s income and that was made or incurred for the purpose of making a disposition referred to in clause (A), and
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(3) The portion of subsection 14(3) of the Act before paragraph (c) is replaced by the following: Acquisition of eligible capital property
(3) Notwithstanding any other provision of this Act, where at any particular time a person or partnership (in this subsection referred to as the ‘‘taxpayer’’) has, directly or indirectly, in any manner whatever, acquired an eligible capital property in respect of a business from a person or partnership with which the taxpayer did not deal at arm’s length (in this subsection referred to as the ‘‘transferor’’) and the property was an eligible capital property of the transferor (other than property acquired by the taxpayer as a consequence of the death of the transferor), the eligible capital expenditure of the taxpayer in respect of the business is, in respect of that acquisition, deemed to be equal to 4/3 of the amount, if any, by which (a) the amount determined for E in the definition ‘‘cumulative eligible capital’’ in subsection (5) in respect of the disposition of the property by the transferor exceeds the total of (b) the total of all amounts that can reasonably be considered to have been claimed as deductions under section 110.6 for taxation years that ended before February 28, 2000 by any person with whom the taxpayer was not dealing at arm’s length in respect of the disposition of the property by the transferor, or any other disposition of the property before the particular time, (b.1) 9/8 of the total of all amounts that can reasonably be considered to have been claimed as deductions under section 110.6 for taxation years that ended after February 27, 2000 and before October 18, 2000 by any person with whom the taxpayer was not dealing at arm’s length in respect of the disposition of the property by the transferor, or any other disposition of the property before the particular time, and (b.2) 3/2 of the total of all amounts that can reasonably be considered to have been claimed as deductions under section 110.6 for taxation years that end after October 17, 2000 by any person with whom the taxpayer was not dealing at arm’s length in respect of
Impôt sur le re the disposition of the property by the transferor, or any other disposition of the property before the particular time, except that, where the taxpayer disposes of the property after the particular time, the amount of the eligible capital expenditure deemed by this subsection to be made by the taxpayer in respect of the property shall be determined at any time after the disposition as if the total of the amounts determined under paragraphs (b), (b.1) and (b.2) in respect of the disposition were the lesser of
(4) The description of B in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) of the Act is replaced by the following: B is the total of (a) 3/2 of all amounts included under paragraph (1)(b) in computing the taxpayer’s income from the business for taxation years that ended before that time and after October 17, 2000, (b) 9/8 of all amounts included under paragraph (1)(b) in computing the taxpayer’s income from the business for taxation years that ended (i) before that time, and (ii) after February 27, 2000 and before October 18, 2000, (c) all amounts included under paragraph (1)(b) in computing the taxpayer’s income from the business for taxation years that ended (i) before the earlier of that time and February 28, 2000, and (ii) after the taxpayer’s adjustment time, (d) all amounts each of which is the amount that would have been included under subparagraph (1)(a)(v) (as that
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Income Ta subparagraph applied for taxation years that ended before February 28, 2000) in computing the taxpayer’s income from the business, if the amount determined for D in that subparagraph for the year were nil, for taxation years that ended (i) before the earlier of that time and February 28, 2000, and (ii) after February 22, 1994, and (e) all taxable capital gains included, because of the application of subparagraph (1)(a)(v) (as that subparagraph applied for taxation years that ended before February 28, 2000) to the taxpayer in respect of the business, in computing the taxpayer’s income for taxation years that began before February 23, 1994,
(5) The description of R in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) of the Act is replaced by the following: R is the total of all amounts included, in computing the taxpayer’s income from the business for taxation years that ended before that time and after the taxpayer’s adjustment time, under subparagraph (1)(a)(iv) in respect of taxation years that ended before February 28, 2000 and under paragraph (1)(a) in respect of taxation years that end after February 27, 2000;
Impôt sur le re (6) The description of B in the definition ‘‘exempt gains balance’’ in subsection 14(5) of the Act is replaced by the following: B is the total of all amounts each of which is the amount determined for D in subparagraph (1)(a)(v) in respect of the business for a preceding taxation year that ended before February 28, 2000 or the amount determined for D in paragraph (1)(b) for a preceding taxation year that ended after February 27, 2000.
(7) Section 14 of the Act is amended by adding the following after subsection (13): Ceasing to use property in Canadian business
(14) If at a particular time a non-resident taxpayer ceases to use, in connection with a business or part of a business carried on by the taxpayer in Canada immediately before the particular time, a property that was immediately before the particular time eligible capital property of the taxpayer (other than a property that was disposed of by the taxpayer at the particular time), the taxpayer is deemed to have disposed of the property immediately before the particular time for proceeds of disposition equal to the amount determined by the formula A-B where A is the fair market value of the property immediately before the particular time, and B is (a) where at a previous time before the particular time the taxpayer ceased to use the property in connection with a business or part of a business carried on by the taxpayer outside Canada and began to use it in connection with a business or part of a business carried on by the taxpayer in Canada, the amount, if any, by which the fair market value of the property at the previous time exceeded
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Income Ta its cost to the taxpayer at the previous time, and (b) in any other case, nil.
Beginning to use property in Canadian business
(15) If at a particular time a non-resident taxpayer ceases to use, in connection with a business or part of a business carried on by the taxpayer outside Canada immediately before the particular time, and begins to use, in connection with a business or part of a business carried on by the taxpayer in Canada, a property that is an eligible capital property of the taxpayer, the taxpayer is deemed to have disposed of the property immediately before the particular time and to have reacquired the property at the particular time for consideration equal to the lesser of the cost to the taxpayer of the property immediately before the particular time and its fair market value immediately before the particular time. (8) Subsections (1) to (6) apply to taxation years that end after February 27, 2000 except that, for taxation years that ended after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘2/3’’ in the formula in paragraph 14(1)(b) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction ‘‘8/9’’.
(9) Subsection (7) applies after June 27, 1999 in respect of an authorized foreign bank, and after August 8, 2000 in any other case. 8. (1) Section 17 of the Act is amended by adding the following after subsection (11):
Determination of whether persons related
(11.1) For the purposes of this section, in determining whether persons are related to each other at any time, any rights referred to in subparagraph 251(5)(b)(i) that exist at that time are deemed not to exist at that time to the extent that the exercise of those rights is prohibited at that time under a law of the country under the law of which the corporation was formed or last continued and is governed, that restricts the foreign ownership or control of the corporation.
2001 Back-to-back loans
Impôt sur le re (11.2) For the purposes of subsection (2) and paragraph (3)(b), where a non-resident person, or a partnership each member of which is non-resident, (in this subsection referred to as the ‘‘intermediate lender’’) makes a loan to a non-resident person, or a partnership each member of which is non-resident, (in this subsection referred to as the ‘‘intended borrower’’) because the intermediate lender received a loan from another non-resident person, or a partnership each member of which is non-resident, (in this subsection referred to as the ‘‘initial lender’’) (a) the loan made by the intermediate lender to the intended borrower is deemed to have been made by the initial lender to the intended borrower (to the extent of the lesser of the amount of the loan made by the initial lender to the intermediate lender and the amount of the loan made by the intermediate lender to the intended borrower) under the same terms and conditions and at the same time as it was made by the intermediate lender; and (b) the loan made by the initial lender to the intermediate lender and the loan made by the intermediate lender to the intended borrower are deemed not to have been made to the extent of the amount of the loan deemed to have been made under paragraph (a).
Determination of whether persons related
(11.3) For the purpose of applying paragraph (3)(b) in respect of a corporation resident in Canada described in paragraph (2)(b), in determining whether persons described in subparagraph (3)(b)(i) are related to each other at any time, any rights referred to in paragraph 251(5)(b) that otherwise exist at that time are deemed not to exist at that time where, if the rights were exercised immediately before that time, (a) all of those persons would at that time be controlled foreign affiliates of the corporation resident in Canada; and (b) because of subsection (8), subsection (1) would not apply to the corporation resident in Canada in respect of the amount that
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would, but for this subsection, have been deemed to have been owing at that time to the corporation resident in Canada by the non-resident person described in subparagraph (3)(b)(i). (2) The definition ‘‘exempt loan or transfer’’ in subsection 17(15) of the Act is replaced by the following: ‘‘exempt loan or transfer’’ « prêt ou transfert de biens exclu »
‘‘exempt loan or transfer’’ means (a) a loan made by a corporation resident in Canada where the interest rate charged on the loan is not less than the interest rate that a lender and a borrower would have been willing to agree to if they were dealing at arm’s length with each other at the time the loan was made; (b) a transfer of property (other than a transfer of property made for the purpose of acquiring shares of the capital stock of a foreign affiliate of a corporation or a foreign affiliate of a person resident in Canada with whom the corporation was not dealing at arm’s length) or payment of an amount owing by a corporation resident in Canada pursuant to an agreement made on terms and conditions that persons who were dealing at arm’s length at the time the agreement was entered into would have been willing to agree to; (c) a dividend paid by a corporation resident in Canada on shares of a class of its capital stock; and (d) a payment made by a corporation resident in Canada on a reduction of the paid-up capital in respect of shares of a class of its capital stock (not exceeding the total amount of the reduction).
(3) Subsections (1) and (2) apply to taxation years that begin after February 23, 1998.
Impôt sur le re 9. (1) Subsection 18(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (t), by adding the word ‘‘and’’ at the end of paragraph (u) and by adding the following after paragraph (u):
Interest — authorized foreign bank
(v) where the taxpayer is an authorized foreign bank, an amount in respect of interest that would otherwise be deductible in computing the taxpayer’s income from a business carried on in Canada, except as provided in section 20.2. (2) Paragraph 18(3.1)(b) of the Act is replaced by the following: (b) the amount of such an outlay or expense shall, to the extent that it would otherwise be deductible in computing the taxpayer’s income for the year, be included in computing the cost or capital cost, as the case may be, of the building to the taxpayer, to the person with whom the taxpayer does not deal at arm’s length, to the corporation of which the taxpayer is a specified shareholder or to the partnership of which the taxpayer’s share of any income or loss is 10% or more, as the case may be. (3) Paragraph 18(4)(a) of the Act is replaced by the following: (a) the amount, if any, by which (i) the average of all amounts each of which is, in respect of a calendar month that ends in the year, the greatest total amount at any time in the month of the corporation’s outstanding debts to specified non-residents, exceeds (ii) two times the total of (A) the retained earnings of the corporation at the beginning of the year, except to the extent that those earnings include retained earnings of any other corporation, (B) the average of all amounts each of which is the corporation’s contributed surplus at the beginning of a calendar month that ends in the year, to the extent that it was contributed by a
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Income Ta specified non-resident shareholder of the corporation, and (C) the average of all amounts each of which is the corporation’s paid-up capital at the beginning of a calendar month that ends in the year, excluding the paid-up capital in respect of shares of any class of the capital stock of the corporation owned by a person other than a specified non-resident shareholder of the corporation,
(4) Paragraph (b) of the definition ‘‘outstanding debts to specified non-residents’’ in subsection 18(5) of the Act is replaced by the following: (b) an amount outstanding at the particular time as or on account of a debt or other obligation to pay an amount to (i) a non-resident insurance corporation to the extent that the obligation was, for the non-resident insurance corporation’s taxation year that included the particular time, designated insurance property in respect of an insurance business carried on in Canada through a permanent establishment as defined by regulation, or (ii) an authorized foreign bank, if the bank uses or holds the obligation at the particular time in its Canadian banking business; (5) Subsection 18(8) of the Act is repealed. (6) Subparagraph 18(9)(a)(ii) of the Act is replaced by the following: (ii) as, on account of, in lieu of payment of or in satisfaction of, interest, taxes (other than taxes imposed on an insurer in respect of insurance premiums of a non-cancellable or guaranteed renewable accident and sickness insurance policy, or a life insurance policy other than a group term life insurance policy that provides coverage for a period of 12
Impôt sur le re months or less), rent or royalties in respect of a period that is after the end of the year, or (7) Section 18 of the Act is amended by adding the following after subsection (9.01):
Application of subsection (9) to insurers
(9.02) For the purpose of subsection (9), an outlay or expense made or incurred by an insurer on account of the acquisition of an insurance policy (other than a non-cancellable or guaranteed renewable accident and sickness insurance policy or a life insurance policy other than a group term life insurance policy that provides coverage for a period of 12 months or less) is deemed to be an expense incurred as consideration for services rendered consistently throughout the period of coverage of the policy. (8) Subsections (1) and (4) apply after June 27, 1999. (9) Subsection (2) applies to outlays and expenses made or incurred after December 21, 2000. (10) Subsections (3) and (5) apply to taxation years that begin after 2000. (11) Subsections (6) and (7) apply to taxation years that begin after 1999 except that, where a taxpayer so elects in writing and files the election with the Minister of National Revenue on or before the taxpayer’s filing-due date for the taxpayer’s taxation year in which this Act receives royal assent, they apply to taxation years that end after 1997. 10. (1) Subsection 18.1(15) of the Act is replaced by the following:
Non-applicability of section 18.1
(15) Subject to subsections (1) and (14), this section does not apply to a taxpayer’s matchable expenditure in respect of a right to receive production if (a) no portion of the expenditure can reasonably be considered to have been paid to another taxpayer, or to a person with whom the other taxpayer does not deal at arm’s length, to acquire the right from the other taxpayer and
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Income Ta (i) the taxpayer’s expenditure cannot reasonably be considered to relate to a tax shelter or tax shelter investment (within the meaning assigned by subsection 143.2(1)) and none of the main purposes for making the expenditure is that the taxpayer, or a person with whom the taxpayer does not deal at arm’s length, obtain a tax benefit, or (ii) before the end of the taxation year in which the expenditure is made, the total of all amounts each of which is included in computing the taxpayer’s income for the year (other than any portion of such an amount that is the subject of a reserve claimed by the taxpayer for the year under this Act) in respect of the right to receive production to which the matchable expenditure relates exceeds 80% of the expenditure; or
(b) the expenditure is in respect of commissions or other expenses related to the issuance of an insurance policy for which all or a portion of a risk has been ceded to the taxpayer (in this paragraph referred to as the ‘‘reinsurer’’) and both the reinsurer and the person to whom the expenditure is made or is to be made are insurers subject to the supervision of (i) the Superintendent of Financial Institutions, in the case of an insurer that is required by law to report to the Superintendent of Financial Institutions, or (ii) in any other case, the Superintendent of Insurance or other similar officer or authority of the province under whose laws the insurer is incorporated. (2) Subsection (1) applies to expenditures made after November 17, 1996. 11. (1) The portion of subsection 19(1) of the Act before subparagraph (b)(i) is replaced by the following: Limitation re advertising expense — newspapers
19. (1) In computing income, no deduction shall be made in respect of an otherwise deductible outlay or expense of a taxpayer for advertising space in an issue of a newspaper for an advertisement directed primarily to a market in Canada unless
Impôt sur le re (a) the issue is a Canadian issue of a Canadian newspaper; or (b) the issue is an issue of a newspaper that would be a Canadian issue of a Canadian newspaper except that
(2) The definition ‘‘substantially the same’’ in subsection 19(5) of the Act is repealed. (3) The definition ‘‘Canadian issue’’ in subsection 19(5) of the Act is replaced by the following: ‘‘Canadian issue’’ « édition canadienne »
‘‘Canadian issue’’ of a newspaper means an issue, including a special issue, (a) the type of which, other than the type for advertisements or features, is set in Canada, (b) all of which, exclusive of any comics supplement, is printed in Canada, (c) that is edited in Canada by individuals resident in Canada, and (d) that is published in Canada;
(4) The portion of the definition ‘‘Canadian newspaper or periodical’’ in subsection 19(5) of the Act before paragraph (a) is replaced by the following: ‘‘Canadian newspaper’’ « journal canadien »
‘‘Canadian newspaper’’ means a newspaper the exclusive right to produce and publish issues of which is held by one or more of the following: (5) Section 19 of the Act is amended by adding the following after subsection (5):
Interpretation
(5.1) In this section, each of the following is deemed to be a Canadian citizen: (a) a trust or corporation described in paragraph 149(1)(o) or (o.1) formed in connection with a pension plan that exists for the benefit of individuals a majority of whom are Canadian citizens;
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(b) a trust described in paragraph 149(1)(r) or (x), the annuitant in respect of which is a Canadian citizen; (c) a mutual fund trust, within the meaning assigned by subsection 132(6), other than a mutual fund trust the majority of the units of which are held by citizens or subjects of a country other than Canada; (d) a trust, each beneficiary of which is a person, partnership, association or society described in any of paragraphs (a) to (e) of the definition ‘‘Canadian newspaper’’ in subsection (5); and (e) a person, association or society described in paragraph (c) or (d) of the definition ‘‘Canadian newspaper’’ in subsection (5). (6) Subsections 19(6) to (8) of the Act are replaced by the following: Trust property
(6) Where the right that is held by any person, partnership, association or society described in the definition ‘‘Canadian newspaper’’ in subsection (5) to produce and publish issues of a newspaper is held as property of a trust or estate, the newspaper is not a Canadian newspaper unless each beneficiary under the trust or estate is a person, partnership, association or society described in that definition.
Grace period
(7) A Canadian newspaper that would, but for this subsection, cease to be a Canadian newspaper, is deemed to continue to be a Canadian newspaper until the end of the 12th month that follows the month in which it would, but for this subsection, have ceased to be a Canadian newspaper.
Non-Canadian newspaper
(8) Where at any time one or more persons or partnerships that are not described in any of paragraphs (a) to (e) of the definition ‘‘Canadian newspaper’’ in subsection (5) have any direct or indirect influence that, if exercised, would result in control in fact of a person or partnership that holds a right to produce or publish issues of a newspaper, the newspaper is deemed not to be a Canadian newspaper at that time.
Impôt sur le re (7) Subsections (1) to (4) and (6) apply in respect of advertisements placed in an issue dated after May 2000. (8) Subsection (5) applies in respect of advertisements placed in an issue dated after June 1996 except that, in applying subsection 19(5.1) of the Act, as enacted by subsection (5), to advertisements placed in an issue dated after June 1996 and before June 2000, the references in that subsection 19(5.1) to ‘‘Canadian newspaper’’ shall be read as references to ‘‘Canadian newspaper or periodical’’. 12. (1) The Act is amended by adding the following after section 19:
Definitions
19.01 (1) The definitions in this subsection apply in this section.
‘‘advertisement directed at the Canadian market’’ « annonce destinée au marché canadien »
‘‘advertisement directed at the Canadian market’’ has the same meaning as the expression ‘‘directed at the Canadian market’’ in section 2 of the Foreign Publishers Advertising Services Act and includes a reference to that expression made by or under that Act.
‘‘original editorial content’’ « contenu rédactionnel original »
‘‘original editorial content’’ in respect of an issue of a periodical means non-advertising content (a) the author of which is a Canadian citizen or a permanent resident of Canada within the meaning assigned by the Immigration Act and, for this purpose, ‘‘author’’ includes a writer, a journalist, an illustrator and a photographer; or (b) that is created for the Canadian market and has not been published in any other edition of that issue of the periodical published outside Canada.
‘‘periodical’’ « périodique »
‘‘periodical’’ has the meaning assigned by section 2 of the Foreign Publishers Advertising Services Act.
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Limitation re advertising expenses — periodicals
(2) Subject to subsections (3) and (4), in computing income, no deduction shall be made by a taxpayer in respect of an otherwise deductible outlay or expense for advertising space in an issue of a periodical for an advertisement directed at the Canadian market.
100% deduction
(3) A taxpayer may deduct in computing income an outlay or expense of the taxpayer for advertising space in an issue of a periodical for an advertisement directed at the Canadian market if (a) the original editorial content in the issue is 80% or more of the total non-advertising content in the issue; and (b) the outlay or expense would, but for subsection (2), be deductible in computing the taxpayer’s income.
50% deduction
(4) A taxpayer may deduct in computing income 50% of an outlay or expense of the taxpayer for advertising space in an issue of a periodical for an advertisement directed at the Canadian market if (a) the original editorial content in the issue is less than 80% of the total non-advertising content in the issue; and (b) the outlay or expense would, but for subsection (2), be deductible in computing the taxpayer’s income.
Application
(5) For the purposes of subsections (3) and (4), (a) the percentage that original editorial content is of total non-advertising content is the percentage that the total space occupied by original editorial content in the issue is of the total space occupied by non-advertising content in the issue; and (b) the Minister may obtain the advice of the Department of Canadian Heritage for the purpose of (i) determining the result obtained under paragraph (a), and
Impôt sur le re (ii) interpreting any expression defined in this section that is defined in the Foreign Publishers Advertising Services Act.
Editions of issues
(6) For the purposes of this section, (a) where an issue of a periodical is published in several versions, each version is an edition of that issue; and (b) where an issue of a periodical is published in only one version, that version is an edition of that issue. (2) Subsection (1) applies in respect of advertisements placed in an issue dated after May 2000. 13. (1) Paragraph 20(1)(b) of the Act is replaced by the following:
Cumulative eligible capital amount
(b) such amount as the taxpayer claims in respect of a business, not exceeding 7% of the taxpayer’s cumulative eligible capital in respect of the business at the end of the year except that, where the year is less than 12 months, the amount allowed as a deduction under this paragraph shall not exceed that proportion of the maximum amount otherwise allowable that the number of days in the taxation year is of 365; (2) The portion of paragraph 20(1)(e) of the Act before subparagraph (i) is replaced by the following:
Expenses re financing
(e) such part of an amount (other than an excluded amount) that is not otherwise deductible in computing the income of the taxpayer and that is an expense incurred in the year or a preceding taxation year (3) The portion of paragraph 20(1)(e) of the Act after subparagraph (ii.2) and before subparagraph (iii) is replaced by the following: (including a commission, fee, or other amount paid or payable for or on account of services rendered by a person as a salesperson, agent or dealer in securities in the course of the issuance, sale or borrowing) that is the lesser of
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(4) Paragraph 20(1)(e) of the Act is amended by adding the following before subparagraph (v): (iv.1) ‘‘excluded amount’’ means (A) an amount paid or payable as or on account of the principal amount of a debt obligation or interest in respect of a debt obligation, (B) an amount that is contingent or dependent on the use of, or production from, property, or (C) an amount that is computed by reference to revenue, profit, cash flow, commodity price or any other similar criterion or by reference to dividends paid or payable to shareholders of any class of shares of the capital stock of a corporation, (5) Subparagraph 20(1)(f)(ii) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (6) Paragraph 20(1)(z.1) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (7) Subparagraph 20(1)(hh)(ii) of the Act is replaced by the following: (ii) that is, by reason of subparagraph 12(1)(x)(vi) or subsection 12(2.2), not included under paragraph 12(1)(x) in computing the taxpayer’s income for the year or a preceding taxation year, where the particular amount relates to an outlay or expense (other than an outlay or expense that is in respect of the cost of property of the taxpayer or that is or would be, if amounts deductible by the taxpayer were not limited by reason of paragraph 66(4)(b), subsection 66.1(2), subparagraph 66.2(2)(a)(ii), the words ‘‘30% of’’ in clause 66.21(4)(a)(ii)(B), clause 66.21(4)(a)(ii)(C) or (D) or subparagraph 66.4(2)(a)(ii), deductible under section 66, 66.1, 66.2, 66.21 or 66.4) that would, if the particular amount had not been received, have been deductible in computing the taxpayer’s income for the year or a preceding taxation year;
Impôt sur le re
(8) Subsection 20(4.2) of the Act is replaced by the following: Bad debts re eligible capital property
(4.2) Where, in respect of one or more dispositions of eligible capital property by a taxpayer, an amount that is described in paragraph (a) of the description of E in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) in respect of the taxpayer is established by the taxpayer to have become a bad debt in a taxation year, there shall be deducted in computing the taxpayer’s income for the year the amount determined by the formula (A + B) - (C + D + E + F + G + H) where A is the lesser of (a) 1/2 of the total of all amounts each of which is such an amount that was so established to have become a bad debt in the year or a preceding taxation year, and (b) the amount that is (i) where the year ended after February 27, 2000, the amount, if any, that would be the total of all amounts determined by the formula in paragraph 14(1)(b) (if that formula were read without reference to the description of D) for the year, or for a preceding taxation year that ended after February 27, 2000, and (ii) where the year ended before February 28, 2000, nil; B is the amount, if any, by which (a) 3/4 of the total of all amounts each of which is such an amount that was so established to be a bad debt in the year or a preceding taxation year exceeds the total of (b) 3/2 of the amount by which (i) the value of A exceeds (ii) the amount included in the value of A because of subparagraph (b)(i) of the
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Income Ta description of A in respect of taxation years that ended after February 27, 2000 and before October 18, 2000, and (c) 9/8 of the amount included in the value of A because of subparagraph (b)(i) of the description of A in respect of taxation years that ended after February 27, 2000 and before October 18, 2000;
C is the total of all amounts each of which is an amount determined under subsection 14(1) or (1.1) for the year, or a preceding taxation year, that ends after October 17, 2000 and in respect of which a deduction can reasonably be considered to have been claimed under section 110.6 by the taxpayer; D is the total of all amounts each of which is an amount determined under subsection 14(1) or (1.1) for the year, or a preceding taxation year, that ended after February 27, 2000 and before October 18, 2000 and in respect of which a deduction can reasonably be considered to have been claimed under section 110.6 by the taxpayer; E is the total of all amounts each of which is an amount determined under subsection 14(1) or (1.1) for a preceding taxation year that ended before February 28, 2000 and in respect of which a deduction can reasonably be considered to have been claimed under section 110.6 by the taxpayer; F is the total of (a) 2/3 of the total of all amounts each of which is the value determined in respect of the taxpayer for D in the formula in paragraph 14(1)(b) for the year, or a preceding taxation year, that ends after October 17, 2000, and (b) 8/9 of the total of all amounts each of which is the value determined in respect of the taxpayer for D in the formula in paragraph 14(1)(b) for the year, or a preceding taxation year, that ended after February 27, 2000 and before October 18, 2000; G is the total of all amounts each of which is the value determined in respect of the tax2001
Impôt sur le re payer for D in the formula in subparagraph 14(1)(a)(v) (as that subparagraph applied for taxation years that ended before February 28, 2000) for a preceding taxation year; and H is the total of all amounts deducted by the taxpayer under this subsection for preceding taxation years.
Deemed allowable capital loss
(4.3) Where, in respect of one or more dispositions of eligible capital property by a taxpayer, an amount that is described in paragraph (a) of the description of E in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) in respect of the taxpayer is established by the taxpayer to have become a bad debt in a taxation year, the taxpayer is deemed to have an allowable capital loss from a disposition of capital property in the year equal to the lesser of (a) the total of the value determined for A and 2/3 of the value determined for B in the formula in subsection (4.2) in respect of the taxpayer for the year; and (b) the total of all amounts each of which is (i) the value determined for C or paragraph (a) of the description of F in the formula in subsection (4.2) in respect of the taxpayer for the year, (ii) 3/4 of the value determined for D or paragraph (b) of the description of F in the formula in subsection (4.2) in respect of the taxpayer for the year, or (iii) 2/3 of the value determined for E or G in the formula in subsection (4.2) in respect of the taxpayer for the year.
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(9) Subsection (1) applies to taxation years that begin after December 21, 2000. (10) Subsections (2) to (4) apply to expenses incurred by a taxpayer after November 1999, other than expenses incurred pursuant to a written agreement made by the taxpayer before December 1999. (11) Subsections (5) and (6) apply in respect of amounts that become payable after February 27, 2000 except that, for amounts that became payable after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘1/2’’ in subparagraph 20(1)(f)(ii) of the Act, as enacted by subsection (5), and in paragraph 20(1)(z.1) of the Act, as enacted by subsection (6), shall be read as a reference to the fraction ‘‘2/3’’. (12) Subsection (7) applies to taxation years that begin after 2000. (13) Subsection (8) applies to taxation years that end after February 27, 2000 except that, for taxation years that ended after February 27, 2000 and before October 18, 2000, (a) the reference to the fraction ‘‘1/2’’ in paragraph (a) of the description of A in subsection 20(4.2) of the Act, as enacted by subsection (8), shall be read as a reference to the fraction ‘‘2/3’’; (b) the reference to the fraction ‘‘3/2’’ in paragraph (b) of the description of B in subsection 20(4.2) of the Act, as enacted by subsection (8), shall be read as a reference to the fraction ‘‘9/8’’; (c) the reference to the fraction ‘‘2/3’’ in paragraph 20(4.3)(a) and subparagraph 20(4.3)(b)(iii) of the Act, as enacted by subsection (8), shall be read as a reference to the fraction ‘‘8/9’’; and
Impôt sur le re (d) subparagraph 20(4.3)(b)(ii) of the Act, as enacted by subsection (8), shall be read without reference to the expression ‘‘3/4 of’’.
14. (1) The Act is amended by adding the following after section 20.1:
Interest — authorized foreign bank — interpretation
20.2 (1) The following definitions apply in this section.
‘‘branch advance’’ « avance de succursale »
‘‘branch advance’’ of an authorized foreign bank means an amount allocated or provided by, or on behalf of, the bank to, or for the benefit of, its Canadian banking business under terms that were documented, before the amount was so allocated or provided, to the same extent as, and in a form similar to the form in which, the bank would ordinarily document a loan by it to a person with whom it deals at arm’s length.
‘‘branch financial statements’’ « états financiers de succursale »
‘‘branch financial statements’’ of an authorized foreign bank for a taxation year means the unconsolidated statements of assets and liabilities and of income and expenses for the year, in respect of its Canadian banking business, (a) that form part of the bank’s annual report for the year filed with the Superintendent of Financial Institutions as required under section 601 of the Bank Act, and accepted by the Superintendent, and (b) if no filing is so required for the taxation year, that are prepared in a manner consistent with the statements in the annual report or reports so filed and accepted for the period or periods in which the taxation year falls, except if the Minister demonstrates that the statements are not prepared in accordance with generally-accepted accounting principles in Canada as modified by any specifications applicable to the bank made by the Superintendent of Financial Institutions under subsection 308(4) of the Bank Act (in this definition referred to as ‘‘modified GAAP’’), in which case it means the
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statements subject to such modifications as are required to make them comply with modified GAAP. ‘‘calculation period’’ « période de calcul »
‘‘calculation period’’ of an authorized foreign bank for a taxation year means any one of a series of regular periods into which the year is divided in a designation by the bank in its return of income for the year or, in the absence of such a designation, by the Minister, (a) none of which is longer than 31 days; (b) the first of which commences at the beginning of the year and the last of which ends at the end of the year; and (c) that are, unless the Minister otherwise agrees in writing, consistent with the calculation periods designated for the bank’s preceding taxation year.
Formula elements
(2) The following descriptions apply for the purposes of the formulae in subsection (3) for any calculation period in a taxation year of an authorized foreign bank: A is the amount of the bank’s assets at the end of the period; BA is the amount of the bank’s branch advances at the end of the period; IBA is the total of all amounts each of which is a reasonable amount on account of notional interest for the period, in respect of a branch advance, that would be deductible in computing the bank’s income for the year if it were interest payable by, and the advance were indebtedness of, the bank to another person and if this Act were read without reference to paragraph 18(1)(v) and this section; IL is the total of all amounts each of which is an amount on account of interest for the period in respect of a liability of the bank to another person or partnership that would be deductible in computing the bank’s income for the year if this Act were read without reference to paragraph 18(1)(v) and this section; and
Impôt sur le re L is the amount of the bank’s liabilities to other persons and partnerships at the end of the period.
Interest deduction
(3) In computing the income of an authorized foreign bank from its Canadian banking business for a taxation year, there may be deducted on account of interest for each calculation period of the bank for the year, (a) where the total amount at the end of the period of its liabilities to other persons and partnerships and branch advances is 95% or more of the amount of its assets at that time, an amount not exceeding (i) if the amount of liabilities to other persons and partnerships at that time is less than 95% of the amount of its assets at that time, the amount determined by the formula IL + IBA x (0.95 x A - L)/BA and (ii) if the amount of those liabilities at that time is greater than or equal to 95% of the amount of its assets at that time, the amount determined by the formula IL x (0.95 x A)/L and (b) in any other case, the total of (i) the amount determined by the formula IL + IBA and (ii) the product of (A) the amount claimed by the bank, in its return of income for the year, not exceeding the amount determined by the formula (0.95 x A) - (L + BA) and (B) the average, based on daily observations, of the Bank of Canada bank rate for the period.
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(4) Only amounts that are in respect of an authorized foreign bank’s Canadian banking business, and that are recorded in the books of account of the business in a manner consistent with the manner in which they are required to be treated for the purposes of the branch financial statements, shall be used to determine (a) the amounts in subsection (2); and (b) the amounts in subsection (3) of an authorized foreign bank’s assets, liabilities to other persons and partnerships, and branch advances.
Notional interest
(5) For the purposes of the description of IBA in subsection (2), a reasonable amount on account of notional interest for a calculation period in respect of a branch advance is the amount that would be payable on account of interest for the period by a notional borrower, having regard to the duration of the advance, the currency in which repayment is required and all other terms, as adjusted by paragraph (c), of the advance, if (a) the borrower were a person that dealt at arm’s length with the bank, that carried on the bank’s Canadian banking business and that had the same credit-worthiness and borrowing capacity as the bank; (b) the advance were a loan by the bank to the borrower; and (c) any of the terms of the advance (excluding the rate of interest, but including the structure of the interest calculation, such as whether the rate is fixed or floating and the choice of any reference rate referred to) that are not terms that would be made between the bank as lender and the borrower, having regard to all the circumstances, including the nature of the Canadian banking business, the use of the advanced funds in the business and normal risk management practices for banks, were instead terms that would be agreed to by the bank and the borrower.
Impôt sur le re
Weak currency debt — interpretation
20.3 (1) The definitions in this subsection apply in this section.
‘‘exchange date’’ « date de l’échange »
‘‘exchange date’’ in respect of a debt of a taxpayer that is at any time a weak currency debt means, if the debt is incurred or assumed by the taxpayer (a) in respect of borrowed money that is denominated in the final currency, the day that the debt is incurred or assumed by the taxpayer; and (b) in respect of borrowed money that is not denominated in the final currency, or in respect of the acquisition of property, the day on which the taxpayer uses the borrowed money or the acquired property, directly or indirectly, to acquire funds that are, or to settle an obligation that is, denominated in the final currency.
‘‘hedge’’ « opération de couverture »
‘‘hedge’’ in respect of a debt of a taxpayer that is at any time a weak currency debt means any agreement made by the taxpayer (a) that can reasonably be regarded as having been made by the taxpayer primarily to reduce the taxpayer’s risk, with respect to payments of principal or interest in respect of the debt, of fluctuations in the value of the weak currency; and (b) that is identified by the taxpayer as a hedge in respect of the debt in a designation in prescribed form filed with the Minister on or before the 30th day after the day the taxpayer enters into the agreement.
‘‘weak currency debt’’ « dette en devise faible »
‘‘weak currency debt’’ of a taxpayer at a particular time means a particular debt in a foreign currency (in this section referred to as the ‘‘weak currency’’), incurred or assumed by the taxpayer at a time (in this section referred to as the ‘‘commitment time’’) after February 27, 2000, in respect of a borrowing of money or an acquisition of property, where (a) any of the following applies, namely,
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Income Ta (i) the borrowed money is denominated in a currency (in this section referred to as the ‘‘final currency’’) other than the weak currency, is used for the purpose of earning income from a business or property and is not used to acquire funds in a currency other than the final currency, (ii) the borrowed money or the acquired property is used, directly or indirectly, to acquire funds that are denominated in a currency (in this section referred to as the ‘‘final currency’’) other than the weak currency, that are used for the purpose of earning income from a business or property and that are not used to acquire funds in a currency other than the final currency, (iii) the borrowed money or the acquired property is used, directly or indirectly, to settle an obligation that is denominated in a currency (in this section referred to as the ‘‘final currency’’) other than the weak currency, that is incurred or assumed for the purpose of earning income from a business or property and that is not incurred or assumed to acquire funds in a currency other than the final currency, or (iv) the borrowed money or the acquired property is used, directly or indirectly, to settle another debt of the taxpayer that is at any time a weak currency debt in respect of which the final currency (which is deemed to be the final currency in respect of the particular debt) is a currency other than the currency of the particular debt; (b) the amount of the particular debt (together with any other debt that would, but for this paragraph, be at any time a weak currency debt, and that can reasonably be regarded as having been incurred or assumed by the taxpayer as part of a series of transactions that includes the incurring or assumption of the particular debt) exceeds $500,000; and
Impôt sur le re (c) either of the following applies, namely, (i) if the rate at which interest is payable at the particular time in the weak currency in respect of the particular debt is determined under a formula based on the value from time to time of a reference rate (other than a reference rate the value of which is established or materially influenced by the taxpayer), the interest rate at the commitment time, as determined under the formula as though interest were then payable, exceeds by more than two percentage points the rate at which interest would have been payable at the commitment time in the final currency if (A) the taxpayer had, at the commitment time, instead incurred or assumed an equivalent amount of debt in the final currency on the same terms as the particular debt (excluding the rate of interest but including the structure of the interest calculation, such as whether the rate is fixed or floating) with those modifications that the difference in currency requires, and (B) interest on the equivalent amount of debt referred to in clause (A) was payable at the commitment time, or (ii) in any other case, the rate at which interest is payable at the particular time in the weak currency in respect of the particular debt exceeds by more than two percentage points the rate at which interest would have been payable at the particular time in the final currency if at the commitment time the taxpayer had instead incurred or assumed an equivalent amount of debt in the final currency on the same terms as the particular debt (excluding the rate of interest but including the structure of the interest calculation, such as whether the rate is fixed or floating) , with those modifications that the difference in currency requires.
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Interest and gain
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(2) Notwithstanding any other provision of this Act, the following rules apply in respect of a particular debt of a taxpayer (other than a corporation described in one or more of paragraphs (a), (b), (c) and (e) of the definition ‘‘specified financial institution’’ in subsection 248(1)) that is at any time a weak currency debt: (a) no deduction on account of interest that accrues on the debt for any period that begins after the day that is the later of June 30, 2000 and the exchange date during which it is a weak currency debt shall exceed the amount of interest that would, if at the commitment time the taxpayer had instead incurred or assumed an equivalent amount of debt, the principal and interest in respect of which were denominated in the final currency, on the same terms as the particular debt (excluding the rate of interest but including the structure of the interest calculation, such as whether the rate is fixed or floating ) have accrued on the equivalent debt during that period , with those modifications that the difference in currency requires; (b) the amount, if any, of the taxpayer’s gain or loss (in this section referred to as a ‘‘foreign exchange gain or loss’’) for a taxation year on the settlement or extinguishment of the debt that arises because of the fluctuation in the value of any currency shall be included or deducted, as the case may be, in computing the taxpayer’s income for the year from the business or the property to which the debt relates; and
Impôt sur le re (c) the amount of any interest on the debt that was, because of this subsection, not deductible is deemed, for the purpose of computing the taxpayer’s foreign exchange gain or loss on the settlement or extinguishment of the debt, to be an amount paid by the taxpayer to settle or extinguish the debt.
Hedges
(3) In applying subsection (2) in circumstances where a taxpayer has entered into a hedge in respect of a debt of the taxpayer that is at any time a weak currency debt, the amount paid or payable in the weak currency for a taxation year on account of interest on the debt, or paid in the weak currency in the year on account of the debt’s principal, shall be decreased by the amount of any foreign exchange gain, or increased by the amount of any foreign exchange loss, on the hedge in respect of the amount so paid or payable.
Repayment of principal
(4) If the amount (expressed in the weak currency) outstanding on account of principal in respect of a debt of the taxpayer that is at any time a weak currency debt is reduced before maturity (whether by repayment or otherwise), the amount (expressed in the weak currency) of the reduction is deemed, except for the purposes of determining the rate of interest that would have been charged on an equivalent loan in the final currency and applying paragraph (b) of the definition ‘‘weak currency debt’’ in subsection (1), to have been a separate debt from the commitment time. (2) Section 20.2, as enacted by subsection (1), applies after June 27, 1999 except that in its application to amounts allocated or provided before the day that is 14 days after August 8, 2000, the definition ‘‘branch advance’’ in subsection 20.2(1), as enacted by subsection (1), shall be read as follows: ‘‘branch advance’’ of an authorized foreign bank at a particular time means an amount allocated or provided by, or on behalf of, the bank to, or for the benefit of, its Canadian banking business under terms that were documented, on or before December 31, 2000, to the same extent as, and in a form
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similar to the form in which, the bank would ordinarily document a loan by it to a person with whom it deals at arm’s length.
(3) Section 20.3 of the Act, as enacted by subsection (1), applies to taxation years that end after February 27, 2000. (4) A designation described in paragraph (b) of the definition ‘‘hedge’’ in subsection 20.3(1) of the Act, as enacted by subsection (1), is deemed to have been filed in a timely manner if it is filed on or before the later of July 31, 2000 and the 30th day after the day the taxpayer agrees to the hedge.
15. (1) Subsection 21(2) of the Act is replaced by the following: Borrowed money used for exploration or development
(2) Where in a taxation year a taxpayer has used borrowed money for the purpose of exploration, development or the acquisition of property and the expenses incurred by the taxpayer in respect of those activities are Canadian exploration and development expenses, Canadian exploration expenses, Canadian development expenses, Canadian oil and gas property expenses, foreign resource expenses in respect of a country, or foreign exploration and development expenses, as the case may be, if the taxpayer so elects under this subsection in the taxpayer’s return of income for the year, (a) in computing the taxpayer’s income for the year and for such of the three immediately preceding taxation years as the taxpayer had, paragraphs 20(1)(c), (d), (e) and (e.1) do not apply to the amount or to the part of the amount specified in the taxpayer’s election that, but for that election, would be deductible in computing the taxpayer’s income (other than exempt income or income that is exempt from tax under this Part) for any such year in respect of the borrowed money used for the exploration, development or acquisition of property, as the case may be; and
Impôt sur le re (b) the amount or the part of the amount, as the case may be, described in paragraph (a) is deemed to be Canadian exploration and development expenses, Canadian exploration expenses, Canadian development expenses, Canadian oil and gas property expenses, foreign resource expenses in respect of a country, or foreign exploration and development expenses, as the case may be, incurred by the taxpayer in the year. (2) Subsection 21(4) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a) and by replacing the portion after paragraph (a) with the following: (b) in each taxation year, if any, after that preceding taxation year and before the particular year, made an election under this subsection covering the total amount that, but for that election, would have been deductible in computing the taxpayer’s income (other than exempt income or income that is exempt from tax under this Part) for each such year in respect of the borrowed money used for the exploration, development or acquisition of property, as the case may be, and (c) so elects in the taxpayer’s return of income for the particular year, the following rules apply: (d) paragraphs 20(1)(c), (d), (e) and (e.1) do not apply to the amount or to the part of the amount specified in the election that, but for the election, would be deductible in computing the taxpayer’s income (other than exempt income or income that is exempt from tax under this Part) for the particular year in respect of the borrowed money used for the exploration, development or acquisition of property, and (e) the amount or part of the amount, as the case may be, is deemed to be Canadian exploration and development expenses, Canadian exploration expenses, Canadian development expenses, Canadian oil and gas property expenses, foreign resource expenses in respect of a country, or foreign exploration and development expenses, as the case may be, incurred by the taxpayer in the particular year.
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(3) Subsections (1) and (2) apply to taxation years that begin after 2000. 16. (1) Paragraph 24(2)(d) of the Act is replaced by the following: (d) for the purpose of determining after that time the amount required to be included under paragraph 14(1)(b) in computing the income of the spouse, the common-law partner or the corporation in respect of any subsequent disposition of property of the business, there shall be added to the amount otherwise determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) the amount, if any, determined for Q in that definition in respect of the business of the individual immediately before the individual ceased to carry on business. (2) Subsection (1) applies to taxation years that end after February 27, 2000. 17. (1) Subsection 27(2) of the Act is replaced by the following: Presumption
(2) Notwithstanding any other provision of this Act, a prescribed federal Crown corporation and any corporation controlled by such a corporation are each deemed not to be a private corporation and paragraphs 149(1)(d) to (d.4) do not apply to those corporations. (2) Subsection (1) applies to taxation years and fiscal periods that begin after 1998. 18. (1) Paragraphs 28(4)(a) and (b) of the Act are replaced by the following:
Impôt sur le re (a) for the year, if the taxpayer was non-resident throughout the year; and (b) for the part of the year throughout which the taxpayer was resident in Canada, if the taxpayer was resident in Canada at any time in the year. (2) Subsection 28(4.1) of the Act is repealed. (3) Subsection (1) applies to the 1998 and subsequent taxation years. (4) Subsection (2) applies after December 23, 1998. 19. (1) The definition ‘‘foreign bank’’ in subsection 33.1(1) of the Act is replaced by the following:
‘‘foreign bank’’ « banque étrangère »
‘‘foreign bank’’ has the meaning assigned by the definition ‘‘foreign bank’’ in section 2 of the Bank Act (read without reference to paragraph (g)), except that an authorized foreign bank is not considered to be a foreign bank in respect of its Canadian banking business; (2) Subsection (1) applies after June 27, 1999. 20. (1) The definition ‘‘mining property’’ in subsection 35(2) of the Act is replaced by the following:
‘‘mining property’’ « bien minier »
‘‘mining property’’ means (a) a right, licence or privilege to prospect, explore, drill or mine for minerals in a mineral resource in Canada, or (b) real property in Canada (other than depreciable property) the principal value of which depends on its mineral resource content;
(2) Subsection (1) applies to shares received after December 21, 2000. 21. (1) Subsection 37(1) of the Act is amended by adding the following after paragraph (d): (d.1) the total of all amounts each of which is the super-allowance benefit amount
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(within the meaning assigned by subsection 127(9)) for the year or for a preceding taxation year in respect of the taxpayer in respect of a province, (2) Subsection (1) applies to taxation years that begin after February 2000 except that, if a taxpayer’s first taxation year that begins after February 2000 ends before 2001, subsection (1) applies to the taxpayer’s taxation years that begin after 2000. 22. (1) Paragraph 38(a) of the Act is replaced by the following: (a) subject to paragraphs (a.1) and (a.2), a taxpayer’s taxable capital gain for a taxation year from the disposition of any property is 1/2 of the taxpayer’s capital gain for the year from the disposition of the property; (2) Paragraph 38(a.1) of the Act is amended by replacing the reference to the fraction ‘‘3/8’’ with a reference to the fraction ‘‘1/4’’. (3) Section 38 of the Act is amended by adding the following after paragraph (a.1): (a.2) a taxpayer’s taxable capital gain for a taxation year from the disposition of a property is 1/4 of the taxpayer’s capital gain for the year from the disposition of the property where (i) the disposition is the making of a gift to a qualified donee (other than a private foundation) of a property described, in respect of the taxpayer, in paragraph 110.1(1)(d) or in the definition ‘‘total ecological gifts’’ in subsection 118.1(1), or (ii) the disposition is deemed by section 70 to have occurred and the taxpayer is deemed by subsection 118.1(5) to have made a gift described in subparagraph (i) of the property; (4) Paragraphs 38(b) and (c) of the Act are amended by replacing the references to the fraction ‘‘3/4’’ with references to the fraction ‘‘1/2’’.
Impôt sur le re (5) Subsections (1) and (4) apply to the 2000 and subsequent taxation years except that (a) for a taxation year of a taxpayer that ended before February 28, 2000, the references to the fraction ‘‘1/2’’ in paragraph 38(a) of the Act, as enacted by subsection (1), and in paragraphs 38(b) and (c) of the Act, as enacted by subsection (4), shall be read as references to the fraction ‘‘3/4’’, (b) for a taxpayer’s taxation year that began after February 28, 2000 and ended before October 17, 2000, the references to the fraction ‘‘1/2’’ in paragraph 38(a) of the Act as enacted by subsection (1) and in paragraphs 38(b) and (c) of the Act, as enacted by subsection (4), shall be read as references to the fraction ‘‘2/3’’, (c) for a taxation year of a taxpayer that includes February 28, 2000 but does not include October 18, 2000, the references to the fraction ‘‘1/2’’ in paragraph 38(a) of the Act, as enacted by subsection (1), and in paragraphs 38(b) and (c) of the Act, as enacted by subsection (4), shall be read as references to the fraction that applies to the taxpayer for that year, and for this purpose, (i) where the amount of the taxpayer’s net capital gains from dispositions of property in the period that began at the beginning of the year and ended at the end of February 27, 2000 (in this paragraph referred to as the ‘‘first period’’) exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the period that begins at the beginning of February 28, 2000 and ends at the end of the year (in this paragraph referred to as the ‘‘second period’’), the fraction that applies to the taxpayer for the year is 3/4, (ii) where the amount of the taxpayer’s net capital losses from dispositions of property in the first period exceeds the
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Income Ta amount of the taxpayer’s net capital gains from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 3/4, (iii) where the amount of the taxpayer’s net capital gains from dispositions of property in the first period is less than the amount of the taxpayer’s net capital losses from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 2/3, (iv) where the amount of the taxpayer’s net capital losses from dispositions of property in the first period is less than the amount of the taxpayer’s net capital gains from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 2/3, (v) where the taxpayer has only net capital gains, or only net capital losses, from dispositions of property in each of the first and second periods, the fraction that applies to the taxpayer for the year is the fraction determined by the formula (3/4 x A + 2/3 x B)/(A + B) where A is the net capital gains or the net capital losses, as the case may be, of the taxpayer from dispositions of property in the first period, and B is the net capital gains or the net capital losses, as the case may be, of the taxpayer from dispositions of property in the second period, and (vi) where the net capital gains and net capital losses of the taxpayer for the year are nil, the fraction that applies to the taxpayer for the year is 2/3,
(d) for a taxation year of a taxpayer that began after February 27, 2000 and includes October 18, 2000, the references to the fraction ‘‘1/2’’ in paragraph 38(a) of the Act, as enacted by subsection (1), and
Impôt sur le re in paragraphs 38(b) and (c) of the Act, as enacted by subsection (4), shall be read as references to the fraction that applies to the taxpayer for that year, and for this purpose, (i) where the amount of the taxpayer’s net capital gains from dispositions of property in the period that began at the beginning of the year and ended at the end of October 17, 2000 (in this paragraph referred to as the ‘‘first period’’) exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the period that begins at the beginning of October 18, 2000 and ends at the end of the year (in this paragraph referred to as the ‘‘second period’’), the fraction that applies to the taxpayer for the year is 2/3, (ii) where the amount of the taxpayer’s net capital losses from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 2/3, (iii) where the amount of the taxpayer’s net capital gains from dispositions of property in the first period is less than the amount of the taxpayer’s net capital losses from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 1/2, (iv) where the amount of the taxpayer’s net capital losses from dispositions of property in the first period is less than the amount of the taxpayer’s net capital gains from dispositions of property in the second period, the fraction that applies to the taxpayer for the year is 1/2, (v) where the taxpayer has only net capital gains, or only net capital losses, from dispositions of property in each of the first and second periods, the fraction that applies to the taxpayer for the
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Income Ta year is the fraction determined by the formula (2/3 x A + 1/2 x B)/(A + B) where A is the net capital gains or the net capital losses, as the case may be, of the taxpayer from dispositions of property in the first period, and B is the net capital gains or the net capital losses, as the case may be, of the taxpayer from dispositions of property in the second period, and (vi) where the net capital gains and net capital losses of the taxpayer for the year are nil, the fraction that applies to the taxpayer for the year is 1/2,
(e) for a taxation year of a taxpayer that includes February 27, 2000 and October 18, 2000, the references to the fraction ‘‘1/2’’ in paragraph 38(a) of the Act, as enacted by subsection (1), and in paragraphs 38(b) and (c) of the Act, as enacted by subsection (4), shall be read as references to the fraction that applies to the taxpayer for that year, and for this purpose, (i) the fraction that applies to the taxpayer for the year is 3/4, where (A) the amount by which the amount of the taxpayer’s net capital gains from dispositions of property in the period that began at the beginning of the year and ended at the end of February 27, 2000 (in this paragraph referred to as the ‘‘first period’’) exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000 (in this paragraph referred to as the ‘‘second period’’) exceeds (B) the amount of the taxpayer’s net capital losses from dispositions of property in the period that begins at
Impôt sur le re the beginning of October 18, 2000 and ends at the end of the year (in this paragraph referred to as the ‘‘third period’’), (ii) the fraction that applies to the taxpayer for the year is 3/4, where (A) the amount by which the amount of the taxpayer’s net capital losses from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the second period exceeds (B) the amount of the taxpayer’s net capital gains from dispositions of property in the third period, (iii) the fraction that applies to the taxpayer for the year is 2/3, where (A) the amount by which the amount of the taxpayer’s net capital gains from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the first period exceeds (B) the amount of the taxpayer’s net capital losses from dispositions of property in the third period, (iv) the fraction that applies to the taxpayer for the year is 2/3, where (A) the amount by which the amount of the taxpayer’s net capital losses from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the first period exceeds (B) the amount of the taxpayer’s net capital gains from dispositions of property in the third period, (v) where the taxpayer has net capital gains in each of the first and second periods and the total amount of those
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Income Ta net capital gains in those periods exceeds the amount of the taxpayer’s net capital losses in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (3/4 x A + 2/3 x B)/(A + B) where A is the net capital gains of the taxpayer from dispositions of property in the first period, and B is the net capital gains of the taxpayer from dispositions of property in the second period, (vi) where the taxpayer has net capital losses in each of the first and second periods and the total amount of those net capital losses in those periods exceeds the amount of the taxpayer’s net capital gains in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (3/4 x A + 2/3 x B)/(A + B) where A is the net capital losses of the taxpayer from dispositions of property in the first period, and B is the net capital losses of the taxpayer from dispositions of property in the second period, (vii) where the taxpayer has only net capital gains, or only net capital losses, from dispositions of property in each of the first, second and third periods, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula
Impôt sur le re (3/4 x A + 2/3 x B + 1/2 x C)/(A + B + C) where A is the taxpayer’s net capital gains or net capital losses, as the case may be, from dispositions of property in the first period, B is the taxpayer’s net capital gains or net capital losses, as the case may be, from dispositions of property in the second period, and C is the taxpayer’s net capital gains or net capital losses, as the case may be, from dispositions of property in the third period, (viii) where the amount of the taxpayer’s net capital gains from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the second period and the taxpayer has net capital gains from dispositions of property in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (3/4 x A + 1/2 x B)/(A + B) where A is the amount by which the taxpayer’s net capital gains from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the second period, and B is the taxpayer’s net capital gains from dispositions of property in the third period, (ix) where the amount of the taxpayer’s net capital losses from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the second period and the taxpayer has
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Income Ta net capital losses from dispositions of property in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (3/4 x A + 1/2 x B)/(A + B) where A is the amount by which the taxpayer’s net capital losses from dispositions of property in the first period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the second period, and B is the taxpayer’s net capital losses from dispositions of property in the third period, (x) where the amount of the taxpayer’s net capital gains from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the first period and the taxpayer has net capital gains from dispositions of property in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (2/3 x A + 1/2 x B)/(A + B) where A is the amount by which the taxpayer’s net capital gains from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital losses from dispositions of property in the first period, and B is the taxpayer’s net capital gains from dispositions of property in the third period, (xi) where the amount of the taxpayer’s net capital losses from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the first period and the taxpayer has net capital losses from dispositions of
Impôt sur le re property in the third period, the fraction that applies to the taxpayer for the year is the fraction that is determined by the formula (2/3 x A + 1/2 x B)/(A + B) where A is the amount by which the taxpayer’s net capital losses from dispositions of property in the second period exceeds the amount of the taxpayer’s net capital gains from dispositions of property in the first period, and B is the taxpayer’s net capital losses from dispositions of property in the third period, and (xii) in any other case, the fraction that applies to the taxpayer for the year is 1/2, and in determining the fraction that applies to a taxpayer under paragraphs (a) to (e) for the year, the following rules apply: (f) the net capital gains of the taxpayer from dispositions of property in a period is the amount, if any, by which the taxpayer’s capital gains from dispositions of property in the period exceed the taxpayer’s capital losses from dispositions of property in the period, (g) the net capital losses of the taxpayer from dispositions of property in a period is the amount, if any, by which the taxpayer’s capital losses from dispositions of property in the period exceed the taxpayer’s capital gains from dispositions of property in the period, (h) the net amount included as a capital gain of the taxpayer for a taxation year from a disposition to which paragraph 38(a.2) of the Act, as enacted by subsection (3), applies or from a disposition to which paragraph 38(a.1) of the Act, as enacted by subsection (2), applies, is deemed to be equal to one half of the capital gain, (i) the net amount included as a capital gain of the taxpayer for a taxation year
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from a disposition of property before the year because of subparagraphs 40(1)(a)(ii) and (iii) of the Act is deemed to be a capital gain of the taxpayer from a disposition of property on the first day of the year, (j) each capital loss that is a business investment loss shall be determined without reference to subsections 39(9) and (10) of the Act, (k) where an amount is included in computing the income of the taxpayer for the year because of subsection 80(13) of the Act in respect of a commercial obligation that is settled, the amount that would be determined under that subsection in respect of the obligation, if the value of E in the formula in that subsection were 1, is deemed to be a capital gain of the taxpayer from a disposition of property on the day on which the settlement occurs, (l) the taxpayer’s capital gains and losses from dispositions of property (other than taxable Canadian property) while the taxpayer is a non-resident are deemed to be nil, (m) where an election is made by a taxpayer under paragraph 104(21.4)(d) of the Act, as enacted by subsection 78(23), subsection 104(21.5) of the Act, as enacted by subsection 78(23), subsection 130.1(4.4) or (4.5) of the Act, as enacted by subsection 127(4), or subsection 131(1.7) or (1.9) of the Act, as enacted by subsection 128(2), for a year, the portion of the taxpayer’s net capital gains for the year that are to be treated as being in respect of capital gains realized on dispositions of property that occurred in a particular period in the year is that proportion of those net capital gains that the number of days in the particular period is of the number of days in the year, (n) where the election made under paragraph 104(21.4)(d) of the Act, as enacted by subsection 78(23), or subsection
Impôt sur le re 104(21.5) of the Act, as enacted by subsection 78(23), for the year was made by a personal trust, the portion of the taxpayer’s net capital gains for the year that are to be treated as being in respect of capital gains realized on dispositions of property that occurred in a particular period in the year is that proportion of those net capital gains that the number of days in the particular period is of the number of days that are in all periods in the year in which a net gain was realized, (o) where an amount is designated under subsection 104(21) of the Act in respect of a beneficiary by a trust in respect of the net taxable capital gains of the trust for a taxation year of the trust and the trust does not elect under paragraph 104(21.4)(d) of the Act, as enacted by subsection 78(23), for the year, the deemed gains of the beneficiary referred to in subsection 104(21.4) of the Act, as enacted by subsection 78(23), are deemed to have been realized in each period in the year in a proportion that is equal to the same proportion that the net capital gains of the trust realized by the trust in that period is of all the net capital gains realized by the trust in the year, (p) where in the course of administering the estate of a deceased taxpayer, a capital loss from a disposition of property by the legal representative of a deceased taxpayer is deemed under paragraph 164(6)(c) of the Act to be a capital loss of the deceased taxpayer from the disposition of property by the taxpayer in the taxpayer’s last taxation year and not to be a capital loss of the estate, the capital loss is deemed to be from the disposition of a property by the taxpayer immediately before the taxpayer’s death, (q) each capital gain referred to in paragraph 104(21.4)(a) of the Act, as enacted by subsection 78(23), in respect of a beneficiary, shall be determined as if that paragraph were read without reference to subparagraph 104(21.4)(a)(ii) of the Act,
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(r) where no capital gains or losses are realized in a period, the amount of net capital gains or losses for that period is deemed to be nil, (s) where a net amount is included as a capital gain of a taxpayer for a taxation year because of the granting of an option under subsection 49(1) of the Act, the net amount is deemed to be a capital gain of the taxpayer from a disposition of property on the day on which the option was granted, (t) where a net amount is included as a capital gain of a corporation for its taxation year under subsection 49(2) of the Act because of the expiration of an option that was granted by the corporation, the net amount is deemed to be a capital gain of the corporation from a disposition of property on the day on which the option expired, (u) where a net amount is included as a capital gain of a trust for its taxation year under subsection 49(2.1) of the Act because of the expiration of an option that was granted by the trust, the net amount is deemed to be a capital gain of the trust from a disposition of property on the day on which the option expired, and (v) where a net amount is included as a capital gain of a taxpayer for a taxation year because of subsection 49(3), (3.01) or (3.1) of the Act, the net amount is deemed to be a capital gain of the taxpayer from a disposition of property on the day on which the option was exercised.
Impôt sur le re
(6) Subsection (2) applies to the 2000 and subsequent taxation years except that (a) for a taxation year of a taxpayer that includes February 28, 2000 or October 17, 2000, the reference to the fraction ‘‘1/4’’ in paragraph 38(a.1) of the Act, as enacted by subsection (2), shall be read as a reference to 1/2 of the fraction in paragraph 38(a) of the Act, as enacted by subsection (1), that applies to the taxpayer for the year; (a.1) for a taxation year that began after February 28, 2000 and ended before October 17, 2000, the reference to the fraction ‘‘1/4’’ in paragraph 38(a.1) of the Act, as enacted by subsection (2), shall be read as a reference to the fraction ‘‘1/3’’; and (b) for a taxation year that ended before February 28, 2000, the reference to the fraction ‘‘1/4’’ in paragraph 38(a.1) of the Act, as enacted by subsection (2), shall be read as a reference to the fraction ‘‘3/8’’.
(7) Subsection (3) applies to gifts made by a taxpayer after February 27, 2000 except that (a) if the taxpayer’s taxation year began after February 28, 2000 and ended before October 17, 2000, the reference to the fraction ‘‘1/4’’ in paragraph 38(a.2) of the Act, as enacted by subsection (3), shall be read as a reference to the fraction ‘‘1/3’’; and (b) if the taxpayer’s taxation year includes February 28, 2000 or October 17,
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2000, the reference to the fraction ‘‘1/4’’ in paragraph 38(a.2) of the Act, as enacted by subsection (3), shall be read as a reference to 1/2 of the fraction in paragraph 38(a) of the Act, as enacted by subsection (1), that applies to the taxpayer for the year. 23. (1) Subparagraphs 39(9)(b)(i) to (i.2) of the Act are replaced by the following: (i) the total of all amounts each of which is twice the amount deducted by the taxpayer under section 110.6 in computing the taxpayer’s taxable income for a preceding taxation year that (A) ended before 1988, or (B) begins after October 17, 2000, (i.1) the total of all amounts each of which is (A) 3/2 of the amount deducted under section 110.6 in computing the taxpayer’s taxable income for a preceding taxation year that (I) ended after 1987 and before 1990, or (II) began after February 27, 2000 and ended before October 18, 2000, or (B) the amount determined by multiplying the reciprocal of the fraction in paragraph 38(a) that applies to the taxpayer for each of the taxpayer’s taxation years that includes February 28, 2000 or October 18, 2000 by the amount deducted under section 110.6 in computing the taxpayer’s taxable income for that year, and (i.2) the total of all amounts each of which is 4/3 of the amount deducted under section 110.6 in computing the taxpayer’s taxable income for a preceding taxation year that ended after 1989 and before February 28, 2000
(2) Subparagraphs 39(10)(b)(i) to (i.2) of the Act are replaced by the following:
Impôt sur le re (i) the total of all amounts each of which is twice the amount designated by the trust under subsection 104(21.2) in respect of a beneficiary in its return of income for a preceding taxation year that (A) ended before 1988, or (B) begins after October 17, 2000, (i.1) the total of all amounts each of which is (A) 3/2 of the amount designated by the trust under subsection 104(21.2) in respect of a beneficiary in its return of income for a preceding taxation year that (I) ended after 1987 and before 1990, or (II) began after February 27, 2000 and ended before October 18, 2000, or (B) the amount determined by multiplying the reciprocal of the fraction in paragraph 38(a) that applies to the trust for each of the trust’s taxation years that includes February 28, 2000 or October 18, 2000 by the amount designated by the trust under subsection 104(21.2) in respect of a beneficiary in its return of income for that year, and (i.2) the total of all amounts each of which is 4/3 of the amount designated by the trust under subsection 104(21.2) in respect of a beneficiary in its return of income for a preceding taxation year that ended after 1989 and before February 28, 2000
(3) Subsection 39(11) of the Act is replaced by the following: Recovery of bad debt
(11) Where an amount is received in a taxation year on account of a debt (in this subsection referred to as the ‘‘recovered amount’’) in respect of which a deduction for
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bad debts had been made under subsection 20(4.2) in computing a taxpayer’s income for a preceding taxation year, the amount, if any, by which 1/2 of the recovered amount exceeds the amount determined under paragraph 12(1)(i.1) in respect of the recovered amount is deemed to be a taxable capital gain of the taxpayer from a disposition of capital property in the year. (4) Subsections (1) to (3) apply to taxation years that end after February 27, 2000 except that, for taxation years that ended after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘1/2’’ in subsection 39(11) of the Act, as enacted by subsection (3), shall be read as a reference to the fraction ‘‘2/3’’. 24. (1) Paragraphs (a) and (b) of the description of C in the definition ‘‘exempt capital gains balance’’ in subsection 39.1(1) of the Act are replaced by the following: (a) if the entity is a trust described in any of paragraphs (d) and (h) to (j) of the definition ‘‘flow-through entity’’ in this subsection, the total of (i) 3/2 of the total of all amounts each of which is the amount by which the individual’s taxable capital gain (determined without reference to this section), for a preceding taxation year that began after February 27, 2000 and ended before October 18, 2000 that resulted from a designation made under subsection 104(21) by the trust, was reduced under subsection (3), (ii) 4/3 of the total of all amounts each of which is the amount by which the individual’s taxable capital gain (determined without reference to this section), for a preceding taxation year that ended before February 28, 2000 and that resulted from a designation made under subsection 104(21) by the trust, was reduced under subsection (3), (iii) the amount claimed by the individual under subparagraph
Impôt sur le re 104(21.4)(a)(ii) or (21.7)(b)(ii) for a preceding taxation year, and (iv) twice the total of all amounts each of which is the amount by which the individual’s taxable capital gain (determined without reference to this section) for a preceding taxation year that began after October 17, 2000 and that resulted from a designation made under subsection 104(21) by the trust, was reduced under subsection (3), (b) if the entity is a partnership, the total of (i) 3/2 of the total of (A) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s taxable capital gains (determined without reference to this section), for its fiscal period that began after February 27, 2000 and ended before October 18, 2000, was reduced under subsection (4), and (B) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s income from a business (determined without reference to this section), for its fiscal period that began after February 27, 2000 and ended before October 18, 2000, was reduced under subsection (5), (ii) 4/3 of the total of (A) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s taxable capital gains (determined without reference to this section), for its fiscal period that ended before February 28, 2000 and in a preceding taxation year was reduced under subsection (4), and (B) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s income from a business (determined without reference to this
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Income Ta section), for its fiscal period that ended before February 28, 2000 and in a preceding taxation year, was reduced under subsection (5), (iii) the product obtained when the reciprocal of the fraction in paragraph 38(a) that applies to the partnership for its fiscal period that includes February 28, 2000 or October 17, 2000 is multiplied by the total of (A) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s taxable capital gains (determined without reference to this section), for its fiscal period that includes February 28, 2000 or October 17, 2000 and ended in a preceding taxation year, was reduced under subsection (4), and (B) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s income from a business (determined without reference to this section), for its fiscal period that includes February 28, 2000 or October 17, 2000 and ended in a preceding taxation year was reduced under subsection (5), and (iv) twice the total of (A) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s taxable capital gains (determined without reference to this section), for its fiscal period that began after October 17, 2000 and ended in a preceding taxation year, was reduced under subsection (4), and (B) the total of all amounts each of which is the amount by which the individual’s share of the partnership’s income from a business (determined without reference to this section), for its fiscal period that began after October 17, 2000 and
Impôt sur le re ended in a preceding taxation year, was reduced under subsection (5), and
(2) Paragraphs (a) and (b) of the description of B in subsection 39.1(2) of the Act are amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (3) Subsection 39.1(3) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (4) The description of A in subsection 39.1(4) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (5) Subsection 39.1(5) of the Act is replaced by the following: Reduction in share of partnership’s income from a business
(5) An individual’s share otherwise determined for a taxation year of the income of a partnership from a business for the partnership’s fiscal period that ends in the year and the individual’s share of the partnership’s taxable capital gain, if any, arising under paragraph 14(1)(b) shall be reduced by such amount as the individual claims, not exceeding the lesser of
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(a) the amount, if any, by which 1/2 of the individual’s exempt capital gains balance for the year in respect of the partnership exceeds the total of (i) the amount, if any, claimed under subsection (4) by the individual for the year in respect of the partnership, and (ii) all amounts, if any, claimed under this subsection by the individual for the year in respect of other businesses of the partnership, and (b) the amount determined by the formula A x (B/C) where A is the amount included under paragraph 14(1)(b) in computing the income of the partnership from the business for the fiscal period, B is the amount that would otherwise be the individual’s share of the partnership’s income from the business for the fiscal period, and C is the partnership’s income from the business for the fiscal period.
(6) Subsection (1) applies to taxation years that end after February 27, 2000.
(7) Subsections (2) to (5) apply to taxation years that end after February 27, 2000 except that, where the taxation year of an entity that ends in the taxpayer’s taxation year includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, (a) the reference to the word ‘‘twice’’ in paragraphs (a) and (b) of the description of B in subsection 39.1(2) of the Act, as enacted by subsection (2), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction
Impôt sur le re in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the entity for its taxation year that ends in the taxpayer’s taxation year, multiplied by’’; (b) the reference to the fraction ‘‘1/2’’ in subsection 39.1(3) of the Act, as enacted by subsection (3), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the entity for its taxation year that ends in the taxpayer’s taxation year; (c) the reference to the fraction ‘‘1/2’’ in the description of A in subsection 39.1(4) of the Act, as enacted by subsection (4), shall be read as reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the entity for its taxation year that ends in the taxpayer’s taxation year; (d) the reference to the fraction ‘‘1/2’’ in subsection 39.1(5) of the Act, as enacted by subsection (5), shall be read as reference to the fraction in paragraph 14(1)(b) of the Act, as enacted by subsection 7(1), that applies to the entity for its taxation year that ends in the taxpayer’s taxation year; and (e) subparagraph 39.1(5)(a)(i) of the Act, as enacted by subsection (5), shall be read as follows: (i) the amount, if any, claimed under subsection (4) by the individual for the year in respect of the partnership multiplied by the fraction obtained when the fraction in paragraph 14(1)(b) applicable to the entity for its taxation year that ends in the taxpayer’s taxation year is divided by the fraction in paragraph 38(a) that applies to the entity for that taxation year.
25. (1) Clause 40(2)(g)(iv)(A) of the Act is replaced by the following:
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Income Ta (A) a trust governed by a deferred profit sharing plan, an employees profit sharing plan or a registered retirement income fund under which the taxpayer is a beneficiary or immediately after the disposition becomes a beneficiary, or
(2) Paragraph 40(3.14)(a) of the Act is replaced by the following: (a) by operation of any law governing the partnership arrangement, the liability of the member as a member of the partnership is limited (except by operation of a provision of a statute of Canada or a province that limits the member’s liability only for debts, obligations and liabilities of the partnership, or any member of the partnership, arising from negligent acts or omissions or misconduct that another member of the partnership or an employee, agent or representative of the partnership commits in the course of the partnership business while the partnership is a limited liability partnership); (3) Section 40 of the Act is amended by adding the following after subsection (3.6): Losses of non-resident
(3.7) If an individual disposes of a property at any time after having ceased to be resident in Canada, for the purposes of applying subsections 100(4), 107(1) and 112(3) to (3.32) and (7) in computing the individual’s loss from the disposition, (a) the individual is deemed to be a corporation in respect of dividends received by the individual, or deemed under Part XIII to have been paid to the individual, at a particular time that is after the time at which the individual last acquired the property and at which the individual was non-resident; and (b) an amount on account of (i) each taxable dividend received by the individual at a particular time described in paragraph (a), and (ii) each amount deemed under Part XIII to have been paid to the individual at a particular time described in paragraph
Impôt sur le re (a), as a dividend from a corporation resident in Canada, to the extent that the amount can reasonably be considered to relate to the property, is deemed to be a taxable dividend that was received by the individual and that was deductible under section 112 in computing the individual’s taxable income or taxable income earned in Canada for the taxation year that includes that particular time. (4) The portion of subsection 40(9) of the Act before the formula is replaced by the following:
Additions to taxable Canadian property
(9) If a non-resident person disposes of a taxable Canadian property (a) that the person last acquired before April 27, 1995, (b) that would not be a taxable Canadian property immediately before the disposition if section 115 were read as it applied to dispositions that occurred on April 26, 1995, and (c) that would be a taxable Canadian property immediately before the disposition if section 115 were read as it applied to dispositions that occurred on January 1, 1996, the person’s gain or loss from the disposition is deemed to be the amount determined by the formula (5) Subsection (1) applies to the 1998 and subsequent taxation years. (6) Subsection (2) applies after 1997. (7) Subsection (3) applies to dispositions after December 23, 1998 by individuals who cease to be resident in Canada after October 1, 1996. (8) Subsection (4) applies to dispositions that occur after April 26, 1995. 26. (1) Subsection 41(1) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’.
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(2) Subsection (1) applies to taxation years that end after February 27, 2000 except that, for taxation years that include February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the fraction ‘‘1/2’’ in subsection 41(1) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year. 27. (1) Section 43 of the Act is replaced by the following: General rule for part dispositions
43. (1) For the purpose of computing a taxpayer’s gain or loss for a taxation year from the disposition of part of a property, the adjusted cost base to the taxpayer, immediately before the disposition, of that part is the portion of the adjusted cost base to the taxpayer at that time of the whole property that can reasonably be regarded as attributable to that part.
Ecological gifts
(2) For the purposes of subsection (1) and section 53, where at any time a taxpayer disposes of a servitude, covenant or easement to which land is subject in circumstances where subsection 110.1(5) or 118.1(12) applies, (a) the portion of the adjusted cost base to the taxpayer of the land immediately before the disposition that can reasonably be regarded as attributable to the servitude, covenant or easement, as the case may be, is deemed to be equal to the amount determined by the formula A x B/C where A is the adjusted cost base to the taxpayer of the land immediately before the disposition, B is the amount determined under subsection 110.1(5) or 118.1(12) in respect of the disposition, and C is the fair market value of the land immediately before the disposition; and
Impôt sur le re (b) for greater certainty, the cost to the taxpayer of the land shall be reduced at the time of the disposition by the amount determined under paragraph (a).
Payments out of trust income, etc.
(3) Notwithstanding subsection (1), where part of a capital interest of a taxpayer in a trust would, but for paragraph (h) or (i) of the definition ‘‘disposition’’ in subsection 248(1), be disposed of solely because of the satisfaction of a right to enforce payment of an amount by the trust, no part of the adjusted cost base to the taxpayer of the taxpayer’s capital interest in the trust shall be allocated to that part of the capital interest. (2) Subsection 43(1) of the Act, as enacted by subsection (1), applies after February 27, 1995. (3) Subsection 43(2) of the Act, as enacted by subsection (1), applies in respect of gifts made after February 27, 1995. (4) Subsection 43(3) of the Act, as enacted by subsection (1), applies to satisfactions of rights that occur after 1999. 28. (1) The portion of subsection 44(1) of the Act before paragraph (a) is replaced by the following:
Exchanges of property
44. (1) Where at any time in a taxation year (in this subsection referred to as the ‘‘initial year’’) an amount has become receivable by a taxpayer as proceeds of disposition of a capital property that is not a share of the capital stock of a corporation (which capital property is in this section referred to as the taxpayer’s ‘‘former property’’) that is either (2) Subsection (1) applies to shares disposed of after April 15, 1999, other than shares disposed of after that date as a consequence of a public takeover bid or offer filed with a public authority before April 16, 1999. 29. (1) The Act is amended by adding the following after section 44:
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Definitions
44.1 (1) The definitions in this subsection apply in this section.
‘‘ACB reduction’’ « réduction du prix de base rajusté »
‘‘ACB reduction’’ of an individual in respect of a replacement share of the individual in respect of a qualifying disposition of the individual means the amount determined by the formula D x (E/F) where D is the permitted deferral of the individual in respect of the qualifying disposition; E is the qualifying cost to the individual of the replacement share; and F is the qualifying cost to the individual of all the replacement shares of the individual in respect of the qualifying disposition.
‘‘active business corporation’’ « société exploitant activement une entreprise »
‘‘active business corporation’’ at any time means, subject to subsection (10), a corporation that is, at that time, a taxable Canadian corporation all or substantially all of the fair market value of the assets of which at that time is attributable to assets of the corporation that are (a) assets used principally in an active business carried on by the corporation or by an active business corporation that is related to the corporation; (b) shares issued by or debt owing by other active business corporations that are related to the corporation; or (c) a combination of assets described in paragraphs (a) and (b).
‘‘carrying value’’ « valeur comptable »
‘‘carrying value’’ of the assets of a corporation at any time means the amount at which the assets of the corporation would be valued for the purpose of the corporation’s balance sheet as of that time if that balance sheet were prepared in accordance with generally accepted accounting principles used in Canada at that time, except that an asset of a corporation that is a share or debt issued by a related corporation is deemed to have a carrying value of nil.
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‘‘common share’’ « action ordinaire »
‘‘common share’’ means a share prescribed for the purpose of paragraph 110(1)(d).
‘‘eligible pooling arrangement’’ « arrangement admissible de mise en commun »
‘‘eligible pooling arrangement’’ in respect of an individual means an agreement in writing made between the individual and another person or partnership (which other person or partnership is referred to in this definition and subsection (3) as the ‘‘investment manager’’) where the agreement provides for (a) the transfer of funds or other property by the individual to the investment manager for the purpose of making investments on behalf of the individual; (b) the purchase of eligible small business corporation shares with those funds, or the proceeds of a disposition of the other property, within 60 days after receipt of those funds or the other property by the investment manager; and (c) the provision of a statement of account to the individual by the investment manager at the end of each month that ends after the transfer disclosing the details of the investment portfolio held by the investment manager on behalf of the individual at the end of that month and the details of the transactions made by the investment manager on behalf of the individual during the month.
‘‘eligible small business corporation’’ « société admissible exploitant une petite entreprise »
‘‘eligible small business corporation’’ at any time means, subject to subsection (10), a corporation that, at that time, is a Canadiancontrolled private corporation all or substantially all of the fair market value of the assets of which at that time is attributable to assets of the corporation that are (a) assets used principally in an active business carried on primarily in Canada by the corporation or by an eligible small business corporation that is related to the corporation; (b) shares issued by or debt owing by other eligible small business corporations that are related to the corporation; or
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Income Ta (c) a combination of assets described in paragraphs (a) and (b).
‘‘eligible small business corporation share’’ « action déterminée de petite entreprise »
‘‘eligible small business corporation share’’ of an individual means a common share issued by a corporation to the individual if (a) at the time the share was issued, the corporation was an eligible small business corporation; and (b) immediately before and after the share was issued, the total carrying value of the assets of the corporation and corporations related to it did not exceed $50,000,000.
‘‘permitted deferral’’ « montant de report autorisé »
‘‘permitted deferral’’ of an individual in respect of a qualifying disposition of the individual means the amount determined by the formula (G/H) x I where G is the lesser of the amount included in the description of H and the total of all amounts each of which is the qualifying cost to the individual of a replacement share in respect of the qualifying disposition; H is the qualifying portion of the individual’s proceeds of disposition from the qualifying disposition; and I
‘‘qualifying cost’’ « coût admissible »
is the qualifying portion of the individual’s capital gain from the qualifying disposition.
‘‘qualifying cost’’ to an individual of particular replacement shares of the individual in respect of a qualifying disposition of the individual that are shares of the capital stock of a particular eligible small business corporation means the lesser of (a) the total of all amounts each of which is the cost to the individual of such a replacement share; and (b) the amount by which $2,000,000 exceeds the total of all amounts each of which is the cost to the individual of a
Impôt sur le re share that was a share of the capital stock of the particular eligible small business corporation or of a corporation related to it at the time the particular replacement shares were acquired and that was a replacement share of the individual in respect of another qualifying disposition.
‘‘qualifying disposition’’ « disposition admissible »
‘‘qualifying disposition’’ of an individual (other than a trust) means, subject to subsection (9), a disposition of shares of the capital stock of a corporation where each such share disposed of was (a) an eligible small business corporation share of the individual; (b) throughout the period during which the individual owned the share, a common share of an active business corporation; and (c) throughout the 185-day period that ended immediately before the disposition of the share, owned by the individual.
‘‘qualifying portion of a capital gain’’ « partie admissible d’un gain en capital »
‘‘qualifying portion of a capital gain’’ of an individual from a particular qualifying disposition of the individual means the amount determined by the formula J x (1 - (K/L)) where J
is the individual’s capital gain from the particular qualifying disposition, determined without reference to this section;
K is the amount, if any, by which the total of (a) the total of all amounts each of which is the adjusted cost base to the individual of a share of a particular corporation that was the subject of the particular qualifying disposition (which adjusted cost base shall be determined immediately before the share was disposed of and without reference to this section), and (b) the total of all amounts each of which is the adjusted cost base to the individual of a share of the particular
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Income Ta corporation or a corporation related to it at the time of the particular qualifying disposition that was the subject of another qualifying disposition (in respect of which a permitted deferral was deducted under this section by the individual) that occurred at or before the time of the particular qualifying disposition (which adjusted cost base shall be determined immediately before the share was disposed of and without reference to this section) exceeds (c) $2,000,000; and
L is the total of all amounts each of which is the adjusted cost base to the individual of a share of the particular corporation that was the subject of the particular qualifying disposition (which adjusted cost base shall be determined immediately before the share was disposed of and without reference to this section). ‘‘qualifying portion of the proceeds of disposition’’ « partie admissible du produit de disposition »
‘‘qualifying portion of the proceeds of disposition’’ of an individual from a qualifying disposition means the amount determined by the formula M x (N/O) where M is the individual’s proceeds of disposition from the qualifying disposition; N is the individual’s qualifying portion of the capital gain from the qualifying disposition; and O is the individual’s capital gain from the qualifying disposition, determined without reference to this section.
‘‘replacement share’’ « action de remplacement »
‘‘replacement share’’ of an individual in respect of a qualifying disposition of the individual in a taxation year means an eligible small business corporation share of the individual that is (a) acquired by the individual in the year or within 60 days after the end of the year, but not later than 120 days after the qualifying disposition occurred; and
Impôt sur le re (b) designated by the individual in the individual’s return of income for the year to be a replacement share in respect of the qualifying disposition.
Capital gain deferral
(2) Where an individual has made a qualifying disposition in a taxation year, (a) the individual’s capital gain for the year from the qualifying disposition is deemed to be the amount by which the individual’s capital gain for the year from the qualifying disposition, determined without reference to this section, exceeds the individual’s permitted deferral in respect of the qualifying disposition; (b) in computing the adjusted cost base to the individual of a replacement share of the individual in respect of the qualifying disposition at any time after its acquisition, there shall be deducted the amount of the ACB reduction of the individual in respect of the replacement share; and (c) where the qualifying disposition was a disposition of a share that was a taxable Canadian property of the individual, the replacement share of the individual in respect of the qualifying disposition is deemed to be taxable Canadian property of the individual.
Special rule — re eligible pooling arrangements
(3) Except for the purpose of the definition ‘‘eligible pooling arrangement’’ in subsection (1), any transaction entered into by an investment manager under an eligible pooling arrangement on behalf of an individual is deemed to be a transaction of the individual and not a transaction of the investment manager.
�� Special rule — re acquisitions on death
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(4) For the purpose of this section, a share of the capital stock of a corporation, acquired by an individual as a consequence of the death of a person who is the individual’s spouse, common-law partner or parent, is deemed to be a share that was acquired by the individual at the time it was acquired by that person and owned by the individual throughout the period that it was owned by that person, if (a) where the person was the spouse or common-law partner of the individual, the share was an eligible small business share of the person and subsection 70(6) applied to the individual in respect of the share; or (b) where the person was the individual’s parent, the share was an eligible small business share of the parent and subsection 70(9.2) applied to the individual in respect of the share.
Special rule — re breakdown of relationships
(5) For the purpose of this section, a share of the capital stock of a corporation, acquired by an individual from a person who was the individual’s former spouse or common-law partner as a consequence of the settlement of rights arising out of their marriage or common-law partnership, is deemed to be a share that was acquired by the individual at the time it was acquired by that person and owned by the individual throughout the period that it was owned by that person if the share was an eligible small business share of the person and subsection 73(1) applied to the individual in respect of the share.
Special rule — re eligible small business corporation share exchanges
(6) For the purpose of this section, where an individual receives shares of the capital stock of a corporation that are eligible small business corporation shares of the individual (in this subsection referred to as the ‘‘new shares’’) as the sole consideration for the disposition of shares issued by another corporation that were eligible small business corporation shares of the individual (in this subsection referred to as the ‘‘exchanged shares’’), the new shares are deemed to have been owned by the individual throughout the period
Impôt sur le re that the exchanged shares were owned by the individual if (a) paragraph 85(1)(h) or subsection 85.1(3) or 87(4) applied to the individual in respect of the new shares; and (b) the individual’s total proceeds of disposition of the exchanged shares was equal to the total of all amounts each of which was the individual’s adjusted cost base of an exchanged share immediately before the disposition.
Special rule — re active business corporation share exchanges
(7) For the purpose of this section, where an individual receives common shares of the capital stock of a corporation (in this subsection referred to as the ‘‘new shares’’) as the sole consideration for the disposition of common shares of another corporation (in this subsection referred to as the ‘‘exchanged shares’’), the new shares are deemed to be eligible small business corporation shares of the individual and shares of the capital stock of an active business corporation that were owned by the individual throughout the period that the exchanged shares were owned by the individual, if (a) paragraph 85(1)(h) or subsection 85.1(3) or 87(4) applied to the individual in respect of the new shares; (b) the total of the individual’s proceeds of disposition in respect of the disposition of the exchanged shares was equal to the total of the individual’s adjusted cost bases immediately before the disposition of such shares; and (c) the disposition of the exchanged shares was a qualifying disposition of the individual.
Special rule — re carrying on an active business
(8) For the purpose of the definitions in subsection (1), a property held at any particular time by a corporation that would, if this Act were read without reference to this subsection, be considered to carry on an active business at that time, is deemed to be used or held by the corporation in the course of carrying on that active business if the property (or other
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property for which the property is substituted property) was acquired by the corporation, at any time in the 36-month period ending at the particular time, because the corporation (a) issued a debt or a share of a class of its capital stock in order to acquire money for the purpose of acquiring property to be used in or held in the course of, or making expenditures for the purpose of, earning income from an active business carried on by it; (b) disposed of property used or held by it in the course of carrying on an active business in order to acquire money for the purpose of acquiring property to be used in or held in the course of, or making expenditures for the purpose of, earning income from an active business carried on by it; or (c) accumulated income derived from an active business carried on by it in order to acquire property to be used in or held in the course of, or to make expenditures for the purpose of, earning income from an active business carried on by it.
Special rule — re qualifying disposition
(9) A disposition of a common share of an active business corporation (in this subsection referred to as the ‘‘subject share’’) by an individual that, but for this subsection, would be a qualifying disposition of the individual is deemed not to be a qualifying disposition of the individual unless the active business of the corporation referred to in paragraph (a) of the definition ‘‘active business corporation’’ in subsection (1) was carried on primarily in Canada (a) at all times in the period that began at the time the individual last acquired the subject share and ended at the time of disposition, if that period is less than 730 days; or (b) in any other case, for at least 730 days in the period referred to in paragraph (a).
2001 Special rule — re exceptions
Impôt sur le re (10) For the purpose of this section, an eligible small business corporation and an active business corporation at any time do not include a corporation that is, at that time, (a) a professional corporation; (b) a specified financial institution; (c) a corporation the principal business of which is the leasing, rental, development or sale, or any combination of those activities, of real property owned by it; or (d) a corporation more than 50 per cent of the fair market value of the property of which (net of debts incurred to acquire the property) is attributable to real property.
Determination rule
(11) In determining whether a share owned by an individual is an eligible small business corporation share of the individual, this Act shall be read without reference to section 48.1.
Anti-avoidance rule
(12) The permitted deferral of an individual in respect of a qualifying disposition of shares issued by a corporation (in this subsection referred to as ‘‘new shares’’) is deemed to be nil where (a) the new shares (or shares for which the new shares are substituted property) were issued to the individual or a person related to the individual as part of a series of transactions or events in which (i) shares of the capital stock of a corporation (in this subsection referred to as the ‘‘old shares’’) were disposed of by the individual or a person related to the individual, or (ii) the paid-up capital of old shares or the adjusted cost base to the individual or to a person related to the individual of the old shares was reduced; (b) the new shares (or shares for which the new shares are substituted property) were issued by the corporation that issued the old shares or were issued by a corporation that, at or immediately after the time of issue of those shares, was a corporation that was not dealing at arm’s length with the corporation that issued the old shares; and
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(c) it is reasonable to conclude that one of the main reasons for the series of transactions or events or a transaction in the series was to permit the individual, persons related to the individual, or the individual and persons related to the individual to become eligible to deduct under subsection (2) permitted deferrals in respect of qualifying dispositions of new shares (or shares substituted for the new shares) the total of which would exceed the total that those persons would have been eligible to deduct under subsection (2) in respect of permitted deferrals in respect of qualifying dispositions of old shares.
(2) Subsection (1) applies to dispositions that occur after February 27, 2000 except that, for dispositions that occurred after February 27, 2000 and before October 18, 2000, (a) the definition ‘‘active business corporation’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘subject to subsection (10)’’ and as if the reference to the words ‘‘carried on’’ in paragraph (a) of that definition were read as a reference to ‘‘carried on primarily in Canada’’; (b) the definition ‘‘eligible small business corporation’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘subject to subsection (10)’’; (c) the definition ‘‘eligible small business corporation share’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read as follows: ‘‘eligible small business corporation share’’ of an individual means a common share issued by a corporation to the individual if (a) at the time the share was issued, the corporation was an eligible small business corporation;
Impôt sur le re (b) immediately before the share was issued, the total carrying value of the assets of the corporation and corporations related to it did not exceed $2,500,000; and (c) immediately after the share was issued, the total carrying value of the assets of the corporation and corporations related to it did not exceed $10,000,000. (d) the definition ‘‘qualifying cost’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read as if the reference to ‘‘$2,000,000’’ in paragraph (b) of that definition were read as a reference to ‘‘$500,000’’; (e) the definition ‘‘qualifying disposition’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘subject to subsection (9)’’; (f) the definition ‘‘qualifying portion of a capital gain’’ in subsection 44.1(1) of the Act, as enacted by subsection (1), shall be read as if the reference to ‘‘$2,000,000’’ in paragraph (c) of the description of K in that definition were read as a reference to ‘‘$500,000’’; and (g) section 44.1 of the Act, as enacted by subsection (1), shall be read without reference to subsections 44.1(9) and (10) of the Act, as enacted by subsection (1). 30. (1) Subsection 45(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (b), by adding the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) in applying this subsection in respect of a non-resident taxpayer, a reference to ‘‘gaining or producing income’’ shall be read as a reference to ‘‘gaining or producing income from a source in Canada’’. (2) Subsection (1) applies after October 1, 1996.
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31. (1) The portion of subsection 46(1) of the Act before paragraph (a) is replaced by the following: Personal-use property
46. (1) Where a taxpayer has disposed of a personal-use property (other than an excluded property disposed of in circumstances to which subsection 110.1(1), or the definition ‘‘total charitable gifts’’, ‘‘total cultural gifts’’ or ‘‘total ecological gifts’’ in subsection 118.1(1), applies) of the taxpayer, for the purposes of this subdivision
(2) The portion of subsection 46(2) of the Act before paragraph (a) is replaced by the following: Where part only of property disposed of
(2) Where a taxpayer has disposed of part of a personal-use property (other than a part of an excluded property disposed of in circumstances to which subsection 110.1(1), or the definition ‘‘total charitable gifts’’, ‘‘total cultural gifts’’ or ‘‘total ecological gifts’’ in subsection 118.1(1), applies) owned by the taxpayer and has retained another part of the property, for the purposes of this subdivision
(3) Section 46 of the Act is amended by adding the following after subsection (4): Excluded property
(5) For the purpose of this section, ‘‘excluded property’’ of a taxpayer means property acquired by the taxpayer, or by a person with whom the taxpayer does not deal at arm’s length, in circumstances in which it is reasonable to conclude that the acquisition of the property relates to an arrangement, plan or scheme that is promoted by another person or partnership and under which it is reasonable to conclude that the property will be the subject of a gift to which subsection 110.1(1), or the definition ‘‘total charitable gifts’’, ‘‘total cultural gifts’’ or ‘‘total ecological gifts’’ in subsection 118.1(1), applies.
Impôt sur le re (4) Subsections (1) to (3) apply to property acquired after February 27, 2000. 32. (1) Section 47 of the Act is amended by adding the following after subsection (2):
Securities acquired by employee
(3) For the purpose of subsection (1), a security (within the meaning assigned by subsection 7(7)) acquired by a taxpayer after February 27, 2000 is deemed not to be identical to any other security acquired by the taxpayer if (a) the security is acquired in circumstances to which any of subsections 7(1.1), (1.5) or (8) or 147(10.1) applies; or (b) the security is a security to which subsection 7(1.31) applies. (2) Subsection (1) applies after 1999. 33. (1) Subparagraph 48.1(1)(a)(ii) of the Act is replaced by the following: (ii) immediately after that time, ceases to be a small business corporation because a class of its or another corporation’s shares is listed on a prescribed stock exchange, and
(2) Subsection (1) applies to corporations that cease to be small business corporations after 1999. (3) Where a corporation ceases to be a Canadian-controlled private corporation in a taxation year solely because of the application of subsection 113(2) of this Act, an election under subsection 48.1(1) of the Act, as enacted by subsection (1), that is made by an individual in respect of the 1999 or 2000 taxation year is deemed to have been made on time if the election is made on
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or before the individual’s filing-due date for the taxation year in which this Act receives royal assent. 34. (1) Paragraph 49(5)(b) of the Act is replaced by the following: (b) for the purposes of subsections (2) to (4) and subparagraph (b)(iv) of the definition ‘‘disposition’’ in subsection 248(1), the original option and each extension or renewal of it is deemed to be the same option; and (2) Subsection (1) applies to options granted after December 23, 1998. 35. (1) Subsections 52(1) and (1.1) of the Act are replaced by the following: Cost of certain property the value of which included in income
52. (1) Where (a) a taxpayer acquired property after 1971 (other than an annuity contract, a right as a beneficiary under a trust to enforce payment of an amount by the trust to the taxpayer, property acquired in circumstances to which subsection (2) or (3) applies or property acquired from a trust in satisfaction of all or part of the taxpayer’s capital interest in the trust), and (b) an amount in respect of its value was (i) included, otherwise than under section 7, in computing (A) the taxpayer’s taxable income or taxable income earned in Canada, as the case may be, for a taxation year during which the taxpayer was nonresident, or (B) the taxpayer’s income for a taxation year throughout which the taxpayer was resident in Canada, or (ii) for the purpose of computing the tax payable under Part XIII by the taxpayer, included in an amount that was paid or credited to the taxpayer,
Impôt sur le re for the purposes of this subdivision, the amount so included shall be added in computing the cost to the taxpayer of the property, except to the extent that the amount was otherwise added to the cost or included in computing the adjusted cost base to the taxpayer of the property. (2) Subsection 52(6) of the Act is repealed. (3) Subsection (1) applies after 1999 except that, in respect of property acquired before 2000 and disposed of before March 2000, paragraph 52(1)(a) of the Act, as enacted by that subsection, shall be read as follows: (a) a taxpayer acquired property after 1971 (other than an annuity contract or property acquired as described in subsection (2), (3) or (6)), and (4) Subsection (2) applies after 1999, but not to rights that were acquired before 2000 and disposed of before March 2000. 36. (1) Clauses 53(1)(e)(i)(A) and (A.1) of the Act are replaced by the following: (A) the fractions set out in subsection 14(5), paragraphs 38(a) to (a.2), subsection 41(1) and in the formula in paragraph 14(1)(b), (A.1) paragraph 18(1)(l.1), (A.2) the description of C in the formula in paragraph 14(1)(b), and (2) Paragraph 53(1)(j) of the Act is replaced by the following:
Share or fund unit taxed as stock option benefit
(j) if the property is a security (within the meaning assigned by subsection 7(7)) and, in respect of its acquisition by the taxpayer, a benefit was deemed by section 7 to have been received in any taxation year that ends after 1971 and begins before that time by the taxpayer or by a person that did not deal at arm’s length with the taxpayer or, if the security was acquired after February 27, 2000, would have been so deemed if section 7 were read without reference to subsections 7(1.1) and (8), the amount of the benefit that was, or would have been, so deemed to have been received;
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(3) Subparagraph (ii) of the description of A in paragraph 53(1)(r) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (4) Paragraph 53(2)(a) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (iii), by adding the word ‘‘and’’ at the end of subparagraph (iv) and by adding the following after subparagraph (iv): (v) any amount required by paragraph 44.1(2)(b) to be deducted in computing the adjusted cost base to the taxpayer of the share; (5) Clauses 53(2)(c)(i)(A) and (A.1) of the Act are replaced by the following: (A) the fractions set out in subsection 14(5), paragraph 38(b) and in the formula in paragraph 14(1)(b), (A.1) paragraph 18(1)(l.1), (A.2) the description of C in the formula in paragraph 14(1)(b), (6) Clause 53(2)(c)(ii)(B) of the Act is replaced by the following: (B) the Canadian exploration and development expenses and foreign resource pool expenses, if any, incurred by the partnership in the fiscal period, (7) The portion of paragraph 53(2)(h) of the Act before subparagraph (i) is replaced by the following: (h) where the property is a capital interest of the taxpayer in a trust (other than an interest in a personal trust that has never been acquired for consideration or an interest of a taxpayer in a trust described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1)),
(8) Subclause 53(2)(h)(i.1)(B)(I) of the Act is amended by striking out the reference to the expression ‘‘1/3 of’’.
Impôt sur le re (9) The portion of paragraph 53(2)(i) of the Act before subparagraph (i) is replaced by the following: (i) where the property is a capital interest in a trust (other than a unit trust) not resident in Canada that was purchased after 1971 and before that time by the taxpayer from a non-resident person at a time (in this paragraph referred to as the ‘‘purchase time’’) when the property was not taxable Canadian property and the fair market value of such of the trust property as was
(10) The portion of paragraph 53(2)(i) of the Act after subparagraph (v) is replaced by the following: was not less than 50% of the fair market value of all the trust property, that proportion of the amount, if any, by which (vi) the fair market value at the purchase time of such of the trust properties as were properties described in any of subparagraphs (i) to (v) exceeds (vii) the total of the cost amounts to the trust at the purchase time of such of the trust properties as were properties described in any of subparagraphs (i) to (v), that the fair market value at the purchase time of the interest is of the fair market value at the purchase time of all capital interests in the trust;
(11) The portion of paragraph 53(2)(j) of the Act before subparagraph (i) is replaced by the following: (j) where the property is a unit of a unit trust not resident in Canada that was purchased after 1971 and before that time by the taxpayer from a non-resident person at a time (in this paragraph referred to as the ‘‘purchase time’’) when the property was not taxable Canadian property and the fair market value of such of the trust property as was
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(12) The portion of paragraph 53(2)(j) of the Act after subparagraph (v) is replaced by the following: was not less than 50% of the fair market value of all the trust property, that proportion of the amount, if any, by which (vi) the fair market value at the purchase time of such of the trust properties as were properties described in any of subparagraphs (i) to (v) exceeds (vii) the total of the cost amounts to the trust at the purchase time of such of the trust properties as were properties described in any of subparagraphs (i) to (v), that the fair market value at the purchase time of the unit is of the fair market value at the purchase time of all the issued units of the trust;
(13) Subsection 53(3) of the Act is repealed. (14) The portion of subsection 53(4) of the Act before paragraph (a) is replaced by the following: Recomputation of adjusted cost base on transfers and deemed dispositions
(4) Where at any time in a taxation year a person or partnership (in this subsection referred to as the ‘‘vendor’’) disposes of a specified property and the proceeds of disposition of the property are determined under paragraph 48.1(1)(c), section 70 or 73, subsection 85(1), paragraph 87(4)(a) or (c) or 88(1)(a), subsection 97(2) or 98(2), paragraph 98(3)(f) or (5)(f), subsection 104(4), paragraph 107(2)(a), (2.1)(a), (4)(d) or (5)(a), 107.4(3)(a) or 111(4)(e) or section 128.1, (15) Subsections (1) and (5) apply in respect of fiscal periods that end after February 27, 2000 and, for fiscal periods that ended after February 18, 1997 and before February 28, 2000, clause 53(1)(e)(i)(A) of the Act, as enacted by subsection (1), shall be read as follows:
Impôt sur le re (A) the fractions set out in subsection 14(5), paragraphs 38(a) and (a.1) and subsection 41(1),
(16) Subsection (2) applies after 1999. (17) Subsection (3) applies to taxation years that end after February 27, 2000 except that, in applying paragraph 53(1)(r) of the Act, as enacted by subsection (3), for those years in respect of a taxpayer’s interest in an entity, where a taxation year of the entity that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, ends in the taxpayer’s taxation year, the reference to the word ‘‘twice’’ in subparagraph (ii) of the description of A in that paragraph shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies in respect of the entity for its taxation year, multiplied by’’. (18) Subsection (4) applies to dispositions that occur after February 27, 2000. (19) Subsection (6) applies to taxation years that begin after 2000. (20) Subsection (7) applies to amounts that become payable after 1999. (21) Subsection (8) applies to taxation years that end after February 27, 2000 except that, in applying subclause 53(2)(h)(i.1)(B)(I) of the Act, as enacted by subsection (8), for those years in respect of a taxpayer’s interest in a trust, where a taxation year of the trust that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, ends in the taxpayer’s taxation year, the reference to the expression ‘‘that is equal to the’’ in that
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subclause shall be read as a reference to the expression ‘‘that is equal to the fraction obtained when 1 is subtracted from the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the trust for its taxation year, multiplied by’’. (22) Subsections (9) to (12) apply for the purpose of computing the adjusted cost base of property after April 26, 1995. (23) Subsection (13) applies after October 1, 1996. (24) Subsection (14) applies to the 1998 and subsequent taxation years. 37. (1) The definition ‘‘disposition’’ in section 54 of the Act is repealed. (2) Paragraph (c) of the definition ‘‘principal residence’’ in section 54 of the Act is replaced by the following: (c) where the taxpayer is an individual other than a personal trust, unless the particular property was designated by the taxpayer in prescribed form and manner to be the taxpayer’s principal residence for the year and no other property has been designated for the purposes of this definition for the year (i) where the year is before 1982, by the taxpayer, or (ii) where the year is after 1981, (A) by the taxpayer, (B) by a person who was throughout the year the taxpayer’s spouse or common-law partner (other than a spouse or common-law partner who was throughout the year living apart from, and was separated under a judicial separation or written separation agreement from, the taxpayer), (C) by a person who was the taxpayer’s child (other than a child who was at any time in the year a married person, a person who is in a com2001
Impôt sur le re mon-law partnership or 18 years of age or older), or (D) where the taxpayer was not at any time in the year a married person, a person who is in a common-law partnership or 18 years of age or older, by a person who was the taxpayer’s (I) mother or father, or (II) brother or sister, where that brother or sister was not at any time in the year a married person, a person who is in a common-law partnership or 18 years of age or older, (3) Subsection (1) applies to transactions and events that occur after December 23, 1998. (4) Subsection (2) applies to dispositions that occur after 1990 except that clauses (c)(ii)(B) to (D) of the definition ‘‘principal residence’’ in section 54 of the Act, as enacted by subsection (2), shall be read without reference to ‘‘or common-law partner’’ and ‘‘a person who is in a common-law partnership’’ in their application to dispositions made by a taxpayer that occur in a taxation year that is before 2001 and (a) before 1998; or (b) after 1997, unless a valid election is made by the taxpayer under section 144 of the Modernization of Benefits and Obligations Act, that that Act apply to the taxpayer in respect of one or more taxation years that include the year.
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38. (1) Subsection 55(1) of the Act is amended by adding the following in alphabetical order: ‘‘specified corporation’’ « société déterminée »
‘‘specified corporation’’ in relation to a distribution means a distributing corporation (a) that is a public corporation or a specified wholly-owned corporation of a public corporation, (b) shares of the capital stock of which are exchanged for shares of the capital stock of another corporation (referred to in this definition and subsection (3.02) as an ‘‘acquiror’’) in an exchange to which the definition ‘‘permitted exchange’’ in this subsection would apply if that definition were read without reference to paragraph (a) and subparagraph (b)(ii) of that definition, (c) that does not make a distribution, to a corporation that is not an acquiror, after 1998 and before the day that is three years after the day on which the shares of the capital stock of the distributing corporation are exchanged in a transaction described in paragraph (b), and (d) no acquiror in relation to which makes a distribution after 1998 and before the day that is three years after the day on which the shares of the capital stock of the distributing corporation are exchanged in a transaction described in paragraph (b), and, for the purposes of paragraphs (c) and (d), (e) a corporation that is formed by an amalgamation of two or more other
Impôt sur le re corporations is deemed to be the same corporation as, and a continuation of, each of the other corporations, and (f) where there has been a winding-up of a corporation to which subsection 88(1) applies, the parent is deemed to be the same corporation as, and a continuation of, the subsidiary;
‘‘specified wholly-owned corporation’’ « filiale à cent pour cent déterminée »
‘‘specified wholly-owned corporation’’ of a public corporation means a corporation all of the outstanding shares of the capital stock of which (other than directors’ qualifying shares and shares of a specified class) are held by (a) the public corporation, (b) a specified wholly-owned corporation of the public corporation, or (c) any combination of corporations described in paragraph (a) or (b). (2) Section 55 of the Act is amended by adding the following after subsection (3.01):
Distribution by a specified corporation
(3.02) For the purposes of the definition ‘‘distribution’’ in subsection (1), where the transfer referred to in that definition is by a specified corporation to an acquiror described in the definition ‘‘specified corporation’’ in subsection (1), the references in the definition ‘‘distribution’’ to (a) ‘‘each type of property’’ shall be read as ‘‘property’’; and (b) ‘‘property of that type’’ shall be read as ‘‘property’’. (3) Paragraph 55(5)(b) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (ii) and by replacing subparagraph (iii) with the following: (iii) the total of all amounts each of which is an amount required to have been included under this subparagraph as it read in its application to a taxation year that ended before February 28, 2000, (iv) the amount, if any, by which (A) 1/2 of the total of all amounts each of which is an amount required by
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Income Ta paragraph 14(1)(b) to be included in computing the corporation’s income in respect of a business carried on by the corporation for a taxation year that is included in the period and that ended after February 27, 2000 and before October 18, 2000, exceeds (B) where the corporation has deducted an amount under subsection 20(4.2) in respect of a debt established by it to have become a bad debt in a taxation year that is included in the period and that ended after February 27, 2000 and before October 18, 2000, or has an allowable capital loss for such a year because of the application of subsection 20(4.3), the amount determined by the formula V+W where V is 1/2 of the value determined for A under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and W is 1/3 of the value determined for B under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and (C) in any other case, nil, and (v) the amount, if any, by which (A) the total of all amounts each of which is an amount required by paragraph 14(1)(b) to be included in computing the corporation’s income in respect of a business carried on by the corporation for a taxation year that is included in the period and that ends after October 17, 2000, exceeds (B) where the corporation has deducted an amount under subsection 20(4.2) in respect of a debt established by it to have become a bad debt in a taxation year that is included in the period and that ends after October 17,
Impôt sur le re 2000, or has an allowable capital loss for such a year because of the application of subsection 20(4.3), the amount determined by the formula X+Y where X is the value determined for A under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and Y is 1/3 of the value determined for B under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and (C) in any other case, nil;
(4) The portion of paragraph 55(5)(e) of the French version of the Act before subparagraph (i) is replaced by the following: e) pour déterminer si des personnes sont liées entre elles, si une personne est un actionnaire déterminé d’une société et si le contrôle d’une société a été acquis par une personne ou un groupe de personnes, les règles suivantes s’appliquent : (5) Subparagraph 55(5)(e)(iv) of the Act is replaced by the following: (iv) this Act shall be read without reference to subsection 251(3) and paragraph 251(5)(b); and (6) Subsections (1) and (2) apply to transfers that occur after 1998. (7) Subsection (3) applies in respect of taxation years that end after February 27, 2000. (8) Subsections (4) and (5) apply to dividends that are received after November 1999, other than dividends received as part of a transaction or event, or a series of transactions or events, that was required before December 1, 1999 to be carried out pursuant to a written agreement made before that day.
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39. (1) The portion of paragraph 56(1)(n) of the Act after subparagraph (i) is replaced by the following: exceeds (ii) the taxpayer’s scholarship exemption for the year computed under subsection (3); (2) Section 56 of the Act is amended by adding the following after subsection (2): Exemption for scholarships, fellowships, bursaries and prizes
(3) For the purpose of subparagraph (1)(n)(ii), a taxpayer’s scholarship exemption for a taxation year is the greatest of (a) $500, (b) the lesser of (i) $3,000 and (ii) the total of all amounts each of which is the amount included under subparagraph (1)(n)(i) in computing the taxpayer’s income for the year in respect of a scholarship, fellowship or bursary received in connection with the taxpayer’s enrolment in an educational program in respect of which an amount may be deducted under subsection 118.6(2) in computing the taxpayer’s tax payable under this Part for the year, and (c) the total of all amounts each of which is the lesser of (i) the amount included under subparagraph (1)(n)(i) in computing the taxpayer’s income for the year in respect of a scholarship, fellowship, bursary or prize that is to be used by the taxpayer in the production of a literary, dramatic, musical or artistic work, and (ii) the total of all amounts each of which is an expense incurred by the taxpayer in the year for the purpose of fulfilling the conditions under which the amount described in subparagraph (i) was received, other than (A) personal or living expenses of the taxpayer (except expenses in respect of travel, meals and lodging incurred
Impôt sur le re by the taxpayer in the course of fulfilling those conditions and while absent from the taxpayer’s usual place of residence for the period to which the scholarship, fellowship, bursary or prize, as the case may be, relates), (B) expenses for which the taxpayer is entitled to be reimbursed, and (C) expenses that are otherwise deductible in computing the taxpayer’s income.
(3) Subsections (1) and (2) apply to the 2000 and subsequent taxation years. 40. (1) Subsection 59(1) of the Act is replaced by the following: Consideration for foreign resource property
59. (1) Where a taxpayer has disposed of a foreign resource property, there shall be included in computing the taxpayer’s income for a taxation year the amount, if any, by which (a) the portion of the taxpayer’s proceeds of disposition from the disposition of the property that becomes receivable in the year exceeds (b) the total of (i) all amounts each of which is an outlay or expense made or incurred by the taxpayer for the purpose of making the disposition that was not otherwise deductible for the purposes of this Part, and (ii) where the property is a foreign resource property in respect of a country, the amount designated under this subparagraph in prescribed form filed with the taxpayer’s return of income for the year in respect of the disposition.
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(1.1) Where a taxpayer is a member of a partnership in a fiscal period of the partnership, the taxpayer’s share of the amount that would be included under subsection (1) in respect of a disposition of a foreign resource property in computing the partnership’s income for a taxation year if the partnership were a person, the fiscal period were a taxation year, subsection (1) were read without reference to subparagraph (1)(b)(ii) and section 96 were read without reference to paragraph 96(1)(d) is deemed to be proceeds of disposition that become receivable by the taxpayer at the end of the fiscal period in respect of a disposition of the property by the taxpayer. (2) Subsection 59(3.2) of the Act is amended by adding the following after paragraph (c): (c.1) any amount referred to in subsection 66.21(3); (3) Subsection 59(5) of the Act is replaced by the following:
Definition of ‘‘proceeds of disposition’’
(5) In this section, ‘‘proceeds of disposition’’ has the meaning assigned by section 54. (4) Subsection 59(1) of the Act, as enacted by subsection (1), and subsection (2) apply to taxation years that begin after 2000. (5) Subsection 59(1.1) of the Act, as enacted by subsection (1), applies to fiscal periods that begin after 2000. (6) Subsection (3) applies to transactions and events that occur after December 23, 1998. 41. (1) Section 60 of the Act is amended by adding the following after paragraph (d):
CPP/QPP contributions on self-employed earnings
(e) 1/2 of the lesser of (i) the total of all amounts each of which is an amount payable by the taxpayer in respect of self-employed earnings for the year as a contribution under the Canada Pension Plan or under a provincial pension plan within the meaning assigned by section 3 of that Act, and
Impôt sur le re (ii) the maximum amount of such contributions payable by the taxpayer for the year under the plan;
(2) Subsection (1) applies to the 2001 and subsequent taxation years. 42. (1) Paragraph 63(1)(a) of the Act is replaced by the following: (a) by the taxpayer, where the taxpayer is described in subsection (2) and the supporting person of the child for the year is a person described in clause (i)(D) of the description of C in the formula in that subsection, or (2) Subparagraph 63(1)(e)(ii) of the Act is replaced by the following: (ii) the total of all amounts each of which is the annual child care expense amount in respect of an eligible child of the taxpayer for the year (3) The formula in paragraph 63(2)(b) of the Act is replaced by the following: AxC (4) The descriptions of A and B in paragraph 63(2)(b) of the Act are replaced by the following: A is the total of all amounts each of which is the periodic child care expense amount in respect of an eligible child of the taxpayer for the year, and (5) The formula in paragraph 63(2.3)(c) of the Act is replaced by the following: AxC (6) The descriptions of A and B in paragraph 63(2.3)(c) of the Act are replaced by the following: A is the total of all amounts each of which is the periodic child care expense amount in respect of an eligible child of the taxpayer for the year, and
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(7) Paragraph (c) of the definition ‘‘child care expense’’ in subsection 63(3) of the Act is replaced by the following: (c) any such expenses paid in the year for a child’s attendance at a boarding school or camp to the extent that the total of those expenses exceeds the product obtained when the periodic child care expense amount in respect of the child for the year is multiplied by the number of weeks in the year during which the child attended the school or camp, and (8) Paragraph (b) of the definition ‘‘earned income’’ in subsection 63(3) of the Act is replaced by the following: (b) all amounts that are included, or that would, but for paragraph 81(1)(a) or subsection 81(4), be included, because of section 6 or 7 or paragraph 56(1)(n), (o) or (r), in computing the taxpayer’s income, (9) Subsection 63(3) of the Act is amended by adding the following in alphabetical order: ‘‘annual child care expense amount’’ « montant annuel de frais de garde d’enfants »
‘‘annual child care expense amount’’, in respect of an eligible child of a taxpayer for a taxation year, means (a) $10,000, where the child is a person in respect of whom an amount may be deducted under section 118.3 in computing a taxpayer’s tax payable under this Part for the year, and (b) where the child is not a person referred to in paragraph (a), (i) $7,000, where the child is under 7 years of age at the end of the year, and (ii) $4,000, in any other case;
‘‘periodic child care expense amount’’ « montant périodique de frais de garde d’enfants »
‘‘periodic child care expense amount’’, in respect of an eligible child of a taxpayer for a taxation year, means 1/40 of the annual child care expense amount in respect of the child for the year;
Impôt sur le re (10) Subsections (1) and (8) apply to the 1998 and subsequent taxation years.
(11) Subsections (2) to (7) and (9) apply to the 2000 and subsequent taxation years.
43. (1) Subparagraph (i) of the description of A in paragraph 64(a) of the Act is amended by striking out the word ‘‘or’’ at the end of clause (B) and by adding the following after clause (B): (C) attend a designated educational institution or a secondary school at which the taxpayer is enrolled in an educational program, or (2) Paragraph 64(b) of the Act is replaced by the following: (b) 2/3 of the total of (i) the total of all amounts each of which is (A) an amount included under section 5, 6 or 7 or paragraph 56(1)(n), (o) or (r) in computing the taxpayer’s income for the year, or (B) the taxpayer’s income for the year from a business carried on either alone or as a partner actively engaged in the business, and (ii) where the taxpayer is in attendance at a designated educational institution or a secondary school at which the taxpayer is enrolled in an educational program, the least of (A) $15,000, (B) $375 times the number of weeks in the year during which the taxpayer is in attendance at the institution or school, and (C) the amount, if any, by which the amount that would, if this Act were read without reference to this section, be the taxpayer’s income for the year exceeds the total determined under subparagraph (i) in respect of the taxpayer for the year.
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(3) Subsections (1) and (2) apply to the 2000 and subsequent taxation years. 44. (1) Subparagraph 66(4)(a)(i) of the Act is replaced by the following: (i) the total of the foreign exploration and development expenses incurred by the taxpayer (A) before the end of the year, (B) at a time at which the taxpayer was resident in Canada, and (C) where the taxpayer became resident in Canada before the end of the year, after the last time (before the end of the year) that the taxpayer became resident in Canada, (2) The portion of paragraph 66(4)(b) of the Act before subparagraph (ii) is replaced by the following: (b) of that total, the greater of (i) the amount, if any, claimed by the taxpayer not exceeding 10% of the amount determined under paragraph (a) in respect of the taxpayer for the year, and (3) Subparagraph 66(4)(b)(ii) of the Act is replaced by the following: (ii) the total of (A) the part of the taxpayer’s income for the year, determined without reference to this subsection and subsection 66.21(4), that can reasonably be regarded as attributable to (I) the production of petroleum or natural gas from natural accumulations outside Canada or from oil or gas wells outside Canada, or (II) the production of minerals from mines outside Canada, (B) the taxpayer’s income for the year from royalties in respect of a natural accumulation of petroleum or natural gas outside Canada, an oil or gas well outside Canada or a mine outside Canada, determined without reference to this subsection and subsection 66.21(4), and
Impôt sur le re (C) all amounts each of which is an amount, in respect of a foreign resource property that has been disposed of by the taxpayer, equal to the amount, if any, by which (I) the amount included in computing the taxpayer’s income for the year by reason of subsection 59(1) in respect of the disposition exceeds (II) the total of all amounts each of which is that portion of an amount deducted under subsection 66.7(2) in computing the taxpayer’s income for the year that 1. can reasonably be considered to be in respect of the foreign resource property, and 2. cannot reasonably be considered to have reduced the amount otherwise determined under clause (A) or (B) in respect of the taxpayer for the year. (4) Section 66 of the Act is amended by adding the following after subsection (4):
Country-bycountry FEDE allocations
(4.1) For greater certainty, the portion of an amount deducted under subsection (4) in computing a taxpayer’s income for a taxation year that can reasonably be considered to be in respect of specified foreign exploration and development expenses of the taxpayer in respect of a country is considered to apply to a source in that country.
Method of allocation
(4.2) For the purpose of subsection (4.1), where a taxpayer has incurred specified foreign exploration and development expenses in respect of two or more countries, an allocation to each of those countries for a taxation year shall be determined in a manner that is (a) reasonable having regard to all the circumstances, including the level and timing of
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Income Ta (i) the taxpayer’s specified foreign exploration and development expenses in respect of the country, and (ii) the profits or gains to which those expenses relate; and
(b) not inconsistent with the allocation made under subsection (4.1) for the preceding taxation year. FEDE deductions where change of individual’s residence
(4.3) Where at any time in a taxation year an individual becomes or ceases to be resident in Canada, (a) subsection (4) applies to the individual as if the year were the period or periods in the year throughout which the individual was resident in Canada; and (b) for the purpose of applying subsection (4), subsection (13.1) does not apply to the individual for the year.
(5) Subsection 66(5) of the Act is replaced by the following: Dealers
(5) Subsections (3) and (4) and sections 59, 64, 66.1, 66.2, 66.21, 66.4 and 66.7 do not apply in computing the income for a taxation year of a taxpayer (other than a principal-business corporation) whose business includes trading or dealing in rights, licences or privileges to explore for, drill for or take minerals, petroleum, natural gas or other related hydrocarbons. (6) The portion of subsection 66(11.4) of the Act after paragraph (c) is replaced by the following: for the purposes of subsection (4) and sections 66.2, 66.21 and 66.4, except as those provisions apply for the purposes of section 66.7, the property is deemed not to have been acquired by the corporation or partnership before that time and is deemed to have been acquired by it at that time, except that, where the property has been disposed of by it before that time and not reacquired by it before that time, the property is deemed to have been acquired by the corporation or partnership immediately before it disposed of the property.
Impôt sur le re (7) The portion of subsection 66(12.4) of the Act before paragraph (a) is replaced by the following:
Limitation of FEDE
(12.4) Where, as a result of a transaction that occurs after May 6, 1974, an amount becomes receivable by a taxpayer at a particular time in a taxation year and the consideration given by the taxpayer for the amount receivable is property (other than a foreign resource property) or services, the original cost of which to the taxpayer can reasonably be regarded as having been primarily foreign exploration and development expenses of the taxpayer (or would have been so regarded if they had been incurred by the taxpayer after 1971 and the definition ‘‘foreign exploration and development expenses’’ in subsection (15) were read without reference to paragraph (k) of that definition), the following rules apply:
(8) Paragraph 66(12.4)(b) of the Act is replaced by the following: (b) where the amount receivable exceeds the total of the taxpayer’s foreign exploration and development expenses incurred before that time to the extent that those expenses were not deducted or deductible, as the case may be, in computing the taxpayer’s income for a preceding taxation year, there shall be included in the amount referred to in paragraph 59(3.2)(a) the amount, if any, by which the amount receivable exceeds the total of (i) the taxpayer’s foreign exploration and development expenses incurred before that time to the extent that those expenses were not deducted or deductible, as the case may be, in computing the taxpayer’s income for a preceding taxation year, and (ii) the amount, designated by the taxpayer in prescribed form filed with the taxpayer’s return of income for the year, not exceeding the portion of the amount receivable for which the consideration given by the taxpayer was property (other than a foreign resource property) or services, the original cost of which to the
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Income Ta taxpayer can reasonably be regarded as having been primarily (A) specified foreign exploration and development expenses in respect of a country, or (B) foreign resource expenses in respect of a country; and
(9) Section 66 of the Act is amended by adding the following after subsection (12.4): Limitations of foreign resource expenses
(12.41) Where a particular amount described in subsection (12.4) becomes receivable by a taxpayer at a particular time, there shall at that time be included in the value determined for G in the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1) in respect of the taxpayer and a country the amount designated under subparagraph (12.4)(b)(ii) by the taxpayer in respect of the particular amount and the country.
Partnerships
(12.42) For the purposes of subsections (12.4) and (12.41), where a person or partnership is a member of a particular partnership and a particular amount described in subsection (12.4) becomes receivable by the particular partnership in a fiscal period of the particular partnership, (a) the member’s share of the particular amount is deemed to be an amount that became receivable by the member at the end of the fiscal period; and (b) the amount deemed by paragraph (a) to be an amount receivable by the member is deemed to be an amount (i) that is described in subsection (12.4) in respect of the member, and (ii) that has the same attributes for the member as it did for the particular partnership. (10) Subsection 66(13.1) of the Act is replaced by the following:
Short taxation year
(13.1) Where a taxpayer has a taxation year that is less than 51 weeks, the amount determined in respect of the year under each of subparagraph (4)(b)(i), paragraph
Impôt sur le re 66.2(2)(c), subparagraph (b)(i) of the definition ‘‘global foreign resource limit’’ in subsection 66.21(1), subparagraph 66.21(4)(a)(i), clause 66.21(4)(a)(ii)(B) and paragraphs 66.4(2)(b) and 66.7(2.3)(a), (4)(a) and (5)(a) shall not exceed that proportion of the amount otherwise determined that the number of days in the year is of 365.
(11) The definitions ‘‘original owner’’ and ‘‘predecessor owner’’ in subsection 66(15) of the Act are replaced by the following: ‘‘original owner’’ « propriétaire obligé »
‘‘original owner’’ of a Canadian resource property or a foreign resource property means a person (a) who owned the property and disposed of it to a corporation that acquired it in circumstances in which subsection 29(25) of the Income Tax Application Rules or subsection 66.7(1), (2), (2.3), (3), (4) or (5) applies, or would apply if the corporation had continued to own the property, to the corporation in respect of the property, and (b) who would, but for subsection 66.7(12), (13), (13.1) or (17), as the case may be, be entitled in computing that person’s income for a taxation year that ends after that person disposed of the property to a deduction under section 29 of the Income Tax Application Rules or subsection (2), (3) or (4), 66.1(2) or (3), 66.2(2), 66.21(4) or 66.4(2) of this Act in respect of expenses described in subparagraph 29(25)(c)(i) or (ii) of that Act, Canadian exploration and development expenses, foreign resource pool expenses, Canadian exploration expenses, Canadian development expenses or Canadian oil and gas property expenses incurred by the person before the person disposed of the property;
‘‘predecessor owner’’ « propriétaire antérieur »
‘‘predecessor owner’’ of a Canadian resource property or a foreign resource property means a corporation (a) that acquired the property in circumstances in which subsection 29(25) of the
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Income Ta Income Tax Application Rules or subsection 66.7(1), (2), (2.3), (3), (4) or (5) applies, or would apply if the corporation had continued to own the property, to the corporation in respect of the property, (b) that disposed of the property to another corporation that acquired it in circumstances in which subsection 29(25) of the Income Tax Application Rules or subsection 66.7(1), (2), (2.3), (3), (4) or (5) applies, or would apply if the other corporation had continued to own the property, to the other corporation in respect of the property, and (c) that would, but for subsection 66.7(14), (15), (15.1) or (17), as the case may be, be entitled in computing its income for a taxation year ending after it disposed of the property to a deduction under subsection 29(25) of the Income Tax Application Rules or subsection 66.7(1), (2), (2.3), (3), (4) or (5) in respect of expenses incurred by an original owner of the property;
(12) Paragraph (c) of the definition ‘‘Canadian resource property’’ in subsection 66(15) of the Act is replaced by the following: (c) any oil or gas well in Canada or any real property in Canada the principal value of which depends on its petroleum or natural gas content (but not including any depreciable property), (13) Paragraph (f) of the definition ‘‘Canadian resource property’’ in subsection 66(15) of the Act is replaced by the following: (f) any real property in Canada the principal value of which depends on its mineral resource content (but not including any depreciable property), or
Impôt sur le re (14) Paragraph (b) of the definition ‘‘foreign exploration and development expenses’’ in subsection 66(15) of the Act is replaced by the following: (b) any expense incurred by the taxpayer for the purpose of determining the existence, location, extent or quality of a mineral resource outside Canada, including any expense incurred in the course of (i) prospecting, (ii) carrying out geological, geophysical or geochemical surveys, (iii) drilling by rotary, diamond, percussion or other method, or (iv) trenching, digging test pits and preliminary sampling, (15) The definition ‘‘foreign exploration and development expenses’’ in subsection 66(15) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (h) and by adding the following after paragraph (i): (j) an expenditure that is the cost, or any part of the cost, to the taxpayer of any depreciable property of a prescribed class that was acquired after December 21, 2000, (k) foreign resource expenses in respect of a country, or (l) an expenditure made after February 27, 2000 by the taxpayer unless the expenditure was made (i) pursuant to an agreement in writing made by the taxpayer before February 28, 2000, (ii) for the acquisition of foreign resource property by the taxpayer, or (iii) for the purpose of (A) enhancing the value of foreign resource property that the taxpayer owned at the time the expenditure was incurred or that the taxpayer had a reasonable expectation of owning after that time, or
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Income Ta (B) assisting in evaluating whether a foreign resource property is to be acquired by the taxpayer;
(16) Subsection 66(15) of the Act is amended by adding the following in alphabetical order: ‘‘specified foreign exploration and development expense’’ « frais d’exploration et d’aménagement à l’étranger déterminés »
‘‘specified foreign exploration and development expense’’ of a taxpayer in respect of a country (other than Canada) means an amount that is included in the taxpayer’s foreign exploration and development expenses and that is (a) a drilling or exploration expense, including any general geological or geophysical expense, incurred by the taxpayer on or in respect of exploring or drilling for petroleum or natural gas in that country, (a.1) an expense incurred by the taxpayer after December 21, 2000 (otherwise than pursuant to an agreement in writing made before December 22, 2000) for the purpose of determining the existence, location, extent or quality of a mineral resource in that country, including any expense incurred in the course of (i) prospecting, (ii) carrying out geological, geophysical or geochemical surveys, (iii) drilling by rotary, diamond, percussion or other methods, or (iv) trenching, digging test pits and preliminary sampling, (b) a prospecting, exploration or development expense incurred by the taxpayer before December 22, 2000 (or after December 21, 2000 pursuant to an agreement in writing made before December 22, 2000) in searching for minerals in that country, (c) the cost to the taxpayer of the taxpayer’s foreign resource property in respect of that country, (d) an annual payment made by the taxpayer in a taxation year of the taxpay2001
Impôt sur le re er for the preservation of a foreign resource property in respect of that country, (e) an amount deemed by subsection 21(2) or (4) to be a foreign exploration and development expense incurred by the taxpayer, to the extent that it can reasonably be considered to relate to an amount that, without reference to this paragraph and paragraph (f), would be a specified foreign exploration and development expense in respect of that country, or (f) subject to section 66.8, the taxpayer’s share of the specified foreign exploration and development expenses of a partnership incurred in respect of that country in a fiscal period of the partnership if, at the end of that period, the taxpayer was a member of the partnership.
(17) Subsection 66(15.1) of the Act is replaced by the following: Other definitions
(15.1) The definitions in subsections 66.1(6), 66.2(5), 66.21(1), 66.4(5) and 66.5(2) apply in this section. (18) Subsection 66(18) of the Act is replaced by the following:
Members of partnerships
(18) For the purposes of this section, subsection 21(2), sections 59.1 and 66.1 to 66.7, paragraph (d) of the definition ‘‘investment expense’’ in subsection 110.6(1) and the descriptions of C and D in subsection 211.91(1), where a person’s share of an outlay or expense made or incurred by a partnership in a fiscal period of the partnership is included in respect of the person under paragraph (d) of the definition ‘‘foreign exploration and development expenses’’ in subsection (15), paragraph (h) of the definition ‘‘Canadian exploration expense’’ in subsection 66.1(6), paragraph (f) of the definition ‘‘Canadian development expense’’ in subsection 66.2(5), paragraph (e) of the definition ‘‘foreign resource expense’’ in subsection 66.21(1) or paragraph (b) of the definition ‘‘Canadian oil and gas property expense’’ in subsection 66.4(5), the
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Income Ta
portion of the outlay or expense so included is deemed, except for the purposes of applying the definitions ‘‘foreign exploration and development expenses’’, ‘‘Canadian exploration expense’’, ‘‘Canadian development expense’’, ‘‘foreign resource expense’’ and ‘‘Canadian oil and gas property expense’’ in respect of the person, to be made or incurred by the person at the end of that fiscal period.
(19) Subsection (1) applies to the 1999 and subsequent taxation years except that in its application to the 1999 taxation year, subparagraph 66(4)(a)(i) of the Act, as enacted by subsection (1), shall be read as follows: (i) the total of the foreign exploration and development expenses incurred by the taxpayer before the end of the year and at a time which the taxpayer was resident in Canada (20) Subsection (2) applies to the 1995 and subsequent taxation years, except that the portion of paragraph 66(4)(b) of the Act before subparagraph (ii), as enacted by subsection (2), shall be read as follows in respect of cessations of residence that occurred before February 28, 2000: (b) of that total, the greatest of (i) the amount, if any, claimed by the taxpayer not exceeding 10% of the amount determined under paragraph (a) in respect of the taxpayer for the year, (i.1) if the taxpayer ceased to be resident in Canada immediately after the end of the year, the amount, if any, claimed by the taxpayer not exceeding the amount determined under paragraph (a) in respect of the taxpayer for the year, and (21) Subsections (3) and (5) to (8), subsection 66(12.41) of the Act, as enacted by subsection (9), subsections (10) to (13) and paragraph (k) of the definition ‘‘foreign exploration and development expenses’’ in subsection 66(15) of the Act, as enacted by subsection (15), apply to taxation years that begin after 2000.
Impôt sur le re
(22) Subsections 66(4.1) and (4.2) of the Act, as enacted by subsection (4), apply to taxation years of a taxpayer that begin after the earlier of (a) December 31, 1999; and (b) where, for the purposes of subsection 117(26), a date is designated in writing by the taxpayer and the designation is filed with the Minister of National Revenue on or before the taxpayer’s filing-due date for the taxpayer’s taxation year that includes the day on which this Act receives royal assent, the later of (i) the date so designated, and (ii) December 31, 1994.
(23) Subsection 66(4.3) of the Act, as enacted by subsection (4), applies to the 1998 and subsequent taxation years. (24) Subsection 66(12.42) of the Act, as enacted by subsection (9), and subsection (18) apply to fiscal periods that begin after 2000. (25) Subsection (14) applies to expenses incurred after December 21, 2000, other than expenses incurred pursuant to an agreement in writing made before December 22, 2000. (26) Paragraph (j) of the definition ‘‘foreign exploration and development expenses’’ in subsection 66(15) of the Act, as enacted by subsection (15), and subsection (17) apply after 2000. (27) Paragraph (l) of the definition ‘‘foreign exploration and development expenses’’ in subsection 66(15) of the Act, as enacted by subsection (15), applies after February 27, 2000. (28) Subsection (16) applies after 1994. 45. (1) Subparagraph (d)(i) of the definition ‘‘Canadian exploration expense’’ in subsection 66.1(6) of the Act is replaced by the following:
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Income Ta (i) the drilling or completing of the well resulted in the discovery that a natural underground reservoir contains petroleum or natural gas, where (A) before the time of the discovery, no person or partnership had discovered that the reservoir contained either petroleum or natural gas, and (B) the discovery occurred at any time before six months after the end of the year,
(2) The definition ‘‘Canadian exploration expense’’ in subsection 66.1(6) of the Act is amended by adding the following after paragraph (k): (k.1) an expense that is the cost, or any part of the cost, to the taxpayer of any depreciable property of a prescribed class that was acquired after 1987, (3) The description of L in the definition ‘‘cumulative Canadian exploration expense’’ in subsection 66.1(6) of the Act is replaced by the following: L is that portion of the total of all amounts each of which was deducted by the taxpayer under subsection 127(5) or (6) for a taxation year that ended before that time and that can reasonably be attributed to a qualified Canadian exploration expenditure or a flow-through mining expenditure (within the meaning assigned by subsection 127(9)) made in a preceding taxation year, and
(4) Paragraph 66.1(9)(a) of the Act is replaced by the following: (a) the drilling or completing of an oil or gas well resulted in the discovery that a natural underground reservoir contains petroleum or natural gas and, before the time of the discovery, no person or partnership had discovered that the reservoir contained either petroleum or natural gas,
Impôt sur le re (5) Subsections (1) and (4) apply to expenses incurred after March 1987. (6) Subsection (2) applies to the 1988 and subsequent taxation years. (7) Subsection (3) applies after October 17, 2000. 46. (1) The definition ‘‘Canadian development expense’’ in subsection 66.2(5) of the Act is amended by adding the following after paragraph (i): (i.1) an expense that is the cost, or any part of the cost, to the taxpayer of any depreciable property of a prescribed class that was acquired after 1987, (2) Subsection (1) applies to the 1988 and subsequent taxation years. 47. (1) The Act is amended by adding the following after section 66.2:
Definitions
66.21 (1) The definitions in this subsection apply in this section.
‘‘adjusted cumulative foreign resource expense’’ « frais cumulatifs rajustés relatifs à des ressources à l’étranger »
‘‘adjusted cumulative foreign resource expense’’ of a taxpayer, in respect of a country, at the end of a taxation year means the total of (a) the cumulative foreign resource expense of the taxpayer, in respect of that country, at the end of the year; and (b) the amount, if any, by which (i) the total determined under paragraph 66.7(13.2)(a) in respect of that country and the taxpayer for the year exceeds (ii) the amount that would, but for paragraph (3)(c), be determined under subsection (3) in respect of that country and the taxpayer for the year.
‘‘cumulative foreign resource expense’’ « frais cumulatifs relatifs à des ressources à l’étranger »
‘‘cumulative foreign resource expense’’ of a taxpayer, in respect of a country other than Canada at a particular time, means the amount determined by the formula
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Income Ta
(A + B + C + D) - (E + F + G + H + I + J) where A is the total of all foreign resource expenses, in respect of that country, made or incurred by the taxpayer (a) before the particular time, and (b) at a time (in this definition referred to as a ‘‘resident time’’) (i) at which the taxpayer was resident in Canada, and (ii) where the taxpayer became resident in Canada before the particular time, that is after the last time (before the particular time) that the taxpayer became resident in Canada; B is the total of all amounts required to be included in computing the amount referred to in paragraph 59(3.2)(c.1), in respect of that country, for taxation years that ended before the particular time and at a resident time; C is the total of all amounts referred to in the description of F or G that are established by the taxpayer to have become a bad debt before the particular time and at a resident time; D is the total of all specified amounts determined under subsection 66.7(13.2), in respect of the taxpayer and that country, for taxation years that ended before the particular time and at a resident time; E is the total of all amounts deducted, in computing the taxpayer’s income for a taxation year that ended before the particular time and at a resident time, in respect of the taxpayer’s cumulative foreign resource expense in respect of that country; F is the total of all amounts each of which is an amount in respect of a foreign resource property, in respect of that country, (in this description referred to
Impôt sur le re as the ‘‘particular property’’) disposed of by the taxpayer equal to the amount, if any, by which (a) the amount designated under subparagraph 59(1)(b)(ii) by the taxpayer in respect of the portion of the proceeds of that disposition that became receivable before the particular time and at a resident time exceeds (b) the amount, if any, by which (i) the total of all amounts that would be determined under paragraph 66.7(2.3)(a), immediately before the time (in this paragraph referred to as the ‘‘relevant time’’) when such proceeds of disposition became receivable, in respect of the taxpayer, that country and an original owner of the particular property (or of any other property acquired by the taxpayer with the particular property in circumstances to which subsection 66.7(2.3) applied and in respect of which the proceeds of disposition became receivable by the taxpayer at the relevant time) if (A) amounts that became receivable at or after the relevant time were not taken into account, (B) paragraph 66.7(2.3)(a) were read without reference to ‘‘30% of’’, and (C) no reduction under subsection 80(8) at or after the relevant time were taken into account exceeds the total of (ii) all amounts that would be determined under paragraph 66.7(2.3)(a) at the relevant time in respect of the taxpayer, that country and an original owner of the particular property (or of that other property) if (A) amounts that became receivable after the relevant time were not taken into account,
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Income Ta (B) paragraph 66.7(2.3)(a) were read without reference to ‘‘30% of’’, and (C) no reduction under subsection 80(8) at or after the relevant time were taken into account, and (iii) the portion of the amount otherwise determined under this paragraph that was otherwise applied to reduce the amount otherwise determined under this description;
G is the total of all amounts, in respect of that country, each of which is an amount included in the amount determined under this description by reason of subsection 66(12.41) that became receivable by the taxpayer before the particular time and at a resident time; H is the total of all amounts each of which is an amount received before the particular time and at a resident time on account of any amount referred to in the description of C;
‘‘foreign resource expense’’ « frais relatifs à des ressources à l’étranger »
I
is the total of all amounts each of which is an amount by which the cumulative foreign resource expense of the taxpayer, in respect of that country, is required, by reason of subsection 80(8), to be reduced at or before the particular time and at a resident time; and
J
is the total of all amounts each of which is an amount that is required to be deducted, before the particular time and at a resident time, under paragraph 66.7(13.1)(a) in computing the taxpayer’s cumulative foreign resource expense.
‘‘foreign resource expense’’ of a taxpayer, in respect of a country other than Canada, means (a) any drilling or exploration expense, including any general geological or geophysical expense, incurred by the taxpayer on or in respect of exploring or drilling for petroleum or natural gas in that country,
Impôt sur le re (b) any expense incurred by the taxpayer for the purpose of determining the existence, location, extent or quality of a mineral resource in that country, including any expense incurred in the course of (i) prospecting, (ii) carrying out geological, geophysical or geochemical surveys, (iii) drilling by rotary, diamond, percussion or other methods, or (iv) trenching, digging test pits and preliminary sampling, (c) the cost to the taxpayer of any of the taxpayer’s foreign resource property in respect of that country, (d) any annual payment made by the taxpayer for the preservation of a foreign resource property in respect of that country, and (e) subject to section 66.8, the taxpayer’s share of an expense, cost or payment referred to in any of paragraphs (a) to (d) that is made or incurred by a partnership in a fiscal period of the partnership that begins after 2000 if, at the end of that period, the taxpayer was a member of the partnership but does not include (f) an expenditure that is the cost, or any part of the cost, to the taxpayer of any depreciable property of a prescribed class, (g) an expenditure incurred at any time after the commencement of production from a foreign resource property of the taxpayer in order to evaluate the feasibility of a method of recovery of petroleum, natural gas or related hydrocarbons from the portion of a natural reservoir to which the foreign resource property relates, (h) an expenditure (other than a drilling expense) incurred at any time after the commencement of production from a foreign resource property of the taxpayer in order to assist in the recovery of petroleum, natural gas or related hydro���
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Income Ta carbons from the portion of a natural reservoir to which the foreign resource property relates, (i) an expenditure, incurred at any time, that relates to the injection of any substance to assist in the recovery of petroleum, natural gas or related hydrocarbons from a natural reservoir, (j) an expenditure incurred by the taxpayer, unless the expenditure was made (i) for the acquisition of foreign resource property by the taxpayer, or (ii) for the purpose of (A) enhancing the value of foreign resource property that the taxpayer owned at the time the expenditure was incurred or that the taxpayer had a reasonable expectation of owning after that time, or (B) assisting in evaluating whether a foreign resource property is to be acquired by the taxpayer, or (k) the taxpayer’s share of any cost or expenditure referred to in any of paragraphs (f) to (j) that is incurred by a partnership.
‘‘foreign resource income’’ « revenu provenant de ressources à l’étranger »
‘‘foreign resource income’’ of a taxpayer for a taxation year, in respect of a country other than Canada, means the total of (a) that part of the taxpayer’s income for the year, determined without reference to subsections (4) and 66(4), that is reasonably attributable to (i) the production of petroleum or natural gas from natural accumulations of petroleum or natural gas in that country or from oil or gas wells in that country, or (ii) the production of minerals from mines in that country; (b) the taxpayer’s income for the year from royalties in respect of a natural accumulation of petroleum or natural gas in that country, an oil or gas well in that
Impôt sur le re country or a mine in that country, determined without reference to subsections (4) and 66(4); and (c) all amounts each of which is an amount, in respect of a foreign resource property in respect of that country that has been disposed of by the taxpayer, equal to the amount, if any, by which (i) the amount included in computing the taxpayer’s income for the year by reason of subsection 59(1) in respect of that disposition exceeds (ii) the total of all amounts each of which is that portion of an amount deducted under subsection 66.7(2) in computing the taxpayer’s income for the year that (A) can reasonably be considered to be in respect of the foreign resource property, and (B) cannot reasonably be considered to have reduced the amount otherwise determined under paragraph (a) or (b) in respect of the taxpayer for the year.
‘‘foreign resource loss’’ « perte résultant de ressources à l’étranger »
‘‘foreign resource loss’’ of a taxpayer for a taxation year in respect of a country other than Canada means the taxpayer’s loss for the year in respect of the country determined in accordance with the definition ‘‘foreign resource income’’ with such modifications as the circumstances require.
‘‘global foreign resource limit’’ « limite globale des frais relatifs à des ressources à l’étranger »
‘‘global foreign resource limit’’ of a taxpayer for a taxation year means the amount that is the lesser of (a) the amount, if any, by which (i) the amount determined under subparagraph 66(4)(b)(ii) in respect of the taxpayer for the year exceeds the total of (ii) the total of all amounts each of which is the maximum amount that the
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Income Ta taxpayer would be permitted to deduct, in respect of a country, under subsection (4) in computing the taxpayer’s income for the year if, in its application to the year, subsection (4) were read without reference to paragraph (4)(b), and (iii) the amount deducted for the year under subsection 66(4) in computing the taxpayer’s income for the year; and (b) the amount, if any, by which (i) 30% of the total of all amounts each of which is, at the end of the year, the taxpayer’s adjusted cumulative foreign resource expense in respect of a country exceeds (ii) the total described in subparagraph (a)(ii).
Application of subsection 66(15)
(2) The definitions in subsection 66(15) apply in this section.
Amount to be included in income
(3) For the purpose of paragraph 59(3.2)(c.1), the amount referred to in this subsection in respect of a taxpayer for a taxation year is the amount, if any, by which (a) the total of all amounts referred to in the descriptions of E to J in the definition ‘‘cumulative foreign resource expense’’ in subsection (1) that are deducted in computing the taxpayer’s cumulative foreign resource expense at the end of the year in respect of a country exceeds the total of (b) the total of all amounts referred to in the descriptions of A to D in the definition ‘‘cumulative foreign resource expense’’ in subsection (1) that are included in comput2001
Impôt sur le re ing the taxpayer’s cumulative foreign resource expense at the end of the year in respect of the country, and (c) the total determined under paragraph 66.7(13.2)(a) for the year in respect of the taxpayer and the country.
Deduction for cumulative foreign resource expense
(4) In computing a taxpayer’s income for a taxation year throughout which the taxpayer is resident in Canada, the taxpayer may deduct the amount claimed by the taxpayer, in respect of a country other than Canada, not exceeding the total of (a) the greater of (i) 10% of a particular amount equal to the taxpayer’s adjusted cumulative foreign resource expense in respect of the country at the end of the year, and (ii) the least of (A) if the taxpayer ceased to be resident in Canada immediately after the end of the year, the particular amount, (B) if clause (A) does not apply, 30% of the particular amount, (C) the amount, if any, by which the taxpayer’s foreign resource income for the year in respect of the country exceeds the portion of the amount, deducted under subsection 66(4) in computing the taxpayer’s income for the year, that applies to a source in the country, and (D) the amount, if any, by which (I) the total of all amounts each of which is the taxpayer’s foreign resource income for the year in respect of a country exceeds the total of (II) all amounts each of which is the taxpayer’s foreign resource loss for the year in respect of a country, and (III) the amount deducted under subsection 66(4) in computing the taxpayer’s income for the year, and (b) the lesser of
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Income Ta (i) the amount, if any, by which the particular amount exceeds the amount determined for the year under paragraph (a) in respect of the taxpayer, and (ii) that portion of the taxpayer’s global foreign resource limit for the year that is designated for the year by the taxpayer, in respect of that country and no other country, in prescribed form filed with the Minister with the taxpayer’s return of income for the year.
Individual changing residence
(5) Where at any time in a taxation year an individual becomes or ceases to be resident in Canada, (a) subsection (4) applies to the individual as if the year were the period or periods in the year throughout which the individual was resident in Canada; and (b) for the purpose of applying this section, subsection 66(13.1) does not apply to the individual for the year. (2) Subsection (1) applies to taxation years that begin after 2000. 48. (1) The definitions ‘‘disposition’’ and ‘‘proceeds of disposition’’ in subsection 66.4(5) of the Act are replaced by the following:
‘‘proceeds of disposition’’ « produit de disposition »
‘‘proceeds of disposition’’ has the meaning assigned by section 54. (2) Subsection (1) applies to transactions and events that occur after December 23, 1998. 49. (1) Subparagraph 66.7(2)(a)(i) of the Act is replaced by the following: (i) the foreign exploration and development expenses incurred by the original owner before the original owner disposed of the particular property to the extent that those expenses were incurred when the original owner was resident in Canada, were not otherwise deducted in computing the successor’s income for the year, were not deducted in computing the successor’s income for a preceding taxa2001
Impôt sur le re tion year and were not deductible by the original owner, nor deducted by any predecessor owner of the particular property, in computing income for any taxation year (2) Section 66.7 of the Act is amended by adding the following after subsection (2):
Country-bycountry successor FEDE allocations
(2.1) For greater certainty, the portion of an amount deducted under subsection (2) in computing a taxpayer’s income for a taxation year that can reasonably be considered to be in respect of specified foreign exploration and development expenses of the taxpayer in respect of a country is considered to apply to a source in that country.
Method of allocation
(2.2) For the purpose of subsection (2.1), where a taxpayer has incurred specified foreign exploration and development expenses in respect of two or more countries, an allocation to each of those countries for a taxation year shall be determined in a manner that is (a) reasonable having regard to all the circumstances, including the level and timing of (i) the taxpayer’s specified foreign exploration and development expenses in respect of the country, and (ii) the profits or gains to which those expenses relate; and (b) not inconsistent with the allocation made under subsection (2.1) for the preceding taxation year.
Successor of foreign resource expenses
(2.3) Subject to subsections (6) and (8), where a corporation (in this subsection referred to as the ‘‘successor’’) acquired a particular foreign resource property in respect of a country (whether by way of a purchase, amalgamation, merger, winding-up or otherwise), there may be deducted by the successor in computing its income for a taxation year an amount not exceeding the total of all amounts each of which is an amount determined in respect of an original owner of the particular property that is the lesser of
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Income Ta
(a) 30% of the amount, if any, by which (i) the cumulative foreign resource expense, in respect of the country, of the original owner determined immediately after the disposition of the particular property by the original owner to the extent that it has not been (A) deducted by the original owner or any predecessor owner of the particular property in computing income for any taxation year, (B) otherwise deducted in computing the income of the successor for the year, or (C) deducted by the successor in computing its income for any preceding taxation year exceeds the total of (ii) all amounts each of which is an amount (other than any portion of the amount that can reasonably be considered to result in a reduction of the amount otherwise determined under this paragraph in respect of another original owner of a relevant resource property who is not a predecessor owner of a relevant resource property or who became a predecessor owner of a relevant resource property before the original owner became a predecessor owner of a relevant resource property) that became receivable by a predecessor owner of the particular property, or by the successor in the year or a preceding taxation year, and that (A) was included by the predecessor owner or the successor in computing an amount determined under paragraph (a) of the description of F in the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1) at the end of the year, and (B) can reasonably be regarded as attributable to the disposition of a property (in this subparagraph referred to as a ‘‘relevant resource property’’) that is
Impôt sur le re (I) the particular property, or (II) another foreign resource property in respect of the country that was acquired from the original owner with the particular property by the successor or a predecessor owner of the particular property, and (iii) all amounts each of which is an amount by which the amount described in this paragraph is required by reason of subsection 80(8) to be reduced at or before the end of the year, and (b) the amount, if any, by which the total of (i) the part of the successor’s income for the year that can reasonably be regarded as attributable to production from the particular property, computed as if no deduction were permitted under section 29 of the Income Tax Application Rules, this section or any of sections 65 to 66.5, except that, where the successor acquired the particular property from the original owner at any time in the year (otherwise than by way of an amalgamation or merger or solely by reason of the application of paragraph (10)(c)) and did not deal with the original owner at arm’s length at that time, the amount determined under this subparagraph is deemed to be nil, and (ii) unless the amount determined under subparagraph (i) is nil by reason of the exception provided under that subparagraph, the lesser of (A) the total of all amounts each of which is the amount designated by the successor for the year in respect of a Canadian resource property owned by the original owner immediately before being acquired with the particular property by the successor or a predecessor owner of the particular property, not exceeding the amount included in the successor’s income for the year, computed as if no deduction were permitted under section 29 of the Income Tax Application Rules, this section or any of sections 65 to 66.5,
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Income Ta that can reasonably be regarded as being attributable to the production from the Canadian resource property, and (B) the amount, if any, by which 10% of the amount described in paragraph (a) for the year, in respect of the original owner, exceeds the total of all amounts each of which would, but for this subparagraph, clause (2)(b)(iii)(B) and subparagraph (10)(h)(vi), be determined under this paragraph for the year in respect of the particular property or other foreign resource property, in respect of the country, owned by the original owner immediately before being acquired with the particular property by the successor or by a predecessor owner of the particular property
exceeds the total of (iii) all other amounts each of which is an amount deducted for the year under this subsection or subsection (2) that can reasonably be regarded as attributable to (A) the part of its income for the year described in subparagraph (i) in respect of the particular property, or (B) a part of its income for the year described in clause (ii)(A) in respect of which an amount is designated by the successor under clause (ii)(A), and (iv) all amounts added by reason of subsection 80(13) in computing the amount determined under subparagraph (i), and income in respect of which an amount is designated under clause (b)(ii)(A) is, for the purposes of clause 29(25)(d)(i)(B) of the Income Tax Application Rules, clauses (1)(b)(i)(C), (3)(b)(i)(C), (4)(b)(i)(B) and (5)(b)(i)(B) and subparagraph (10)(g)(iii), deemed not to be attributable to production from a Canadian resource property.
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(3) The portion of subsection 66.7(8) of the Act before paragraph (a) is replaced by the following: Application of subsections (2) and (2.3)
(8) Subsections (2) and (2.3) apply only to a corporation that has acquired a particular foreign resource property (4) The portion of subsection 66.7(10) of the Act after paragraph (b) and before paragraph (c) is replaced by the following: for the purposes of the provisions of the Income Tax Application Rules and this Act (other than subsections 66(12.6), (12.601), (12.602), (12.62) and (12.71)) relating to deductions in respect of drilling and exploration expenses, prospecting, exploration and development expenses, Canadian exploration and development expenses, foreign resource pool expenses, Canadian exploration expenses, Canadian development expenses and Canadian oil and gas property expenses (in this subsection referred to as ‘‘resource expenses’’) incurred by the corporation before that time, the following rules apply:
(5) Subsection 66.7(10) of the Act is amended by adding the following after paragraph (e): (f) the original owner is deemed to have been resident in Canada before that time while the corporation was resident in Canada, (6) Subparagraphs 66.7(10)(h)(v) and (vi) of the Act are replaced by the following: (v) for the purposes of determining the amounts under paragraphs (2)(b) and (2.3)(b), to be income from the sources described in subparagraph (iii) or (iv), as the case may be, of the transferee for its taxation year in which that taxation year of the transferor ends, and (vi) for the purposes of determining the amounts under paragraphs (2)(b) and
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Income Ta (2.3)(b), not to be income from the sources described in subparagraph (iii) or (iv), as the case may be, of the transferor for that year,
(7) The portion of subparagraph 66.7(10)(j)(ii) of the Act before clause (A) is replaced by the following: (ii) for the purposes of clause 29(25)(d)(i)(B) of the Income Tax Application Rules, clauses (1)(b)(i)(C) and (2)(b)(i)(B), subparagraph (2.3)(b)(i) and clauses (3)(b)(i)(C), (4)(b)(i)(B) and (5)(b)(i)(B) for a taxation year ending after that time, the lesser of
(8) Section 66.7 of the Act is amended by adding the following after subsection (13): Reduction of foreign resource expenses
(13.1) Where in a taxation year an original owner of foreign resource properties in respect of a country disposes of all or substantially all of the original owner’s foreign resource properties in circumstances to which subsection (2.3) applies, (a) in determining the cumulative foreign resource expense of the original owner in respect of the country at any time after the time referred to in subparagraph (2.3)(a)(i), there shall be deducted the amount of that cumulative foreign resource expense determined immediately after the disposition; and (b) for the purpose of paragraph (2.3)(a), the cumulative foreign resource expense of the original owner in respect of the country determined immediately after the disposition that was deducted under subsection 66.21(4) in computing the original owner’s income for the year is deemed to be equal to the lesser of (i) the amount deducted under paragraph (a) in respect of the disposition, and (ii) the amount, if any, by which
Impôt sur le re (A) the specified amount determined under subsection (13.2) in respect of the original owner and the country for the year exceeds (B) the total of all amounts determined under this paragraph in respect of another disposition of foreign resource property in respect of the country made by the original owner before the disposition and in the year.
Specified amount — foreign resource expenses
(13.2) Where in a taxation year an original owner of foreign resource properties in respect of a country disposes of all or substantially all of the original owner’s foreign resource properties in circumstances to which subsection (2.3) applies, the specified amount in respect of the country and the original owner for the year for the purposes of clause (13.1)(b)(ii)(A) and of determining the value of D in the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1) is the lesser of (a) the total of all amounts each of which is the amount, if any, by which (i) an amount deducted under paragraph (13.1)(a) in respect of a disposition in the year by the original owner of foreign resource property in respect of the country exceeds (ii) the amount, if any, designated by the original owner in the prescribed form filed with the Minister within six months after the end of the year in respect of an amount described under subparagraph (i), and (b) the total of (i) the amount claimed under subsection 66.21(4) by the original owner in respect of the country for the year, and (ii) the amount that would, but for paragraph 66.21(3)(c), be determined under subsection 66.21(3) in respect of the country and the original owner for the year.
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(9) Section 66.7 of the Act is amended by adding the following after subsection (15): Disposal of foreign resource properties — subsection (2.3)
(15.1) Where in a taxation year a predecessor owner of foreign resource properties disposes of foreign resource properties to a corporation in circumstances to which subsection (2.3) applies, (a) for the purpose of applying that subsection to the predecessor owner in respect of its acquisition of any foreign resource properties owned by it immediately before the disposition, it is deemed, after the disposition, never to have acquired any such properties except for the purposes of (i) where the predecessor owner and the corporation dealt with each other at arm’s length at the time of the disposition or the disposition was by way of an amalgamation or merger, determining an amount deductible under subsection (2.3) for the year, and (ii) determining the value of F in the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1); and (b) where the corporation or another corporation acquires any of the properties on or after the disposition in circumstances to which subsection (2.3) applies, amounts that become receivable by the predecessor owner after the disposition in respect of foreign resource properties retained by it at the time of the disposition are, for the purposes of applying subsection (2.3) to the corporation or the other corporation in respect of the acquisition, deemed not to have become receivable by the predecessor owner.
(10) Subsection 66.7(18) of the Act is replaced by the following:
2001 Application of interpretation provisions
Impôt sur le re (18) The definitions in subsection 66(15) and sections 66.1 to 66.4 apply in this section. (11) Subsections (1) and (5) apply to the 1999 and subsequent taxation years. (12) Subsections 66.7(2.1) and (2.2) of the Act, as enacted by subsection (2), apply to taxation years of a taxpayer that begin after the earlier of (a) December 31, 1999; and (b) where, for the purposes of subsection 117(26), a date is designated in writing by the taxpayer and the designation is filed with the Minister of National Revenue on or before the taxpayer’s filing-due date for the taxpayer’s taxation year that includes the day on which this Act receives royal assent, the later of (i) the date so designated, and (ii) December 31, 1994.
(13) Subsection 66.7(2.3) of the Act, as enacted by subsection (2), and subsections (3), (4) and (6) to (10) apply to taxation years that begin after 2000. 50. (1) Subparagraph 66.8(1)(a)(i) of the Act is amended by striking out the word ‘‘or’’ at the end of clause (C) and by replacing clause (D) with the following: (D) the foreign resource expenses in respect of a country (in this subsection referred to as ‘‘country-specific foreign expenses’’), or (E) the foreign exploration and development expenses (in this subsection referred to as ‘‘global foreign expenses’’), (2) Paragraph 66.8(1)(b) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (iii) and by replacing subparagraph (iv) with the following: (iv) if any remains unapplied, then to reduce (in the order specified by the
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Income Ta taxpayer in writing filed with the Minister on or before the taxpayer’s filing-due date for the taxpayer’s taxation year in which the fiscal period ends or, where no such specification is made, in the order determined by the Minister) the taxpayer’s share of country-specific foreign expenses, and (v) if any remains unapplied, then to reduce the taxpayer’s share of global foreign expenses; and
(3) Subsections (1) and (2) apply to fiscal periods that begin after 2000.
51. (1) Paragraph 69(1)(b) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (i), by adding the word ‘‘or’’ at the end of subparagraph (ii) and by adding the following after subparagraph (ii): (iii) to a trust because of a disposition of a property that does not result in a change in the beneficial ownership of the property; and (2) Paragraph 69(1)(c) of the Act is replaced by the following: (c) where a taxpayer acquires a property by way of gift, bequest or inheritance or because of a disposition that does not result in a change in the beneficial ownership of the property, the taxpayer is deemed to acquire the property at its fair market value. (3) Paragraph 69(5)(c) of the Act is replaced by the following: (c) subsections 52(1) and (2) do not apply for the purposes of determining the cost to the shareholder of the property; and (4) Subsection (1) applies to dispositions that occur after December 23, 1998.
Impôt sur le re (5) Subsection (2) applies to acquisitions that occur after December 23, 1998. (6) Subsection (3) applies to dispositions that occur after 1999. 52. (1) The portion of paragraph 70(5.1)(d) of the Act before the formula is replaced by the following: (d) for the purpose of determining, after that time, the amount required by paragraph 14(1)(b) to be included in computing the income of the beneficiary in respect of any subsequent disposition of the property of the business, there shall be added to the amount determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) the amount determined by the formula (2) Paragraph 70(5.2)(a) of the Act is replaced by the following: (a) the taxpayer is deemed to have, immediately before the taxpayer’s death, disposed of each Canadian resource property and foreign resource property of the taxpayer and received proceeds of disposition for that property equal to its fair market value immediately before the death; (a.1) subject to subparagraph (b)(ii), any particular person who as a consequence of the taxpayer’s death acquires any property that is deemed by paragraph (a) to have been disposed of by the taxpayer is deemed to have acquired the property at the time of the death at a cost equal to the fair market value of the property immediately before the death; (3) Subparagraph 70(5.2)(b)(ii) of the Act is replaced by the following: (ii) the spouse, common-law partner or trust, as the case may be, is deemed to have acquired the property at the time of the death at a cost equal to the amount determined in respect of the disposition under subparagraph (i); (4) Paragraph 70(5.2)(c) of the Act is replaced by the following: (c) the taxpayer is deemed to have, immediately before the taxpayer’s death, disposed
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of each property that was land included in the inventory of a business of the taxpayer and received proceeds of disposition for that property equal to its fair market value immediately before the death; (c.1) subject to subparagraph (d)(ii), any particular person who as a consequence of the taxpayer’s death acquires any property that is deemed by paragraph (c) to have been disposed of by the taxpayer is deemed to have acquired the property at the time of the death at a cost equal to the fair market value of the property immediately before the death; and (5) Subsection 70(5.3) of the Act is replaced by the following: Fair market value
(5.3) For the purposes of subsections (5) and 104(4) and section 128.1, the fair market value at any time of any property deemed to have been disposed of at that time as a consequence of a particular individual’s death or as a consequence of the particular individual becoming or ceasing to be resident in Canada shall be determined as though the fair market value at that time of any life insurance policy, under which the particular individual (or any other individual not dealing at arm’s length with the particular individual at that time or at the time the policy was issued) was a person whose life was insured, were the cash surrender value (as defined in subsection 148(9)) of the policy immediately before the particular individual died or became or ceased to be resident in Canada, as the case may be. (6) The portion of subsection 70(9.1) of the Act before paragraph (a) is replaced by the following:
Transfer of farm property from trust to settlor’s children
(9.1) Where any property in Canada of a taxpayer that is land or depreciable property of a prescribed class has been transferred or distributed to a trust described in subsection (6) or 73(1) (as that subsection applied to transfers before 2000) or a trust to which subparagraph 73(1.01)(c)(i) applies and the property or a replacement property for that property in respect of which the trust has made an election under subsection 13(4) or 44(1) was, immediately before the death of the
Impôt sur le re taxpayer’s spouse or common-law partner who was a beneficiary under the trust, used in the business of farming and has, on the death of the spouse or common-law partner and as a consequence of the death, been transferred or distributed to and vested indefeasibly in an individual who was a child of the taxpayer and who was resident in Canada immediately before the death of the spouse or common-law partner, the following rules apply: (7) The portion of subsection 70(9.3) of the Act before paragraph (a) is replaced by the following:
Transfer of family farm corporation or partnership from trust to children of settlor
(9.3) Where property of a taxpayer has been transferred or distributed to a trust described in subsection (6) or 73(1) (as that subsection applied to transfers before 2000) or a trust to which subparagraph 73(1.01)(c)(i) applies and the property was,
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(8) Subsection (1) applies in respect of taxation years that end after February 27, 2000. (9) Paragraphs 70(5.2)(a) and (c) of the Act, as enacted by subsections (2) and (4), respectively, and subsection (3) apply to taxation years that begin after 2000. (10) Paragraphs 70(5.2)(a.1) and (c.1) of the Act, as enacted by subsections (2) and (4), respectively, apply to acquisitions that occur after 1992. (11) Subsection (5) applies to dispositions that occur after October 1, 1996. (12) Subsections (6) and (7) apply to transfers and distributions from trusts that occur after 1999. (13) Where a particular transfer or distribution to a trust referred to in subsection 70(9.1) or (9.3) of the Act, as enacted by subsections (6) and (7), respectively, occurred before 2001, in applying that subsection 70(9.1) or (9.3) to a transfer or distribution from the trust that occurs after 1997, that subsection shall be read without reference to the words ‘‘or common-law partner’’ and to the Modernization of Benefits and Obligations Act, unless (a) the particular transfer or distribution occurred after 1997; (b) the death referred to in that subsection occurs after 1997; and (c) either (i) at the time of the particular transfer or distribution referred to in paragraph (a), the taxpayer was a spouse of the individual whose death is referred to in paragraph (b), or
Impôt sur le re (ii) because of an election under section 144 of the Modernization of Benefits and Obligations Act, sections 130 to 142 of that Act applied, at the time of the particular transfer or distribution referred to in paragraph (a), to the taxpayer and the individual whose death is referred to in paragraph (b).
53. (1) Subsections 73(1) and (1.1) of the Act are replaced by the following: Inter vivos transfers by individuals
73. (1) For the purposes of this Part, where at any time any particular capital property of an individual (other than a trust) has been transferred in circumstances to which subsection (1.01) applies and both the individual and the transferee are resident in Canada at that time, unless the individual elects in the individual’s return of income under this Part for the taxation year in which the property was transferred that the provisions of this subsection not apply, the particular property is deemed (a) to have been disposed of at that time by the individual for proceeds equal to, (i) where the particular property is depreciable property of a prescribed class, that proportion of the undepreciated capital cost to the individual immediately before that time of all property of that class that the fair market value immediately before that time of the particular property is of the fair market value immediately before that time of all of that property of that class, and (ii) in any other case, the adjusted cost base to the individual of the particular property immediately before that time; and (b) to have been acquired at that time by the transferee for an amount equal to those proceeds.
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Qualifying transfers
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(1.01) Subject to subsection (1.02), property is transferred by an individual in circumstances to which this subsection applies where it is transferred to (a) the individual’s spouse or common-law partner; (b) a former spouse or common-law partner of the individual in settlement of rights arising out of their marriage or commonlaw partnership; or (c) a trust created by the individual under which (i) the individual’s spouse or commonlaw partner is entitled to receive all of the income of the trust that arises before the spouse’s or common-law partner’s death and no person except the spouse or common-law partner may, before the spouse’s or common-law partner’s death, receive or otherwise obtain the use of any of the income or capital of the trust, (ii) the individual is entitled to receive all of the income of the trust that arises before the individual’s death and no person except the individual may, before the individual’s death, receive or otherwise obtain the use of any of the income or capital of the trust, or (iii) either (A) the individual or the individual’s spouse is, in combination with the other, entitled to receive all of the income of the trust that arises before the later of the death of the individual and the death of the spouse and no other person may, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust, or (B) the individual or the individual’s common-law partner is, in combination with the other, entitled to receive all of the income of the trust that arises before the later of the death of the individual and the death of the com2001
Impôt sur le re mon-law partner and no other person may, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust.
Exception for transfers
(1.02) Subsection (1.01) applies to a transfer of property by an individual to a trust the terms of which satisfy the conditions in subparagraph (1.01)(c)(ii) or (iii) only where (a) the trust was created after 1999; (b) either (i) the individual had attained 65 years of age at the time the trust was created, or (ii) the transfer does not result in a change in beneficial ownership of the property and there is immediately after the transfer no absolute or contingent right of a person (other than the individual) or partnership as a beneficiary (determined with reference to subsection 104(1.1)) under the trust; and (c) in the case of a trust the terms of which satisfy the conditions in subparagraph (1.01)(c)(ii), the trust does not make an election under subparagraph 104(4)(a)(ii.1).
Interpretation
(1.1) For greater certainty, a property is, for the purposes of subsections (1) and (1.01), deemed to be property of the individual referred to in subsection (1) that has been transferred to a particular transferee where, (a) under the laws of a province or because of a decree, order or judgment of a competent tribunal made in accordance with those laws, the property (i) is acquired or is deemed to have been acquired by the particular transferee, (ii) is deemed or declared to be property of, or is awarded to, the particular transferee, or (iii) has vested in the particular transferee; and
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(b) the property was or would, but for those laws, have been a capital property of the individual referred to in subsection (1). (2) Subsection (1) applies to transfers that occur after 1999 except that, (a) in respect of transfers that occur in 2000 or 2001, for the purpose of subsection 73(1) of the Act, as enacted by subsection (1), the residence of a transferee trust shall be determined without reference to section 94 of the Act, as it reads before 2002; (b) in respect of transfers that occur in 2000 and subject to paragraph (c), (i) subsection 73(1.01) of the Act, as enacted by subsection (1), shall be read without reference to the words ‘‘or common-law partner’’, ‘‘or commonlaw partner’s’’ and ‘‘or common-law partnership’’, and (ii) subparagraph 73(1.01)(c)(iii) of the Act, as enacted by subsection (1), shall be read as follows: (iii) the individual or the individual’s spouse is, in combination with the other, entitled to receive all of the income of the trust that arises before the later of the death of the individual and the death of the spouse and no other person may, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust. (c) paragraph (b) does not apply to a transfer at any time by an individual to or for the benefit of another individual where, because of an election under section 144 of the Modernization of Benefits and Obligations Act, sections 130 to 142 of that Act applied at that time to those individuals; and (d) in respect of transfers that occur before March 16, 2001, subparagraph 73(1.02)(b)(ii) of the Act, as enacted by subsection (1), shall be read as follows: (ii) no person (other than the individual) or partnership has any absolute or contingent right as a beneficiary under the trust (determined with reference to subsection 104(1.1)); and
Impôt sur le re
54. (1) Section 74.2 of the Act is amended by adding the following after subsection (2): Election for subsection (1) to apply
(3) Subsection (1) does not apply to a disposition at any particular time (in this subsection referred to as the ‘‘emigration disposition’’) under paragraph 128.1(4)(b), by a taxpayer who is a recipient referred to in subsection (1), unless the recipient and the individual referred to in that subsection, in their returns of income for the taxation year that includes the first time, after the particular time, at which the recipient disposes of the property, jointly elect that subsection (1) apply to the emigration disposition.
Application of subsection (3)
(4) For the purpose of applying subsection (3) and notwithstanding subsections 152(4) to (5), any assessment of tax payable under this Act by the recipient or the individual referred to in subsection (1) shall be made that is necessary to take an election under subsection (3) into account except that no such assessment shall affect the computation of (a) interest payable under this Act to or by a taxpayer in respect of any period that is before the taxpayer’s filing-due date for the taxation year that includes the first time, after the particular time referred to in subsection (3), at which the recipient disposes of the property referred to in that subsection; or (b) any penalty payable under this Act.
(2) Subsection (1) applies after October 1, 1996. 55. (1) The portion of subsection 75(2) of the Act after paragraph (a) is replaced by the following: (b) that, during the existence of the person, the property shall not be disposed of except with the person’s consent or in accordance with the person’s direction,
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any income or loss from the property or from property substituted for the property, and any taxable capital gain or allowable capital loss from the disposition of the property or of property substituted for the property, shall, during the existence of the person while the person is resident in Canada, be deemed to be income or a loss, as the case may be, or a taxable capital gain or allowable capital loss, as the case may be, of the person. (2) Paragraphs 75(3)(a) and (b) of the Act are replaced by the following: (a) by a trust governed by a deferred profit sharing plan, an employee benefit plan, an employees profit sharing plan, a registered education savings plan, a registered pension plan, a registered retirement income fund, a registered retirement savings plan, a registered supplementary unemployment benefit plan or a retirement compensation arrangement; (b) by an employee trust, a related segregated fund trust (within the meaning assigned by paragraph 138.1(1)(a)), a trust described in paragraph (a.1) of the definition ‘‘trust’’ in subsection 108(1), or a trust described in paragraph 149(1)(y);
(3) Subsection (1) applies to taxation years that begin after 2000.
(4) Paragraph 75(3)(a) of the Act, as enacted by subsection (2), applies to taxation years that end after October 8, 1986 and, notwithstanding subsections 152(4) to (5) of the Act, the Minister of National Revenue shall make any assessments, reassessments and additional assessments of tax, interest and penalties that are necessary to give effect to the words ‘‘retirement compensation arrangement’’ in that paragraph. (5) Paragraph 75(3)(b) of the Act, as enacted by subsection (2), applies to the 1999 and subsequent taxation years.
Impôt sur le re 56. (1) The Act is amended by adding the following after section 76:
Non-resident moving debt from Canadian business
76.1 (1) If at any time a debt obligation of a non-resident taxpayer that is denominated in a foreign currency ceases to be an obligation of the taxpayer in respect of a business or part of a business carried on by the taxpayer in Canada immediately before that time (other than an obligation in respect of which the taxpayer ceased to be indebted at that time), for the purpose of determining the amount of any income, loss, capital gain or capital loss due to the fluctuation in the value of the foreign currency relative to Canadian currency, the taxpayer is deemed to have settled the debt obligation immediately before that time at the amount outstanding on account of its principal amount.
Non-resident assuming debt
(2) If at any time a debt obligation of a non-resident taxpayer that is denominated in a foreign currency becomes an obligation of the taxpayer in respect of a business or part of a business that the taxpayer carries on in Canada after that time (other than an obligation in respect of which the taxpayer became indebted at that time), the amount of any income, loss, capital gain or capital loss in respect of the obligation due to the fluctuation in the value of the foreign currency relative to Canadian currency shall be determined based on the amount of the obligation in Canadian currency at that time. (2) Subsection (1) applies after June 27, 1999 in respect of an authorized foreign bank, and after August 8, 2000 in any other case. 57. (1) Subsection 79.1(2) of the Act is replaced by the following:
Seizure of property
(2) Subject to subsection (2.1) and for the purpose of this section, a property is seized at any time by a person in respect of a debt where (a) the beneficial ownership of the property is acquired or reacquired at that time by the person; and
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(b) the acquisition or reacquisition of the property is in consequence of another person’s failure to pay to the person all or part of the specified amount of the debt. Exception
(2.1) For the purpose of this section, foreign resource property is deemed not to be seized at any time from (a) an individual or a corporation, if the individual or corporation is non-resident at that time; or (b) a partnership (other than a partnership each member of which is resident in Canada at that time). (2) Subsection (1) applies in respect of property acquired or reacquired after February 27, 2000. 58. (1) The portion of the definition ‘‘successor pool’’ in subsection 80(1) of the Act before paragraph (f) is replaced by the following:
‘‘successor pool’’ « compte de société remplaçante »
‘‘successor pool’’ at any time for a commercial obligation and in respect of an amount determined in relation to a debtor means the portion of that amount that would be deductible under subsection 66.7(2), (2.3), (3), (4) or (5), as the case may be, in computing the debtor’s income for the taxation year that includes that time, if (a) the debtor had sufficient incomes from all sources, (b) subsection (8) did not apply to reduce the amount so determined at that time, (c) the year ended immediately after that time, and (d) paragraphs 66.7(2.3)(a), (4)(a) and (5)(a) were read without reference to the expressions ‘‘30% of’’, ‘‘30% of’’ and ‘‘10% of’’, respectively, except that the successor pool at that time for the obligation is deemed to be nil unless (e) the obligation was issued by the debtor before, and not in contemplation of, the event described in paragraph (8)(a) that gives rise to the deductibility under subsection 66.7(2), (2.3), (3), (4) or (5), as the case may be, of all or part of
Impôt sur le re that amount in computing the debtor’s income, or
(2) Paragraph 80(2)(d) of the Act is replaced by the following: (d) the applicable fraction of the unapplied portion of a forgiven amount at any time in respect of an obligation issued by the debtor is in respect of a loss for any other taxation year, the fraction required to be used under section 38 for that year; (3) Paragraph 80(8)(a) of the Act is replaced by the following: (a) where the debtor is a corporation resident in Canada throughout that year, each particular amount that would be determined in respect of the debtor under paragraph 66.7(2)(a), (2.3)(a), (3)(a), (4)(a) or (5)(a) if paragraphs 66.7(2.3)(a), (4)(a) and (5)(a) were read without reference to the expressions ‘‘30% of’’, ‘‘30% of’’ and ‘‘10% of’’, respectively, as a consequence of the acquisition of control of the debtor by a person or group of persons, the debtor ceasing to be exempt from tax under this Part on its taxable income or the acquisition of properties by the debtor by way of an amalgamation or merger, where the amount so applied does not exceed the successor pool immediately after that time for the obligation and in respect of the particular amount; (4) Subsection 80(8) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d), by adding the word ‘‘and’’ at the end of paragraph (e) and by adding the following after paragraph (e): (f) the cumulative foreign resource expense (within the meaning assigned by subsection 66.21(1)) of the debtor in respect of a country. (5) Clause 80(12)(a)(ii)(B) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’.
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(6) Subparagraph (a)(ii) of the description of D in subsection 80(13) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (7) Paragraph (b) of the description of E in subsection 80(13) of the Act is amended by replacing the reference to the number ‘‘0.75’’ with a reference to the fraction ‘‘1/2’’. (8) Subsections (1), (3) and (4) apply to taxation years that begin after 2000. (9) Subsections (2) and (5) to (7) apply to taxation years that end after February 27, 2000 except that, for a taxation year of a debtor that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, (a) the reference to the word ‘‘twice’’ in clause 80(12)(a)(ii)(B) of the Act, as enacted by subsection (5), and in subparagraph (a)(ii) of the description of D in subsection 80(13) of the Act, as enacted by subsection (6), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the debtor for the year, multiplied by’’; and (b) the reference to the fraction ‘‘1/2’’ in paragraph (b) of the description of E in subsection 80(13) of the Act, as enacted by subsection (7), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the debtor for the year. 59. (1) Subsection 80.01(10) of the Act is amended by replacing the reference to the number ‘‘0.75’’ in the formula with a reference to the number ‘‘0.5’’. (2) Subsection (1) applies to taxation years that end after February 27, 2000 except that, for a taxation year of a debtor that includes February 28, 2000 or October
Impôt sur le re 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the fraction ‘‘1/2’’ in subsection 80.01(10) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the debtor for the year.
60. (1) Subsection 81(1) of the Act is amended by adding the following after paragraph (g.3): Relief for increased heating expenses
(g.4) an amount received pursuant to the Order Authorizing Ex Gratia Payments for Increased Heating Expenses; (2) Subsection 81(3.1) of the Act is replaced by the following:
Travel expenses
(3.1) There shall not be included in computing an individual’s income for a taxation year an amount (not in excess of a reasonable amount) received by the individual from an employer with whom the individual was dealing at arm’s length as an allowance for, or reimbursement of, travel expenses incurred by the individual in the year in respect of the individual’s part-time employment in the year with the employer (other than expenses incurred in the performance of the duties of the individual’s part-time employment) if (a) throughout the period in which the expenses were incurred, (i) the individual had other employment or was carrying on a business, or (ii) where the employer is a designated educational institution (within the meaning assigned by subsection 118.6(1)), the duties of the individual’s part-time employment were the provision in Canada of a service to the employer in the individual’s capacity as a professor or teacher; and (b) the duties of the individual’s part-time employment were performed at a location not less than 80 kilometres from, (i) where subparagraph (a)(i) applies, both the individual’s ordinary place of
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Income Ta residence and the place of the other employment or business referred to in that subparagraph, and (ii) where subparagraph (a)(ii) applies, the individual’s ordinary place of residence.
Payments for volunteer services
(4) Where (a) an individual was employed or otherwise engaged in a taxation year by a government, municipality or public authority (in this subsection referred to as ‘‘the employer’’) and received in the year from the employer one or more amounts for the performance, as a volunteer, of the individual’s duties as (i) an ambulance technician, (ii) a firefighter, or (iii) a person who assists in the search or rescue of individuals or in other emergency situations, and (b) if the Minister so demands, the employer has certified in writing that (i) the individual was in the year a person described in paragraph (a), and (ii) the individual was at no time in the year employed or otherwise engaged by the employer, otherwise than as a volunteer, in connection with the performance of any of the duties referred to in paragraph (a) or of similar duties, there shall not be included in computing the individual’s income derived from the performance of those duties the lesser of $1,000 and the total of those amounts.
(3) Subsection (1) applies to amounts received after 2000. (4) Subsection 81(3.1) of the Act, as enacted by subsection (2), applies to the 1995 and subsequent taxation years and, notwithstanding subsections 152(4) to (5) of the Act, any assessment of an individual’s tax payable under the Act for any taxation
Impôt sur le re year that ends before 2000 shall be made that is necessary to take into account the application of that subsection 81(3.1). (5) Subsection 81(4) of the Act, as enacted by subsection (2), applies to the 1998 and subsequent taxation years. 61. (1) Subsection 84.1(2.1) of the Act is amended by replacing the references to the expression ‘‘4/3 of’’ with references to the word ‘‘twice’’ and by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (2) Subsection (1) applies to taxation years that end after February 27, 2000 except that, for a taxation year of a taxpayer that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the references to the word ‘‘twice’’ in subsection 84.1(2.1) of the Act, as enacted by subsection (1), shall be read as references to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the taxpayer for the year multiplied by’’ and the reference to the fraction ‘‘1/2’’ shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year. 62. (1) The descriptions of D and E in paragraph 85(1)(d.1) of the Act are replaced by the following: D is the amount, if any, that would be included under subsection 14(1) in computing the taxpayer’s income as a result of the disposition if the values determined for C and D in paragraph 14(1)(b) were zero, and E is the amount, if any, that would be included under subsection 14(1) in computing the taxpayer’s income as a result of the disposition if the value determined for D in paragraph 14(1)(b) were zero;
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(2) Section 85 of the Act is amended by adding the following after subsection (1.1): Exception
(1.11) Notwithstanding subsection (1.1), a foreign resource property, or an interest in a partnership that derives all or part of its value from one or more foreign resource properties, is not an eligible property of a taxpayer in respect of a disposition by the taxpayer to a corporation where (a) the taxpayer and the corporation do not deal with each other at arm’s length; and (b) it is reasonable to conclude that one of the purposes of the disposition, or a series of transactions or events of which the disposition is a part, is to increase the extent to which any person may claim a deduction under section 126. (3) Subsection (1) applies in respect of taxation years that end after February 27, 2000. (4) Subsection (2) applies to dispositions that occur after December 21, 2000 other than a disposition by a taxpayer that occurs pursuant to an agreement in writing made by the taxpayer on or before that date. 63. (1) Subsection 85.1(2) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (c), by adding the word ‘‘or’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) the vendor (i) is a foreign affiliate of a taxpayer resident in Canada at the end of the taxation year of the vendor in which the exchange occurred, and (ii) has included any portion of the gain or loss, otherwise determined, from the disposition of the exchanged shares in computing its foreign accrual property income for the taxation year of the vendor in which the exchange occurred.
Impôt sur le re (2) Section 85.1 of the Act is amended by adding the following after subsection (4):
Foreign share for foreign share exchange
(5) Subject to subsections (3) and (6) and 95(2), where a corporation resident in a country other than Canada (in this section referred to as the ‘‘foreign purchaser’’) issues shares of its capital stock (in this section referred to as the ‘‘issued foreign shares’’) to a vendor in exchange for shares of the capital stock of another corporation resident in a country other than Canada (in this section referred to as the ‘‘exchanged foreign shares’’) that were immediately before the exchange capital property of the vendor, except where the vendor has, in the vendor’s return of income for the taxation year in which the exchange occurred, included in computing the vendor’s income for that year any portion of the gain or loss, otherwise determined, from the disposition of the exchanged foreign shares, the vendor is deemed (a) to have disposed of the exchanged foreign shares for proceeds of disposition equal to the adjusted cost base to the vendor of those shares immediately before the exchange, and (b) to have acquired the issued foreign shares at a cost to the vendor equal to the adjusted cost base to the vendor of the exchanged foreign shares immediately before the exchange, and where the exchanged foreign shares were taxable Canadian property of the vendor, the issued foreign shares so acquired by the vendor are deemed to be taxable Canadian property of the vendor.
Where subsection (5) does not apply
(6) Subsection (5) does not apply where (a) the vendor and foreign purchaser were, immediately before the exchange, not dealing with each other at arm’s length (otherwise than because of a right referred to in paragraph 251(5)(b) that is a right of the foreign purchaser to acquire the exchanged foreign shares);
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(b) immediately after the exchange the vendor, persons with whom the vendor did not deal at arm’s length or the vendor together with persons with whom the vendor did not deal at arm’s length (i) controlled the foreign purchaser, or (ii) beneficially owned shares of the capital stock of the foreign purchaser having a fair market value of more than 50% of the fair market value of all of the outstanding shares of the capital stock of the foreign purchaser; (c) consideration other than issued foreign shares was received by the vendor for the exchanged foreign shares, notwithstanding that the vendor may have disposed of shares of the capital stock of the other corporation referred to in subsection (5) (other than the exchanged foreign shares) to the foreign purchaser for consideration other than shares of the capital stock of the foreign purchaser; (d) the vendor (i) is a foreign affiliate of a taxpayer resident in Canada at the end of the taxation year of the vendor in which the exchange occurred, and (ii) has included any portion of the gain or loss, otherwise determined, from the disposition of the exchanged foreign shares in computing its foreign accrual property income for the taxation year of the vendor in which the exchange occurred; or (e) the vendor is a foreign affiliate of a taxpayer resident in Canada at the end of the taxation year of the vendor in which the exchange occurred and the exchanged foreign shares are excluded property (within the meaning assigned by subsection 95(1)) of the vendor.
(3) Subsections (1) and (2) apply to exchanges that occur after 1995.
Impôt sur le re 64. (1) The Act is amended by adding the following after section 86:
Foreign Spin-offs Eligible distribution not included in income
86.1 (1) Notwithstanding any other provision of this Part, (a) the amount of an eligible distribution received by a taxpayer shall not be included in computing the income of the taxpayer; and (b) subsection 52(2) does not apply to the eligible distribution received by the taxpayer.
Eligible distribution
(2) For the purposes of this section and Part XI, a distribution by a particular corporation that is received by a taxpayer is an eligible distribution if (a) the distribution is with respect to all of the taxpayer’s common shares of the capital stock of the particular corporation (in this section referred to as the ‘‘original shares’’); (b) the distribution consists solely of common shares of the capital stock of another corporation that were owned by the particular corporation immediately before their distribution to the taxpayer (in this section referred to as the ‘‘spin-off shares’’); (c) in the case of a distribution that is not prescribed, (i) at the time of the distribution, both corporations are resident in the United States and were never resident in Canada, (ii) at the time of the distribution, the shares of the class that includes the original shares are widely held and actively traded on a prescribed stock exchange in the United States, and (iii) under the United States Internal Revenue Code applicable to the distribution, the shareholders of the particular corporation who are resident in the United States are not taxable in respect of the distribution;
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(d) in the case of a distribution that is prescribed, (i) at the time of the distribution, both corporations are resident in the same country, other than the United States, with which Canada has a tax treaty (in this section referred to as the ‘‘foreign country’’) and were never resident in Canada, (ii) at the time of the distribution, the shares of the class that includes the original shares are widely held and actively traded on a prescribed stock exchange, (iii) under the law of the foreign country, those shareholders of the particular corporation who are resident in that country are not taxable in respect of the distribution, and (iv) the distribution is prescribed subject to such terms and conditions as are considered appropriate in the circumstances; (e) before the end of the sixth month following the day on which the particular corporation first distributes a spin-off share in respect of the distribution, the particular corporation provides to the Minister information satisfactory to the Minister establishing (i) that, at the time of the distribution, the shares of the class that includes the original shares are widely held and actively traded on a prescribed stock exchange, (ii) that the particular corporation and the other corporation referred to in paragraph (b) were never resident in Canada, (iii) the date of the distribution, (iv) the type and fair market value of each property distributed to residents of Canada, (v) the name and address of each resident of Canada that received property with respect to the distribution,
Impôt sur le re (vi) in the case of a distribution that is not prescribed, that the distribution is not taxable under the United States Internal Revenue Code applicable to the distribution, (vii) in the case of a distribution that is prescribed, that the distribution is not taxable under the law of the foreign country, and (viii) such other matters that are required, in prescribed form; and (f) except where Part XI applies in respect of the taxpayer, the taxpayer elects in writing filed with the taxpayer’s return of income for the taxation year in which the distribution occurs (or, in the case of a distribution received before October 18, 2000, filed with the Minister before July 2001) that this section apply to the distribution and provides information satisfactory to the Minister (i) of the number, cost amount (determined without reference to this section) and fair market value of the taxpayer’s original shares immediately before the distribution, (ii) of the number, and fair market value, of the taxpayer’s original shares and the spin-off shares immediately after the distribution of the spin-off shares to the taxpayer, (iii) except where the election is filed with the taxpayer’s return of income for the year in which the distribution occurs, concerning the amount of the distribution, the manner in which the distribution was reported by the taxpayer and the details of any subsequent disposition of original shares or spin-off shares for the purpose of determining any gains or losses from those dispositions, and (iv) of such other matters that are required, in prescribed form.
��� Cost adjustments
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(3) Where a spin-off share is distributed by a corporation to a taxpayer pursuant to an eligible distribution with respect to an original share of the taxpayer, (a) there shall be deducted for the purpose of computing the cost amount to the taxpayer of the original share at any time the amount determined by the formula A x (B/C) where A is the cost amount, determined without reference to this section, to the taxpayer of the original share at the time that is immediately before the distribution or, if the original share is disposed of by the taxpayer, before the distribution, at the time that is immediately before its disposition, B is the fair market value of the spin-off share immediately after its distribution to the taxpayer, and C is the total of (i) the fair market value of the original share immediately after the distribution of the spin-off share to the taxpayer, and (ii) the fair market value of the spin-off share immediately after its distribution to the taxpayer; and (b) the cost to the taxpayer of the spin-off share is the amount by which the cost amount of the taxpayer’s original share was reduced as a result of paragraph (a).
Inventory
(4) For the purpose of calculating the value of the property described in an inventory of a taxpayer’s business, (a) an eligible distribution to the taxpayer of a spin-off share that is included in the inventory is deemed not to be an acquisition of property in the fiscal period of the business in which the distribution occurs; and (b) for greater certainty, the value of the spin-off share is to be included in computing the value of the inventory at the end of that fiscal period.
Reassessments
Impôt sur le re
(5) Notwithstanding subsections 152(4) to (5), the Minister may make at any time such assessments, reassessments, determinations and redeterminations that are necessary where information is obtained that the conditions in subparagraph (2)(c)(iii) or (d)(iii) are not, or are no longer, satisfied. (2) Subsection (1) applies to distributions received after 1997, except that (a) information referred to in paragraph 86.1(2)(e) of the Act, as enacted by subsection (1), is deemed to be provided to the Minister of National Revenue on a timely basis if it is provided to that Minister before the day that is 90 days after the day on which this Act receives royal assent; and (b) the election referred to in paragraph 86.1(2)(f) of the Act, as enacted by subsection (1), is deemed to be filed on a timely basis if it is filed with the Minister of National Revenue before the day that is 90 days after the day on which this Act receives royal assent. 65. (1) Subsection 87(1.2) of the Act is replaced by the following:
New corporation continuation of a predecessor
(1.2) Where there has been an amalgamation of corporations described in paragraph (1.1)(a) or of two or more corporations each of which is a subsidiary wholly-owned corporation of the same person, the new corporation is, for the purposes of section 29 of the Income Tax Application Rules, subsection 59(3.3) and sections 66, 66.1, 66.2, 66.21, 66.4 and 66.7, deemed to be the same corporation as, and a continuation of, each predecessor corporation, except that this subsection does not affect the determination of any predecessor corporation’s fiscal period, taxable income or tax payable. (2) Subparagraph 87(2)(u)(ii) of the Act is replaced by the following: (ii) for the purposes of subsections 93(2) to (2.3), any exempt dividend received by the predecessor corporation on any
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Income Ta such share is deemed to be an exempt dividend received by the new corporation on the share;
(3) The portion of subsection 87(8) of the Act before paragraph (a) is replaced by the following: Foreign merger
(8) Subject to subsection 95(2), where there has been a foreign merger in which a taxpayer’s shares or options to acquire shares of the capital stock of a corporation that was a predecessor foreign corporation immediately before the merger were exchanged for or became shares or options to acquire shares of the capital stock of the new foreign corporation or the foreign parent corporation, unless the taxpayer elects in the taxpayer’s return of income for the taxation year in which the foreign merger took place not to have this subsection apply, subsections (4) and (5) apply to the taxpayer as if the references in those subsections to
(4) Subsection 87(8.1) of the Act is replaced by the following: Definition of ‘‘foreign merger’’
(8.1) For the purposes of this section, ‘‘foreign merger’’ means a merger or combination of two or more corporations each of which was, immediately before the merger or combination, resident in a country other than Canada (each of which is in this section referred to as a ‘‘predecessor foreign corporation’’) to form one corporate entity resident in a country other than Canada (in this section referred to as the ‘‘new foreign corporation’’) in such a manner that, and otherwise than as a result of the distribution of property to one corporation on the winding-up of another corporation, (a) all or substantially all the property (except amounts receivable from any predecessor foreign corporation or shares of the capital stock of any predecessor foreign corporation) of the predecessor foreign corporations immediately before the merger or combination becomes property of the new foreign corporation as a consequence of the merger or combination;
Impôt sur le re (b) all or substantially all the liabilities (except amounts payable to any predecessor foreign corporation) of the predecessor foreign corporations immediately before the merger or combination become liabilities of the new foreign corporation as a consequence of the merger or combination; and (c) all or substantially all of the shares of the capital stock of the predecessor foreign corporations (except any shares or options owned by any predecessor foreign corporation) are exchanged for or become, because of the merger or combination, (i) shares of the capital stock of the new foreign corporation, or (ii) if, immediately after the merger, the new foreign corporation was controlled by another corporation (in this section referred to as the ‘‘foreign parent corporation’’) that was resident in a country other than Canada, shares of the capital stock of the foreign parent corporation.
(5) The portion of subsection 87(10) of the Act after paragraph (f) is replaced by the following: the new share is deemed, for the purposes of subsection 116(6), the definitions ‘‘qualified investment’’ in subsections 146(1), 146.1(1), and 146.3(1) and in section 204, and the definition ‘‘taxable Canadian property’’ in subsection 248(1), to be listed on the exchange until the earliest time at which it is so redeemed, acquired or cancelled.
(6) Subsection (1) applies to amalgamations that occur after 2000. (7) Subsection (2) applies after November 1999.
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(8) Subsections (3) and (4) apply to mergers and combinations that occur after 1995 and, where a taxpayer notifies the Minister of National Revenue in writing before the taxpayer’s filing-due date for the taxation year in which this Act receives royal assent that the taxpayer makes the election referred to in subsection 87(8) of the Act, as enacted by subsection (3), in respect of a merger or combination that occurred before 1999, the election is deemed to have been validly made in respect of the merger or combination. (9) Subsection (5) applies after October 1, 1996. 66. (1) The portion of subclause 88(1)(c)(vi)(B)(III) of the Act before subsubclause 1 is replaced by the following: (III) a corporation (other than a specified person or the subsidiary)
(2) Clause 88(1)(c.2)(iii)(A) of the Act is replaced by the following: (A) the reference in the definition ‘‘specified shareholder’’ in subsection 248(1) to ‘‘the issued shares of any class of the capital stock of the corporation or of any other corporation that is related to the corporation’’ shall be read as ‘‘the issued shares of any class (other than a specified class) of the capital stock of the corporation or of any other corporation that is related to the corporation and that has a significant direct or indirect interest in any issued shares of the capital stock of the corporation’’, and (3) Subsection 88(1) of the Act is amended by adding the following after paragraph (c.7): (c.8) for the purpose of clause (c.2)(iii)(A), a specified class of the capital stock of a corporation is a class of shares of the capital stock of the corporation where
Impôt sur le re (i) the paid-up capital in respect of the class was not, at any time, less than the fair market value of the consideration for which the shares of that class then outstanding were issued, (ii) the shares are non-voting in respect of the election of the board of directors of the corporation, except in the event of a failure or default under the terms or conditions of the shares, (iii) under neither the terms and conditions of the shares nor any agreement in respect of the shares are the shares convertible into or exchangeable for shares other than shares of a specified class of the capital stock of the corporation, and (iv) under neither the terms and conditions of the shares nor any agreement in respect of the shares is any holder of the shares entitled to receive on the redemption, cancellation or acquisition of the shares by the corporation or by any person with whom the corporation does not deal at arm’s length an amount (excluding any premium for early redemption) greater than the total of the fair market value of the consideration for which the shares were issued and the amount of any unpaid dividends on the shares; (4) Subsection 88(1.5) of the Act is replaced by the following:
Parent continuation of subsidiary
(1.5) For the purposes of section 29 of the Income Tax Application Rules, subsection 59(3.3) and sections 66, 66.1, 66.2, 66.21, 66.4 and 66.7, where the rules in subsection (1) applied to the winding-up of a subsidiary, its parent is deemed to be the same corporation as, and a continuation of, the subsidiary. (5) The portion of subsection 88(4) of the Act before paragraph (a) is replaced by the following:
Amalgamation deemed not to be acquisition of control
(4) For the purposes of paragraphs (1)(c), (c.2), (d) and (d.2) and, for greater certainty, paragraphs (c.3) to (c.8) and (d.3),
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(6) Subsections (1) to (3) and (5) apply to windings-up that begin after November 1994. (7) Subsection (4) applies to windings-up that occur after 2000. 67. (1) Clause (a)(i)(A) of the definition ‘‘capital dividend account’’ in subsection 89(1) of the Act is replaced by the following: (A) the amount of the corporation’s capital gain from a disposition (other than a disposition that is the making of a gift after December 8, 1997 that is not a gift described in subsection 110.1(1)) of a property in the period beginning at the beginning of its first taxation year (that began after the corporation last became a private corporation and that ended after 1971) and ending immediately before the particular time (in this definition referred to as ‘‘the period’’)
(2) Paragraph (c) of the definition ‘‘capital dividend account’’ in subsection 89(1) of the Act is replaced by the following: (c) the total of all amounts each of which is an amount required to have been included under this paragraph as it read in its application to a taxation year that ended before February 28, 2000, (c.1) the amount, if any, by which (i) 1/2 of the total of all amounts each of which is an amount required by paragraph 14(1)(b) to be included in computing the corporation’s income in respect of a business carried on by the corporation for a taxation year that is included in the period and that ended after February 27, 2000 and before October 18, 2000, exceeds (ii) where the corporation has deducted an amount under subsection 20(4.2) in respect of a debt established by it to have become a bad debt in a
Impôt sur le re taxation year that is included in the period and that ended after February 27, 2000 and before October 18, 2000, or has an allowable capital loss for such a year because of the application of subsection 20(4.3), the amount determined by the formula V+W where V is 1/2 of the value determined for A under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and W is 1/3 of the value determined for B under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and (iii) in any other case, nil, (c.2) the amount, if any, by which (i) the total of all amounts each of which is an amount required by paragraph 14(1)(b) to be included in computing the corporation’s income in respect of a business carried on by the corporation for a taxation year that is included in the period and that ends after October 17, 2000, exceeds (ii) where the corporation has deducted an amount under subsection 20(4.2) in respect of a debt established by it to have become a bad debt in a taxation year that is included in the period and that ends after October 17, 2000, or has an allowable capital loss for such a year because of the application of subsection 20(4.3), the amount determined by the formula X+Y where X is the value determined for A under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and
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Income Ta Y is 1/3 of the value determined forB under subsection 20(4.2) in respect of the corporation for the last such taxation year that ended in the period, and (iii) in any other case, nil,
(3) The definition ‘‘capital dividend account’’ in subsection 89(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d) and by adding the following after paragraph (e): (f) all amounts each of which is an amount in respect of a distribution made in the period by a trust to the corporation in respect of capital gains of the trust equal to the lesser of (i) the amount, if any, by which (A) the amount of the distribution exceeds (B) the amount designated under subsection 104(21) by the trust (other than a designation to which subsection 104(21.4) applies) in respect of the net taxable capital gains of the trust attributable to those capital gains, and (ii) the amount determined by the formula AxB where A is the fraction or whole number determined when 1 is subtracted from the reciprocal of the fraction under paragraph 38(a) applicable to the trust for the year, and B is the amount referred to in clause (i) (B), and (g) all amounts each of which is an amount in respect of a distribution made by a trust to the corporation in the period in respect of a dividend (other than a taxable dividend) paid on a share of the capital stock of another corporation resi2001
Impôt sur le re dent in Canada to the trust during a taxation year of the trust throughout which the trust was resident in Canada equal to the lesser of (i) the amount of the distribution, and (ii) the amount designated under subsection 104(20) by the trust in respect of the corporation in respect of that dividend,
(4) Subsection (1) applies to dispositions made after December 8, 1997, other than a disposition made under a written agreement made before December 9, 1997. (5) Subsection (2) applies in respect of taxation years that end after February 27, 2000. (6) Subsection (3) applies to elections in respect of capital dividends that become payable after 1997. 68. (1) Section 91 of the Act is amended by adding the following after subsection (6): Shares acquired from a partnership
(7) For the purpose of subsection (5), where a taxpayer resident in Canada acquires a share of the capital stock of a corporation that is immediately after the acquisition a foreign affiliate of the taxpayer from a partnership of which the taxpayer, or a corporation resident in Canada with which the taxpayer was not dealing at arm’s length at the time the share was acquired, was a member (each such person referred to in this subsection as the ‘‘member’’) at any time during any fiscal period of the partnership that began before the acquisition, (a) that portion of any amount required by subsection 92(1) to be added to the adjusted cost base to the partnership of the share of the capital stock of the foreign affiliate equal to the amount included in the income of the member because of subsection 96(1) in respect of the amount that was included in the income of the partnership because of
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subsection (1) or (3) in respect of the foreign affiliate and added to that adjusted cost base, and (b) that portion of any amount required by subsection 92(1) to be deducted from the adjusted cost base to the partnership of the share of the capital stock of the foreign affiliate equal to the amount by which the income of the member from the partnership under subsection 96(1) was reduced because of the amount deducted in computing the income of the partnership under subsection (2), (4) or (5) and deducted from that adjusted cost base is deemed to be an amount required by subsection 92(1) to be added or deducted, as the case may be, in computing the adjusted cost base to the taxpayer of the share.
(2) Subsection (1) applies to shares acquired after November 1999. 69. (1) Section 92 of the Act is amended by adding the following after subsection (3):
Disposition of a partnership interest
(4) Where a corporation resident in Canada or a foreign affiliate of a corporation resident in Canada has at any time disposed of all or a portion of an interest in a partnership of which it was a member, there shall be added, in computing the proceeds of disposition of that interest, the amount determined by the formula (A - B) x (C/D) where A is the amount, if any, by which (a) the total of all amounts each of which is an amount that was deductible under paragraph 113(1)(d) by the member from its income in computing its taxable income for any taxation year of the member that began before that time in respect of any portion of a dividend received by the partnership, or would have been so deductible if the member were a corporation resident in Canada,
Impôt sur le re exceeds (b) the total of all amounts each of which is the portion of any income or profits tax paid by the partnership or the member of the partnership to a government of a country other than Canada that can reasonably be considered as having been paid in respect of the member’s share of the dividend described in paragraph (a); B is the total of (a) the total of all amounts each of which was an amount added under this subsection in computing the member’s proceeds of a disposition before that time of another interest in the partnership, and (b) the total of all amounts each of which was an amount deemed by subsection (5) to be a gain of the member from a disposition before that time of a share by the partnership; C is the adjusted cost base, immediately before that time, of the portion of the member’s interest in the partnership disposed of by the member at that time; and D is the adjusted cost base, immediately before that time, of the member’s interest in the partnership immediately before that time.
Deemed gain from the disposition of a share
(5) Where a partnership has, at any time in a fiscal period of the partnership at the end of which a corporation resident in Canada or a foreign affiliate of a corporation resident in Canada was a member, disposed of a share of the capital stock of a corporation, the amount determined under subsection (6) in respect of such a member is deemed to be a gain of the member from the disposition of the share by the partnership for the member’s taxation year in which the fiscal period of the partnership ends.
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(6) The amount determined for the purposes of subsection (5) is the amount determined by the formula A-B where A is the amount, if any, by which (a) the total of all amounts each of which is an amount that was deductible under paragraph 113(1)(d) by the member from its income in computing its taxable income for a taxation year in respect of any portion of a dividend received by the partnership on the share in a fiscal period of the partnership that began before the time referred to in subsection (5) and ends in the member’s taxation year, or would have been so deductible if the member were a corporation resident in Canada, exceeds (b) the total of all amounts each of which is the portion of any income or profits tax paid by the partnership or the member to a government of a country other than Canada that can reasonably be considered as having been paid in respect of the member’s share of the dividend described in paragraph (a); and B is the total of all amounts each of which is an amount that was added under subsection (4) in computing the member’s proceeds of a disposition before the time referred to in subsection (5) of an interest in the partnership.
(2) Subsection (1) applies to dispositions that occur after November 1999.
70. (1) Subparagraph 93(1)(b)(ii) of the Act is replaced by the following: (ii) for the purposes of determining the exempt surplus, exempt deficit, taxable surplus, taxable deficit and underlying foreign tax of the affiliate in respect of the corporation resident in Canada (with2001
Impôt sur le re in the meanings assigned by Part LIX of the Income Tax Regulations), the affiliate is deemed to have redeemed at the time of the disposition shares of a class of its capital stock.
(2) Section 93 of the Act is amended by adding the following after subsection (1.1):
Disposition of shares of a foreign affiliate held by a partnership
(1.2) Where a particular corporation resident in Canada or a foreign affiliate of the particular corporation (each of which is referred to in this subsection as the ‘‘disposing corporation’’) would, but for this subsection, have a taxable capital gain from a disposition by a partnership, at any time, of shares of a class of the capital stock of a foreign affiliate of the particular corporation and the particular corporation so elects in prescribed manner in respect of the disposition, (a) 4/3 of (i) the amount designated by the particular corporation (which amount shall not exceed the amount that is equal to the proportion of the taxable capital gain of the partnership that the number of shares of that class of the capital stock of the foreign affiliate, determined as the amount, if any, by which the number of those shares that were deemed to have been owned by the disposing corporation for the purposes of subsection 93.1(1) immediately before the disposition exceeds the number of those shares that were deemed to have been owned for those purposes by the disposing corporation immediately after the disposition, is of the number of those shares of the foreign affiliate that were owned by the partnership immediately before the disposition), or (ii) where subsection (1.3) applies, the amount prescribed for the purpose of that subsection in respect of those shares is deemed to have been a dividend received immediately before that time on the number of those shares of the foreign affiliate which shall be
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determined as the amount, if any, by which the number of those shares that the disposing corporation was deemed to own for the purpose of subsection 93.1(1) immediately before the disposition exceeds the number of those shares of the foreign affiliate that the disposing corporation was deemed to own for the purposes of subsection 93.1 (1) immediately after the disposition; (b) notwithstanding section 96, the disposing corporation’s taxable capital gain from the disposition of those shares is deemed to be the amount, if any, by which the disposing corporation’s taxable capital gain from the disposition of the shares otherwise determined exceeds the amount designated by the particular corporation in respect of the shares; (c) for the purpose of any regulation made under this subsection, the disposing corporation is deemed to have disposed of the number of those shares of the foreign affiliate which shall be determined as the amount, if any, by which the number of those shares that the disposing corporation was deemed to own for the purposes of subsection 93.1(1) immediately before the disposition exceeds the number of those shares that the disposing corporation was deemed to own for those purposes immediately after the disposition; (d) for the purposes of section 113 in respect of the dividend referred to in paragraph (a), the disposing corporation is deemed to have owned the shares on which that dividend was received; and (e) where the disposing corporation has a taxable capital gain from the partnership because of the application of subsection 40(3) to the partnership in respect of those shares, for the purposes of this subsection, the shares are deemed to have been disposed of by the partnership.
Deemed election
(1.3) Where a foreign affiliate of a particular corporation resident in Canada has a gain from the disposition by a partnership at any time of shares of a class of the capital stock of a foreign affiliate of the particular corporation
Impôt sur le re that are excluded property, the particular corporation is deemed to have made an election under subsection (1.2) in respect of the number of shares of the foreign affiliate which shall be determined as the amount, if any, by which the number of those shares that the disposing corporation was deemed to own for the purposes of subsection 93.1(1) immediately before the disposition exceeds the number of those shares that the disposing corporation was deemed to own for those purposes immediately after the disposition. (3) Subsection 93(2) of the Act is replaced by the following:
Loss limitation on disposition of share
(2) Where (a) a corporation resident in Canada has a loss from the disposition by it at any time of a share of the capital stock of a foreign affiliate of the corporation (in this subsection referred to as the ‘‘affiliate share’’), or (b) a foreign affiliate of a corporation resident in Canada has a loss from the disposition by it at any time of a share of the capital stock of another foreign affiliate of the corporation resident in Canada that is not excluded property (in this subsection referred to as the ‘‘affiliate share’’), the amount of the loss is deemed to be the amount determined by the formula A - (B - C) where A is the amount of the loss determined without reference to this subsection, B is the total of all amounts each of which is an amount received before that time, in respect of an exempt dividend on the affiliate share or on a share for which the affiliate share was substituted, by (a) the corporation resident in Canada, (b) a corporation related to the corporation resident in Canada, (c) a foreign affiliate of the corporation resident in Canada, or
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Income Ta (d) a foreign affiliate of a corporation related to the corporation resident in Canada, and
C is the total of (a) the total of all amounts each of which is the amount by which a loss (determined without reference to this section), from another disposition at or before that time by a corporation or foreign affiliate described in the description of B of the affiliate share or a share for which the affiliate share was substituted, was reduced under this subsection in respect of the exempt dividends referred to in the description of B, (b) the total of all amounts each of which is 4/3 of the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a previous disposition by a partnership of the affiliate share or a share for which the affiliate share was substituted, was reduced under subsection (2.1) in respect of the exempt dividends referred to in the description of B, (c) the total of all amounts each of which is the amount by which a loss (determined without reference to this section), from a disposition at or before that time by a corporation or foreign affiliate described in the description of B of an interest in a partnership, was reduced under subsection (2.2) in respect of the exempt dividends referred to in the description of B, and (d) the total of all amounts each of which is 4/3 of the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of an interest in another partnership, was reduced under subsection (2.3) in respect of the exempt dividends referred to in the description of B.
Loss limitation — disposition of share by partnership
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(2.1) Where (a) a corporation resident in Canada has an allowable capital loss from a disposition at any time by a partnership of a share of the capital stock of a foreign affiliate of the corporation (in this subsection referred to as the ‘‘affiliate share’’), or (b) a foreign affiliate of a corporation resident in Canada has an allowable capital loss from a disposition at any time by a partnership of a share of the capital stock of another foreign affiliate of the corporation resident in Canada that would not be excluded property of the affiliate if the affiliate owned the share immediately before it was disposed of (in this subsection referred to as the ‘‘affiliate share’’), the amount of the allowable capital loss is deemed to be the amount determined by the formula A - (B - C) where A is the amount of the allowable capital loss determined without reference to this subsection, B is 3/4 of the total of all amounts each of which was received before that time, in respect of an exempt dividend on the affiliate share or on a share for which the affiliate share was substituted, by (a) the corporation resident in Canada, (b) a corporation related to the corporation resident in Canada, (c) a foreign affiliate of the corporation resident in Canada, or (d) a foreign affiliate of a corporation related to the corporation resident in Canada, and
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Income Ta
C is the total of (a) the total of all amounts each of which is the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of the affiliate share or a share for which the affiliate share was substituted, was reduced under this subsection in respect of the exempt dividends referred to in the description of B, (b) the total of all amounts each of which is 3/4 of the amount by which a loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from another disposition at or before that time of the affiliate share or a share for which the affiliate share was substituted, was reduced under subsection (2) in respect of the exempt dividends referred to in the description of B, (c) the total of all amounts each of which is 3/4 of the amount by which a loss (determined without reference to this section), from a disposition at or before that time by a corporation or foreign affiliate described in the description of B of an interest in a partnership, was reduced under subsection (2.2) in respect of the exempt dividends referred to in the description of B, and (d) the total of all amounts each of which is the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of an interest in another partnership, was reduced under subsection (2.3) in respect of exempt dividends referred to in the description of B.
Loss limitation — disposition of partnership interest
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(2.2) Where (a) a corporation resident in Canada has a loss from the disposition by it at any time of an interest in a partnership (in this subsection referred to as the ‘‘partnership interest’’), which has a direct or indirect interest in shares of the capital stock of a foreign affiliate of the corporation resident in Canada (in this subsection referred to as ‘‘affiliate shares’’), or (b) a foreign affiliate of a corporation resident in Canada has a loss from the disposition by it at any time of an interest in a partnership (in this subsection referred to as the ‘‘partnership interest’’), which has a direct or indirect interest in shares of the capital stock of another foreign affiliate of the corporation resident in Canada that would not be excluded property if the shares were owned by the affiliate (in this subsection referred to as ‘‘affiliate shares’’), the amount of the loss is deemed to be the amount determined by the formula A - (B - C) where A is the amount of the loss determined without reference to this subsection, B is the total of all amounts each of which was received before that time, in respect of an exempt dividend on affiliate shares or on shares for which affiliate shares were substituted, by (a) the corporation resident in Canada, (b) a corporation related to the corporation resident in Canada, (c) a foreign affiliate of the corporation resident in Canada, or
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Income Ta (d) a foreign affiliate of a corporation related to the corporation resident in Canada, and
C is the total of (a) the total of all amounts each of which is the amount by which a loss (determined without reference to this section), from another disposition at or before that time by a corporation or foreign affiliate described in the description of B of affiliate shares or shares for which affiliate shares were substituted, was reduced under subsection (2) in respect of the exempt dividends referred to in the description of B, (b) the total of all amounts each of which is 4/3 of the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from another disposition at or before that time by a partnership of affiliate shares or shares for which affiliate shares were substituted, was reduced under subsection (2.1) in respect of the exempt dividends referred to in the description of B, (c) the total of all amounts each of which is the amount by which a loss (determined without reference to this section), from a disposition at or before that time by a corporation or foreign affiliate described in the description of B of an interest in a partnership, was reduced under this subsection in respect of the exempt dividends referred to in the description of B, and (d) the total of all amounts each of which is 4/3 of the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of an interest in another partnership, was reduced under subsection (2.3) in respect of the exempt dividends referred to in the description of B.
Loss limitation — disposition of partnership interest
Impôt sur le re
(2.3) Where (a) a corporation resident in Canada has an allowable capital loss from a partnership from a disposition at any time of an interest in another partnership that has a direct or indirect interest in shares of the capital stock of a foreign affiliate of the corporation resident in Canada (in this subsection referred to as ‘‘affiliate shares’’), or (b) a foreign affiliate of a corporation resident in Canada has an allowable capital loss from a partnership from a disposition at any time by a partnership of an interest in another partnership that has a direct or indirect interest in shares of the capital stock of a foreign affiliate of the corporation resident in Canada that would not be excluded property of the affiliate if the affiliate owned the shares immediately before the disposition (in this subsection referred to as ‘‘affiliate shares’’), the amount of the allowable capital loss is deemed to be the amount determined by the formula A - (B - C) where A is the amount of the allowable capital loss determined without reference to this subsection, B is 3/4 of the total of all amounts each of which was received before that time, in respect of an exempt dividend on affiliate shares or on shares for which affiliate shares were substituted, by (a) the corporation resident in Canada, (b) a corporation related to the corporation resident in Canada,
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Income Ta (c) a foreign affiliate of the corporation resident in Canada, or (d) a foreign affiliate of a corporation related to the corporation resident in Canada, and
C is the total of (a) the total of all amounts each of which is 3/4 of the amount by which a loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from another disposition at or before that time of affiliate shares or shares for which affiliate shares were substituted, was reduced under subsection (2) in respect of the exempt dividends referred to in the description of B, (b) the total of all amounts each of which is the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of affiliate shares or shares for which affiliate shares were substituted, was reduced under subsection (2.1) in respect of the exempt dividends referred to in the description of B, (c) the total of all amounts each of which is 3/4 of the amount by which a loss (determined without reference to this section), from a disposition at or before that time by a corporation or foreign affiliate described in the description of B of an interest in a partnership, was reduced under subsection (2.2) in respect of the exempt dividends referred to in the description of B, and (d) the total of all amounts each of which is the amount by which an allowable capital loss (determined without reference to this section), of a corporation or foreign affiliate described in the description of B from a disposition at or before that time by a partnership of an interest in another partnership, was reduced under this subsection in respect of the exempt
Impôt sur le re dividends referred to in the description of B.
(4) Subsection 93(1.2) of the Act, as enacted by subsection (2), is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (5) Subsection 93(2) of the Act, as enacted by subsection (3), is amended by replacing the references to the expression ‘‘4/3 of’’ with references to the word ‘‘twice’’. (6) Subsection 93(2.1) of the Act, as enacted by subsection (3), is amended by replacing the references to the fraction ‘‘3/4’’ with references to the fraction ‘‘1/2’’. (7) Subsection 93(2.2) of the Act, as enacted by subsection (3), is amended by replacing the references to the expression ‘‘4/3 of’’ with references to the word ‘‘twice’’. (8) Subsection 93(2.3) of the Act, as enacted by subsection (3), is amended by replacing the references to the fraction ‘‘3/4’’ with references to the fraction ‘‘1/2’’. (9) Subsection 93(3) of the Act is replaced by the following: Exempt dividends
(3) For the purposes of subsections (2) to (2.3), (a) a dividend received by a corporation resident in Canada is an exempt dividend to the extent of the amount in respect of the dividend that is deductible from the income of the corporation for the purpose of computing the taxable income of the corporation because of paragraph 113(1)(a), (b) or (c); and (b) a dividend received by a particular foreign affiliate of a corporation resident in Canada from another foreign affiliate of the
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corporation is an exempt dividend to the extent of the amount, if any, by which the portion of the dividend that was not prescribed to have been paid out of the pre-acquisition surplus of the other affiliate exceeds the total of such portion of the income or profits tax that can reasonably be considered to have been paid in respect of that portion of the dividend by the particular affiliate or by a partnership in which the particular affiliate had, at the time of the payment of the income or profits tax, a partnership interest, either directly or indirectly. (10) Subsections (1) to (3) and (9) apply to dispositions that occur after November 1999. (11) Subsections (4), (5) and (7) apply to taxation years that end after February 27, 2000 except that, for a taxation year of a taxpayer that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the references to the word ‘‘twice’’ in subsection 93(2) of the Act, as enacted by subsection (5), and in subsection 93(2.2) of the Act, as enacted by subsection (7), shall be read as references to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the taxpayer for the year, multiplied by’’.
(12) Subsections (6) and (8) apply to taxation years that end after February 27, 2000 except that, for a taxation year of a taxpayer that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the references to the fraction ‘‘1/2’’ in subsection 93(2.1) of the Act, as enacted by subsection (6), and in subsection 93(2.3) of the Act, as enacted by subsection (8), shall be read as references to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year.
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71. (1) The Act is amended by adding the following after section 93: Shares held by a partnership
93.1 (1) For the purpose of determining whether a non-resident corporation is a foreign affiliate of a corporation resident in Canada for the purposes of subsections (2) and 20(12), sections 93 and 113, paragraph 128.1(1)(d), (and any regulations made for the purposes of those provisions), section 95 (to the extent that that section is applied for the purposes of those provisions) and section 126, where based on the assumptions contained in paragraph 96(1)(c), at any time shares of a class of the capital stock of a corporation are owned by a partnership or are deemed under this subsection to be owned by a partnership, each member of the partnership is deemed to own at that time that number of those shares that is equal to the proportion of all those shares that (a) the fair market value of the member’s interest in the partnership at that time is of (b) the fair market value of all members’ interests in the partnership at that time.
Where dividends received by a partnership
(2) Where, based on the assumptions contained in paragraph 96(1)(c), at any time shares of a class of the capital stock of a foreign affiliate of a corporation resident in Canada (in this subsection referred to as ‘‘affiliate shares’’) are owned by a partnership and at that time the affiliate pays a dividend on affiliate shares to the partnership (in this subsection referred to as the ‘‘partnership dividend’’), (a) for the purposes of sections 93 and 113 and any regulations made for the purposes of those sections, each member of the partnership is deemed to have received the proportion of the partnership dividend that (i) the fair market value of the member’s interest in the partnership at that time is of
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Income Ta (ii) the fair market value of all members’ interests in the partnership at that time;
(b) for the purposes of sections 93 and 113 and any regulations made for the purposes of those sections, the proportion of the partnership dividend deemed by paragraph (a) to have been received by a member of the partnership at that time is deemed to have been received by the member in equal proportions on each affiliate share that is property of the partnership at that time; (c) for the purpose of applying section 113, in respect of the dividend referred to in paragraph (a), each affiliate share referred to in paragraph (b) is deemed to be owned by each member of the partnership; and (d) notwithstanding paragraphs (a) to (c), (i) where the corporation resident in Canada is a member of the partnership, the amount deductible by it under section 113 in respect of the dividend referred to in paragraph (a) shall not exceed the portion of the amount of the dividend included in its income pursuant to subsection 96(1), and (ii) where another foreign affiliate of the corporation resident in Canada is a member of the partnership, the amount included in that other affiliate’s income in respect of the dividend referred to in paragraph (a) shall not exceed the amount that would be included in its income pursuant to subsection 96(1) in respect of the partnership dividend received by the partnership if the value for H in the definition ‘‘foreign accrual property income’’ in subsection 95(1) were nil and this Act were read without reference to this subsection.
Impôt sur le re (2) Subsection 93.1(1) of the Act, as enacted by subsection (1), applies in determining whether a non-resident corporation is, at any time after November 1999, a foreign affiliate of a taxpayer and, where a taxpayer so elects and notifies the Minister of National Revenue in writing before 2002 of its election, that subsection also applies in determining (other than for the purposes of subsection 20(12) and section 126 of the Act) whether a non-resident corporation was, at any time after 1972 and before December 1999, a foreign affiliate of the taxpayer.
(3) Subsection 93.1(2) of the Act, as enacted by subsection (1), applies in respect of dividends received after November 1999. 72. (1) Subparagraphs 94(1)(c)(i) and (ii) of the Act are replaced by the following: (i) the trust is deemed for the purposes of this Part and sections 233.3 and 233.4 to be a person resident in Canada no part of whose taxable income is exempt because of section 149 from tax under this Part and whose taxable income for the year is the amount, if any, by which the total of (A) the amount, if any, that would but for this subparagraph be its taxable income earned in Canada for the year, (B) the amount that would be its foreign accrual property income for the year if (I) except for the purpose of applying subsections 104(4) to (5.2) to days after 1998 that are determined under subsection 104(4), the trust were a non-resident corporation all the shares of which were owned by a person who was resident in Canada, (II) the description of A in the definition ‘‘foreign accrual property income’’ in subsection 95(1) were, in respect of dividends received after 1998, read without reference to paragraph (b) of that description,
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Income Ta (III) the descriptions of B and E in that definition were, in respect of dispositions that occur after 1998, read without reference to ‘‘other than dispositions of excluded property to which none of paragraphs (2)(c), (d) and (e) apply’’, (IV) the value of C in that definition were nil, and (V) for the purposes of computing the trust’s foreign accrual property income, the consequences of the application of subsections 104(4) to (5.2) applied in respect of days after 1998 that are determined under subsection 104(4), (C) the amount, if any, by which the total of all amounts each of which is an amount required by subsection 91(1) or (3) to be included in computing its income for the year exceeds the total of all amounts each of which is an amount deducted by it for that year under subsection 91(2), (4) or (5), and (D) the amount, if any, required by section 94.1 to be included in computing its income for the year exceeds (E) the amount, if any, by which the total of all amounts each of which is an amount deducted by it under subsection 91(2), (4) or (5) in computing its income for the year exceeds the total of all amounts each of which is an amount included in computing its income for the year because of subsection 91(1) or (3), and (ii) for the purposes of section 126, (A) the amount that would be determined under subparagraph (i) in respect of the trust for the year, if that subparagraph were read without reference to clause (i)(A), is deemed to be income of the trust for the year from sources in the country other than Canada in which the trust would, but for subparagraph (i), be resident, and
Impôt sur le re (B) any income or profits tax paid by the trust for the year (other than any tax paid because of this section), to the extent that it can reasonably be regarded as having been paid in respect of that income, is deemed to be non-business income tax paid by the trust to the government of that country, and
(2) Subsection (1) applies to the 1999 and subsequent taxation years. 73. (1) The formula in the definition ‘‘foreign accrual property income’’ in subsection 95(1) of the Act is replaced by the following: (A+A.1+A.2+B+C) - (D+E+F+G+H) (2) The description of A.1 in the definition ‘‘foreign accrual property income’’ in subsection 95(1) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (3) The description of F in the definition ‘‘foreign accrual property income’’ in subsection 95(1) of the Act is replaced by the following: F is the amount claimed by the taxpayer, which amount may not be greater than the amount prescribed to be the deductible loss of the affiliate for the year, and (4) The definition ‘‘foreign accrual property income’’ in subsection 95(1) of the Act is amended by striking out the word ‘‘and’’ at the end of the description of F, by adding the word ‘‘and’’ at the end of the description of G and by adding the following after the description of G: H is (a) where the affiliate was a member of a partnership at the end of the fiscal period of the partnership that ended in
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Income Ta the year and the partnership received a dividend at a particular time in that fiscal period from a corporation that was, for the purposes of sections 93 and 113, a foreign affiliate of the taxpayer at that particular time, the portion of the amount of that dividend that is included in the value of A in respect of the affiliate for the year and that is deemed by paragraph 93.1(2)(a) to have been received by the affiliate for the purposes of sections 93 and 113, and (b) in any other case, nil;
(5) The portion of paragraph 95(2)(a.3) of the Act before subparagraph (iii) is replaced by the following: (a.3) in computing the income from a business other than an active business for a taxation year of a foreign affiliate of a taxpayer there shall be included the income of the affiliate for the year derived directly or indirectly from indebtedness and lease obligations (which, for the purposes of this paragraph, includes the income of the affiliate for the year from the purchase and sale of indebtedness and lease obligations on its own account, but does not include excluded income) (i) of persons resident in Canada, or (ii) in respect of businesses carried on in Canada unless more than 90% of the gross revenue of the affiliate derived directly or indirectly from indebtedness and lease obligations (other than excluded revenue) was derived directly or indirectly from indebtedness and lease obligations of non-resident persons with whom the affiliate deals at arm’s length and, where this paragraph applies to include income of the affiliate for the year in the income of the affiliate from a business other than an active business,
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(6) Paragraph 95(2)(g) of the Act is replaced by the following: (g) where, because of a fluctuation in the value of the currency of a country other than Canada relative to the value of Canadian currency, a particular foreign affiliate of a taxpayer in respect of which the taxpayer has a qualifying interest throughout a taxation year of the particular affiliate has earned income or incurred a loss or realized a capital gain or a capital loss in the year, in reference to (i) a debt obligation that was owing to (A) another foreign affiliate of the taxpayer in respect of which the taxpayer has a qualifying interest throughout the year or any other nonresident corporation to which the particular affiliate and the taxpayer are related throughout the year (referred to in this paragraph as a ‘‘qualified foreign corporation’’), or (B) the particular affiliate by a qualified foreign corporation, (ii) the redemption, cancellation or acquisition of a share of the capital stock of, or the reduction of the capital of, the particular affiliate or another foreign affiliate of the taxpayer in respect of which the taxpayer has a qualifying interest throughout the year, or (iii) the disposition to a qualified foreign corporation of a share of the capital stock of another foreign affiliate of the taxpayer in respect of which the taxpayer has a qualifying interest throughout the year, that income, gain or loss, as the case may be, is deemed to be nil;
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(7) Subsection 95(2) of the Act is amended by adding the following after paragraph (g.1): (g.2) for the purpose of computing the foreign accrual property income of a foreign affiliate of any taxpayer resident in Canada for a taxation year of the affiliate, an election made pursuant to paragraph 86.1(2)(f) in respect of a distribution received by the affiliate in a particular taxation year of the affiliate is deemed to have been filed under that paragraph by the affiliate if (i) where there is only one taxpayer resident in Canada in respect of whom the affiliate is a controlled foreign affiliate, the election is filed by the taxpayer with the taxpayer’s return of income for the taxpayer’s taxation year in which the particular year of the affiliate ends, and (ii) where there is more than one taxpayer resident in Canada in respect of whom the affiliate is a controlled foreign affiliate, all of those taxpayers jointly elect in writing and each of them files the joint election with the Minister with their return of income for their taxation year in which the particular year of the affiliate ends; (8) Paragraph 95(2)(h) of the Act is repealed. (9) The portion of subsection 95(2.2) of the Act before paragraph (a) is replaced by the following: Rule for subsection (2)
(2.2) For the purpose of subsection (2),
(10) Subsection 95(2.5) of the Act is amended by adding the following in alphabetical order: ‘‘excluded income’’ and ‘‘excluded revenue’’ « revenu exclu »
‘‘excluded income’’ and ‘‘excluded revenue’’ for a taxation year in respect of a foreign affiliate of a taxpayer mean, respectively, income or revenue, that is (a) derived directly or indirectly from a specified deposit with a prescribed financial institution,
Impôt sur le re (b) derived directly or indirectly from a lease obligation of a person (other than the taxpayer or a person that does not deal at arm’s length with the taxpayer) relating to the use of property outside Canada, or (c) included in computing the affiliate’s income for the year from carrying on a business through a permanent establishment in Canada;
(11) The portion of paragraph 95(6)(a) of the Act before subparagraph (i) is replaced by the following: (a) where any person or partnership has a right under a contract, in equity or otherwise, either immediately or in the future and either absolutely or contingently, to, or to acquire, shares of the capital stock of a corporation or interests in a partnership and
(12) Subparagraph 95(6)(a)(ii) of the Act is replaced by the following: (ii) it can reasonably be considered that the principal purpose for the existence of the right is to permit any person to avoid, reduce or defer the payment of tax or any other amount that would otherwise be payable under this Act, those shares or partnership interests, as the case may be, are deemed to be owned by that person or partnership; and (13) Paragraph 95(6)(b) of the Act is replaced by the following: (b) where a person or partnership acquires or disposes of shares of the capital stock of a corporation or interests in a partnership, either directly or indirectly, and it can reasonably be considered that the principal purpose for the acquisition or disposition is to permit a person to avoid, reduce or defer the payment of tax or any other amount that would otherwise be payable under this Act, that acquisition or disposition is deemed not to have taken place, and where the shares or
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partnership interests were unissued by the corporation or partnership immediately before the acquisition, those shares or partnership interests, as the case may be, are deemed not to have been issued.
(14) Subsections (1), (4) and (11) to (13) apply after November 1999. (15) Subsection (2) applies to taxation years that end after February 27, 2000 except that, where a taxation year of a foreign affiliate of a taxpayer includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the word ‘‘twice’’ in the description of A.1 in the definition ‘‘foreign accrual property income’’ in subsection 95(1) of the Act, as enacted by subsection (2), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the foreign affiliate for the year, multiplied by’’. (16) Subsection (3) applies to taxation years of foreign affiliates that begin after November 1999. (17) Subsections (5) and (10) apply to taxation years of foreign affiliates that begin after 1999 except that, where a taxpayer so elects in writing and files the election with the Minister of National Revenue on or before the taxpayer’s filingdue date for the taxation year that includes the day on which this Act receives royal assent, paragraph 95(2)(a.3) of the Act, as enacted by subsection (5), and subsection 95(2.5) of the Act, as enacted by subsection (10), apply to taxation years, of all of the taxpayer’s foreign affiliates, that begin after 1994 except that, where there has been a change in the taxation year of a particular foreign affiliate of a taxpayer in 1994 and after February 22, 1994, the enacted provisions apply to taxation years of the particular foreign affiliate of the taxpayer that end after 1994, unless
Impôt sur le re (a) the particular foreign affiliate had requested that change in the taxation year in writing before February 22, 1994 from the income taxation authority of the country in which it was resident and subject to income taxation; or (b) the first taxation year of the particular foreign affiliate that began after 1994 began at a time in 1995 that is earlier than the time that it would have begun if there had not been that change in the taxation year of the particular foreign affiliate, and, notwithstanding subsections 152(4) to (5) of the Act, any assessment of a taxpayer’s tax payable under the Act for any of those taxation years shall be made that is necessary to take into account the application of subsections (5) and (10).
(18) Subsections (6), (8) and (9) apply to taxation years of a foreign affiliate of a taxpayer that begin after November 1999 except that, where the taxpayer so elects in writing and files the election with the Minister of National Revenue on or before the day of the taxpayer’s filing-due date for the taxation year that includes the day on which this Act receives royal assent, those subsections apply to taxation years, of all of its foreign affiliates, that began after 1994 and, notwithstanding subsections 152(4) to (5) of the Act, any assessment of a taxpayer’s tax payable under the Act for any of those taxation years shall be made that is necessary to take into account the application of subsections (6), (8) and (9).
(19) Subsection (7) applies to distributions received after 1997 except that the election referred to in paragraph 95(2)(g.2) of the Act, as enacted by subsection (7), is deemed to be filed on a timely basis if it is filed with the Minister of National Revenue
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before the day that is 90 days after the day on which this Act receives royal assent. 74. (1) Paragraph 96(1)(d) of the Act is replaced by the following: (d) each income or loss of the partnership for a taxation year were computed as if (i) this Act were read without reference to paragraphs 12(1)(z.5) and 20(1)(v.1), section 34.1, subsection 59(1), paragraph 59(3.2)(c.1) and subsections 66.1(1), 66.2(1) and 66.4(1), and (ii) no deduction were permitted under any of section 29 of the Income Tax Application Rules, subsections 34.2(4) and 65(1) and sections 66, 66.1, 66.2, 66.21 and 66.4;
(2) The portion of subsection 96(1.7) of the Act before the formula is replaced by the following: Gains and losses
(1.7) Notwithstanding subsection (1) or section 38, where in a particular taxation year of a taxpayer, the taxpayer is a member of a partnership with a fiscal period that ends in the particular year, the amount of a taxable capital gain (other than that part of the amount that can reasonably be attributed to an amount deemed under subsection 14(1.1) to be a taxable capital gain of the partnership), allowable capital loss or allowable business investment loss of the taxpayer for the particular year determined in respect of the partnership is the amount determined by the formula (3) The descriptions of A and B in subsection 96(1.7) of the Act are replaced by the following: A is the amount of the taxpayer’s taxable capital gain (other than that part of the amount that can be attributed to an amount deemed under subsection 14(1.1) to be a taxable capital gain of the partnership), allowable capital loss or allowable business investment loss, as the case may be, for the particular year otherwise determined under this section in respect of the partnership;
Impôt sur le re B is the relevant fraction that applies under paragraph 38(a), (a.1), (a.2), (b) or (c) for the particular year in respect of the taxpayer; and (4) Section 96 of the Act is amended by adding the following after subsection (1.7):
Application
(1.71) Where the fraction referred to in the description of C in subsection (1.7) cannot be determined by a taxpayer in respect of a fiscal period of a partnership that ended before February 28, 2000, or includes February 28, 2000 or October 17, 2000, for the purposes of subsection (1.7), the fraction is deemed to be (a) where the fiscal period ended before or began before February 28, 2000, 3/4; (b) where the fiscal period began after February 27, 2000 and before October 18, 2000, 2/3; and (c) in any other case, 1/2.
(5) Clause 96(2.1)(b)(iv)(A) of the Act is replaced by the following: (A) the foreign resource pool expenses, if any, incurred by the partnership in the fiscal period,
(6) Paragraph 96(2.4)(a) of the Act is replaced by the following: (a) by operation of any law governing the partnership arrangement, the liability of the member as a member of the partnership is limited (except by operation of a provision of a statute of Canada or a province that limits the member’s liability only for debts, obligations and liabilities of the partnership, or any member of the partnership, arising from negligent acts or omissions or misconduct that another member of the partnership or an employee, agent or representative of the partnership commits in the course of the partnership business while the partnership is a limited liability partnership);
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(7) The portion of subsection 96(3) of the Act before paragraph (a) is replaced by the following: Agreement or election of partnership members
(3) Where a taxpayer who was a member of a partnership at any time in a fiscal period has, for any purpose relevant to the computation of the taxpayer’s income from the partnership for the fiscal period, made or executed an agreement, designation or election under or in respect of the application of any of subsections 13(4) and (16) and 14(6), section 15.2, subsections 20(9) and 21(1) to (4), section 22, subsection 29(1), section 34, clause 37(8)(a)(ii)(B), subsections 44(1) and (6), 50(1) and 80(5), (9), (10) and (11), section 80.04, subsections 86.1(2), 97(2), 139.1(16) and (17) and 249.1(4) and (6) that, but for this subsection, would be a valid agreement, designation or election,
(8) Subsections (1), (3), (4) and (5) apply to fiscal periods that begin after 2000. (9) Subsection (2) applies to taxation years that end after February 27, 2000. (10) Subsection (6) applies after 1997. (11) Subsection (7) applies after 1999. 75. (1) Subparagraph 98(3)(g)(iii) of the Act is replaced by the following: (iii) for the purpose of determining after the particular time the amount required by paragraph 14(1)(b) to be included in computing the person’s income in respect of any subsequent disposition of property of the business, the value determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) is deemed to be the amount, if any, of that person’s percentage of the value determined for Q in that definition in respect of the partnership’s business immediately before the particular time.
Impôt sur le re (2) Subparagraph 98(5)(h)(ii) of the Act is replaced by the following: (ii) for the purpose of determining after the particular time the amount required by paragraph 14(1)(b) to be included in computing the proprietor’s income in respect of any subsequent disposition of property of the business, the value determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) is deemed to be the value, if any, determined for Q in that definition in respect of the partnership’s business immediately before the particular time. (3) Subsections (1) and (2) apply in respect of taxation years that end after February 27, 2000. 76. (1) Paragraph 100(1)(a) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (2) Subsection (1) applies to taxation years that end after February 27, 2000 except that, where a taxation year of a taxpayer includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the fraction ‘‘1/2’’ in paragraph 100(1)(a) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year. 77. (1) Section 101 of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’ and by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (2) Subsection (1) applies to taxation years that end after February 27, 2000 except that, in applying section 101 of the Act, as enacted by subsection (1), to a taxpayer’s taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000,
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(a) the reference to the fraction ‘‘1/2’’ in section 101 of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year; and (b) the reference to the word ‘‘twice’’ in section 101 of the Act, as enacted by subsection (1), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the taxpayer for the year, multiplied by’’. 78. (1) Subsection 104(1) of the Act is replaced by the following: Reference to trust or estate
104. (1) In this Act, a reference to a trust or estate (in this subdivision referred to as a ‘‘trust’’) shall, unless the context otherwise requires, be read to include a reference to the trustee, executor, administrator, liquidator of a succession, heir or other legal representative having ownership or control of the trust property, but, except for the purposes of this subsection, subsection (1.1), subparagraph (b)(v) of the definition ‘‘disposition’’ in subsection 248(1) and paragraph (k) of that definition, a trust is deemed not to include an arrangement under which the trust can reasonably be considered to act as agent for all the beneficiaries under the trust with respect to all dealings with all of the trust’s property unless the trust is described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1).
Restricted meaning of ‘‘beneficiary’’
(1.1) Notwithstanding subsection 248(25.1) and for the purposes of subsection (1), paragraph (4)(a.4), subparagraph 73(1.02)(b)(ii) and paragraph 107.4(1)(e), a person or partnership is deemed not to be a beneficiary under a trust at a particular time where the person or partnership is beneficially interested in the trust at the particular time solely because of (a) a right that may arise as a consequence of the terms of the will or other testamentary
Impôt sur le re instrument of an individual who, at the particular time, is a beneficiary under the trust; (b) a right that may arise as a consequence of the law governing the intestacy of an individual who, at that time, is a beneficiary under the trust; (c) a right as a shareholder under the terms of the shares of the capital stock of a corporation that, at the particular time, is a beneficiary under the trust; (d) a right as a member of a partnership under the terms of the partnership agreement, where, at the particular time, the partnership is a beneficiary under the trust; or (e) any combination of rights described in paragraphs (a) to (d). (2) The portion of subsection 104(4) of the Act before paragraph (a) is replaced by the following:
Deemed disposition by trust
(4) Every trust is, at the end of each of the following days, deemed to have disposed of each property of the trust (other than exempt property) that was capital property (other than excluded property or depreciable property) or land included in the inventory of a business of the trust for proceeds equal to its fair market value (determined with reference to subsection 70(5.3)) at the end of that day and to have reacquired the property immediately after that day for an amount equal to that fair market value, and for the purposes of this Act those days are
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(3) Paragraph 104(4)(a) of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (i.1), by adding the word ‘‘or’’ at the end of subparagraph (ii) and by replacing the portion after subparagraph (ii) with the following: (ii.1) is a trust (other than a trust the terms of which are described in clause (iv)(A) that elects in its return of income under this Part for its first taxation year that this subparagraph not apply) that was created after 1999 by a taxpayer during the taxpayer’s lifetime and that, at any time after 1999, was a trust under which (iii) the taxpayer’s spouse or commonlaw partner was entitled to receive all of the income of the trust that arose before the spouse’s or common-law partner’s death and no person except the spouse or common-law partner could, before the spouse’s or common-law partner’s death, receive or otherwise obtain the use of any of the income or capital of the trust, or (iv) in the case of a trust described in subparagraph (ii.1) created by a taxpayer who had attained 65 years of age at the time the trust was created, (A) the taxpayer was entitled to receive all of the income of the trust that arose before the taxpayer’s death and no person except the taxpayer could, before the taxpayer’s death, receive or otherwise obtain the use of any of the income or capital of the trust, (B) the taxpayer or the taxpayer’s spouse was, in combination with the spouse or the taxpayer, as the case may be, entitled to receive all of the income of the trust that arose before the later of
Impôt sur le re the death of the taxpayer and the death of the spouse and no other person could, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust, or (C) the taxpayer or the taxpayer’s common-law partner was, in combination with the common-law partner or the taxpayer, as the case may be, entitled to receive all of the income of the trust that arose before the later of the death of the taxpayer and the death of the common-law partner and no other person could, before the later of those deaths, receive or otherwise obtain the use of any of the income or capital of the trust, the day on which the death or the later death, as the case may be, occurs; (4) Subsection 104(4) of the Act is amended by adding the following after paragraph (a.1): (a.2) where the trust makes a distribution to a beneficiary in respect of the beneficiary’s capital interest in the trust, it is reasonable to conclude that the distribution was financed by a liability of the trust and one of the purposes of incurring the liability was to avoid taxes otherwise payable under this Part as a consequence of the death of any individual, the day on which the distribution is made (determined as if a day ends for the trust immediately after the time at which each distribution is made by the trust to a beneficiary in respect of the beneficiary’s capital interest in the trust); (a.3) where property (other than property described in any of subparagraphs 128.1(4)(b)(i) to (iii)) has been transferred by a taxpayer after December 17, 1999 to the trust in circumstances to which subsection 73(1) applied, it is reasonable to conclude that the property was so transferred in anticipation that the taxpayer would subsequently cease to reside in Canada and the taxpayer subsequently ceases to reside in Canada, the first day after
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that transfer during which the taxpayer ceases to reside in Canada (determined as if a day ends for the trust immediately after each time at which the taxpayer ceases to be resident in Canada); (a.4) where the trust is a trust to which property was transferred by a taxpayer who is an individual (other than a trust) in circumstances in which section 73 or subsection 107.4(3) applied, the transfer did not result in a change in beneficial ownership of that property and no person (other than the taxpayer) or partnership has any absolute or contingent right as a beneficiary under the trust (determined with reference to subsection (1.1)), the day on which the death of the taxpayer occurs;
(5) Subparagraph 104(4)(b)(iii) of the Act is replaced by the following: (iii) where applicable, the day determined under paragraph (a), (a.1) or (a.4) as those paragraphs applied from time to time after 1971; and (6) Paragraph 104(4)(c) of the Act is replaced by the following: (c) the day that is 21 years after any day (other than a day determined under any of paragraphs (a) to (a.4)) that is, because of this subsection, a day on which the trust is deemed to have disposed of each such property. (7) The portion of subsection 104(5) of the Act before paragraph (a) is replaced by the following: Depreciable property
(5) Every trust is, at the end of each day determined under subsection (4) in respect of the trust, deemed to have disposed of each property of the trust (other than exempt property) that was a depreciable property of a prescribed class of the trust for proceeds equal to its fair market value at the end of that day and to have reacquired the property immediately after that day at a capital cost (in this subsection referred to as the ‘‘deemed capital cost’’) equal to that fair market value, except that
Impôt sur le re (8) The portion of subsection 104(5.2) of the Act before paragraph (b) is replaced by the following:
Resource property
(5.2) Where at the end of a day determined under subsection (4) in respect of a trust, the trust owns a Canadian resource property (other than an exempt property) or a foreign resource property (other than an exempt property), (a) for the purposes of determining the amounts under subsection 59(1), paragraphs 59(3.2)(c) and (c.1), subsections 66(4) and 66.2(1), the definition ‘‘cumulative Canadian development expense’’ in subsection 66.2(5), the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1), subsection 66.4(1) and the definition ‘‘cumulative Canadian oil and gas property expense’’ in subsection 66.4(5), the trust is deemed (i) to have a taxation year (in this subsection referred to as the ‘‘old taxation year’’) that ended at the end of that day and a new taxation year that begins immediately after that day, and (ii) to have disposed, immediately before the end of the old taxation year, of each of those properties for proceeds that became receivable at that time equal to its fair market value at that time and to have reacquired, at the beginning of the new taxation year, each such property for an amount equal to that fair market value; and
(9) Paragraph 104(5.2)(b) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (i) and by adding the following after subparagraph (i): (i.1) include in computing its income for the particular taxation year the amount, if any, determined under paragraph 59(3.2)(c.1) in respect of the old taxation year and the amount so included is, for the purpose of determining the value of B in the definition ‘‘cumulative foreign resource expense’’ in subsection
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(10) Subsection 104(5.3) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (b.1) and by replacing the portion of paragraph (c) before subparagraph (i) with the following: (c) subsection 107.4(3) does not apply to a disposition by the trust during the period
(11) Subsection 104(5.3) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (c) and by repealing paragraph (d). (12) The portion of subsection 104(5.8) of the Act before paragraph (a) is replaced by the following: Trust transfers
(5.8) Where capital property (other than excluded property), land included in inventory, Canadian resource property or foreign resource property is transferred at a particular time by a trust (in this subsection referred to as the ‘‘transferor trust’’) to another trust (in this subsection referred to as the ‘‘transferee trust’’) in circumstances in which subsection 107(2) or 107.4(3) or paragraph (f) of the definition ‘‘disposition’’ in subsection 248(1) applies,
(13) The portion of subparagraph 104(5.8)(a)(i) of the Act before clause (A) is replaced by the following: (i) subject to paragraphs (b) to (b.3), the first day (in this subsection referred to as the ‘‘disposition day’’) that ends at or after the particular time that would, if this section were read without reference to paragraphs (4)(a.2) and (a.3), be determined in respect of the transferee trust is deemed to be the earliest of (14) Clause 104(5.8)(a)(i)(C) of the Act is replaced by the following:
Impôt sur le re (C) the first day that ends at or after the particular time, where (I) the transferor trust is a joint spousal or common-law partner trust, a post-1971 spousal or common-law partner trust or a trust described in the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1), and (II) the spouse or common-law partner referred to in paragraph (4)(a) or in the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1) is alive at the particular time, (C.1) the first day that ends at or after the particular time, where (I) the transferor trust is an alter ego trust, a trust to which paragraph (4)(a.4) applies or a joint spousal or common-law partner trust, and (II) the taxpayer referred to in paragraph (4)(a) or (a.4), as the case may be, is alive at the particular time, and
(15) Paragraph 104(5.8)(b) of the Act is replaced by the following: (b) paragraph (a) does not apply in respect of the transfer where (i) the transferor trust is a post-1971 spousal or common-law partner trust or a trust described in the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1), (ii) the spouse or common-law partner referred to in paragraph (4)(a) or in the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1) is alive at the particular time, and (iii) the transferee trust is a post-1971 spousal or common-law partner trust or a trust described in the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1);
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(b.1) paragraph (a) does not apply in respect of the transfer where (i) the transferor trust is an alter ego trust, (ii) the taxpayer referred to in paragraph (4)(a) is alive at the particular time, and (iii) the transferee trust is an alter ego trust; (b.2) paragraph (a) does not apply in respect of the transfer where (i) the transferor trust is a joint spousal or common-law partner trust, (ii) either the taxpayer referred to in paragraph (4)(a), or the spouse or common-law partner referred to in that paragraph, is alive at the particular time, and (iii) the transferee trust is a joint spousal or common-law partner trust; (b.3) paragraph (a) does not apply in respect of the transfer where (i) the transferor trust is a trust to which paragraph (4)(a.4) applies, (ii) the taxpayer referred to in paragraph (4)(a.4) is alive at the particular time, and (iii) the transferee trust is a trust to which paragraph (4)(a.4) applies; and
(16) Subsection 104(6) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a.2) and by adding the following after paragraph (a.2): (a.3) in the case of an inter vivos trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization, such part of its income for the year as became payable in the year to a beneficiary; and (17) Clauses 104(6)(b)(ii)(A) and (B) of the Act are replaced by the following: (A) is a post-1971 spousal or commonlaw partner trust that was created after December 20, 1991, or (B) would be a post-1971 spousal or common-law partner trust if the reference in paragraph (4)(a) to ‘‘at the time
Impôt sur le re it was created’’ were read as ‘‘on December 20, 1991’’,
(18) Paragraph 104(6)(b) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (ii) and by replacing subparagraph (iii) with the following: (ii.1) where the trust is an alter ego trust or a joint spousal or common-law partner trust and the death or later death, as the case may be, referred to in subparagraph (4)(a)(iv) has not occurred before the end of the year, such part of the amount that, but for this subsection and subsections (12), 12(10.2) and 107(4), would be its income as became payable in the year to a beneficiary (other than a taxpayer, spouse or common-law partner referred to in clause (4)(a)(iv)(A), (B) or (C)) or was included under subsection 105(2) in computing the income of a beneficiary (other than such a taxpayer, spouse or common-law partner), and (iii) where the trust is an alter ego trust, a joint spousal or common-law partner trust, a trust to which paragraph (4)(a.4) applies or a post-1971 spousal or common-law partner trust and the death or the later death, as the case may be, referred to in paragraph (4)(a) or (a.4) in respect of the trust occurred on a day in the year, the amount, if any, by which (A) the maximum amount that would be deductible under this subsection in computing the trust’s income for the year if this subsection were read without reference to this subparagraph exceeds the total of
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Income Ta (B) the amount that, but for this subsection and subsections (12), 12(10.2) and 107(4), would be its income that became payable in the year to the taxpayer, spouse or common-law partner referred to in subparagraph (4)(a)(iii), clause (4)(a)(iv)(A), (B) or (C) or paragraph (4)(a.4), as the case may be, and (C) the amount that would be the trust’s income for the year if that income were computed without reference to this subsection and subsection (12) and as if the year began immediately after the end of the day.
(19) Subsection 104(13) of the Act is replaced by the following: Income of beneficiary
(13) There shall be included in computing the income for a particular taxation year of a beneficiary under a trust such of the following amounts as are applicable: (a) in the case of a trust (other than a trust referred to in paragraph (a) of the definition ‘‘trust’’ in subsection 108(1)), such part of the amount that, but for subsections (6) and (12), would be the trust’s income for the trust’s taxation year that ended in the particular year as became payable in the trust’s year to the beneficiary; and (b) in the case of a trust governed by an employee benefit plan to which the beneficiary has contributed as an employer, such part of the amount that, but for subsections (6) and (12), would be the trust’s income for the trust’s taxation year that ended in the particular year as was paid in the trust’s year to the beneficiary.
(20) Paragraphs 104(15)(a) and (b) of the Act are replaced by the following: (a) where the trust is an alter ego trust, a joint spousal or common-law partner trust, a post-1971 spousal or common-law partner trust or a trust described in the definition ‘‘pre-1972 spousal trust’’ in subsection
Impôt sur le re 108(1) at the end of the year and a beneficiary, referred to in paragraph (4)(a) or in that definition, is alive at the end of the year, an amount equal to (i) if the preferred beneficiary is a beneficiary so referred to, the trust’s accumulating income for the year, and (ii) in any other case, nil; (b) where paragraph (a) does not apply and the preferred beneficiary’s interest in the trust is not solely contingent on the death of another beneficiary who has a capital interest in the trust and who does not have an income interest in the trust, the trust’s accumulating income for the year; and
(21) The portion of subsection 104(19) of the Act after paragraph (b) is replaced by the following: is, if so designated by the trust in respect of the beneficiary in its return of income for the year, deemed, for the purposes of paragraphs 82(1)(b) and 107(1)(c) and (d) and section 112, not to have been received by the trust, and for the purposes of this Act (other than Part XIII), to be a taxable dividend on the share received by the beneficiary in the particular year from the corporation.
(22) The portion of subsection 104(21.2) of the Act before paragraph (a) is replaced by the following: Beneficiaries’ taxable capital gain
(21.2) Where, for the purposes of subsection (21), a personal trust or a trust referred to in subsection 7(2) designates an amount in respect of a beneficiary in respect of its net taxable capital gains for a taxation year (in this subsection referred to as the ‘‘designation year’’),
(23) Section 104 of the Act is amended by adding the following after subsection (21.3):
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(21.4) Where an amount is designated in respect of a beneficiary by a trust for a particular taxation year of the trust that includes February 28, 2000 or October 17, 2000 and that amount is, because of subsection (21), deemed to be a taxable capital gain of the beneficiary from the disposition of capital property for the taxation year of the beneficiary in which the particular taxation year of the trust ends (in this subsection referred to as the ‘‘allocated gain’’), (a) the beneficiary is deemed to have realized capital gains (in this subsection referred to as the ‘‘deemed gains’’) from the disposition of capital property in the beneficiary’s taxation year in which the particular taxation year ends equal to the amount, if any, by which (i) the amount determined when the amount of the allocated gain is divided by the fraction in paragraph 38(a) that applies to the trust for the particular taxation year exceeds (ii) the amount claimed by the beneficiary not exceeding the beneficiary’s exempt capital gains balance for the year in respect of the trust; (b) notwithstanding subsection (21) and except as a consequence of the application of paragraph (a), the amount of the allocated gain shall not be included in computing the beneficiary’s income for the beneficiary’s taxation year in which the particular taxation year ends; (c) the trust shall disclose to the beneficiary in prescribed form the portion of the deemed gains that are in respect of capital gains realized on dispositions of property that occurred before February 28, 2000, after February 27, 2000 and before October 18, 2000, and after October 17, 2000 and, if it does not do so, the deemed gains are deemed to be in respect of capital gains realized on dispositions of property that occurred before February 28, 2000;
Impôt sur le re (d) where a trust so elects under this paragraph in its return of income for the year, (i) the portion of the deemed gains that are in respect of capital gains from dispositions of property that occurred before February 28, 2000 is deemed to be that proportion of the deemed gains that the number of days that are in the particular year and before February 28, 2000 is of the number of days that are in the particular year, (ii) the portion of the deemed gains that are in respect of capital gains from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000, is deemed to be that proportion of the deemed gains that the number of days that are in the year and in that period is of the number of days that are in the particular year, and (iii) the portion of the deemed gains that are in respect of capital gains from dispositions of property that occurred in the year and in the period that begins at the beginning of October 18, 2000 and ends at the end of the particular year, is deemed to be that proportion of the deemed gains that the number of days that are in the year and in that period is of the number of days that are in the particular year; and (e) no amount may be claimed by the beneficiary under subsection 39.1(3) in respect of the allocated gain.
Deemed gains
(21.5) Where no amount is designated by a trust under subsection (21) in respect of its net taxable capital gains for a taxation year that includes February 28, 2000 or October 17, 2000, the trust has net capital gains or net capital losses from the disposition of property in the year and the trust so elects under this subsection in its return of income for the year, (a) the portion of the net capital gains or net capital losses that are in respect of capital gains and losses from dispositions of property that occurred before February 28, 2000
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is deemed to be that proportion of the net capital gains or net capital losses, as the case may be, that the number of days that are in the year and before February 28, 2000 is of the number of days that are in the year, (b) the portion of the net capital gains or net capital losses that are in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000, is deemed to be that proportion of the net capital gains or net capital losses, as the case may be, that the number of days that are in the year and in that period is of the number of days that are in the year, and (c) the portion of the net capital gains or net capital losses that are in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of October 18, 2000 and ended at the end of the year, is deemed to be that proportion of the net capital gains or net capital losses, as the case may be, that the number of days that are in the year and in that period is of the number of days that are in the year, and, for the purpose of this subsection, (d) the net capital gains of a trust from dispositions of property in a year is the amount, if any, by which the trust’s capital gains from dispositions of property in the year exceeds the trust’s capital losses from dispositions of property in the year, and (e) the net capital losses of a trust from dispositions of property in a year is the amount, if any, by which the trust’s capital losses from dispositions of property in the year exceeds the trust’s capital gains from dispositions of property in the year.
Deemed gains — subsection (21.4) applies
Impôt sur le re
(21.6) Where a taxpayer is deemed by subsection (21.4) to have realized capital gains from the disposition of capital property in a taxation year of the taxpayer in respect of dispositions of property by a trust of which the taxpayer is a beneficiary, (a) if the deemed gains are in respect of capital gains of the trust from dispositions of property before February 28, 2000 and the taxation year of the taxpayer includes February 27, 2000, the deemed gains are deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and before February 28, 2000; (b) if the deemed gains are in respect of capital gains of the trust from dispositions of property before February 28, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 18, 2000, 9/8 of the deemed gains is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; (c) if the deemed gains are in respect of capital gains of the trust from dispositions of property before February 28, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended after October 17, 2000, 9/8 of the deemed gains is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and before October 18, 2000; (d) if the deemed gains are in respect of capital gains of the trust from dispositions of property before February 28, 2000 and the taxation year of the taxpayer began after October 17, 2000 , 3/2 of the deemed gains is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year;
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(e) if the deemed gains are in respect of capital gains of the trust from dispositions of property after February 27, 2000 and before October 18, 2000, and the taxation year of the taxpayer began after October 17, 2000, 4/3 of the deemed gains is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; (f) if the deemed gains are in respect of capital gains of the trust from dispositions of property after February 27, 2000 and before October 18, 2000 and the taxation year of the taxpayer includes February 28, 2000 and October 17, 2000, the deemed gains are deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and in the period that began after February 27, 2000 and ended before October 18, 2000; (g) if the deemed gains are in respect of capital gains of the trust from dispositions of property after February 27, 2000 and before October 17, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 17, 2000, the deemed gains are deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; and (h) in any other case, the deemed gains are deemed to be a capital gain of the taxpayer from the disposition of capital property by the taxpayer in the taxpayer’s taxation year and after October 17, 2000 .
Deemed gains — subsection (21.4) does not apply
(21.7) Where an amount is designated under subsection (21) in respect of a beneficiary by a trust for a particular taxation year of the trust that ends in a taxation year of the
Impôt sur le re beneficiary that includes February 28, 2000 or October 17, 2000 and subsection (21.4) does not apply in respect of the designated amount, (a) notwithstanding subsection (21) and except as a consequence of the application of paragraph (b), the designated amount shall not be included in computing the beneficiary’s income; (b) the beneficiary is deemed to have a capital gain from the disposition by the beneficiary of capital property on the day on which the particular taxation year ends equal to the amount, if any, by which (i) the amount determined by dividing the designated amount by the fraction in paragraph 38(a) that applies to the trust for the particular taxation year exceeds (ii) the amount claimed by the beneficiary, which amount may not be greater than the beneficiary’s exempt capital gains balance for the year in respect of the trust; and (c) no amount may be claimed under subsection 39.1(3) by the beneficiary in respect of the designated amount. (24) Subsection (1) applies to the 1998 and subsequent taxation years except that, in connection with transfers of property that occur before December 24, 1998, subsection 104(1) of the Act, as enacted by subsection (1), shall be read as follows: 104. (1) In this Act, a reference to a trust or estate (in this subdivision referred to as a ‘‘trust’’) shall, unless the context otherwise requires, be read to include a reference to the trustee, executor, administrator, liquidator of the succession, heir or other legal representative having ownership or control of the trust property.
(25) Subsection (2) applies (a) to days after December 23, 1998 that are determined in respect of a trust under subsection 104(4) of the Act, as enacted by this section; and
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(b) for the purpose of determining the cost amount to a trust after December 23, 1998 of property, to days after 1992 that are determined in respect of the trust under subsection 104(4) of the Act, as enacted by this section.
(26) Subsections (3), (6) and (17) to (19) apply to the 2000 and subsequent taxation years except that, with regard to a trust created by a taxpayer at a particular time in 2000 for the benefit of another individual, (a) subparagraph 104(4)(a)(iii) of the Act, as enacted by subsection (3), shall be read without reference to the words ‘‘or common-law partner’’ and ‘‘or common-law partner’s’’; and (b) subparagraph 104(4)(a)(iv) of the Act, as enacted by subsection (3), shall be read without reference to clause (C), unless, because of an election made under section 144 of the Modernization of Benefits and Obligations Act, sections 130 to 142 of that Act applied at the particular time to the taxpayer and the other individual.
(27) Paragraphs 104(4)(a.2) and (a.3) of the Act, as enacted by subsection (4), apply to days after December 17, 1999 that are determined in respect of the trust under subsection 104(4) of the Act, as enacted by this section. (28) Paragraph 104(4)(a.4) of the Act, as enacted by subsection (4), and subsection (5) apply to the 2000 and subsequent taxation years, and, where a trust elects in
Impôt sur le re writing and files the election with the Minister of National Revenue on or before March 31, 2001 (or at any later time that is acceptable to the Minister), both of those provisions apply after December 23, 1998. (29) Subsections (7) and (8) apply to days after December 23, 1998 that are determined under subsection 104(4) of the Act, as enacted by this section, except that in applying paragraph 104(5.2)(a) of the Act, as enacted by subsection (8), to days that are in taxation years that begin before 2001 and that are determined under subsection 104(4) of the Act, that paragraph shall be read without the references to paragraph 59(3.2)(c.1) of the Act and the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1) of the Act.
(30) Subsection (9) applies to taxation years that begin after 2000. (31) Subsections (10) and (11) apply to transfers made after December 23, 1998. (32) Subsection (12) applies to transfers made after February 11, 1991 except that, for transfers made before December 24, 1998, the portion of subsection 104(5.8) of the Act before paragraph (a), as enacted by subsection (12), shall be read as follows:
(5.8) Where capital property (other than excluded property), land included in inventory, Canadian resource property or foreign resource property is transferred at a particular time by a trust (in this subsection referred to as the ‘‘transferor trust’’) to another trust (in this subsection referred to as the ‘‘transferee trust’’) in circumstances in which paragraph (e) of the definition ‘‘disposition’’ in section 54 or subsection 107(2) applies and the transferee trust is not described in paragraph (g) of the definition ‘‘trust’’ in subsection 108(1),
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(33) Subsection (13) applies to transfers made after December 17, 1999. (34) Subsections (14) and (15) apply to transfers made after 1999. (35) Subsection (16) applies to the 1998 and subsequent taxation years. (36) Subsection (20) applies to the 2000 and subsequent taxation years. (37) Subsection (21) applies to taxation years that end after 2000. (38) Subsection (22) applies to taxation years, of trusts, that begin after February 22, 1994. (39) Subsection (23) applies to taxation years that end after February 27, 2000. 79. (1) Subsection 106(1.1) of the Act is replaced by the following: Cost of income interest in a trust
(1.1) The cost to a taxpayer of an income interest of the taxpayer in a trust is deemed to be nil unless (a) any part of the interest was acquired by the taxpayer from a person who was the beneficiary in respect of the interest immediately before that acquisition; or (b) the cost of any part of the interest would otherwise be determined not to be nil under paragraph 128.1(1)(c) or (4)(c). (2) Paragraph 106(2)(a) of the Act is replaced by the following: (a) except where subsection (3) applies to the disposition, there shall be included in computing the taxpayer’s income for the year the amount, if any, by which (i) the proceeds of disposition exceed (ii) where that interest includes a right to enforce payment of an amount by the trust, the amount in respect of that right that has been included in computing the taxpayer’s income for a taxation year because of subsection 104(13);
Impôt sur le re
(3) Subsections (1) and (2) apply to the 2000 and subsequent taxation years. 80. (1) The portion of paragraph 107(1)(a) of the Act before subparagraph (i) is replaced by the following: (a) where the trust is a personal trust or a prescribed trust, for the purpose of computing the taxpayer’s capital gain, if any, from the disposition, the adjusted cost base to the taxpayer of the interest or the part of the interest, as the case may be, immediately before the disposition is, unless any part of the interest has ever been acquired for consideration and, at the time of the disposition, the trust is non-resident, deemed to be the greater of (2) Paragraph 107(1)(b) of the Act is repealed. (3) The portion of subsection 107(1) of the Act after paragraph (d) is repealed. (4) Subsection 107(1.1) of the Act is replaced by the following: Cost of capital interest in a trust
(1.1) The cost to a taxpayer of a capital interest of the taxpayer in a personal trust or a prescribed trust is deemed to be, (a) where the taxpayer elected under subsection 110.6(19) in respect of the interest and the trust does not elect under that subsection in respect of any property of the trust, the taxpayer’s cost of the interest determined under paragraph 110.6(19)(a); and (b) in any other case, nil, unless (i) any part of the interest was acquired by the taxpayer from a person who was the beneficiary in respect of the interest immediately before that acquisition, or (ii) the cost of any part of the interest would otherwise be determined not to be nil under section 48 as it read in its application before 1993 or under paragraph 111(4)(e) or 128.1(1)(c) or (4)(c).
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(5) The portion of subsection 107(2) of the Act before paragraph (a) is replaced by the following: Distribution by personal trust
(2) Subject to subsection (2.001), where at any time a property of a personal trust or a prescribed trust is distributed by the trust to a taxpayer who was a beneficiary under the trust in satisfaction of all or any part of the taxpayer’s capital interest in the trust,
(6) The portion of subsection 107(2) of the Act before paragraph (a), as enacted by subsection (5), is replaced by the following: Distribution by personal trust
(2) Subject to subsections (2.001), (2.002) and (4) to (5), where at any time a property of a personal trust or a prescribed trust is distributed by the trust to a taxpayer who was a beneficiary under the trust and there is a resulting disposition of all or any part of the taxpayer’s capital interest in the trust,
(7) Paragraphs 107(2)(b) and (c) of the Act are replaced by the following: (b) subject to subsection (2.2), the taxpayer is deemed to have acquired the property at a cost equal to the total of its cost amount to the trust immediately before that time and the specified percentage of the amount, if any, by which (i) the adjusted cost base to the taxpayer of the capital interest or part of it, as the case may be, immediately before that time (determined without reference to paragraph (1)(a)) exceeds (ii) the cost amount to the taxpayer of the capital interest or part of it, as the case may be, immediately before that time; (b.1) for the purpose of paragraph (b), the specified percentage is, (i) where the property is capital property (other than depreciable property), 100%,
Impôt sur le re (ii) where the property is eligible capital property in respect of a business of the trust, 100%, and (iii) in any other case, 75%; (c) the taxpayer is deemed to have disposed of all or part, as the case may be, of the capital interest for proceeds equal to the amount, if any, by which (i) the cost at which the taxpayer would be deemed by paragraph (b) to have acquired the property if the specified percentage referred to in that paragraph were 100% exceeds (ii) the total of all amounts each of which is an eligible offset at that time of the taxpayer in respect of the capital interest or the part of it;
(8) Subsection 107(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d) and by adding the following after paragraph (d): (d.1) the property is deemed to be taxable Canadian property of the taxpayer where (i) the taxpayer is non-resident at that time, (ii) that time is before October 2, 1996, and (iii) the property was deemed by paragraph 51(1)(f), 85(1)(i) or 85.1(1)(a), subsection 87(4) or (5) or paragraph 97(2)(c) to be taxable Canadian property of the trust; and (9) The portion of subparagraph 107(2)(f)(ii) of the Act before the formula is replaced by the following: (ii) for the purpose of determining after that time the amount required by paragraph 14(1)(b) to be included in computing the taxpayer’s income in respect of any subsequent disposition of property of the business, there shall be added to the value otherwise determined for Q in the
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(10) Section 107 of the Act is amended by adding the following after subsection (2): No rollover on election by a trust
(2.001) Where a trust makes a distribution of a property to a beneficiary of the trust in full or partial satisfaction of the beneficiary’s capital interest in the trust and so elects in prescribed form filed with the Minister with the trust’s return of income for its taxation year in which the distribution occurred, subsection (2) does not apply to the distribution if (a) the trust is resident in Canada at the time of the distribution; (b) the property is taxable Canadian property; or (c) the property is capital property used in, eligible capital property in respect of, or property described in the inventory of, a business carried on by the trust through a permanent establishment (as defined by regulation) in Canada immediately before the time of the distribution.
No rollover on election by a beneficiary
(2.002) Where a non-resident trust makes a distribution of a property (other than a property described in paragraph (2.001)(b) or (c)) to a beneficiary of the trust in full or partial satisfaction of the beneficiary’s capital interest in the trust and the beneficiary makes an election under this subsection in prescribed form filed with the Minister with the beneficiary’s return of income for the beneficiary’s taxation year in which the distribution occurred, (a) subsection (2) does not apply to the distribution; and (b) for the purpose of subparagraph (1)(a)(ii), the cost amount of the interest to the beneficiary is deemed to be nil.
Impôt sur le re (11) The portion of subsection 107(2.01) of the Act before paragraph (a) is replaced by the following:
Distribution of principal residence
(2.01) Where property that would, if a personal trust had designated the property under paragraph (c.1) of the definition ‘‘principal residence’’ in section 54, be a principal residence (within the meaning of that definition) of the trust for a taxation year, is at any time (in this subsection referred to as ‘‘that time’’) distributed by the trust to a taxpayer in circumstances in which subsection (2) applies and the trust so elects in its return of income for the taxation year that includes that time, (12) Subsection 107(2.1) of the Act is replaced by the following:
Other distributions
(2.1) Where at any time a property of a trust is distributed by the trust to a beneficiary under the trust, there would, if this Act were read without reference to paragraphs (h) and (i) of the definition ‘‘disposition’’ in subsection 248(1), be a resulting disposition of all or any part of the beneficiary’s capital interest in the trust (which interest or part, as the case may be, is in this subsection referred to as the ‘‘former interest’’) and the rules in subsection (2) and section 132.2 do not apply in respect of the distribution, (a) the trust is deemed to have disposed of the property for proceeds equal to its fair market value at that time; (b) the beneficiary is deemed to have acquired the property at a cost equal to the proceeds determined under paragraph (a); (c) subject to paragraph (e), the beneficiary’s proceeds of disposition of the portion of the former interest disposed of by the beneficiary on the distribution are deemed to be equal to the amount, if any, by which (i) the proceeds determined under paragraph (a) (other than the portion, if any, of the proceeds that is a payment to which paragraph (h) or (i) of the definition ‘‘disposition’’ in subsection 248(1) applies) exceed the total of
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Income Ta (ii) where the property is not a Canadian resource property or foreign resource property, the amount, if any, by which (A) the fair market value of the property at that time exceeds the total of (B) the cost amount to the trust of the property immediately before that time, and (C) the portion, if any, of the excess that would be determined under this subparagraph if this subparagraph were read without reference to this clause that represents a payment to which paragraph (h) or (i) of the definition ‘‘disposition’’ in subsection 248(1) applies, and (iii) all amounts each of which is an eligible offset at that time of the taxpayer in respect of the former interest;
(d) notwithstanding paragraphs (a) to (c), where the trust is non-resident at that time, the property is not described in paragraph (2.001)(b) or (c) and, if this Act were read without reference to this paragraph, there would be no income, loss, taxable capital gain or allowable capital loss of a taxpayer in respect of the property because of the application of subsection 75(2) to the disposition at that time of the property, (i) the trust is deemed to have disposed of the property for proceeds equal to the cost amount of the property, (ii) the beneficiary is deemed to have acquired the property at a cost equal to the fair market value of the property, and (iii) the beneficiary’s proceeds of disposition of the portion of the former interest disposed of by the beneficiary on the distribution are deemed to be equal to the amount, if any, by which (A) the fair market value of the property exceeds the total of (B) the portion, if any, of the amount of the distribution that is a payment to
Impôt sur le re which paragraph (h) or (i) of the definition ‘‘disposition’’ in subsection 248(1) applies, and (C) all amounts each of which is an eligible offset at that time of the taxpayer in respect of the former interest; and (e) where the trust is a mutual fund trust, the distribution occurs in a taxation year of the trust before its 2003 taxation year, the trust has elected under subsection (2.11) in respect of the year and the trust so elects in respect of the distribution in prescribed form filed with the trust’s return of income for the year, (i) this subsection shall be read without reference to paragraph (c), and (ii) the beneficiary’s proceeds of disposition of the portion of the former interest disposed of by the beneficiary on the distribution are deemed to be equal to the amount determined under paragraph (a).
Gains not distributed to beneficiaries
(2.11) Where a trust makes one or more distributions of property in a taxation year in circumstances in which subsection (2.1) applies (or, in the case of property distributed after October 1, 1996 and before 2000, in circumstances in which subsection (5) applied) (a) where the trust is resident in Canada at the time of each of those distributions and has so elected in prescribed form filed with the trust’s return for the year or a preceding taxation year, the income of the trust for the year (determined without reference to subsection 104(6)) shall, for the purposes of subsections 104(6) and (13), be computed without regard to all of those distributions to non-resident persons (including a partnership other than a Canadian partnership); and (b) where the trust is resident in Canada at the time of each of those distributions and has so elected in prescribed form filed with the trust’s return for the year or a preceding taxation year, the income of the trust for the year (determined without reference to subsection 104(6)) shall, for the purposes of
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subsections 104(6) and (13), be computed without regard to all of those distributions.
Election — subsection (2.11)
(2.12) An election made under subsection (2.11) by a mutual fund trust is deemed, for the trust’s 2003 and subsequent taxation years, not to have been made if (a) the election is made after December 20, 2000 and applies to any taxation year that ends before 2003; and (b) the proceeds of disposition of a beneficiary’s interest in the trust have been determined under paragraph (2.1)(e). (13) Subparagraph 107(2.2)(a)(ii) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (14) Subsection 107(3) of the Act is repealed. (15) Subsection 107(4) of the Act is replaced by the following:
Trusts in favour of spouse, common-law partner or self
(4) Subsection (2.1) applies (and subsection (2) does not apply) at any time to property distributed to a beneficiary by a trust described in paragraph 104(4)(a) where (a) the beneficiary is not (i) in the case of a post-1971 spousal or common-law partner trust, the spouse or common-law partner referred to in paragraph 104(4)(a), (ii) in the case of an alter ego trust, the taxpayer referred to in paragraph 104(4)(a), and (iii) in the case of a joint spousal or common-law partner trust, the taxpayer, spouse or common-law partner referred to in paragraph 104(4)(a); and (b) a taxpayer, spouse or common-law partner referred to in subparagraph (a)(i), (ii) or (iii), as the case may be, is alive on the day of the distribution.
Impôt sur le re (16) The portion of subsection 107(4.1) of the Act after paragraph (c) is replaced by the following: subsection (2.1) applies (and subsection (2) does not apply) in respect of the distribution.
(17) Subsection 107(4.1) of the Act, as enacted by subsection (16), is replaced by the following: Where subsection 75(2) applicable to trust
(4.1) Subsection (2.1) applies (and subsection (2) does not apply) in respect of a distribution of any property of a particular personal trust or prescribed trust by the particular trust to a taxpayer who was a beneficiary under the particular trust where (a) the distribution was in satisfaction of all or any part of the taxpayer’s capital interest in the particular trust; (b) subsection 75(2) was applicable at a particular time in respect of any property of (i) the particular trust, or (ii) a trust the property of which included a property that, through one or more dispositions to which subsection 107.4(3) applied, became a property of the particular trust, and the property was not, at any time after the particular time and before the distribution, the subject of a disposition for proceeds of disposition equal to the fair market value of the property at the time of the disposition; (c) the taxpayer was neither (i) the person (other than a trust described in subparagraph (b)(ii)) from whom the particular trust directly or indirectly received the property, or property for which the property was substituted, nor (ii) an individual in respect of whom subsection 73(1) would be applicable on the transfer of capital property from the person described in subparagraph (i); and
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(d) the person described in subparagraph (c)(i) was in existence at the time the property was distributed. (18) Subsection 107(5) of the Act is replaced by the following: Distribution to non-resident
(5) Subsection (2.1) applies (and subsection (2) does not apply) in respect of a distribution of a property (other than a share of the capital stock of a non-resident-owned investment corporation or property described in any of subparagraphs 128.1(4)(b)(i) to (iii)) by a trust resident in Canada to a non-resident taxpayer (including a partnership other than a Canadian partnership) in satisfaction of all or part of the taxpayer’s capital interest in the trust.
Instalment interest
(5.1) Where, solely because of the application of subsection (5), paragraphs (2)(a) to (c) do not apply to a distribution in a taxation year of taxable Canadian property by a trust, in applying sections 155, 156 and 156.1 and subsections 161(2), (4) and (4.01) and any regulations made for the purpose of those provisions, the trust’s total taxes payable under this Part and Part I.1 for the year are deemed to be the lesser of (a) the trust’s total taxes payable under this Part and Part I.1 for the year, determined before taking into consideration the specified future tax consequences for the year, and (b) the amount that would be determined under paragraph (a) if subsection (5) did not apply to each distribution in the year of taxable Canadian property to which the rules in subsection (2) do not apply solely because of the application of subsection (5).
(19) Subsections (1) to (4) apply to the 2000 and subsequent taxation years except that, in respect of transfers in 2000 or 2001, for the purposes of subsection 107(1) of the Act, as enacted by this section, the residence
Impôt sur le re of a transferee trust shall be determined without reference to section 94 of the Act, as it read before 2002.
(20) Subsection (5) applies to distributions made after October 1, 1996. (21) Subsections (6) and (7), subsection 107(2.002) of the Act, as enacted by subsection (10), and subsections (11) and (14) to (16) apply to distributions made after 1999 except that, for distributions made to a beneficiary before the particular day on which this Act receives royal assent, an election under subsection 107(2.002) of the Act, as enacted by subsection (10), is deemed to have been made in a timely manner if it is made on or before the beneficiary’s filing-due date for the taxation year that includes the particular day.
(22) Subsection (8) applies in determining after October 1, 1996 whether property is taxable Canadian property. (23) Subsections (9) and (13) apply to taxation years that end after February 27, 2000 except that, for a beneficiary’s taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the word ‘‘twice’’ in subparagraph 107(2.2)(a)(ii) of the Act, as enacted by subsection (13), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the beneficiary for the year, multiplied by’’. (24) Subsection 107(2.001) of the Act, as enacted by subsection (10), applies to distributions made after October 1, 1996 except that, for distributions made from a trust before the particular day on which this Act receives royal assent, an election under
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that subsection 107(2.001) is deemed to have been made in a timely manner if it is made on or before the trust’s filing-due date for the taxation year that includes the particular day. (25) Subsection 107(2.1) of the Act, as enacted by subsection (12), applies to distributions made after 1999, except that (a) it does not apply to distributions made before March 2000 in satisfaction of rights described in subsection 52(6) of the Act that were acquired before 2000; and (b) for distributions made from a trust before the particular day on which this Act receives royal assent, an election under that subsection 107(2.1) is deemed to have been made in a timely manner if it is made on or before the trust’s filing-due date for the taxation year that includes the particular day.
(26) Subsection 107(2.11) of the Act, as enacted by subsection (12), applies to distributions made after October 1, 1996 except that, for distributions made from a trust before the particular day on which this Act receives royal assent, an election under that subsection 107(2.11) is deemed to have been made in a timely manner if it is made on or before the trust’s filing-due date for the taxation year that includes the particular day. (27) Subsection (17) applies to distributions made on or after March 16, 2001. (28) Subsection (18) applies to distributions made after October 1, 1996 except that, for distributions made after October 1, 1996 and before 2000, subsection 107(5) of the Act, as enacted by subsection (18), shall be read as follows: (5) Where subsection (2) applies to a distribution at any time by a trust resident in Canada of a property (other than a share of the capital stock of a non-resident-owned invest2001
Impôt sur le re ment corporation or property described in any of subparagraphs 128.1(4)(b)(i) to (iii)) to a non-resident taxpayer (including a partnership other than a Canadian partnership) who is a beneficiary under the trust in satisfaction of the taxpayer’s capital interest in the trust, notwithstanding paragraphs (2)(a) to (c), (a) the trust is deemed to have disposed of the property for proceeds equal to its fair market value at that time; (b) the taxpayer is deemed to have acquired the property at a cost equal to that fair market value; and (c) the taxpayer is deemed to have disposed of all or part, as the case may be, of the taxpayer’s capital interest in the trust, for proceeds of disposition equal to the adjusted cost base to the taxpayer of that interest or part of the interest, as the case may be, immediately before that time. 81. (1) The portion of section 107.1 of the Act before subparagraph (a)(i) is replaced by the following:
Distribution by employee trust, employee benefit plan or similar trust
107.1 Where at any time any property of an employee trust, a trust governed by an employee benefit plan or a trust described in paragraph (a.1) of the definition ‘‘trust’’ in subsection 108(1) has been distributed by the trust to a taxpayer who was a beneficiary under the trust in satisfaction of all or any part of the taxpayer’s interest in the trust, the following rules apply: (a) in the case of an employee trust or a trust described in paragraph (a.1) of the definition ‘‘trust’’ in subsection 108(1),
(2) Subsection (1) applies to the 1999 and subsequent taxation years. 82. (1) The Act is amended by adding the following after section 107.3: Qualifying disposition
107.4 (1) For the purpose of this section, a ‘‘qualifying disposition’’ of a property means a disposition of the property by a person or partnership (in this subsection referred to as the ‘‘contributor’’) as a result of a transfer of the property to a particular trust where
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(a) the disposition does not result in a change in the beneficial ownership of the property; (b) the proceeds of disposition would, if this Act were read without reference to this section and sections 69 and 73, not be determined under any provision of this Act; (c) if the particular trust is non-resident, the disposition is not (i) by a person resident in Canada or by a partnership (other than a partnership each member of which is non-resident), or (ii) a transfer of taxable Canadian property from a non-resident person who was resident in Canada in any of the ten calendar years preceding the transfer; (d) the contributor is not a partnership, if the disposition is part of a series of transactions or events that begin after December 17, 1999 that includes the cessation of the partnership’s existence and a subsequent distribution from a personal trust to a former member of the partnership in circumstances to which subsection 107(2) applies; (e) unless the contributor is a trust, there is immediately after the disposition no absolute or contingent right of a person or partnership (other than the contributor or, where the property was co-owned, each of the joint contributors) as a beneficiary (determined with reference to subsection 104(1.1)) under the particular trust; (f) the contributor is not an individual (other than a trust described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1)), if the particular trust is described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1); (g) the disposition is not part of a series of transactions or events (i) that begins after December 17, 1999 and that includes the subsequent acquisition, for consideration given to a personal trust, of a capital interest or an income interest in the trust,
Impôt sur le re (ii) that begins after December 17, 1999 and that includes the disposition of all or part of a capital interest or an income interest in a personal trust, other than a disposition solely as a consequence of a distribution from a trust to a person or partnership in satisfaction of all or part of that interest, or (iii) that begins after June 5, 2000 and that includes the transfer to the particular trust of particular property as consideration for the acquisition of a capital interest in the particular trust, if the particular property can reasonably be considered to have been received by the particular trust in order to fund a distribution (other than a distribution that is proceeds of disposition of a capital interest in the particular trust); (h) the disposition is not, and is not part of, a transaction (i) that occurs after December 17, 1999, and (ii) that includes the giving to the contributor, for the disposition, of any consideration (other than consideration that is an interest of the contributor as a beneficiary under the particular trust or that is the assumption by the particular trust of debt for which the property can, at the time of the disposition, reasonably be considered to be security); (i) subsection 73(1) does not apply to the disposition and would not apply to the disposition if (i) no election had been made under that subsection, and (ii) section 73 were read without reference to subsection 73(1.02); and (j) if the contributor is an amateur athlete trust, a cemetery care trust, an employee trust, an inter vivos trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization, a related segregated fund trust (as defined by section 138.1), a trust described in paragraph 149(1)(o.4) or a
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trust governed by an eligible funeral arrangement, an employees profit sharing plan, a registered education savings plan or a registered supplementary unemployment benefit plan, the particular trust is the same type of trust.
Application of paragraph (1)(a)
(2) For the purpose of paragraph (1)(a), (a) except where paragraph (b) applies, where a trust (in this paragraph and subsection (2.1) referred to as the ‘‘transferor trust’’), in a period that does not exceed one day, disposes of one or more properties in the period to one or more other trusts, there is deemed to be no resulting change in the beneficial ownership of those properties if (i) the transferor trust receives no consideration for the disposition, and (ii) as a consequence of the disposition, the value of each beneficiary’s beneficial ownership at the beginning of the period under the transferor trust in each particular property of the transferor trust (or group of two or more properties of the transferor trust that are identical to each other) is the same as the value of the beneficiary’s beneficial ownership at the end of the period under the transferor trust and the other trust or trusts in each particular property (or in property that was immediately before the disposition included in the group of identical properties referred to above); and (b) where a trust (in this paragraph referred to as the ‘‘transferor’’) governed by a registered retirement savings plan or by a registered retirement income fund transfers a property to a trust (in this paragraph referred to as the ‘‘transferee’’) governed by a registered retirement savings plan or by a registered retirement income fund, the
Impôt sur le re transfer is deemed not to result in a change in the beneficial ownership of the property if the annuitant of the plan or fund that governs the transferor is also the annuitant of the plan or fund that governs the transferee.
Fractional interests
(2.1) For the purpose of applying paragraph (2)(a) in respect of a transfer by a transferor trust of property that includes a share and money, the other trust or trusts referred to in that paragraph may receive, in lieu of a transfer of a fractional interest in a share that would otherwise be required, a disproportionate amount of money or interest in the share (the value of which does not exceed the lesser of $200 and the fair market value of the fractional interest).
Tax consequences of qualifying dispositions
(3) Where at a particular time there is a qualifying disposition of a property by a person or partnership (in this subsection referred to as the ‘‘transferor’’) to a trust (in this subsection referred to as the ‘‘transferee trust’’), (a) the transferor’s proceeds of disposition of the property are deemed to be (i) where the transferor so elects in writing and files the election with the Minister on or before the transferor’s filing-due date for its taxation year that includes the particular time, or at any later time that is acceptable to the Minister, the amount specified in the election that is not less than the cost amount to the transferor of the property immediately before the particular time and not more than the fair market value of the property at the particular time, and (ii) in any other case, the cost amount to the transferor of the property immediately before the particular time; (b) except as otherwise provided under paragraph (c), the transferee trust’s cost of the property is deemed to be the amount, if any, by which (i) the proceeds determined under paragraph (a) in respect of the qualifying disposition
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exceed (ii) the amount by which the transferor’s loss otherwise determined from the qualifying disposition would be reduced because of subsection 100(4), paragraph 107(1)(c) or (d) or any of subsections 112(3) to (4.2), if the proceeds determined under paragraph (a) were equal to the fair market value of the property at the particular time; (c) notwithstanding subsection 206(4), for the purposes of Part XI and regulations made for the purposes of that Part, the transferee trust’s cost of the property is deemed to be (i) the cost amount to the transferor immediately before the particular time where (A) the particular time is before 2000, (B) the transferor is a trust governed by a registered retirement savings plan or a registered retirement income fund, (C) the transferee trust is governed by a registered retirement savings plan or a registered retirement income fund, (D) the transferee trust files a written election with the Minister on or before the later of March 31, 2001 and its filing-due date for its taxation year that includes the particular time (or at such later date that is acceptable to the Minister) that this subparagraph apply, and (E) it can reasonably be considered that the election was not made for the purpose of avoiding tax under Part XI, (ii) the fair market value of the property at the particular time where (A) subparagraph (iii) does not apply, (B) the transferee trust files a written election with the Minister on or before the later of March 31, 2001 and its filing-due date for its taxation year that includes the particular time (or at such later date that is acceptable to the Minister) that this subparagraph apply, and
Impôt sur le re (C) it can reasonably be considered that the election was not made for the purpose of avoiding tax under Part XI, (iii) the fair market value of the property at the particular time where (A) subparagraph (i) does not apply to the qualifying disposition, (B) the particular time is before 2000, (C) the transferor is a trust governed by a registered retirement savings plan or a registered retirement income fund, and (D) the transferee trust is governed by a registered retirement savings plan or a registered retirement income fund, and (iv) the cost amount to the transferor of the property immediately before the particular time, in any other case; (d) if the property was depreciable property of a prescribed class of the transferor and its capital cost to the transferor exceeds the cost at which the transferee trust is deemed by this subsection to have acquired the property, for the purposes of sections 13 and 20 and any regulations made for the purpose of paragraph 20(1)(a), (i) the capital cost of the property to the transferee trust is deemed to be the amount that was the capital cost of the property to the transferor, and (ii) the excess is deemed to have been allowed to the transferee trust in respect of the property under regulations made for the purpose of paragraph 20(1)(a) in computing income for taxation years that ended before the particular time; (e) if the property was eligible capital property of the transferor in respect of a business of the transferor, (i) where the eligible capital expenditure of the transferor in respect of the property exceeds the cost at which the transferee trust is deemed by this subsection to have acquired the property, for the purposes of sections 14, 20 and 24,
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Income Ta (A) the eligible capital expenditure of the transferee trust in respect of the property is deemed to be the amount that was the eligible capital expenditure of the transferor in respect of the property, and (B) 3/4 of the excess is deemed to have been allowed under paragraph 20(1)(b) to the transferee trust in respect of the property in computing income for taxation years that ended (I) before the particular time, and (II) after the adjustment time of the transferee trust in respect of the business, and (ii) for the purpose of determining after the particular time the amount required by paragraph 14(1)(b) to be included in computing the transferee trust’s income in respect of any subsequent disposition of the property of the business, there shall be added to the value otherwise determined for Q in the definition ‘‘cumulative eligible capital’’ in subsection 14(5) the amount determined by the formula A x (B/C) where A is the amount, if any, determined for Q in that definition in respect of the business of the transferor immediately before the particular time, B is the fair market value of the property immediately before the particular time, and C is the fair market value immediately before the particular time of all eligible capital property of the transferor in respect of the business;
(f) if the property was deemed to be taxable Canadian property of the transferor by this paragraph or paragraph 51(1)(f), 85(1)(i) or 85.1(1)(a), subsection 87(4) or (5) or paragraph 97(2)(c) or 107(2)(d.1), the property is deemed to be taxable Canadian property of the transferee trust;
Impôt sur le re (g) where the transferor is a related segregated fund trust (in this paragraph having the meaning assigned by section 138.1), (i) paragraph 138.1(1)(i) does not apply in respect of a disposition of an interest in the transferor that occurs in connection with the qualifying disposition, and (ii) in computing the amount determined under paragraph 138.1(1)(i) in respect of a subsequent disposition of an interest in the transferee trust where the interest is deemed to exist in connection with a particular life insurance policy, the acquisition fee (as defined by subsection 138.1(6)) in respect of the particular policy shall be determined as if each amount determined under any of paragraphs 138.1(6)(a) to (d) in respect of the policyholder’s interest in the transferor had been determined in respect of the policyholder’s interest in the transferee trust; (h) if the transferor is a trust to which property had been transferred by an individual (other than a trust), (i) where subsection 73(1) applied in respect of the property so transferred and it is reasonable to consider that the property was so transferred in anticipation of the individual ceasing to be resident in Canada, for the purposes of paragraph 104(4)(a.3) and the application of this paragraph to a disposition by the transferee trust after the particular time, the transferee trust is deemed after the particular time to be a trust to which the individual had transferred property in anticipation of the individual ceasing to reside in Canada and in circumstances to which subsection 73(1) applied, and (ii) for the purposes of paragraph (j) of the definition ‘‘excluded right or interest’’ in subsection 128.1(10) and the application of this paragraph to a disposition by the transferee trust after the particular time, where the property so transferred was transferred in circumstances to which this subsection would
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Income Ta apply if subsection (1) were read without reference to paragraphs (1)(h) and (i), the transferee trust is deemed after the particular time to be a trust an interest in which was acquired by the individual as a consequence of a qualifying disposition;
(i) if the transferor is a trust (other than a personal trust or a trust prescribed for the purposes of subsection 107(2)), the transferee trust is deemed to be neither a personal trust nor a trust prescribed for the purposes of subsection 107(2); (j) if the transferor is a trust and a taxpayer disposes of all or part of a capital interest in the transferor because of the qualifying disposition and, as a consequence, acquires a capital interest or part of it in the transferee trust (i) the taxpayer is deemed to dispose of the capital interest or part of it in the transferor for proceeds equal to the cost amount to the taxpayer of that interest or part of it immediately before the particular time, and (ii) the taxpayer is deemed to acquire the capital interest or part of it in the transferee trust at a cost equal to the amount, if any, by which (A) that cost amount exceeds (B) the amount by which the taxpayer’s loss otherwise determined from the disposition referred to in subparagraph (i) would be reduced because of paragraph 107(1)(c) or (d) if the proceeds under that subparagraph were equal to the fair market value of the capital interest or part of it in the transferor immediately before the particular time; (k) where the transferor is a trust, a taxpayer’s beneficial ownership in the property ceases to be derived from the taxpayer’s capital interest in the transferor because of the qualifying disposition and no part of the taxpayer’s capital interest in the transferor was disposed of because of the qualifying
Impôt sur le re disposition, there shall, immediately after the particular time, be added to the cost otherwise determined of the taxpayer’s capital interest in the transferee trust, the amount determined by the formula A x [(B - C)/B] - D where A is the cost amount to the taxpayer of the taxpayer’s capital interest in the transferor immediately before the particular time, B is the fair market value immediately before the particular time of the taxpayer’s capital interest in the transferor, C is the fair market value at the particular time of the taxpayer’s capital interest in the transferor (determined as if the only property disposed of at the particular time were the particular property), and D is the lesser of (i) the amount, if any, by which the cost amount to the taxpayer of the taxpayer’s capital interest in the transferor immediately before the particular time exceeds the fair market value of the taxpayer’s capital interest in the transferor immediately before the particular time, and (ii) the maximum amount by which the taxpayer’s loss from a disposition of a capital interest otherwise determined could have been reduced because of paragraph 107(1)(c) or (d) if the taxpayer’s capital interest in the transferor had been disposed of immediately before the particular time; (l) where paragraph (k) applies to the qualifying disposition in respect of a taxpayer, the amount that would be determined under that paragraph in respect of the qualifying disposition if the amount determined for D in that paragraph were nil shall, immediately after the particular time, be deducted in computing the cost otherwise determined of the taxpayer’s capital interest in the transferor;
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(m) where paragraphs (j) and (k) do not apply in respect of the qualifying disposition, the transferor is deemed to acquire the capital interest or part of it in the transferee trust that is acquired as a consequence of the qualifying disposition (i) where the transferee trust is a personal trust, at a cost equal to nil, and (ii) in any other case, at a cost equal to the excess determined under paragraph (b) in respect of the qualifying disposition; and (n) if the transferor is a trust and a taxpayer disposes of all or part of an income interest in the transferor because of the qualifying disposition and, as a consequence, acquires an income interest or a part of an income interest in the transferee trust, for the purpose of subsection 106(2), the taxpayer is deemed not to dispose of any part of the income interest in the transferor at the particular time.
Fair market value of vested interest in trust
(4) Where (a) a particular capital interest in a trust is held by a beneficiary at any time, (b) the particular interest is vested indefeasibly at that time,
Impôt sur le re (c) the trust is not described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1), and (d) interests under the trust are not ordinarily disposed of for consideration that reflects the fair market value of the net assets of the trust, the fair market value of the particular interest at that time is deemed to be not less than the amount determined by the formula (A - B) x (C/D) where A is the total fair market value at that time of all properties of the trust, B is the total of all amounts each of which is the amount of a debt owing by the trust at that time or the amount of any other obligation of the trust to pay any amount that is outstanding at that time, C is the fair market value at that time of the particular interest (determined without reference to this subsection), and D is the total fair market value at that time of all interests as beneficiaries under the trust (determined without reference to this subsection).
(2) Subsections 107.4(1) and (3) of the Act, as enacted by subsection (1), apply (a) to dispositions that occur after December 23, 1998 except that, in its application to dispositions that occurred in taxation years that ended before February 28, 2000, the reference to ‘‘paragraph 14(1)(b)’’ in subparagraph 107.4(3)(e)(ii) of the Act, as enacted by subsection (1), shall be read as a reference to ‘‘subparagraph 14(1)(a)(v) or paragraph 14(1)(b)’’; and (b) in respect of the 1993 and subsequent taxation years, to transfers of capital property that occurred before December 24, 1998 except that, in its application to transfers before December 24, 1998,
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Income Ta (i) subsection 107.4(1) of the Act, as enacted by subsection (1), shall be read as follows:
107.4 (1) For the purpose of this section, a ‘‘qualifying disposition’’ of a property means a transfer of the property to a particular trust that was not a disposition of the property for the purpose of subdivision c because of paragraph (e) of the definition ‘‘disposition’’ in section 54, except where (a) if the transfer is from another trust to the particular trust, (i) each trust can reasonably be considered to act as agent for the same beneficiary or beneficiaries in respect of the property transferred, or (ii) the transferee trust can reasonably be considered to act as agent for the transferor trust in respect of the property transferred; and (b) in any other case, it is reasonable to consider that the particular trust acts as agent in respect of the property transferred. (ii) the portion of subsection 107.4(3) of the Act before paragraph (a), as enacted by subsection (1), shall be read as follows:
(3) Where at a particular time there is a qualifying disposition of a property by a person or partnership (in this subsection referred to as the ‘‘transferor’’) to a trust (in this subsection referred to as the ‘‘transferee trust’’), except for the purposes of Part XI and regulations made for the purposes of that Part (iii) subsection 107.4(3) of the Act, as enacted by subsection (1), shall be read without reference to paragraphs 107.4(3)(a), (c), (g) and (h) of the Act, as enacted by subsection (1),
Impôt sur le re (iv) paragraph 107.4(3)(b) of the Act, as enacted by subsection (1), shall be read as follows: (b) the transferee trust’s cost of the property is deemed to be the cost amount to the transferor of the property immediately before the particular time; (v) subsection 107.4(3) of the Act, as enacted by subsection (1), shall be read as if each amount determined under clause 107.4(3)(j)(ii)(B) of the Act and the description of D in paragraph 107.4(3)(k) of the Act, as enacted by subsection (1), were nil, and (vi) subparagraph 107.4(3)(m)(ii) of the Act, as enacted by subsection (1), shall be read as follows: (ii) in any other case, at a cost equal to the amount determined under paragraph (b) in respect of the qualifying disposition; and (3) Subsections 107.4(2), (2.1) and (4) of the Act, as enacted by subsection (1), apply to dispositions that occur after December 23, 1998. 83. (1) The definition ‘‘accumulating income’’ in subsection 108(1) of the Act is replaced by the following:
‘‘accumulating income’’ « revenu accumulé »
‘‘accumulating income’’ of a trust for a taxation year means the amount that would be the income of the trust for the year if that amount were computed (a) without reference to paragraphs 104(4)(a) and (a.1) and subsections 104(5.1), (5.2) and (12) and 107(4), (b) as if the greatest amount that the trust was entitled to claim under subsection 104(6) in computing its income for the year were so claimed, and (c) without reference to subsection 12(10.2), except to the extent that that subsection applies to amounts paid to a trust to which paragraph 70(6.1)(b) applies and before the death of the spouse or common-law partner referred to in that paragraph;
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(2) The definition ‘‘capital interest’’ in subsection 108(1) of the Act is replaced by the following: ‘‘capital interest’’ « participation au capital »
‘‘capital interest’’ of a taxpayer in a trust means all rights of the taxpayer as a beneficiary under the trust, and after 1999 includes a right (other than a right acquired before 2000 and disposed of before March 2000) to enforce payment of an amount by the trust that arises as a consequence of any such right, but does not include an income interest in the trust; (3) The definition ‘‘income interest’’ in subsection 108(1) of the Act is replaced by the following:
‘‘income interest’’ « participation au revenu »
‘‘income interest’’ of a taxpayer in a trust means a right (whether immediate or future and whether absolute or contingent) of the taxpayer as a beneficiary under a personal trust to, or to receive, all or any part of the income of the trust and, after 1999, includes a right (other than a right acquired before 2000 and disposed of before March 2000) to enforce payment of an amount by the trust that arises as a consequence of any such right; (4) The portion of the definition ‘‘cost amount’’ in subsection 108(1) of the Act before paragraph (a) is replaced by the following:
‘‘cost amount’’ « coût indiqué »
‘‘cost amount’’ to a taxpayer at any time of a capital interest or part of the interest, as the case may be, in a trust (other than a trust that is a foreign affiliate of the taxpayer) means, except for the purposes of section 107.4 and notwithstanding subsection 248(1),
(5) The definition ‘‘cost amount’’ in subsection 108(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a) and by adding the following after paragraph (a): (a.1) where that time is immediately before the time of the death of the taxpayer and subsection 104(4) or (5) deems the trust to dispose of property at
Impôt sur le re the end of the day that includes that time, the amount that would be determined under paragraph (b) if the taxpayer had died on a day that ended immediately before that time, and (6) The definition ‘‘trust’’ in subsection 108(1) of the Act is amended by adding the following after paragraph (a): (a.1) a trust, other than a trust described in paragraph (a) or (d), all or substantially all of the property of which is held for the purpose of providing benefits to individuals each of whom is provided with benefits in respect of, or because of, an office or employment or former office or employment of any individual, (7) The portion of the definition ‘‘trust’’ in subsection 108(1) of the Act after paragraph (e.1) is replaced by the following: and, in applying subsections 104(4), (5), (5.2), (12), (14) and (15) and section 106 at any time, does not include (f) a trust that, at that time, is a unit trust, or (g) a trust all interests in which, at that time, have vested indefeasibly, other than (i) an alter ego trust, a joint spousal or common-law partner trust, a post-1971 spousal or common-law partner trust or a trust to which paragraph 104(4)(a.4) applies, (ii) a trust that has elected under subsection 104(5.3), (iii) a trust that has, in its return of income under this Part for its first taxation year that ends after 1992, elected that this paragraph not apply, (iv) a trust that is at that time resident in Canada where the total fair market value at that time of all interests in the trust held at that time by beneficiaries under the trust who at that time are non-resident is more than 20% of the total fair market value at that time of all interests in the trust held at that time by beneficiaries under the trust,
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Income Ta (v) a trust under the terms of which, at that time, all or part of a person’s interest in the trust is to be terminated with reference to a period of time (including a period of time determined with reference to the person’s death), otherwise than as a consequence of terms of the trust under which an interest in the trust is to be terminated as a consequence of a distribution to the person (or the person’s estate) of property of the trust if the fair market value of the property to be distributed is required to be commensurate with the fair market value of that interest immediately before the distribution, or (vi) a trust that, before that time and after December 17, 1999, has made a distribution to a beneficiary in respect of the beneficiary’s capital interest in the trust, if the distribution can reasonably be considered to have been financed by a liability of the trust and one of the purposes of incurring the liability was to avoid taxes otherwise payable under this Part as a consequence of the death of any individual.
(8) Subsection 108(1) of the Act is amended by adding the following in alphabetical order: ‘‘eligible offset’’ « montant de réduction admissible »
‘‘eligible offset’’ at any time of a taxpayer in respect of all or part of the taxpayer’s capital interest in a trust is the portion of any debt or obligation that is assumed by the taxpayer and that can reasonably be considered to be applicable to property distributed at that time in satisfaction of the interest or
Impôt sur le re part of the interest, as the case may be, if the distribution is conditional upon the assumption by the taxpayer of the portion of the debt or obligation;
‘‘exempt property’’ « bien exonéré »
‘‘exempt property’’ of a taxpayer at any time means property any income or gain from the disposition of which by the taxpayer at that time would, because the taxpayer is nonresident or because of a provision contained in a tax treaty, not cause an increase in the taxpayer’s tax payable under this Part;
(9) Paragraph 108(2)(b) of the Act is replaced by the following: (b) each of the following conditions was satisfied: (i) throughout the taxation year that includes the particular time (in this paragraph referred to as the ‘‘current year’’), the trust was resident in Canada, (ii) throughout the period or periods (in this paragraph referred to as the ‘‘relevant periods’’) that are in the current year and throughout which the conditions in paragraph (a) are not satisfied in respect of the trust, its only undertaking was (A) the investing of its funds in property (other than real property or an interest in real property), (B) the acquiring, holding, maintaining, improving, leasing or managing of any real property or an interest in real property, that is capital property of the trust, or (C) any combination of the activities described in clauses (A) and (B), (iii) throughout the relevant periods at least 80% of its property consisted of any combination of (A) shares, (B) any property that, under the terms or conditions of which or under an agreement, is convertible into, is exchangeable for or confers a right to acquire, shares,
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Income Ta (C) cash, (D) bonds, debentures, mortgages, hypothecary claims, notes and other similar obligations, (E) marketable securities, (F) real property situated in Canada and interests in real property situated in Canada, and (G) rights to and interests in any rental or royalty computed by reference to the amount or value of production from a natural accumulation of petroleum or natural gas in Canada, from an oil or gas well in Canada or from a mineral resource in Canada, (iv) either (A) not less than 95% of its income for the current year (computed without regard to subsections 49(2.1) and 104(6)) was derived from, or from the disposition of, investments described in subparagraph (iii), or (B) not less than 95% of its income for each of the relevant periods (computed without regard to subsections 49(2.1) and 104(6) and as though each of those periods were a taxation year) was derived from, or from the disposition of, investments described in subparagraph (iii), (v) throughout the relevant periods, not more than 10% of its property consisted of bonds, securities or shares in the capital stock of any one corporation or debtor other than Her Majesty in right of Canada or a province or a Canadian municipality, and (vi) where the trust would not be a unit trust at the particular time if this paragraph were read without reference to this subparagraph and subparagraph (iii) were read without reference to clause (F), the units of the trust are listed at any time in the current year or in the following taxation year on a prescribed stock exchange in Canada, or
Impôt sur le re
(10) The portion of subsection 108(3) of the Act before paragraph (a) is replaced by the following: Income of a trust in certain provisions
(3) For the purposes of the definition ‘‘income interest’’ in subsection (1), the income of a trust is its income computed without reference to the provisions of this Act and, for the purposes of the definition ‘‘pre-1972 spousal trust’’ in subsection (1) and paragraphs 70(6)(b) and (6.1)(b), 73(1.01)(c) and 104(4)(a), the income of a trust is its income computed without reference to the provisions of this Act, minus any dividends included in that income
(11) Subsection 108(4) of the Act is replaced by the following: Trust not disqualified
(4) For the purposes of the definition ‘‘pre-1972 spousal trust’’ in subsection (1), subparagraphs 70(6)(b)(ii) and (6.1)(b)(ii) and paragraphs 73(1.01)(c) and 104(4)(a), where a trust was created by a taxpayer whether by the taxpayer’s will or otherwise, no person is deemed to have received or otherwise obtained or to be entitled to receive or otherwise obtain the use of any income or capital of the trust solely because of the payment, or provision for payment, as the case may be, by the trust of (a) any estate, legacy, succession or inheritance duty payable, in consequence of the death of the taxpayer, or a spouse or common-law partner of the taxpayer who is a beneficiary under the trust, in respect of any property of, or interest in, the trust; or (b) any income or profits tax payable by the trust in respect of any income of the trust.
(12) Subsection 108(6) of the Act is replaced by the following:
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(6) Where at any time the terms of a trust are varied (a) for the purposes of subsections 104(4), (5) and (5.2) and subject to paragraph (b), the trust is, at and after that time, deemed to be the same trust as, and a continuation of, the trust immediately before that time; (b) for greater certainty, paragraph (a) does not affect the application of paragraph 104(4)(a.1); and (c) for the purposes of paragraph 53(2)(h), subsection 107(1), paragraph (j) of the definition ‘‘excluded right or interest’’ in subsection 128.1(10) and the definition ‘‘personal trust’’ in subsection 248(1), no interest of a beneficiary under the trust before it was varied is considered to be consideration for the interest of the beneficiary in the trust as varied.
Interests acquired for consideration
(7) For the purposes of paragraph 53(2)(h), subsection 107(1), paragraph (j) of the definition ‘‘excluded right or interest’’ in subsection 128.1(10) and the definition ‘‘personal trust’’ in subsection 248(1), (a) an interest in a trust is deemed not to be acquired for consideration solely because it was acquired in satisfaction of any right as a beneficiary under the trust to enforce payment of an amount by the trust; and (b) where all the beneficial interests in a particular inter vivos trust acquired by way of the transfer, assignment or other disposition of property to the particular trust were acquired by (i) one person, or (ii) two or more persons who would be related to each other if (A) a trust and another person were related to each other, where the other person is a beneficiary under the trust or is related to a beneficiary under the trust, and (B) a trust and another trust were related to each other, where a benefi2001
Impôt sur le re ciary under the trust is a beneficiary under the other trust or is related to a beneficiary under the other trust, any beneficial interest in the particular trust acquired by such a person is deemed to have been acquired for no consideration.
(13) Subsection (1) and subsection 108(6) of the Act, as enacted by subsection (12), apply to the 2000 and subsequent taxation years. (14) Subsection (2) and the definition ‘‘eligible offset’’ in subsection 108(1) of the Act, as enacted by subsection (8), apply after 1999. (15) Subsection (3) applies in respect of interests created or materially altered after January 1987 that were acquired after 10 p.m. Eastern Standard Time, February 6, 1987. (16) Subsection (4) applies to the 1993 and subsequent taxation years. (17) Subsection (5) applies to deaths that occur after 1999 and, where a day before the 2000 taxation year is determined under paragraph 104(4)(a.4) of the Act, as enacted by subsection 78(4), in respect of a trust, it applies to deaths that occur after December 23, 1998. (18) Subsection (6) applies to the 1999 and subsequent taxation years. (19) Subsections (7) and (9) apply to the 1998 and subsequent taxation years, except that (a) subsection (7) does not apply for the purpose of applying subparagraph (g)(iv) of the definition ‘‘trust’’ in subsection 108(1) of the Act, as enacted by subsection (7), before December 24, 1998; and (b) where the trust so elects in writing and files the election with the Minister of National Revenue on or before the trust’s filing-due date for the taxation year of the
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trust that includes the day on which this Act receives royal assent (or any later day that is acceptable to that Minister), subparagraph (g)(v) of that definition, as enacted by subsection (7), as it applies before 2001, shall be read as follows: (v) a trust any interest in which may become effective in the future, or
(20) The definition ‘‘exempt property’’ in subsection 108(1) of the Act, as enacted by subsection (8), applies after 1992 except that, before 1999, the words ‘‘tax treaty’’ in that definition shall be read as ‘‘convention or agreement with another country that has the force of law in Canada’’. (21) Subsections (10) and (11) apply to the 2000 and subsequent taxation years, except for the purpose of applying section 73 of the Act to transfers that occur before 2000. (22) Subsection 108(7) of the Act, as enacted by subsection (12), applies after December 23, 1998. 84. (1) The portion of paragraph 110(1)(d) of the Act before subparagraph (i) is replaced by the following: Employee options
(d) an amount equal to 1/2 of the amount of the benefit deemed by subsection 7(1) to have been received by the taxpayer in the year in respect of a security that a particular qualifying person has agreed after February 15, 1984 to sell or issue under an agreement, or in respect of the transfer or other disposition of rights under the agreement, if
(2) Subparagraphs 110(1)(d)(ii) and (iii) of the Act are replaced by the following: (ii) where rights under the agreement were not acquired by the taxpayer as a result of a disposition of rights to which subsection 7(1.4) applied, (A) the amount payable by the taxpayer to acquire the security under the
Impôt sur le re agreement is not less than the amount by which (I) the fair market value of the security at the time the agreement was made exceeds (II) the amount, if any, paid by the taxpayer to acquire the right to acquire the security, and (B) at the time immediately after the agreement was made, the taxpayer was dealing at arm’s length with (I) the particular qualifying person, (II) each other qualifying person that, at the time, was an employer of the taxpayer and was not dealing at arm’s length with the particular qualifying person, and (III) the qualifying person of which the taxpayer had, under the agreement, a right to acquire a security, and (iii) where rights under the agreement were acquired by the taxpayer as a result of one or more dispositions to which subsection 7(1.4) applied, (A) the amount payable by the taxpayer to acquire the security under the agreement is not less than the amount that was included, in respect of the security, in the amount determined under subparagraph 7(1.4)(c)(ii) with respect to the most recent of those dispositions, (B) at the time immediately after the agreement the rights under which were the subject of the first of those dispositions (in this subparagraph referred to as the ‘‘original agreement’’) was made, the taxpayer was dealing at arm’s length with (I) the qualifying person that made the original agreement, (II) each other qualifying person that, at the time, was an employer of the taxpayer and was not dealing at
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Income Ta arm’s length with the qualifying person that made the original agreement, and (III) the qualifying person of which the taxpayer had, under the original agreement, a right to acquire a security, (C) the amount that was included, in respect of each particular security that the taxpayer had a right to acquire under the original agreement, in the amount determined under subparagraph 7(1.4)(c)(iv) with respect to the first of those dispositions was not less than the amount by which (I) the fair market value of the particular security at the time the original agreement was made exceeded (II) the amount, if any, paid by the taxpayer to acquire the right to acquire the security, and (D) for the purpose of determining if the condition in paragraph 7(1.4)(c) was satisfied with respect to each of the particular dispositions following the first of those dispositions, (I) the amount that was included, in respect of each particular security that could be acquired under the agreement the rights under which were the subject of the particular disposition, in the amount determined under subparagraph 7(1.4)(c)(iv) with respect to the particular disposition was not less than (II) the amount that was included, in respect of the particular security, in the amount determined under subparagraph 7(1.4)(c)(ii) with respect to the last of those dispositions preceding the particular disposition;
Impôt sur le re
(3) Subsection 110(1) of the Act is amended by adding the following after paragraph (d): Charitable donation of employee option securities
(d.01) subject to subsection (2.1), where the taxpayer disposes of a security acquired in the year by the taxpayer under an agreement referred to in subsection 7(1) by making a gift of the security to a qualified donee (other than a private foundation), an amount in respect of the disposition of the security equal to 1/4 of the lesser of the benefit deemed by paragraph 7(1)(a) to have been received by the taxpayer in the year in respect of the acquisition of the security and the amount that would have been that benefit had the value of the security at the time of its acquisition by the taxpayer been equal to the value of the security at the time of the disposition, if (i) the security is a security described in subparagraph 38(a.1)(i), (ii) the taxpayer acquired the security after February 27, 2000 and before 2002, (iii) the gift is made in the year and on or before the day that is 30 days after the day on which the taxpayer acquired the security, and (iv) the taxpayer is entitled to a deduction under paragraph (d) in respect of the acquisition of the security; (4) Paragraphs 110(1)(d.1), (d.2) and (d.3) of the Act are amended by replacing the reference to the fraction ‘‘1/4’’ with a reference to the fraction ‘‘1/2’’. (5) Subsection 110(1.5) of the Act is replaced by the following:
Determination of amounts relating to employee security options
(1.5) For the purpose of paragraph (1)(d), (a) the amount payable by a taxpayer to acquire a security under an agreement
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referred to in subsection 7(1) shall be determined without reference to any change in the value of a currency of a country other than Canada, relative to Canadian currency, occurring after the agreement was made; (b) the fair market value of a security at the time an agreement in respect of the security was made shall be determined on the assumption that all specified events associated with the security that occurred after the agreement was made and before the sale or issue of the security or the disposition of the taxpayer’s rights under the agreement in respect of the security, as the case may be, had occurred immediately before the agreement was made; and (c) in determining the amount that was included, in respect of a security that a qualifying person has agreed to sell or issue to a taxpayer, in the amount determined under subparagraph 7(1.4)(c)(ii) for the purpose of determining if the condition in paragraph 7(1.4)(c) was satisfied with respect to a particular disposition, an assumption shall be made that all specified events associated with the security that occurred after the particular disposition and before the sale or issue of the security or the taxpayer’s subsequent disposition of rights under the agreement in respect of the security, as the case may be, had occurred immediately before the particular disposition. Meaning of ‘‘specified event’’
(1.6) For the purpose of subsection (1.5), a specified event associated with a security is (a) where the security is a share of the capital stock of a corporation, (i) a subdivision or consolidation of shares of the capital stock of the corporation, (ii) a reorganization of share capital of the corporation, and (iii) a stock dividend of the corporation; and (b) where the security is a unit of a mutual fund trust,
Impôt sur le re (i) a subdivision or consolidation of the units of the trust, and (ii) an issuance of units of the trust as payment, or in satisfaction of a person’s right to enforce payment, out of the trust’s income (determined before the application of subsection 104(6)) or out of the trust’s capital gains.
Definitions in subsection 7(7)
(1.7) The definitions in subsection 7(7) apply for the purposes of subsections (1.5) and (1.6). (6) Section 110 of the Act is amended by adding the following after subsection (2):
Charitable donation – proceeds of disposition of employee option securities
(2.1) Where a taxpayer, in exercising a right to acquire a security that a particular qualifying person has agreed to sell or issue to the taxpayer under an agreement referred to in subsection 7(1), directs a broker or dealer appointed or approved by the particular qualifying person (or by a qualifying person that does not deal at arm’s length with the particular qualifying person) to immediately dispose of the security and pay all or a portion of the proceeds of disposition of the security to a qualified donee, (a) if the payment is a gift, the taxpayer is deemed, for the purpose of paragraph (1)(d.01), to have disposed of the security by making a gift of the security to the qualified donee at the time the payment is made; and (b) the amount deductible under paragraph (1)(d.01) by the taxpayer in respect of the disposition of the security is the amount determined by the formula A x B/C where A is the amount that would be deductible under paragraph (1)(d.01) in respect of the disposition of the security if this subsection were read without reference to this paragraph, B is the amount of the payment, and C is the amount of the proceeds of disposition of the security.
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(7) Subsections (1), (3) and (6) apply to the 2000 and subsequent taxation years except that, for the 2000 taxation year, (a) the reference to the fraction ‘‘1/2’’ in the portion of paragraph 110(1)(d) of the Act before subparagraph 110(1)(d)(i), as enacted by subsection (1), shall be read as a reference to (i) the fraction ‘‘1/4’’, if the transaction, event or circumstance as a result of which a benefit is deemed by subsection 7(1) of the Act, as enacted by subsection 2(1), to have been received by a taxpayer occurred before February 28, 2000, and (ii) the fraction ‘‘1/3’’, if the transaction, event or circumstance as a result of which a benefit is deemed by subsection 7(1) of the Act, as enacted by subsection 2(1), to have been received by a taxpayer occurred after February 27, 2000 and before October 18, 2000; and (b) the reference to the fraction ‘‘1/4’’ in the portion of paragraph 110(1)(d.01) of the Act before subparagraph 110(1)(d.01)(i), as enacted by subsection (3), shall be read as a reference to the fraction ‘‘1/3’’ if the transaction, event or circumstance as a result of which a benefit is deemed by subsection 7(1) of the Act, as enacted by subsection 2(1), to have been received by a taxpayer occurred after February 27, 2000 and before October 18, 2000. (8) Subsections (2) and (5) apply to the 1998 and subsequent taxation years. (9) Subsection (4) applies in respect of dispositions and exchanges that occur after February 27, 2000 except that, for dispositions and exchanges that occurred after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘1/2’’ in paragraphs 110(1)(d.1) to (d.3) of the Act, as enacted by subsection (4), shall be read as a reference to the fraction ‘‘1/3’’.
Impôt sur le re 85. (1) The portion of paragraph 110.1(1)(d) of the Act before subparagraph (i) is replaced by the following:
Ecological gifts
(d) the total of all amounts each of which is the fair market value of a gift of land, including a servitude for the use and benefit of a dominant land, a covenant or an easement, the fair market value of which is certified by the Minister of the Environment and that is certified by that Minister, or by a person designated by that Minister, to be ecologically sensitive land, the conservation and protection of which is, in the opinion of that Minister, or that person, important to the preservation of Canada’s environmental heritage, which gift was made by the corporation in the year or in any of the five preceding taxation years to
(2) Subsection 110.1(2) of the Act is replaced by the following: Proof of gift
(2) A gift shall not be included for the purpose of determining a deduction under subsection (1) unless the making of the gift is proven by filing with the Minister (a) a receipt for the gift that contains prescribed information; (b) in the case of a gift described in paragraph (1)(c), the certificate issued under subsection 33(1) of the Cultural Property Export and Import Act; and (c) in the case of a gift described in paragraph (1)(d), both certificates referred to in that paragraph. (3) The portion of subsection 110.1(3) of the Act after paragraph (b) is replaced by the following: such amount, not greater than the fair market value otherwise determined and not less than the adjusted cost base to the corporation of the property at that time, as the corporation designates in its return of income under section 150 for the year in which the gift is made is, if the making of the gift is proven by filing with the Minister a receipt containing prescribed in���
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formation, deemed to be its proceeds of disposition of the property and, for the purposes of subsection (1), the fair market value of the gift made by the corporation.
(4) Subsection 110.1(5) of the Act is replaced by the following: Ecological gifts
(5) For the purposes of applying subparagraph 69(1)(b)(ii), section 207.31 and this section in respect of a gift described in paragraph (1)(d) that is made by a taxpayer and that is a servitude, covenant or easement to which land is subject, the greater of (a) the fair market value otherwise determined of the gift, and (b) the amount by which the fair market value of the land is reduced as a result of the making of the gift is deemed to be the fair market value (or, for the purpose of subsection (3), the fair market value otherwise determined) of the gift at the time the gift was made and, subject to subsection (3), to be the taxpayer’s proceeds of disposition of the gift. (5) Subsection 110.1(5) of the Act, as enacted by subsection (4), is replaced by the following:
Ecological gifts
(5) For the purposes of applying subparagraph 69(1)(b)(ii), this section and section 207.31 in respect of a gift described in paragraph (1)(d) that is made by a taxpayer, the amount that is the fair market value (or, for the purpose of subsection (3), the fair market value otherwise determined) of the gift at the time the gift was made and, subject to subsection (3), the taxpayer’s proceeds of disposition of the gift, is deemed to be the amount determined by the Minister of the Environment to be (a) where the gift is land, the fair market value of the gift; or (b) where the gift is a servitude, covenant or easement to which land is subject, the greater of
Impôt sur le re (i) the fair market value otherwise determined of the gift, and (ii) the amount by which the fair market value of the land is reduced as a result of the making of the gift. (6) Subsections (1), (2) and (5) apply in respect of gifts made after February 27, 2000, except that subsection 110.1(2) of the Act, as enacted by subsection (2), shall be read without reference to paragraph 110.1(2)(b) in respect of gifts made before December 21, 2000. (7) Subsection (3) applies in respect of gifts made after February 27, 1995. (8) Subsection (4) applies in respect of gifts made after February 27, 1995 and before February 28, 2000. 86. (1) Subparagraph (a)(ii) of the definition ‘‘investment expense’’ in subsection 110.6(1) of the Act is replaced by the following: (ii) paragraph 20(1)(j) or subsection 65(1), 66(4), 66.1(3), 66.2(2), 66.21(4) or 66.4(2), (2) Paragraph (d) of the definition ‘‘investment expense’’ in subsection 110.6(1) of the Act is replaced by the following: (d) 50% of the total of all amounts each of which is an amount deducted under subsection 66(4), 66.1(3), 66.2(2), 66.21(4) or 66.4(2) in computing the individual’s income for the year in respect of expenses (i) incurred and renounced under subsection 66(12.6), (12.601), (12.62) or (12.64) by a corporation, or (ii) incurred by a partnership of which the individual was a specified member in the fiscal period of the partnership in which the expense was incurred, and (3) Paragraph 110.6(2)(a) of the Act is replaced by the following: (a) the amount determined by the formula [$250,000 - (A + B + C + D)] x E
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where A is the total of all amounts each of which is an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that ended before 1988, B is the total of all amounts each of which is (i) 3/4 of an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that ended after 1987 and before 1990 (other than amounts deducted under this section for a taxation year in respect of an amount that was included in computing an individual’s income for that year because of subparagraph 14(1)(a)(v) as that subparagraph applied for taxation years that ended before February 28, 2000), or (ii) 3/4 of an amount deducted under this section in computing the individual’s taxable income for a preceding taxation year that began after February 27, 2000 and ended before October 18, 2000, C is 2/3 of the total of all amounts each of which is an amount deducted under this section in computing the individual’s taxable income (i) for a preceding taxation year that ended after 1989 and before February 28, 2000, or (ii) in respect of an amount that was included because of subparagraph 14(1)(a)(v) (as that subparagraph applied for taxation years that ended before February 28, 2000) in computing the individual’s income for a taxation year that began after 1987 and ended before 1990, D is the product obtained when the reciprocal of the fraction determined for E that applied to the taxpayer for a preceding taxation year that began before and included February 28, 2000 or October 17, 2000 is multiplied by the
Impôt sur le re amount deducted under this subsection in computing the individual’s taxable income for that preceding year, and E is (i) in the case of a taxation year that includes February 28, 2000 or October 17, 2000, the amount determined by the formula 2 x (F + G)/H where F is the amount deemed by subsection 14(1.1) to be a taxable capital gain of the taxpayer for the taxation year, G is the amount by which the amount determined in respect of the taxpayer for the year under paragraph 3(b) exceeds the amount determined for F, and H is the total of (A) the amount deemed by subsection 14(1.1) to be a taxable capital gain of the taxpayer for the taxation year multiplied by (I) where that amount is determined by reference to paragraph 14(1.1)(a), the reciprocal of the fraction obtained by multiplying the fraction 3/4 by the fraction in paragraph 14(1)(b) that applies to the taxpayer for the taxation year, (II) where that amount is determined by reference to paragraph 14(1.1)(b), and the taxation year does not end after February 27, 2000 and before October 18, 2000, 2, and (III) where that amount is determined by reference to paragraph 14(1.1)(b), and the taxation year ends after February 27, 2000 and before October 18, 2000, 3/2, and (B) the amount determined for G multiplied by the reciprocal of the fraction in paragraph 38(a) that applies to the taxpayer for the taxation year, and (ii) in any other case, 1,
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(4) Paragraph 110.6(2.1)(a) of the Act is replaced by the following: (a) the amount determined by the formula in paragraph (2)(a) in respect of the individual for the year, (5) Subsection 110.6(4) of the Act is replaced by the following: Maximum capital gains deduction
(4) Notwithstanding subsection (2) and (2.1), the total amount that may be deducted under this section in computing an individual’s income for a taxation year shall not exceed the amount determined by the formula in paragraph (2)(a) in respect of the individual for the year. (6) The portion of subsection 110.6(12) of the Act before paragraph (a) is replaced by the following:
Trust deduction
(12) Notwithstanding any other provision of this Act, a trust described in paragraph 104(4)(a) or (a.1) (other than a trust that elected under subsection 104(5.3), an alter ego trust or a joint spousal or common-law partner trust) may, in computing its taxable income for its taxation year that includes the day determined under paragraph 104(4)(a) or (a.1), as the case may be, in respect of the trust, deduct under this section an amount equal to the least of (7) Paragraph 110.6(12)(c) of the Act is replaced by the following: (c) the amount, if any, by which the amount determined by the formula in paragraph (2)(a) in respect of the taxpayer’s spouse or common-law partner for the taxation year in which that spouse or common-law partner died exceeds the amount deducted under this section for that taxation year by that spouse or common-law partner.
Impôt sur le re (8) Subsections (1) and (2) apply to taxation years that begin after 2000. (9) Subsections (3) to (5) apply to taxation years that end after February 27, 2000. (10) Subsection (6) applies to the 2000 and subsequent taxation years. (11) Subsection (7) applies to taxation years that end after February 27, 2000, except that the amount determined under paragraph 110.6(12)(c) of the Act, as enacted by subsection (7), in computing a trust’s taxable income for its particular taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, is deemed to be equal to the amount determined under that paragraph (without reference to this subsection) multiplied by the quotient obtained when the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the trust for its particular year is divided by the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer’s spouse or common-law partner for the taxation year in which the spouse or common-law partner died. 87. (1) Subclause 111(1)(e)(ii)(C)(I) of the Act is replaced by the following: (I) the foreign resource pool expenses, if any, incurred by the partnership in that fiscal period,
(2) The description of E in the definition ‘‘non-capital loss’’ in subsection 111(8) of the Act is replaced by the following: E is the total of all amounts each of which is the taxpayer’s loss for the year from an office, employment, business or property, the taxpayer’s allowable business investment loss for the year, an amount deducted
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Income Ta under paragraph (1)(b) or section 110.6 in computing the taxpayer’s taxable income for the year or an amount that may be deducted under any of paragraphs 110(1)(d) to (d.3), (f), (j) and (k), section 112 and subsections 113(1) and 138(6) in computing the taxpayer’s taxable income for the year, and
(3) The description of B in the definition ‘‘non-capital loss’’ in subsection 111(8) of the Act is replaced by the following: B is the amount, if any, determined in respect of the taxpayer for the year under section 110.5 or subparagraph 115(1)(a)(vii), (4) The first formula in the definition ‘‘pre-1986 capital loss balance’’ in subsection 111(8) of the Act is replaced by the following: (A + B) - (C + D + E + E.1) (5) The portion of the definition ‘‘pre-1986 capital loss balance’’ in subsection 111(8) of the Act after the description of B is replaced by the following: C is the total of all amounts deducted under section 110.6 in computing the individual’s taxable income for taxation years that end before 1988 or after October 17, 2000, D is 3/4 of the total of all amounts each of which is an amount deducted under section 110.6 in computing the individual’s taxable income for a taxation year, preceding the particular year, that (a) ended after 1987 and before 1990, or (b) began after February 27, 2000 and ended before October 18, 2000, E is 2/3 of the total of all amounts deducted under section 110.6 in com2001
Impôt sur le re puting the individual’s taxable income for taxation years, preceding the particular year, that ended after 1989 and before February 28, 2000, and E.1is the amount determined by the formula J x (0.5/K) where J
is the amount deducted by the individual under section 110.6 for a taxation year of the individual, preceding the particular year, that includes February 28, 2000 or October 17, 2000, and
K is the fraction in paragraph 38(a) that applies to the individual for the individual’s taxation year referred to in the description of J.
(6) Paragraph 111(9)(a) of the Act is replaced by the following: (a) in the part of the year throughout which the taxpayer was non-resident, if section 114 applies to the taxpayer in respect of the year, and (7) Subsection (1) applies to taxation years that begin after 2000. (8) Subsection (2) applies to the 2000 and subsequent taxation years. (9) Subsection (3) applies after June 27, 1999. (10) Subsections (4) and (5) apply to taxation years that end after February 27, 2000. (11) Subsection (6) applies to the 1998 and subsequent taxation years.
Guaranteed shares
88. (1) Subsection 112(2.2) of the Act is replaced by the following: (2.2) No deduction may be made under subsection (1), (2) or 138(6) in computing the taxable income of a particular corporation in respect of a dividend received on a share of the capital stock of a corporation that was issued after 8:00 p.m. Eastern Daylight Saving Time, June 18, 1987 where
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(a) a person or partnership (in this subsection and subsection (2.21) referred to as the ‘‘guarantor’’) that is a specified financial institution or a specified person in relation to any such institution, but that is not the issuer of the share or an individual other than a trust, is, at or immediately before the time the dividend is paid, obligated, either absolutely or contingently and either immediately or in the future, to effect any undertaking (in this subsection and subsections (2.21) and (2.22) referred to as a ‘‘guarantee agreement’’), including any guarantee, covenant or agreement to purchase or repurchase the share and including the lending of funds to or the placing of amounts on deposit with, or on behalf of, the particular corporation or any specified person in relation to the particular corporation given to ensure that (i) any loss that the particular corporation or a specified person in relation to the particular corporation may sustain by reason of the ownership, holding or disposition of the share or any other property is limited in any respect, or (ii) the particular corporation or a specified person in relation to the particular corporation will derive earnings by reason of the ownership, holding or disposition of the share or any other property; and (b) the guarantee agreement was given as part of a transaction or event or a series of transactions or events that included the issuance of the share. Exceptions
(2.21) Subsection (2.2) does not apply to a dividend received by a particular corporation on (a) a share that is at the time the dividend is received a share described in paragraph (e) of the definition ‘‘term preferred share’’ in subsection 248(1); (b) a grandfathered share, a taxable preferred share issued before December 16, 1987 or a prescribed share; (c) a taxable preferred share issued after December 15, 1987 and of a class of the
Impôt sur le re capital stock of a corporation that is listed on a prescribed stock exchange where all guarantee agreements in respect of the share were given by one or more of the issuer of the share and persons that are related (otherwise than because of a right referred to in paragraph 251(5)(b)) to the issuer unless, at the time the dividend is paid to the particular corporation, dividends in respect of more than 10 per cent of the issued and outstanding shares to which the guarantee agreement applies are paid to the particular corporation or the particular corporation and specified persons in relation to the particular corporation; or (d) a share (i) that was not acquired by the particular corporation in the ordinary course of its business, (ii) in respect of which the guarantee agreement was not given in the ordinary course of the guarantor’s business, and (iii) the issuer of which is, at the time the dividend is paid, related (otherwise than because of a right referred to in paragraph 251(5)(b)) to both the particular corporation and the guarantor.
Interpretation
(2.22) For the purposes of subsections (2.2) and (2.21), (a) where a guarantee agreement in respect of a share is given at any particular time after 8:00 p.m. Eastern Daylight Saving Time, June 18, 1987, otherwise than under a written arrangement to do so entered into before 8:00 p.m. Eastern Daylight Saving Time, June 18, 1987, the share is deemed to have been issued at the particular time and the guarantee agreement is deemed to have been given as part of a series of transactions that included the issuance of the share; and (b) ‘‘specified person’’ has the meaning assigned by paragraph (h) of the definition ‘‘taxable preferred share’’ in subsection 248(1).
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(2) Subparagraphs 112(3.2)(a)(iii) and (3.3)(a)(iii) of the Act are amended by replacing the reference to the fraction ‘‘1/4’’ with a reference to the fraction ‘‘1/2’’. (3) Subsection (1) applies in respect of dividends received after 1998. (4) Subsection (2) applies to dispositions that occur after February 27, 2000 except that, for dispositions that occurred before October 18, 2000, the reference to the fraction ‘‘1/2’’ in subparagraphs 112(3.2)(a)(iii) and (3.3)(a)(iii) of the Act, as enacted by subsection (2), shall be read as a reference to the fraction ‘‘1/3’’. 89. (1) Sections 114 and 114.1 of the Act are replaced by the following: Individual resident in Canada for only part of year
114. Notwithstanding subsection 2(2), the taxable income for a taxation year of an individual who is resident in Canada throughout part of the year and non-resident throughout another part of the year is the amount, if any, by which (a) the amount that would be the individual’s income for the year if the individual had no income or losses, for the part of the year throughout which the individual was nonresident, other than (i) income or losses described in paragraphs 115(1)(a) to (c), and (ii) income that would have been included in the individual’s taxable income earned in Canada for the year under subparagraph 115(1)(a)(v) if the part of the year throughout which the individual was non-resident were the whole taxation year, exceeds the total of (b) the deductions permitted by subsection 111(1) and, to the extent that they relate to amounts included in computing the amount determined under paragraph (a), the deductions permitted by any of paragraphs 110(1)(d) to (d.2) and (f), and (c) any other deduction permitted for the purpose of computing taxable income to the extent that
Impôt sur le re (i) it can reasonably be considered to be applicable to the part of the year throughout which the individual was resident in Canada, or (ii) if all or substantially all of the individual’s income for the part of the year throughout which the individual was non-resident is included in the amount determined under paragraph (a), it can reasonably be considered to be applicable to that part of the year. (2) Subsection (1) applies to the 1998 and subsequent taxation years. 90. (1) Subparagraph 115(1)(a)(i) of the Act is replaced by the following: (i) incomes from the duties of offices and employments performed by the non-resident person in Canada and, if the person was resident in Canada at the time the person performed the duties, outside Canada, (2) Subparagraph 115(1)(a)(ii) of the Act is replaced by the following: (ii) incomes from businesses carried on by the non-resident person in Canada which, in the case of the Canadian banking business of an authorized foreign bank, is, subject to this Part, the profit from that business computed using the bank’s branch financial statements (within the meaning assigned by subsection 20.2(1), (3) Paragraph 115(1)(a) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (v), by adding the word ‘‘and’’ at the end of subparagraph (vi) and by adding the following after subparagraph (vi): (vii) in the case of an authorized foreign bank, the amount claimed by the bank to the extent that the inclusion of the amount in income (A) increases any amount deductible by the bank under subsection 126(1) for the year, and (B) does not increase an amount deductible by the bank under section 127 for the year,
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(4) Paragraphs 115(1)(b) and (b.1) of the Act are replaced by the following: (b) the only taxable capital gains and allowable capital losses referred to in paragraph 3(b) were taxable capital gains and allowable capital losses from dispositions of taxable Canadian properties (other than treaty-protected properties), and (5) Paragraph 115(1)(d) of the Act is replaced by the following: (d) the deductions permitted by subsection 111(1) and, to the extent that they relate to amounts included in computing the amount determined under any of paragraphs (a) to (c), the deductions permitted by any of paragraphs 110(1)(d) to (d.2) and (f) and subsection 110.1(1), (6) Subsection 115(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (e) and by adding the following after paragraph (e): (e.1) the deduction permitted by subsection (4.1), and (7) Paragraphs 115(2)(b) and (b.1) of the Act are replaced by the following: (b) a student attending, or a teacher teaching at, an educational institution outside Canada that is a university, college or other educational institution providing courses at a post-secondary school level, who in any preceding taxation year ceased to be resident in Canada in the course of or subsequent to moving to attend or to teach at the institution, (b.1) an individual who in any preceding taxation year ceased to be resident in Canada in the course of or subsequent to moving to carry on research or any similar work under a grant received by the individual to enable the individual to carry on the research or work, (8) Section 115 of the Act is amended by adding the following after subsection (2):
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Non-resident actors
(2.1) Notwithstanding subsection (1), where a non-resident person is liable to tax under subsection 212(5.1), or would if this Act were read without reference to subsection 212(5.2) be so liable, in respect of an amount paid, credited or provided in a particular taxation year, the amount shall not be included in computing the non-resident person’s taxable income earned in Canada for any taxation year unless a valid election is made under subsection 216.1(1) in respect of the non-resident person for the particular year.
Deferred payment by actor’s corporation
(2.2) Where a corporation is liable to tax under subsection 212(5.1) in respect of a corporation payment (within the meaning assigned by subsection 212(5.2)) made in a taxation year in respect of an actor and, in a subsequent year, the corporation makes an actor payment (within the meaning assigned by subsection 212(5.2)) to or for the benefit of the actor, the amount of the actor payment is not deductible in computing the income of the corporation for any taxation year and is not included in computing the taxable income earned in Canada of the actor for any taxation year. (9) Subsection 115(3) of the Act is repealed. (10) Section 115 of the Act is amended by adding the following after subsection (4):
Foreign resource pool expenses
(4.1) Where a taxpayer ceases at any time after February 27, 2000 to be resident in Canada, a particular taxation year of the taxpayer ends after that time and the taxpayer was non-resident throughout the period (in this subsection referred to as the ‘‘non-resident period’’) that begins at that time and ends at the end of the particular year, (a) in computing the taxpayer’s taxable income earned in Canada for the particular year, there may be deducted each amount that would be permitted to be deducted in computing the taxpayer’s income for the particular year under subsection 66(4) or 66.21(4) if (i) subsection 66(4) were read without reference to the words ‘‘who is resident
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(b) an amount deducted under this subsection in computing the taxpayer’s taxable income earned in Canada for the particular year is deemed, for the purpose of applying subsection 66(4) or 66.21(4), as the case may be, to a subsequent taxation year, to have been deducted in computing the taxpayer’s income for the particular year.
(11) Subsections (1) and (7) apply to the 1998 and subsequent taxation years except that, if an individual who ceased at any time after 1992 and before October 2, 1996 to be resident in Canada elects under subsection 124(1) in respect of that cessation of residence, subparagraph 115(1)(a)(i) of the Act, as enacted by subsection (1), applies to income received by the individual after that cessation of residence. (12) Subsections (2) and (3) apply after June 27, 1999. (13) Subsections (4) and (9) apply after October 1, 1996 except that, in its application to dispositions that occurred before the 1998 taxation year, paragraph 115(1)(b) of the Act, as enacted by subsection (4), shall be read as follows: (b) the only taxable capital gains and allowable capital losses referred to in paragraph 3(b) were taxable capital gains and allowable capital losses from dispositions of taxable Canadian properties, and (14) Subsection (5) applies to the 2000 and subsequent taxation years.
Impôt sur le re (15) Subsections (6) and (10) apply to taxation years that begin after February 27, 2000. (16) Subsection (8) applies in respect of amounts paid, credited or provided after 2000. 91. (1) The portion of subsection 116(1) of the Act before paragraph (a) is replaced by the following:
Disposition by non-resident person of certain property
116. (1) If a non-resident person proposes to dispose of any taxable Canadian property (other than property described in subsection (5.2) and excluded property) the non-resident person may, at any time before the disposition, send to the Minister a notice setting out (2) Subsections 116(2), (4) and (5) of the Act are amended by replacing the reference to the percentage ‘‘33 1/3%’’ with a reference to the percentage ‘‘25%’’. (3) The portion of subsection 116(5.1) of the Act before paragraph (a) is replaced by the following:
Gifts, etc.
(5.1) If a non-resident person has disposed of or proposes to dispose of a life insurance policy in Canada, a Canadian resource property or a taxable Canadian property other than (4) The portion of subsection 116(5.2) of the Act before paragraph (a) is replaced by the following:
Certificates for dispositions
(5.2) If a non-resident person has, in respect of a disposition or proposed disposition to a taxpayer in a taxation year of property (other than excluded property) that is a life insurance policy in Canada, a Canadian resource property, a property (other than capital property) that is real property situated in Canada, a timber resource property, depreciable property that is a taxable Canadian property or any interest in or option in respect of a property to which this subsection applies (whether or not that property exists),
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(5) Paragraphs 116(6)(a) and (b) of the Act are replaced by the following: (a) a property that is a taxable Canadian property solely because a provision of this Act deems it to be a taxable Canadian property; (a.1) a property (other than real property situated in Canada, a Canadian resource property or a timber resource property) that is described in an inventory of a business carried on in Canada by the person; (b) a share of a class of shares of the capital stock of a corporation that is listed on a prescribed stock exchange; (6) Subsection 116(6) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (d) and by replacing paragraph (e) with the following: (e) property of a non-resident insurer that (i) is licensed or otherwise authorized under the laws of Canada or a province to carry on an insurance business in Canada, and (ii) carries on an insurance business, within the meaning of subsection 138(1) of the Act, in Canada; (f) property of an authorized foreign bank that is used or held in the course of the bank’s Canadian banking business; (g) an option in respect of property referred to in any of paragraphs (a) to (f) whether or not such property is in existence; and (h) an interest in property referred to in any of paragraphs (a) to (g). (7) Subsections (1), (3) and (4) and paragraphs 116(6)(a) and (a.1) of the Act, as enacted by subsection (5), apply after October 1, 1996. (8) Subsection (2) applies to taxation years that end after February 27, 2000 except that, for a taxation year that ended after February 27, 2000 and before October 18, 2000, the reference in subsections
Impôt sur le re 116(2), (4) and (5) of the Act, as enacted by subsection (2), to the percentage ‘‘25%’’ shall be read as a reference to the percentage ‘‘30%’’. (9) Paragraph 116(6)(b) of the Act, as enacted by subsection (5), and subsection (6) apply after June 27, 1999. 92. (1) Subsection 117(2) of the Act is replaced by the following:
Rate for 2000
(2) The tax payable under this Part by an individual on the individual’s taxable income or taxable income earned in Canada, as the case may be, (in this subdivision referred to as the ‘‘amount taxable’’) for the 2000 taxation year is (a) 17% of the amount taxable, if the amount taxable does not exceed $30,004; (b) $5,101 plus 25% of the amount by which the amount taxable exceeds $30,004, if the amount taxable exceeds $30,004 and does not exceed $60,009; and (c) $12,602 plus 29% of the amount by which the amount taxable exceeds $60,009, if the amount taxable exceeds $60,009. (2) Subsection 117(2) of the Act, as enacted by subsection (1), is replaced by the following:
Rates for years after 2000
(2) The tax payable under this Part by an individual on the individual’s taxable income or taxable income earned in Canada, as the case may be, (in this subdivision referred to as the ‘‘amount taxable’’) for a taxation year is (a) 16% of the amount taxable, if the amount taxable does not exceed $30,754; (b) $4,921 plus 22% of the amount by which the amount taxable exceeds $30,754, if the amount taxable exceeds $30,754 and does not exceed $61,509; (b.1) $11,687 plus 26% of the amount by which the amount taxable exceeds $61,509, if the amount taxable exceeds $61,509 and does not exceed $100,000; and (c) $21,695 plus 29% of the amount by which the amount taxable exceeds $100,000, if the amount taxable exceeds $100,000.
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(3) Each of the amounts of $30,754, $61,509 and $100,000 referred to in subsection (2) is deemed, for the purposes of applying subsection (2) to the 2004 taxation year, to be the greater of (a) the amount that would be used for the 2004 taxation year if this section were read without reference to this subsection, and (b) in the case of (i) the amount of $30,754, $35,000, (ii) the amount of $61,509, $70,000, and (iii) the amount of $100,000, $113,804. (3) Subsection (1) applies to the 2000 taxation year. (4) Subsection 117(2) of the Act, as enacted by subsection (2), applies to the 2001 and subsequent taxation years. 93. (1) Clause (c.1)(ii)(B) of the description of B in subsection 118(1) of the Act is replaced by the following: (B) resident in Canada and is the parent, grandparent, brother, sister, aunt, uncle, nephew or niece of the individual or of the individual’s spouse or common-law partner, and (2) The portion of paragraph 118(1)(c.1) of the Act after subparagraph (iii) is replaced by the following: the amount determined by the formula $15,453 - D.1 where D.1 is the greater of $11,953 and the particular person’s income for the year, (3) The portion of paragraph 118(1)(d) of the Act after subparagraph (ii) is replaced by the following: the amount determined by the formula $8,466 - E where E is the greater of $4,966 and the dependant’s income for the year, and
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(4) Section 118 of the Act is amended by adding the following after subsection (3): Minimum amounts for 2004
(3.1) Each of the amounts of $7,131, $6,055 and $606 referred to in paragraphs (a) to (c) of the description of B in subsection (1) is deemed, for the 2004 taxation year, to be the greater of (a) the amount in respect thereof that would be used for that year if this section were read without reference to this subsection, and (b) in the case of (i) the amounts of $7,131, $8,000, (ii) the amounts of $6,055, $6,800, and (iii) the amounts of $606, $680. (5) Subsection (1) applies to the 1998 and subsequent taxation years, except that clause (c.1)(ii)(B) of the description of B in subsection 118(1) of the Act, as enacted by subsection (1), shall be read without reference to ‘‘or common-law partner’’ for any taxation year that ends before 2001 unless a valid election is made by the taxpayer under section 144 of the Modernization of Benefits and Obligations Act, that that Act apply to the taxpayer in respect of one or more taxation years that includes the year.
(6) Subsections (2) and (3) apply to the 2001 and subsequent taxation years. 94. (1) The portion of the definition ‘‘total ecological gifts’’ in subsection 118.1(1) of the Act before paragraph (a) is replaced by the following: ‘‘total ecological gifts’’ « total des dons de biens écosensibles »
‘‘total ecological gifts’’ of an individual for a taxation year means the total of all amounts each of which is the fair market value of a gift (other than a gift the fair market value of which is included in the total cultural gifts of the individual for the year) of land, including a servitude for the use and benefit
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of a dominant land, a covenant or an easement, the fair market value of which is certified by the Minister of the Environment and that is certified by that Minister, or a person designated by that Minister, to be ecologically sensitive land, the conservation and protection of which is, in the opinion of that Minister, or that person, important to the preservation of Canada’s environmental heritage, which gift was made by the individual in the year or in any of the five immediately preceding taxation years to
(2) Subsection 118.1(2) of the Act is replaced by the following: Proof of gift
(2) A gift shall not be included in the total charitable gifts, total Crown gifts, total cultural gifts or total ecological gifts of an individual unless the making of the gift is proven by filing with the Minister (a) a receipt for the gift that contains prescribed information; (b) in the case of a gift described in the definition ‘‘total cultural gifts’’ in subsection (1), the certificate issued under subsection 33(1) of the Cultural Property Export and Import Act; and (c) in the case of a gift described in the definition ‘‘total ecological gifts’’ in subsection (1), both certificates referred to in that definition. (3) Subsection 118.1(4) of the Act is replaced by the following:
Gift in year of death
(4) Subject to subsection (13), a gift made by an individual in the particular taxation year in which the individual dies (including, for greater certainty, a gift otherwise deemed by subsection (5), (5.2), (5.3), (7), (7.1), (13) or (15) to have been so made) is deemed, for the
Impôt sur le re purpose of this section other than this subsection, to have been made by the individual in the preceding taxation year, and not in the particular year, to the extent that an amount in respect of the gift is not deducted in computing the individual’s tax payable under this Part for the particular year.
(4) Section 118.1 of the Act is amended by adding the following after subsection (5):
Direct designation — insurance proceeds
(5.1) Subsection (5.2) applies to an individual in respect of a life insurance policy where (a) the policy is a life insurance policy under which, immediately before the individual’s death, the individual’s life was insured; (b) a transfer of money, or a transfer by means of a negotiable instrument, is made as a consequence of the individual’s death and solely because of the obligations under the policy, from an insurer to a qualified donee (other than a transfer the amount of which is not included in computing the income of the individual or the individual’s estate for any taxation year but would have been included in computing the income of the individual or the individual’s estate for a taxation year if the transfer had been made to the individual’s legal representative for the benefit of the individual’s estate and this Act were read without reference to subsection 70(3)); (c) immediately before the individual’s death, (i) the individual’s consent would have been required to change the recipient of the transfer described in paragraph (b), and (ii) the donee was neither a policyholder under the policy, nor an assignee of the individual’s interest under the policy; and (d) the transfer occurs within the 36 month period that begins at the time of the death (or, where written application to extend the
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period has been made to the Minister by the individual’s legal representative, within such longer period as the Minister considers reasonable in the circumstances). Deemed gift — subsection (5.1)
(5.2) Where this subsection applies, (a) for the purpose of this section (other than subsection (5.1) and this paragraph), the transfer described in subsection (5.1) is deemed to be a gift made, immediately before the individual’s death, by the individual to the qualified donee referred to in subsection (5.1); and (b) the fair market value of the gift is deemed to be the fair market value, at the time of the individual’s death, of the right to that transfer (determined without reference to any risk of default with regard to obligations of the insurer).
Direct designation — RRSPs and RRIFs
(5.3) Where as a consequence of an individual’s death, a transfer of money, or a transfer by means of a negotiable instrument, is made, from a registered retirement savings plan or registered retirement income fund (other than a plan or fund of which a licensed annuities provider is the issuer or carrier, as the case may be) to a qualified donee, solely because of the donee’s interest as a beneficiary under the plan or fund, the individual was the annuitant (within the meaning assigned by subsection 146(1) or 146.3(1)) under the plan or fund immediately before the individual’s death and the transfer occurs within the 36-month period that begins at the time of the death (or, where written application to extend the period has been made to the Minister by the individual’s legal representative, within such longer period as the Minister considers reasonable in the circumstances), (a) for the purposes of this section (other than this paragraph), the transfer is deemed to be a gift made, immediately before the individual’s death, by the individual to the donee; and
Impôt sur le re (b) the fair market value of the gift is deemed to be the fair market value, at the time of the individual’s death, of the right to the transfer (determined without reference to any risk of default with regard to the obligations of the issuer of the plan or the carrier of the fund). (5) The portion of subsection 118.1(6) of the Act after paragraph (b) is replaced by the following: and the fair market value of the property otherwise determined at that time exceeds its adjusted cost base to the individual, such amount, not greater than the fair market value and not less than the adjusted cost base to the individual of the property at that time, as the individual or the individual’s legal representative designates in the individual’s return of income under section 150 for the year in which the gift is made is, if the making of the gift is proven by filing with the Minister a receipt containing prescribed information, deemed to be the individual’s proceeds of disposition of the property and, for the purposes of subsection (1), the fair market value of the gift made by the individual.
(6) Subsections 118.1(7) and (7.1) of the Act are replaced by the following: Gifts of art
(7) Except where subsection (7.1) applies, where at any time, whether by the individual’s will or otherwise, an individual makes a gift described in the definition ‘‘total charitable gifts’’ or ‘‘total Crown gifts’’ in subsection (1) of a work of art that was (a) created by the individual and that is property in the individual’s inventory, or (b) acquired under circumstances where subsection 70(3) applied, and at that time the fair market value of the work of art exceeds its cost amount to the individual, the following rules apply: (c) where the gift is made as a consequence of the death of the individual, the gift is deemed to have been made immediately before the death, and
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(d) the amount, not greater than that fair market value at the time the gift is made and not less than the cost amount of the property to the individual, that is designated in the individual’s return of income under section 150 for the year in which the gift is made is, if the making of the gift is proven by filing with the Minister a receipt containing prescribed information, deemed to be the individual’s proceeds of disposition of the work of art and, for the purposes of subsection (1), the fair market value of the gift made by the individual. Gifts of cultural property
(7.1) Where at any particular time, whether by the individual’s will or otherwise, an individual makes a gift described in the definition ‘‘total cultural gifts’’ in subsection (1) of a work of art that was (a) created by the individual and that is property in the individual’s inventory, or (b) acquired under circumstances where subsection 70(3) applied, and at that time the fair market value of the work of art exceeds its cost amount to the individual, the following rules apply: (c) where the gift is made as a consequence of the death of the individual, the individual is deemed to have made the gift immediately before the death, and (d) the individual is deemed to have received at the particular time proceeds of disposition in respect of the gift equal to its cost amount to the individual at that time. (7) Subsection 118.1(10.1) of the Act is replaced by the following:
Determination of fair market value
(10.1) For the purposes of subparagraph 69(1)(b)(ii), subsection 70(5) and sections 110.1, 207.31 and this section, where at any time the Canadian Cultural Property Export Review Board or the Minister of the Environment determines or redetermines an amount to be the fair market value of a property that is the subject of a gift described in paragraph 110.1(1)(a), or in the definition ‘‘total charitable gifts’’ in subsection (1), made by a taxpayer within the two-year period that begins at that time, an amount equal to the last
Impôt sur le re amount so determined or redetermined within the period is deemed to be the fair market value of the gift at the time the gift was made and, subject to subsections (6), (7), (7.1) and 110.1(3), to be the taxpayer’s proceeds of disposition of the gift.
Request for determination by the Minister of the Environment
(10.2) Where a person disposes or proposes to dispose of a property that would, if the disposition were made and the certificates described in paragraph 110.1(1)(d) or in the definition ‘‘total ecological gifts’’ in subsection (1) were issued by the Minister of the Environment, be a gift described in those provisions, the person may request, by notice in writing to that Minister, a determination of the fair market value of the property.
Duty of Minister of the Environment
(10.3) In response to a request made under subsection (10.2), the Minister of the Environment shall with all due dispatch make a determination in accordance with subsection (12) or 110.1(5), as the case may be, of the fair market value of the property referred to in that request and give notice of the determination in writing to the person who has disposed of, or who proposes to dispose of, the property, except that no such determination shall be made if the request is received by that Minister after three years after the end of the person’s taxation year in which the disposition occurred.
Ecological gifts — redetermination
(10.4) Where the Minister of the Environment has, under subsection (10.3), notified a person of the amount determined by that Minister to be the fair market value of a property in respect of its disposition or proposed disposition, (a) that Minister shall, on receipt of a written request made by the person on or before the day that is 90 days after the day that the person was so notified of the first such determination, with all due dispatch confirm or redetermine the fair market value; (b) that Minister may, on that Minister’s own initiative, at any time redetermine the fair market value;
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(c) that Minister shall in either case notify the person in writing of that Minister’s confirmation or redetermination; and (d) any such redetermination is deemed to replace all preceding determinations and redeterminations of the fair market value of that property from the time at which the first such determination was made. Certificate of Fair Market Value
(10.5) Where the Minister of the Environment determines under subsection (10.3) the fair market value of a property, or redetermines that value under subsection (10.4), and the property has been disposed of to a qualified donee described in paragraph 110.1(1)(d) or in the definition ‘‘total ecological gifts’’ in subsection (1), that Minister shall issue to the person who made the disposition a certificate that states the fair market value of the property so determined or redetermined and, where more than one certificate has been so issued, the last certificate is deemed to replace all preceding certificates from the time at which the first certificate was issued. (8) Subsection 118.1(11) of the Act is replaced by the following:
Assessments
(11) Notwithstanding subsections 152(4) to (5), such assessments or reassessments of a taxpayer’s tax, interest or penalties payable under this Act for any taxation year shall be made as are necessary to give effect (a) to a certificate issued under subsection 33(1) of the Cultural Property Export and Import Act or to a decision of a court resulting from an appeal made pursuant to section 33.1 of that Act; or (b) to a certificate issued under subsection (10.5) or to a decision of a court resulting from an appeal made pursuant to subsection 169(1.1).
(9) Subsection 118.1(12) of the Act is replaced by the following: Ecological gifts
(12) For the purpose of applying subparagraph 69(1)(b)(ii), subsection 70(5), section 207.31 and this section in respect of a gift described in the definition ‘‘total ecological gifts’’ in subsection (1) that is made by a
Impôt sur le re taxpayer and that is a servitude, covenant or easement to which land is subject, the greater of (a) the fair market value otherwise determined of the gift, and (b) the amount by which the fair market value of the land is reduced as a result of the making of the gift is deemed to be the fair market value (or, for the purpose of subsection (6), the fair market value otherwise determined) of the gift at the time the gift was made and, subject to subsection (6), to be the taxpayer’s proceeds of disposition of the gift. (10) Subsection 118.1(12) of the Act, as enacted by subsection (9), is replaced by the following:
Ecological gifts
(12) For the purposes of applying subparagraph 69(1)(b)(ii), subsection 70(5), this section and section 207.31 in respect of a gift described in the definition ‘‘total ecological gifts’’ in subsection (1) that is made by an individual, the amount that is the fair market value (or, for the purpose of subsection (6), the fair market value otherwise determined) of the gift at the time the gift was made and, subject to subsection (6), the individual’s proceeds of disposition of the gift, is deemed to be the amount determined by the Minister of the Environment to be (a) where the gift is land, the fair market value of the gift; or (b) where the gift is a servitude, covenant or easement to which land is subject, the greater of (i) the fair market value otherwise determined of the gift, and (ii) the amount by which the fair market value of the land is reduced as a result of the making of the gift. (11) Subsections (1), (2), (7), (8) and (10) apply in respect of gifts made, or proposed to be made, after February 27, 2000 except that subsection 118.1(2) of the Act, as enacted by subsection (2), shall be read
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without reference to paragraph 118.1(2)(b) in respect of gifts made before December 21, 2000. (12) Subject to subsection (13), subsections (3) and (4) apply in respect of deaths that occur after 1998. (13) For taxation years before 2000, subsection 118.1(4) of the Act, as enacted by subsection (3), shall be read without reference to subsections 118.1(7) and (7.1) of the Act except that, where a taxpayer or a taxpayer’s legal representative notifies the Minister of National Revenue in writing before 2002 of the intention of the taxpayer or the taxpayer’s legal representative that this subsection apply in respect of a gift made after 1996 and before 2000, subsection 118.1(4) of the Act, as enacted by subsection (3), applies to the taxation year in which the gift was made and shall be read, in respect of the 1996 to 1998 taxation years, without reference to subsections 118.1(5.2) and (5.3) of the Act.
(14) Subsection (5) applies in respect of gifts made after February 27, 1995. (15) Subsection (6) applies to the 2000 and subsequent taxation years and, where a taxpayer or a taxpayer’s legal representative notifies the Minister of National Revenue in writing before 2002 of the intention of the taxpayer or the taxpayer’s legal representative that this subsection apply in respect of a gift made after 1996 and before 2000, subsection (6) applies to the taxation year in which the gift was made and, where paragraph 118.1(7)(d) of the Act, as enacted by subsection (6), applies, the amount designated in the notice in respect of the gift is deemed to have been validly designated for the purposes of that paragraph in the taxpayer’s return of income for the year in which the gift was made. (16) Subsection (9) applies in respect of gifts made after February 27, 1995 and before February 28, 2000.
Impôt sur le re 95. (1) Subsection 118.2(2) of the Act is amended by adding the following after paragraph (l.2): (l.21) for reasonable expenses, relating to the construction of the principal place of residence of the patient who lacks normal physical development or has a severe and prolonged mobility impairment, that can reasonably be considered to be incremental costs incurred to enable the patient to gain access to, or to be mobile or functional within, the patient’s principal place of residence;
(2) Subsection (1) applies to the 2000 and subsequent taxation years. 96. (1) The portion of subsection 118.3(1) of the French version of the Act before paragraph (a) is replaced by the following: Crédit d’impôt pour déficience mentale ou physique
118.3 (1) Un montant est déductible dans le calcul de l’impôt payable par un particulier en vertu de la présente partie pour une année d’imposition, si les conditions suivantes sont réunies : (2) Paragraph 118.3(1)(a.1) of the Act is replaced by the following: (a.1) the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy that (i) is essential to sustain a vital function of the individual, (ii) is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week, and (iii) cannot reasonably be expected to be of significant benefit to persons who are not so impaired,
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(3) The portion of paragraph 118.3(1)(a.2) of the French version of the Act before subparagraph (i) is replaced by the following: a.2) l’une des personnes suivantes atteste, sur le formulaire prescrit, qu’il s’agit d’une déficience mentale ou physique grave et prolongée dont les effets sont tels que la capacité du particulier d’accomplir une activité courante de la vie quotidienne est limitée de façon marquée ou le serait en l’absence des soins thérapeutiques mentionnés à l’alinéa a.1) : (4) Paragraph 118.3(1)(a.2) of the Act is amended by adding the following after subparagraph (i): (i.1) a speech impairment, a medical doctor or a speech-language pathologist, (5) The portion of paragraph 118.3(1)(a.2) of the English version of the Act after subparagraph (v) is replaced by the following: has certified in prescribed form that the impairment is a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy referred to in paragraph (a.1), (6) The portion of subsection 118.3(1) of the Act after paragraph (c) is replaced by the following: there may be deducted in computing the individual’s tax payable under this Part for the year the amount determined by the formula A x (B + C) where A is the appropriate percentage for the year, B is $6,000, and C is (a) where the individual has not attained the age of 18 years before the end of the year, the amount, if any, by which (i) $3,500 exceeds
Impôt sur le re (ii) the amount, if any, by which (A) the total of all amounts each of which is an amount paid in the year for the care or supervision of the individual and included in computing a deduction under section 63, 64 or 118.2 for a taxation year exceeds (B) $2,050, and (b) in any other case, zero. (7) Clause 118.3(2)(a)(i)(B) of the Act is replaced by the following: (B) paragraph (c.1) or (d) of that description where the person is a parent, grandparent, child, grandchild, brother, sister, aunt, uncle, nephew or niece of the individual, or of the individual’s spouse or common-law partner, or
(8) Subsection 118.3(4) of the Act is replaced by the following: Additional information
(4) Where a claim under this section or under section 118.8 is made in respect of an individual’s impairment (a) if the Minister requests in writing information with respect to the individual’s impairment, its effects on the individual and, where applicable, the therapy referred to in paragraph (1)(a.1) that is required to be administered, from any person referred to in subsection (1) or (2) or section 118.8 in connection with such a claim, that person shall provide the information so requested to the Minister in writing; and (b) if the information referred to in paragraph (a) is provided by a person referred to in paragraph (1)(a.2), the information so
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provided is deemed to be included in a certificate in prescribed form. (9) Subsections (1) to (3) and (5) to (8) apply to the 2000 and subsequent taxation years except that, in applying subsection (6) to the 2000 taxation year, the references to ‘‘$6,000’’, ‘‘$3,500’’ and ‘‘$2,050’’ in the descriptions of B and C in the formula in subsection 118.3(1) of the Act, as enacted by subsection (6), shall be read as references to ‘‘$4,293’’, ‘‘$2,941’’ and ‘‘$2,000’’, respectively. (10) Subsection (4) applies to certifications made after October 17, 2000. 97. (1) The portion of subsection 118.4(2) of the Act before paragraph (a) is replaced by the following: Reference to medical practitioners, etc.
(2) For the purposes of sections 63, 118.2, 118.3 and 118.6, a reference to an audiologist, dentist, medical doctor, medical practitioner, nurse, occupational therapist, optometrist, pharmacist, psychologist or speech-language pathologist is a reference to a person authorized to practise as such, (2) Subsection (1) applies to certifications made after October 17, 2000. 98. (1) The portion of subsection 118.6(1) of the Act before the definition ‘‘designated educational institution’’ is replaced by the following:
Definitions
118.6 (1) For the purposes of sections 63 and 64 and this subdivision, (2) Paragraphs (a) and (b) of the description of B in subsection 118.6(2) of the Act are replaced by the following: (a) $400 is multiplied by the number of months in the year during which the individual is enrolled in a qualifying educational program as a full-time student at a designated educational institution, and (b) $120 is multiplied by the number of months in the year (other than months described in paragraph (a)), each of which
Impôt sur le re is a month during which the individual is enrolled at a designated educational institution in a specified educational program that provides that each student in the program spend not less than 12 hours in the month on courses in the program, (3) The portion of subsection 118.6(2) of the Act after the description of B is replaced by the following: if the enrolment is proven by filing with the Minister a certificate in prescribed form issued by the designated educational institution and containing prescribed information and, in respect of a designated educational institution described in subparagraph (a)(ii) of the definition ‘‘designated educational institution’’ in subsection (1), the individual has attained the age of 16 years before the end of the year and is enrolled in the program to obtain skills for, or improve the individual’s skills in, an occupation. (4) Subsection (1) applies to the 2000 and subsequent taxation years. (5) Subsection (2) applies to the 2001 and subsequent taxation years. (6) Subsection (3) applies to the 1999 and subsequent taxation years. 99. (1) The description of C in subsection 118.61(1) of the Act is replaced by the following: C is the lesser of the value of B and the amount that would be the individual’s tax payable under this Part for the year if no amount were deductible under any of sections 118.1, 118.2, 118.5, 118.6, 118.62, 118.8, 118.9 and 121;
(2) Paragraph 118.61(2)(b) of the Act is replaced by the following: (b) the amount that would be the individual’s tax payable under this Part for the year if no amount were deductible under any of sections 118.1, 118.2, 118.5, 118.6, 118.62, 118.8, 118.9 and 121.
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(3) Section 118.61 of the Act is amended by adding the following after subsection (2): Unused tuition and education tax credits at the end of 2000
(3) For the purpose of determining the amount that may be deducted under subsection (2) in computing an individual’s tax payable for a taxation year that begins after 2000, the individual’s unused tuition fee and education tax credits at the end of the individual’s 2000 taxation year is deemed to be 16/17 of the amount that would be the individual’s unused tuition and education tax credits at the end of that year if this section were read without reference to this subsection. (4) Subsections (1) and (2) apply to the 1999 and subsequent taxation years. (5) Subsection (3) applies to the 2001 and subsequent taxation years. 100. (1) Paragraph (c) of the description of B in section 118.7 of the Act is replaced by the following: (c) the amount by which (i) the total of all amounts each of which is an amount payable by the individual in respect of self-employed earnings for the year as a contribution under the Canada Pension Plan or under a provincial pension plan within the meaning assigned by section 3 of that Act (not exceeding the maximum amount of such contributions payable by the individual for the year under the plan) exceeds (ii) the amount deductible under paragraph 60(e) in computing the individual’s income for the year. (2) Subsection (1) applies to the 2001 and subsequent taxation years. 101. (1) Subparagraph (ii) of the description of A in paragraph 118.81(a) of the Act is replaced by the following: (ii) $800, and (2) Subsection (1) applies to the 2001 and subsequent taxation years.
Impôt sur le re 102. (1) Section 119 of the Act is repealed. (2) The Act is amended by adding the following after section 118.95:
Former resident — credit for tax paid
119. If at any particular time an individual was deemed by subsection 128.1(4) to have disposed of a capital property that was a taxable Canadian property of the individual throughout the period that began at the particular time and that ends at the first time, after the particular time, at which the individual disposes of the property, there may be deducted in computing the individual’s tax payable under this Part for the taxation year that includes the particular time the lesser of (a) that proportion of the individual’s tax for the year otherwise payable under this Part (within the meaning assigned by paragraph (a) of the definition ‘‘tax for the year otherwise payable under this Part’’ in subsection 126(7)) that (i) the individual’s taxable capital gain from the disposition of the property at the particular time is of (ii) the amount determined under paragraph 114(a) in respect of the individual for the year, and (b) that proportion of the individual’s tax payable under Part XIII in respect of dividends received during the period by the individual in respect of the property and amounts deemed under Part XIII to have been paid during the period to the individual as dividends from corporations resident in Canada, to the extent that the amounts can reasonably be considered to relate to the property, that (i) the amount by which the individual’s loss from the disposition of the property at the end of the period is reduced by subsection 40(3.7) is of (ii) the total amount of those dividends.
(3) Subsection (1) applies to the 1995 and subsequent taxation years.
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(4) Subsection (2) applies to dispositions after December 23, 1998 by individuals who cease to be resident in Canada after October 1, 1996. 103. (1) The portion of subsection 120(1) of the Act before paragraph (a) is replaced by the following: Income not earned in a province
120. (1) There shall be added to the tax otherwise payable under this Part by an individual for a taxation year the amount that bears the same relation to 48% of the tax otherwise payable under this Part by the individual for the year that (2) Subsection 120(2.1) of the Act is repealed. (3) Paragraphs 120(3)(a) and (b) of the Act are replaced by the following: (a) if section 114 applies to the individual in respect of the year, the amount determined under paragraph 114(a) in respect of the individual for the year; (b) if the individual was non-resident throughout the year, the individual’s taxable income earned in Canada for the year determined without reference to paragraphs 115(1)(d) to (f); and
(4) Clause (a)(ii)(A) of the definition ‘‘tax otherwise payable under this Part’’ in subsection 120(4) of the Act is replaced by the following: (A) section 119, subsection 120.4(2) and sections 126, 127, 127.4 and 127.41, and
(5) Subsection (1) applies to the 2000 and subsequent taxation years. (6) Subsections (2) and (4) apply to the 1996 and subsequent taxation years except that, in its application to taxation years that end before 2000, subsection (4) shall be read as follows:
Impôt sur le re (4) Paragraph (b) of the definition ‘‘tax otherwise payable under this Part’’ in subsection 120(4) of the Act is replaced by the following: (b) the amount that, but for this section and subsection 117(6), would be the tax payable under this Part by the individual for the year if this Part were read without reference to any of sections 119, 126, 127 and 127.4. (7) Subsection (3) applies to the 1998 and subsequent taxation years except that, for taxation years that end before 2000, paragraphs 120(3)(a) and (b) of the Act, as enacted by subsection (3), shall be read as follows: (a) if section 114 applies to the individual in respect of the year, the amount determined under paragraph 114(a) in respect of the individual for the year; and (b) if the individual was non-resident throughout the year, the individual’s taxable income earned in Canada for the year determined without reference to paragraphs 115(1)(d) to (f). 104. (1) Subsection 120.2(4) of the Act is replaced by the following:
Where subsection (1) does not apply
(4) Subsection (1) does not apply in respect of an individual’s return of income filed under subsection 70(2), paragraph 104(23)(d) or 128(2)(f) or subsection 150(4). (2) Subsection (1) applies to the 1996 and subsequent taxation years. 105. (1) Subsection 122(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (d), by adding the word ‘‘and’’ at the end of paragraph (e) and by adding the following after paragraph (e): (f) has not received any property after December 17, 1999, where (i) the property was received as a result of a transfer from another trust, (ii) subsection (1) applied to a taxation year of the other trust that began before the property was so received, and
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Income Ta (iii) no change in the beneficial ownership of the property resulted from the transfer.
(2) Subsection (1) applies to the 1999 and subsequent taxation years. 106. (1) Paragraph 122.3(1)(e) of the Act is replaced by the following: (e) the amount, if any, by which (i) if the individual is resident in Canada throughout the year, the individual’s income for the year, and (ii) if the individual is non-resident at any time in the year, the amount determined under paragraph 114(a) in respect of the taxpayer for the year exceeds (iii) the total of all amounts each of which is an amount deducted under section 110.6 or paragraph 111(1)(b) or deductible under paragraph 110(1)(d.2), (d.3), (f) or (j) in computing the individual’s taxable income for the year. (2) Subsection (1) applies to the 1998 and subsequent taxation years. 107. (1) Section 122.5 of the Act is amended by adding the following after subsection (5): Exception
(5.1) No amount is deemed to be paid under subsection (3) by an individual for the 2000 taxation year if the individual is confined to a prison or similar institution at any time during the 12-month period that ends on June 30, 2002, unless the individual satisfies the Minister that the individual’s confinement is for a period of not more than six months included in that 12-month period. (2) Subsection (1) applies to amounts deemed to be paid during months specified for the 2000 taxation year. 108. (1) Paragraph (b) of the description of A in subsection 122.51(2) of the Act is amended by replacing the reference to the fraction ‘‘25/17’’ with a reference to the fraction ‘‘25/16’’.
Impôt sur le re (2) Subsection (1) applies to the 2001 and subsequent taxation years. 109. (1) Paragraph (e) of the definition ‘‘eligible individual’’ in section 122.6 of the Act is amended by striking out the word ‘‘or’’ at the end of subparagraph (ii), by adding the word ‘‘or’’ at the end of subparagraph (iii) and by adding the following after subparagraph (iii): (iv) was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act, (2) Subsection (1) applies in respect of overpayments deemed to arise during months that are after June 2001. 110. (1) The portion of the description of B in subsection 122.61(1) of the Act before paragraph (a) is replaced by the following: B is 4% (or where the person is an eligible individual in respect of only one qualified dependant at the beginning of the month, 2%) of the amount, if any, by which
(2) Paragraph (b) of the description of B in subsection 122.61(1) of the Act is replaced by the following: (b) the greater of $32,000 and the dollar amount, as adjusted annually and referred to in paragraph 117(2)(a), that is used for the calendar year following the base taxation year; and (3) Paragraphs (a) and (b) of the description of F in subsection 122.61(1) of the Act are replaced by the following: (a) only one qualified dependant, $1,255, and (b) two or more qualified dependants, the total of (i) $1,255 for the first qualified dependant, (ii) $1055 for the second qualified dependant, and
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Income Ta (iii) $980 for each of the third and subsequent qualified dependants,
(4) Subsection 122.61(6.1) of the Act is replaced by the following: Agreement with a province
(6.1) Notwithstanding subsection (5), for the purposes of any agreement referred to in section 122.63 with respect to overpayments deemed to arise during months that are after June 2001 and before July 2002, the amount determined under subparagraph (5)(b)(ii) for a month referred to in paragraph (6)(b) is deemed to be 0.012. (5) Subsection (1) applies with respect to overpayments deemed to arise during months that are after June 2004. (6) Subsections (2) and (3) apply with respect to overpayments deemed to arise during months that are after June 2001. (7) Subsection (4) applies in respect of overpayments deemed to arise during months that are after June 2001 and before July 2002. 111. (1) Paragraph 123.2(a) of the Act is replaced by the following: (a) the tax payable under this Part by the corporation for the year determined without reference to this section, sections 123.3, 123.4 and 125 to 126 and subsections 127(3), (5), (27) to (31), (34) and (35) and 137(3) and as if subsection 124(1) did not contain the words ‘‘in a province’’ (2) Subsection (1) applies to the 2001 and subsequent taxation years. 112. (1) The Act is amended by adding the following after section 123.3:
Impôt sur le re Corporation Tax Reductions
Definitions
123.4 (1) The definitions in this subsection apply in this section.
‘‘CCPC rate reduction percentage’’ « pourcentage de réduction du taux des SPCC »
‘‘CCPC rate reduction percentage’’ of a Canadian-controlled private corporation for a taxation year is that proportion of 7% that the number of days in the year that are after 2000 is of the number of days in the year.
‘‘full rate taxable income’’ « revenu imposable au taux complet »
‘‘full rate taxable income’’ of a corporation for a taxation year is (a) if the corporation is not a corporation described in paragraph (b) or (c) for the year, the amount by which the corporation’s taxable income for the year exceeds the total of (i) if an amount is deducted under subsection 125.1(1) from the corporation’s tax otherwise payable under this Part for the year, 100/7 of the amount deducted, (ii) if an amount is deducted under subsection 125.1(2) from the corporation’s tax otherwise payable under this Part for the year, the amount determined, in respect of the deduction, by the formula in that subsection, (iii) three times the total of all amounts each of which is deducted under paragraph 20(1)(v.1) in computing the corporation’s income from a business or property for the year, and (iv) if the corporation is a credit union throughout the year, 100/16 of the amount, if any, deducted under subsection 137(3) from the corporation’s tax otherwise payable under this Part for the year; (b) if the corporation is a Canadian-controlled private corporation throughout the year, the amount by which the corporation’s taxable income for the year exceeds the total of (i) the amounts that would, if paragraph (a) applied to the corporation, be
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Income Ta determined under subparagraphs (a)(i) to (iv) in respect of the corporation for the year, (ii) 100/16 of the amount, if any, deducted under subsection 125(1) from the corporation’s tax otherwise payable under this Part for the year, (iii) the corporation’s aggregate investment income for the year, within the meaning assigned by subsection 129(4), and (iv) 100/7 of the amount, if any, deducted under subsection (3) from the corporation’s tax otherwise payable under this Part for the year; and (c) if the corporation is throughout the year an investment corporation, a mortgage investment corporation, a mutual fund corporation, or a non-residentowned investment corporation, nil.
‘‘general rate reduction percentage’’ « pourcentage de réduction du taux général »
‘‘general rate reduction percentage’’ of a corporation for a taxation year is the total of (a) that proportion of 1% that the number of days in the year that are in 2001 is of the number of days in the year; (b) that proportion of 3% that the number of days in the year that are in 2002 is of the number of days in the year; (c) that proportion of 5% that the number of days in the year that are in 2003 is of the number of days in the year; and (d) that proportion of 7% that the number of days in the year that are after 2003 is of the number of days in the year.
Impôt sur le re
General deduction from tax
(2) There may be deducted from a corporation’s tax otherwise payable under this Part for a taxation year the product obtained by multiplying the corporation’s general rate reduction percentage for the year by the corporation’s full-rate taxable income for the year.
CCPC deduction
(3) There may be deducted from the tax otherwise payable under this Part for a taxation year by a Canadian-controlled private corporation the product obtained by multiplying the corporation’s CCPC rate reduction percentage for the year by the amount by which the least of (a) 3/2 of the corporation’s business limit for the year, as determined under section 125 for the purpose of paragraph 125(1)(c), (b) the amount that would be determined under paragraph 125(1)(a) in respect of the corporation for the year if the references in the description of M in the definition ‘‘specified partnership income’’ in subsection 125(7) to ‘‘$200,000’’ and ‘‘$548’’ were read as references to ‘‘$300,000’’ and ‘‘$822’’, respectively, and (c) the amount by which (i) the amount that would, if subsection 126(1) did not apply in respect of any amount included in the corporation’s aggregate investment income for the year (determined under subsection 129(4)), be determined under paragraph 125(1)(b) in respect of the corporation for the year exceeds (ii) the corporation’s aggregate investment income for the year, exceeds the total of (d) the amounts that would, if paragraph (a) of the definition ‘‘full-rate taxable income’’ in subsection (1) applied to the corporation for the year, be determined under subparagraphs (a)(i) to (iv) of that definition in respect of the corporation for the year, and (e) 100/16 of the amount, if any, deducted under subsection 125(1) from the corporation’s tax otherwise payable under this Part for the year.
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(2) Subsection (1) applies to the 2001 and subsequent taxation years except that, in its application to a taxation year that begins before 2001, the amount determined under subparagraph (b)(iv) of the definition ‘‘full rate taxable income’’ in subsection 123.4(1) of the Act, as enacted by subsection (1), is deemed to be the amount otherwise so determined multiplied by the number obtained by dividing the number of days in the year by the number of days in the year that are after 2000. 113. (1) The portion of paragraph 125(1)(b) of the Act before subparagraph (iii) is replaced by the following: (b) the amount, if any, by which the corporation’s taxable income for the year exceeds the total of (i) 10/3 of the total of the amounts that would be deductible under subsection 126(1) from the tax for the year otherwise payable under this Part by it if those amounts were determined without reference to sections 123.3 and 123.4, (ii) 10/4 of the total of the amounts that would be deductible under subsection 126(2) from the tax for the year otherwise payable under this Part by it if those amounts were determined without reference to section 123.4, and (2) The definition ‘‘Canadian-controlled private corporation’’ in subsection 125(7) of the Act is replaced by the following: ‘‘Canadiancontrolled private corporation’’ « société privée sous contrôle canadien »
‘‘Canadian-controlled private corporation’’ means a private corporation that is a Canadian corporation other than (a) a corporation controlled, directly or indirectly in any manner whatever, by one or more non-resident persons, by one or more public corporations (other than a prescribed venture capital corporation), by one or more corporations described in paragraph (c), or by any combination of them,
Impôt sur le re (b) a corporation that would, if each share of the capital stock of a corporation that is owned by a non-resident person, by a public corporation (other than a prescribed venture capital corporation), or by a corporation described in paragraph (c) were owned by a particular person, be controlled by the particular person, or (c) a corporation a class of the shares of the capital stock of which is listed on a prescribed stock exchange; (3) Subsection (1) applies to the 2001 and subsequent taxation years. (4) Subsection (2) applies to taxation years that begin after 1999. 114. (1) Subparagraph 125.1(1)(b)(ii) of the Act is replaced by the following: (ii) 10/4 of the total of the amounts that would be deductible under subsection 126(2) from the tax for the year otherwise payable under this Part by the corporation if those amounts were determined without reference to section 123.4, and (2) The portion of subsection 125.1(2) of the Act before the formula is replaced by the following:
Electrical energy and steam
(2) A corporation that generates electrical energy for sale, or produces steam for sale, in a taxation year may deduct from its tax otherwise payable under this Part for the year 7% of the amount determined by the formula
(3) Paragraphs 125.1(5)(a) and (b) of the Act are replaced by the following: (a) electrical energy and steam are deemed to be goods; and (b) the generation of electrical energy for sale, and the production of steam for sale, are deemed to be, subject to paragraph (l) of the definition ‘‘manufacturing or processing’’ in subsection (3), manufacturing or processing.
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(4) Subsection (1) applies to the 2001 and subsequent taxation years. (5) Subsections (2) and (3) apply to taxation years that end after 1999 except that, in its application to such a taxation year that begins before 2002, the reference to ‘‘7%’’ in subsection 125.1(2) of the Act, as enacted by subsection (2), shall be read as a reference to the total of (a) 0% multiplied by the number of days in the year that are before 1999, (b) in the case of a corporation that in 1999 generated electrical energy for sale, or produced steam for use in the generation of electrical energy for sale, that proportion of 1% that the number of days in the taxation year that are in the 1999 calendar year is of the number of days in the taxation year, (c) in the case of a corporation to which paragraph (b) does not apply, 0% multiplied by the number of days in the taxation year that are in the 1999 calendar year, (d) that proportion of 3% that the number of days in the taxation year that are in the 2000 calendar year is of the number of days in the taxation year, (e) that proportion of 5% that the number of days in the taxation year that are in the 2001 calendar year is of the number of days in the taxation year, (f) that proportion of 7% that the number of days in the taxation year that are in the 2002 calendar year is of the number of days in the taxation year, and (g) that proportion of 7% that the number of days in the taxation year that are in the 2003 calendar year is of the number of days in the taxation year.
Impôt sur le re 115. (1) Subsection 125.4(2) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a), by adding the word ‘‘and’’ at the end of paragraph (b) and by adding the following after paragraph (b): (c) that definition does not apply to an amount to which section 37 applies. (2) Subsection (1) applies after November 1999. 116. (1) The portion of the definition ‘‘eligible production corporation’’ in subsection 125.5(1) of the Act after paragraph (b) and before paragraph (c) is replaced by the following: except a corporation that is, at any time in the year,
(2) Subsection (1) applies after November 1999. 117. (1) Clause 126(1)(b)(ii)(A) of the Act is replaced by the following: (A) the amount, if any, by which, (I) if the taxpayer was resident in Canada throughout the year, the taxpayer’s income for the year computed without reference to paragraph 20(1)(ww), and (II) if the taxpayer was non-resident at any time in the year, the amount determined under paragraph 114(a) in respect of the taxpayer for the year exceeds
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Income Ta (III) the total of all amounts each of which is an amount deducted under section 110.6 or paragraph 111(1)(b), or deductible under any of paragraphs 110(1)(d) to (d.3), (f) and (j) and sections 112 and 113, in computing the taxpayer’s taxable income for the year, and
(2) Section 126 of the Act is amended by adding the following after subsection (1): Authorized foreign bank
(1.1) In applying subsections 20(12) and (12.1) and this section in respect of an authorized foreign bank, (a) the bank is deemed, for the purposes of subsections (1), (4) to (5), (6) and (7), to be resident in Canada in respect of its Canadian banking business; (b) the references in subsection 20(12) and paragraph (1)(a) to ‘‘country other than Canada’’ shall be read as a reference to ‘‘country that is neither Canada nor a country in which the taxpayer is resident at any time in the taxation year’’; (c) the reference in subparagraph (1)(b)(i) to ‘‘from sources in that country’’ shall be read as a reference to ‘‘in respect of its Canadian banking business from sources in that country’’; (d) subparagraph (1)(b)(ii) shall be read as follows: ‘‘(ii) the lesser of (A) the taxpayer’s taxable income earned in Canada for the year, and (B) the total of the taxpayer’s income for the year from its Canadian banking business and the amount determined in respect of the taxpayer under subparagraph 115(1)(a)(vii) for the year.’’; (e) in computing the non-business income tax paid by the bank for a taxation year to the government of a country other than Canada, there shall be included only taxes that relate to amounts that are included in computing the bank’s taxable income earned in Canada from its Canadian banking business; and
Impôt sur le re (f) the definition ‘‘tax-exempt income’’ in subsection (7) shall be read as follows: ‘‘ ‘‘tax-exempt income’’ means income of a taxpayer from a source in a particular country in respect of which (a) the taxpayer is, because of a comprehensive agreement or convention for the elimination of double taxation on income, which has the force of law in the particular country and to which a country in which the taxpayer is resident is a party, entitled to an exemption from all income or profits taxes, imposed in the particular country, to which the agreement or convention applies, and (b) no income or profits tax to which the agreement or convention does not apply is imposed in the particular country;’’.
(3) Clause 126(2.1)(a)(ii)(A) of the Act is replaced by the following: (A) the amount, if any, by which (I) if the taxpayer is resident in Canada throughout the year, the taxpayer’s income for the year computed without reference to paragraph 20(1)(ww), and (II) if the taxpayer is non-resident at any time in the year, the amount determined under paragraph 114(a) in respect of the taxpayer for the year exceeds (III) the total of all amounts each of which is an amount deducted under section 110.6 or paragraph 111(1)(b), or deductible under any of paragraphs 110(1)(d) to (d.3), (f) and (j) and sections 112 and 113, in computing the taxpayer’s taxable income for the year, and
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Income Ta
(4) The portion of subsection 126(2.2) of the Act before paragraph (b) is replaced by the following: Non-resident’s foreign tax deduction
(2.2) If at any time in a taxation year a taxpayer who is not at that time resident in Canada disposes of a property that was deemed by subsection 48(2), as it read in its application before 1993, or by paragraph 128.1(4)(e), as it read in its application before October 2, 1996, to be taxable Canadian property of the taxpayer, the taxpayer may deduct from the tax for the year otherwise payable under this Part by the taxpayer an amount equal to the lesser of (a) the amount of any non-business-income tax paid by the taxpayer for the year to the government of a country other than Canada that can reasonably be regarded as having been paid by the taxpayer in respect of any gain or profit from the disposition of the property, and (5) Subparagraph 126(2.2)(b)(ii) of the Act is replaced by the following: (ii) if the taxpayer is non-resident throughout the year, the taxpayer’s taxable income earned in Canada for the year determined without reference to paragraphs 115(1)(d) to (f), and (iii) if the taxpayer is resident in Canada at any time in the year, the amount that would have been the taxpayer’s taxable income earned in Canada for the year if the part of the year throughout which the taxpayer was non-resident were the whole taxation year.
(6) Section 126 of the Act is amended by adding the following after subsection (2.2): Former resident — deduction
(2.21) If at any particular time in a particular taxation year a non-resident individual disposes of a property that the individual last acquired because of the application, at any time (in this subsection referred to as the ‘‘acquisition time’’) after October 1, 1996, of paragraph 128.1(4)(c), there may be deducted from the individual’s tax otherwise payable
Impôt sur le re under this Part for the year (in this subsection referred to as the ‘‘emigration year’’) that includes the time immediately before the acquisition time an amount not exceeding the lesser of (a) the total of all amounts each of which is the amount of any business-income tax or non-business-income tax paid by the individual for the particular year (i) where the property is real property situated in a country other than Canada, (A) to the government of that country, or (B) to the government of a country with which Canada has a tax treaty at the particular time and in which the individual is resident at the particular time, or (ii) where the property is not real property, to the government of a country with which Canada has a tax treaty at the particular time and in which the individual is resident at the particular time, that can reasonably be regarded as having been paid in respect of that portion of any gain or profit from the disposition of the property that accrued while the individual was resident in Canada and before the time the individual last ceased to be resident in Canada, and (b) the amount, if any, by which (i) the amount of tax under this Part that was, after taking into account the application of this subsection in respect of dispositions that occurred before the particular time, otherwise payable by the individual for the emigration year exceeds (ii) the amount of such tax that would have been payable if the property had not been deemed by subsection 128.1(4) to have been disposed of in the emigration year.
��� Former resident — trust beneficiary
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(2.22) If at any particular time in a particular taxation year a non-resident individual disposes of a property that the individual last acquired at any time (in this subsection referred to as the ‘‘acquisition time’’) on a distribution after October 1, 1996 to which paragraphs 107(2)(a) to (c) do not apply only because of subsection 107(5), the trust may deduct from its tax otherwise payable under this Part for the year (in this subsection referred to as the ‘‘distribution year’’) that includes the acquisition time an amount not exceeding the lesser of (a) the total of all amounts each of which is the amount of any business-income tax or non-business-income tax paid by the individual for the particular year (i) where the property is real property situated in a country other than Canada, (A) to the government of that country, or (B) to the government of a country with which Canada has a tax treaty at the particular time and in which the individual is resident at the particular time, or (ii) where the property is not real property, to the government of a country with which Canada has a tax treaty at the particular time and in which the individual is resident at the particular time, that can reasonably be regarded as having been paid in respect of that portion of any gain or profit from the disposition of the property that accrued before the distribution and after the latest of the times, before the distribution, at which (iii) the trust became resident in Canada, (iv) the individual became a beneficiary under the trust, or (v) the trust acquired the property, and (b) the amount, if any, by which (i) the amount of tax under this Part that was, after taking into account the application of this subsection in respect of dispositions that occurred before the
Impôt sur le re particular time, otherwise payable by the trust for the distribution year exceeds (ii) the amount of such tax that would have been payable by the trust for the distribution year if the property had not been distributed to the individual.
Where foreign credit available
(2.23) For the purposes of subsections (2.21) and (2.22), in computing, in respect of the disposition of a property by an individual in a taxation year, the total amount of taxes paid by the individual for the year to one or more governments of countries other than Canada, there shall be deducted any tax credit (or other reduction in the amount of a tax) to which the individual was entitled for the year, under the law of any of those countries or under a tax treaty between Canada and any of those countries, because of taxes paid or payable by the individual under this Act in respect of the disposition or a previous disposition of the property. (7) Paragraphs 126(2.3)(b) and (c) of the Act are replaced by the following: (b) no amount may be claimed under paragraph (2)(a) in computing a taxpayer’s tax payable under this Part for a particular taxation year in respect of the taxpayer’s unused foreign tax credit in respect of a country for a taxation year until the taxpayer’s unused foreign tax credits in respect of that country for taxation years preceding the taxation year that may be claimed for the particular taxation year have been claimed; and (c) an amount in respect of a taxpayer’s unused foreign tax credit in respect of a country for a taxation year may be claimed under paragraph (2)(a) in computing the taxpayer’s tax payable under this Part for a particular taxation year only to the extent that it exceeds the aggregate of all amounts each of which is the amount that may
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reasonably be considered to have been claimed in respect of that unused foreign tax credit in computing the taxpayer’s tax payable under this Part for a taxation year preceding the particular taxation year.
(8) Subparagraphs 126(3)(a)(i) and (ii) of the Act are replaced by the following: (i) for the year, if the individual is resident in Canada throughout the year, and (ii) for the part of the year throughout which the individual was resident in Canada, if the individual is non-resident at any time in the year, (9) Paragraph 126(3)(b) of the Act is replaced by the following: (b) the amount, if any, by which (i) if the taxpayer is resident in Canada throughout the year, the taxpayer’s income for the year computed without reference to paragraph 20(1)(ww), and (ii) if the taxpayer is non-resident at any time in the year, the amount determined under paragraph 114(a) in respect of the taxpayer for the year exceeds (iii) the total of all amounts each of which is an amount deducted under section 110.6 or paragraph 111(1)(b), or deductible under any of paragraphs 110(1)(d) to (d.3), (f) and (j), in computing the taxpayer’s taxable income for the year, and (10) Subsections 126(4) and (4.1) of the Act are replaced by the following: Portion of foreign tax not included
(4) For the purposes of this Act, an income or profits tax paid by a person resident in Canada to the government of a country other than Canada does not include a tax, or that portion of a tax, imposed by that government that would not be imposed if the person were not entitled under section 113 or this section to a deduction in respect of the tax or that portion of the tax.
No economic profit
Impôt sur le re
(4.1) If a taxpayer acquires a property, other than a capital property, at any time after February 23, 1998 and it is reasonable to expect at that time that the taxpayer will not realize an economic profit in respect of the property for the period that begins at that time and ends when the taxpayer next disposes of the property, the total amount of all income or profits taxes (referred to as the ‘‘foreign tax’’ for the purpose of subsection 20(12.1)) in respect of the property for the period, and in respect of related transactions, paid by the taxpayer for any year to the government of any country other than Canada, is not included in computing the taxpayer’s business-income tax or non-business-income tax for any taxation year.
(11) Paragraph 126(4.4)(a) of the Act is replaced by the following: (a) a disposition or acquisition of property deemed to be made by subsection 10(12) or (13), 14(14) or (15) or 45(1), section 70 or 128.1, paragraph 132.2(1)(f), subsection 138(11.3), 142.5(2) or 142.6(1.1) or (1.2), paragraph 142.6(1)(b) or subsection 149(10) is not a disposition or acquisition, as the case may be; and (12) Subsection 126(5) of the Act is replaced by the following: Foreign oil and gas levies
(5) A taxpayer who is resident in Canada throughout a taxation year and carries on a foreign oil and gas business in a taxing country in the year is deemed for the purposes of this section to have paid in the year as an income or profits tax to the government of the taxing country an amount equal to the lesser of (a) the amount, if any, by which (i) 40% of the taxpayer’s income from the business in the taxing country for the year exceeds (ii) the total of all amounts that would, but for this subsection, be income or
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Income Ta profits taxes paid in the year in respect of the business to the government of the taxing country, and
(b) the taxpayer’s production tax amount for the business in the taxing country for the year.
(13) Subsection 126(6) of the Act is replaced by the following: Rules of construction
(6) For the purposes of this section, (a) the government of a country other than Canada includes the government of a state, province or other political subdivision of that country; (b) where a taxpayer’s income for a taxation year is in whole or in part from sources in more than one country other than Canada, subsections (1) and (2) shall be read as providing for separate deductions in respect of each of the countries other than Canada; and (c) if any income from a source in a particular country would be tax-exempt income but for the fact that a portion of the income is subject to an income or profits tax imposed by the government of a country other than Canada, the portion is deemed to be income from a separate source in the particular country.
(14) The definitions ‘‘qualifying incomes’’ and ‘‘qualifying losses’’ in subsection 126(7) of the Act are replaced by the following: ‘‘qualifying incomes’’ « revenus admissibles »
‘‘qualifying incomes’’ of a taxpayer from sources in a country means incomes from sources in the country, determined in accordance with subsection (9);
‘‘qualifying losses’’ « pertes admissibles »
‘‘qualifying losses’’ of a taxpayer from sources in a country means losses from
Impôt sur le re sources in the country, determined in accordance with subsection (9); (15) The definitions ‘‘tax for the year otherwise payable under this Part’’ and ‘‘unused foreign tax credit’’ in subsection 126(7) of the Act are replaced by the following:
‘‘tax for the year otherwise payable under this Part’’ « impôt payable par ailleurs pour l’année en vertu de la présente partie »
‘‘tax for the year otherwise payable under this Part’’ by a taxpayer means (a) in paragraph (1)(b) and subsection (3), the amount determined by the formula A-B where A is the amount that would be the tax payable under this Part for the year by the taxpayer if that tax were determined without reference to section 120.3 and before making any deduction under any of sections 121, 122.3, 125 to 127.41 and, if the taxpayer is a Canadian-controlled private corporation throughout the year, section 123.4, and B is the amounts deemed by subsections 120(2) and (2.2) to have been paid on account of tax payable under this Part by the taxpayer, (b) in subparagraph (2)(c)(i) and paragraph (2.2)(b), the amount that would be the tax payable under this Part for the year by the taxpayer if that tax were determined without reference to sections 120.3 and 123.3 and before making any deduction under any of sections 121 and 122.3, subsection 123.4(3), and sections 124 to 127.41, and (c) in subsection (2.1), the amount that would be the tax payable under this Part for the year by the taxpayer if that tax were determined without reference to subsection 120(1) and sections 120.3 and
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Income Ta 123.3 and before making any deduction under any of sections 121 and 122.3, subsection 123.4(3) and sections 124 to 127.41;
‘‘unused foreign tax credit’’ « fraction inutilisée du crédit pour impôt étranger »
‘‘unused foreign tax credit’’ of a taxpayer in respect of a country for a taxation year means the amount, if any, by which (a) the business-income tax paid by the taxpayer for the year in respect of businesses carried on by the taxpayer in that country exceeds (b) the amount, if any, deductible under subsection (2) in respect of that country in computing the taxpayer’s tax payable under this Part for the year. (16) The portion of the definition ‘‘business-income tax’’ in subsection 126(7) of the Act before paragraph (a) is replaced by the following:
‘‘businessincome tax’’ « impôt sur le revenu tiré d’une entreprise »
‘‘business-income tax’’ paid by a taxpayer for a taxation year in respect of businesses carried on by the taxpayer in a country other than Canada (in this definition referred to as the ‘‘business country’’) means, subject to subsections (4.1) and (4.2), the portion of any income or profits tax paid by the taxpayer for the year to the government of a country other than Canada that can reasonably be regarded as tax in respect of the income of the taxpayer from a business carried on by the taxpayer in the business country, but does not include a tax, or the portion of a tax, that can reasonably be regarded as relating to an amount that
(17) Paragraph (b) of the definition ‘‘economic profit’’ in subsection 126(7) of the Act is replaced by the following: (b) income or profits taxes payable by the taxpayer for any year to the government of a country other than Canada, in respect
Impôt sur le re of the property for the period or in respect of a related transaction, or (18) The portion of the definition ‘‘nonbusiness-income tax’’ in subsection 126(7) of the Act before paragraph (a) is replaced by the following:
‘‘non-businessincome tax’’ « impôt sur le revenu ne provenant pas d’une entreprise »
‘‘non-business-income tax’’ paid by a taxpayer for a taxation year to the government of a country other than Canada means, subject to subsections (4.1) and (4.2), the portion of any income or profits tax paid by the taxpayer for the year to the government of that country that
(19) Subsection 126(7) of the Act is amended by adding the following in alphabetical order: ‘‘commercial obligation’’ « obligation commerciale »
‘‘commercial obligation’’ in respect of a taxpayer’s foreign oil and gas business in a country means an obligation of the taxpayer to a particular person, undertaken in the course of carrying on the business or in contemplation of the business, if the law of the country would have allowed the taxpayer to undertake an obligation, on substantially the same terms, to a person other than the particular person;
‘‘foreign oil and gas business’’ « entreprise pétrolière et gazière à l’étranger »
‘‘foreign oil and gas business’’ of a taxpayer means a business, carried on by the taxpayer in a taxing country, the principal activity of which is the extraction from natural accumulations, or from oil or gas wells, of petroleum, natural gas or related hydrocarbons;
‘‘production tax amount’’ « impôt sur la production »
‘‘production tax amount’’ of a taxpayer for a foreign oil and gas business carried on by the taxpayer in a taxing country for a taxation year means the total of all amounts each of which (a) became receivable in the year by the government of the country because of an obligation (other than a commercial obligation) of the taxpayer, in respect of the business, to the government or an
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Income Ta agent or instrumentality of the government, (b) is computed by reference to the amount by which (i) the amount or value of petroleum, natural gas or related hydrocarbons produced or extracted by the taxpayer in the course of carrying on the business in the year exceeds (ii) an allowance or other deduction that (A) is deductible, under the agreement or law that creates the obligation described in paragraph (a), in computing the amount receivable by the government of the country, and (B) is intended to take into account the taxpayer’s operating and capital costs of that production or extraction, and can reasonably be considered to have that effect, (c) would not, if this Act were read without reference to subsection (5), be an income or profits tax, and (d) is not identified as a royalty under the agreement that creates the obligation or under any law of the country;
‘‘taxing country’’ « pays taxateur »
‘‘taxing country’’ means a country (other than Canada) the government of which regularly imposes, in respect of income from businesses carried on in the country, a levy or charge of general application that would, if this Act were read without reference to subsection (5), be an income or profits tax;
(20) Subsection 126(8) of the Act is repealed. (21) Section 126 of the Act is amended by adding the following after subsection (8):
2001 Computation of qualifying incomes and losses
Impôt sur le re (9) The qualifying incomes and qualifying losses for a taxation year of a taxpayer from sources in a country shall be determined (a) without reference to (i) any portion of income that was deductible under subparagraph 110(1)(f)(i) in computing the taxpayer’s taxable income, (ii) for the purpose of subparagraph (1)(b)(i), any portion of income in respect of which an amount was deducted under section 110.6 in computing the taxpayer’s income, or (iii) any income or loss from a source in the country if any income of the taxpayer from the source would be tax-exempt income; and (b) as if the total of all amounts each of which is that portion of an amount deducted under subsection 66(4), 66.21(4), 66.7(2) or 66.7(2.3) in computing those qualifying incomes and qualifying losses for the year that applies to those sources were the greater of (i) the total of all amounts each of which is that portion of an amount deducted under subsection 66(4), 66.21(4), 66.7(2) or 66.7(2.3) in computing the taxpayer’s income for the year that applies to those sources, and (ii) the total of (A) the portion of the maximum amount that would be deductible under subsection 66(4) in computing the taxpayer’s income for the year that applies to those sources if the amount determined under subparagraph 66(4)(b)(ii) for the taxpayer in respect of the year were equal to the amount, if any, by which the total of (I) the taxpayer’s foreign resource income (within the meaning assigned by subsection 66.21(1)) for the year in respect of the country, determined as if the taxpayer had claimed the maximum amounts deductible for the year under subsections 66.7(2) and (2.3), and
���
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Income Ta (II) all amounts each of which would have been an amount included in computing the taxpayer’s income for the year under subsection 59(1) in respect of a disposition of a foreign resource property in respect of the country, determined as if each amount determined under subparagraph 59(1)(b)(ii) were nil, exceeds (III) the total of all amounts each of which is a portion of an amount (other than a portion that results in a reduction of the amount otherwise determined under subclause (I)) that applies to those sources and that would be deducted under subsection 66.7(2) in computing the taxpayer’s income for the year if the maximum amounts deductible for the year under that subsection were deducted, (B) the maximum amount that would be deductible under subsection 66.21(4) in respect of those sources in computing the taxpayer’s income for the year if (I) the amount deducted under subsection 66(4) in respect of those sources in computing the taxpayer’s income for the year were the amount determined under clause (A), (II) the amounts deducted under subsections 66.7(2) and (2.3) in respect of those sources in computing the taxpayer’s income for the year were the maximum amounts deductible under those subsections, (III) for the purposes of the definition ‘‘cumulative foreign resource expense’’ in subsection 66.21(1), the total of the amounts designated under subparagraph 59(1)(b)(ii) for the year in respect of dispositions by the taxpayer of foreign resource properties in respect of the country in the year were the maximum total that could be so designated without
Impôt sur le re any reduction in the maximum amount that would be determined under clause (A) in respect of the taxpayer for the year in respect of the country if no assumption had been made under subclause (A)(II) in respect of designations made under subparagraph 59(1)(b)(ii), and (IV) the amount determined under paragraph 66.21(4)(b) were nil, and (C) the total of all amounts each of which is the maximum amount, applicable to one of those sources, that is deductible under subsection 66.7(2) or (2.3) in computing the taxpayer’s income for the year.
(22) Subsections (1), (3), (5), (8) and (9) apply to the 1998 and subsequent taxation years except that, in their application to the 1998 and 1999 taxation years, subclauses 126(1)(b)(ii)(A)(I) and (2.1)(a)(ii)(A)(I) and subparagraph 126(3)(b)(i) of the Act, as enacted by subsections (1), (3) and (9), respectively, shall be read without reference to the expression ‘‘computed without reference to paragraph 20(1)(ww)’’. (23) Subsections (2), (10), (11), (13), (16) to (18) and (20) apply after June 27, 1999. (24) Subsections (4) and (6) apply to the 1996 and subsequent taxation years. (25) Subsections (7) and (15) apply to the 2001 and subsequent taxation years.
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(26) Subsections (12), (14), (19) and (21) apply to taxation years of a taxpayer that begin after the earlier of (a) December 31, 1999; and (b) where, for the purposes of this subsection, a date is designated in writing by the taxpayer and the designation is filed with the Minister of National Revenue on or before the taxpayer’s filing-due date for the taxpayer’s taxation year that includes the day on which this Act receives royal assent, the later of (i) the date so designated, and (ii) December 31, 1994.
118. (1) Subparagraph 127(5)(a)(i) of the Act is replaced by the following: (i) the taxpayer’s investment tax credit at the end of the year in respect of property acquired before the end of the year, of the taxpayer’s flow-through mining expenditure for the year or a preceding taxation year or of the taxpayer’s SR&ED qualified expenditure pool at the end of the year or of a preceding taxation year, and (2) Clause 127(5)(a)(ii)(A) of the Act is replaced by the following: (A) the taxpayer’s investment tax credit at the end of the year in respect of property acquired in a subsequent taxation year, of the taxpayer’s flowthrough mining expenditure for a subsequent taxation year or of the taxpayer’s SR&ED qualified expenditure pool at the end of a subsequent taxation year to the extent that an investment tax credit was not deductible under this subsection for the subsequent year, and
(3) Paragraph 127(5)(b) of the Act is replaced by the following:
Impôt sur le re (b) where Division E.1 applies to the taxpayer for the year, the amount, if any, by which (i) the taxpayer’s tax otherwise payable under this Part for the year exceeds (ii) the taxpayer’s minimum amount for the year determined under section 127.51. (4) Paragraph (a.1) of the definition ‘‘investment tax credit’’ in subsection 127(9) of the Act is replaced by the following: (a.1) 20% of the amount by which the taxpayer’s SR&ED qualified expenditure pool at the end of the year exceeds the total of all amounts each of which is the super-allowance benefit amount for the year in respect of the taxpayer in respect of a province, (a.2) where the taxpayer is an individual (other than a trust), 15% of the taxpayer’s flow-through mining expenditures for the year, (5) Paragraph (c) of the definition ‘‘investment tax credit’’ in subsection 127(9) of the Act is replaced by the following: (c) the total of all amounts each of which is an amount determined under paragraph (a), (a.1), (a.2) or (b) in respect of the taxpayer for any of the 10 taxation years immediately preceding or the 3 taxation years immediately following the year, (6) Paragraph (l) of the definition ‘‘investment tax credit’’ in subsection 127(9) of the Act is replaced by the following: (l) any of the income is exempt income or is exempt from tax under this Part,
(7) Subsection 127(9) of the Act is amended by adding the following in alphabetical order: ‘‘flow-through mining expenditure’’ « dépense minière déterminée »
‘‘flow-through mining expenditure’’ of a taxpayer for a taxation year means an expense deemed by subsection 66(12.61) (or by sub���
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section 66(18) as a consequence of the application of subsection 66(12.61) to the partnership, referred to in paragraph (c) of this definition, of which the taxpayer is a member) to be incurred by the taxpayer in the year (a) that is a Canadian exploration expense incurred after October 17, 2000 and before 2004 by a corporation in conducting mining exploration activity from or above the surface of the earth for the purpose of determining the existence, location, extent or quality of a mineral resource described in paragraph (a) or (d) of the definition ‘‘mineral resource’’ in subsection 248(1), (b) that (i) is an expense described in paragraph (f) of the definition ‘‘Canadian exploration expense’’ in subsection 66.1(6), and (ii) is not an expense in respect of (A) trenching, if one of the purposes of the trenching is to carry out preliminary sampling (other than specified sampling), (B) digging test pits (other than digging test pits for the purpose of carrying out specified sampling), and (C) preliminary sampling (other than specified sampling), (c) an amount in respect of which is renounced in accordance with subsection 66(12.6) by the corporation to the taxpayer (or a partnership of which the taxpayer is a member) under an agreement described in that subsection and made after October 17, 2000, (d) that is not an expense that was renounced under subsection 66(12.6) to the corporation (or a partnership of which the corporation is a member), unless that renunciation was under an agreement described in that subsection and made after October 17, 2000, and
Impôt sur le re (e) that is an expense that would be incurred by the corporation before 2004 if this Act were read without reference to subsection 66(12.66);
‘‘specified sampling’’ « échantillonnage déterminé »
‘‘specified sampling’’ means the collecting and testing of samples in respect of a mineral resource except that specified sampling does not include (a) the collecting or testing of a sample that, at the time the sample is collected, weighs more than 15 tonnes, and (b) the collecting or testing of a sample collected at any time in a calendar year in respect of any one mineral resource if the total weight of all such samples collected (by any person or partnership or any combination of persons and partnerships) in the period in the calendar year that is before that time (other than samples each of which weighs less than one tonne) exceeds 1,000 tonnes;
‘‘super-allowance benefit amount’’ « avantage relatif à la superdéduction »
‘‘super-allowance benefit amount’’ for a particular taxation year in respect of a corporation in respect of a province means the amount determined by the formula (A - B) x C where A is the total of all amounts each of which is an amount that is or may become deductible by the corporation, in computing income or taxable income relevant in calculating an income tax payable by the corporation under a law of the province for any taxation year, in respect of an expenditure on scientific research and experimental development incurred in the particular year, B is the amount by which the amount of the expenditure exceeds the total of all amounts that would be required by subsections (18) to (20) to reduce the corporation’s qualified expenditures otherwise determined under this section if the definitions ‘‘government assistance’’ and ‘‘non-government assistance’’ did not apply to assistance provided under that law, and
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C is, (a) where the corporation’s expenditure limit for the particular year is nil, the maximum rate of the province’s income tax that applies for that year to active business income earned in the province by a corporation, and (b) in any other case, the rate of the province’s income tax for that year that would apply to the corporation if (i) it were not associated with any other corporation in the year, (ii) its taxable income for the year were less than $200,000, and (iii) its taxable income for the year were earned in the province in respect of an active business carried on in the province.
(8) Paragraph 127(10.1)(b) of the Act is replaced by the following: (b) the amount by which the corporation’s SR&ED qualified expenditure pool at the end of the year exceeds the total of all amounts each of which is the super-allowance benefit amount for the year in respect of the corporation in respect of a province; and (9) Subsection 127(11.1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (c.1) and adding the following paragraph after paragraph (c.1): (c.2) the amount of a taxpayer’s flowthrough mining expenditure for a taxation year is deemed to be the amount of the taxpayer’s flow-through mining expenditure for the year as otherwise determined less the amount of any government assis2001
Impôt sur le re tance or non-government assistance in respect of expenses included in determining the taxpayer’s flow-through mining expenditure for the year that, at the time of the filing of the taxpayer’s return of income for the year, the taxpayer has received, is entitled to receive or can reasonably be expected to receive; and (10) Subsections (1), (2) and (9) apply to the 2000 and subsequent taxation years, except that, for the 2000 taxation year, clause 127(5)(a)(ii)(A) of the Act, as enacted by subsection (2), shall be read as follows: (A) the taxpayer’s investment tax credit at the end of the year in respect of property acquired in a subsequent taxation year, of the taxpayer’s flowthrough mining expenditure for a subsequent taxation year or of the taxpayer’s SR&ED qualified expenditure pool at the end of a subsequent taxation year to the extent that an investment tax credit was not deductible under this subsection or subsection 180.1(1.2) for the subsequent year, and
(11) Subsection (3) applies to the 2001 and subsequent taxation years. (12) Paragraph (a.1) of the definition ‘‘investment tax credit’’ in subsection 127(9) of the Act, as enacted by subsection (4), the definition ‘‘super-allowance benefit amount’’ in subsection 127(9) of the Act, as enacted by subsection (7), and subsection (8) apply to taxation years that begin after February 2000 except that, if a corporation’s first taxation year that begins after February 2000 ends before 2001, those provisions apply to the corporation’s taxation years that begin after 2000.
(13) Paragraph (a.2) of the definition ‘‘investment tax credit’’ in subsection 127(9) of the Act, as enacted by subsection (4), subsection (5) and the definitions ‘‘flow���
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through mining expenditure’’ and ‘‘specified sampling’’ in subsection 127(9) of the Act, as enacted by subsection (7), apply after October 17, 2000. (14) Subsection (6) applies to all taxation years. 119. (1) Paragraph 127.52(1)(d) of the Act is replaced by the following: (d) except in respect of dispositions of property occurring before 1986 or to which section 79 applies, (i) the references to the fraction applicable to the individual for the year in each of paragraphs 38(a), (b) and (c) and section 41 were read as a reference to ‘‘4/5’’, other than in the case of a capital gain from a disposition that is the making of a gift of property to a qualified donee, and (ii) each amount (other than an amount to which subsection 104(21.4) applies) that is designated by a trust for a particular year of the trust in respect of the individual and deemed by subsection 104(21) to be a taxable capital gain for the year of the individual were equal to the amount obtained by the formula 4/5(A x 1/B) where A is the amount so deemed to be a taxable capital gain for the year of the individual, and B is the fraction in paragraph 38(a) applicable to the trust for the particular year of the trust for which the designation is made; (2) The portion of paragraph 127.52(1)(e) of the Act before subparagraph (i) is replaced by the following: (e) the total of all amounts deductible under section 65, 66, 66.1, 66.2, 66.21 or 66.4 or under subsection 29(10) or (12) of the Income Tax Application Rules in computing the individual’s income for the year were the lesser of the amounts otherwise so deductible by the individual for the year and the total of
Impôt sur le re
(3) Subparagraph 127.52(1)(e.1)(ii) of the Act is replaced by the following: (ii) the total of all amounts each of which is an amount deductible under section 65, 66, 66.1, 66.2, 66.21 or 66.4 or under subsection 29(10) or (12) of the Income Tax Application Rules in computing the individual’s income for the year; (4) The portion of subparagraph 127.52(1)(g)(ii) of the Act before clause (A) is replaced by the following: (ii) the total of all amounts each of which is 3/5 of (5) Paragraph 127.52(1)(h) of the Act is replaced by the following: (h) the only amounts deductible under sections 110 to 110.7 in computing the individual’s taxable income for the year or taxable income earned in Canada for the year, as the case may be, were (i) the amounts deducted under any of subsections 110(2), 110.6(2), (2.1), (3) and (12) and 110.7(1), (ii) the amount deducted under paragraph 110(1)(d), not exceeding the total of (A) twice the amount deducted under paragraph 110(1)(d.01), and (B) 2/5 of the amount, if any, by which (I) the amount deducted under paragraph 110(1)(d) exceeds (II) the amount determined under clause (A), (iii) the amount deducted under paragraph 110(1)(d.01), (iv) 2/5 of the amounts deducted under any of paragraphs 110(1)(d.1) to (d.3), and (v) the amount that would be deductible under paragraph 110(1)(f) if paragraph (d) were applicable in computing the individual’s income for the year;
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(6) Subsections (1), (4) and (5) apply to the 2000 and subsequent taxation years except that, for the 2000 taxation year, clause 127.52(1)(h)(ii)(A) of the Act, as enacted by subsection (5), shall be read as follows: (A) the total of (I) twice the amount deducted under paragraph 110(1)(d.01) in respect of benefits that the individual is deemed by paragraph 7(1)(a) to have received in the year as a result of transactions, events or circumstances that occur after October 17, 2000, and (II) the amount deducted under paragraph 110(1)(d.01) in respect of benefits that the individual is deemed by paragraph 7(1)(a) to have received in the year as a result of transactions, events or circumstances that occur before October 18, 2000, and (7) Subsections (2) and (3) apply to taxation years that begin after 2000. 120. (1) Subparagraph 127.54(2)(b)(ii) of the Act is replaced by the following: (ii) 16% of the individual’s foreign income for the year. (2) Subsection (1) applies to the 2001 and subsequent taxation years. 121. (1) Paragraph 127.55(b) of the Act is repealed. (2) Subsection (1) applies to the 1996 and subsequent taxation years. 122. (1) Clause 128(2)(e)(ii)(A) of the Act is replaced by the following: (A) an amount under any of paragraphs 110(1)(d) to (d.3) and section 110.6 to the extent that the amount is in respect of an amount included in income under subparagraph (i) for that taxation year, and
Impôt sur le re (2) Subparagraph 128(2)(f)(iii) of the Act is replaced by the following: (iii) in computing the individual’s taxable income for the year, no amount were deductible under any of paragraphs 110(1)(d) to (d.3) and section 110.6 in respect of an amount included in income under subparagraph (e)(i), and no amount were deductible under section 111, and (3) Subsections (1) and (2) apply to the 2000 and subsequent taxation years. 123. (1) Subparagraph 128.1(1)(b)(i) of the Act is replaced by the following: (i) property that is a taxable Canadian property, (2) Paragraph 128.1(1)(b) of the Act is amended by adding the word ‘‘and’’ at the end of subparagraph (iii) and by replacing subparagraphs (iv) and (v) with the following: (iv) an excluded right or interest of the taxpayer (other than an interest in a non-resident testamentary trust that was never acquired for consideration), (3) Paragraph 128.1(4)(b) of the Act is replaced by the following:
Fiscal period
(a.1) if the taxpayer is an individual (other than a trust) and carries on a business at the particular time, otherwise than through a permanent establishment (as defined by regulation) in Canada, (i) the fiscal period of the business is deemed to have ended immediately before the particular time and a new fiscal period of the business is deemed to have begun at the particular time, and (ii) for the purpose of determining the fiscal period of the business after the particular time, the taxpayer is deemed not to have established a fiscal period of the business before the particular time;
Deemed disposition
(b) the taxpayer is deemed to have disposed, at the time (in this paragraph and paragraph (d) referred to as the ‘‘time of disposition’’) that is immediately before the time that is
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immediately before the particular time, of each property owned by the taxpayer other than, if the taxpayer is an individual, (i) real property situated in Canada, a Canadian resource property or a timber resource property, (ii) capital property used in, eligible capital property in respect of or property described in the inventory of, a business carried on by the taxpayer through a permanent establishment (as defined by regulation) in Canada at the particular time, (iii) an excluded right or interest of the taxpayer, (iv) if the taxpayer is not a trust and was not, during the 120-month period that ends at the particular time, resident in Canada for more than 60 months, property that was owned by the taxpayer at the time the taxpayer last became resident in Canada or that was acquired by the taxpayer by inheritance or bequest after the taxpayer last became resident in Canada, and (v) any property in respect of which the taxpayer elects under paragraph (6)(a) for the taxation year that includes the first time, after the particular time, at which the taxpayer becomes resident in Canada, for proceeds equal to its fair market value at the time of disposition, which proceeds are deemed to have become receivable and to have been received by the taxpayer at the time of disposition;
(4) Paragraphs 128.1(4)(d) to (f) of the Act are replaced by the following: Individual — elective disposition
(d) notwithstanding paragraphs (b) to (c), if the taxpayer is an individual (other than a trust) and so elects in prescribed form and manner in respect of a property described in subparagraph (b)(i) or (ii), (i) the taxpayer is deemed to have disposed of the property at the time of
Impôt sur le re disposition for proceeds equal to its fair market value at that time and to have reacquired the property at the particular time at a cost equal to those proceeds, (ii) the taxpayer’s income for the taxation year that includes the particular time is deemed to be the greater of (A) that income determined without reference to this subparagraph, and (B) the lesser of (I) that income determined without reference to this subsection, and (II) that income determined without reference to subparagraph (i), and (iii) each of the taxpayer’s non-capital loss, net capital loss, restricted farm loss, farm loss and limited partnership loss for the taxation year that includes the particular time is deemed to be the lesser of (A) that amount determined without reference to this subparagraph, and (B) the greater of (I) that amount determined without reference to this subsection, and (II) that amount determined without reference to subparagraph (i); and
Employee CCPC stock option shares
(d.1) if the taxpayer is deemed by paragraph (b) to have disposed of a share that was acquired before February 28, 2000 under circumstances to which subsection 7(1.1) applied, there shall be deducted from the taxpayer’s proceeds of disposition the amount that would, if section 7 were read without reference to subsection 7(1.6), be added under paragraph 53(1)(j) in computing the adjusted cost base to the taxpayer of the share as a consequence of the deemed disposition.
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(5) Section 128.1 of the Act is amended by adding the following after subsection (4): Instalment interest
(5) If an individual is deemed by subsection (4) to have disposed of a property in a taxation year, in applying sections 155 and 156 and subsections 156.1(1) to (3) and 161(2), (4) and (4.01) and any regulations made for the purposes of those provisions, the individual’s total taxes payable under this Part and Part I.1 for the year are deemed to be the lesser of (a) the individual’s total taxes payable under this Part and Part I.1 for the year, determined before taking into consideration the specified future tax consequences for the year, and (b) the amount that would be determined under paragraph (a) if subsection (4) did not apply to the individual for the year.
Returning former resident
(6) If an individual (other than a trust) becomes resident in Canada at a particular time in a taxation year and the last time (in this subsection referred to as the ‘‘emigration time’’), before the particular time, at which the individual ceased to be resident in Canada was after October 1, 1996, (a) subject to paragraph (b), if the individual so elects in writing and files the election with the Minister on or before the individual’s filing-due date for the year, paragraphs (4)(b) and (c) do not apply to the individual’s cessation of residence at the emigration time in respect of all properties that were taxable Canadian properties of the individual throughout the period that began at the emigration time and that ends at the particular time; (b) where, if a property in respect of which an election under paragraph (a) is made had been acquired by the individual at the emigration time at a cost equal to its fair market value at the emigration time and had been disposed of by the individual immediately before the particular time for proceeds of disposition equal to its fair market value
Impôt sur le re immediately before the particular time, the application of subsection 40(3.7) would reduce the amount that would, but for that subsection and this subsection, be the individual’s loss from the disposition, (i) the individual is deemed to have disposed of the property at the time of disposition (within the meaning assigned by paragraph (4)(b)) in respect of the emigration time for proceeds of disposition equal to the total of (A) the adjusted cost base to the individual of the property immediately before the time of disposition, and (B) the amount, if any, by which that reduction exceeds the lesser of (I) the adjusted cost base to the individual of the property immediately before the time of disposition, and (II) the amount, if any, that the individual specifies for the purposes of this paragraph in the election under paragraph (a) in respect of the property, (ii) the individual is deemed to have reacquired the property at the emigration time at a cost equal to the amount, if any, by which the amount determined under clause (i)(A) exceeds the lesser of that reduction and the amount specified by the individual under subclause (i)(B)(II), and (iii) for the purpose of section 119, the individual is deemed to have disposed of the property immediately before the particular time; (c) if the individual so elects in writing and files the election with the Minister on or before the individual’s filing-due date for the year, in respect of each property that the individual owned throughout the period that began at the emigration time and that ends at the particular time and that is deemed by paragraph (1)(b) to have been disposed of because the individual became resident in Canada, notwithstanding para���
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graphs (1)(c) and (4)(b) the individual’s proceeds of disposition at the time of disposition (within the meaning assigned by paragraph (4)(b)), and the individual’s cost of acquiring the property at the particular time, are deemed to be those proceeds and that cost, determined without reference to this paragraph, minus the least of (i) the amount that would, but for this paragraph, have been the individual’s gain from the disposition of the property deemed by paragraph (4)(b) to have occurred, (ii) the fair market value of the property at the particular time, and (iii) the amount that the individual specifies for the purposes of this paragraph in the election; and (d) notwithstanding subsections 152(4) to (5), any assessment of tax that is payable under this Act by the individual for any taxation year that is before the year that includes the particular time and that is not before the year that includes the emigration time shall be made that is necessary to take an election under this subsection into account, except that no such assessment shall affect the computation of (i) interest payable under this Act to or by a taxpayer in respect of any period that is before the day on which the taxpayer’s return of income for the taxation year that includes the particular time is filed, or (ii) any penalty payable under this Act.
Returning trust beneficiary
(7) If an individual (other than a trust) (a) becomes resident in Canada at a particular time in a taxation year, (b) owns at the particular time a property that the individual last acquired on a trust distribution to which subsection 107(2) would, but for subsection 107(5), have applied and at a time (in this subsection
Impôt sur le re referred to as the ‘‘distribution time’’) that was after October 1, 1996 and before the particular time, and (c) was a beneficiary of the trust at the last time, before the particular time, at which the individual ceased to be resident in Canada, the following rules apply: (d) subject to paragraphs (e) and (f), if the individual and the trust jointly so elect in writing and file the election with the Minister on or before the earlier of their filing-due dates for their taxation years that include the particular time, subsection 107(2.1) does not apply to the distribution in respect of all properties acquired by the individual on the distribution that were taxable Canadian properties of the individual throughout the period that began at the distribution time and that ends at the particular time, (e) paragraph (f) applies in respect of the individual, the trust and a property in respect of which an election under paragraph (d) is made where, if the individual (i) had been resident in Canada at the distribution time, (ii) had acquired the property at the distribution time at a cost equal to its fair market value at that time, (iii) had ceased to be resident in Canada immediately after the distribution time, and (iv) had, immediately before the particular time, disposed of the property for proceeds of disposition equal to its fair market value immediately before the particular time, the application of subsection 40(3.7) would reduce the amount that would, but for that subsection and this subsection, have been the individual’s loss from the disposition, (f) where this paragraph applies in respect of an individual, a trust and a property, (i) notwithstanding paragraph 107(2.1)(a), the trust is deemed to have
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Income Ta disposed of the property at the distribution time for proceeds of disposition equal to the total of (A) the cost amount to the trust of the property immediately before the distribution time, and (B) the amount, if any, by which the reduction under subsection 40(3.7) described in paragraph (e) exceeds the lesser of (I) the cost amount to the trust of the property immediately before the distribution time, and (II) the amount, if any, which the individual and the trust jointly specify for the purposes of this paragraph in the election under paragraph (d) in respect of the property, and (ii) notwithstanding paragraph 107(2.1)(b), the individual is deemed to have acquired the property at the distribution time at a cost equal to the amount, if any, by which the amount otherwise determined under paragraph 107(2)(b) exceeds the lesser of the reduction under subsection 40(3.7) described in paragraph (e) and the amount specified under subclause (i)(B)(II),
(g) if the individual and the trust jointly so elect in writing and file the election with the Minister on or before the later of their filing-due dates for their taxation years that include the particular time, in respect of each property that the individual owned throughout the period that began at the distribution time and that ends at the particular time and that is deemed by paragraph (1)(b) to have been disposed of because the individual became resident in Canada, notwithstanding paragraphs 107(2.1)(a) and (b), the trust’s proceeds of disposition under paragraph 107(2.1)(a) at the distribution time, and the individual’s cost of acquiring the property at the particular time, are deemed to be those proceeds and that cost determined without reference to this paragraph, minus the least of
Impôt sur le re (i) the amount that would, but for this paragraph, have been the trust’s gain from the disposition of the property deemed by paragraph 107(2.1)(a) to have occurred, (ii) the fair market value of the property at the particular time, and (iii) the amount that the individual and the trust jointly specify for the purposes of this paragraph in the election, (h) if the trust ceases to exist before the individual’s filing-due date for the individual’s taxation year that includes the particular time, (i) an election or specification described in this subsection may be made by the individual alone in writing if the election is filed with the Minister on or before that filing-due date, and (ii) if the individual alone makes such an election or specification, the individual and the trust are jointly and severally liable for any amount payable under this Act by the trust as a result of the election or specification, and (i) notwithstanding subsections 152(4) to (5), such assessment of tax payable under the Act by the trust or the individual for any year that is before the year that includes the particular time and that is not before the year that includes the distribution time shall be made as is necessary to take an election under this subsection into account, except that no such assessment shall affect the computation of (i) interest payable under this Act to or by the trust or the individual in respect of any period that is before the individual’s filing-due date for the taxation year that includes the particular time, or (ii) any penalty payable under this Act.
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Post-emigration loss
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(8) If an individual (other than a trust) (a) was deemed by paragraph (4)(b) to have disposed of a capital property at any particular time after October 1, 1996, (b) has disposed of the property at a later time at which the property was a taxable Canadian property of the individual, and (c) so elects in writing in the individual’s return of income for the taxation year that includes the later time, there shall, except for the purpose of paragraph (4)(c), be deducted from the individual’s proceeds of disposition of the property at the particular time, and added to the individual’s proceeds of disposition of the property at the later time, an amount equal to the least of (d) the amount specified in respect of the property in the election, (e) the amount that would, but for the election, be the individual’s gain from the disposition of the property at the particular time, and (f) the amount that would be the individual’s loss from the disposition of the property at the later time, if the loss were determined having reference to every other provision of this Act including, for greater certainty, subsection 40(3.7) and section 112, but without reference to the election.
Information reporting
(9) An individual who ceases at a particular time in a taxation year to be resident in Canada, and who owns immediately after the particular time one or more reportable properties the total fair market value of which at the particular time is greater than $25,000, shall file with the Minister in prescribed form, on or before the individual’s filing-due date for the year, a list of all the reportable properties that the individual owned immediately after the particular time.
Definitions
(10) The definitions in this subsection apply in this section.
2001 ‘‘excluded right or interest’’ « droit, participation ou intérêt exclu »
Impôt sur le re ‘‘excluded right or interest’’ of a taxpayer who is an individual means (a) a right of the individual under, or an interest of the individual in a trust governed by, (i) a registered retirement savings plan or a plan referred to in subsection 146(12) as an ‘‘amended plan’’, (ii) a registered retirement income fund, (iii) a registered education savings plan, (iv) a deferred profit sharing plan or a plan referred to in subsection 147(15) as a ‘‘revoked plan’’, (v) an employees profit sharing plan, (vi) an employee benefit plan (other than a plan described in subparagraph (b)(i) or (ii)), (vii) a plan or arrangement (other than an employee benefit plan) under which the individual has a right to receive in a year remuneration in respect of services rendered by the individual in the year or a prior year, (viii) a superannuation or pension fund or plan (other than an employee benefit plan), (ix) a retirement compensation arrangement, (x) a foreign retirement arrangement, or (xi) a registered supplementary unemployment benefit plan; (b) a right of the individual to a benefit under an employee benefit plan that is (i) a plan or arrangement described in paragraph (j) of the definition ‘‘salary deferral arrangement’’ in subsection 248(1) that would, but for paragraphs (j) and (k) of that definition, be a salary deferral arrangement, or
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Income Ta (ii) a plan or arrangement that would, but for paragraph 6801(c) of the Income Tax Regulations, be a salary deferral arrangement, to the extent that the benefit can reasonably be considered to be attributable to services rendered by the individual in Canada; (c) a right of the individual under an agreement referred to in subsection 7(1); (d) a right of the individual to a retiring allowance; (e) a right of the individual under, or an interest of the individual in, a trust that is (i) an employee trust, (ii) an amateur athlete trust, (iii) a cemetery care trust, or (iv) a trust governed by an eligible funeral arrangement; (f) a right of the individual to receive a payment under (i) an annuity contract, or (ii) an income-averaging annuity contract; (g) a right of the individual to a benefit under (i) the Canada Pension Plan or a provincial plan described in section 3 of that Act, (ii) the Old Age Security Act, (iii) a provincial pension plan prescribed for the purpose of paragraph 60(v), or (iv) a plan or arrangement instituted by the social security legislation of a country other than Canada or of a state, province or other political subdivision of such a country; (h) a right of the individual to a benefit described in any of subparagraphs 56(1)(a)(iii) to (vi); (i) a right of the individual to a payment out of a NISA Fund No. 2;
Impôt sur le re (j) an interest of the individual in a personal trust resident in Canada if the interest was never acquired for consideration and did not arise as a consequence of a qualifying disposition by the individual (within the meaning that would be assigned by subsection 107.4(1) if that subsection were read without reference to paragraphs 107.4(1)(h) and (i)); (k) an interest of the individual in a non-resident testamentary trust if the interest was never acquired for consideration; or (l) an interest of the individual in a life insurance policy in Canada, except for that part of the policy in respect of which the individual is deemed by paragraph 138.1(1)(e) to have an interest in a related segregated fund trust.
‘‘reportable property’’ « bien à déclarer »
‘‘reportable property’’ of an individual at a particular time means any property other than (a) money that is legal tender in Canada and deposits of such money; (b) property that would be an excluded right or interest of the individual if the definition ‘‘excluded right or interest’’ in this subsection were read without reference to paragraphs (c), (j) and (l) of that definition; (c) if the individual is not a trust and was not, during the 120-month period that ends at the particular time, resident in Canada for more than 60 months, property described in subparagraph (4)(b)(iv) that is not taxable Canadian property; and (d) any item of personal-use property the fair market value of which, at the particular time, is less than $10,000.
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(6) Subsections (1) to (5) (other than paragraph 128.1(4)(d.1) of the Act, as enacted by subsection (4), and subsection 128.1(9) of the Act and the definition ‘‘reportable property’’ in subsection 128.1(10) of the Act, as enacted by subsection (5)) apply to changes in residence that occur after October 1, 1996, and (a) an election made under any of paragraphs 128.1(6)(a) and (c), 128.1(7)(d) and (g) and 128.1(8)(c) of the Act, as enacted by subsection (5), by an individual who ceased to be resident in Canada before the day on which this Act receives royal assent, is deemed to have been made in a timely manner if it is made on or before the individual’s filing-due date for the taxation year that includes that day; and (b) a form described in subsection 128.1(9) of the Act, as enacted by subsection (5), filed by an individual who ceased to be resident in Canada before the day on which this Act receives royal assent, is deemed to have been filed in a timely manner if it is filed on or before the individual’s filing-due date for the taxation year that includes that day.
(7) Paragraph 128.1(4)(d.1) of the Act, as enacted by subsection (4), applies to changes in residence that occur after 1992. (8) Subsection 128.1(9) of the Act and the definition ‘‘reportable property’’ in subsection 128.1(10) of the Act, as enacted by subsection (5), apply to changes in residence that occur after 1995. 124. (1) If an individual ceased at any time after 1992 and before October 2, 1996 to be resident in Canada and so elects in writing and files the election with the Minister of National Revenue before the end of the sixth month following the month in which this Act receives royal assent,
Impôt sur le re subparagraph 128.1(4)(b)(iii) of the Act as it read at that time shall, in respect of the cessation of residence, be read as enacted by this Act and as though subsection 128.1(10) of the Act, as enacted by this Act, applied.
(2) Where an individual makes an election under subsection (1), notwithstanding subsections 152(4) to (5) of the Act, any reassessment of the individual’s tax, interest or penalties for any year shall be made that is necessary to take the election into account. 125. (1) The Act is amended by adding the following after section 128.2: Former resident — replaced shares
128.3 If, in a transaction to which section 51, subparagraphs 85.1(1)(a)(i) and (ii) or section 86 or 87 apply, a person acquires a share (in this section referred to as the ‘‘new share’’) in exchange for another share (in this section referred to as the ‘‘old share’’), for the purposes of section 119, subsections 126(2.21) to (2.23), 128.1(6) to (8), 180.1(1.4) and 220(4.5) and (4.6), the person is deemed not to have disposed of the old share, and the new share is deemed to be the same share as the old share. (2) Subsection (1) applies after October 1, 1996. 126. (1) Section 129 of the Act is amended by adding the following after subsection (3):
Application
(3.1) Where, in a taxation year that begins after November 12, 1981, a corporation that last became a private corporation on or before that date and that was throughout the year a private corporation, other than a Canadiancontrolled private corporation, has included in its income for the year an amount in respect of property that the corporation (a) disposed of before November 13, 1981,
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(b) was obligated to dispose of under the terms of an agreement in writing entered into before November 13, 1981, or (c) is deemed by subsection 44(2) to have disposed of at any time after November 12, 1981 because of an event referred to in paragraph (b), (c) or (d) of the definition ‘‘proceeds of disposition’’ in section 54 in respect of the disposition that occurred before November 13, 1981, paragraph 3(a) shall apply as if the corporation were a Canadian-controlled private corporation throughout the year, except that the total of the amounts determined under that paragraph in respect of the corporation for the year shall not exceed the amount that would be so determined if the only income of the corporation for the year were the amount included in respect of the disposition of such property. (2) Subsection (1) applies to taxation years that end after June 1995 and before 2003. 127. (1) Subparagraph 130.1(1)(a)(ii) of the Act is amended by replacing the reference to the fraction ‘‘3/4’’ with a reference to the fraction ‘‘1/2’’. (2) Subparagraph 130.1(4)(a)(i) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (3) Paragraph 130.1(4)(b) of the Act is replaced by the following: (b) notwithstanding any other provision of this Act, any amount received by a taxpayer in a taxation year as, on account of, in lieu of payment of or in satisfaction of, the dividend shall not be included in computing the taxpayer’s income for the year as income from a share of the capital stock of the corporation, and (i) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 18, 2000, 9/8 of the dividend is
Impôt sur le re deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (ii) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000, and the taxation year of the taxpayer includes February 27, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year and before February 28, 2000, (iii) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000 and the taxation year of the taxpayer began after October 17, 2000, 3/2 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (iii.1) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000 and the taxation year of the taxpayer begins after February 27, 2000 and ends after October 17, 2000, 9/8 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the year and before October 18, 2000, (iv) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000 and before October 18, 2000, and the taxation year of the taxpayer began after October 17, 2000, 4/3 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (v) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000, and before October 18, 2000 and the taxation year of
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Income Ta the taxpayer includes October 17, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year and in the period that began after February 27, 2000 and ended before October 18, 2000, (vi) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000, and before October 17, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 17, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, and (vii) in any other case, the dividend is deemed to be a capital gain of the taxpayer from the disposition of capital property after October 17, 2000 and in the year.
(4) Section 130.1 of the Act is amended by adding the following after subsection (4.1): Reporting
(4.2) Where paragraph (4)(b) applies to a dividend paid by a mortgage investment corporation to a shareholder of any class of shares of its capital stock in the period that begins 91 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 90 days after the end of that year, the corporation shall disclose to the shareholder in prescribed form the amount of the dividend that is in respect of capital gains realized on dispositions of property that occurred (a) before February 28, 2000, (b) after February 27, 2000 and before October 18, 2000, and
Impôt sur le re (c) after October 17, 2000 and, if it does not do so, the dividend is deemed to be in respect of capital gains from dispositions of property that occurred before February 28, 2000.
Allocation
(4.3) Where subsection (4) applies in respect of a dividend paid by a mortgage investment corporation at any time in the period that begins 91 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 90 days after the end of that year, and the corporation does not elect under subsection (4.4), the following rules apply: (a) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the particular period that began at the beginning of the year and ended at the end of February 27, 2000 is deemed to be that proportion of the dividend that the net capital gains of the corporation from the dispositions of property in the particular period is of the total of the corporation’s net capital gains from the dispositions of property in each of the particular periods referred to in this subsection, (b) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the particular period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000 is deemed to be that proportion of the dividend that the net capital gains of the corporation from the dispositions of property in the particular period is of the total of the corporation’s net capital gains from the dispositions of property in each of the particular periods referred to in this subsection, (c) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the particular period that begins at the beginning of October 18, 2000 and ends at the end
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of the year, is deemed to be that proportion of the dividend that the net capital gains of the corporation from the dispositions of property in the particular period is of the total of the corporation’s net capital gains from the dispositions of property in each of the periods referred to in this subsection, and in this subsection net capital gains from dispositions of property in a particular period means the amount, if any, by which the corporation’s capital gains from dispositions of property in the particular period exceeds the corporation’s capital losses from dispositions of property in the particular period.
Allocation
(4.4) Where subsection (4) applies in respect of a dividend paid by a mortgage investment corporation in the period that begins 91 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 90 days after the end of that year, and the corporation so elects under this subsection in its return of income for the year, the following rules apply: (a) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and before February 28, 2000 is deemed to be that proportion of the dividend that the number of days that are in that year and before February 28, 2000 is of the number of days that are in that year; (b) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000 is deemed to be that proportion of the dividend that the number of days that are in the year and in that period is of the number of days that are in the year; and
Impôt sur le re (c) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the period that begins at the beginning of October 18, 2000 and ends at the end of the year, is deemed to be that proportion of the dividend that the number of days that are in the year and in that period is of the number of days that are in the year.
Allocation
(4.5) Where no dividend to which subsection (4.4) applies is paid by a mortgage investment corporation in respect of its net taxable capital gains for its taxation year that includes February 28, 2000 or October 17, 2000, the corporation has net capital gains or net capital losses from dispositions of property in the year, and the corporation so elects under this subsection in its return of income for the year (a) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred before February 28, 2000 is deemed to be that proportion of the net capital gains or net capital losses respectively that the number of days that are in the year and before February 28, 2000 is of the number of days that are in the year, (b) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000, is deemed to be that proportion of the net capital gains or net capital losses respectively that the number of days that are in the year and in that period is of the number of days that are in the year, and (c) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of October 18, 2000 and ended at the end of the year, is deemed to be that proportion of the net capital gains or net capital losses
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respectively that the number of days that are in the year and in that period is of the number of days that are in the year, and, for the purpose of this subsection, (d) the net capital gains of a mortgage investment corporation from dispositions of property in a year is the amount, if any, by which the corporation’s capital gains from dispositions of property in a year exceeds the corporation’s capital losses from dispositions of property in the year, and (e) the net capital losses of a mortgage investment corporation from dispositions of property in a year is the amount, if any, by which the corporation’s capital losses from dispositions of property in a year exceeds the corporation’s capital gains from dispositions of property in the year.
(5) Subsections (1) to (4) apply to taxation years that end after February 27, 2000 except that, for a corporation’s taxation year that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, (a) the reference to the fraction ‘‘1/2’’ in subparagraph 130.1(1)(a)(ii) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the corporation for the year; and (b) the reference to the word ‘‘twice’’ in subparagraph 130.1(4)(a)(i) of the Act, as enacted by subsection (2), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the corporation for the year, multiplied by’’. 128. (1) Paragraph 131(1)(b) of the Act is replaced by the following:
Impôt sur le re (b) notwithstanding any other provision of this Act, any amount received by a taxpayer in a taxation year as, on account of, in lieu of payment of or in satisfaction of, the dividend shall not be included in computing the taxpayer’s income for the year as income from a share of the capital stock of the corporation, and (i) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000, and the taxation year of the taxpayer began after February 27, 2000 and ended before October 18, 2000, 9/8 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (ii) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000, and the taxation year of the taxpayer includes February 27, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year and before February 28, 2000, (iii) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000, and the taxation year of the taxpayer began after October 17, 2000, 3/2 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (iii.1) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred before February 28, 2000 and the taxation year of the taxpayer begins after February 27, 2000 and ends after October 17, 2000, 9/8 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of capital property in the year and before October 18, 2000,
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Income Ta (iv) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000 and before October 18, 2000, and the taxation year of the taxpayer began after October 17, 2000, 4/3 of the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, (v) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000 and before October 18, 2000, and the taxation year of the taxpayer includes October 17, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year and in the period that began after February 27, 2000 and ended before October 18, 2000, (vi) where the dividend was in respect of capital gains of the corporation from dispositions of property that occurred after February 27, 2000, and before October 17, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 18, 2000, the dividend is deemed to be a capital gain of the taxpayer from the disposition by the taxpayer of a capital property in the year, and (vii) in any other case, the dividend is deemed to be a capital gain of the taxpayer from the disposition of capital property after October 17, 2000 and in the year,
and, for the purpose of this paragraph, (viii) dividends paid by a corporation are deemed to be paid in respect of the corporation’s net capital gains in the order in which those net capital gains were realized by the corporation, (viii.1) capital gains redemptions are deemed to be made in respect of net capital gains in the order in which those net capital gains were realized by the
Impôt sur le re corporation to the extent that they are not reduced by dividends, and (ix) for the purposes of applying subparagraphs (viii) and (viii.1) (A) net capital gains of a corporation for a year is the amount by which the corporation’s capital gains from dispositions of property in the year exceed the corporation’s capital losses from dispositions of property in the year, (B) net capital losses of a corporation for a year is the amount by which the corporation’s capital losses from dispositions of property in the year exceed the corporation’s capital gains from dispositions of property in the year, (C) net capital gains of a corporation for a year are deemed to be realized evenly throughout the year, and (D) net capital losses of a corporation for a year are deemed to be a capital loss of the corporation from the disposition of property in the following year.
(2) Section 131 of the Act is amended by adding the following after subsection (1.4): Reporting
(1.5) Where paragraph (1)(b) applies to a dividend paid by a mutual fund corporation to a shareholder of any class of shares of its capital stock, the corporation shall disclose to the shareholder in prescribed form the amount of the dividend that is in respect of capital gains realized on dispositions of property that occurred (a) before February 28, 2000, (b) after February 27, 2000 and before October 18, 2000, and (c) after October 17, 2000,
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and if it does not do so, the dividend is deemed to be in respect of capital gains from dispositions of property that occurred before February 28, 2000.
Allocation
(1.6) Where subsection (1) applies in respect of a dividend paid by a mutual fund corporation in the period that begins 60 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 60 days after the end of that year, and the corporation does not elect under subsection (1.7), the following rules apply: (a) the portion of the dividend that is in respect of capital gains of the mutual fund corporation from dispositions of property by the mutual fund corporation in the year and in the particular period that began at the beginning of the year and ended at the end of February 27, 2000 is deemed to be that proportion of the dividend that the corporation’s net capital gains from dispositions of property in the particular period to which the dividend relates is of the total of the corporation’s net capital gains from dispositions of property in each of the particular periods referred to in this subsection, (b) the portion of the dividend that is in respect of capital gains of the mutual fund corporation from dispositions of property by the mutual fund corporation in the year and in the particular period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000 is deemed to be that proportion of the dividend that the corporation’s net capital gains from dispositions of property in the particular period is of the total of the corporation’s net capital gains from dispositions of property in each of the particular periods referred to in this subsection, and (c) the portion of the dividend that is in respect of capital gains of the mutual fund corporation from dispositions of property by the mutual fund corporation in the year and in the particular period that begins at the beginning of October 18, 2000 and ends
Impôt sur le re at the end of the year, is deemed to be that proportion of the dividend that the corporation’s net capital gains from dispositions of property in the particular period is of the total of the corporation’s net capital gains from dispositions of property in each of the particular periods referred to in this subsection, and, in this subsection and in subsection (1.8), net capital gains from dispositions of property in a particular period means the amount, if any, by which the corporation’s capital gains from dispositions of property in the particular period exceeds the corporation’s capital losses from dispositions of property in the particular period.
Allocation
(1.7) Where subsection (1) applies in respect of a dividend paid by a mutual fund corporation in the period that begins 60 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 60 days after the end of that year, and the corporation so elects under this paragraph in its return of income (a) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and before February 28, 2000 is deemed to be that proportion of the dividend that the number of days that are in that year and before February 28, 2000 is of the number of days that are in that year; (b) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000 is deemed to be that proportion of the dividend that the number of days that are in the year and in that period is of the number of days that are in the year; and
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(c) the portion of the dividend that is in respect of capital gains from dispositions of property that occurred in the year and in the period that begins at the beginning of October 18, 2000 and ends at the end of the year, is deemed to be that proportion of the dividend that the number of days that are in the year and in that period is of the number of days that are in the year.
Allocation
(1.8) For the purposes of subsection (1.6) and (1.7), where the total amount of dividends paid by a mutual fund corporation in the period that begins 60 days after the beginning of the corporation’s taxation year that includes February 28, 2000 or October 17, 2000 and ends 60 days after the end of that year and to which subsection (1) applies exceeds the total amount of the corporation’s net capital gains from dispositions of property in that year (a) the amount of those dividends to which subsections (1.6) and (1.7) apply is the amount of the corporation’s net capital gains from dispositions of property in that year, and (b) the amount, if any, by which total amount of the dividends paid by the corporation in the period exceeds the total amount of the corporation’s net capital gains from dispositions of property in that year is deemed to be a dividend in respect of capital gains from dispositions of property in the first of the periods described in subsection (1.6) that ends in the year.
Allocation
(1.9) Where no dividend to which subsection (1.7) applies is paid by a mutual fund corporation in respect of its net taxable capital gains for its taxation year that includes February 28, 2000 or October 17, 2000, the corporation has net capital gains or net capital losses from dispositions of property in the year, and the corporation so elects under this subsection in its return of income for the year
Impôt sur le re (a) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred before February 28, 2000 is deemed to be that proportion of the net capital gains or net capital losses respectively that the number of days that are in the year and before February 28, 2000 is of the number of days that are in the year, (b) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of February 28, 2000 and ended at the end of October 17, 2000, is deemed to be that proportion of the net capital gains or net capital losses respectively that the number of days that are in the year and in that period is of the number of days that are in the year, and (c) the portion of those net capital gains and net capital losses that is in respect of capital gains and losses from dispositions of property that occurred in the year and in the period that began at the beginning of October 18, 2000 and ended at the end of the year, is deemed to be that proportion of the net capital gains or net capital losses respectively that the number of days that are in the year and in that period is of the number of days that are in the year, and, for the purpose of this subsection, (d) the net capital gains of a mutual fund corporation from dispositions of property in the year is the amount, if any, by which the corporation’s capital gains from dispositions of property in a year exceeds the corporation’s capital losses from dispositions of property in the year, and (e) the net capital losses of a mutual fund corporation from dispositions of property in the year is the amount, if any, by which the corporation’s capital losses from dispositions of property in a year exceeds the corporation’s capital gains from dispositions of property in the year.
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(3) Paragraph 131(2)(a) of the Act is replaced by the following: (a) may, on sending the notice of assessment for the year, refund an amount (in this subsection referred to as its ‘‘capital gains refund’’ for the year) equal to the lesser of (i) the total of (A) 14% of the total of (I) all capital gains dividends paid by the corporation in the period commencing 60 days after the beginning of the year and ending 60 days after the end of the year, and (II) its capital gains redemptions for the year, and (B) the amount, if any, that the Minister determines to be reasonable in the circumstances, after giving consideration to the percentages applicable in determining the corporation’s capital gains refund for the year and preceding taxation years and the percentages applicable in determining the corporation’s refundable capital gains tax on hand at the end of the year, and (ii) the corporation’s refundable capital gains tax on hand at the end of the year; and
(4) Subparagraph (b)(iii) of the definition ‘‘capital gains dividend account’’ in subsection 131(6) of the Act is replaced by the following: (iii) the total of all amounts each of which is
Impôt sur le re (A) an amount equal to 100/21 of its capital gains refund for any taxation year throughout which it was a mutual fund corporation where the year ended (I) more than 60 days before that time, and (II) before February 28, 2000, (B) an amount equal to 100/18.7 of its capital gains refund for any taxation year throughout which it was a mutual fund corporation where the year ended (I) more than 60 days before that time, and (II) after February 27, 2000 and before October 18, 2000, or (C) an amount equal to 100/14 of its capital gain refund for any taxation year throughout which it was a mutual fund corporation where the year ended (I) more than 60 days before that time, and (II) after October 17, 2000;
(5) The description of C in the definition ‘‘capital gains redemptions’’ in subsection 131(6) of the Act is amended by replacing the reference to the fraction ‘‘100/21’’ with a reference to the fraction ‘‘100/14’’. (6) Paragraph 131(8.1)(a) of the Act is replaced by the following: (a) throughout the period that begins on the later of February 21, 1990 and the day of its incorporation and ends at that time, all or substantially all of its property consisted of property other than property that would be taxable Canadian property if the definition ‘‘taxable Canadian property’’ in subsection 248(1) were read without reference to paragraph (b) of that definition; or
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(7) Subsections (1) to (5) apply to taxation years that end after February 27, 2000 except that, for a taxation year of a mutual fund corporation that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, (a) the reference to the percentage ‘‘14%’’ in clause 131(2)(a)(i)(A) of the Act, as enacted by subsection (3), shall be read as a reference to the percentage determined when 28% is multiplied by the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the corporation for the year; (b) the reference to the fraction ‘‘100/18.7’’ in clause (b)(iii)(B) and the fraction ‘‘100/14’’ in clause (b)(iii)(C) of the definition ‘‘capital gains dividend account’’ in subsection 131(6) of the Act, as enacted by subsection (4), shall be read as a reference to the fraction ‘‘100/28X’’, where ‘‘X’’ is the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the corporation for the year; and (c) the reference to the fraction ‘‘100/14’’ in the description of C in the definition ‘‘capital gains redemptions’’ in subsection 131(6) of the Act, as enacted by subsection (5), shall be read as a reference to the fraction ‘‘100/28X’’, where ‘‘X’’ is the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the corporation for the year.
(8) Subsection (6) applies after October 1, 1996. 129. (1) Paragraph 132(1)(a) of the Act is replaced by the following: (a) may, on sending the notice of assessment for the year, refund an amount (in this subsection referred to as its ‘‘capital gains refund’’ for the year) equal to the lesser of (i) the total of
Impôt sur le re (A) 14.5% of the total of the trust’s capital gains redemptions for the year, and (B) the amount, if any, that the Minister determines to be reasonable in the circumstances, after giving consideration to the percentages applicable in determining the trust’s capital gains refunds for the year and preceding taxation years and the percentages applicable in determining the trust’s refundable capital gains tax on hand at the end of the year, and (ii) the trust’s refundable capital gains tax on hand at the end of the year; and
(2) The first formula in the definition ‘‘capital gains redemptions’’ in subsection 132(4) of the Act is replaced by the following: (A/B x (C + D)) - E (3) The description of A in the definition ‘‘capital gains redemptions’’ in subsection 132(4) of the Act is replaced by the following: A is the total of all amounts each of which is the portion of an amount paid by the trust in the year on the redemption of a unit in the trust that is included in the proceeds of disposition in respect of that redemption, (4) The description of C in the definition ‘‘capital gains redemptions’’ in subsection 132(4) of the Act is amended by replacing the reference to the fraction ‘‘100/21.75’’ with a reference to the fraction ‘‘100/14.5’’. (5) The definition ‘‘capital gains redemptions’’ in subsection 132(4) of the Act is amended by striking out the word ‘‘and’’ at the end of the description of C, by adding the word ‘‘and’’ at the end of the description of D and by adding the following after the description of D: E is twice the total of all amounts each of which is an amount designated under subsection 104(21) for the year by the trust in respect of a unit of the trust
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Income Ta redeemed by the trust at any time in the year and after December 21, 2000;
(6) Section 132 of the Act is amended by adding the following after subsection (6.1): Retention of status as mutual fund trust
(6.2) A trust is deemed to be a mutual fund trust throughout a calendar year where (a) at any time in the year, the trust would, if this section were read without reference to this subsection, have ceased to be a mutual fund trust (i) because the condition described in paragraph 108(2)(a) ceased to be satisfied, (ii) because of the application of paragraph (6)(c), or (iii) because the trust ceased to exist; (b) the trust was a mutual fund trust at the beginning of the year; and (c) the trust would, throughout the portion of the year throughout which it was in existence, have been a mutual fund trust if (i) in the case where the condition described in paragraph 108(2)(a) was satisfied at any time in the year, that condition were satisfied throughout the year, (ii) subsection (6) were read without reference to paragraph (c) of that subsection, and (iii) this section were read without reference to this subsection. (7) Paragraphs 132(7)(a) and (b) of the Act are replaced by the following: (a) throughout the period that began on the later of February 21, 1990 and the day of its creation and ended at that time, all or substantially all of its property consisted of property other than property that would be taxable Canadian property if the definition ‘‘taxable Canadian property’’ in subsection 248(1) were read without reference to paragraph (b) of that definition; or
Impôt sur le re (b) it has not issued any unit (other than a unit issued to a person as a payment, or in satisfaction of the person’s right to enforce payment, of an amount out of the trust’s income determined before the application of subsection 104(6), or out of the trust’s capital gains) of the trust after February 20, 1990 and before that time to a person who, after reasonable inquiry, it had reason to believe was non-resident, except where the unit was issued to that person under an agreement in writing entered into before February 21, 1990.
(8) Subsections (1), (2), (4) and (5) apply to taxation years that end after February 27, 2000 except that, for a taxation year of a mutual fund trust that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, (a) the reference to the percentage ‘‘14.5%’’ in paragraph 132(1)(a) of the Act, as enacted by subsection (1), shall be read as a reference to the percentage determined when 29% is multiplied by the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the trust for the year; (b) the reference to the fraction ‘‘100/14.5’’ in the description of C in the definition ‘‘capital gains redemptions’’ in subsection 132(4) of the Act, as enacted by subsection (4), shall be read as a reference to the fraction ‘‘100/29X’’, where ‘‘X’’ is the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the trust for the year; and (c) the reference to the word ‘‘twice’’ in the description of E in the definition ‘‘capital gains redemption’’ in subsection 132(4) of the Act, as enacted by subsection (5), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the
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Income Tax Amendments Act, 2000, that applies to the taxpayer for the year, multiplied by’’.
(9) Subsection (3) applies to taxation years that end after February 27, 2000. (10) Subsection (6) applies to the 1990 and subsequent taxation years. (11) Paragraph 132(7)(a) of the Act, as enacted by subsection (7), applies after October 1, 1996. (12) Paragraph 132(7)(b) of the Act, as enacted by subsection (7), applies after February 20, 1990. 130. (1) Paragraph 132.11(1)(b) of the Act is replaced by the following: (b) where the trust’s taxation year ends on December 15 because of paragraph (a), subject to subsection (1.1), each subsequent taxation year of the trust is deemed to be the period that begins at the beginning of December 16 of a calendar year and ends at the end of December 15 of the following calendar year or at such earlier time as is determined under paragraph 132.2(1)(b) or subsection 142.6(1); and (2) Section 132.11 of the Act is amended by adding the following after subsection (1): Revocation of election
(1.1) Where a particular taxation year of a trust ends on December 15 of a calendar year because of an election made under paragraph (1)(a), the trust applies to the Minister in writing before December 15 of that calendar year (or before a later time that is acceptable to the Minister) to have this subsection apply to the trust, with the concurrence of the Minister (a) the trust’s taxation year following the particular taxation year is deemed to begin immediately after the end of the particular taxation year and end at the end of that calendar year; and
Impôt sur le re (b) each subsequent taxation year of the trust is deemed to be determined as if that election had not been made. (3) Subsection 132.11(4) of the Act is replaced by the following:
Amounts paid or payable to beneficiaries
(4) For the purposes of subsections (5) and (6) and 104(6) and (13) and notwithstanding subsection 104(24), each amount that is paid, or that becomes payable, by a trust to a beneficiary after the end of a particular taxation year of the trust that ends on December 15 of a calendar year because of subsection (1) and before the end of that calendar year, is deemed to have been paid or to have become payable, as the case may be, to the beneficiary at the end of the particular year and not at any other time. (4) Subsection 132.11(6) of the Act is amended by adding the word ‘‘and’’ at the end of paragraph (a), by striking out the word ‘‘and’’ at the end of paragraph (b) and by repealing paragraph (c). (5) Subsections (1) and (2) apply to taxation years that end after 1999. (6) Subsections (3) and (4) apply to the 2000 and subsequent taxation years. 131. (1) Paragraph 133(1)(c) of the Act is replaced by the following: (c) the only taxable capital gains and allowable capital losses referred to in paragraph 3(b) were from dispositions of taxable Canadian property, (2) Paragraph 133(1)(d) of the Act is amended by replacing the reference to the expression ‘‘4/3 of’’ with a reference to the word ‘‘twice’’. (3) Paragraph (a) of the definition ‘‘Canadian property’’ in subsection 133(8) of the Act is replaced by the following: (a) taxable Canadian property, and (4) The description of M in paragraph (c) of the definition ‘‘capital gains dividend account’’ in subsection 133(8) of the Act is replaced by the following:
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Income Ta M is the total of the corporation’s capital gains for taxation years ending in the period from dispositions in the period of taxable Canadian property, and
(5) The portion of the definition ‘‘nonresident-owned investment corporation’’ in subsection 133(8) of the Act after paragraph (d) is replaced by the following: (e) it has, on or before the earlier of February 27, 2000 and the day that is 90 days after the beginning of its first taxation year that begins after 1971, elected in prescribed manner to be taxed under this section, and (f) it has not, before the end of the last taxation year in the period, revoked in prescribed manner its election, except that (g) a new corporation (within the meaning assigned by section 87) formed as a result of an amalgamation after June 18, 1971 of two or more predecessor corporations is not a non-resident-owned investment corporation unless each of the predecessor corporations was, immediately before the amalgamation, a nonresident-owned investment corporation, (h) where a corporation is a new corporation described in paragraph (g), and each of the predecessor corporations elected in a timely manner under paragraph (e), paragraph (e) shall be read, in its application to the new corporation, without reference to the words ‘‘the earlier of February 27, 2000 and’’, and (i) subject to section 134.1, a corporation is not a non-resident-owned investment corporation in any taxation year that ends after the earlier of, (i) the first time, if any, after February 27, 2000 at which the corporation effects an increase in capital, and (ii) the corporation’s last taxation year that begins before 2003;
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(6) Subsection 133(8) of the Act is amended by adding the following in alphabetical order: ‘‘increase in capital’’ « augmentation de capital »
‘‘increase in capital’’ in respect of a corporation means a transaction (other than a transaction carried out pursuant to an agreement in writing made before February 28, 2000, referred to in this definition as a ‘‘specified transaction’’) in the course of which the corporation issues additional shares of its capital stock or incurs indebtedness, if the transaction has the effect of increasing the total of (a) the corporation’s liabilities, and (b) the fair market value of all the shares of its capital stock to an amount that is substantially greater than that total would have been on February 27, 2000 if all specified transactions had been carried out immediately before that day; (7) Subsections (1), (3) and (4) apply after October 1, 1996. (8) Subsection (2) applies to taxation years that end after February 27, 2000 except that, for the taxation year of a corporation that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 and ended before October 17, 2000, the reference to the word ‘‘twice’’ in paragraph 133(1)(d) of the Act, as enacted by subsection (2), shall be read as a reference to the expression ‘‘the fraction that is the reciprocal of the fraction in paragraph 38(a), as enacted by subsection 22(1) of the Income Tax Amendments Act, 2000, that applies to the taxpayer for the year, multiplied by’’. (9) Subsections (5) and (6) apply after February 27, 2000. 132. (1) The Act is amended by adding the following after section 134:
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134.1 (1) This section applies to a corporation that (a) was a non-resident-owned investment corporation in a taxation year; (b) is not a non-resident-owned investment corporation in the following taxation year (in this section referred to as the corporation’s ‘‘first non-NRO year’’); and (c) elects in writing filed with the Minister on or before the corporation’s filing-due date for its first non-NRO year to have this section apply.
Application
(2) A corporation to which this section applies is deemed to be a non-resident-owned investment corporation in its first non-NRO year for the purposes of applying, in respect of dividends paid on shares of its capital stock in its first non-NRO year to a non-resident person or a non-resident-owned investment corporation, subsections 133(6) to (9) (other than the definition ‘‘non-resident-owned investment corporation’’ in subsection 133(8)) and section 212 and any tax treaty.
Revocation
134.2 (1) This section applies to a corporation that (a) revokes at any time (in this section described as the ‘‘revocation time’’) its election to be taxed under section 133; (b) elects to have this section apply, by filing an election in writing with the Minister on or before the corporation’s filing-due date for the taxation year of the corporation (in this section referred to as the ‘‘revocation year’’) that would have included the revocation time if the corporation had not so elected; and (c) specifies in the election a time (in this section referred to as the ‘‘elected time’’) that is in the revocation year and is not after the revocation time.
Consequences
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(2) Where this section applies to a corporation, (a) the corporation’s taxation year that would have included the elected time, if the corporation had not elected to have this section apply, is deemed to end immediately before the elected time; (b) a new taxation year of the corporation is deemed to begin at the elected time; and (c) notwithstanding paragraph (f) of the definition ‘‘non-resident-owned investment corporation’’ in subsection 133(8), the corporation is deemed to be a non-residentowned investment corporation for the period that begins at the beginning of the revocation year and ends immediately before the elected time.
(2) Section 134.1 of the Act, as enacted by subsection (1), applies to a corporation that ceases to be a non-resident-owned investment corporation because of a transaction or event that occurs, or a circumstance that arises, in a taxation year of the corporation that ends after February 27, 2000. (3) Section 134.2 of the Act, as enacted by subsection (1), applies to revocations made after February 27, 2000. (4) An election under paragraph 134.1(1)(c) or 134.2(1)(b) of the Act, as enacted by subsection (1), is deemed to have been made in a timely manner if it is made on or before the electing corporation’s filing-due date for its first taxation year that ends after this Act receives royal assent.
133. (1) Subparagraph 138(5)(b)(i) of the Act is replaced by the following: (i) interest on borrowed money used to acquire designated insurance property for the year, or to acquire property for which designated insurance property for
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Income Ta the year was substituted property, for the period in the year during which the designated insurance property was held by the insurer in respect of the business,
(2) Paragraph 138(5)(b) of the Act is amended by adding the word ‘‘or’’ at the end of subparagraph (ii), by striking out the word ‘‘or’’ at the end of subparagraph (iii) and by repealing subparagraph (iv). (3) The portion of subsection 138(11.3) of the Act after paragraph (b) is replaced by the following: the following rules apply: (c) the insurer is deemed to have disposed of the property at the beginning of the year for proceeds of disposition equal to its fair market value at that time and to have reacquired the property immediately after that time at a cost equal to that fair market value, (d) where paragraph (a) applies, any gain or loss arising from the disposition is deemed not to be a gain or loss from designated insurance property of the insurer in the year, and (e) where paragraph (b) applies, any gain or loss arising from the disposition is deemed to be a gain or loss from designated insurance property of the insurer in the year. (4) Paragraph 138(11.5)(b) of the Act is replaced by the following: (b) the transferor has, at that time or within 60 days after that time, transferred all or substantially all of the property (in this subsection referred to as the ‘‘transferred property) that is owned by it at that time and that was designated insurance property in respect of the business for the taxation year that, because of paragraph (h), ended immediately before that time (i) to a corporation (in this subsection referred to as the ‘‘transferee’’) that is a qualified related corporation (within the meaning assigned by subsection 219(8)) of the transferor that began immediately after that time to carry on that insurance business in Canada, and
Impôt sur le re (ii) for consideration that includes shares of the capital stock of the transferee, (5) Paragraph 138(11.91)(e) of the Act is replaced by the following: (e) the insurer is deemed to have disposed, immediately before the beginning of the particular taxation year, of each property owned by it at that time that is designated insurance property in respect of the business referred to in paragraph (a) for the particular taxation year, for proceeds of disposition equal to the fair market value at that time and to have reacquired, at the beginning of the particular taxation year, the property at a cost equal to that fair market value, and (6) Paragraph 138(11.94)(b) of the Act is replaced by the following: (b) the transferor has, at that time or within 60 days after that time, (i) in the case of a transferor that is a life insurer and that carries on an insurance business in Canada and in a country other than Canada in the year, transferred all or substantially all of the property (in subsection (11.5) referred to as the ‘‘transferred property’’) that is owned by it at that time and that was designated insurance property in respect of the business for the taxation year that, because of paragraph (11.5)(h), ended immediately before that time, or (ii) in any other case, transferred all or substantially all of the property owned by it at that time and used by it in the year in, or held by it in the year in the course of, carrying on that insurance business in Canada in that year (in subsection (11.5) referred to as the ‘‘transferred property’’) to a corporation resident in Canada (in this subsection referred to as the ‘‘transferee’’) that is a subsidiary wholly-owned corporation of the transferor that, immediately after that time, began to carry on that insurance business in Canada for consideration that includes shares of the capital stock of the transferee,
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(7) The definition ‘‘designated insurance property’’ in subsection 138(12) of the Act is replaced by the following: ‘‘designated insurance property’’ « bien d’assurance désigné »
‘‘designated insurance property’’ for a taxation year of an insurer (other than an insurer resident in Canada that at no time in the year carried on a life insurance business) that, at any time in the year, carried on an insurance business in Canada and in a country other than Canada, means property determined in accordance with prescribed rules except that, in its application to any taxation year, ‘‘designated insurance property’’ for the 1998 or a preceding taxation year means property that was, under this subsection as it read in its application to taxation years that ended in 1996, property used by it in the year in, or held by it in the year in the course of, carrying on an insurance business in Canada;
(8) Subsections (1) to (3) and (7) apply to the 1997 and subsequent taxation years. (9) Subsections (4) to (6) apply to the 1999 and subsequent taxation years except that, where a taxpayer or a taxpayer’s legal representative so elects in writing and files with the Minister of National Revenue before 2002 its election in respect of one or more of paragraph 138(11.5)(b) of the Act, as enacted by subsection (4), paragraph 138(11.91)(e) of the Act, as enacted by subsection (5), or paragraph 138(11.94)(b) of the Act, as enacted by subsection (6), each of the subsections in respect of which the election was made applies to the taxpayer’s 1997 and subsequent taxation years. 134. (1) Section 138.1 of the Act is amended by adding the following after subsection (3): Deemed gains and losses
(3.1) Where an amount is deemed under subsection (3) to be a capital gain or capital loss of a policyholder or other beneficiary (in this subsection referred to as the ‘‘taxpayer’’) of a related segregated fund trust, in respect of capital gains or losses realized in a taxation year of the related segregated fund trust that
Impôt sur le re includes February 28, 2000 or October 17, 2000, and the related segregated fund trust so elects under this subsection in its return of income for the year, (a) the portion of the gains and losses that are in respect of capital gains or losses from dispositions of property that occurred before February 28, 2000 is deemed to be that proportion of the gains or losses that the number of days that are in the year and before February 28, 2000 is of the number of days that are in the year; (b) the portion of the gains and losses that is in respect of capital gains or losses from dispositions of property that occurred in the year and in the period that begins at the beginning of February 28, 2000 and ends at the end of October 17, 2000, is deemed to be that proportion of the gains or losses that the number of days that are in the year and in that period is of the number of days that are in the year; and (c) the portion of the gains and losses that is in respect of capital gains or losses from dispositions of property that occurred in the year and in the period that begins at the beginning of October 18, 2000 and ends at the end of the year, is deemed to be that proportion of the gains or losses that the number of days that are in the year and in that period is of the number of days that are in the year.
Deemed gains and losses — taxpayer
(3.2) Where a capital gain or a capital loss is deemed by subsection (3) to be a capital gain or a capital loss of a taxpayer and not that of a related segregated fund trust, (a) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred before February 28, 2000 and that taxation year of the taxpayer includes February 27, 2000, the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and before February 28, 2000;
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(b) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred before February 28, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 18, 2000, 9/8 of the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; (c) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred before February 28, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended after October 17, 2000, 9/8 of the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and before October 18, 2000; (d) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred before February 28, 2000 and the taxation year of the taxpayer began after October 17, 2000 , 3/2 of the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; (e) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund that occurred after February 27, 2000 and before October 18, 2000 and the taxation year of the taxpayer began after October 17, 2000 , 4/3 of the capital gain or capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year;
Impôt sur le re (f) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred after February 27, 2000 and before October 18, 2000 and the taxation year of the taxpayer includes February 28, 2000 and October 17, 2000, the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year and in the period that began after February 27, 2000 and ended before October 18, 2000; (g) if the capital gain or capital loss was in respect of capital gains or capital losses from dispositions of property by the related segregated fund trust that occurred after February 27, 2000 and before October 17, 2000 and the taxation year of the taxpayer began after February 27, 2000 and ended before October 17, 2000, the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition by the taxpayer of capital property in the taxpayer’s taxation year; and (h) in any other case, the capital gain or the capital loss is deemed to be a capital gain or a capital loss, as the case may be, of the taxpayer from the disposition of capital property by the taxpayer in the taxpayer’s taxation year and after October 17, 2000 .
(2) Subsection (1) applies to taxation years that end after February 27, 2000. 135. (1) The portion of subsection 141(5) of the Act before paragraph (a) is replaced by the following:
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(5) For the purpose of paragraph (d) of the definition ‘‘taxable Canadian property’’ in subsection 248(1), a share of the capital stock of a corporation is deemed to be listed at any time on a stock exchange prescribed for the purpose of that definition where
(2) Subsection (1) applies after December 15, 1998. 136. (1) The portion of subsection 142.2(1) of the Act before the definition ‘‘financial institution’’ is replaced by the following: Definitions
142.2 (1) In this section and sections 142.3 to 142.7, (2) Subsection (1) applies after June 27, 1999. 137. (1) Subsection 142.6(2) of the Act is replaced by the following:
Ceasing to use property in Canadian business
(1.1) If at a particular time in a taxation year a taxpayer that is a non-resident financial institution (other than a life insurance corporation) ceases to use, in connection with a business or part of a business carried on by the taxpayer in Canada immediately before the particular time, a property that is a mark-tomarket property of the taxpayer for the year or a specified debt obligation, but that is not a property that was disposed of by the taxpayer at the particular time, (a) the taxpayer is deemed (i) to have disposed of the property immediately before the time that was immediately before the particular time for proceeds equal to its fair market value at the time of disposition and to have received those proceeds at the time of disposition in the course of carrying on the business or the part of the business, as the case may be, and (ii) to have reacquired the property at the particular time at a cost equal to those proceeds; and (b) in determining the consequences of the disposition in subparagraph (a)(i), subsec2001
Impôt sur le re tion 142.4(11) does not apply to any payment received by the taxpayer after the particular time.
Beginning to use property in a Canadian business
(1.2) If at a particular time a taxpayer that is a non-resident financial institution (other than a life insurance corporation) begins to use, in connection with a business or part of a business carried on by the taxpayer in Canada, a property that is a mark-to-market property of the taxpayer for the year that includes the particular time or a specified debt obligation, but that is not a property that was acquired by the taxpayer at the particular time, the taxpayer is deemed (a) to have disposed of the property immediately before the time that was immediately before the particular time for proceeds equal to its fair market value at the time of disposition; and (b) to have reacquired the property at the particular time at a cost equal to those proceeds.
Specified debt obligation marked to market
(1.3) In applying subsection (1.1) to a taxpayer in respect of a property in a taxation year, (a) the definition ‘‘mark-to-market property’’ in subsection 142.2(1) shall be applied as if the year ended immediately before the particular time referred to in subsection (1.1); and (b) if the taxpayer does not have financial statements for the period ending immediately before the particular time referred to in subsection (1.1), references in the definition to financial statements for the year shall be read as references to the financial statements that it is reasonable to expect would have been prepared if the year had ended immediately before the particular time.
Deemed disposition not applicable
(2) For the purposes of this Act, the determination of when a taxpayer acquired a share shall be made without regard to a disposition or acquisition that occurred because of subsection 142.5(2) or subsection (1), (1.1) or (1.2).
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(2) Subsection (1) applies after June 27, 1999 in respect of an authorized foreign bank, and after August 8, 2000 in any other case. 138. (1) The Act is amended by adding the following after section 142.6:
Conversion of Foreign Bank Affiliate to Branch Definitions
142.7 (1) The definitions in this subsection apply in this section.
‘‘Canadian affiliate’’ « filiale canadienne »
‘‘Canadian affiliate’’ of an entrant bank at any particular time means a Canadian corporation that was, immediately before the particular time, affiliated with the entrant bank and that was, at all times during the period that began on February 11, 1999 and ended immediately before the particular time, (a) affiliated with either (i) the entrant bank, or (ii) a foreign bank (within the meaning assigned by section 2 of the Bank Act) that is affiliated with the entrant bank at the particular time; and (b) either (i) a bank, (ii) a corporation authorized under the Trust and Loan Companies Act to carry on the business of offering to the public its services as trustee, or (iii) a corporation of which the principal activity in Canada consists of any of the activities referred to in subparagraphs 518(3)(a)(i) to (v) of the Bank Act and in which the entrant bank or a non-resident person affiliated with the entrant bank holds shares under the authority, directly or indirectly, of an order issued by the Minister of Finance or the Governor in Council under subsection 521(1) of that Act.
‘‘eligible property’’ « bien admissible »
‘‘eligible property’’ of a Canadian affiliate at any time means a property described in any of paragraphs 85(1.1)(a) to (g.1) that is, immediately before that time, used or held by it in carrying on its business in Canada.
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‘‘entrant bank’’ « banque entrante »
‘‘entrant bank’’ means a non-resident corporation that is, or has applied to the Superintendent of Financial Institutions to become, an authorized foreign bank.
‘‘qualifying foreign merger’’ « fusion étrangère déterminée »
‘‘qualifying foreign merger’’ means a merger or combination of two or more corporations that would be a ‘‘foreign merger’’ within the meaning assigned by subsection 87(8.1) if that subsection were read without reference to the words ‘‘and otherwise than as a result of the distribution of property to one corporation on the winding-up of another corporation.
Qualifying foreign merger
(2) Where an entrant bank was formed as the result of a qualifying foreign merger, after February 11, 1999, of two or more corporations (referred to in this subsection as ‘‘predecessors’’), and at the time immediately before the merger, there were one or more Canadian corporations (referred to in this subsection as ‘‘predecessor affiliates’’), each of which at that time would have been a Canadian affiliate of a predecessor if the predecessor were an entrant bank at that time, (a) for the purpose of the definition ‘‘Canadian affiliate’’ in subsection (1), (i) each predecessor affiliate is deemed to have been affiliated with the entrant bank throughout the period that began on February 11, 1999 and ended at the time of the merger, (ii) the expression ‘‘entrant bank’’ in subparagraph (b)(iii) of the definition is deemed to include a predecessor, and (iii) if two or more of the predecessor affiliates are amalgamated or merged at any time after February 11, 1999 to form a new corporation, the new corporation is deemed to have been affiliated with the entrant bank throughout the period that began on February 11, 1999 and ended at the time of the amalgamation or merger of the predecessor affiliates; and
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(b) if at least one of the predecessors complied with the terms of subsection (11)(a), the entrant bank is deemed to have complied with those terms. Branchestablishment rollover
(3) If a Canadian affiliate of an entrant bank transfers an eligible property to the entrant bank, the entrant bank begins immediately after the transfer to use or hold the transferred property in its Canadian banking business and the Canadian affiliate and the entrant bank jointly elect, in accordance with subsection (11), to have this subsection apply in respect of the transfer, subsections 85(1) (other than paragraph (e.2)), (1.1), (1.4) and (5) apply, with any modifications that the circumstances require, in respect of the transfer, except that the portion of subsection 85(1) before paragraph (a) shall be read as follows: ‘‘85. (1) Where a taxpayer that is a Canadian affiliate of an entrant bank (within the meanings assigned by subsection 142.7(1)) has, in a taxation year, disposed of any of the taxpayer’s property to the entrant bank (referred to in this subsection as the ‘‘corporation’’), if the taxpayer and the corporation have jointly elected under subsection 142.7(3), the following rules apply:’’.
Deemed fair market value
(4) If a Canadian affiliate of an entrant bank and the entrant bank make an election under subsection (3) in respect of a transfer of property by the Canadian affiliate to the entrant bank, for the purposes of subsections 15(1), 52(2), 69(1), (4) and (5), 246(1) and 247(2) in respect of the transfer, the fair market value of the property is deemed to be the amount agreed by the Canadian affiliate and the entrant bank in their election.
Specified debt obligations
(5) If a Canadian affiliate of an entrant bank transfers a specified debt obligation to the entrant bank in a transaction in respect of which an election is made under subsection (3), the Canadian affiliate is a financial institution in its taxation year in which the transfer is made, and the amount that the Canadian affiliate and the entrant bank agree on in their election in respect of the obligation is equal to the tax basis of the obligation within the meaning assigned by subsection 142.4(1),
Impôt sur le re the entrant bank is deemed, in respect of the obligation, for the purposes of sections 142.2 to 142.4 and 142.6, to be the same corporation as, and a continuation of, the Canadian affiliate.
Mark-to-market property
(6) If a Canadian affiliate of an entrant bank described in paragraph (11)(a) transfers at any time within the period described in paragraph (11)(c) to the entrant bank a property that is, for the Canadian affiliate’s taxation year in which the property is transferred, a mark-tomarket property of the Canadian affiliate, (a) for the purposes of subsections 112(5) to (5.21) and (5.4), the definition ‘‘mark-tomarket property’’ in subsection 142.2(1) and subsection 142.5(9), the entrant bank is deemed, in respect of the property, to be the same corporation as and a continuation of, the Canadian affiliate; and (b) for the purpose of applying subsection 142.5(2) in respect of the property, the Canadian affiliate’s taxation year in which the property is transferred is deemed to have ended immediately before the time the property was transferred.
Reserves
(7) If (a), at a particular time, (i) a Canadian affiliate of an entrant bank transfers to the entrant bank property that is a loan or lending asset, or a right to receive an unpaid amount in respect of a disposition before the particular time of property by the affiliate, or (ii) the entrant bank assumes an obligation of the Canadian affiliate that is an instrument or commitment described in paragraph 20(1)(l.1) or an obligation in respect of goods, services, lands or chattels described in subparagraph 20(1)(m)(i), (ii) or (iii), (b) the property is transferred or the obligation is assumed for an amount equal to its fair market value at the particular time, (c) the entrant bank begins immediately after the particular time to use or hold the
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property or owe the obligation in its Canadian banking business, and (d) the Canadian affiliate and the entrant bank jointly elect in accordance with subsection (11) to have this subsection apply in respect of the transfer or assumption, then (e) in applying paragraphs 20(1)(l), (l.1), (m), (n) and (p) in respect of the obligation or property, the taxation year of the affiliate that would, but for this paragraph, include the particular time is deemed to end immediately before the particular time, and (f) in computing the income of the Canadian affiliate and the entrant bank for taxation years that end on or after the particular time, (i) any amount deducted under paragraph 20(1)(l), (l.1), (m) or (n) by the Canadian affiliate in respect of the property or obligation in computing its income for its taxation year that ended immediately before the particular time, or under paragraph 20(1)(p) in computing its income for that year or for a preceding taxation year (to the extent that the amount has not been included in the affiliate’s income under paragraph 12(1)(i)), is deemed to have been so deducted by the entrant bank in computing its income for its last taxation year that ended before the particular time and not to have been deducted by the Canadian affiliate, (ii) in applying paragraph 20(1)(m), an amount in respect of the goods, services, land or chattels that was included under paragraph 12(1)(a) in computing the Canadian affiliate’s income from a business is deemed to have been so included in computing the entrant bank’s income from its Canadian banking business for a preceding taxation year, (iii) in applying paragraph 20(1)(n) in respect of a property described in subparagraph (a)(i) and paragraphs (b), (c) and (d) sold by the Canadian affiliate in the course of a business, the property is deemed to have been disposed of by the
Impôt sur le re entrant bank (and not by the Canadian affiliate) at the time it was disposed of by the Canadian affiliate, and the amount in respect of the sale that was included in computing the Canadian affiliate’s income from a business is deemed to have been included in computing the entrant bank’s income from its Canadian banking business for its taxation year that includes the time at which the property was so disposed of, and (iv) in applying paragraph 40(1)(a) or 44(1)(e) in respect of a property described in subparagraph (a)(i) and paragraphs (b), (c) and (d) disposed of by the Canadian affiliate, the property is deemed to have been disposed of by the entrant bank (and not by the Canadian affiliate) at the time it was disposed of by the Canadian affiliate, the amount determined under subparagraph 40(1)(a)(i) or 44(1)(e)(i) in respect of the Canadian affiliate is deemed to be the amount determined under that subparagraph in respect of the entrant bank, and any amount claimed by the Canadian affiliate under subparagraph 40(1)(a)(iii) or 44(1)(e)(iii) in computing its gain from the disposition of the property for its last taxation year that ended before the particular time is deemed to have been so claimed by the entrant bank for its last taxation year that ended before the particular time.
Assumption of debt obligation
(8) If a Canadian affiliate of an entrant bank described in paragraph (11)(a) transfers at any time within the period described in paragraph (11)(c) property to the entrant bank, and any part of the consideration for the transfer is the assumption by the entrant bank in respect of its Canadian banking business of a debt obligation of the Canadian affiliate,
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(a) where the Canadian affiliate and the entrant bank jointly elect in accordance with subsection (11) to have this paragraph apply, (i) both (A) the value of that part of the consideration for the transfer of the property, and (B) for the purpose of determining the consequences of the assumption of the obligation and any subsequent settlement or extinguishment of it, the value of the consideration given to the entrant bank for the assumption of the obligation, are deemed to be an amount (in this paragraph referred to as the ‘‘assumption amount’’) equal to the amount outstanding on account of the principal amount of the obligation at that time, and (ii) the assumption amount shall not be considered a term of the transaction that differs from that which would have been made between persons dealing at arm’s length solely because it is not equal to the fair market value of the obligation at that time; (b) where the obligation is denominated in a foreign currency, and the Canadian affiliate and the entrant bank jointly elect in accordance with subsection (11) to have this paragraph apply, (i) the amount of any income, loss, capital gain or capital loss in respect of the obligation due to the fluctuation in the value of the foreign currency relative to Canadian currency realized by (A) the Canadian affiliate on the assumption of the obligation is deemed to be nil, and (B) the entrant bank on the settlement or extinguishment of the obligation shall be determined based on the amount of the obligation in Canadian currency at the time it became an obligation of the Canadian affiliate, and
Impôt sur le re (ii) for the purpose of an election made in respect of the obligation under paragraph (a), the amount outstanding on account of the principal amount of the obligation at that time is the total of all amounts each of which is an amount that was advanced to the Canadian affiliate on account of principal, that remains outstanding at that time, and that is determined using the exchange rate that applied between the foreign currency and Canadian currency at the time of the advance; and (c) for the purpose of applying paragraphs 20(1)(e) and (f) in respect of the debt obligation, the obligation is deemed not to have been settled or extinguished by virtue of its assumption by the entrant bank and the entrant bank is deemed to be the same corporation as, and a continuation of, the Canadian affiliate.
Branchestablishment dividend
(9) Notwithstanding any other provision of this Act, the rules in subsection (10) apply if (a) a dividend is paid by a Canadian affiliate of an entrant bank to the entrant bank or to a person that is affiliated with the Canadian affiliate and that is resident in the country in which the entrant bank is resident, or (b) a dividend is deemed to be paid for the purposes of this Part or Part XIII (other than by paragraph 214(3)(a)) as a result of a transfer of property from the Canadian affiliate to such a person, and the Canadian affiliate and the entrant bank jointly elect in accordance with subsection (11) to have subsection (10) apply in respect of the dividend.
Treatment of dividend
(10) If the conditions in subsection (9) are met, (a) the dividend is deemed (except for the purposes of subsections 112(3) to (7)) not to be a taxable dividend; and (b) there is added to the amount otherwise determined under paragraph 219(1)(g) in respect of the entrant bank for its first
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taxation year that ends after the time at which the dividend is paid, the amount of the dividend less, where the dividend is paid by means of, or arises as a result of, a transfer of eligible property in respect of which the Canadian affiliate and the entrant bank have jointly elected under subsection (3), the amount by which the fair market value of the property transferred exceeds the amount the Canadian affiliate and the entrant bank have agreed on in their election. Elections
(11) An election under subsection (3) or (7), paragraph (8)(a) or (b) or subsection (10), (12) or (14) is valid only if (a) the entrant bank by which the election is made has, on or before the day that is 6 months after the day on which the Income Tax Amendments Act, 2000 receives royal assent, complied with paragraphs 1.1(b) and (c) of the ‘‘Guide to Foreign Bank Branching’’ in respect of the establishment and commencement of business of a foreign bank branch in Canada issued by the Office of the Superintendent of Financial Institutions, as it read on December 31, 2000; (b) the election is made in prescribed form on or before the earlier of the filing-due date of the Canadian affiliate and the filing-due date of the entrant bank, for the taxation year that includes the time at which (i) in the case of an election under subsection (3) or (7), paragraph (8)(a) or (b) or subsection (10), the dividend, transfer or assumption to which the election relates is paid, made or effected, or (ii) in the case of an election under subsection (12), the dissolution order was granted or the winding up commenced; and (c) in the case of an election under subsection (3) or (7), paragraph (8)(a) or (b) or subsection (10), the dividend, transfer or assumption to which the election relates is paid, made or effected within the period that
Impôt sur le re (i) begins on the day on which the Superintendent makes an order in respect of the entrant bank under subsection 534(1) of the Bank Act, and (ii) ends on the later of (A) the earlier of (I) the day that is one year after the day referred to subparagraph (i), and (II) the day that is three years after the day on which the Income Tax Amendments Act, 2000 receives royal assent, and (B) the day that is one year after the day on which the Income Tax Amendments Act, 2000 receives royal assent.
Winding-up of Canadian affiliate: losses
(12) If (a) within the period described in paragraph (11)(c) in respect of the entrant bank, (i) the Minister of Finance has issued letters patent under section 342 of the Bank Act or section 347 of the Trust and Loan Companies Act dissolving the Canadian affiliate or an order under section 345 of the Bank Act or section 350 of the Trust and Loan Companies Act approving the Canadian affiliate’s application for dissolution (such letters patent or order being referred to in this subsection as the ‘‘dissolution order’’), or (ii) the affiliate has been wound up under the terms of the corporate law that governs it, (b) the entrant bank carries on all or part of the business in Canada that was formerly carried on by the Canadian affiliate, and (c) the Canadian affiliate and the entrant bank jointly elect in accordance with subsection (11) to have this section apply then in applying section 111 for the purpose of computing the taxable income earned in Canada of the entrant bank for any taxation year
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that begins after the date of the dissolution order or the commencement of the winding up, as the case may be, (d) subject to paragraphs (e) and (h), the portion of a non-capital loss of the Canadian affiliate for a taxation year (in this paragraph referred to as the ‘‘Canadian affiliate’s loss year’’) that can reasonably be regarded as being its loss from carrying on a business in Canada (in this paragraph referred to as the ‘‘loss business’’) or being in respect of a claim made under section 110.5, to the extent that it (i) was not deducted in computing the taxable income of the Canadian affiliate or any other entrant bank for any taxation year, and (ii) would have been deductible in computing the taxable income of the Canadian affiliate for any taxation year that begins after the date of the dissolution order or the commencement of the winding up, as the case may be, on the assumption that it had such a taxation year and that it had sufficient income for that year, is deemed, for the taxation year of the entrant bank in which the Canadian affiliate’s loss year ended, to be a non-capital loss of the entrant bank from carrying on the loss business (or, in respect of a claim made under section 110.5, to be a non-capital loss of the entrant bank in respect of a claim under subparagraph 115(1)(a)(vii)) that was not deductible by the entrant bank in computing its taxable income earned in Canada for any taxation year that began before the date of the dissolution order or the commencement of the winding up, as the case may be, (e) if at any time control of the Canadian affiliate or entrant bank has been acquired by a person or group of persons, no amount in respect of the Canadian affiliate’s noncapital loss for a taxation year that ends before that time is deductible in computing the taxable income earned in Canada of the entrant bank for a particular taxation year
Impôt sur le re that ends after that time, except that the portion of the loss that can reasonably be regarded as the Canadian affiliate’s loss from carrying on a business in Canada and, where a business was carried on by the Canadian affiliate in Canada in the earlier year, the portion of the loss that can reasonably be regarded as being in respect of an amount deductible under paragraph 110(1)(k) in computing its taxable income for the year are deductible only (i) if that business is carried on by the Canadian affiliate or the entrant bank for profit or with a reasonable expectation of profit throughout the particular year, and (ii) to the extent of the total of the entrant bank’s income for the particular year from that business, and where properties were sold, leased, rented or developed or services rendered in the course of carrying on that business before that time, from any other business substantially all of the income of which was derived from the sale, leasing, rental or development, as the case may be, of similar properties or the rendering of similar services, and, for the purpose of this paragraph, where subsection 88(1.1) applied to the dissolution of another corporation in respect of which the Canadian affiliate was the parent and paragraph 88(1.1)(e) applied in respect of losses of that other corporation, the Canadian affiliate is deemed to be the same corporation as, and a continuation of, that other corporation with respect to those losses, (f) subject to paragraphs (g) and (h), a net capital loss of the Canadian affiliate for a taxation year (in this paragraph referred to as the ‘‘Canadian affiliate’s loss year’’) is deemed to be a net capital loss of the entrant bank for its taxation year in which the Canadian affiliate’s loss year ended to the extent that the loss (i) was not deducted in computing the taxable income of the Canadian affiliate or any other entrant bank for any taxation year, and
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Income Ta (ii) would have been deductible in computing the taxable income of the Canadian affiliate for any taxation year beginning after the date of the dissolution order or the commencement of the winding-up, as the case may be, on the assumption that the Canadian affiliate had such a taxation year and that it had sufficient income and taxable capital gains for that year,
(g) if at any time control of the Canadian affiliate or the entrant bank has been acquired by a person or group of persons, no amount in respect of the Canadian affiliate’s net capital loss for a taxation year that ends before that time is deductible in computing the entrant bank’s taxable income earned in Canada for a taxation year that ends after that time, and (h) any loss of the Canadian affiliate that would otherwise be deemed by paragraph (d) or (f) to be a loss of the entrant bank for a particular taxation year that begins after the date of the dissolution order or the commencement of the winding-up, as the case may be, is deemed, for the purpose of computing the entrant bank’s taxable income earned in Canada for taxation years that begin after that date, to be such a loss of the entrant bank for its immediately preceding taxation year and not for the particular year, if the entrant bank so elects in its return of income for the particular year.
Winding-up of Canadian affiliate: stop loss
Impôt sur le re
(13) If a Canadian affiliate and its entrant bank have at any time made a joint election under either of subsection (3) or (12), (a) in respect of any transfer of property, directly or indirectly, by the Canadian affiliate to the entrant bank or a person with whom the entrant bank does not deal at arm’s length, (i) subparagraph 13(21.2)(e)(iii) shall be read without reference to clause (E) of that subparagraph, (ii) subsection 14(12) shall be read without reference to paragraph (g) of that subsection, (iii) paragraph 18(15)(b) shall be read without reference to subparagraph (iv) of that paragraph, and (iv) paragraph 40(3.4)(b) shall be read without reference to subparagraph (v) of that paragraph; (b) in respect of any property of the Canadian affiliate appropriated to or for the benefit of the entrant bank or any person with whom the entrant bank does not deal at arm’s length, section 69(5) shall be read without reference to paragraph (d); and (c) for the purposes of applying subsection 13(21.2), 14(12), 18(15) and 40(3.4) to any property that was disposed of by the affiliate, after the dissolution or winding-up of the affiliate, the entrant bank is deemed to be the same corporation as, and a continuation of, the affiliate.
Winding-up of Canadian affiliate: SDOs
(14) If a Canadian affiliate of an entrant bank and the entrant bank meet the conditions set out in paragraphs (12)(a) and (b) and jointly elect in accordance with subsection (11) to have this subsection apply, and the Canadian affiliate has not made an election under this subsection with any other entrant bank, the entrant bank is deemed to be the same corporation as, and a continuation of, the Canadian affiliate for the purposes of para���
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graphs 142.4(4)(c) and (d) in respect of any specified debt obligation disposed of by the Canadian affiliate. (2) Subsection (1) applies after June 27, 1999. 139. (1) Paragraph (b) of the definition ‘‘qualified investment’’ in subsection 146(1) of the Act is replaced by the following: (b) a bond, debenture, note or similar obligation (i) issued by a corporation the shares of which are listed on a prescribed stock exchange in Canada, or (ii) issued by an authorized foreign bank and payable at a branch in Canada of the bank,
(2) Subsection (1) applies after June 27, 1999. 140. (1) Paragraph (b) of the definition ‘‘qualified investment’’ in subsection 146.1(1) of the Act is replaced by the following: (b) a bond, debenture, note or similar obligation (i) issued by a corporation the shares of which are listed on a prescribed stock exchange in Canada, or (ii) issued by an authorized foreign bank and payable at a branch in Canada of the bank, (2) Subsection (1) applies after June 27, 1999. 141. (1) Paragraph (b) of the definition ‘‘qualified investment’’ in subsection 146.3(1) of the Act is replaced by the following: (b) a bond, debenture, note or similar obligation (i) issued by a corporation the shares of which are listed on a prescribed stock exchange in Canada, or
Impôt sur le re (ii) issued by an authorized foreign bank and payable at a branch in Canada of the bank, (2) Subsection (1) applies after June 27, 1999. 142. (1) Subsection 147(10.5) of the Act is repealed. (2) Subsection (1) applies to shares acquired, but not disposed of, before February 28, 2000 and to shares acquired after February 27, 2000. 143. (1) Paragraph 147.2(4)(a) of the Act is replaced by the following:
Service after 1989
(a) the total of all amounts each of which is a contribution (other than a prescribed contribution) made by the individual in the year to a registered pension plan that is in respect of a period after 1989 or that is a prescribed eligible contribution, to the extent that the contribution was made in accordance with the plan as registered, (2) Subsection (1) applies to contributions made after 1990. 144. (1) Paragraph 147.3(5)(a) of the Act is replaced by the following: (a) is a single amount no portion of which relates to an actuarial surplus; (2) Section 147.3 of the Act is amended by adding the following after subsection (7):
Transfer where money purchase plan replaces money purchase plan
(7.1) An amount is transferred from a registered pension plan (in this subsection referred to as the ‘‘transferor plan’’) in accordance with this subsection if (a) the amount is a single amount; (b) the amount is transferred in respect of the surplus (as defined by regulation) under a money purchase provision (in this subsection referred to as the ‘‘former provision’’) of the transferor plan; (c) the amount is transferred directly to another registered pension plan to be held in connection with a money purchase provision (in this subsection referred to as the ‘‘current provision’’) of the other plan;
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(d) the amount is transferred in conjunction with the transfer of amounts from the former provision to the current provision on behalf of all or a significant number of members of the transferor plan whose benefits under the former provision are replaced by benefits under the current provision; and (e) the transfer is acceptable to the Minister and the Minister has so notified the administrator of the transferor plan in writing. (3) Paragraphs 147.3(8)(b) and (c) of the Act are replaced by the following: (b) the amount is transferred in respect of the actuarial surplus under a defined benefit provision of the transferor plan; (c) the amount is transferred directly to another registered pension plan to be held in connection with a money purchase provision of the other plan; (4) Subsection (1) applies to transfers that occur after November 1999. (5) Subsection (2) applies to transfers that occur after 1998. (6) Subsection (3) applies to transfers that occur after 1990. 145. (1) Paragraphs 149(1)(d) to (d.2) of the Act are replaced by the following: Corporations owned by the Crown
(d) a corporation, commission or association all of the shares (except directors’ qualifying shares) or of the capital of which was owned by one or more persons each of which is Her Majesty in right of Canada or Her Majesty in right of a province;
Corporations 90% owned by the Crown
(d.1) a corporation, commission or association not less than 90% of the shares (except directors’ qualifying shares) or of the capital of which was owned by one or more persons each of which is Her Majesty in right of Canada or Her Majesty in right of a province;
Wholly-owned corporations
(d.2) a corporation all of the shares (except directors’ qualifying shares) or of the capital of which was owned by one or more persons each of which is a corporation, commission or association to which this
Impôt sur le re paragraph or paragraph (d) applies for the period; (2) Subparagraph 149(1)(d.3)(i) of the Act is replaced by the following: (i) one or more persons each of which is Her Majesty in right of Canada or a province or a person to which paragraph (d) or (d.2) applies for the period, or (3) Paragraph 149(1)(d.4) of the Act is replaced by the following:
Combined ownership
(d.4) a corporation all of the shares (except directors’ qualifying shares) or of the capital of which was owned by one or more persons each of which is a corporation, commission or association to which this paragraph or any of paragraphs (d) to (d.3) applies for the period; (4) The portion of paragraph 149(1)(d.6) of the Act before subparagraph (i) is replaced by the following:
Subsidiaries of municipal corporations
(d.6) subject to subsections (1.2) and (1.3), a particular corporation all of the shares (except directors’ qualifying shares) or of the capital of which was owned by one or more persons each of which is a corporation, commission or association to which paragraph (d.5) or this paragraph applies for the period if the income for the period of the particular corporation from activities carried on outside (5) Clause 149(1)(o.2)(ii)(A) of the Act is replaced by the following: (A) limited its activities to (I) acquiring, holding, maintaining, improving, leasing or managing capital property that is real property or an interest in real property owned by the corporation, another corporation described by this subparagraph and subparagraph (iv) or a registered pension plan, and (II) investing its funds in a partnership that limits its activities to acquiring, holding, maintaining,
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(6) Subsection 149(1.1) of the Act is replaced by the following: Exception
(1.1) Where at a particular time (a) a corporation, commission or association (in this subsection referred to as ‘‘the entity’’) would, but for this subsection, be described in any of paragraphs (1)(d) to (d.6), (b) one or more other persons (other than Her Majesty in right of Canada or a province, a municipality in Canada or a person which, at the particular time, is a person described in any of subparagraphs (1)(d) to (d.6)) have at the particular time one or more rights in equity or otherwise, either immediately or in the future and either absolutely or contingently to, or to acquire, shares or capital of the entity, and (c) the exercise of the rights referred to in paragraph (b) would result in the entity not being a person described in any of paragraphs (1)(d.1) to (d.6) at the particular time, the entity is deemed not to be, at the particular time, a person described in any of paragraphs (1)(d) to (d.6).
Election
(1.11) Subsection (1) does not apply in respect of a person’s taxable income for a particular taxation year that begins after 1998 where (a) paragraph (1)(d) did not apply in respect of the person’s taxable income for the person’s last taxation year that began before 1999; (b) paragraph (1)(d.2), (d.3) or (d.4) would, but for this subsection, have applied in respect of the person’s taxable income for the person’s first taxation year that began after 1998;
Impôt sur le re (c) there has been no change in the direct or indirect control of the person during the period that (i) began at the beginning of the person’s first taxation year that began after 1998, and (ii) ends at the end of the particular year; (d) the person elects in writing before 2002 that this subsection apply; and (e) the person has not notified the Minister in writing before the particular year that the election has been revoked.
(7) Subsection 149(1.2) of the Act is replaced by the following: Income test
(1.2) For the purposes of paragraphs (1)(d.5) and (d.6), income of a corporation, commission or association from activities carried on outside the geographical boundaries of a municipality does not include income from activities carried on (a) under an agreement in writing between (i) the corporation, association, and
commission
or
(ii) a person who is Her Majesty in right of Canada or a province or a municipality or corporation to which any of paragraphs (1)(d) to (d.6) applies and that is controlled by Her Majesty in right of Canada or a province or by a municipality in Canada within the geographical boundaries of, (iii) where the person is Her Majesty in right of Canada or a corporation controlled by Her Majesty in right of Canada, Canada, (iv) where the person is Her Majesty in right of a province or a corporation controlled by Her Majesty in right of a province, the province, and (v) where the person is a municipality in Canada or a corporation controlled by a municipality in Canada, the municipality; or
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(b) in a province as (i) a producer of electrical energy or natural gas, or (ii) a distributor of electrical energy, heat, natural gas or water, where the activities are regulated under the laws of the province.
(8) Subsections (1) to (4), (6) and (7) apply to taxation years and fiscal periods that begin after 1998 except that, (a) where a corporation, commission or association so elects in writing and files the election with the Minister of National Revenue on or before the day that is six months after the end of the month in which this Act receives royal assent, the reference to ‘‘at a particular time’’ in subsection 149(1.1) of the Act, as enacted by subsection (6), shall be read as a reference to ‘‘at any time after November 1999’’; and (b) an election referred to in subsection 149(1.11) of Act, as enacted by subsection (6), filed with the Minister of National Revenue on or before the day that is six months after the end of the month in which this Act receives royal assent, is deemed to have been filed in accordance with that subsection of the Act. (9) Subsection (5) applies to taxation years that end after 2000. 146. The portion of subsection 149.1(6.4) of the Act after paragraph (d) is replaced by the following: applies in prescribed form to the Minister of National Revenue for registration, that Minister may register the organization for the purposes of this Act and, where the organization so applies or is so registered, this section, paragraph 38(a.1), sections 110.1, 118.1, 168, 172, 180 and 230, subsection 241(3.2) and Part V apply, with such modifications as the circumstances require, to the organization as if it were an applicant for registration as a charita2001
Impôt sur le re ble organization or as if it were a registered charity that is designated as a charitable organization, as the case may be. 147. (1) Clause 150(1)(a)(i)(B) of the Act is replaced by the following: (B) carries on business in Canada, unless the corporation’s only revenue from carrying on business in Canada in the year consists of amounts in respect of which tax was payable by the corporation under subsection 212(5.1), (2) Subsection (1) applies to the 2001 and subsequent taxation years. 148. (1) Subsection 150.1(5) of the Act is replaced by the following:
Application to other Parts
(5) This section also applies to Parts I.2 to XIII, with such modifications as the circumstances require. (2) Subsection (1) applies to the 2001 and subsequent taxation years. 149. (1) Paragraph 152(4)(b) of the Act is amended by adding the following after subparagraph (iii): (iii.1) is made, if the taxpayer is non-resident and carries on a business in Canada, as a consequence of (A) an allocation by the taxpayer of revenues or expenses as amounts in respect of the Canadian business (other than revenues and expenses that relate solely to the Canadian business, that are recorded in the books of account of the Canadian business, and the documentation in support of which is kept in Canada), or (B) a notional transaction between the taxpayer and its Canadian business, where the transaction is recognized for the purposes of the computation of an amount under this Act or an applicable tax treaty. (2) Paragraph 152(6)(c.1) of the Act is replaced by the following: (c.1) a deduction under section 119 in respect of a disposition in a subsequent taxation year,
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(3) Subsection 152(6) of the Act is amended by adding the following after paragraph (f): (f.1) a deduction under subsection 126(2) in respect of an unused foreign tax credit (within the meaning assigned by subsection 126(7)), or under subsection 126(2.21) or (2.22) in respect of foreign taxes paid, for a subsequent taxation year, (f.2) a deduction under subsection 128.1(8) as a result of a disposition in a subsequent taxation year,
(4) Section 152 of the Act is amended by adding the following after subsection (6):
Reassessment where amount included in income under subsection 91(1) is reduced
(6.1) Where (a) a taxpayer has filed for a particular taxation year the return of income required by section 150, (b) the amount included in computing the taxpayer’s income for the particular year under subsection 91(1) is subsequently reduced because of a reduction in the foreign accrual property income of a foreign affiliate of the taxpayer for a taxation year of the affiliate that ends in the particular year and is (i) attributable to the amount prescribed to be the deductible loss of the affiliate for the year that arose in a subsequent year of the affiliate that ends in a subsequent taxation year of the taxpayer, and (ii) included in the description of F of the definition ‘‘foreign accrual property income’’ in subsection 95(1) in respect of the affiliate for the year, and (c) the taxpayer has filed with the Minister, on or before the filing-due-date for the taxpayer’s subsequent taxation year, a prescribed form amending the return,
Impôt sur le re the Minister shall reassess the taxpayer’s tax for any relevant taxation year (other than a taxation year preceding the particular taxation year) in order to take into account the reduction in the amount included under subsection 91(1) in computing the income of the taxpayer for the year.
(5) Section 152 of the Act is amended by adding the following after subsection (9): Where tax deemed not to be assessed
(10) Notwithstanding any other provision of this section, an amount of tax for which adequate security is accepted by the Minister under subsection 220(4.5) or (4.6) is, until the end of the period during which the security is accepted by the Minister, deemed for the purpose of any agreement entered into by or on behalf of the Government of Canada under section 7 of the Federal-Provincial Fiscal Arrangements Act not to have been assessed under this Act.
(6) Subsection (1) applies to the 2000 and subsequent taxation years. (7) Subsections (2), (3) and (5) apply to taxation years that end after October 1, 1996. (8) In respect of (a) a deduction under section 119 of the Act, as enacted by subsection 102(2), or an adjustment under subsection 128.1(8) of the Act, as enacted by subsection 123(5), in respect of a disposition by a taxpayer, or (b) a deduction under subsection 126(2.21) or (2.22) of the Act, as enacted by subsection 117(6), in respect of foreign taxes paid by a taxpayer, the taxpayer is deemed to have filed the prescribed form described in subsection 152(6) of the Act in a timely manner if the taxpayer
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files the form with the Minister of National Revenue on or before the later of the day on or before which the taxpayer would, but for this subsection, be required to file the form and the taxpayer’s filing-due date for the taxation year that includes the day on which this Act receives royal assent.
(9) Subsection (4) applies to taxation years of foreign affiliates that begin after November 1999. 150. (1) Subsection (2) applies in respect of an individual if, at any particular time after October 1, 1996 and before the day that is two years before the day on which this Act receives royal assent, (a) the individual ceased to be resident in Canada; or (b) where the individual is a trust, the trust made a distribution of property to which subsection 107(2) of the Act does not apply solely because of the application of subsection 107(5) of the Act, as enacted by subsection 80(18). (2) Where this subsection applies in respect of an individual, for the purposes of any reassessment of the individual’s tax, interest or penalties, for any year, that is necessary to take into account the application of this Act in respect of the cessation of residence or the distribution referred to in subsection (1), the individual’s normal reassessment period under subsection 152(3.1) of the Act for any taxation year that ends at or after the particular time described in subsection (1) is, notwithstanding subsection 152(3.1) of the Act, deemed to end on the later of (a) the day on which the normal reassessment period for the year would, but for this section, end; and (b) the day that is one year after the day on which this Act receives royal assent.
151. (1) Paragraph 153(1)(a) of the Act is replaced by the following:
Impôt sur le re (a) salary, wages or other remuneration, other than amounts described in subsection 212(5.1), (2) Paragraph 153(1)(g) of the Act is replaced by the following: (g) fees, commissions or other amounts for services, other than amounts described in subsection 212(5.1), (3) The portion of subsection 153(1) of the Act after paragraph (t) is replaced by the following: shall deduct or withhold from the payment the amount determined in accordance with prescribed rules and shall, at the prescribed time, remit that amount to the Receiver General on account of the payee’s tax for the year under this Part or Part XI.3, as the case may be, and, where at that prescribed time the person is a prescribed person, the remittance shall be made to the account of the Receiver General at a designated financial institution. (4) Section 153 of the Act is amended by adding the following after subsection (5):
Meaning of ‘‘designated financial institution’’
(6) In this section, ‘‘designated financial institution’’ means a corporation that (a) is a bank, other than an authorized foreign bank that is subject to the restrictions and requirements referred to in subsection 524(2) of the Bank Act; (b) is authorized under the laws of Canada or a province to carry on the business of offering its services as a trustee to the public; or (c) is authorized under the laws of Canada or a province to accept deposits from the public and carries on the business of lending money on the security of real estate or investing in mortgages or hypothecs on real estate. (5) Subsections (1) and (2) apply in respect of amounts paid, credited or provided after 2000. (6) Subsections (3) and (4) apply after June 27, 1999.
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152. (1) The description of A in paragraph (b) of the definition ‘‘net tax owing’’ in subsection 156.1(1) of the Act is replaced by the following: A is the total of the taxes payable under this Part and Parts I.2 and X.5 by the individual for the year, (2) Subsection (1) applies to the 2001 and subsequent taxation years. 153. (1) Subparagraph 157(1)(a)(i) of the Act is replaced by the following: (i) on or before the last day of each month in the year, an amount equal to 1/12 of the total of the amounts estimated by it to be the taxes payable by it under this Part and Parts I.3, VI, VI.1 and XIII.1 for the year, (2) The portion of paragraph 157(1)(b) of the Act before subparagraph (i) is replaced by the following: (b) the remainder of the taxes payable by it under this Part and Parts I.3, VI, VI.1 and XIII.1 for the year (3) Subsection 157(2.1) of the Act is replaced by the following: $1,000 threshold
(2.1) Where (a) the total of the taxes payable under this Part and Parts I.3, VI, VI.1 and XIII.1 by a corporation for a taxation year (determined before taking into consideration the specified future tax consequences for the year), or (b) the corporation’s first instalment base for the year, is not more than $1,000, the corporation may, instead of paying the instalments required for the year by paragraph (1)(a), pay to the Receiver General, under paragraph (1)(b), the total of the taxes payable by it under this Part and Parts I.3, VI, VI.1 and XIII.1 for the year. (4) Subsections (1) to (3) apply to the 2001 and subsequent taxation years. 154. (1) Subsections 159(4) and (4.1) of the Act are repealed.
Impôt sur le re (2) Subsection 159(6.1) of the Act is replaced by the following:
Election where subsection 104(4) applicable
(6.1) Where a time determined under paragraph 104(4)(a), (a.1), (a.2), (a.3), (a.4), (b) or (c) in respect of a trust occurs in a taxation year of the trust and the trust so elects and furnishes to the Minister security acceptable to the Minister for payment of any tax the payment of which is deferred by the election, notwithstanding any other provision of this Part respecting the time within which payment shall be made of the tax payable under this Part by the trust for the year, all or any portion of the part of that tax that is equal to the amount, if any, by which that tax exceeds the amount that that tax would be if this Act were read without reference to paragraph 104(4)(a), (a.1), (a.2), (a.3), (a.4), (b) or (c), as the case may be, may be paid in the number (not exceeding 10) of equal consecutive annual instalments that is specified by the trust in the election, the first instalment of which shall be paid on or before the day on or before which payment of that tax would, but for the election, have been required to be made and each subsequent instalment of which shall be paid on or before the next following anniversary of that day. (3) Subsection (1) applies to individuals who cease to be resident in Canada after October 1, 1996. (4) Subsection (2) applies to the 2000 and subsequent taxation years. 155. (1) Paragraph 161(7)(a) of the Act is amended by adding the following before subparagraph (ii): (i) any amount deducted under section 119 in respect of a disposition in a subsequent taxation year, (2) Subparagraph 161(7)(a)(iv.1) of the Act is replaced by the following: (iv.1) any amount deducted under subsection 126(2) in respect of an unused foreign tax credit (within the meaning assigned by subsection 126(7)), or under subsection 126(2.21) or (2.22) in respect of foreign taxes paid, for a subsequent taxation year,
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(3) Paragraph 161(7)(a) of the Act is amended by striking out the word ‘‘and’’ at the end of subparagraph (ix) and by adding the following after subparagraph (x): (xi) any amount deducted under any of subsections 128.1(6) to (8) from the taxpayer’s proceeds of disposition of a property because of an election made in a return of income for a subsequent taxation year; and (4) Subsections (1) to (3) apply to taxation years that end after October 1, 1996.
156. (1) Paragraphs 164(1)(a) and (b) of the Act are replaced by the following: (a) may, (i) before mailing the notice of assessment for the year, where the taxpayer is a qualifying corporation (as defined in subsection 127.1(2)) and claims in its return of income for the year to have paid an amount on account of its tax payable under this Part for the year because of subsection 127.1(1) in respect of its refundable investment tax credit (as defined in subsection 127.1(2)), refund all or part of any amount claimed in the return as an overpayment for the year, not exceeding the amount by which the total determined under paragraph (f) of the definition ‘‘refundable investment tax credit’’ in subsection 127.1(2) in respect of the taxpayer for the year exceeds the total determined under paragraph (g) of that definition in respect of the taxpayer for the year, (ii) before mailing the notice of assessment for the year, where the taxpayer is a qualified corporation (as defined in subsection 125.4(1)) or an eligible production corporation (as defined in subsection 125.5(1)) and an amount is deemed under subsection 125.4(3) or 125.5(3) to have been paid on account of its tax payable under this Part for the year, refund all or part of any amount claimed in the return as an overpayment for the year, not exceeding the total of those
Impôt sur le re amounts so deemed to have been paid, and (iii) on or after mailing the notice of assessment for the year, refund any overpayment for the year, to the extent that the overpayment was not refunded pursuant to subparagraph (i) or (ii); and (b) shall, with all due dispatch, make the refund referred to in subparagraph (a)(iii) after mailing the notice of assessment if application for it is made in writing by the taxpayer within the period within which the Minister would be allowed under subsection 152(4) to assess tax payable under this Part by the taxpayer for the year if that subsection were read without reference to paragraph 152(4)(a). (2) Subsection 164(5) of the Act is amended by adding the following after paragraph (a): (a.1) any amount deducted under section 119 in respect of the disposition of a taxable Canadian property in a subsequent taxation year, (3) Paragraph 164(5)(e) of the Act is replaced by the following: (e) the deduction of an amount under subsection 126(2) in respect of an unused foreign tax credit (within the meaning assigned by subsection 126(7)), or under subsection 126(2.21) or (2.22) in respect of foreign taxes paid, for a subsequent taxation year, (4) Subsection 164(5) of the Act is amended by adding the following after paragraph (h.01): (h.02) the deduction under any of subsections 128.1(6) to (8) of an amount from the taxpayer’s proceeds of disposition of a property, because of an election made in a return of income for a subsequent taxation year, (5) Subsection 164(5.1) of the Act is replaced by the following:
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(5.1) Where a portion of a repayment made under subsection (1.1) or (4.1), or an amount applied under subsection (2) in respect of a repayment, can reasonably be regarded as being in respect of a claim made by the taxpayer in an objection to or appeal from an assessment of tax for a taxation year for a deduction or exclusion described in subsection (5) in respect of a subsequent taxation year, interest shall not be paid or applied on the portion for any part of a period that is before the latest of the dates described in paragraphs (5)(i) to (l).
(6) Subparagraph 164(6.1)(a)(iii) of the Act is amended by replacing the reference to the fraction ‘‘1/4’’ with a reference to the fraction ‘‘1/2’’. (7) Subsection (1) applies to the 1999 and subsequent taxation years. (8) Subsections (2) to (5) apply to taxation years that end after October 1, 1996. (9) Subsection (6) applies to deaths that occur after February 27, 2000 except that, for deaths that occurred after February 27, 2000 and before October 18, 2000, the reference to the fraction ‘‘1/2’’ in subparagraph 164(6.1)(a)(iii) of the Act, as enacted by subsection (6), shall be read as a reference to the fraction ‘‘1/3’’. 157. (1) Subsection 165(2.1) of the Act is replaced by the following: Application
(2.1) Notwithstanding any other provision of this Act, paragraph (1)(a) shall apply only in respect of assessments, determinations and redeterminations under this Part and Part I.2.
(2) Subsection (1) applies to the 2001 and subsequent taxation years. 158. (1) Section 169 of the Act is amended by adding the following after subsection (1):
2001 Ecological gifts
Impôt sur le re (1.1) Where at any particular time a taxpayer has disposed of a property, the fair market value of which has been confirmed or redetermined by the Minister of the Environment under subsection 118.1(10.4), the taxpayer may, within 90 days after the day on which that Minister has issued a certificate under subsection 118.1(10.5), appeal the confirmation or redetermination to the Tax Court of Canada. (2) Subsection (1) applies in respect of gifts made after February 27, 2000 except that, where a certificate has been issued under subsection 118.1(10.5) of the Act, as enacted by subsection 94(7), before this Act receives royal assent, subsection 169(1.1) of the Act, as enacted by subsection (1), shall be read as follows: (1.1) Where at any particular time a taxpayer has disposed of a property, the fair market value of which has been confirmed or redetermined by the Minister of the Environment under subsection 118.1(10.4), the taxpayer may, within 90 days after the day on which the Income Tax Amendments Act, 2000 receives royal assent, appeal the confirmation or redetermination to the Tax Court of Canada. 159. (1) Section 171 of the Act is amended by adding the following after subsection (1):
Ecological gifts
(1.1) On an appeal under subsection 169(1.1), the Tax Court of Canada may confirm or vary the amount determined to be the fair market value of a property and the value determined by the Court is deemed to be the fair market value of the property determined by the Minister of the Environment. (2) Subsection (1) applies in respect of gifts made after February 27, 2000. 160. (1) Subsection 180.1(1) of the Act is replaced by the following:
Individual surtax
180.1 (1) Every individual shall pay a tax under this Part for each taxation year equal to 5% of the amount, if any, by which the tax payable under Part I by the individual for the year exceeds $15,500.
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(2) Subsection 180.1(2) of the Act is replaced by the following: Former resident credit for tax paid
(1.4) There may be deducted from the tax otherwise payable under this Part by an individual for a taxation year (computed without reference to subsections (1.1) and (1.2)) the amount, if any, by which (a) the amount that would be deductible under section 119 in computing the individual’s tax payable under Part I for the year if, in applying for that purpose paragraph (a) of the definition ‘‘tax for the year otherwise payable under this Part’’ in subsection 126(7), the reference in that paragraph to ‘‘tax payable under this Part for the year’’ were read as a reference to ‘‘the total of taxes that, but for subsections 180.1(1.1), (1.2) and (1.4), would be payable under this Part and Part I.1 for the year’’ exceeds (b) the amount deductible under section 119 in computing the individual’s tax payable under Part I for the year.
Meaning of tax payable under Part I
(2) For the purposes of subsection (1), the tax payable under Part I by an individual for a taxation year is the amount, if any, by which (a) the amount that would be the individual’s tax payable under that Part for the year if that Part were read without reference to section 119, subsection 120(1) and sections 122.3, 126, 127, 127.4 and 127.54 exceeds (b) if the individual was throughout the year a mutual fund trust, the least of the amounts determined under paragraphs (a), (b) and (c) of the description of A in the definition ‘‘refundable capital gains tax on hand’’ in subsection 132(4) in respect of the trust for the year, and (c) in any other case, nil.
Impôt sur le re (3) Subsection (1) applies to the 2000 taxation year. (4) Subsection (2) applies after October 1, 1996. 161. (1) Part I.1 of the Act is repealed. (2) Subsection (1) applies to the 2001 and subsequent taxation years. 162. (1) The formula in subparagraph 180.2(4)(a)(ii) of the Act is replaced by the following: (0.0125A - $665)(1 - B) (2) Subsection (1) applies to amounts paid after November 1999. 163. (1) The portion of paragraph 181.3(3)(a) of the Act before subparagraph (i) is replaced by the following: (a) in the case of a financial institution, other than an authorized foreign bank or an insurance corporation, the amount, if any, by which the total at the end of the year of (2) Subsection 181.3(3) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (c), by adding the word ‘‘and’’ at the end of paragraph (d) and by adding the following after paragraph (d): (e) in the case of an authorized foreign bank, the total of (i) 10% of the total of all amounts, each of which is the risk-weighted amount at the end of the year of an on-balance sheet asset or an off-balance sheet exposure of the bank in respect of its Canadian banking business that the bank would be required to report under the OSFI riskweighting guidelines if those guidelines applied and required a report at that time, and (ii) the total of all amounts, each of which is an amount at the end of the year in respect of the bank’s Canadian banking business that (A) if the bank were a bank listed in Schedule II to the Bank Act, would be
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Income Ta required under the risk-based capital adequacy guidelines issued by the Superintendent of Financial Institutions and applicable at that time to be deducted from the bank’s capital in determining the amount of capital available to satisfy the Superintendent’s requirement that capital equal a particular proportion of risk-weighted assets and exposures, and (B) is not an amount in respect of a loss protection facility required to be deducted from capital under the Superintendent’s guidelines respecting asset securitization applicable at that time.
(3) Subsection 181.3(4) of the Act is replaced by the following: Investment allowance of financial institution
(4) The investment allowance for a taxation year of a corporation that is a financial institution is (a) in the case of a corporation that was resident in Canada at any time in the year, the total of all amounts each of which is the carrying value at the end of the year of an eligible investment of the corporation; (b) in the case of an insurance corporation that was throughout the year not resident in Canada, the total of all amounts each of which is the carrying value at the end of the year of an eligible investment of the corporation that was used or held by it in the year in the course of carrying on an insurance business in Canada; (c) in the case of an authorized foreign bank, the total of all amounts each of which is the amount at the end of the year, before the application of risk weights, that the bank would be required to report under the OSFI risk-weighting guidelines if those guidelines applied and required a report at that time, of an eligible investment used or held by the bank in the year in the course of carrying on its Canadian banking business; and (d) in any other case, nil.
2001 Interpretation
Impôt sur le re (5) For the purpose of subsection (4), (a) an eligible investment of a corporation is a share of the capital stock or long-term debt (and, where the corporation is an insurance corporation, is non-segregated property within the meaning assigned by subsection 138(12)) of a financial institution that at the end of the year (i) is related to the corporation, (ii) is not exempt from tax under this Part, and (iii) is resident in Canada or can reasonably be regarded as using the proceeds of the share or debt in a business carried on by the institution through a permanent establishment (as defined by regulation) in Canada; and (b) a credit union and another credit union of which the credit union is a shareholder or member are deemed to be related to each other. (4) Subsections (1) to (3) apply after June 27, 1999, except that in its application to taxpayers other than authorized foreign banks for taxation years that end before 2002, paragraph 181.3(5)(a) of the Act, as enacted by subsection (3), shall be read without reference to subparagraph (iii). 164. (1) Section 186 of the Act is amended by adding the following after subsection (6):
Interpretation
(7) For greater certainty, where a provision of this Act or the regulations indicates that the term ‘‘connected’’ has the meaning assigned by subsection 186(4), that meaning shall be determined by taking into account the application of subsection 186(2) unless the provision expressly provides otherwise. (2) Subject to subsection (3), subsection (1) applies on and after March 16, 2001. (3) Subsection (1) does not apply for the purposes of applying the Act on and after March 16, 2001 with respect to actions or transactions of a taxpayer required to be
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carried out under an agreement in writing made by the taxpayer before March 16, 2001 if the taxpayer elects in writing that this subsection apply by filing the election including a copy of the agreement with the Minister of National Revenue before the day that is 60 days after the day on which this Act receives royal assent. 165. (1) The description of C in subsection 190.1(1.1) of the Act is replaced by the following: C is the number of days in the year that are after February 25, 1992 and before 2001. (2) Subsection (1) applies to taxation years that end after 1998. 166. (1) The portion of paragraph 190.13(a) of the Act before subparagraph (i) is replaced by the following: (a) in the case of a financial institution, other than an authorized foreign bank or a life insurance corporation, the amount, if any, by which the total at the end of the year of (2) Section 190.13 of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (b), by adding the word ‘‘and’’ at the end of paragraph (c) and by adding the following after paragraph (c): (d) in the case of an authorized foreign bank, the total of (i) 10% of the total of all amounts, each of which is the risk-weighted amount at the end of the year of an on-balance sheet asset or an off-balance sheet exposure of the bank in respect of its Canadian banking business that the bank would be required to report under the OSFI riskweighting guidelines if those guidelines applied and required a report at that time, and (ii) the total of all amounts, each of which is an amount at the end of the year in respect of the bank’s Canadian banking business that (A) if the bank were a bank listed in Schedule II to the Bank Act, would be
Impôt sur le re required under the risk-based capital adequacy guidelines issued by the Superintendent of Financial Institutions and applicable at that time to be deducted from the bank’s capital in determining the amount of capital available to satisfy the Superintendent’s requirement that capital equal a particular proportion of risk-weighted assets and exposures, and (B) is not an amount in respect of a loss protection facility required to be deducted from capital under the Superintendent’s guidelines respecting asset securitization applicable at that time. (3) Subsections (1) and (2) apply after June 27, 1999. 167. (1) Section 190.14 of the Act is replaced by the following:
Investment in related institutions
190.14 (1) A corporation’s investment for a taxation year in a financial institution related to it is (a) in the case of a corporation that was resident in Canada at any time in the year, the total of all amounts each of which is the carrying value (or in the case of contributed surplus, the amount) at the end of the year of an eligible investment of the corporation in the financial institution; (b) in the case of a life insurance corporation that was non-resident throughout the year, the total of all amounts each of which is the carrying value (or is, in the case of contributed surplus, the amount) at the end of the year of an eligible investment of the corporation in the financial institution that was used or held by the corporation in the year in the course of carrying on an insurance business in Canada (or that, in the case of contributed surplus, was contributed by the corporation in the course of carrying on that business); and (c) in the case of a corporation that is an authorized foreign bank, the total of all amounts each of which is the amount at the end of the year, before the application of risk weights, that would be required to be reported under the OSFI risk-weighting
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guidelines if those guidelines applied and required a report at that time, of an eligible investment of the corporation in the financial institution that was used or held by the corporation in the year in the course of carrying on its Canadian banking business or, in the case of an eligible investment that is contributed surplus of the financial institution at the end of the year, the amount of the surplus contributed by the corporation in the course of carrying on that business.
Interpretation
(2) For the purpose of subsection (1), an eligible investment of a corporation in a financial institution is a share of the capital stock or long-term debt (and, where the corporation is an insurance corporation, is non-segregated property within the meaning assigned by subsection 138(12)) of the financial institution or any surplus of the financial institution contributed by the corporation (other than an amount otherwise included as a share or debt) if the financial institution at the end of the year is (a) related to the corporation; and (b) resident in Canada or can reasonably be regarded as using the surplus or the proceeds of the share or debt in a business carried on by the financial institution through a permanent establishment (as defined by regulation) in Canada. (2) Subsection (1) applies after June 27, 1999 except that, in its application to taxpayers other than authorized foreign banks for taxation years that end before 2002, subsection 190.14(2) of the Act, as enacted by subsection (1), shall be read without reference to paragraph (b). 168. (1) Paragraph (a) of the definition ‘‘qualified investment’’ in section 204 of the Act is replaced by the following: (a) money (other than money the fair market value of which exceeds its stated value as legal tender in the country of
Impôt sur le re issuance or money that is held for its numismatic value) and deposits (within the meaning assigned by the Canada Deposit Insurance Corporation Act or with a branch in Canada of a bank) of such money standing to the credit of the trust, (2) Paragraph (c) of the definition ‘‘qualified investment’’ in section 204 of the Act is replaced by the following: (c) bonds, debentures, notes or similar obligations (other than those described in paragraph 147(2)(c)) (i) issued by a corporation the shares of which are listed on a prescribed stock exchange in Canada, or (ii) issued by an authorized foreign bank and payable at a branch in Canada of the bank, (3) Subsections (1) and (2) apply after June 27, 1999 except that, before 2003, paragraph (a) of the definition ‘‘qualified investment’’ in section 204 of the Act, as enacted by subsection (1), shall be read as follows: (a) money (other than money the fair market value of which exceeds its stated value as legal tender in the country of issuance or money that is held for its numismatic value) and deposits (within the meaning assigned by the Canada Deposit Insurance Corporation Act or with a bank listed in Schedule I or II to the Bank Act or with a branch in Canada of an authorized foreign bank) of such money standing to the credit of the trust, 169. (1) Paragraph (g) of the definition ‘‘foreign property’’ in subsection 206(1) of the Act is replaced by the following: (g) indebtedness of a non-resident person, other than (i) indebtedness issued by an authorized foreign bank and payable at a branch in Canada of the bank, or
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Income Ta (ii) indebtedness issued or guaranteed by (A) the International Bank for Reconstruction and Development, (B) the International Finance Corporation, (C) the Inter-American Development Bank, (D) the Asian Development Bank, (E) the Caribbean Development Bank, (F) the European Bank for Reconstruction and Development, (G) the African Development Bank, or (H) a prescribed person,
(2) Subsection 206(1) of the Act is amended by adding the following in alphabetical order: ‘‘cost amount’’ « coût indiqué »
‘‘cost amount’’ at any time of a taxpayer’s capital interest in a trust that is foreign property is deemed to be the greater of (a) the cost amount of the interest, determined without reference to this definition, and (b) where that time is more than 60 days after the end of a taxation year of the trust, the amount that would be the cost amount of the interest if new units of the trust had been issued in satisfaction of each amount payable (i) after 2000 and at or before the end of the taxation year, by the trust in respect of the interest, (ii) to which subparagraph 53(2)(h)(i.1) applies (or would apply if that subparagraph were read without reference to clauses (A) and (B) of that subparagraph), and (iii) that has not been satisfied at or before that time by the issue of new units of the trust or by a payment of an amount by the trust;
Impôt sur le re
(3) Subsection 206(3.1) of the Act is replaced by the following: Acquisition of qualifying security
(3.1) For the purpose of applying subparagraph (2)(a)(iii) at or after a particular time, where a qualifying security in relation to another security is acquired at the particular time by the taxpayer referred to in subsection (3.2) in respect of the security, and the security is foreign property at that time, (a) the qualifying security is deemed to have been last acquired by the taxpayer at the time the other security was last acquired by the taxpayer; (b) where the other security was not foreign property immediately before the particular time, the qualifying security is deemed to have become foreign property at the particular time; and (c) where the other security was foreign property immediately before the particular time, the qualifying security is deemed to have become foreign property at the time the other security became foreign property.
Qualifying security
(3.2) For the purpose of subsection (3.1), a qualifying security in relation to another security means (a) a security issued at any time by a corporation to a taxpayer (i) in exchange for another security acquired before that time by the taxpayer, and (ii) in the course of (A) a corporate merger or reorganization of capital, (B) a transaction or series of transactions in which control of the corporation that issued the other security is acquired by a person or group of persons, or (C) a transaction or series of transactions in which all or substantially all of
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Income Ta the issued and outstanding shares (other than shares held immediately before the transaction or the beginning of the series by a particular person or related group) of the corporation that issued the other security are acquired by the particular person or related group; or
(b) a security acquired by a taxpayer from a corporation pursuant to a distribution with respect to another security that is an eligible distribution described in subsection 86.1(2). (4) Subsection 206(4) of the Act is replaced by the following: Non-arm’s length transactions
(4) For the purposes of this Part, where at any time a taxpayer acquires property, otherwise than pursuant to a transfer of property to which paragraph (f) or (g) of the definition ‘‘disposition’’ in subsection 248(1) applies, from a person with whom the taxpayer does not deal at arm’s length for no consideration or for consideration less than the fair market value of the property at that time, the taxpayer is deemed to acquire the property at that fair market value, and for those purposes, a particular trust is deemed not to deal at arm’s length with another trust if a person who is beneficially interested in the particular trust is at that time also beneficially interested in the other trust. (5) Subsection (1) applies after June 27, 1999. (6) Subsection (2) applies to months that end after February 2001. (7) Subsection (3) applies to months that end after 1997. (8) Subsection (4) applies in respect of property acquired after December 23, 1998. 170. (1) Section 207.31 of the Act is replaced by the following:
Tax payable by recipient of an ecological gift
207.31 Any charity or municipality that at any time in a taxation year, without the authorization of the Minister of the Environment or a person designated by that Minister, disposes of or changes the use of a property described in paragraph 110.1(1)(d) or in the definition ‘‘total ecological gifts’’ in subsec2001
Impôt sur le re tion 118.1(1) and given to the charity or municipality after February 27, 1995 shall, in respect of the year, pay a tax under this Part equal to 50% of the amount that would be determined for the purposes of section 110.1 or 118.1, if this Act were read without reference to subsections 110.1(3) and 118.1(6), to be the fair market value of the property if the property were given to the charity or municipality immediately before the disposition or change. (2) Subsection (1) applies in respect of dispositions or changes of use that occur after November 1999. 171. (1) Paragraph 210.1(d) of the Act is replaced by the following: (d) a trust described in paragraph (a), (a.1) or (c) of the definition ‘‘trust’’ in subsection 108(1); or (2) Subsection (1) applies to the 1999 and subsequent taxation years. 172. (1) Paragraph 210.2(2)(b) of the Act is replaced by the following: (b) the only taxable capital gains and allowable capital losses referred to in paragraph 3(b) were from dispositions of taxable Canadian property; and (2) Subsection (1) applies after October 1, 1996. 173. (1) Subclause 212(1)(b)(ii)(C)(IV) of the Act is replaced by the following: (IV) of a corporation, commission or association to which any of paragraphs 149(1)(d) to (d.6) applies, or (2) Subparagraph 212(1)(c)(i) of the Act is replaced by the following: (i) is included in computing the income of the non-resident person under subsection 104(13), except to the extent that the amount is deemed by subsection 104(21) to be a taxable capital gain of the non-resident person, or (3) Section 212 of the Act is amended by adding the following after subsection 212(5):
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Acting services
(5.1) Notwithstanding any regulation made under paragraph 214(13)(c), every person who is either a non-resident individual who is an actor or that is a corporation related to such an individual shall pay an income tax of 23% on every amount paid or credited, or provided as a benefit, to or on behalf of the person for the provision in Canada of the acting services of the actor in a film or video production.
Relief from double taxation
(5.2) Where a corporation is liable to tax under subsection (5.1) in respect of an amount for acting services of an actor (in this subsection referred to as the ‘‘corporation payment’’) and the corporation pays, credits or provides as a benefit to the actor an amount for those acting services (in this subsection referred to as the ‘‘actor payment’’), no tax is payable under subsection (5.1) with respect to the actor payment except to the extent that it exceeds the corporation payment.
Reduction of withholding
(5.3) If the Minister is satisfied that the deduction or withholding otherwise required by section 215 from an amount described in subsection (5.1), would cause undue hardship, the Minister may determine a lesser amount to be deducted or withheld and that lesser amount is deemed to be the amount so required to be deducted or withheld. (4) Subsection 212(13.1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a) and by adding the following after paragraph (a): (a.1) where a partnership pays, credits or provides to a non-resident person an amount described in subsection (5.1), the partnership is deemed in respect of the amount to be a person; and (5) Section 212 of the Act is amended by adding the following after subsection (13.2):
Application of Part XIII to authorized foreign bank
(13.3) An authorized foreign bank is deemed to be resident in Canada for the purposes of
Impôt sur le re (a) this Part, in respect of any amount paid or credited to or by the bank in respect of its Canadian banking business; and (b) the application in paragraph (13.1)(b) of the definition ‘‘Canadian partnership’’ in respect of a partnership interest held by the bank in the course of its Canadian banking business.
(6) Subsection (1) applies to amounts paid or credited after 1998. (7) Subsection (2) applies to amounts paid or credited after December 17, 1999. (8) Subsections (3) and (4) apply to amounts paid, credited or provided after 2000. (9) Subsection (5) applies after June 27, 1999. 174. (1) Subsection 215(1) of the Act is replaced by the following: Withholding and remittance of tax
215. (1) When a person pays, credits or provides, or is deemed to have paid, credited or provided, an amount on which an income tax is payable under this Part, or would be so payable if this Part were read without reference to subsection 216.1(1), the person shall, notwithstanding any agreement or law to the contrary, deduct or withhold from it the amount of the tax and forthwith remit that amount to the Receiver General on behalf of the non-resident person on account of the tax and shall submit with the remittance a statement in prescribed form. (2) Subsection 215(5) of the Act is replaced by the following:
Regulations reducing deduction or withholding
(5) The Governor in Council may make regulations in respect of any non-resident person or class of non-resident persons to whom any amount is paid or credited as, on account of, in lieu of payment of or in satisfaction of, any amount described in any of paragraphs 212(1)(h), (j) to (m) and (q) reducing the amount otherwise required by any of subsections (1) to (3) to be deducted or withheld from the amount so paid or credited.
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(3) Subsection (1) applies to amounts paid, credited or provided after 2000. (4) Subsection (2) applies after April 1997. 175. (1) The Act is amended by adding the following after section 216: Alternative re: acting services
216.1 (1) No tax is payable under this Part on any amount described in subsection 212(5.1) that is paid, credited or provided to a non-resident person in a taxation year if the person (a) files with the Minister, on or before the person’s filing-due date for the year, a return of income under Part I for the year; and (b) elects in the return to have this section apply for the year.
Deemed Part I payment
(2) If in respect of a particular amount paid, credited or provided in a taxation year, a non-resident person has complied with paragraphs (1)(a) and (b), any amount deducted or withheld and remitted to the Receiver General on behalf of the person on account of tax under subsection 212(5.1) in respect of the particular amount is deemed to have been paid on account of the person’s tax under Part I.
Deemed election and restriction
(3) Where a corporation payment (within the meaning assigned by subsection 212(5.2)) has been made to a non-resident corporation in respect of an actor and at any time the corporation makes an actor payment (within the meaning assigned by subsection 212(5.2)) to or for the benefit of the actor, if the corporation makes an election under subsection (1) for the taxation year in which the corporation payment is made, the actor is deemed to make an election under subsection (1) for the taxation year of the actor in which the corporation makes the actor payment.
Impôt sur le re (2) Subsection (1) applies to the 2001 and subsequent taxation years. 176. (1) The Act is amended by adding the following after section 218.1:
PART XIII.1 ADDITIONAL TAX ON AUTHORIZED FOREIGN BANKS Branch interest tax
218.2 (1) Every authorized foreign bank shall pay a tax under this Part for each taxation year equal to 25% of its taxable interest expense for the year.
Taxable interest expense
(2) The taxable interest expense of an authorized foreign bank for a taxation year is 15% of the amount, if any, by which (a) the total of all amounts on account of interest that are deducted under section 20.2 in computing the bank’s income for the year from its Canadian banking business exceeds (b) the total of all amounts that are included in paragraph (a) and that are in respect of a liability of the bank to another person or partnership.
Where tax not payable
(3) No tax is payable under this Part for a taxation year by an authorized foreign bank if (a) the bank is resident in a country with which Canada has a tax treaty at the end of the year; and (b) no tax similar to the tax under this Part would be payable in that country for the year by a bank resident in Canada carrying on business in that country during the year.
Rate limitation
(4) Notwithstanding any other provision of this Act, the reference in subsection (1) to 25% shall, in respect of a taxation year of an authorized foreign bank that is resident in a country with which Canada has a tax treaty on the last day of the year, be read as a reference to,
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(a) if the treaty specifies the maximum rate of tax that Canada may impose under this Part for the year on residents of that country, that rate; (b) if the treaty does not specify a maximum rate as described in paragraph (a) but does specify the maximum rate of tax that Canada may impose on a payment of interest in the year by a person resident in Canada to a related person resident in that country, that rate; and (c) in any other case, 25%. Provisions applicable to Part
(5) Sections 150 to 152, 158, 159, 160.1 and 161 to 167 and Division J of Part I apply to this Part with any modifications that the circumstances require. (2) Subsection (1) applies to taxation years that end after June 27, 1999. 177. (1) Paragraph 219(1)(b) of the Act is replaced by the following: (b) the amount deducted because of section 112 and paragraph 115(1)(e) in computing the corporation’s base amount, (2) Paragraph 219(1)(d) of the Act is amended by replacing the reference to the expression ‘‘1/3 of the amount’’ with a reference to the expression ‘‘the amount’’. (3) Subsection 219(1.1) of the Act is replaced by the following:
Excluded gains
(1.1) For the purpose of subsection (1), the definition ‘‘taxable Canadian property’’ in subsection 248(1) shall be read without reference to paragraphs (a) and (c) to (k) of that definition and as if the only interests or options referred to in paragraph (l) of that definition were those in respect of property described in paragraph (b) of that definition. (4) Paragraph 219(2)(a) of the Act is repealed. (5) Subsection (1) applies to the 1998 and subsequent taxation years. (6) Subsection (2) years that end after except that, for such ended before October
applies to taxation February 27, 2000 taxation years that 18, 2000, the refer2001
Impôt sur le re ence in paragraph 219(1)(d) of the Act, as enacted by subsection (2), to the expression ‘‘the amount’’ shall be read as a reference to the expression ‘‘1/2 of the amount’’. (7) Subsection (3) applies after October 1, 1996. (8) Subsection (4) applies to taxation years that end after June 27, 1999. 178. (1) Section 220 of the Act is amended by adding the following after subsection (4.4):
Security for departure tax
(4.5) If an individual who is deemed by subsection 128.1(4) to have disposed of a property (other than a right to a benefit under, or an interest in a trust governed by, an employee benefit plan) at any particular time in a taxation year (in this section referred to as the individual’s ‘‘emigration year’’) elects, in prescribed manner on or before the individual’s balance-due day for the emigration year, that this subsection and subsections (4.51) to (4.54) apply in respect of the emigration year, (a) the Minister shall, until the individual’s balance-due day for a particular taxation year that begins after the particular time, accept adequate security furnished by or on behalf of the individual on or before the individual’s balance-due day for the emigration year for the lesser of (i) the amount determined by the formula A - B - [((A - B)/A) x C] where A is the total amount of taxes under Parts I and I.1 that would be payable by the individual for the emigration year if the exclusion or deduction of each amount referred to in paragraph 161(7)(a) were not taken into account, B is the total amount of taxes under those Parts that would have been so payable if each property (other than a right to a benefit under, or an interest in a trust governed by, an employee benefit plan) deemed by subsection 128.1(4) to have been disposed of at
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Income Ta the particular time, and that has not been subsequently disposed of before the beginning of the particular year, were not deemed by subsection 128.1(4) to have been disposed of by the individual at the particular time, and C is the total of all amounts deemed under this or any other Act to have been paid on account of the individual’s tax under this Part for the emigration year, and (ii) if the particular year immediately follows the emigration year, the amount determined under subparagraph (i), and in any other case, the amount determined under this paragraph in respect of the individual for the taxation year that immediately precedes the particular year, and
(b) except for the purposes of subsections 161(2), (4) and (4.01), (i) interest under this Act for any period that ends on the individual’s balance-due day for the particular year and throughout which security is accepted by the Minister, and (ii) any penalty under this Act computed with reference to an individual’s tax payable for the year that was, without reference to this paragraph, unpaid shall be computed as if the particular amount for which adequate security has been accepted under this subsection were an amount paid by the individual on account of the particular amount.
2001 Deemed security
Impôt sur le re (4.51) If an individual (other than a trust) elects under subsection (4.5) that that subsection apply in respect of a taxation year, for the purposes of this subsection and subsections (4.5) and (4.52) to (4.54), the Minister is deemed to have accepted at any time after the election is made adequate security for a total amount of taxes payable under Parts I and I.1 by the individual for the emigration year equal to the lesser of (a) the total amount of those taxes that would be payable for the year by an inter vivos trust resident in Canada (other than a trust described in subsection 122(2)) the taxable income of which for the year is $50,000, and (b) the greatest amount for which the Minister is required to accept security furnished by or on behalf of the individual under subsection (4.5) at that time in respect of the emigration year, and that security is deemed to have been furnished by the individual before the individual’s balance-due day for the emigration year.
Limit
(4.52) Notwithstanding subsections (4.5) and (4.51), the Minister is deemed at any time not to have accepted security under subsection (4.5) in respect of an individual’s emigration year for any amount greater than the amount, if any, by which (a) the total amount of taxes that would be payable by the individual under Parts I and I.1 for the year if the exclusion or deduction of each amount referred to in paragraph 161(7)(a), in respect of which the day determined under paragraph 161(7)(b) is after that time, were not taken into account exceeds (b) the total amount of taxes that would be determined under paragraph (a) if this Act were read without reference to subsection 128.1(4).
��� Inadequate security
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(4.53) Subject to subsection (4.7), if it is determined at any particular time that security accepted by the Minister under subsection (4.5) is not adequate to secure the particular amount for which it was furnished by or on behalf of an individual, (a) subject to a subsequent application of this subsection, the security shall be considered after the particular time to secure only the amount for which it is adequate security at the particular time; (b) the Minister shall notify the individual in writing of the determination and shall accept adequate security, for all or any part of the particular amount, furnished by or on behalf of the individual within 90 days after the day of notification; and (c) any security accepted in accordance with paragraph (b) is deemed to have been accepted by the Minister under subsection (4.5) on account of the particular amount at the particular time.
Extension of time
(4.54) If in the opinion of the Minister it would be just and equitable to do so, the Minister may at any time extend (a) the time for making an election under subsection (4.5); (b) the time for furnishing and accepting security under subsection (4.5); or (c) the 90-day period for the acceptance of security under paragraph (4.53)(b).
Security for tax on distributions of taxable Canadian property to non-resident beneficiaries
(4.6) Where (a) solely because of the application of subsection 107(5), paragraphs 107(2)(a) to (c) do not apply to a distribution by a trust in a particular taxation year (in this section referred to as the trust’s ‘‘distribution year’’) of taxable Canadian property, and (b) the trust elects, in prescribed manner on or before the trust’s balance-due day for the
Impôt sur le re distribution year, that this subsection and subsections (4.61) to (4.63) apply in respect of the distribution year, the following rules apply: (c) the Minister shall, until the trust’s balance-due day for a subsequent taxation year, accept adequate security furnished by or on behalf of the trust on or before the trust’s balance-due day for the distribution year for the lesser of (i) the amount determined by the formula A - B - [((A - B)/A) x C] where A is the total amount of taxes under Parts I and I.1 that would be payable by the trust for the distribution year if the exclusion or deduction of each amount referred to in paragraph 161(7)(a) were not taken into account, B is the total amount of taxes under those Parts that would have been so payable if the rules in subsection 107(2) (other than the election referred to in that subsection) had applied to each disposition by the trust in the distribution year of property (other than property subsequently disposed of before the beginning of the subsequent year) to which paragraph (a) applies, and C is the total of all amounts deemed under this or any other Act to have been paid on account of the trust’s tax under this Part for the distribution year, and (ii) where the subsequent year immediately follows the distribution year, the amount determined under subparagraph (i), and in any other case, the amount determined under this paragraph in respect of the trust for the taxation year that immediately precedes the subsequent year, and (d) except for the purposes of subsections 161(2), (4) and (4.01),
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Income Ta (i) interest under this Act for any period that ends on the trust’s balance-due day for the subsequent year and throughout which security is accepted by the Minister, and (ii) any penalty under this Act computed with reference to the trust’s tax payable for the year that was, without reference to this paragraph, unpaid
shall be computed as if the particular amount for which adequate security has been accepted under this subsection were an amount paid by the trust on account of the particular amount.
Limit
(4.61) Notwithstanding subsection (4.6), the Minister is deemed at any time not to have accepted security under that subsection in respect of a trust’s distribution year for any amount greater than the amount, if any, by which (a) the total amount of taxes that would be payable by the trust under Parts I and I.1 for the year if the exclusion or deduction of each amount referred to in paragraph 161(7)(a), in respect of which the day determined under paragraph 161(7)(b) is after that time, were not taken into account exceeds (b) the total amount of taxes that would be determined under paragraph (a) if paragraphs 107(2)(a) to (c) had applied to each distribution by the trust in the year of property to which paragraph (1)(a) applies.
Inadequate security
(4.62) Subject to subsection (4.7), where it is determined at any particular time that security accepted by the Minister under subsection (4.6) is not adequate to secure the particular amount for which it was furnished by or on behalf of a trust,
Impôt sur le re (a) subject to a subsequent application of this subsection, the security shall be considered after the particular time to secure only the amount for which it is adequate security at the particular time; (b) the Minister shall notify the trust in writing of the determination and shall accept adequate security, for all or any part of the particular amount, furnished by or on behalf of the trust within 90 days after the notification; and (c) any security accepted in accordance with paragraph (b) is deemed to have been accepted by the Minister under subsection (4.6) on account of the particular amount at the particular time.
Extension of time
(4.63) Where in the opinion of the Minister it would be just and equitable to do so, the Minister may at any time extend (a) the time for making an election under subsection (4.6); (b) the time for furnishing and accepting security under subsection (4.6); or (c) the 90-day period for the acceptance of the security under paragraph (4.62)(b).
Undue hardship
(4.7) If, in respect of any period of time, the Minister determines that an individual who has made an election under either subsection (4.5) or (4.6) (a) cannot, without undue hardship, pay or reasonably arrange to have paid on the individual’s behalf, an amount of taxes to which security under that subsection would relate, and (b) cannot, without undue hardship, provide or reasonably arrange to have provided on the individual’s behalf, adequate security under that subsection, the Minister may, in respect of the election, accept for the period security different from, or of lesser value than, that which the Minister would otherwise accept under that subsection.
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(4.71) In making a determination under subsection (4.7), the Minister shall ignore any transaction that is a disposition, lease, encumbrance, mortgage, hypothec, or other voluntary restriction by a person or partnership of the person’s or partnership’s rights in respect of a property, if the transaction can reasonably be considered to have been entered into for the purpose of influencing the determination. (2) Subsection (1) applies to dispositions and distributions that occur at any time after October 1, 1996 except that, (a) the reference to ‘‘$50,000’’ in paragraph 220(4.51)(a) of the Act, as enacted by subsection (1), shall be read as a reference to ‘‘$75,000’’ in respect of emigration years that are before 2001; and (b) if an individual ceased to be resident in Canada, or a distribution by a trust occurred to which paragraph 220(4.6)(a) of the Act, as enacted by subsection (1), applies in respect of the trust, before the particular day on which this Act receives royal assent, (i) an election by the individual under subsection 220(4.5) of the Act, or by the trust under subsection 220(4.6) of the Act, as the case may be, as enacted by subsection (1), in respect of the taxation year that includes that time is deemed to have been made in a timely manner if it is made on or before the individual’s filing-due date for the taxation year that includes the particular day, and (ii) security furnished by or on behalf of the individual under subsection 220(4.5) of the Act, or by or on behalf of the trust under subsection 220(4.6) of the Act, as the case may be, as enacted by subsection (1), is deemed to have been furnished in a timely manner if it is furnished on or before the individual’s filing-due date for the taxation year that includes the particular day.
Impôt sur le re 179. Paragraph 225.1(6)(b) of the Act is replaced by the following: (b) an amount required to be deducted or withheld, and required to be remitted or paid, under this Act or the Regulations; 180. (1) Section 227 of the Act is amended by adding the following after subsection (4.2):
Application to Crown
(4.3) For greater certainty, subsections (4) to (4.2) apply to Her Majesty in right of Canada or a province where Her Majesty in right of Canada or a province is a secured creditor (within the meaning assigned by subsection 224(1.3)) or holds a security interest (within the meaning assigned by that subsection). (2) Subsection 227(16) of the Act is replaced by the following:
Municipal or provincial corporation excepted
(16) A corporation that at any time in a taxation year would be a corporation described in any of paragraphs 149(1)(d) to (d.6) but for a provision of an appropriation Act is deemed not to be a private corporation for the purposes of Part IV with respect to that year. (3) Subsection (2) applies to taxation years that begin after 1998. 181. The portion of section 231 of the Act before the definition ‘‘authorized person’’ is replaced by the following:
Definitions
231. In sections 231.1 to 231.7, 182. Subsection 231.5(2) of the Act is replaced by the following:
Compliance
(2) No person shall, physically or otherwise, interfere with, hinder or molest an official (in this subsection having the meaning assigned by subsection 241(10)) doing anything that the official is authorized to do under this Act or attempt to interfere with, hinder or molest any official doing or prevent or attempt to prevent an official from doing, anything that the official is authorized to do under this Act, and every person shall, unless the person is unable to do so, do everything that the person is required to do by or under subsection (1) or sections 231.1 to 231.4.
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183. The Act is amended by adding the following after section 231.6: Compliance order
231.7 (1) On summary application by the Minister, a judge may, notwithstanding subsection 238(2), order a person to provide any access, assistance, information or document sought by the Minister under section 231.1 or 231.2 if the judge is satisfied that (a) the person was required under section 231.1 or 231.2 to provide the access, assistance, information or document and did not do so; and (b) in the case of information or a document, the information or document is not protected from disclosure by solicitor-client privilege (within the meaning of subsection 232(1)).
Notice required
(2) An application under subsection (1) must not be heard before the end of five clear days from the day the notice of application is served on the person against whom the order is sought.
Judge may impose conditions
(3) A judge making an order under subsection (1) may impose any conditions in respect of the order that the judge considers appropriate.
Contempt of court
(4) If a person fails or refuses to comply with an order, a judge may find the person in contempt of court and the person is subject to the processes and the punishments of the court to which the judge is appointed.
Appeal
(5) An order by a judge under subsection (1) may be appealed to a court having appellate jurisdiction over decisions of the court to which the judge is appointed. An appeal does not suspend the execution of the order unless it is so ordered by a judge of the court to which the appeal is made. 184. (1) The definition ‘‘specified foreign property’’ in subsection 233.3(1) of the Act is amended by adding the following after paragraph (o): (o.1) a right with respect to, or indebtedness of, an authorized foreign bank that is issued by, and payable or otherwise
Impôt sur le re enforceable at, a branch in Canada of the bank.
(2) Subsection (1) applies after June 27, 1999. 185. Paragraph 239(2.21)(a) of the Act is replaced by the following: (a) to whom taxpayer information has been provided for a particular purpose under paragraph 241(4)(b), (c), (e), (h), (k), (n), (o) or (p). 186. (1) The portion of subsection 241(3.2) of the Act before paragraph (a) is replaced by the following: Registered charities
(3.2) An official may provide to any person the following taxpayer information relating to another person that was at any time a registered charity (in this subsection referred to as the ‘‘charity’’): (2) Subsection 241(4) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (m) and by adding the following after paragraph (n): (o) provide taxpayer information to any person solely for the purpose of enabling the Chief Statistician, within the meaning assigned by section 2 of the Statistics Act, to provide to a statistical agency of a province data concerning business activities carried on in the province, where the information is used by the agency solely for research and analysis and the agency is authorized under the law of the province to collect the same or similar information on its own behalf in respect of such activities; or (p) provide taxpayer information to a police officer (within the meaning assigned by subsection 462.48(17) of the Criminal Code) solely for the purpose of investigating whether an offence has been committed under the Criminal Code, or the laying of an information or the preferring of an indictment, where (i) such information can reasonably be regarded as being necessary for the purpose of ascertaining the circum���
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Income Ta stances in which an offence under the Criminal Code may have been committed, or the identity of the person or persons who may have committed an offence, with respect to an official, or with respect to any person related to that official, (ii) the official was or is engaged in the administration or enforcement of this Act, and (iii) the offence can reasonably be considered to be related to that administration or enforcement.
(3) Paragraph 241(4)(o) of the Act, as enacted by subsection (2), applies after this Act receives royal assent to information relating to the 1997 and subsequent taxation years and, for the purpose of subsection 17(2) of the Statistics Act, where such information was collected before this Act receives royal assent, the information is deemed to have been collected at the time at which it is provided to a provincial agency pursuant to paragraph 241(4)(o) of the Income Tax Act, as enacted by subsection (2). 187. (1) The definition ‘‘transfer pricing capital adjustment’’ in subsection 247(1) of the Act is replaced by the following: ‘‘transfer pricing capital adjustment’’ « redressement de capital »
‘‘transfer pricing capital adjustment’’ of a taxpayer for a taxation year means the total of (a) all amounts each of which is (i) 1/2 of the amount, if any, by which the adjusted cost base to the taxpayer of a capital property (other than a depreciable property) is reduced in the year because of an adjustment made under subsection (2), (ii) 3/4 of the amount, if any, by which the adjusted cost base to the taxpayer of an eligible capital expenditure of the taxpayer in respect of a business is reduced in the year because of an adjustment made under subsection (2), or
Impôt sur le re (iii) the amount, if any, by which the capital cost to the taxpayer of a depreciable property is reduced in the year because of an adjustment made under subsection (2); and (b) all amounts each of which is that proportion of the total of (i) 1/2 of the amount, if any, by which the adjusted cost base to a partnership of a capital property (other than a depreciable property) is reduced in a fiscal period that ends in the year because of an adjustment made under subsection (2), (ii) 3/4 of the amount, if any, by which the adjusted cost base to a partnership of an eligible capital expenditure of the partnership in respect of a business is reduced in a fiscal period that ends in the year because of an adjustment made under subsection (2), and (iii) the amount, if any, by which the capital cost to a partnership of a depreciable property is reduced in the period because of an adjustment made under subsection (2), that (iv) the taxpayer’s share of the income or loss of the partnership for the period is of (v) the income or loss of the partnership for the period, and where the income and loss of the partnership are nil for the period, the income of the partnership for the period is deemed to be $1,000,000 for the purpose of determining a taxpayer’s share of the partnership’s income for the purpose of this definition.
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(2) Subsection 247(4) of the French version of the Act is replaced by the following:
Documentation ponctuelle
(4) Pour l’application du paragraphe (3) et de la définition de « arrangement admissible de participation au coût » au paragraphe (1), un contribuable ou une société de personnes est réputé ne pas avoir fait d’efforts sérieux pour déterminer et utiliser les prix de transfert de pleine concurrence ou les attributions de pleine concurrence relativement à une opération ou ne pas avoir pris part à une opération qui est un arrangement admissible de participation au coût, à moins d’avoir à la fois : a) établi ou obtenu, au plus tard à la date limite de production qui lui est applicable pour l’année d’imposition ou l’exercice, selon le cas, au cours duquel l’opération est conclue, des registres ou des documents contenant une description complète et exacte, quant à tous les éléments importants, de ce qui suit : (i) les biens ou les services auxquels l’opération se rapporte, (ii) les modalités de l’opération et leurs rapports éventuels avec celles de chacune des autres opérations conclues entre les participants à l’opération, (iii) l’identité des participants à l’opération et les liens qui existent entre eux au moment de la conclusion de l’opération, (iv) les fonctions exercées, les biens utilisés ou apportés et les risques assumés dans le cadre de l’opération par les participants, (v) les données et méthodes prises en considération et les analyses effectuées en vue de déterminer les prix de transfert, l’attribution des bénéfices ou des pertes ou la participation aux coûts, selon le cas, relativement à l’opération, (vi) les hypothèses, stratégies et principes éventuels ayant influé sur l’établissement des prix de transfert, l’attribu2001
Impôt sur le re tion des bénéfices ou des pertes ou la participation aux coûts relativement à l’opération; b) pour chaque année d’imposition ou exercice ultérieur où se poursuit l’opération, établi ou obtenu, au plus tard à la date limite de production qui lui est applicable pour l’année ou l’exercice, selon le cas, des registres ou des documents contenant une description complète et exacte de chacun des changements importants dont les éléments visés aux sous-alinéas a)(i) à (vi) ont fait l’objet au cours de l’année ou de l’exercice relativement à l’opération; c) fourni les registres ou documents visés aux alinéas a) et b) au ministre dans les trois mois suivant la signification à personne ou par courrier recommandé ou certifié d’une demande écrite les concernant. (3) Subsection (1) applies to taxation years that end after February 27, 2000 except that, for a taxation year of a taxpayer that includes February 28, 2000 or October 17, 2000, or began after February 28, 2000 or ended before October 17, 2000, the reference to the fraction ‘‘1/2’’ in the definition ‘‘transfer pricing capital adjustment’’ in subsection 247(1) of the Act, as enacted by subsection (1), shall be read as a reference to the fraction in paragraph 38(a) of the Act, as enacted by subsection 22(1), that applies to the taxpayer for the year. (4) Subsection (2) applies in respect of adjustments made under subsection 247(2) of the Act for taxation years and fiscal periods that begin after 1998, except that (a) subsection (2) does not apply to transactions completed before September 11, 1997; and (b) a record or document made, obtained or provided to the Minister of National Revenue by a taxpayer or a partnership on or before the taxpayer’s or partnership’s documentation-due date for the taxpayer’s or partnership’s first taxation year or fiscal period, as the case may be,
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that begins after 1998 is deemed for the purpose of subsection 247(4) of the Act, as enacted by subsection (2), to have been so made, obtained or provided on a timely basis.
188. (1) The definitions ‘‘foreign resource property’’ and ‘‘net capital loss’’ in subsection 248(1) of the Act are replaced by the following: ‘‘foreign resource property’’ « avoir minier étranger »
‘‘foreign resource property’’ has the meaning assigned by subsection 66(15), and a foreign resource property in respect of a country means a foreign resource property that is (a) a right, licence or privilege to explore for, drill for or take petroleum, natural gas or related hydrocarbons in that country, (b) a right, licence or privilege to (i) store underground petroleum, natural gas or related hydrocarbons in that country, or (ii) prospect, explore, drill or mine for minerals in a mineral resource in that country, (c) an oil or gas well in that country or real property in that country the principal value of which depends on its petroleum or natural gas content (but not including depreciable property), (d) a rental or royalty computed by reference to the amount or value of production from an oil or gas well in that country or from a natural accumulation of petroleum or natural gas in that country, (e) a rental or royalty computed by reference to the amount or value of production from a mineral resource in that country, (f) a real property in that country the principal value of which depends upon its mineral resource content (but not including depreciable property), or (g) a right to or interest in any property described in any of paragraphs (a) to (f), other than such a right or interest that the
Impôt sur le re taxpayer has by reason of being a beneficiary of a trust;
‘‘net capital loss’’ « perte en capital nette »
‘‘net capital loss’’ has the meaning assigned by subsection 111(8), except as otherwise expressly provided;
(2) The definition ‘‘taxable Canadian property’’ in subsection 248(1) of the Act is replaced by the following: ‘‘taxable Canadian property’’ « bien canadien imposable »
‘‘taxable Canadian property’’ of a taxpayer at any time in a taxation year means a property of the taxpayer that is (a) real property situated in Canada, (b) property used or held by the taxpayer in, eligible capital property in respect of, or property described in an inventory of, a business carried on in Canada, other than (i) property used in carrying on an insurance business, and (ii) where the taxpayer is non-resident, ships and aircraft used principally in international traffic and personal property pertaining to their operation if the country in which the taxpayer is resident does not impose tax on gains of persons resident in Canada from dispositions of such property, (c) if the taxpayer is an insurer, its designated insurance property for the year, (d) a share of the capital stock of a corporation resident in Canada (other than a non-resident-owned investment corporation if, on the first day of the year, the corporation owns neither taxable Canadian property nor property referred to in any of paragraphs (m) to (o), or a mutual fund corporation) that is not listed on a prescribed stock exchange, (e) a share of the capital stock of a non-resident corporation that is not listed on a prescribed stock exchange if, at any particular time during the 60-month period that ends at that time,
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Income Ta (i) the fair market value of all of the properties of the corporation each of which was (A) a taxable Canadian property, (B) a Canadian resource property, (C) a timber resource property, (D) an income interest in a trust resident in Canada, or (E) an interest in or option in respect of a property described in any of clauses (B) to (D), whether or not the property exists, was greater than 50% of the fair market value of all of its properties, and (ii) more than 50% of the fair market value of the share was derived directly or indirectly from one or any combination of (A) real property situated in Canada, (B) Canadian resource properties, and (C) timber resource properties, (f) a share that is listed on a prescribed stock exchange and that would be described in paragraph (d) or (e) if those paragraphs were read without reference to the words ‘‘that is not listed on a prescribed stock exchange’’, or a share of the capital stock of a mutual fund corporation, if at any time during the 60-month period that ends at that time the taxpayer, persons with whom the taxpayer did not deal at arm’s length, or the taxpayer together with all such persons owned 25% or more of the issued shares of any class of the capital stock of the corporation that issued the share, (g) an interest in a partnership if, at any particular time during the 60-month period that ends at that time, the fair market value of all of the properties of the partnership each of which was (i) a taxable Canadian property, (ii) a Canadian resource property, (iii) a timber resource property,
Impôt sur le re (iv) an income interest in a trust resident in Canada, or (v) an interest in or option in respect of a property described in any of subparagraphs (ii) to (iv), whether or not that property exists, was greater than 50% of the fair market value of all of its properties, (h) a capital interest in a trust (other than a unit trust) resident in Canada, (i) a unit of a unit trust (other than a mutual fund trust) resident in Canada, (j) a unit of a mutual fund trust if, at any time during the 60-month period that ends at that time, not less than 25% of the issued units of the trust belonged to the taxpayer, to persons with whom the taxpayer did not deal at arm’s length, or to the taxpayer and persons with whom the taxpayer did not deal at arm’s length, (k) an interest in a non-resident trust if, at any particular time during the 60-month period that ends at that time, (i) the fair market value of all of the properties of the trust each of which was (A) a taxable Canadian property, (B) a Canadian resource property, (C) a timber resource property, (D) an income interest in a trust resident in Canada, or (E) an interest in or option in respect of a property described in any of clauses (B) to (D), whether or not that property exists was greater than 50% of the fair market value of all of its properties, and (ii) more than 50% of the fair market value of the interest was derived directly or indirectly from one or any combination of (A) real property situated in Canada, (B) Canadian resource properties, and (C) timber resource properties, or
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Income Ta (l) an interest in or option in respect of a property described in any of paragraphs (a) to (k) , whether or not that property exists,
and, for the purposes of section 2, subsection 107(2.001) and sections 128.1 and 150, and for the purpose of applying paragraphs 85(1)(i) and 97(2)(c) to a disposition by a non-resident person, includes (m) a Canadian resource property, (n) a timber resource property, (o) an income interest in a trust resident in Canada, (p) a right to a share of the income or loss under an agreement referred to in paragraph 96(1.1)(a), and (q) a life insurance policy in Canada;
(3) The portion of the definition ‘‘grandfathered share’’ in subsection 248(1) of the Act after paragraph (d) is replaced by the following: except that a share that is deemed under the definition ‘‘short-term preferred share’’, ‘‘taxable preferred share’’ or ‘‘term preferred share’’ in this subsection or under subsection 112(2.22) to have been issued at any time is deemed after that time not to be a grandfathered share for the purposes of that provision; (4) The portion of paragraph (b) of the definition ‘‘personal trust’’ in subsection 248(1) of the Act after subparagraph (ii) is replaced by the following: but, after 1999, does not include a unit trust;
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(5) Subsection 248(1) of the Act is amended by adding the following in alphabetical order: ‘‘alter ego trust’’ « fiducie en faveur de soi-même »
‘‘alter ego trust’’ means a trust to which paragraph 104(4)(a) would apply if that paragraph were read without reference to subparagraph 104(4)(a)(iii) and clauses 104(4)(a)(iv)(B) and (C);
‘‘authorized foreign bank’’ « banque étrangère autorisée »
‘‘authorized foreign bank’’ has the meaning assigned by section 2 of the Bank Act;
‘‘bank’’ « banque »
‘‘bank’’ means a bank within the meaning assigned by section 2 of the Bank Act or an authorized foreign bank;
‘‘Canadian banking business’’ « entreprise bancaire canadienne »
‘‘Canadian banking business’’ means the business carried on by an authorized foreign bank through a permanent establishment (as defined by regulation) in Canada, other than business conducted through a representative office registered or required to be registered under section 509 of the Bank Act;
‘‘disposition’’ « disposition »
‘‘disposition’’ of any property, except as expressly otherwise provided, includes (a) any transaction or event entitling a taxpayer to proceeds of disposition of the property, (b) any transaction or event by which, (i) where the property is a share, bond, debenture, note, certificate, mortgage, agreement of sale or similar property, or an interest in it, the property is redeemed in whole or in part or is cancelled, (ii) where the property is a debt or any other right to receive an amount, the debt or other right is settled or cancelled, (iii) where the property is a share, the share is converted because of an amalgamation or merger,
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Income Ta (iv) where the property is an option to acquire or dispose of property, the option expires, and (v) a trust, that can reasonably be considered to act as agent for all the beneficiaries under the trust with respect to all dealings with all of the trust’s property (unless the trust is described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1)), ceases to act as agent for a beneficiary under the trust with respect to any dealing with any of the trust’s property, (c) any transfer of the property to a trust or, where the property is property of a trust, any transfer of the property to any beneficiary under the trust, except as provided by paragraph (f), (g) or (k), and (d) where the property is, or is part of, a taxpayer’s capital interest in a trust, except as provided by paragraph (h) or (i), a payment made after 1999 to the taxpayer from the trust that can reasonably be considered to have been made because of the taxpayer’s capital interest in the trust,
but does not include (e) any transfer of the property as a consequence of which there is no change in the beneficial ownership of the property, except where the transfer is (i) from a person or a partnership to a trust for the benefit of the person or the partnership, (ii) from a trust to a beneficiary under the trust, or (iii) from one trust maintained for the benefit of one or more beneficiaries under the trust to another trust maintained for the benefit of the same beneficiaries, (f) any transfer of the property as a consequence of which there is no change in the beneficial ownership of the property, where
Impôt sur le re (i) the transferor and the transferee are trusts, (ii) the transfer is not by a trust resident in Canada to a non-resident trust, (iii) the transferee does not receive the property in satisfaction of the transferee’s right as a beneficiary under the transferor trust, (iv) the transferee held no property immediately before the transfer (other than property the cost of which is not included, for the purposes of this Act, in computing a balance of undeducted outlays, expenses or other amounts in respect of the transferee), (v) the transferee does not file a written election with the Minister on or before the filing-due date for its taxation year in which the transfer is made (or on such later date as is acceptable to the Minister) that this paragraph not apply, (vi) if the transferor is an amateur athlete trust, a cemetery care trust, an employee trust, an inter vivos trust deemed by subsection 143(1) to exist in respect of a congregation that is a constituent part of a religious organization, a related segregated fund trust (in this paragraph having the meaning assigned by section 138.1), a trust described in paragraph 149(1)(o.4) or a trust governed by an eligible funeral arrangement, an employees profit sharing plan, a registered education savings plan or a registered supplementary unemployment benefit plan, the transferee is the same type of trust, and (vii) the transfer results, or is part of a series of transactions or events that results, in the transferor ceasing to exist and, immediately before the time of the transfer or the beginning of that series, as the case may be, the transferee never held any property or held only property having a nominal value, (g) any transfer of the property where
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Income Ta (i) the transferor is a trust governed by a registered retirement savings plan or a trust governed by a registered retirement income fund, (ii) the transferee is a trust governed by a registered retirement savings plan or a trust governed by a registered retirement income fund, (iii) the annuitant under the plan or fund that governs the transferor is also the annuitant under the plan or fund that governs the transferee, (iv) the transferee held no property immediately before the transfer (other than property the cost of which is not included, for the purposes of this Act, in computing a balance of undeducted outlays, expenses or other amounts in respect of the transferee), (v) the transferee does not file a written election with the Minister on or before the filing-due date for its taxation year in which the transfer is made (or on such later day as is acceptable to the Minister) that this paragraph not apply, and (vi) the transfer results, or is part of a series of transactions or events that results, in the transferor ceasing to exist and, immediately before the time of the transfer or the beginning of that series, as the case may be, the transferee never held any property or held only property having a nominal value, (h) where the property is part of a capital interest of a taxpayer in a trust (other than a personal trust or a trust prescribed for the purpose of subsection 107(2)) that is described by reference to units issued by the trust, a payment after 1999 from the trust in respect of the capital interest, where the number of units in the trust that are owned by the taxpayer is not reduced because of the payment, (i) where the property is a taxpayer’s capital interest in a trust, a payment to the taxpayer after 1999 in respect of the capital interest to the extent that the payment
Impôt sur le re (i) is out of the income of the trust (determined without reference to subsection 104(6)) for a taxation year or out of the capital gains of the trust for the year, if the payment was made in the year or the right to the payment was acquired by the taxpayer in the year, or (ii) is in respect of an amount designated in respect of the taxpayer by the trust under subsection 104(20), (j) any transfer of the property for the purpose only of securing a debt or a loan, or any transfer by a creditor for the purpose only of returning property that had been used as security for a debt or a loan, (k) any transfer of the property to a trust as a consequence of which there is no change in the beneficial ownership of the property, where the main purpose of the transfer is (i) to effect payment under a debt or loan, (ii) to provide assurance that an absolute or contingent obligation of the transferor will be satisfied, or (iii) to facilitate either the provision of compensation or the enforcement of a penalty, in the event that an absolute or contingent obligation of the transferor is not satisfied, (l) any issue of a bond, debenture, note, certificate, mortgage or hypothecary claim, and (m) any issue by a corporation of a share of its capital stock, or any other transaction that, but for this paragraph, would be a disposition by a corporation of a share of its capital stock;
‘‘foreign currency’’ « monnaie étrangère »
‘‘foreign currency’’ means currency of a country other than Canada;
‘‘foreign resource expense’’ « frais relatifs à des ressources à l’étranger »
‘‘foreign resource expense’’ has the meaning assigned by subsection 66.21(1);
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‘‘foreign resource pool expenses’’ « frais globaux relatifs à des ressources à l’étranger »
‘‘foreign resource pool expenses’’ of a taxpayer means the taxpayer’s foreign resource expenses in respect of all countries and the taxpayer’s foreign exploration and development expenses;
‘‘joint spousal or common-law partner trust’’ « fiducie mixte au profit de l’époux ou du conjoint de fait »
‘‘joint spousal or common-law partner trust’’ means a trust to which paragraph 104(4)(a) would apply if that paragraph were read without reference to subparagraph 104(4)(a)(iii) and clause 104(4)(a)(iv)(A);
‘‘OSFI risk-weighting guidelines’’ « lignes directrices du BSIF sur la pondération des risques »
‘‘OSFI risk-weighting guidelines’’ means the guidelines, issued by the Superintendent of Financial Institutions under the authority of section 600 of the Bank Act, requiring an authorized foreign bank to provide to the Superintendent on a periodic basis a return of the bank’s risk-weighted on-balance sheet assets and off-balance sheet exposures, that apply as of August 8, 2000;
‘‘post-1971 spousal or common-law partner trust’’ « fiducie au profit de l’époux ou du conjoint de fait postérieure à 1971 »
‘‘post-1971 spousal or common-law partner trust’’ means a trust that would be described in paragraph 104(4)(a) if that paragraph were read without reference to subparagraph 104(4)(a)(iv);
‘‘qualified donee’’ « donataire reconnu »
‘‘qualified donee’’ has the meaning assigned by subsection 149.1(1);
Impôt sur le re (6) Section 248 of the Act is amended by adding the following after subsection (25):
Trust-to-trust transfers
(25.1) Where at any time a particular trust transfers property to another trust (other than a trust governed by a registered retirement savings plan or by a registered retirement income fund) in circumstances to which paragraph (f) of the definition ‘‘disposition’’ in subsection (1) applies, without affecting the personal liabilities under this Act of the trustees of either trust or the application of subsection 104(5.8) and paragraph 122(2)(f), the other trust is deemed to be after that time the same trust as, and a continuation of, the particular trust.
Trusts to ensure obligations fulfilled
(25.2) Except for the purpose of this subsection, where at any time property is transferred to a trust in circumstances to which paragraph (k) of the definition ‘‘disposition’’ in subsection (1) applies, the trust is deemed to deal with the property as agent for the transferor throughout the period that begins at the time of the transfer and ends at the time of the first change after that time in the beneficial ownership of the property.
Cost of trust interest
(25.3) The cost to a taxpayer of a particular unit of a trust is deemed to be equal to the amount described in paragraph (a) where (a) the trust issues the particular unit to the taxpayer directly in satisfaction of a right to enforce payment of an amount by the trust in respect of the taxpayer’s capital interest in the trust; (b) at the time that the particular unit is issued, the trust is neither a personal trust nor a trust prescribed for the purpose of subsection 107(2); and (c) either (i) the particular unit is capital property and subparagraph 53(2)(h)(i.1) applies in respect of the amount described in paragraph (a), or would apply if that subparagraph were read without reference to clauses 53(2)(h)(i.1) (A) and (B), or (ii) the particular unit is not capital property and subparagraph 53(2)(h)(i.1)
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Income Ta does not apply in respect of the amount described in paragraph (a) but would so apply if that subparagraph were read without reference to clauses 53(2)(h)(i.1)(A) and (B).
Where acquisition by another of right to enforce
(25.4) If at a particular time a taxpayer’s capital interest in a trust includes a right to enforce payment of an amount by the trust, the amount shall be added at the particular time to the cost otherwise determined to the taxpayer of the capital interest where (a) immediately after the particular time there is a disposition by the taxpayer of the capital interest; (b) as a consequence of the disposition, the right to enforce payment of the amount is acquired by another person or partnership; and (c) if the right to enforce payment of the amount had been satisfied by a payment to the taxpayer by the trust, there would have been no disposition of that right for the purposes of this Act because of the application of paragraph (i) of the definition ‘‘disposition’’ in subsection (1). (7) Section 248 of the Act is amended by adding the following after subsection (28):
Prescribed stock exchange rule
(29) A part, division or subdivision of a stock exchange that is prescribed for the purpose of any provision of this Act is deemed for that purpose to be a prescribed stock exchange. (8) The definition ‘‘foreign resource property’’ in subsection 248(1) of the Act, as enacted by subsection (1), and the definitions ‘‘foreign resource expense’’ and ‘‘foreign resource pool expense’’ in subsection 248(1) of the Act, as enacted by subsection (5), apply after 2000.
(9) The definition ‘‘net capital loss’’ in subsection 248(1) of the Act, as enacted by subsection (1), applies to taxation years that end after February 27, 2000.
Impôt sur le re (10) Subsection (2) applies after October 1, 1996 except that, in its application before December 24, 1998, the portion of paragraph (b) of the definition ‘‘taxable Canadian property’’ in subsection 248(1) of the Act before subparagraph (i), as enacted by subsection (2), shall be read as follows: (b) capital property used by the taxpayer in carrying on a business in Canada, other than (11) Subsection (3) applies in respect of dividends received after 1998. (12) Subsection (4) applies after December 23, 1998. (13) The definitions ‘‘alter ego trust’’ and ‘‘joint spousal or common-law partner trust’’ in subsection 248(1) of the Act, as enacted by subsection (5), apply to trusts created after 1999. (14) The definitions ‘‘authorized foreign bank’’, ‘‘bank’’, ‘‘Canadian banking business’’, ‘‘foreign currency’’ and ‘‘OSFI riskweighting guidelines’’ in subsection 248(1) of the Act, as enacted by subsection (5), apply after June 27, 1999.
(15) The definition ‘‘disposition’’ in subsection 248(1) of the Act, as enacted by subsection (5), applies to transactions and events that occur after December 23, 1998, except that paragraphs (f) and (g) of that definition, as enacted by subsection (5), shall not apply for the purposes of the Act (other than section 107.4 of the Act, as enacted by subsection 82(1)) to a transfer of property, that occurred before 2000, by a trust governed by a registered retirement savings plan or by a registered retirement income fund to a trust governed by a registered retirement income fund (or to a transfer by a trust governed by a registered retirement income fund to a trust governed by a registered retirement savings plan) unless the transferee trust files a written election with the Minister of National Revenue on or before the filing-due date for
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its taxation year in which the transfer is made (or on such later day as is acceptable to the Minister) that paragraph (f) or (g), as the case may be, of that definition apply.
(16) The definition ‘‘post-1971 spousal or common-law partner trust’’ in subsection 248(1) of the Act, as enacted by subsection (5), applies to trusts created after 1971. (17) The definition ‘‘qualified donee’’ in subsection 248(1) of the Act, as enacted by subsection (5), applies after 1998. (18) Subsections 248(25.1), (25.2) and (25.4) of the Act, as enacted by subsection (6), apply to transfers that occur after December 23, 1998. (19) Subsection 248(25.3) of the Act, as enacted by subsection (6), applies to the 1999 and subsequent taxation years. (20) Subsection (7) applies after October 1999. 189. (1) The portion of paragraph 249.1(1)(b) of the Act after subparagraph (iii) is replaced by the following: after the end of the calendar year in which the period began unless, in the case of a business, the business is not carried on in Canada, is a prescribed business or is carried on by a prescribed person or partnership,
(2) Subsection (1) applies to fiscal periods that begin after 1994. 190. (1) Subsection 250(5) of the Act is replaced by the following: Deemed non-resident
(5) Notwithstanding any other provision of this Act (other than paragraph 126(1.1)(a)), a person is deemed not to be resident in Canada at a time if, at that time, the person would, but for this subsection and any tax treaty, be resident in Canada for the purposes of this Act but is, under a tax treaty with another country, resident in the other country and not resident in Canada.
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(2) Section 250 of the Act is amended by adding the following after subsection (6): Residence of inter vivos trusts
(6.1) For the purposes of provisions of this Act that apply to a trust for a taxation year only where the trust has been resident in Canada throughout the year, where a particular trust ceases at any time to exist and the particular trust was resident in Canada immediately before that time, the particular trust is deemed to be resident in Canada throughout the period that begins at that time and ends at the end of the year. (3) Subsection (1) applies after June 27, 1999, except that if on February 24, 1998 an individual who would, but for a tax treaty (within the meaning assigned by subsection 248(1) of the Act), be resident in Canada for the purposes of the Act is, under the tax treaty, resident in another country, subsection (1) does not apply to the individual until the first time after June 27, 1999 at which the individual becomes, under a tax treaty, resident in a country other than Canada. (4) Subsection (2) applies to the 1990 and subsequent taxation years. 191. (1) The Act is amended by adding the following after section 250:
Non-resident person’s taxation year and income
250.1 For greater certainty, unless the context requires otherwise (a) a taxation year of a non-resident person shall be determined, except as otherwise permitted by the Minister, in the same manner as the taxation year of a person resident in Canada; and (b) a person for whom income for a taxation year is determined in accordance with this Act includes a non-resident person. (2) Subsection (1) applies after December 17, 1999.
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192. (1) Subsection 251(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (a) and by replacing paragraph (b) with the following: (b) a taxpayer and a personal trust (other than a trust described in any of paragraphs (a) to (e.1) of the definition ‘‘trust’’ in subsection 108(1)) are deemed not to deal with each other at arm’s length if the taxpayer, or any person not dealing at arm’s length with the taxpayer, would be beneficially interested in the trust if subsection 248(25) were read without reference to subclauses 248(25)(b)(iii)(A)(II) to (IV); and (c) where paragraph (b) does not apply, it is a question of fact whether persons not related to each other are at a particular time dealing with each other at arm’s length. (2) Subsection (1) applies after December 23, 1998 except that paragraph 251(1)(b) of the Act, as enacted by subsection (1), shall, for the purpose of applying the definition ‘‘taxable Canadian property’’ in subsection 248(1) of the Act, not apply in respect of property acquired before December 24, 1998. 193. (1) The Act is amended by adding the following after section 253: Investments in limited partnerships
253.1 For the purposes of subparagraph 108(2)(b)(ii), paragraphs 130.1(6)(b), 131(8)(b), 132(6)(b) and 149(1)(o.2), the definition ‘‘private holding corporation’’ in subsection 191(1) and regulations made for the purposes of paragraphs 149(1)(o.3) and (o.4), where a trust or corporation holds an interest as a member of a partnership and, by operation of any law governing the arrangement in respect of the partnership, the liability of the member as a member of the partnership is limited, the member shall not, solely because of its acquisition and holding of that interest, be considered to carry on any business or other activity of the partnership.
Impôt sur le re (2) Subsection (1) applies after 1992, except that for taxation years that end after December 16, 1999 and before 2003, section 253.1 of the Act, as enacted by subsection (1), shall be read as follows: 253.1 For the purposes of subparagraph 108(2)(b)(ii), paragraphs 130.1(6)(b), 131(8)(b), 132(6)(b) and 149(1)(o.2), the definition ‘‘private holding corporation’’ in subsection 191(1) and regulations made for the purposes of paragraphs 149(1)(o.3) and (o.4), where a trust or corporation is a member of a partnership and, by operation of any law governing the arrangement in respect of the partnership, the liability of the member as a member of the partnership is limited, the member is deemed (a) to undertake an investing of its funds because of its acquisition and holding of its interest as a member of the partnership; and (b) not to carry on any business or other activity of the partnership. 194. (1) Section 256 of the Act is amended by adding the following after subsection (6):
Simultaneous control
(6.1) For the purposes of this Act and for greater certainty, (a) where a corporation (in this paragraph referred to as the ‘‘subsidiary’’) would be controlled by another corporation (in this paragraph referred to as the ‘‘parent’’) if the parent were not controlled by any person or group of persons, the subsidiary is controlled by (i) the parent, and (ii) any person or group of persons by whom the parent is controlled; and (b) where a corporation (in this paragraph referred to as the ‘‘subject corporation’’) would be controlled by a group of persons (in this paragraph referred to as the ‘‘firsttier group’’) if no corporation that is a member of the first-tier group were controlled by any person or group of persons, the subject corporation is controlled by
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Income Ta (i) the first-tier group, and (ii) any group of one or more persons comprised of, in respect of every member of the first-tier group, either the member, or a person or group of persons by whom the member is controlled.
Application to control in fact
(6.2) In its application to subsection (5.1), subsection (6.1) shall be read as if the references in subsection (6.1) to ‘‘controlled’’ were references to ‘‘controlled, directly or indirectly in any manner whatever,’’.
(2) Subsection (1) applies to taxation years that begin after November 1999. 195. (1) Subparagraph 258(3)(b)(ii) of the Act is replaced by the following: (ii) was issued before 8:00 p.m. Eastern Daylight Saving Time, June 18, 1987 and is not deemed by subsection 112(2.22) to have been issued after that time
(2) Subsection (1) applies in respect of dividends received after 1998. PART 2 HARMONIZATION WITH THE CIVIL CODE OF QUEBEC R.S., c. 1 (5th Supp.)
Income Tax Act 196. (1) Subsection 13(7.3) of the Income Tax Act is replaced by the following:
2001 Control of corporations by one trustee
Impôt sur le re (7.3) For the purposes of paragraph (7)(e), where at a particular time one corporation would, but for this subsection, be related to another corporation by reason of both corporations being controlled by the same executor, liquidator of a succession or trustee and it is established that (a) the executor, liquidator or trustee did not acquire control of the corporations as a result of one or more estates or trusts created by the same individual or by two or more individuals not dealing with each other at arm’s length, and (b) the estate or trust under which the executor, liquidator or trustee acquired control of each of the corporations arose only on the death of the individual creating the estate or trust, the two corporations are deemed not to be related to each other at the particular time. (2) Paragraph (g) of the definition ‘‘proceeds of disposition’’ in subsection 13(21) of the English version of the Act is replaced by the following: (g) an amount by which the liability of a taxpayer to a mortgagee or hypothecary creditor is reduced as a result of the sale of mortgaged or hypothecated property under a provision of the mortgage or hypothec, plus any amount received by the taxpayer out of the proceeds of the sale, and (3) Paragraph 13(21.2)(c) of the English version of the Act is replaced by the following: (c) on the 30th day after the particular time, a person or partnership (in this subsection referred to as the ‘‘subsequent owner’’) who is the transferor or a person affiliated with the transferor owns or has a right to acquire the transferred property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation),
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(4) Clause 13(21.2)(e)(iii)(A) of the English version of the Act is replaced by the following: (A) at which a 30-day period begins throughout which neither the transferor nor a person affiliated with the transferor owns or has a right to acquire the transferred property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation), 197. (1) Subparagraph (f)(iii) of the definition ‘‘eligible capital expenditure’’ in subsection 14(5) of the Act is replaced by the following: (iii) a share, bond, debenture, mortgage, hypothecary claim, note, bill or other similar property, or (2) Paragraph 14(13)(a) of the English version of the Act is replaced by the following: (a) a right to acquire a property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation) is deemed to be a property that is identical to the property; and 198. The portion of the definition ‘‘qualifying debt obligation’’ in subsection 15.1(3) of the Act before paragraph (a) is replaced by the following: ‘‘qualifying debt obligation’’ « créance admissible »
‘‘qualifying debt obligation’’ of a corporation at a particular time means an obligation that is a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation issued after February 25, 1992 and before 1995, 199. The portion of the definition ‘‘qualifying debt obligation’’ in subsection 15.2(3) of the Act before paragraph (a) is replaced by the following:
‘‘qualifying debt obligation’’ « créance admissible »
‘‘qualifying debt obligation’’ of an issuer at a particular time means an obligation that is a bill, note, mortgage, hypothecary claim or similar obligation issued after February 25, 1992 and before 1995,
Impôt sur le re 200. The portion of subsection 16(3) of the Act before paragraph (a) is replaced by the following:
Obligation issued at discount
(3) Where, in the case of a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation (other than an obligation that is a prescribed debt obligation for the purpose of subsection 12(9)) issued after June 18, 1971 by a person exempt, because of section 149, from Part I tax on part or on all of the person’s income, a non-resident person not carrying on business in Canada or a government, municipality or municipal or other public body performing a function of government,
201. (1) Paragraph 18(13)(e) of the Act is replaced by the following: (e) the particular property is a share, or a loan, bond, debenture, mortgage, hypothecary claim, note, agreement for sale or any other indebtedness; (2) Subsection 18(16) of the English version of the Act is replaced by the following: Deemed identical property
(16) For the purposes of subsections (13), (14) and (15), a right to acquire a property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation) is deemed to be a property that is identical to the property. 202. Subsection 18.1(12) of the English version of the Act is replaced by the following:
Identical property
(12) For the purposes of subsections (8) and (10), a right to acquire a particular right to receive production (other than a right, as security only, derived from a mortgage, hypothec, agreement of sale or similar obligation)
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is deemed to be a right to receive production that is identical to the particular right. 203. (1) The portion of paragraph 20(1)(f) of the Act before subparagraph (i) is replaced by the following: (f) an amount paid in the year in satisfaction of the principal amount of any bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation issued by the taxpayer after June 18, 1971 on which interest was stipulated to be payable, to the extent that the amount so paid does not exceed, (2) The portion of subsection 20(5) of the Act before paragraph (b) is replaced by the following: Sale of agreement for sale, mortgage or hypothecary claim included in proceeds of disposition
(5) Where depreciable property, other than a timber resource property, of a taxpayer has, in a taxation year, been disposed of to a person with whom the taxpayer was dealing at arm’s length, and the proceeds of disposition include an agreement for the sale of, or a mortgage or hypothecary claim on, land that the taxpayer has, in a subsequent taxation year, sold to a person with whom the taxpayer was dealing at arm’s length, there may be deducted in computing the income of the taxpayer for the subsequent year an amount equal to the lesser of (a) the amount, if any, by which the principal amount of the agreement for sale, mortgage or hypothecary claim outstanding at the time of the sale exceeds the consideration paid by the purchaser to the taxpayer for the agreement for sale, mortgage or hypothecary claim, and (3) Subsection 20(5.1) of the Act is replaced by the following:
Sale of agreement for sale, mortgage or hypothecary claim included in proceeds of disposition
(5.1) Where a timber resource property of a taxpayer has, in a taxation year, been disposed of to a person with whom the taxpayer was dealing at arm’s length, and the proceeds of disposition include an agreement for sale of, or a mortgage or hypothecary claim on, land that the taxpayer has, in a subsequent taxation year, sold to a person with whom the taxpayer was dealing at arm’s length, there may be
Impôt sur le re deducted in computing the income of the taxpayer for the subsequent year the amount, if any, by which the principal amount of the agreement for sale, mortgage or hypothecary claim outstanding at the time of the sale exceeds the consideration paid by the purchaser to the taxpayer for the agreement for sale, mortgage or hypothecary claim. 204. Subsection 39(6) of the Act is replaced by the following:
Definition of ‘‘Canadian security’’
(6) For the purposes of this section, ‘‘Canadian security’’ means a security (other than a prescribed security) that is a share of the capital stock of a corporation resident in Canada, a unit of a mutual fund trust or a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation issued by a person resident in Canada. 205. Paragraph 40(3.5)(a) of the English version of the Act is replaced by the following: (a) a right to acquire a property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation) is deemed to be a property that is identical to the property; 206. Paragraph 53(1)(g) of the Act is replaced by the following: (g) where the property is a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation, the amount, if any, by which the principal amount of the obligation exceeds the amount for which the obligation was issued, if the excess was required by subsection 16(2) or (3) to be included in computing the income of the taxpayer for a taxation year commencing before that time; 207. (1) Paragraph (g) of the definition ‘‘proceeds of disposition’’ in section 54 of the English version of the Act is replaced by the following: (g) an amount by which the liability of a taxpayer to a mortgagee or hypothecary creditor is reduced as a result of the sale of mortgaged or hypothecated property
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(2) The portion of the definition ‘‘superficial loss’’ in section 54 of the English version of the Act after paragraph (h) is replaced by the following: and, for the purpose of this definition, a right to acquire a property (other than a right, as security only, derived from a mortgage, hypothec, agreement for sale or similar obligation) is deemed to be a property that is identical to the property. 208. (1) Paragraph 70(8)(a) of the English version of the Act is replaced by the following: (a) the ‘‘fair market value’’ at any time of any property subject to a mortgage or hypothec is the amount, if any, by which the fair market value at that time of the property otherwise determined exceeds the amount outstanding at that time of the debt secured by the mortgage or hypothec, as the case may be; (2) Subparagraph 70(8)(b)(ii) of the English version of the Act is replaced by the following: (ii) any debt secured by a mortgage or hypothec on property owned by the taxpayer immediately before the taxpayer’s death; and 209. The definitions ‘‘creditor’’ and ‘‘debt’’ in subsection 79(1) of the Act are replaced by the following: ‘‘creditor’’ « créancier »
‘‘creditor’’ of a particular person includes a person to whom the particular person is obligated to pay an amount under a mortgage, hypothecary claim or similar obligation and, where property was sold to the particular person under a conditional sales agreement, the seller of the property (or any assignee with respect to the agreement) is deemed to be a creditor of the particular person in respect of that property;
‘‘debt’’ « dette »
‘‘debt’’ includes an obligation to pay an amount under a mortgage, hypothecary
Impôt sur le re claim or similar obligation or under a conditional sales agreement; 210. The portion of subsection 80.1(1) of the Act before paragraph (a) is replaced by the following:
Expropriation assets acquired as compensation for, or as consideration for sale of, foreign property taken by or sold to foreign issuer
80.1 (1) Where in a taxation year ending coincidentally with or after December 31, 1971 a taxpayer resident in Canada has acquired any bonds, debentures, mortgages, hypothecary claims, notes or similar obligations (in this section referred to as ‘‘expropriation assets’’) issued by the government of a country other than Canada or issued by a person resident in a country other than Canada and guaranteed by the government of that country, 211. The portion of subsection 87(6) of the Act before paragraph (a) is replaced by the following:
Obligations of predecessor corporation
(6) Notwithstanding subsection (7), where there has been an amalgamation of two or more corporations after May 6, 1974, each taxpayer (except any predecessor corporation) who, immediately before the amalgamation, owned a capital property that was a bond, debenture, mortgage, hypothecary claim, note or other similar obligation of a predecessor corporation (in this subsection referred to as the ‘‘old property’’) and who received no consideration for the disposition of the old property on the amalgamation other than a bond, debenture, mortgage, hypothecary claim, note or other similar obligation respectively, of the new corporation (in this subsection referred to as the ‘‘new property’’) is, if the amount payable to the holder of the new property on its maturity is the same as the amount that would have been payable to the holder of the old property on its maturity, deemed 212. Paragraph 116(6)(d) of the Act is replaced by the following: (d) a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation; or
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213. Subparagraph (d)(i) of the definition ‘‘qualified property’’ in subsection 127(9) of the Act is replaced by the following: (i) the property is leased in the ordinary course of carrying on a business in Canada by a corporation whose principal business is leasing property, lending money, purchasing conditional sales contracts, accounts receivable, bills of sale, chattel mortgages or hypothecary claims on movables, bills of exchange or other obligations representing all or part of the sale price of merchandise or services, or any combination thereof,
214. (1) Subparagraph 130.1(6)(f)(i) of the English version of the Act is replaced by the following: (i) debts owing to the corporation that were secured, whether by mortgages, hypothecs or in any other manner, on houses (as defined in section 2 of the National Housing Act) or on property included within a housing project (as defined in that section), and (2) Paragraph 130.1(6)(g) of the English version of the Act is replaced by the following: (g) the cost amount to the corporation of all real property of the corporation, including leasehold interests in such property, (except real property acquired by the corporation by foreclosure or otherwise after default made on a mortgage, hypothec or agreement of sale of real property) did not exceed 25% of the cost amount to it of all its property; 215. (1) Subparagraph (b)(i) of the definition ‘‘non-resident-owned investment corporation’’ in subsection 133(8) of the Act is replaced by the following: (i) ownership of, or trading or dealing in, bonds, shares, debentures, mortgages, hypothecary claims, bills, notes or other similar property or any interest therein,
Impôt sur le re (2) Subparagraph (d)(ii) of the definition ‘‘non-resident-owned investment corporation’’ in subsection 133(8) of the Act is replaced by the following: (ii) trading or dealing in bonds, shares, debentures, mortgages, hypothecary claims, bills, notes or other similar property or any interest therein, 216. (1) Subparagraphs 137.1(1)(b)(i) and (ii) of the Act are replaced by the following: (i) the total of profits or gains made in the year by the corporation in respect of bonds, debentures, mortgages, hypothecary claims, notes or other similar obligations owned by it that were disposed of by it in the year, and (ii) the total of each such portion of each amount, if any, by which the principal amount, at the time it was acquired by the corporation, of a bond, debenture, mortgage, hypothecary claim, note or other similar obligation owned by the corporation at the end of the year exceeds the cost to the corporation of acquiring it as was included by the corporation in computing its profit for the year. (2) Paragraphs 137.1(3)(a) and (b) of the Act are replaced by the following: (a) the total of losses sustained in the year by the corporation in respect of bonds, debentures, mortgages, hypothecary claims, notes or other similar obligations owned by it and issued by a person other than a member institution that were disposed of by it in the year; (b) the total of each such portion of each amount, if any, by which the cost to the corporation of acquiring a bond, debenture, mortgage, hypothecary claim, note or other similar obligation owned by the corporation at the end of the year exceeds the principal amount of the bond, debenture, mortgage, hypothecary claim, note or other similar obligation, as the case may be, at the time it was so acquired as was deducted by the
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corporation in computing its profit for the year; (3) The portion of paragraph (a) of the definition ‘‘investment property’’ in subsection 137.1(5) of the Act before subparagraph (i) is replaced by the following: (a) bonds, debentures, mortgages, hypothecary claims, notes or other similar obligations 217. (1) The portion of paragraph 137.2(a) of the Act before subparagraph (i) is replaced by the following: (a) property of the corporation that is a bond, debenture, mortgage, hypothecary claim, note or other similar obligation owned by it at the commencement of the corporation’s 1975 taxation year shall be valued at its cost to the corporation less the total of all amounts that, before that time, the corporation was entitled to receive as, on account or in lieu of payment of, or in satisfaction of, the principal amount of the bond, debenture, mortgage, hypothecary claim, note or other similar obligation, (2) Paragraph 137.2(c) of the English version of the Act is replaced by the following: (c) property of the corporation (other than property in respect of which any amount for the year has been included under paragraph (a)) that was acquired, by foreclosure or otherwise, after default made under a mortgage or hypothec shall be valued at its cost amount to the corporation; and 218. The portion of subsection 138(11.93) of the Act before paragraph (a) is replaced by the following: Property acquired on default in payment
(11.93) Where, at any time in a taxation year of an insurer, the beneficial ownership of property is acquired or reacquired by the insurer in consequence of the failure to pay all or any part of an amount (in this subsection referred to as the ‘‘insurer’s claim’’) owing to the insurer at that time in respect of a bond, debenture, mortgage, hypothecary claim, agreement of sale or any other form of indebtedness owned by the insurer, the following rules apply to the insurer:
Impôt sur le re 219. Paragraph (a) of the definition ‘‘specified debt obligation’’ in subsection 142.2(1) of the Act is replaced by the following: (a) a loan, bond, debenture, mortgage, hypothecary claim, note, agreement of sale or any other similar indebtedness, or
220. Paragraph (d) of the definition ‘‘financial institution’’ in subsection 181(1) of the Act is replaced by the following: (d) authorized under the laws of Canada or a province to accept deposits from the public and carries on the business of lending money on the security of real estate or investing in mortgages or hypothecary claims on real estate, 221. (1) Paragraph 181.2(3)(d) of the Act is replaced by the following: (d) the amount of all indebtedness of the corporation at the end of the year represented by bonds, debentures, notes, mortgages, hypothecary claims, banker’s acceptances or similar obligations, (2) Paragraph 181.2(4)(c) of the Act is replaced by the following: (c) a bond, debenture, note, mortgage, hypothecary claim or similar obligation of another corporation (other than a financial institution), (3) Paragraph 181.2(4)(d.1) of the Act is replaced by the following: (d.1) a loan or advance to, or a bond, debenture, note, mortgage, hypothecary claim or similar obligation of, a partnership all of the members of which, throughout the year, were other corporations (other than financial institutions) that were not exempt from tax under this Part (otherwise than because of paragraph 181.1(3)(d)),
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(4) Paragraph 181.2(6)(b) of the Act is replaced by the following: (b) acquired any bond, debenture, note, mortgage, hypothecary claim or similar obligation of nor issued any bond, debenture, note, mortgage, hypothecary claim or similar obligation to
222. Paragraph (c) of the definition ‘‘financial institution’’ in subsection 190(1) of the Act is replaced by the following: (c) is authorized under the laws of Canada or a province to accept deposits from the public and carries on the business of lending money on the security of real estate or investing in mortgages or hypothecary claims on real estate; 223. Paragraph (b) of the definition ‘‘qualified investment’’ in section 204 of the Act is replaced by the following: (b) bonds, debentures, notes, mortgages, hypothecary claims or similar obligations described in clause 212(1)(b)(ii)(C), whether issued before, on or after April 15, 1966, 224. (1) Clause 204.4(2)(a)(ii)(A) of the Act is replaced by the following: (A) the fair market value at the time of acquisition of its (I) shares, marketable securities and cash, and (II) bonds, debentures, mortgages, hypothecary claims, notes and other similar obligations, and
Impôt sur le re (2) Subparagraph 204.4(2)(a)(iii) of the Act is replaced by the following: (iii) the fair market value at the time of acquisition of its shares, bonds, mortgages, hypothecary claims and other securities of any one corporation or debtor (other than bonds, mortgages, hypothecary claims and other securities of or guaranteed by Her Majesty in right of Canada or a province or Canadian municipality) is not more than 10% of the amount by which the fair market value at the time of acquisition of all its property exceeds the total of all amounts each of which is an amount owing by it on account of its acquisition of real property,
(3) Clause 204.4(2)(a)(viii)(A) of the Act is replaced by the following: (A) a mortgage or hypothecary claim (other than a mortgage or hypothecary claim insured under the National Housing Act or by a corporation that offers its services to the public in Canada as an insurer of mortgages and that is approved as a private insurer of mortgages by the Superintendent of Financial Institutions pursuant to the powers assigned to the Superintendent under subsection 6(1) of the Office of the Superintendent of Financial Institutions Act), or an interest therein, in respect of which the mortgagor or hypothecary debtor is the annuitant under a registered retirement savings plan or a registered retirement income fund, or a person with whom the annuitant is not dealing at arm’s length, if any of the funds of a trust governed by such a plan or fund have been used to acquire an interest in the applicant, or (4) Subsections (1) and (3) apply to property acquired after March 16, 2001.
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225. The portion of subsection 204.6(2) of the Act before paragraph (a) is replaced by the following: Tax payable
(2) Where at the end of any month a taxpayer that is a registered investment described in paragraph 204.4(2)(a) or (b) holds property that is a share, bond, mortgage, hypothecary claim or other security of a corporation or debtor (other than bonds, mortgages, hypothecary claims and other securities of or guaranteed by Her Majesty in right of Canada or a province or Canadian municipality), it shall, in respect of that month, pay a tax under this Part equal to 1% of the amount, if any, by which
226. (1) The portion of clause 212(1)(b)(ii)(C) of the Act before subclause (I) is replaced by the following: (C) bonds, debentures, notes, mortgages, hypothecary claims or similar obligations (2) Subparagraph 212(1)(b)(viii) of the Act is replaced by the following: (viii) interest payable on a mortgage, hypothecary claim or similar obligation secured by, or on an agreement for sale or similar obligation with respect to, real property situated outside Canada or an interest in any such real property except to the extent that the interest payable on the obligation is deductible in computing the income of the payer under Part I from a business carried on by the payer in Canada or from property other than real property situated outside Canada, (3) Paragraph 212(13)(f) of the Act is replaced by the following: (f) interest on any mortgage, hypothecary claim or other indebtedness entered into or issued or modified after March 31, 1977 and secured by real property situated in Canada or an interest therein to the extent that the amount so paid or credited is deductible in computing the non-resident person’s taxable income earned in Canada or the
Impôt sur le re amount on which the non-resident person is liable to pay tax under Part I, (4) Subsection 212(15) of the Act is replaced by the following:
Certain obligations
(15) For the purposes of subparagraph (1)(b)(ii), after November 18, 1974 interest on a bond, debenture, note, mortgage, hypothecary claim or similar obligation that is insured by the Canada Deposit Insurance Corporation is deemed not to be interest with respect to an obligation guaranteed by the Government of Canada. 227. (1) The portion of subsection 214(6) of the Act before paragraph (a) is replaced by the following:
Deemed interest
(6) Where, in respect of interest stipulated to be payable, on a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation that has been assigned or otherwise transferred by a non-resident person to a person resident in Canada, subsection 20(14) would, if Part I were applicable, require an amount to be included in computing the transferor’s income, that amount is, for the purposes of this Part, deemed to be a payment of interest on that obligation made by the transferee to the transferor at the time of the assignment or other transfer of the obligation, if (2) Paragraph 214(7)(a) of the Act is replaced by the following: (a) a non-resident person has at any time assigned or otherwise transferred to a person resident in Canada a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation issued by a person resident in Canada, (3) The portion of subsection 214(8) of the Act before paragraph (a) is replaced by the following:
Meaning of ‘‘excluded obligation’’
(8) For the purposes of subsection (7), ‘‘excluded obligation’’ means any bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation
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(4) Paragraph 214(15)(a) of the Act is replaced by the following: (a) where a non-resident person has entered into an agreement under the terms of which the non-resident person agrees to guarantee the repayment, in whole or in part, of the principal amount of a bond, debenture, bill, note, mortgage, hypothecary claim or similar obligation of a person resident in Canada, any amount paid or credited as consideration for the guarantee is deemed to be a payment of interest on that obligation; and (5) Subsection (4) is deemed to have come into force on March 1, 1994. 228. The definition ‘‘security interest’’ in subsection 224(1.3) of the English version of the Act is replaced by the following: ‘‘security interest’’ « garantie »
‘‘security interest’’ means any interest in property that secures payment or performance of an obligation and includes an interest created by or arising out of a debenture, mortgage, hypothec, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for; 229. Paragraph 227(5.1)(i) of the Act is replaced by the following: (i) an executor, a liquidator of a succession or an administrator; 230. (1) The definitions ‘‘legal representative’’, ‘‘lending asset’’ and ‘‘person’’ in subsection 248(1) of the Act are replaced by the following:
‘‘legal representative’’ « représentant légal »
‘‘legal representative’’ of a taxpayer means a trustee in bankruptcy, an assignee, a liquidator, a curator, a receiver of any kind, a trustee, an heir, an administrator, an executor, a liquidator of a succession, a committee, or any other like person, administering, winding up, controlling or otherwise dealing in a representative or fiduciary capacity with the property that belongs or belonged to, or that is or was held for the benefit of, the taxpayer or the taxpayer’s estate;
Impôt sur le re
‘‘lending asset’’ « titre de crédit »
‘‘lending asset’’ means a bond, debenture, mortgage, hypothecary claim, note, agreement of sale or any other indebtedness or a prescribed share, but does not include a prescribed property;
‘‘person’’ « personne »
‘‘person’’, or any word or expression descriptive of a person, includes any corporation, and any entity exempt, because of subsection 149(1), from tax under Part I on all or part of the entity’s taxable income and the heirs, executors, liquidators of a succession, administrators or other legal representatives of such a person, according to the law of that part of Canada to which the context extends;
(2) Subsection 248(4) of the Act is replaced by the following: Interest in real property
(4) In this Act, an interest in real property includes a leasehold interest in real property but does not include an interest as security only derived by virtue of a mortgage, hypothecary claim, agreement for sale or similar obligation. (3) The portion of subsection 248(20) of the Act before paragraph (a) is replaced by the following:
Partition of property
(20) Subject to subsections (21) to (23), for the purposes of this Act, where at any time a property owned by two or more persons is the subject of a partition, the following rules apply, notwithstanding any retroactive or declaratory effect of the partition: (4) The portion of subsection 248(21) of the Act before paragraph (a) is replaced by the following:
Subdivision of property
(21) Where a property that was owned by two or more persons is the subject of a partition among those persons and, as a consequence thereof, each such person has, in the property, a new interest the fair market value of which immediately after the partition, expressed as a percentage of the fair market value of all the new interests in the property immediately after the partition, is
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equal to the fair market value of that person’s undivided interest immediately before the partition, expressed as a percentage of the fair market value of all the undivided interests in the property immediately before the partition, (5) Paragraph 248(21)(c) of the Act is replaced by the following: (c) subdivisions of a building or of a parcel of land that are established in the course of, or in contemplation of, a partition and that are co-owned by the same persons who co-owned the building or the parcel of land, or by their assignee, shall be regarded as one property, and 231. Subsection 256(4) of the Act is replaced by the following: Saving provision
(4) Where one corporation would, but for this subsection, be associated with another corporation in a taxation year by reason of both of the corporations being controlled by the same executor, liquidator of a succession or trustee and it is established to the satisfaction of the Minister (a) that the executor, liquidator or trustee did not acquire control of the corporations as a result of one or more estates or trusts created by the same individual or two or more individuals not dealing with each other at arm’s length, and (b) that the estate or trust under which the executor, liquidator or trustee acquired control of each of the corporations arose only on the death of the individual creating the estate or trust, the two corporations are deemed, for the purposes of this Act, not to be associated with each other in the year.
2001 R.S., c. 2 (5th Supp.)
Impôt sur le re Income Tax Application Rules 232. (1) The definition ‘‘obligation’’ in subsection 26(12) of the Income Tax Application Rules is replaced by the following:
‘‘obligation’’ « obligation »
‘‘obligation’’ means a bond, debenture, bill, note, mortgage, hypothecary claim or agreement of sale; (2) The portion of subsection 26(23) of the Rules before paragraph (a) is replaced by the following:
Obligations received on amalgamations
(23) Where, after May 6, 1974, there has been an amalgamation (within the meaning assigned by section 87 of the amended Act) of two or more corporations (each of which is in this subsection referred to as a ‘‘predecessor corporation’’) to form one corporate entity (in this subsection referred to as the ‘‘new corporation’’) and a taxpayer has acquired a capital property that was a bond, debenture, note, mortgage, hypothecary claim or other similar obligation of the new corporation (in this subsection referred to as the ‘‘new obligation’’) as sole consideration for the disposition on the amalgamation of a bond, debenture, note, mortgage, hypothecary claim or other similar obligation respectively of a predecessor corporation (in this subsection referred to as the ‘‘old obligation’’) owned by the taxpayer on December 31, 1971 and thereafter without interruption until immediately before the amalgamation, notwithstanding any other provision of this Act or of the amended Act, for the purposes of subsection 88(2.1) of the amended Act and of determining the cost to the taxpayer and the adjusted cost base to the taxpayer of the new obligation,
R.S., c. E-15
Excise Tax Act 233. Paragraph (a) of the definition ‘‘manufacturer or producer’’ in subsection 2(1) of the Excise Tax Act is replaced by the following: (a) the assignee, trustee in bankruptcy, liquidator, executor, liquidator of a succession or curator of any manufacturer or producer and, generally, any person who continues the business of a manufacturer
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Income Ta or producer or disposes of his assets in any fiduciary capacity, including a bank exercising any powers conferred upon it by the Bank Act and a trustee for bondholders,
R.S., c. 7 (2nd Supp.), s. 38(1)
234. Subsection 81(1) of the Act is replaced by the following:
Certificate before distribution
81. (1) Every executor, liquidator of a succession, administrator, assignee, liquidator or other like person, other than a trustee in bankruptcy, shall, before distributing any assets under his control in that capacity, obtain a certificate from the Minister certifying that no tax, penalty, interest or other sum under this Act, other than Part I, chargeable against or payable by that person in that capacity or chargeable against or payable in respect of those assets, remains unpaid or that security for the payment thereof has, in accordance with section 80.1, been accepted by the Minister.
1999, c. 17, s. 151
235. Subsection 106.1(1) of the Act is replaced by the following:
Presumption
106.1 (1) Every document purporting to be an order, direction, notice, certificate, requirement, decision, determination, assessment, discharge of mortgage or acquittance of a hypothecary claim or other document and purporting to have been executed under, or in the course of the administration or enforcement of, this Act or the regulations over the name in writing of the Minister, the Deputy Minister of National Revenue, the Commissioner or an officer authorized by the Minister to exercise his powers or perform his duties or functions under this Act is deemed to be a document signed, made and issued by the Minister, Deputy Minister, Commissioner or officer, unless called into question by the Minister or by some person acting for the Minister or Her Majesty.
1997, c. 10, s. 1(12)
236. The definition ‘‘personal representative’’ in subsection 123(1) of the Act is replaced by the following:
‘‘personal representative’’ « représentant personnel »
‘‘personal representative’’, of a deceased individual or the estate of a deceased individu2001
Impôt sur le re al, means the executor of the individual’s will, the liquidator of the individual’s succession, the administrator of the estate or any person who is responsible under the appropriate law for the proper collection, administration, disposition and distribution of the assets of the estate;
1994, c. 9, s. 20(1)
237. Paragraph 278(3)(d) of the Act is replaced by the following: (d) a corporation authorized under the laws of Canada or a province to accept deposits from the public and that carries on the business of lending money on the security of real estate or investing in mortgages or hypothecary claims on real estate. PART 3
R.S., c. 1 (5th Supp.)
TECHNICAL AMENDMENTS TO THE INCOME TAX ACT 238. The portion of subsection 54.1(1) of the English version of the Income Tax Act before paragraph (a) is replaced by the following:
Exception to principal residence rules
54.1 (1) A taxation year in which a taxpayer does not ordinarily inhabit the taxpayer’s property as a consequence of the relocation of the taxpayer’s or the taxpayer’s spouse’s or common-law partner’s place of employment while the taxpayer, spouse or common-law partner, as the case may be, is employed by an employer who is not a person to whom the taxpayer or the spouse is related is deemed not to be a previous taxation year referred to in paragraph (d) of the definition ‘‘principal residence’’ in section 54 if 239. Paragraph 60.01(b) of the French version of the Act is replaced by the following: b) un montant visé à l’alinéa a) et qu’il est raisonnable de considérer comme provenant de cotisations que verse au mécanisme de retraite étranger une personne autre que le contribuable ou son époux ou conjoint de fait ou ex-époux ou ancien conjoint de fait. 240. Paragraph (a) of the description of A in subsection 60.1(2) of the French version of the Act is replaced by the following:
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241. The portion of the definition ‘‘pre-1972 spousal trust’’ in subsection 108(1) of the Act after paragraph (b) is replaced by the following: that, throughout the period beginning at the time it was created and ending at the earliest of January 1, 1993, the day on which the taxpayer’s spouse or common-law partner died and the particular time, was a trust under which the taxpayer’s spouse or common-law partner was entitled to receive all of the income of the trust that arose before the spouse’s or common-law partner’s death, unless a person other than the spouse or common-law partner received or otherwise obtained the use of any of the income or capital of the trust before the end of that period;
242. The portion of subparagraph (a)(i) of the definition ‘‘interest in a family farm partnership’’ in subsection 110.6(1) of the English version of the Act after clause (E) is replaced by the following: principally in the course of carrying on the business of farming in Canada in which the individual, a beneficiary referred to in clause (C) or a spouse, common-law partner, child or parent of the individual or of a beneficiary referred to in clause (C) was actively engaged on a regular and continuous basis, 243. The portion of subsection 118(5) of the English version of the Act before paragraph (a) is replaced by the following: Support
(5) No amount may be deducted under subsection (1) in computing an individual’s tax payable under this Part for a taxation year in respect of a person where the individual is required to pay a support amount (within the meaning assigned by subsection 56.1(4)) to
Impôt sur le re the individual’s spouse or common-law partner or former spouse or common-law partner in respect of the person and the individual 244. Paragraph 118.2(2)(q) of the English version of the Act is replaced by the following: (q) as a premium, contribution or other consideration under a private health services plan in respect of one or more of the individual, the individual’s spouse or common-law partner and any member of the individual’s household with whom the individual is connected by blood relationship, marriage, common-law partnership or adoption, except to the extent that the premium, contribution or consideration is deducted under subsection 20.01(1) in computing an individual’s income from a business for any taxation year. 245. Subparagraph 143(5)(b)(i) of the Act is replaced by the following: (i) the individual is one of two individuals who were married to each other, or in a common-law partnership, at the end of a preceding taxation year of the trust and at the end of the particular year, 246. (1) The definition ‘‘spousal plan’’ in subsection 146(1) of the English version of the Act is repealed. (2) Subsection 146(1) of the English version of the Act is amended by adding the following in alphabetical order:
‘‘spousal or common-law partner plan’’ « régime au profit de l’époux ou du conjoint de fait »
‘‘spousal or common-law partner plan’’, in relation to a taxpayer, means (a) a registered retirement savings plan (i) to which the taxpayer has, at a time when the taxpayer’s spouse or common-law partner was the annuitant under the plan, paid a premium, or (ii) that has received a payment out of or a transfer from a registered retirement savings plan or a registered retirement income fund that was a
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Income Ta spousal or common-law partner plan in relation to the taxpayer, or (b) a registered retirement income fund that has received a payment out of or a transfer from a spousal or common-law partner plan in relation to the taxpayer;
(3) The portion of paragraph 146(5.1)(a) of the English version of the Act before subparagraph (i) is replaced by the following: (a) the total of all amounts each of which is a premium paid by the taxpayer after 1990 and on or before the day that is 60 days after the end of the year under a registered retirement savings plan under which the taxpayer’s spouse or common-law partner (or, where the taxpayer died in the year or within 60 days after the end of the year, an individual who was the taxpayer’s spouse or common-law partner immediately before the death) was the annuitant at the time the premium was paid, other than the portion, if any, of the premium (4) The portion of subsection 146(8.3) of the English version of the Act before paragraph (a) is replaced by the following: Spousal or common-law partner payments
(8.3) Where at any time in a taxation year a particular amount in respect of a registered retirement savings plan that is a spousal or common-law partner plan in relation to a taxpayer is required by reason of subsection (8) or paragraph (12)(b) to be included in computing the income of the taxpayer’s spouse or common-law partner before the plan matures or as a payment in full or partial commutation of a retirement income under the plan and the taxpayer is not living separate and apart from the taxpayer’s spouse or commonlaw partner at that time by reason of the breakdown of their marriage or common-law partnership, there shall be included at that time in computing the taxpayer’s income for the year an amount equal to the lesser of 247. Clause (f)(ii)(B) of the definition ‘‘small business property’’ in subsection 206(1) of the Act is replaced by the following:
Impôt sur le re (B) the annuitant under the particular fund or plan (or the spouse, common-law partner, former spouse or former common-law partner of that annuitant) is also the annuitant under the fund or plan referred to in clause (A), or (iii) an annuitant under a registered retirement income fund or registered retirement savings plan that governs the taxpayer, or a spouse, common-law partner, former spouse or former common-law partner of that annuitant; 248. (1) Subject to subsection (2), sections 238 to 247 apply to the 2001 and following taxation years. (2) If a taxpayer and a person have jointly elected pursuant to section 144 of the Modernization of Benefits and Obligations Act, in respect of the 1998, 1999 or 2000 taxation years, sections 238 to 247 apply to the taxpayer and the person in respect of the applicable taxation year and subsequent taxation years. PART 4
R.S., c. 2 (5th Supp.)
INCOME TAX APPLICATION RULES
249. (1) Subsection 26(30) of the Income Tax Application Rules is replaced by the following: Additions to taxable Canadian property
(30) Subsections (1.1) to (29) do not apply to a disposition by a non-resident person of a property (a) that the person last acquired before April 27, 1995; (b) that would not be a taxable Canadian property immediately before the disposition if section 115 of the amended Act were read as it applied to dispositions that occurred on April 26, 1995; and (c) that would be a taxable Canadian property immediately before the disposition if section 115 of the amended Act were read as it applied to dispositions that occurred on January 1, 1996.
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(2) Subsection (1) applies to dispositions that occur after October 1, 1996. PART 5 1991, c. 49
AN ACT TO AMEND THE INCOME TAX ACT, THE CANADA PENSION PLAN, THE CULTURAL PROPERTY EXPORT AND IMPORT ACT, THE INCOME TAX CONVENTIONS INTERPRETATION ACT, THE TAX COURT OF CANADA ACT, THE UNEMPLOYMENT INSURANCE ACT, THE CANADA-NEWFOUNDLAND ATLANTIC ACCORD IMPLEMENTATION ACT, THE CANADA-NOVA SCOTIA OFFSHORE PETROLEUM RESOURCES ACCORD IMPLEMENTATION ACT AND CERTAIN RELATED ACTS
250. (1) Subsection 236(1) of An Act to amend the Income Tax Act, the Canada Pension Plan, the Cultural Property Export and Import Act, the Income Tax Conventions Interpretation Act, the Tax Court of Canada Act, the Unemployment Insurance Act, the Canada-Newfoundland Atlantic Accord Implementation Act, the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and certain related Acts, is amended (a) by replacing the reference to the words ‘‘3/4 of the amount determined under subparagraph (i) in respect of him’’ in paragraph 26(5)(d) of An Act to amend the Income Tax Act and a related Act, chapter 55 of the Statutes of Canada, 1986, with a reference to the words ‘‘the amount determined when the fraction required to be used by him in the year or fiscal period under paragraph 38(a) or (b) is multiplied by the amount determined under subparagraph (i) in respect of him’’; and
Impôt sur le re (b) by replacing the reference to the words ‘‘3/4 of the amount determined under subparagraph (i) in respect of the proprietor’’ in paragraph 26(5)(e) of An Act to amend the Income Tax Act and a related Act, chapter 55 of the Statutes of Canada, 1986, with a reference to the words ‘‘the amount determined when the fraction required to be used by the proprietor in the year or fiscal period under paragraph 38(a) or (b) is multiplied by the amount determined under subparagraph (i) in respect of the proprietor’’. (2) Subsection (1) is deemed to have come into force on December 19, 1986. PART 6
1998, c. 19
INCOME TAX AMENDMENTS ACT, 1997 251. (1) Subparagraph 131(11)(b)(iv) of the Income Tax Amendments Act, 1997 is replaced by the following: (iv) the disposition is made by (A) the individual or the individual’s spouse or common-law partner, (B) the estate of the individual or of the individual’s spouse or commonlaw partner within the estate’s first taxation year, (C) the particular trust where it is a post-1971 spousal or common-law partner trust or a trust described in paragraph 104(4)(a.1) of the Income Tax Act, the individual’s spouse or common-law partner, as the case may be, is the beneficiary referred to in subparagraph (i) and the disposition occurs before the end of the trust’s third taxation year that begins after the death of the individual’s spouse or common-law partner, as the case may be, or (D) a trust described in paragraph 73(1.01)(c) of that Act created by the individual, or a trust described in paragraph 70(6)(b) of that Act
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Income Ta created by the individual’s will in respect of the individual’s spouse or common-law partner, before the end of the trust’s third taxation year that begins after the death of the individual or the individual’s spouse or common-law partner, as the case may be;
(2) Subsection (1) applies to the 2000 and subsequent taxation years; and (a) in respect of the 1998 and 1999 taxation years, where a taxpayer and a person who would have been the taxpayer’s common-law partner in the 1998 or 1999 taxation year jointly elect under section 144 of the Modernization of Benefits and Obligations Act to have sections 130 to 142 of that Act apply, if applicable, to the 1998 or 1999 taxation year, subparagraph 131(11)(b)(iv) of the Income Tax Amendments Act, 1997, as enacted by subsection (1), shall be read as follows for the applicable year: (iv) the disposition is made by (A) the individual or the individual’s spouse or common-law partner, (B) the estate of the individual or of the individual’s spouse or commonlaw partner within the estate’s first taxation year, (C) the particular trust where it is a trust described in paragraph 104(4)(a) or (a.1) of the Income Tax Act in respect of a spouse or common-law partner, the spouse or common-law partner is the beneficiary referred to in subparagraph (i) and the disposition occurs before the end of the trust’s third taxation year that begins after the death of the spouse or common-law partner, or (D) a trust described in paragraph 73(1)(c) of that Act created by the individual in respect of the individual’s spouse or common-law partner, or a trust described in paragraph 70(6)(b) of that Act created by the individual’s will in respect of the
Impôt sur le re individual’s spouse or common-law partner, before the end of the trust’s third taxation year that begins after the death of the spouse or commonlaw partner; (b) in respect of the 2000 taxation year, where a joint election has not been filed by the taxpayer and a person who would have been the taxpayer’s common-law partner in the year 2000 to have sections 130 to 142 of the Modernization of Benefits and Obligations Act apply to the year 2000, subparagraph 131(11)(b)(iv) of the Income Tax Amendments Act, 1997, as enacted by subsection (1), shall be read as follows for that year, namely; (iv) the disposition is made by (A) the individual or the individual’s spouse, (B) the estate of the individual or of the individual’s spouse within the estate’s first taxation year, (C) the particular trust where it is a post-1971 spousal or common-law partner trust or a trust described in paragraph 104(4)(a.1) of the Income Tax Act, the individual or the individual’s spouse, as the case may be, is the beneficiary referred to in subparagraph (i) and the disposition occurs before the end of the trust’s third taxation year that begins after the death of the individual or the individual’s spouse, as the case may be, or (D) a trust described in paragraph 73(1.01)(c) of that Act created by the individual, or a trust described in paragraph 70(6)(b) of that Act created by the individual’s will in respect of the individual’s spouse, before the end of the trust’s third taxation year that begins after the death of the individual or the individual’s spouse, as the case may be;
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252. (1) Section 206 of the Act is amended by replacing the references to ‘‘1999’’ with references to ‘‘2001’’. (2) Subsection (1) applies to taxation years that end after 1998.
PART 7 1999, c. 22
INCOME TAX AMENDMENTS ACT, 1998 253. (1) Subsection 82(8) of the Income Tax Amendments Act, 1998 is replaced by the following: (8) Subsection (4) applies after February 24, 1998 except that, if on that day an individual who would, but for a tax treaty (as defined in subsection 248(1) of the Income Tax Act, as amended by this Act), be resident in Canada for the purposes of the Income Tax Act is, under the tax treaty, resident in another country, subsection (4) does not apply to the individual until the first time after February 24, 1998 at which the individual becomes, under a tax treaty, resident in a country other than Canada. (2) Subsection (1) is deemed to have come into force on June 17, 1999. PART 8
R.S., c. C-8
CANADA PENSION PLAN 254. (1) The portion of subsection 12(1) of the Canada Pension Plan before paragraph (a) is replaced by the following:
Amount of contributory salary and wages
12. (1) The amount of the contributory salary and wages of a person for a year is the person’s income for the year from pensionable employment, computed in accordance with the Income Tax Act (read without reference to subsection 7(8) of that Act), plus any deductions for the year made in computing that income otherwise than under paragraph 8(1)(c) of that Act, but does not include
(2) Subsection (1) applies to the 2000 and subsequent taxation years.
Impôt sur le re PART 9
R.S., c. 1 (2nd Supp.)
CUSTOMS ACT 255. The Customs Act is amended by adding the following after section 153:
Hindering an officer
153.1 No person shall, physically or otherwise, do or attempt to do any of the following: (a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act; or (b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act. 256. The Act is amended by adding the following after section 160:
Penalty for hindering an officer
160.1 Every person who contravenes section 153.1 is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to (a) a fine of not less than $1,000 and not more than $25,000; or (b) both a fine described in paragraph (a) and imprisonment for a term not exceeding twelve months.
PART 10 R.S., c. E-15
EXCISE TAX ACT 257. The Excise Tax Act is amended by adding the following after section 100:
Compliance
101. Every person who, physically or otherwise, does or attempts to do any of the following: (a) interfere with or molest any official (in this section having the same meaning as in section 295) doing anything that the official is authorized to do under this Act, or (b) hinder or prevent any official from doing anything the official is authorized to do under this Act is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
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(c) a fine of not less than $1,000 and not more than $25,000, or (d) both a fine described in paragraph (c) and imprisonment for a term not exceeding twelve months. 258. The Act is amended by adding the following after section 289: Compliance order
289.1 (1) On summary application by the Minister, a judge may, despite subsection 326(2), order a person to provide any access, assistance, information or document sought by the Minister under section 288 or 289 if the judge is satisfied that (a) the person was required under section 288 or 289 to provide the access, assistance, information or document and did not do so; and (b) in the case of information or a document, the information or document is not protected from disclosure by solicitor-client privilege (within the meaning of subsection 293(1)).
Notice required
(2) An application under subsection (1) must not be heard before the end of five clear days from the day the notice of application is served on the person against whom the order is sought.
Judge may impose conditions
(3) The judge making an order under subsection (1) may impose any conditions in respect of the order that the judge considers appropriate.
Contempt of court
(4) If a person fails or refuses to comply with an order, a judge may find the person in contempt of court and the person is subject to the processes and the punishments of the court to which the judge is appointed.
Appeal
(5) An order by a judge under subsection (1) may be appealed to a court having appellate jurisdiction over decisions of the court to which the judge is appointed. An appeal does not suspend the execution of the order unless it is so ordered by a judge of the court to which the appeal is made.
Impôt sur le re
1990, c. 45, s. 12(1)
259. Subsection 291(2) of the Act is replaced by the following:
Compliance
(2) No person shall, physically or otherwise, do or attempt to do any of the following: (a) interfere with, hinder or molest any official (in this subsection having the same meaning as in section 295) doing anything the official is authorized to do under this Part, or (b) prevent any official from doing anything the official is authorized to do under this Part and every person shall, unless the person is unable to do so, do everything the person is required to do by or pursuant to subsection (1) or any of sections 288 to 290 and 292. 260. Subsection 295(5) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (j), by adding the word ‘‘or’’ at the end of paragraph (k) and by adding the following after paragraph (k): (l) provide confidential information to a police officer (within the meaning assigned by subsection 462.48(17) of the Criminal Code) solely for the purpose of investigating whether an offence has been committed under the Criminal Code, or the laying of an information or the preferring of an indictment, if (i) such information can reasonably be regarded as being relevant for the purpose of ascertaining the circumstances in which an offence under the Criminal Code may have been committed, or the identity of the person or persons who may have committed an offence, with respect to an official, or with respect to any person related to that official, (ii) the official was or is engaged in the administration or enforcement of this Part, and (iii) the offence can reasonably be considered to be related to that administration or enforcement.
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1990, c. 45, s. 12(1)
261. The portion of subsection 326(1) of the Act before paragraph (a) is replaced by the following:
Offences
326. (1) Every person who fails to file or make a return as and when required by or under this Part or who fails to comply with subsection 286(2) or 291(2) or with an order made under subsection (2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to
1999, c. 26, s. 39
262. Paragraph 328(2)(a) of the Act is replaced by the following: (a) to whom confidential information has been provided for a particular purpose under paragraph 295(5)(b), (c), (g), (k) or (l), or PART 11
2000, c. 12
MODERNIZATION OF BENEFITS AND OBLIGATIONS ACT 263. (1) Subsection 134(2) of the English version of the Modernization of Benefits and Obligations Act is replaced by the following: (2) Paragraph (b) of the definition ‘‘member of a congregation’’ in subsection 143(4) of the Act is replaced by the following: (b) a child who is unmarried and not in a common-law partnership, other than an adult, of an adult referred to in paragraph (a), if the child lives with the members of the congregation; (2) Subsection (1) is deemed to have come into force on July 31, 2000. PART 12
2000, c. 30
SALES TAX AND EXCISE TAX AMENDMENTS ACT, 1999 264. (1) Section 171 of the French version of the Sales Tax and Excise Tax Amendments Act, 1999 is replaced by the following:
Impôt sur le re 171. Le paragraphe 166.2(2) de la même loi est remplacé par ce qui suit: (2) La demande se fait par dépôt au greffe de la Cour canadienne de l’impôt, conformément à la Loi sur la Cour canadienne de l’impôt, de trois exemplaires des documents visés au paragraphe 166.1(3) et de trois exemplaires de l’avis visé au paragraphe 166.1(5). (2) Subsection (1) is deemed to have come into force on October 20, 2000.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 16
An Act to amend the Customs Act, the Customs Tariff, the Excise Act, the Excise Tax Act and the Income Tax Act in respect of tobacco
BILL C-26 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Customs Act, the Customs Tariff, the Excise Act, the Excise Tax Act and the Income Tax Act in respect of tobacco’’.
SUMMARY This enactment implements tobacco tax measures announced by the Minister of Finance on April 5, 2001 as part of the government’s initiative to reduce tobacco consumption in Canada, especially among youth. It also implements a measure proposed in Budget 2000 reducing the exemption threshold under the tax on exports of tobacco products before April 6, 2001.
The amendments to the Customs Act, the Customs Tariff, the Excise Act, the Excise Tax Act and the Income Tax Act announced on April 5, 2001 implement new tax measures with respect to domestic tobacco tax rates, exports of tobacco products, tobacco products sold in duty free shops or as ships’ stores, and tobacco products imported by resident travellers, as well as changes to the surtax on tobacco manufacturing profits.
Tobacco Excise Tax Rate Increases. The amendments increase excise tax rates by $2.00 per carton on cigarettes for sale in Ontario and Quebec, $1.35 per carton in Prince Edward Island, 30 cents per carton in New Brunswick and 10 cents per carton in Nova Scotia. The amendments increase excise taxes on tobacco sticks by $1.00 per 200 sticks nation-wide, and on manufactured tobacco other than cigarettes and tobacco sticks by $2.80 per 200 grams on products for sale in Ontario and by $1.00 per 200 grams on products for sale in other provinces and the territories. These tax increases are effective April 6, 2001.
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Tax on Exports of Tobacco Products. This enactment implements the Budget 2000 proposal to reduce the exemption threshold under the tax on exports of tobacco products before April 6, 2001 from 2.5% to 1.5% of a manufacturer’s production of tobacco products in the previous calendar year. The amendments also implement the April 5, 2001 proposal to impose a new two-tiered tax on exports of tobacco products. For exports up to 1.5% of a manufacturer’s production in the preceding calendar year, a new excise tax is imposed at a rate of $10 per carton for cigarettes, $7 per 200 sticks for tobacco sticks, and $6 per 200 grams for manufactured tobacco other than cigarettes and tobacco sticks. The amendments authorize the Minister of National Revenue to refund this tax where the importer provides evidence satisfactory to the Minister that all taxes and duties imposed at the national level under the laws of the foreign country into which the tobacco products are imported have been paid. For exports over 1.5% of a manufacturer’s production in the preceding calendar year, the amendments impose the current excise duty on tobacco products plus a new excise tax. The sum of the excise duty and excise tax is $22 per carton for cigarettes, $16 per 200 sticks for tobacco sticks, and $12 per 200 grams for manufactured tobacco other than cigarettes and tobacco sticks. The amendments related to the new two-tiered export tax are effective April 6, 2001. Tax on Tobacco Products for Sale in Duty Free Shops. The amendments impose excise duty and a new excise tax on Canadianmanufactured tobacco products delivered to duty free shops in Canada, or exported for delivery to foreign duty free shops, payable by the domestic manufacturer. The sum of excise duty and excise tax is $10 per carton for cigarettes, $7 per 200 sticks for tobacco sticks, and $6 per 200 grams for manufactured tobacco other than cigarettes and tobacco sticks. The amendments also impose an equivalent excise tax on imported tobacco products delivered to a duty free shop in Canada, payable by the operator of the duty free shop. The tax on imported tobacco products will be refunded on the first carton or equivalent of each product category sold to an individual who is not a resident of Canada and who exports the product. These measures are effective April 6, 2001.
Tax on Tobacco Products Delivered as Ships’ Stores. The amendments impose excise duty and a new excise tax on Canadianmanufactured tobacco products delivered as ships’ stores in Canada, or exported for delivery as foreign ships’ stores, payable by the domestic manufacturer. The sum of excise duty and tax is $10 per carton for cigarettes, $7 per 200 sticks for tobacco sticks, and $6 per 200 grams for manufactured tobacco other than cigarettes and tobacco sticks. These measures are effective April 6, 2001.
Duty on Traveller’s Tobacco Products. The amendments impose a new duty under the Customs Tariff on manufactured tobacco products imported by a resident of Canada under the terms of the traveller’s allowance. The new duty is imposed at a rate of $10 per carton for cigarettes, $7 per 200 sticks for tobacco sticks, and $6 per 200 grams for manufactured tobacco other than cigarettes and tobacco sticks. This duty will not be imposed on tobacco products imported by an individual for personal use that are stamped in accordance with the Excise Act and on which excise duty has been imposed under that Act. These amendments are effective October 1, 2001. Tobacco Manufacturers’ Surtax. The amendment increases the rate of the existing surtax imposed under the Income Tax Act on a corporation’s tax on profits from tobacco manufacturing. The rate increase is from 40% to 50% for taxation years ending after April 5, 2001, and is prorated for any taxation year straddling that date. Miscellaneous Amendments. This enactment also implements a number of related and consequential measures, including provisions related to the application of interest in respect of taxes or duties amended or implemented by this enactment, new restrictions on the entry of tobacco products into bonding warehouses, and on their subsequent removal, and new stamping requirements and new offence and penalty provisions.
49-50 ELIZABETH II
CHAPTER 16 An Act to amend the Customs Act, the Customs Tariff, the Excise Act, the Excise Tax Act and the Income Tax Act in respect of tobacco [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title
R.S., c. 1 (2nd Supp.) 1993, c. 25, s. 70(1)
1. This Act may be cited as the Tobacco Tax Amendments Act, 2001. CUSTOMS ACT
2. (1) Paragraph 24(1)(c) of the Customs Act is replaced by the following: (c) as a duty free shop for the sale of goods free of certain duties or taxes levied on goods under the Customs Tariff, the Excise Tax Act, the Excise Act, the Special Import Measures Act or any other law relating to customs, to persons who are about to leave Canada (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1997, c. 36
CUSTOMS TARIFF
3. (1) Subsection 21(2) of the Customs Tariff is replaced by the following: Duty on tobacco imported by traveller
(2) There shall be levied on traveller’s tobacco, at the time of its importation, and paid in accordance with the Customs Act, a duty of (a) $0.05 per cigarette, in the case of cigarettes; (b) $0.035 per stick, in the case of tobacco sticks; and
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(c) $0.03 per gram, in the case of manufactured tobacco other than cigarettes and tobacco sticks. Exception — excise duty-paid manufactured tobacco
(3) A duty shall not be levied under this section on manufactured tobacco imported by an individual for their personal use if it is stamped in accordance with the Excise Act and duty has been imposed on it under section 200 of that Act.
Definitions
(4) The definitions in this subsection apply in this section.
‘‘goods subject to excise’’ « marchandises assujetties à l’accise »
‘‘goods subject to excise’’ means (a) beer or malt liquor, within the meaning of the Excise Act, of heading No. 22.03 or of tariff item No. 2202.90.10 or 2206.00.80; (b) spirits, within the meaning of the Excise Act, of an alcoholic strength by volume exceeding 22.9% volume, of tariff item No. 2204.21.32, 2204.29.32, 2205.10.30, 2205.90.30, 2206.00.22, 2206.00.72 or 2206.00.92; (c) spirits, within the meaning of the Excise Act, of heading No. 22.07 or 22.08, other than of tariff item No. 2207.20.11, 2207.20.90, 2208.90.30 or 2208.90.91; (d) cigars or manufactured tobacco of tariff item No. 2402.10.00, 2402.20.00, 2403.10.00, 2403.91.90, 2403.99.10 or 2403.99.90; or (e) goods referred to in any of paragraphs (a) to (d) that are classified with the container in which they are imported.
‘‘traveller’s tobacco’’ « tabac du voyageur »
‘‘traveller’s tobacco’’ means manufactured tobacco that is imported by a person at any time and (a) is classified under tariff item No. 9804.10.00, 9804.20.00, 9805.00.00 or 9807.00.00; or (b) would be classified under tariff item No. 9804.10.00 or 9804.20.00 but for the fact that the total value for duty as
Taxe sur le ta determined under section 46 of the Customs Act of all goods imported by the person at that time exceeds the maximum value specified in that tariff item. (2) Subsection (1) is deemed to have come into force on April 6, 2001, except that subsection 21(2) of the Act, as enacted by subsection (1), does not apply to tobacco imported before October 1, 2001. 4. (1) Paragraph 83(a) of the Act is replaced by the following: (a) in the case of goods that would have been classified under tariff item No. 9804.10.00 or 9804.20.00, the value for duty of the goods shall be reduced by an amount equal to that maximum specified value and, in the case of alcoholic beverages and tobacco, the quantity of those goods shall, for the purposes of assessing duties other than a duty under subsection 21(2), be reduced by the quantity of alcoholic beverages and tobacco up to the maximum quantities specified in tariff item No. 9804.10.00 or 9804.20.00, as the case may be; (2) Subsection (1) comes into force or is deemed to have come into force on October 1, 2001. 5. (1) Section 92 of the Act is amended by adding the following after subsection (2):
Nonapplication to Canadian manufactured tobacco
(3) This section does not apply to any tax imposed under Part III of the Excise Tax Act, or any duty imposed under the Excise Act, in respect of manufactured tobacco that is manufactured or produced in Canada. (2) Subsection (1) is deemed to have come into force on April 6, 2001, except that subsection 92(3) of the Act, as enacted by subsection (1), does not apply to manufactured tobacco entered into a bonding warehouse before that day. 6. (1) Note 4 to Chapter 98 of the List of Tariff Provisions set out in the schedule to the Act is replaced by the following:
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4. For the purpose of this Chapter, ‘‘duties’’ means duties or taxes levied or imposed on imported goods under Part 2 of the Act (other than subsection 21(2)), the Excise Act, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament relating to customs. (2) Subsection (1) comes into force or is deemed to have come into force on October 1, 2001. R.S., c. E-14
EXCISE ACT
1993, c. 25, s. 32(1); 1999, c. 17, par. 144(1)(c)(E)
7. (1) The portion of the definition ‘‘cigar stamp’’ in section 6 of the Excise Act before paragraph (a) is replaced by the following:
‘‘cigar stamp’’ « estampille de cigares »
‘‘cigar stamp’’ means any stamp required by this Act and the ministerial regulations to be affixed to a cigar, or a package, carton, box, crate or other container containing cigars, entered for consumption or imported into Canada, to indicate
1994, c. 37, s. 2; 1999, c. 17, par. 144(1)(c)(E)
(2) The portion of the definition ‘‘tobacco stamp’’ in section 6 of the Act before paragraph (a) is replaced by the following:
‘‘tobacco stamp’’ « estampille de tabac »
‘‘tobacco stamp’’ means any stamp required by this Act and the ministerial regulations to be impressed on, printed on, marked on, indented into or affixed to a cigarette, or a package, carton, box, crate or other container containing manufactured tobacco, entered for consumption or imported into Canada, or to be affixed to Canadian raw leaf tobacco entered for consumption, to indicate (3) Section 6 of the Act is amended by adding the following in alphabetical order:
‘‘foreign duty free shop’’ « boutique hors taxes à l’étranger »
‘‘foreign duty free shop’’ has the meaning assigned by subsection 2(1) of the Excise Tax Act;
‘‘foreign ships’ stores’’ « provisions de bord à l’étranger »
‘‘foreign ships’ stores’’ has the meaning assigned by subsection 2(1) of the Excise Tax Act,
Taxe sur le ta
(4) Subsection (3) is deemed to have come into force on April 6, 2001. 8. (1) The Act is amended by adding the following after section 52: Limitation on entry of tobacco into bonding warehouse
52.1 Manufactured tobacco shall not be entered into a bonding warehouse if it is intended to be removed for (a) delivery to a duty free shop licensed as such under the Customs Act; (b) export for delivery to a foreign duty free shop; (c) export for delivery as foreign ships’ stores; (d) entry into a bonded warehouse, licensed as such under the Customs Tariff; or (e) delivery as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. R.S., c. 7 (2nd Supp.), s. 63(1); 1993, c. 25, s. 37; 1995, c. 41, s. 109; 1999, c. 17, par. 144(1)(n)(E)
9. (1) Section 58 of the Act is replaced by the following:
Transfer of goods other than cigars and manufactured tobacco in bond
58. (1) Goods, other than cigars and manufactured tobacco, warehoused under this Act may, without payment of duty, be transferred or removed from one bonding warehouse to another in bond, exported in bond or released from bond to accredited representatives for their personal or official use, if the transfer, removal, exportation or release is in accordance with the regulations and the ministerial regulations.
� Removal to customs bonded warehouse or duty free shop
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(2) Goods subject to excise, other than cigars and manufactured tobacco, may, without payment of duty, be removed from a bonding warehouse (a) to a bonded warehouse, licensed as such under the Customs Tariff, if the goods are (i) designated for delivery as ships’ stores, (ii) for sale to accredited representatives for their personal or official use, or (iii) for export; or (b) to a duty free shop, licensed as such under the Customs Act, if the goods are for sale to persons who are about to leave Canada.
Delivery and sale to be in accordance with regulations
(3) Goods removed under subsection (2) shall be delivered and sold in accordance with any ministerial regulations that apply.
Definitions
58.1 (1) The definitions in this subsection apply in this section.
‘‘foreign brand tobacco’’ « tabac de marque étrangère »
‘‘foreign brand tobacco’’ means tobacco in respect of which the excise tax imposed under section 23.13 of the Excise Tax Act is not payable because of section 23.3 of that Act.
‘‘manufactured tobacco’’ « tabac fabriqué »
‘‘manufactured tobacco’’ does not include partially manufactured tobacco or foreign brand tobacco.
‘‘partially manufactured tobacco’’ « tabac partiellement fabriqué »
‘‘partially manufactured tobacco’’ means a tobacco product made by a tobacco manufacturer that is cut filler or cut rag or that is manufactured less fully than cut filler or cut rag.
Categories of manufactured tobacco
(2) For the purposes of subsection (4), each of the following constitutes a category of manufactured tobacco: (a) cigarettes; (b) tobacco sticks; and (c) manufactured tobacco other than cigarettes and tobacco sticks.
2001 Removal of manufactured tobacco in bond
Taxe sur le ta (3) Manufactured tobacco may, without payment of duty, be removed from a bonding warehouse only if (a) it is (i) removed by its manufacturer and exported in bond in accordance with subsection (4) and not for delivery to a foreign duty free shop or as foreign ships’ stores, (ii) removed by its manufacturer and entered into another bonding warehouse in bond, or (iii) released to accredited representatives for their personal or official use; and (b) the removal and exportation, entry or release, as the case may be, are in accordance with the regulations and the ministerial regulations.
Maximum quantity permitted to be exported in bond
(4) A tobacco manufacturer shall not, at a particular time in a calendar year, remove a particular quantity of a category of manufactured tobacco from the manufacturer’s bonding warehouse for export in bond if the total quantity of that category of manufactured tobacco removed in the year up to that time by the manufacturer from a bonding warehouse for export in bond, plus the particular quantity, exceeds 1.5% of the total quantity of manufactured tobacco of that category manufactured by the manufacturer in the preceding calendar year.
Quantities to be excluded for the purpose of subsection (4)
(5) The total quantities referred to in subsection (4) shall not include any quantity of manufactured tobacco that was exported by the manufacturer for delivery to a foreign duty free shop or as foreign ships’ stores.
Removal of cigars in bond
(6) Cigars may, without payment of duty, be removed from a bonding warehouse only if (a) they are (i) removed by their manufacturer and (A) exported in bond, (B) entered into another bonding warehouse in bond,
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Tobacco T (C) entered into a bonded warehouse, licensed as such under the Customs Tariff, if the person entering the cigars into the bonded warehouse certifies to the manufacturer that they are for delivery as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, (D) transferred to a duty free shop, licensed as such under the Customs Act, if the operator of the duty free shop certifies to the manufacturer that the cigars are for sale to persons who are about to leave Canada, or (E) delivered as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, or (ii) released to accredited representatives for their personal or official use; and
(b) the removal and export, entry, transfer, sale, delivery or release, as the case may be, are in accordance with the regulations and the ministerial regulations.
Removal of partially manufactured tobacco or foreign brand tobacco in bond
(7) Partially manufactured tobacco or foreign brand tobacco may, without payment of duty, be removed by its manufacturer from a bonding warehouse only if (a) it is entered into another bonding warehouse in bond or exported in bond and not for delivery to a foreign duty free shop or as foreign ships’ stores; and (b) the removal and entry or export, as the case may be, are in accordance with the regulations and the ministerial regulations.
Diversion
(8) A person who has acquired goods that are manufactured tobacco, foreign brand tobacco or cigars is liable to pay the duty that would have been payable on the goods at the time the goods were completely manufactured, if the goods
Taxe sur le ta (a) have been relieved, under this Act or otherwise, from the duty because of the purpose for which the person acquired them; (b) are removed from a bonded warehouse licensed as such under the Customs Tariff, sold or used by the person for another purpose; and (c) would not have been relieved from the duty if the person had acquired them for the other purpose.
Duty payable at time of acquisition
(9) The duty a person is liable to pay under subsection (8) on goods is deemed to have become payable by the person at the time the person acquired the goods. (2) Subsection (1) is deemed to have come into force on April 6, 2001, except that (a) subsections 58(1), (3) and (4) of the Act, as they read immediately before that day, apply to manufactured tobacco (as defined in section 6 of the Act) entered into a bonding warehouse before that day and are subject to subsection 58.1(4) of the Act, as enacted by subsection (1); (b) subsections 58.1(3) and (7) of the Act, as enacted by subsection (1), do not apply to tobacco entered into a bonding warehouse before that day; and (c) subsection 58.1(4) of the Act, as enacted by subsection (1), does not apply to tobacco exported for delivery to a foreign duty free shop or as foreign ships’ stores if it had been entered into a bonding warehouse before that day.
10. (1) The Act is amended by adding the following after section 102: Penalty for removal from bonding warehouse for certain exports
102.1 Every person who removes from a bonding warehouse and exports in bond manufactured tobacco (as defined in subsection 58.1(1)) otherwise than in accordance with subparagraph 58.1(3)(a)(i) and paragraph 58.1(3)(b) is liable to pay, in addition to any duties or taxes that are payable under this
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or any other Act in respect of the tobacco, a penalty equal to the total of those duties and taxes, and that penalty becomes payable at the time the tobacco is exported. (2) Subsection (1) is deemed to have come into force on April 6, 2001. R.S., c. 12 (4th Supp.), s. 61
11. (1) The portion of subsection 110.1(1) of the Act before paragraph (a) is replaced by the following:
Penalty and interest
110.1 (1) Subject to subsection (2), on default in payment of any duty or penalty payable under this Act within the time prescribed by this Act or the regulations, the person liable to pay that duty or penalty shall pay without delay, in addition to the amount in default, (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1993, c. 25, s. 40; 1994, c. 37, s. 5(F); 1999, c. 17, par. 144(1)(z.7)(E)
12. Subsections 201(1) and (2) of the Act are replaced by the following:
Packaging and stamping of manufactured tobacco and cigars manufactured in Canada
201. (1) Before manufactured tobacco, or cigars, that are manufactured in Canada are entered for consumption under this Act, (a) they shall be put up and prepared by their manufacturer in packages that have printed on them such information as is prescribed by the ministerial regulations; and (b) the manufactured tobacco or cigars and their packages, cartons, boxes, crates and other containers shall be stamped with tobacco stamps or cigar stamps by the manufacturer as required by the ministerial regulations.
Packaging and stamping of imported manufactured tobacco and cigars
(2) Subject to subsection (3), before imported manufactured tobacco or imported cigars are released under Part II of the Customs Act, (a) they shall be put up and prepared by the importer in packages that have printed on them such information as is prescribed by the ministerial regulations; and
Taxe sur le ta (b) the manufactured tobacco or cigars and their packages, cartons, boxes, crates and other containers shall be stamped with tobacco stamps or cigar stamps by the importer as required by the ministerial regulations.
1994, c. 37, s. 6; 1999, c. 17, par. 144(1)(z.11)(E)
13. Section 211 of the Act is replaced by the following:
Stamp regulations
211. The Minister may make regulations prescribing the form of stamps to be impressed on, printed on, marked on, indented into or affixed to Canadian raw leaf tobacco, cigarettes, cigars and packages, cartons, boxes, crates and other containers containing manufactured tobacco or cigars, the information to be provided on the stamps and the manner in which the stamps are to be affixed.
1994, c. 37, s. 8; 1999, c. 17, par. 144(1)(z.19)(E)
14. (1) The portion of subsection 239.1(1) of the Act before paragraph (a) is replaced by the following:
Absence of stamps to be notice
239.1 (1) The absence of the proper tobacco stamp or cigar stamp required by this Act and the ministerial regulations to be impressed on, printed on, marked on, indented into or affixed to any cigarette or cigar or any package, carton, box, crate or other container of manufactured tobacco or cigars sold, offered for sale, kept for sale or found in the possession of any person is notice to all persons that
1993, c. 25, s. 52; 1995, c. 41, s. 111(1); 1999, c. 17, par. 144(1)(z.19)(E)
(2) Subparagraph 239.1(2)(a)(i) of the Act is replaced by the following: (i) in the case of manufactured tobacco, by a licensed tobacco manufacturer for export from Canada in accordance with this Act and the ministerial regulations, (i.1) in the case of cigars, by a licensed cigar manufacturer (A) for export from Canada in accordance with this Act and the ministerial regulations, or
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1995, c. 41, s. 111(2)
(3) Clauses 239.1(2)(a)(iii)(A) and (B) of the Act are replaced by the following: (A) the cigars were manufactured in Canada and are sold or offered for sale as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, or (B) the manufactured tobacco or cigars were imported and are, in accordance with this Act, the Customs Tariff and the Customs Act, sold or offered for sale to an accredited representative, to a duty free shop licensed under the Customs Act, as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, to an operator of a bonded warehouse licensed under the Customs Tariff or for export, or
1993, c. 25, s. 52
(4) Subparagraph 239.1(2)(a)(iv) of the Act is replaced by the following: (iv) by a person licensed under the Customs Act to operate a duty free shop, if (A) the manufactured tobacco was imported and is sold or offered for sale in accordance with that Act to a person about to leave Canada, or (B) the cigars are sold or offered for sale in accordance with that Act to a person about to leave Canada,
2001 1995, c. 41, s. 111(3)
Taxe sur le ta (5) Subparagraph 239.1(2)(b)(iv) of the Act is replaced by the following: (iv) in the case of cigars or imported manufactured tobacco, in the possession of a person licensed under the Customs Tariff to operate a bonded warehouse or under the Customs Act to operate a sufferance warehouse or duty free shop in that warehouse or duty free shop,
1995, c. 41, s. 111(4)
(6) Subparagraph 239.1(2)(b)(vi) of the Act is replaced by the following: (vi) in the case of cigars or imported manufactured tobacco, in the possession of a person as ships’ stores, if the acquisition and possession of the cigars or manufactured tobacco by that person are in accordance with the regulations made under the Customs Act, the Customs Tariff and the Excise Tax Act, or (7) Subsections (2) to (6) are deemed to have come into force on April 6, 2001, but do not apply to manufactured tobacco entered into a bonding warehouse before that day.
1995, c. 41, s. 112(1)
15. (1) Paragraph 240(2)(d) of the Act is replaced by the following: (d) in the case of cigars or imported manufactured tobacco, by a person licensed under the Customs Tariff to operate a bonded warehouse or under the Customs Act to operate a sufferance warehouse or duty free shop, in that warehouse or duty free shop;
1995, c. 41, s. 112(2)
(2) Paragraph 240(2)(f) of the Act is replaced by the following: (f) in the case of cigars or imported manufactured tobacco, as ships’ stores by a person if the acquisition and possession of the cigars or manufactured tobacco by that person are in accordance with the regulations made under the Customs Act, the Customs Tariff and the Excise Tax Act; or
�� 1993, c. 25, s. 52; 1995, c. 41, s. 112(3); 1999, c. 17, par. 144(1)(z.20)(E)
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(3) Paragraph 240(3)(a) of the Act is replaced by the following: (a) in the case of manufactured tobacco, by a licensed tobacco manufacturer for export from Canada in accordance with this Act and the ministerial regulations; (a.1) in the case of cigars, by a licensed cigar manufacturer (i) for export from Canada in accordance with this Act and the ministerial regulations, or (ii) as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act;
1995, c. 41, s. 112(4)
(4) Subparagraphs 240(3)(c)(i) and (ii) of the Act are replaced by the following: (i) the cigars were manufactured in Canada and are sold or offered for sale as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, or (ii) the manufactured tobacco or cigars were imported and are, in accordance with this Act, the Customs Act and the Customs Tariff, sold or offered for sale to an accredited representative, to a duty free shop licensed under the Customs Act, as ships’ stores in accordance with the regulations made under the Customs Tariff and the Excise Tax Act, to an operator of a bonded warehouse licensed under the Customs Tariff or for export; or
1993, c. 25, s. 52
(5) Paragraph 240(3)(d) of the Act is replaced by the following: (d) by a person licensed under the Customs Act to operate a duty free shop, if
Taxe sur le ta (i) the manufactured tobacco was imported and is sold or offered for sale in accordance with that Act to a person about to leave Canada, or (ii) the cigars are sold or offered for sale in accordance with that Act to a person about to leave Canada. (6) Subsections (1) to (5) are deemed to have come into force on April 6, 2001, but do not apply to manufactured tobacco entered into a bonding warehouse before that day.
R.S., c. E-15
EXCISE TAX ACT
1994, c. 29, s. 1(1)
16. (1) The definitions ‘‘Atlantic manufactured tobacco’’, ‘‘black stock manufactured tobacco’’ and ‘‘licensed tobacco manufacturer’’ in subsection 2(1) of the Excise Tax Act are repealed. (2) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘foreign duty free shop’’ « boutique hors taxes à l’étranger »
‘‘foreign duty free shop’’ means a retail store that is located in a country other than Canada and that is authorized under the laws of that country to sell goods free of certain duties and taxes to individuals who are about to leave that country;
‘‘foreign ships’ stores’’ « provisions de bord à l’étranger »
‘‘foreign ships’ stores’’ means tobacco products taken on board a vessel or aircraft while the vessel or aircraft is outside Canada and that are intended for consumption by or sale to the passengers or crew while the passengers and crew are on board the vessel or aircraft;
1994, c. 29, s. 1(2)
(3) Subsection 2(7) of the Act is repealed. (4) Subsections (1) to (3) are deemed to have come into force on April 6, 2001.
1993, c. 25, s. 55(1)
17. (1) Subsection 23(1) of the Act is replaced by the following:
Tax on various articles at schedule rates
23. (1) Subject to subsections (6) to (8.3), whenever goods mentioned in Schedules I and II are imported into Canada or manufactured or produced in Canada and delivered to a purchaser of those goods, there shall be
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imposed, levied and collected, in addition to any other duty or tax that may be payable under this or any other Act or law, an excise tax in respect of the goods at the applicable rate set out in the applicable section in whichever of those Schedules is applicable, computed, if that rate is specified as a percentage, on the duty paid value or the sale price, as the case may be. 1993, c. 25, s. 55(2)
(2) Subsection 23(5) of the Act is replaced by the following:
Tax on release by duty free shop of Schedule II tobacco products
(5) Subject to section 66.1, whenever tobacco products mentioned in Schedule II are sold by the operator of a duty free shop or are retained for the use of the operator, there shall be imposed, levied and collected, in addition to any other duty or tax payable under this Act or any other Act or law, an excise tax in respect of those tobacco products at the applicable rate set out in the applicable section in that Schedule, computed, if that rate is specified as a percentage, on the duty paid value or the price at which the tobacco products were purchased by the operator, as the case may be, and payable by the operator at the time the tobacco products are delivered to the purchaser or so retained for use. (3) Subsection 23(8) of the Act is amended by striking out the word ‘‘or’’ at the end of paragraph (b.1) and by adding the following after that paragraph: (b.2) manufactured tobacco imported into Canada by an individual for their personal use if it is stamped in accordance with the Excise Act and duty has been imposed on it under section 200 of that Act; or
1993, c. 25, s. 55(3)
(4) Paragraph 23(8.2)(a) of the Act is replaced by the following: (a) in the case of cigars, products in respect of which section 23.3 applies that are not exported for delivery to a foreign duty free shop or as foreign ships’ stores, or cut filler or cut rag or products manufactured less fully than cut filler or cut rag, the products have been exported in bond by their manufacturer or producer; (a.1) in the case of products other than those to which paragraph (a) applies, the products
Taxe sur le ta have been exported by their manufacturer or producer; (5) Subsections (1) to (3) are deemed to have come into force on April 6, 2001. (6) Subsection (4) applies to tobacco products exported after April 5, 2001.
1994, c. 29, s. 5(1)
18. (1) Sections 23.1 and 23.2 of the Act are replaced by the following:
Definition of ‘‘tobacco product’’
23.1 In sections 23.11 to 23.3, ‘‘tobacco product’’ means manufactured tobacco other than cut filler, cut rag or products manufactured less fully than cut filler or cut rag.
Tax on domestic tobacco delivered to a duty free shop or as ships’ stores
23.11 (1) There shall be imposed, levied and collected, in addition to any other duty or tax payable under this Act or any other Act or law, an excise tax, at the applicable rate set out in subsection (2), in respect of tobacco products that are manufactured or produced in Canada and are (a) delivered to a duty free shop; (b) delivered to a bonded warehouse, licensed as such under the Customs Tariff; (c) delivered to a person for use as ships’ stores in accordance with the regulations made under this Act and the Customs Tariff; or (d) exported for delivery to a foreign duty free shop or as foreign ships’ stores.
Rate of tax
(2) The rate of tax imposed under subsection (1) is (a) $0.0225 per cigarette, in the case of cigarettes; (b) $0.01665 per stick, in the case of tobacco sticks; and (c) $11.65 per kilogram, in the case of manufactured tobacco other than cigarettes and tobacco sticks.
When and by whom tax is payable
(3) The tax imposed under subsection (1) is payable by the manufacturer or producer of the tobacco products and is payable at the time (a) if paragraph (1)(d) applies, they are exported; and (b) in any other case, they are delivered.
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Tax on imported tobacco delivered to a duty free shop
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23.12 (1) If imported tobacco products are delivered to a duty free shop, there shall be imposed, levied and collected in respect of them, in addition to any other duty or tax payable under this Act or any other Act or law, an excise tax at the rate of (a) $0.05 per cigarette, in the case of cigarettes; (b) $0.035 per stick, in the case of tobacco sticks; and (c) $0.03 per gram, in the case of manufactured tobacco other than cigarettes and tobacco sticks.
When and by whom tax payable
(2) The tax imposed under this section is payable at the time of delivery and is payable by the operator of the duty free shop.
Tax on exports of tobacco products not exceeding maximum quantity
23.13 (1) If tobacco products manufactured or produced in Canada are exported in bond in accordance with subparagraph 58.1(3)(a)(i) and paragraph 58.1(3)(b) of the Excise Act by their manufacturer or producer, there shall be imposed, levied and collected in respect of the tobacco products, in addition to any other duty or tax payable under this Act or any other Act or law, an excise tax at the rate of (a) $0.05 per cigarette, in the case of cigarettes; (b) $0.035 per stick, in the case of tobacco sticks; and (c) $30.00 per kilogram, in the case of manufactured tobacco other than cigarettes and tobacco sticks.
Tax on exports of tobacco products exceeding maximum quantity
(2) If tobacco products manufactured or produced in Canada are exported and subsection (1) does not apply to those products, there shall be imposed, levied and collected in respect of those products, in addition to any other duty or tax payable under this Act or any other Act or law, an excise tax at the rate of (a) $0.0825 per cigarette, in the case of cigarettes; (b) $0.06165 per stick, in the case of tobacco sticks; and
Taxe sur le ta (c) $41.65 per kilogram, in the case of manufactured tobacco other than cigarettes and tobacco sticks.
When and by whom tax is payable
(3) The tax imposed under this section is payable at the time the tobacco products are exported and is payable by (a) if subsection (1) applies, the manufacturer or producer of the products; and (b) if subsection (2) applies, the exporter of the products.
Tax not payable on exports to foreign duty free shops or as foreign ships’ stores
(4) The tax imposed under this section is not payable in respect of tobacco products that are exported by their manufacturer or producer for delivery (a) to a foreign duty free shop for sale in the shop; or (b) as foreign ships’ stores. (2) Subsection (1) is deemed to have come into force on April 6, 2001, except that section 23.11 of the Act, as enacted by subsection (1), does not apply to tobacco products that had been entered into a bonding warehouse before that day.
2000, c. 30, s. 3(1)
19. (1) Subsection 23.21(2) of the Act is replaced by the following:
Exemption for limited exports
(2) The excise tax imposed under subsection 23.2(1) is not payable by a manufacturer or producer in respect of a particular quantity of a category of tobacco product exported at a time in a calendar year if the total quantity of that category of tobacco product exported by the manufacturer or producer in the calendar year up to and including that time, plus the particular quantity, does not exceed 1 1/2% of the total quantity of that category of tobacco product manufactured or produced by the manufacturer or producer in the preceding calendar year. (2) Section 23.21 of the Act, as amended by subsection (1), is repealed. (3) Subsection (1) is deemed to have come into force on April 1, 2000, except that, in applying subsection 23.21(2) of the Act, as enacted by subsection (1), before January 2001, the reference in that subsection to ‘‘1 1/2%’’ shall be read as a reference to ‘‘1 3/4%’’.
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(4) Subsection (2) is deemed to have come into force on April 6, 2001. 1997, c. 26, s. 60(1)
20. (1) Section 23.22 of the Act is repealed. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1993, c. 25, s. 56
21. (1) The portion of subsection 23.3(1) of the Act before paragraph (a) is replaced by the following:
Exemption for prescribed tobacco product
23.3 (1) The excise tax imposed under section 23.13 is not payable in the case of a tobacco product of a particular brand that is manufactured or produced in Canada and exported from Canada, if
1993, c. 25, s. 56
(2) The portion of subsection 23.3(2) of the Act before paragraph (a) is replaced by the following:
Exemption for prescribed cigarettes
(2) The excise tax imposed under section 23.13 is not payable in the case of cigarettes of a particular type or formulation, manufactured or produced in Canada and exported under a brand that is also applied to cigarettes of a different type or formulation that are manufactured or produced in Canada and sold in Canada, if (3) Subsections (1) and (2) are deemed to have come into force on April 6, 2001.
1994, c. 29, s. 6(1); 1997, c. 26, s. 61; 2000, c. 30, s. 4
22. (1) Section 23.31 of the Act is replaced by the following:
Tax on cigarettes sold to purchaser not authorized to resell in Ontario
23.31 (1) An excise tax shall be imposed, levied and collected on cigarettes that are (a) marked or stamped in accordance with a statute of the Province of Ontario to indicate that they are intended for retail sale in the province; and (b) sold by their manufacturer or producer, or by a person who is authorized under a statute of the province to sell cigarettes in the province, to a purchaser who is not authorized under a statute of the province to sell cigarettes in the province.
Taxe sur le ta
Where tax not imposed
(2) Tax shall not be imposed under subsection (1) if the purchaser referred to in that subsection is a consumer in the Province of Ontario and the purchase is for consumption by the purchaser or by others at the expense of the purchaser.
When and by whom tax is payable
(3) The tax imposed under subsection (1) is payable by the person selling the cigarettes to the purchaser referred to in that subsection and is payable at the time of the sale.
Amount of tax
(4) The tax imposed on cigarettes under subsection (1) is equal to the amount by which (a) the excise tax that would have been imposed under section 23 in respect of the cigarettes if the applicable rate of excise tax had been the rate set out in paragraph 1(f) of Schedule II exceeds (b) the excise tax that was imposed under section 23 in respect of the cigarettes. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1997, c. 26, s. 62(2); 2000, c. 30, ss. 5(1) and (2)(F)
23. (1) Subsections 23.32(1) and (2) of the Act are replaced by the following:
Tax on cigarettes sold to purchaser not authorized to resell in Quebec
23.32 (1) An excise tax shall be imposed, levied and collected on cigarettes that are (a) marked or stamped in accordance with a statute of the Province of Quebec to indicate that they are intended for retail sale in that province; and (b) sold by their manufacturer or producer, or by a person who is authorized under a statute of the province to sell manufactured tobacco in the province, to a purchaser who is not authorized under a statute of the province to sell manufactured tobacco in the province.
Where tax not imposed
(2) Tax shall not be imposed under subsection (1) if the purchaser referred to in that subsection is a consumer located in the Province of Quebec and the purchase is for
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consumption by the purchaser or by others at the expense of the purchaser. (2) Subsection (1) is deemed to have come into force on April 6, 2001. 1994, c. 29, s. 6(1); 1995, c. 36, ss. 2, 3(1) and 4; 1997, c. 26, ss. 63 and 64; 2000, c. 30, ss. 6(2) and 7(1), (2)(F) and (3) and par. 140(1)(a)
24. (1) Sections 23.33 to 23.341 of the Act are repealed.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. 2000, c. 30, s. 8(1)
25. (1) Subsections 23.35(2) and (3) of the Act are replaced by the following:
Tax on excess sale of black stock cigarettes
(2) If a supplier sells to an on-reserve retailer a quantity of black stock cigarettes in respect of which subparagraph 1(a)(ii) of Schedule II applies that exceeds the quantity of black stock cigarettes that the on-reserve retailer is authorized under the Tobacco Tax Act, R.S.O. 1990, c. T.10, to purchase, an excise tax shall be imposed, levied and collected on those excess cigarettes.
Tax on illegal sale of black stock cigarettes
(3) If a supplier sells to a person, other than an Indian consumer in Ontario or an on-reserve retailer, black stock cigarettes in respect of which subparagraph 1(a)(ii) of Schedule II applies, an excise tax shall be imposed, levied and collected on those cigarettes.
1994, c. 29, s. 6(1); 2000, c. 30, s. 8(2)
(2) Subsection 23.35(5) of the Act is replaced by the following:
Amount of tax
(5) The tax imposed on black stock cigarettes under subsection (2) or (3) is equal to the amount by which (a) the excise tax that would have been imposed under section 23 in respect of those cigarettes if the applicable rate of excise tax had been the rate set out in paragraph 1(f) of Schedule II exceeds (b) the excise tax that was imposed under section 23 in respect of those cigarettes. (3) Subsections (1) and (2) are deemed to have come into force on April 6, 2001.
2001 1994, c. 29, s. 6(1); 1997, c. 26, s. 66; 2000, c. 30, paras. 140(1)(b) and (c)
Taxe sur le ta 26. (1) Section 23.36 of the Act is repealed.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. 1994, c. 29, s. 7(1); 1995, c. 36, s. 6; 1997, c. 26, ss. 67(1) and 68; 1998, c. 21, s. 81(1); 2000, c. 30, s. 13 and paras. 140(1)(a), (d) and (e)
27. (1) Sections 68.161 to 68.169 of the Act are repealed.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. 28. (1) The Act is amended by adding the following after section 68.17: Rebate of tax to importer if foreign taxes paid
68.171 (1) The Minister may pay, to a person who has imported into a foreign country tobacco products (as defined in section 23.1) that were manufactured or produced in Canada and exported in bond by their manufacturer or producer to the foreign country in accordance with subparagraph 58.1(3)(a)(i) and paragraph 58.1(3)(b) of the Excise Act, a rebate determined in accordance with subsection (2) in respect of the products if (a) the person provides evidence satisfactory to the Minister that (i) all taxes and duties imposed on the products under the laws of the foreign country having national application have been paid, and (ii) the products were marked in accordance with section 202 of the Excise Act; and (b) the person applies to the Minister for the rebate within two years after the products were exported to the foreign country.
Determination of rebate
(2) The amount of the rebate under subsection (1) is equal to the lesser of
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(a) the total of the taxes and duties referred to in subparagraph (1)(a)(i) that are paid in respect of the tobacco products, and (b) the amount of the tax imposed under subsection 23.13(1) in respect of the tobacco products that is paid by their manufacturer or producer. Overpayment of rebate or interest
(3) If an amount has been paid to a person as a rebate under subsection (1) in respect of tobacco products exported by their manufacturer or producer or as interest in respect of such a rebate and tax under subsection 23.13(2) was imposed in respect of those products, the amount is deemed to be an amount of tax payable under Part III by the manufacturer or producer that became payable on the last day of the first month following that in which the amount was paid to the person.
Refund of tax to manufacturer if foreign taxes paid
(4) If a rebate under subsection (1) has been paid in respect of exported tobacco products, the Minister may refund to the manufacturer or producer of the products the amount, if any, by which the tax imposed under subsection 23.13(1) in respect of the products and paid by the manufacturer or producer exceeds the amount of the rebate if the manufacturer or producer applies to the Minister for the refund within two years after the tobacco products were exported.
Refund of tax to operator of duty free shop
68.172 (1) Subject to subsection (2), if the operator of a duty free shop provides evidence satisfactory to the Minister that the operator has sold imported tobacco products (as defined in section 23.1) in accordance with the regulations made under the Customs Act to an individual who is not a resident of Canada and that the products were exported at any time, the Minister may refund to the operator the tax paid under section 23.12 in respect of that portion of the total quantity of the products sold by the operator to the individual and exported at that time that does not exceed (a) in the case of cigarettes, 200 cigarettes; (b) in the case of tobacco sticks, 200 sticks; and
Taxe sur le ta (c) in the case of manufactured tobacco other than cigarettes and tobacco sticks, 200 grams.
Application
(2) No refund shall be paid under subsection (1) to the operator of a duty free shop in respect of a sale of tobacco unless the operator applies to the Minister for the refund within two years after the sale. (2) Subsection (1) is deemed to have come into force on April 6, 2001. 29. (1) Section 68.18 of the Act is amended by adding the following after subsection (3):
Exception for tobacco products
(3.1) Subsection (2) does not apply in respect of taxes imposed under Part III on tobacco products mentioned in Schedule II. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1994, c. 29, s. 8(1)
30. (1) Subsections 72(2) and (3) of the Act are replaced by the following:
Form and contents of application
(2) An application shall be made in the prescribed form and contain the prescribed information.
Filing of application
(3) An application shall be filed with the Minister in any manner that the Governor in Council may, by regulation, prescribe.
1994, c. 29, s. 8(2)
(2) Subsection 72(7) of the Act is replaced by the following:
Interest on payment
(7) If an amount is paid to an applicant under subsection (6), interest at the prescribed rate shall be paid in respect of each day between the day that is sixty days after the day on which the application was received by the Minister and the day on which the payment is sent, and compounded monthly on the total amount of the payment and interest outstanding. (3) Subsections (1) and (2) are deemed to have come into force on April 6, 2001.
1997, c. 26, s. 69(1)
31. (1) Subsection 74(1) of the Act is replaced by the following:
�� Deductions of tax, other than Part I tax, where application
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74. (1) In lieu of making a payment, other than a payment in respect of Part I, pursuant to an application under any of sections 68 to 68.11 or 68.17 to 69, the Minister may, on request of the applicant, authorize the applicant to deduct, on such terms and conditions and in such manner as the Minister may specify, the amount that would otherwise be paid to the applicant from the amount of any payment or remittance of tax, penalty, interest or other sum that is reported in a return under section 78 by the applicant. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
R.S., c. 15 (1st Supp.), s. 26(1), c. 7 (2nd Supp.), s. 35(1)
32. (1) Subsections 78(1) and (2) of the Act are replaced by the following:
Monthly returns
78. (1) Every person who is required to pay tax under Part III or IV shall make each month a return in the prescribed form containing prescribed information of all amounts that became payable by the person on account of that tax in the preceding month.
Nil returns
(2) Every person who holds a licence granted under or in respect of Part III or IV and whose tax payable under Parts III and IV in the preceding month is nil shall make a return as required by subsection (1) reporting that fact.
R.S., c. 12 (4th Supp.), s. 31(1)
(2) Paragraph 78(3)(c) of the Act is replaced by the following: (c) authorize any person whose activities that give rise to tax payable by the person under Part III or IV are predominantly limited to a seasonal period of operation to make a return in respect of any period longer than one month but not longer than six months, if the total tax payable by the person under Parts III and IV for the equivalent period in the preceding calendar year did not exceed an average of four hundred dollars per month throughout that equivalent period.
R.S., c. 15 (1st Supp.), s. 26(1)
(3) Paragraph 78(4)(a) of the Act is replaced by the following:
Taxe sur le ta (a) in a case where the return is required to be made in a month in accordance with subsection (1) or (2), not later than the last day of that month; (4) Subsections (1) to (3) are deemed to have come into force on April 6, 2001.
1994, c. 29, s. 9(1)
33. (1) Subsections 81.38(8) and (8.1) of the Act are replaced by the following:
Interest on refunds
(8) If a payment is made under subsection (1) or (4) in respect of an application under any of sections 68 to 69, interest at the prescribed rate shall be paid, in respect of each day between the day that is sixty days after the day on which the application was received by the Minister and the day on which the payment was sent, and compounded monthly on the total amount of the payment and interest outstanding. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1994, c. 29, s. 10; 2000, c. 30, s. 15(1)
34. (1) Section 97.1 of the Act is replaced by the following:
Offence of selling in another province cigarettes marked for sale in Ontario
97.1 If cigarettes have been marked or stamped in accordance with a statute of the Province of Ontario to indicate that they are intended for sale in that province, every person who sells or offers for sale the cigarettes to a consumer in any other province is guilty of an offence and is liable on summary conviction to a fine of not less than $1,000 and not more than the greater of $1,000 and triple the amount by which (a) the excise tax that would have been imposed under section 23 in respect of the cigarettes if the applicable rate of excise tax had been the rate set out in paragraph 1(f) of Schedule II exceeds (b) the excise tax that was imposed under section 23 in respect of the cigarettes. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
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2000, c. 30, s. 16(1)
35. (1) The portion of section 97.2 of the Act before paragraph (b) is replaced by the following:
Offence of selling in another province cigarettes marked for sale in Quebec
97.2 If cigarettes have been marked or stamped in accordance with a statute of the Province of Quebec to indicate that they are intended for sale in that province, every person who sells or offers for sale the cigarettes to a consumer in any other province is guilty of an offence and is liable on summary conviction to a fine of not less than $1,000 and not more than the greater of $1,000 and triple the amount by which (a) the excise tax that would have been imposed under section 23 in respect of the cigarettes if the applicable rate of excise tax had been the rate set out in paragraph 1(f) of Schedule II exceeds (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1997, c. 26, s. 72(1)
36. (1) Section 97.3 of the Act is repealed. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
1994, c. 29, s. 10; 1997, c. 26, s. 73(1); 2000, c. 30, s. 17(1) and par. 140(1)(b)
37. (1) Sections 97.4 and 97.5 of the Act are replaced by the following:
Offence of unauthorized sale of cigarettes intended for Indian reserve
97.4 Every person who sells or offers for sale black stock cigarettes described in subparagraph 1(a)(ii) of Schedule II in respect of which tax under section 23 was imposed at the rate set out in paragraph 1(a) of that Schedule to a person other than a supplier, an on-reserve retailer or an Indian consumer in the Province of Ontario is guilty of an offence and liable on summary conviction to a fine of not less than $1,000 and not more than the greater of $1,000 and triple the amount by which (a) the excise tax that would have been imposed under section 23 in respect of the cigarettes if the applicable rate of excise tax had been the rate set out in paragraph 1(f) of Schedule II
Taxe sur le ta exceeds (b) the excise tax that was imposed under section 23 in respect of the cigarettes.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. 1994, c. 29, s. 11(1); 1999, c. 17, s. 156(c)
38. (1) Section 98.2 of the Act is repealed.
(2) Subsection (1) is deemed to have come into force on April 6, 2001. 1994, c. 29, s. 12
39. (1) Subsection 100(5) of the Act is replaced by the following:
Failure to make records and books available
(5) Every person who fails to comply with section 98.1 is guilty of an offence and liable on summary conviction to a fine of not less than $200 and not more than $2,000 or to imprisonment for a term of not more than 6 months or to both the fine and imprisonment. (2) Subsection (1) is deemed to have come into force on April 6, 2001.
2000, c. 30, s. 107(1)
40. (1) The portion of paragraph 1(a) of Schedule II to the Act before subparagraph (i) is replaced by the following: (a) $0.13138 for each five cigarettes or fraction of five cigarettes contained in any package, if
2000, c. 30, s. 107(2)
(2) Paragraph 1(b) of Schedule II to the Act is replaced by the following: (b) $0.12138 for each five cigarettes or fraction of five cigarettes contained in any package, if the cigarettes are marked or stamped in accordance with the Tobacco Tax Act, R.S.Q. 1977, c. I-2, to indicate that the cigarettes are intended for retail sale in the Province of Quebec; and
1994, c. 29, s. 14(1); 1997, c. 26, ss. 74(3) and (4); 2000, c. 30, ss. 107(3) to (5) and par. 140(1)(f)
(3) Paragraphs 1(c) to (e) of Schedule II to the Act are repealed.
(4) Subsections (1) to (3) are deemed to have come into force on April 6, 2001.
�� 1994, c. 29, s. 14(1); 1997, c. 26, s. 76(1); 2000, c. 30, s. 108(1)
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41. (1) Sections 2 and 3 of Schedule II to the Act are replaced by the following:
2. Tobacco sticks: $0.01965 per stick. 3. Manufactured tobacco other than cigarettes and tobacco sticks: $15.648 per kilogram. (2) Subsection (1) is deemed to have come into force on April 6, 2001. 42. (1) Schedule VII to the Act is amended by adding the following after section 1: 1.1For the purposes of section 1, ‘‘duty’’ does not include a duty levied under subsection 21(2) of the Customs Tariff. (2) Subsection (1) comes into force or is deemed to have come into force on October 1, 2001. R.S., c. 1 (5th Supp.)
INCOME TAX ACT
43. (1) Subsection 182(1) of the Income Tax Act is replaced by the following: Surtax
182. (1) Every corporation shall pay a tax under this Part for each taxation year equal to 50% of the corporation’s Part I tax on tobacco manufacturing profits for the year. (2) Subsection (1) applies to taxation years ending after April 5, 2001, except that, in its application to a corporation’s taxation year that includes that day, subsection 182(1) of the Act, as enacted by subsection (1), shall be read as follows: 182. (1) Every corporation shall pay a tax under this Part for the corporation’s taxation year that includes April 5, 2001, equal to the total of (a) 40% of that proportion of the corporation’s Part I tax on tobacco manufacturing profits for the year that the number of days in the year that are before April 6, 2001, is of the total number of days in the year, and
Taxe sur le ta (b) 50% of that proportion of the corporation’s Part I tax on tobacco manufacturing profits for the year that the number of days in the year that are after April 5, 2001, is of the total number of days in the year. APPLICATION
44. For the purposes of applying the provisions of the Customs Act, the Excise Act and the Excise Tax Act that provide for the payment of, or liability to pay, interest in respect of any amount, the amount shall be determined and interest shall be computed on it as though this Act had been assented to on April 6, 2001.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 12 An Act to amend the Proceeds of Crime (Money Laundering) Act
ASSENTED TO 14th JUNE, 2001 BILL S-16
SUMMARY This enactment amends the Proceeds of Crime (Money Laundering) Act in order to clarify the intent of certain provisions concerning the Financial Transactions and Reports Analysis Centre of Canada.
49-50 ELIZABETH II
CHAPTER 12 An Act to amend the Proceeds of Crime (Money Laundering) Act [Assented to 14th June, 2001] 2000, c. 17
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. Section 54 of the Proceeds of Crime (Money Laundering) Act is amended by striking out the word ‘‘and’’ at the end of paragraph (c) and by replacing paragraph (d) with the following: (d) subject to section 6 of the Privacy Act, shall retain each report and all information for five years after the date the report is received or the information is received or collected or, where information is disclosed under subsection 55(3), (4) or (5), shall retain the information and any report containing it for eight years after that date; and (e) notwithstanding the National Archives of Canada Act, shall destroy each report received and all information received or collected on the expiry of the applicable period referred to in paragraph (d). 2. Paragraph 55(7)(e) of the Act is replaced by the following:
Limitation on orders for disclosure of information
(e) any other similar identifying information that may be prescribed. 3. Subsection 60(1) of the Act is replaced by the following: 60. (1) Despite the provisions of any other Act, except sections 49 and 50 of the Access to Information Act and sections 48 and 49 of the Privacy Act, an order for disclosure of information may be issued in respect of the Centre only under subsection (4).
C. 12
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Proceeds of Crime (M
4. Section 64 of the Act is amended by adding the following after subsection (9): Prohibition
(9.1) The authorized person shall not examine or make copies of a document in the possession of a person, not being a legal counsel, who contends that a claim of solicitor-client privilege may be made in respect of the document by a legal counsel, without giving that person a reasonable opportunity to contact that legal counsel to enable a claim of solicitor-client privilege to be made.
Published under authority of the Senate of Canada Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 13
An Act to amend the Motor Vehicle Transport Act, 1987 and to make consequential amendments to other Acts
BILL S-3 ASSENTED TO 14th JUNE, 2001
SUMMARY This enactment modernizes and streamlines the regulation of extra-provincial motor carrier (truck and bus) undertakings in Canada, building on the reforms introduced in the Motor Vehicle Transport Act, 1987. The objective is a consistent national regime for motor carriers focused on carrier safety regulation. The key components of the enactment include (a) a national regulatory framework for provincial administration of a safety performance-based regime for extra-provincial motor carriers, based on the national safety standards developed by the governments of Canada and the provinces in consultation with industry and embodied in the National Safety Code for Motor Carriers; (b) provision for national policy direction supporting the implementation of that framework; and (c) provision for international arrangements for mutual recognition of carrier safety performance assessment.
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49-50 ELIZABETH II
CHAPTER 13 An Act to amend the Motor Vehicle Transport Act, 1987 and to make consequential amendments to other Acts [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. 29 (3rd Supp.)
MOTOR VEHICLE TRANSPORT ACT, 1987
1. Section 1 of the Motor Vehicle Transport Act, 1987 is replaced by the following: Short title
1. This Act may be cited as the Motor Vehicle Transport Act. 2. (1) The definitions ‘‘extra-provincial truck transport’’, ‘‘local truck transport’’, ‘‘local truck undertaking’’ and ‘‘provincial transport board’’ in subsection 2(1) of the Act are repealed. (2) The definition ‘‘prescribed’’ in subsection 2(1) of the English version of the Act is repealed. (3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
‘‘extraprovincial motor carrier undertaking’’ « entreprise extraprovinciale de transport routier »
‘‘extra-provincial motor carrier undertaking’’ means an extra-provincial bus undertaking or an extra-provincial truck undertaking;
‘‘provincial authority’’ « autorité provinciale »
‘‘provincial authority’’ means a person or body that has, under the law of a province, authority to control or regulate motor carrier undertakings that operate exclusively in the province. 3. Section 3 of the Act and the heading before it are replaced by the following:
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C. 13
Motor Vehicl OBJECTIVES
Statement of objectives
3. (1) The objectives of this Act are to ensure that the National Transportation Policy set out in section 5 of the Canada Transportation Act is carried out with respect to extraprovincial motor carrier undertakings, and, more specifically, that (a) the regulatory regime for those undertakings is focused on safety performance assessments based on the National Safety Code for Motor Carriers; and (b) the operating standards that apply to those undertakings are applied consistently across Canada.
Statements of policy by Governor in Council
(2) The Governor in Council may, on the recommendation of the Minister, after consultation by the Minister with the provinces, issue transportation policy statements consistent with the objectives set out in subsection (1).
Provincial authority to comply with guidelines
(3) Provincial authorities shall, with respect to extra-provincial motor carrier undertakings, have regard to all transportation policy statements issued under subsection (2).
Power to conduct research
3.1 The Minister may conduct any research, studies and evaluations that the Minister considers necessary to carry out the objectives of this Act. ARRANGEMENTS
Agreements
3.2 (1) The Minister may, after consultation with the provinces and on the terms and conditions that the Minister may specify, enter into agreements in support of the objectives set out in section 3 with provincial governments or with other persons or bodies.
International arrangements
(2) The Minister may, after consultation with the provinces and on the terms and conditions that the Minister may specify, enter into arrangements with foreign states or agencies of those states to promote the objectives of this Act, including the recognition in Canada of documents analogous to safety fitness certificates issued by those states or agencies and the recognition by them of safety fitness certificates.
Transports 4. Section 4 of the Act and the headings before it are replaced by the following:
BUS TRANSPORT
Operating Licences Operation without licence prohibited
4. Where in any province a licence is, by the law of the province, required for the operation of a local bus undertaking, no person shall operate an extra-provincial bus undertaking in that province except under and in accordance with a licence issued under the authority of this Act.
1992, c. 1, s. 144(1), Sch. VII, item 40(F)
5. Sections 5 to 10 of the Act are replaced by the following:
Issue of licence
5. The provincial authority in each province may, in its discretion, issue a licence to a person to operate an extra-provincial bus undertaking in the province on the like terms and conditions and in the like manner as if the extra-provincial bus undertaking were a local bus undertaking. Tariffs and Tolls
Tariffs and tolls
6. Where in any province tariffs and tolls for local bus transport are determined or regulated by the provincial authority, the authority may, in its discretion, determine or regulate the tariffs and tolls for extra-provincial bus transport on the like terms and conditions and in the like manner as if the extra-provincial bus transport were local bus transport. EXTRA-PROVINCIAL MOTOR CARRIER SAFETY
Operation without safety fitness certificate prohibited
7. (1) Subject to the regulations, no person or body shall operate an extra-provincial motor carrier undertaking except under a safety fitness certificate issued by a provincial authority under this Act or an analogous document prescribed by the regulations.
Form of certificate
(2) A safety fitness certificate need not be in any particular form.
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Applicable safety laws
(3) Laws of a province respecting the safety of motor carrier undertakings apply to an extra-provincial motor carrier undertaking to the extent that those laws are not inconsistent with this Act.
Issuance of safety fitness certificate
8. (1) The provincial authority in each province may, subject to the regulations, issue a safety fitness certificate to a person or body to operate an extra-provincial motor carrier undertaking, and may revoke any certificate so issued.
Certificate valid throughout Canada
(2) A safety fitness certificate issued under subsection (1) is valid throughout Canada.
Review of decisions with respect to safety fitness certificates
(3) The following rules apply to the review of decisions with respect to the issuance or revocation of safety fitness certificates in a province by a provincial authority: (a) any rules with respect to the right of review, and any proceedings governing reviews, applicable in that province in respect of such decisions; and (b) in the absence of rules or procedures established under paragraph (a), the rules with respect to the right of review, and the procedures governing reviews, of decisions with respect to the issuance and revocation of licences of motor carrier undertakings in that province.
Withdrawal of power to issue safety fitness certificates
9. (1) If the Minister is satisfied after consultation with the provinces that the provincial authority in a province is not issuing safety fitness certificates in accordance with this Act, the Minister may, by order, withdraw its power to issue such certificates.
Effective date of withdrawal
(2) An order made under subsection (1) takes effect on the date of its publication in the Canada Gazette.
Undertaking that holds a certificate
(3) An extra-provincial motor carrier undertaking that holds a safety fitness certificate issued by a provincial authority whose power to issue certificates under this section has been withdrawn shall, not later than sixty days after publication of an order made under subsection
Transports (1), file a declaration with another provincial authority that the undertaking is subject to supervision by it.
Reinstatement
10. If the Minister is satisfied that a provincial authority referred to in subsection 9(3) has remedied its default and established a plan to ensure that the default does not recur, the Minister shall, by order, revoke the order made under subsection 9(1). 6. Section 16 of the Act and the headings before it are replaced by the following:
EXEMPTIONS, REGULATIONS, FOREIGN CARRIERS AND OFFENCE AND PUNISHMENT
Exemptions Exemptions
16. (1) The Minister may, after consultation with the provinces that would be affected by a proposed exemption, exempt from the application of any provision of this Act or the regulations, either generally or for a limited period or in respect of a limited area, any person, the whole or any part of any extra-provincial motor carrier undertaking or any class of those undertakings, if in the opinion of the Minister the exemption is in the public interest and is not likely to affect motor carrier safety.
Terms and conditions
(2) An exemption under subsection (1) is subject to any terms or conditions that the Minister may specify in it. Regulations
Regulations
16.1 (1) The Governor in Council may, on the recommendation of the Minister made after consultation by the Minister with the provinces that would be affected by the proposed regulation, make regulations for the attainment of the objectives of this Act and, in particular, regulations (a) prescribing classes of extra-provincial motor carrier undertakings for the purposes of this Act, or any or all regulations under this Act; (b) respecting the criteria according to which provincial authorities may issue safety fitness certificates under section 8;
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(c) prescribing analogous documents for the purpose of subsection 7(1); (d) respecting the safe operation of extraprovincial motor carrier undertakings including regulations respecting audit, inspection, entry on premises and the provision of information; (e) prescribing the criteria relating to the fitness of an extra-provincial motor carrier undertaking to hold a safety fitness certificate issued under section 8; (f) prescribing the type, amount and conditions of insurance and bonding coverage required to be held by an extra-provincial motor carrier undertaking; (g) prescribing the information that applicants, extra-provincial motor carrier undertakings and provincial authorities must provide to the Minister, to other provincial authorities or to foreign states or agencies of those states; (h) prescribing the conditions of carriage and the limitations of liability that apply with respect to extra-provincial motor carrier undertakings; and (i) restricting or otherwise governing the release of pollutants into the environment from the operation of vehicles operated by extra-provincial motor carrier undertakings. Incorporation by reference
(2) A regulation made under subsection (1) may incorporate by reference all or any portion of another document, as amended from time to time, including (a) a standard relating to the safe operation of a motor carrier undertaking; and (b) the law of a province relating to motor vehicle undertakings.
1995, c. 5, par. 25(1)(u)
7. Section 17 of the Act is replaced by the following:
Unfair practices
17. (1) If the Minister is of the opinion that a government in a foreign state has engaged in unfair, discriminatory or restrictive practices with regard to Canadian extra-provincial motor carrier undertakings that operate in that state or between that state and Canada, the
Transports Minister shall, with the concurrence of the Minister of Foreign Affairs, seek elimination of those practices through consultations with that state.
Order in Council
(2) If the consultations referred to in subsection (1) fail to result in the elimination of the practices referred to in that subsection, the Governor in Council may, on the recommendation of the Minister and the Minister of Foreign Affairs made after consultation by the Minister with the provinces that would be affected by the proposed order, notwithstanding anything in this Act or any other Act of Parliament, by order, subject to any conditions that may be specified in the order, (a) prohibit or restrict the issuance of a safety fitness certificate under the authority of this Act to any foreign carrier, all foreign carriers or any class of foreign carrier; (b) direct any provincial authority to suspend a safety fitness certificate issued under the authority of this Act to any foreign carrier, all foreign carriers or any class of foreign carrier; and (c) direct any provincial authority to reinstate a safety fitness certificate suspended in accordance with a direction issued under paragraph (b).
Compliance
(3) A provincial authority to which an order applies shall comply with it. 8. The Act is amended by adding the following after section 20:
Venue
20.1 A prosecution under this Act may be instituted, tried and determined by a court in any territorial jurisdiction in which the accused carries on business, regardless of where the subject-matter of the prosecution arose. 9. Sections 22 to 35 of the Act are replaced by the following:
Proof of documents
22. In any proceedings for an offence under this Act, any document purporting to be certified by a provincial authority to be a true copy of any order or direction made by it is, without proof of the signature or of the official character of the person appearing to have signed the document, evidence of the original document of which it purports to be a copy.
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Motor Vehicl TRANSITIONAL PROVISIONS
Deeming
23. If an extra-provincial motor carrier undertaking is, on the day immediately before the coming into force of this section, authorized to operate within a province, the undertaking is deemed to hold a safety fitness certificate issued under section 8.
Pending applications
24. (1) An application for a licence made under section 8, as that section read before the coming into force of this section, and pending on the day immediately before that coming into force, is deemed to have been made under section 8 of this Act.
Pending applications — bus transport
(2) Every application for a licence made under section 5 with respect to bus transport that is pending on the day immediately before the coming into force of this section, is deemed to be an application made under sections 5 and 8. ANNUAL REPORT
Report to Parliament
25. (1) The Minister shall prepare an annual report and cause a copy of it to be laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister completes it.
Content of annual report
(2) The annual report of the Minister shall contain the following in respect of the year: (a) the available statistical information respecting trends of highway accidents in Canada involving motor vehicles operated by extra-provincial bus undertakings and extra-provincial truck undertakings reported separately for bus undertakings and truck undertakings; and (b) a progress report on the implementation of rules and standards respecting the safe operation of extra-provincial bus undertakings and of extra-provincial truck undertakings.
Transports REVIEW OF PROVISIONS
Review
26. (1) The Minister shall, after the expiry of four years after the coming into force of this section and before the expiry of five years after that coming into force, undertake and complete a comprehensive review of the operation and effect of the amendments to this Act contained in An Act to amend the Motor Vehicle Transport Act, 1987 and to make consequential amendments to other Acts and shall, without delay, prepare a report with respect to that review.
Minister to make report available
(2) The Minister shall make the report available to the Council of Ministers Responsible for Transportation and Highway Safety at the next meeting of the council after its completion.
Tabling of report
(3) The Minister shall cause a copy of the report to be laid before each House of Parliament during the first thirty sitting days of that House following its completion. CONSEQUENTIAL AMENDMENTS
R.S., c. E-9
Energy Supplies Emergency Act
1996, c. 10, s. 218
10. Section 38 of the Energy Supplies Emergency Act is replaced by the following:
Motor transport
38. In respect of an extra-provincial truck undertaking within the meaning of the Motor Vehicle Transport Act, the Board may authorize the operation of the undertaking for the transport of a controlled product notwithstanding any provision of that Act or the Canada Transportation Act or any regulations made pursuant to either of those Acts.
R.S., c. E-15
Excise Tax Act 11. Subparagraph (b)(iii) of the definition ‘‘specified supply’’ in section 364 of the Excise Tax Act, as enacted by section 242 of An Act to amend the Excise Tax Act, the Federal-Provincial Fiscal Arrangements Act, the Income Tax Act, the Debt Servicing and Reduction Account Act and related Acts, chapter 10 of the Statutes of Canada, 1997, is replaced by the following:
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Motor Vehicl (iii) made by a person who operates an extra-provincial bus undertaking (within the meaning assigned by subsection 2(1) of the Motor Vehicle Transport Act);
R.S., c. G-10
Canada Grain Act
R.S., c. 29 (3rd Supp.), s. 25
12. The definition ‘‘public carrier’’ in section 2 of the Canada Grain Act is replaced by the following:
‘‘public carrier’’ « transporteur public »
‘‘public carrier’’ means any railway company, any operator of an extra-provincial truck undertaking within the meaning of the Motor Vehicle Transport Act and any owner or operator of a ship; COMING INTO FORCE
Coming into force
13. The provisions of this Act, and the provisions of any Act that are enacted by this Act, come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Senate of Canada Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 11
An Act to amend the Budget Implementation Act, 1997 and the Financial Administration Act
BILL C-17 ASSENTED TO 14th JUNE, 2001
RECOMMENDATION Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled ‘‘An Act to amend the Budget Implementation Act, 1997 and the Financial Administration Act’’.
SUMMARY The amendments to the Budget Implementation Act, 1997 implement certain of the Government of Canada’s commitments regarding the Canada Foundation for Innovation that were announced in the Economic Statement and Budget Update of October 18, 2000. Funding for the Foundation will include operation and maintenance costs of research infrastructure, as well as the purchasing of access to world-leading research facilities located outside Canada and to major international collaborative research projects. Also, a further $750,000,000 is provided to the Foundation — beyond the $500,000,000 provided for in the Economic Statement and Budget Update of October 18, 2000 — for a total amount of $1,250,000,000. The Financial Administration Act is amended to clarify that Parliament must provide explicit authority for any borrowing by or on behalf of the Crown. Two new kinds of regulations are made possible — regulations deeming certain transactions to be a borrowing of money, and regulations imposing a requirement that a money-borrowing transaction be authorized by the Minister of Finance. The Minister of Finance is empowered to authorize such transactions, subject to any terms and conditions that the Minister considers appropriate. The Financial Administration Act is also amended to correct an oversight under which the Canada Pension Plan Investment Board was inadvertently removed from the list of Crown Corporations that are exempt from the application of Divisions I to IV of Part X of that Act.
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49-50 ELIZABETH II
CHAPTER 11 An Act to amend the Budget Implementation Act, 1997 and the Financial Administration Act [Assented to 14th June, 2001]
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1997, c. 26
BUDGET IMPLEMENTATION ACT, 1997
1. The definition ‘‘eligible project’’ in section 2 of the Budget Implementation Act, 1997 is replaced by the following: ‘‘eligible project’’ « travaux admissibles »
‘‘eligible project’’ means (a) a project carried on, or to be carried on, by an eligible recipient for the modernization, acquisition, development, operation or maintenance of research infrastructure by the recipient in Canada; or (b) the purchasing by an eligible recipient of access to a world-leading research facility located outside Canada or to a major international collaborative research project, including the purchasing of such access by means of a contribution toward a portion of capital costs.
Objects and purposes of foundation
2. Section 5 of the Act is replaced by the following: 5. The objects and purposes of the foundation are to make grants to eligible recipients for eligible projects to increase Canada’s capability of carrying on high quality research.
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3. The Act is amended by adding the following after section 94: $1,250,000,000 granted
95. From and out of the Consolidated Revenue Fund there may, on the requisition of the Minister of Finance, be paid and applied a sum of one billion, two hundred and fifty million dollars for the fiscal year beginning on April 1, 2000, for payment to the Canada Foundation for Innovation for its use.
R.S., c. F-11
FINANCIAL ADMINISTRATION ACT
1999, c. 26, s. 21(E)
4. Section 43 of the Financial Administration Act is replaced by the following:
Borrowing of money
43. (1) Notwithstanding any statement in any other Act of Parliament to the effect that this Act or any portion or provision of it does not apply, no money shall be borrowed by or on behalf of Her Majesty in right of Canada except as provided by or under (a) this Act; (b) any other Act of Parliament that expressly authorizes the borrowing of money; or (c) any other Act of Parliament that provides for the borrowing of money from Her Majesty in right of Canada or of a province.
Issuing of securities
(2) No securities shall be issued by or on behalf of Her Majesty in right of Canada without the authority of Parliament. 5. (1) Subsection 60(1) of the Act is amended by striking out the word ‘‘and’’ at the end of paragraph (e) and by adding the following after paragraph (f): (g) deeming a specified transaction or a transaction of a specified class, including the issuance of securities, to be a transaction to borrow money for the purposes of subsection 43(1); and (h) notwithstanding any right provided by or under any other Act of Parliament to borrow money without the Minister’s authorization, requiring the Minister’s authorization in respect of a specified transaction to borrow money or a transaction of a specified class to borrow money.
Exécution du budget de 1997 et G (2) Section 60 of the Act is amended by adding the following after subsection (3):
Minister’s authorization
(4) If a regulation is made under paragraph (1)(g) or (h), the Minister may authorize, subject to any terms and conditions that the Minister considers appropriate, (a) the specified transaction; (b) a particular transaction named by the Minister within the specified class; (c) transactions of a particular subclass described by the Minister within the specified class; or (d) transactions of the specified class.
1998, c. 17, s. 31 Exempted Crown corporations
6. (1) Subsection 85(1) of the Act is replaced by the following: 85. (1) Divisions I to IV do not apply to the Bank of Canada, the Canada Council, the Canada Pension Plan Investment Board, the Canadian Broadcasting Corporation, the Canadian Film Development Corporation, the International Development Research Centre or the National Arts Centre Corporation.
(2) Subsection (1) is deemed to have come into force on December 31, 1998.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 10 An Act to amend the Patent Act
ASSENTED TO 14th JUNE, 2001 BILL S-17
CHAPTER 10 AN ACT TO AMEND THE PATENT ACT
SUMMARY This enactment amends the Patent Act as a result of the rulings of the Dispute Settlement Body of the World Trade Organization in Canada — Patent Protection of Pharmaceutical Products WT/DS114, a case brought by the European Communities and their member States and decided on April 7, 2000, and in Canada — Term of Patent Protection WT/DS170, a case brought by the United States and decided on October 12, 2000. The ruling in the Pharmaceutical Products case was implemented by the repeal of the Manufacturing and Storage of Patented Medicines Regulations, SOR/93-134. This enactment repeals the now obsolete provisions of the Act which authorized the making of those regulations. The implementation of the ruling in the Term of Protection case requires amendments to sections 45, 78.1, 78.2, 78.4 and 78.5 of the Act.
49-50 ELIZABETH II
CHAPTER 10 An Act to amend the Patent Act [Assented to 14th June, 2001] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. P-4
PATENT ACT
1993, c. 15, s. 42
1. Section 45 of the Patent Act is replaced by the following: 45. (1) Subject to section 46, where an application for a patent is filed under this Act before October 1, 1989, the term limited for the duration of the patent is seventeen years from the date on which the patent is issued. (2) Where the term limited for the duration of a patent referred to in subsection (1) had not expired before the day on which this section came into force, the term is seventeen years from the date on which the patent is issued or twenty years from the filing date, whichever term expires later.
Term of patents based on applications filed before October 1, 1989 Term from date of issue or filing
1993, c. 2, s. 4
2. (1) Subsections 55.2(2) and (3) of the Act are repealed.
1993, c. 2, s. 4
(2) The portion of subsection 55.2(4) of the Act before paragraph (a) is replaced by the following: (4) The Governor in Council may make such regulations as the Governor in Council considers necessary for preventing the infringement of a patent by any person who makes, constructs, uses or sells a patented invention in accordance with subsection (1), including, without limiting the generality of the foregoing, regulations
Regulations
1993, c. 15, s. 55
3. Sections 78.1 and 78.2 of the Act are replaced by the following:
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Patent applications filed before October 1, 1989
78.1 Applications for patents in Canada filed before October 1, 1989 shall be dealt with and disposed of in accordance with section 38.1 and with the provisions of this Act as they read immediately before October 1, 1989.
Patents issued before October 1, 1989
78.2 (1) Subject to subsection (3), any matter arising on or after October 1, 1989 in respect of a patent issued before that date shall be dealt with and disposed of in accordance with sections 38.1 and 45 and with the provisions of this Act, other than section 46, as they read immediately before October 1, 1989.
Patents issued on or after October 1, 1989 on the basis of previously filed applications
(2) Subject to subsection (3), any matter arising on or after October 1, 1989 in respect of a patent issued on or after that date on the basis of an application filed before that date shall be dealt with and disposed of in accordance with sections 38.1, 45, 46 and 48.1 to 48.5 and with the provisions of this Act, other than section 46, as they read immediately before October 1, 1989.
Application
(3) The provisions of this Act that apply as provided in subsections (1) and (2) shall be read subject to any amendments to this Act, other than the amendments that came into force on October 1, 1989 or October 1, 1996.
1993, c. 15, s. 55
4. Sections 78.4 and 78.5 of the Act are replaced by the following:
Patent applications filed on or after October 1, 1989
78.4 Applications for patents in Canada filed on or after October 1, 1989, but before October 1, 1996, shall be dealt with and disposed of in accordance with subsection 27(2) as it read immediately before October 1, 1996 and with the provisions of this Act as they read on October 1, 1996.
Patents issued on or after October 1, 1989
78.5 Any matter arising in respect of a patent issued on the basis of an application filed on or after October 1, 1989, but before October 1, 1996, shall be dealt with and disposed of in accordance with the provisions of this Act and with subsection 27(2) as it read immediately before October 1, 1996.
Brev COMING INTO FORCE
Coming into force
5. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
Published under authority of the Senate of Canada Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-seventh Parliament, 49-50 Elizabeth II, 2001
STATUTES OF CANADA 2001
CHAPTER 38
An Act to amend the Aeronautics Act
BILL C-44 ASSENTED TO 18th DECEMBER, 2001
49-50 ELIZABETH II
CHAPTER 38 An Act to amend the Aeronautics Act [Assented to 18th December, 2001] R.S., c. A-2
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: 1. The Aeronautics Act is amended by adding the following after section 4.8:
Foreign states requiring information
4.83 (1) Despite section 5 of the Personal Information Protection and Electronic Documents Act, to the extent that that section relates to obligations set out in Schedule 1 to that Act relating to the disclosure of information, an operator of an aircraft departing from Canada or of a Canadian aircraft departing from any place outside Canada may, in accordance with the regulations, provide to a competent authority in a foreign state any information that is in its control relating to persons on board or expected to be on board the aircraft and that is required by the laws of the foreign state.
Restriction — government institutions
(2) No information provided under subsection (1) to a competent authority in a foreign state may be collected from that foreign state by a government institution, within the meaning of section 3 of the Privacy Act, unless it is collected for the purpose of protecting national security or public safety or for the purpose of defence, and any such information collected by the government institution may be used or disclosed by it only for one or more of those purposes. (3) The Governor in Council may make regulations generally for carrying out the purposes of this section, including regulations
Regulations
(a) respecting the type or classes of information that may be provided; or
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(b) specifying the foreign states to which information may be provided.
Published under authority of the Speaker of the House of Commons Available from: Public Works and Government Services Canada — Publishing, Ottawa, Canada K1A 0S9
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First Session, Thirty-ninth Parliament, 55 Elizabeth II, 2006
STATUTES OF CANADA 2006
CHAPTER 14 An Act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act
ASSENTED TO 14th DECEMBER, 2006 BILL C-19
SUMMARY This enactment amends the Criminal Code to create an offence of street racing based on dangerous driving and criminal negligence offences. This enactment increases, in street racing situations, the maximum punishments for some offences and also provides for minimum prohibitions on driving that increase on a second and subsequent offence. This enactment also makes a consequential amendment to the Corrections and Conditional Release Act.
Also available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca
55 ELIZABETH II —————— CHAPTER 14 An Act to amend the Criminal Code (street racing) and to make a consequential amendment to the Corrections and Conditional Release Act [Assented to 14th December, 2006] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.S., c. C-46
CRIMINAL CODE 1. Section 2 of the Criminal Code is amended by adding the following in alphabetical order:
“street racing” « course de rue »
“street racing” means operating a motor vehicle in a race with at least one other motor vehicle on a street, road, highway or other public place; 2. The Act is amended by adding the following after section 249.1:
Causing death by criminal negligence (street racing)
249.2 Everyone who by criminal negligence causes death to another person while street racing is guilty of an indictable offence and liable to imprisonment for life.
Causing bodily harm by criminal negligence (street racing)
249.3 Everyone who by criminal negligence causes bodily harm to another person while street racing is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Dangerous operation of motor vehicle while street racing
249.4 (1) Everyone commits an offence who, while street racing, operates a motor vehicle in a manner described in paragraph 249(1)(a).
Punishment
(2) Everyone who commits an offence under subsection (1)
C. 14
Criminal Code
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction. Dangerous operation causing bodily harm
(3) Everyone who commits an offence under subsection (1) and thereby causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Dangerous operation causing death
(4) Everyone who commits an offence under subsection (1) and thereby causes the death of another person is guilty of an indictable offence and liable to imprisonment for life.
1999, c. 32, s. 5(1)
3. (1) The portion of subsection 259(1) of the French version of the Act before paragraph (a) is replaced by the following:
Ordonnance d’interdiction obligatoire
259. (1) Lorsqu’un contrevenant est déclaré coupable d’une infraction prévue à l’article 253 ou 254 ou absous sous le régime de l’article 730 d’une infraction prévue à l’article 253 et qu’au moment de l’infraction, ou dans les trois heures qui la précèdent dans le cas d’une infraction prévue à l’article 254, il conduisait ou avait la garde ou le contrôle d’un véhicule à moteur, d’un bateau, d’un aéronef ou de matériel ferroviaire, ou aidait à la conduite d’un aéronef ou de matériel ferroviaire, le tribunal qui lui inflige une peine doit, en plus de toute autre peine applicable à cette infraction, rendre une ordonnance lui interdisant de conduire un véhicule à moteur dans une rue, un chemin ou une grande route ou tout autre lieu public, un bateau, un aéronef ou du matériel ferroviaire : (2) Section 259 of the Act is amended by adding the following after subsection (3):
Mandatory order of prohibition — street racing
(3.1) When an offender is convicted or discharged under section 730 of an offence committed under subsection 249.4(1), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place
Code criminel ( (a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year; (b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and (c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
Mandatory order of prohibition — bodily harm
(3.2) When an offender is convicted or discharged under section 730 of an offence committed under section 249.3 or subsection 249.4(3), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place (a) for a first offence, during a period of not more than ten years plus any period to which the offender is sentenced to imprisonment, and not less than one year; (b) for a second offence, during a period of not more than ten years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and (c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
Mandatory order of prohibition — death
(3.3) When an offender is convicted or discharged under section 730 of a first offence committed under section 249.2 or subsection 249.4(4), the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place (a) for an offence under section 249.2, during a period of not less than one year plus any period to which the offender is sentenced to imprisonment; and
C. 14
Criminal Code
(b) for an offence under subsection 249.4(4), during a period of not more than ten years plus any period to which the offender is sentenced to imprisonment, and not less than one year. Mandatory life prohibition
(3.4) When an offender is convicted or discharged under section 730 of an offence committed under section 249.2 or 249.3 or subsection 249.4(3) or (4), the offender has previously been convicted or discharged under section 730 of one of those offences and at least one of the convictions or discharges is under section 249.2 or subsection 249.4(4), the court that sentences the offender shall make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place for life.
R.S., c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18 (Sch. I, item 9)(F), c. 32 (4th Supp.), s. 62(4); 1995, c. 22, s. 18 (Sch. IV, item 26)
(3) Subsection 259(5) of the Act is replaced by the following:
Definition of “disqualification”
(5) For the purposes of this section, “disqualification” means (a) a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered pursuant to any of subsections (1), (2) and (3.1) to (3.4); or (b) a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed (i) in the case of a motor vehicle, under the law of a province, or (ii) in the case of a vessel or an aircraft, under an Act of Parliament, in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (2) and (3.1) to (3.4).
Code criminel (
R.S., c. 27 (1st Supp.), s. 36
4. The portion of subsection 260(1) of the Act before paragraph (a) is replaced by the following:
Proceedings on making of prohibition order
260. (1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause
1997, c. 18, s. 12 and par. 141(a)
5. Section 261 of the Act is replaced by the following:
Stay of order pending appeal
261. (1) If an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220, 221, 236, 249 to 255 and 259, a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court may impose, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.
Effect of conditions
(2) If conditions are imposed under a direction made under subsection (1) that the prohibition order be stayed, the direction shall not operate to decrease the period of prohibition provided in the order.
2005, c. 22, s. 38
6. Paragraph (b) of the definition “sentence” in section 673 of the Act is replaced by the following: (b) an order made under subsection 109(1) or 110(1), section 161, subsection 164.2(1) or 194(1), section 259, 261 or 462.37, subsection 491.1(2), 730(1) or 737(3) or (5) or section 738, 739, 742.1, 742.3, 743.6, 745.4 or 745.5,
2002, c. 13, s. 78
7. Paragraph (b) of the definition “sentence” in section 785 of the Act is replaced by the following: (b) an order made under subsection 109(1) or 110(1), section 259 or 261, subsection 730(1) or 737(3) or (5) or section 738, 739, 742.1 or 742.3,
C. 14
6 1992, c. 20
Criminal Code
CONSEQUENTIAL AMENDMENT TO THE CORRECTIONS AND CONDITIONAL RELEASE ACT 8. The portion of section 109 of the Corrections and Conditional Release Act before paragraph (a) is replaced by the following:
Prohibition orders re vehicles, etc.
109. The Board may, on application, cancel or vary the unexpired portion of a prohibition order made under section 259 of the Criminal Code after a period of
Published under authority of the Speaker of the House of Commons Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
Also available on the Parliament of Can Aussi disponible sur le site Web du Par http://www Available from: Publishing and Depository Services Public Works and Government Services Canada Ottawa, Ontario K1A 0S5 Telephone: (613) 941-5995 or 1-800-635-7943 Fax: (613) 954-5779 or 1-800-565-7757 [email protected] http://publications.gc.ca
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